Trans Euro Group Limited and Kapur Nandra
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ovey |
| Neutral Citation | [2019] UKUT 237 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Transport - Traffic Commissioner,DoE (NI) Appeals,Ovey,E |
| Date | 29 July 2019 |
| Published date | 04 March 2020 |
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Appeal No.: T/2018/69
NCN: [2019] UKUT 0237 (AAC)
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS
IN AN APPEAL FROM THE DECISION OF:
MR. JAMES ASTLE, DEPUTY TRAFFIC COMMISSIONER FOR THE
EASTERN TRAFFIC AREA
DATED 12th SEPTEMBER 2018
Before:
Elizabeth Ovey, Judge of the Upper Tribunal
Stuart James, Specialist Member of the Upper Tribunal
David Rawsthorn, Specialist Member of the Upper Tribunal
Appellants: (1) TRANS EURO GROUP LIMITED
(2) KAPUR NANDRA
Attendance: Mr. Tim Nesbitt Q.C. appeared for the Appellants, instructed by
Fieldfisher
Heard at: Field House, 15-25 Breams Buildings, London EC4A 1DZ
Date of hearing: 21st May 2019
Date of decision: 29th July 2019
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that the appeal be DISMISSED.
SUBJECT MATTER: Failure to have transport manager in place; revocation and
disqualification; whether representation at inquiry so incompetent as to render process
and decision unfair; conduct of balancing exercise; whether significant
misunderstanding of evidence; proportionality
CASES REFERRED TO: Ladd v. Marshall [1954] 1 W.L.R. 1489; Thomas Muir
(Haulage) Limited v. Secretary of State for the Environment, Transport and the Regions
[1998] S.L.T. 666; 2002/40 Thames Materials Limited; 2002/217 Bryan Haulage
[2019] UKUT 0237 (AAC)
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T/2018/69
Limited (No. 2); R. v Day [2003] EWCA Crim 1060; David Crompton Haulage v.
Department of Transport [2003] EWCA Civ 64; R. (On the application of Aston) v.
Nursing & Midwifery Council [2004] EWHC 2368; Muck It Limited v. Merritt [2005]
EWCA Civ 1124; 2009/225 Priority Freight Limited; T/2010/52 and 53, Taylor and
Taylor, [2010] UKUT 397 (AAC); Bradley Fold Travel Limited and Peter Wright v.
Secretary of State for Transport [2010] EWCA Civ 695, [2011] R.T.R. 13; T/2012/46
Shearer Transport Limited and James Shearer [2013] UKUT 489 (AAC); T/2014/72
Nicholas t/a Wigan Container Services, [2015] UKUT 0148 (AAC); T/2015/36 W.
Martin Oliver Partnership, [2016] UKUT 0070 (AAC); T/2015/39 Firstline
International and William Lambie Limited, [2016] UKUT 0291 (AAC); T/2017/33 Paul
Andrew Nimmo t/a P&N Travel, [2017] UKUT 0479 (AAC)
REASONS FOR DECISION
Introduction
1. This is an appeal by two appellants (together “the Appellants”), Trans Euro
Group Limited (“Trans Euro”) and Mr. Kapur Nandra (“Mr. Nandra”), against the
decision of the Deputy Traffic Commissioner for the Eastern Traffic Area (“the TC”)
given on 12th September 2018, following a public inquiry held on 10th August 2018.
Mr. Nandra is the sole director of Trans Euro. By his decision the TC decided that:
(1) Trans Euro, the holder of licence OF1147792, lost its repute;
(2) licence OF1147792 was revoked with effect from midnight on 28th
September 2018;
(3) Trans Euro and Mr. Nandra were disqualified from holding or obtaining
a licence until midnight on 27th September 2020;
(4) any licence associated by company or partnership with Trans Euro or
Mr. Nandra was liable to revocation, suspension or curtailment until
midnight on 27th September 2020.
2. The public inquiry was a conjoined hearing to which Mr. Simon Porte (“Mr.
Porte”) was also called. Mr. Porte was the nominated transport manager for Trans Euro.
He also held as a sole trader his own operator’s licence, OF1123766, and was his own
transport manager. In relation to Mr. Porte the TC decided that:
(1) Mr. Porte lost his repute as transport manager but retained his repute as
operator;
(2) Mr. Porte was disqualified from holding a position as a transport
manager from the date of the decision until midnight on 13th September
2019 or until he obtained a new certificate of professional competence,
whichever was the later;
[2019] UKUT 0237 (AAC)
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T/2018/69
(3) licence OF1123766 was suspended for 14 days from midnight on 21st
September 2018;
(4) licence OF1123766 was curtailed from three vehicles to one vehicle.
3. The grounds on which Trans Euro was called to the inquiry included the issue
whether Mr. Porte as transport manager was exercising continuous and effective
management of Trans Euro’s transport activities. As is explained further below, as a
matter of fact Mr. Porte had done virtually nothing as transport manager, a state of
affairs which, broadly speaking, Mr. Porte attributed to Mr. Nandra. In very general
terms, Trans Euro and Mr. Nandra complain, among other matters, that the TC too
readily accepted what Mr. Porte said and did not pay sufficient attention to Mr. Porte’s
own failings.
4. Mr. Porte was represented at the inquiry by Ms. Claire McCarthy of CE
Transport Law Limited. At the outset of the hearing the clerk stated that Mr. Nandra
was present but not represented. He was, however, accompanied by Mr. Paul Webster,
a transport consultant. In response to a question from the TC, Mr. Webster said that he
represented Trans Euro as advocate in the proceedings. This state of affairs also
features in the grounds of appeal.
5. In those circumstances, although Mr. Porte has not appealed against the TC’s
decision, he plays a substantial part in the history of the matter.
The facts
6. Trans Euro was incorporated on 15th October 2001. It is a logistics company
which offers services including freight forwarding, customs clearance, air cargo,
warehouse services and inland trucking services. For much of its trading history it has
carried out its activities using light goods vehicles and has not required a heavy goods
vehicle operator’s licence. In August 2016, however, it decided to apply for a licence
for one heavy goods vehicle. Mr. Porte was named as the transport manager on the
application form, which is dated 31st August 2016, and it was stated that safety
inspections would be carried out at six week intervals. The form TM1, by which Mr.
Porte was nominated as transport manager, stated that he would spend four hours a
week on his transport manager duties.
7. Licence OF1147792 took effect from 8th December 2016. It authorised the use
of one vehicle, the specified vehicle being EU54NXP, and of course contained the
standard undertakings, including the undertaking to observe the rules on drivers’ hours
and tachographs. Mr. Nandra says that he went on the training course for new operators.
8. On 25th January 2018 a traffic examiner, Mr Christopher Lowe, stopped vehicle
EU54NXP at the Thurrock weighbridge. The driver produced tachograph charts going
back to January 2017 for different drivers and was himself not familiar with the
requirement to return charts to the operator within 42 days. On 27th March 2018 Mr.
Lowe made an appointment to see Mr. Nandra on 6th April 2018 to complete a traffic
examiner operator report. Mr. Porte was not present when the meeting took place.
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