Neutral Citation Number: [2015] UKUT 0255 (AAC)

IN THE UPPER TRIBUNAL					T/2015/02
ADMINISTRATIVE APPEALS CHAMBER

Appellant:		Shoretime Limited (later Leigh Rushworth Limited) 

On Appeal From:		Traffic Commissioner for the West of England

Reference: 		OH1042856	
Public Inquiry Date:		3rd and 31st October 2014
Venue: 		Bristol
Decision Date:	        	16th December 2014

DECISION OF THE UPPER TRIBUNAL
ON AN APPEAL AGAINST THE TRAFFIC COMMISSIONER 

Upper Tribunal Judge H. Levenson
Upper Tribunal Member G. Inch
Upper Tribunal Member D Rawsthorn

T/2015/02

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
ON AN APPEAL AGAINST THE TRAFFIC COMMISSIONER FOR THE WEST OF ENGLAND

Decision 

1. This appeal does not succeed. We confirm the decisions and orders of the Traffic Commissioner given on 16th December 2014 following a public inquiry in Bristol on 3rd and 31st October 2014 (reference OH1042856) (see paragraph 5 below). 

Hearing

2. We held an oral hearing of the appeal at Field House (London) on 29th April 2015. The appellants Shoretime Limited (later known as Leigh Rushworth Limited) and Leigh Rushworth himself were represented by Tim Nesbitt of counsel, instructed by Woodfines, solicitors. Mr Nesbitt did not appear on behalf of the other subjects of the Traffic Commissioner’s order, who were not parties to the appeal and were unrepresented. The name of the appellant company was changed on 24th September 2014 but we refer to it by its original name because that is how it was referred to in the decision of the Traffic Commissioner.

Background

3. For reasons which will become apparent it is not necessary to go into a great deal of detail. From March 2005 Shoretime Limited held a standard international operator’s licence OH1042856 authorising the use of two vehicles and two trailers. There were outstanding applications to increase the authorisation to three vehicles and three trailers, to replace the operating centre and to replace Alan Rushworth as transport manager by his son Leigh Rushworth. The directors of Shoretime Limited were Leigh Rushworth and his mother Mary Rushworth, until the latter resigned on 9th September 2014. Separately, Alan Rushworth held a sole trader’s operator’s licence OH1116854 granted on 30th January 2013 and also authorising the use of two vehicles and two trailers. He was his own transport manager, and maintenance under both licences was listed as carried out by Alan and Leigh.

4. There were prohibitions recorded against Shoretime Limited in November 2011 and August 2012. It seems that these, in combination with the submission of the pending applications, prompted a maintenance investigation which took place on 13th September 2013. The vehicle examiner found the results to be unsatisfactory as detailed in the Commissioner’s decision. He had been shown around by Alan Rushworth and it was noted that the latter had indicated that he was a director of Shoretime Limited (which he was not). Other such confusions also came to light. A public inquiry was called, which took place on 3rd and 31st October 2014. The evidence has been very helpfully summarised by Mr Nesbitt in his written skeleton argument of 23rd April 2015. In particular, confusing and contradictory evidence was given about the responsibilities and activities of the limited company, Alan Rushworth and Leigh Rushworth. 
5. The Commissioner found that Leigh Rushworth had been acting for at least two years as though there were a licence in his name when he knew there was not and knew that the situation was unlawful and “needed sorting out”, that Alan Rushworth had loaned his licence to another person, and that Shoretime Limited was no longer of good repute, or professionally competent by virtue of the failure to have in post a transport manager who satisfied the statutory requirements. The Commissioner:

(a) revoked Shoretime Limited’s operator’s licence OH1042856 with effect from 2359 on 3rd February 2015;

(b) disqualified Shoretime Limited, Alan Rushworth, Mary Rushworth and Leigh Rushworth from holding or obtaining an operator’s licence or being involved in the management, administration or control of an entity that holds such a licence in Great Britain for the period of 18 months from 2359 on 3rd February 2015.

6. On 9th January 2015 Leigh Rushworth appealed to the Upper Tribunal against the decisions of the Traffic Commissioner. It is clear from the notice of appeal and from subsequent documents that it was also intended that Shoretime Limited be an appellant. To the extent necessary and for the avoidance of doubt we agree to treat Shoretime Limited as an additional appellant in accordance with rule 9(1) of The Tribunal Procedure (Upper Tribunal) Rules 2008. On 15th January 2015 the Commissioner refused an application for a stay pending appeal to the Upper Tribunal, and on 9th February 2015 HH Judge Brodrick, sitting as a judge of the Upper Tribunal, also refused such a stay, having granted a brief stay until that time.
We are not considering the position of Alan Rushworth or Mary Rushworth, who remain bound by the decisions of the Traffic Commissioner.

The Submissions

7. At the hearing before us Mr Nesbitt made it quite clear that, with one or two exceptions, the appellants were not challenging the findings made or the essential conclusions reached by the Commissioner. It was accepted that there had been significant failings and that they had made a substantial mess of things. However, this was all due to confusion and naivety rather than to any dishonesty or lack of integrity. He was not suggesting that there should be no sanction, but the period of 18 months was disproportionately lengthy and harsh and the situation had been appropriately remedied by the other disqualifications. This had been a generally compliant business and “… whatever his awareness that something was wrong it was in a context in which he had plainly failed intellectually fully to grasp the problem or its seriousness. He had recently taken steps to regularise the position. There had been no identifiable commercial (or indeed other) reason to do things the “wrong” way …” (paragraph 19 of the written skeleton argument).

Conclusion

8. We noted that, for example, the Commissioner put the following to the appellants’ representative at the public inquiry, and that it was accepted by the representative:

“The one sentence that keeps ringing in my mind, “I knew that it was wrong. I knew that it was illegal but I carried on anyway. That was my mistake”…” (paragraph D on page 185).

9. We also note that in January 2012 Leigh Rushworth obtained his certificate of professional competence as a transport manager. This must have required him to understand, at least in the most basic way, the difference between the various types of entity such as sole trader, partnership and limited company.

10. Even on the basis that Mr Nesbitt is correct about the disputed findings of fact, it is difficult to accept that Leigh Rushworth had been quite as naïve as has been suggested, but if he had been that would itself speak to his lack of reliability and competence. If he was prepared to carry on acting in one way that he knew was illegal, it is very difficult to be confident that he would never act in any other relevant way that he knew was illegal.

11. For the above reasons we find that the orders made by the Traffic Commissioner as set out in paragraph 5 above were justifiable, reasonable and proportionate and this appeal does not succeed. Shoretime Limited’s licence remains revoked. Leigh Rushworth remains disqualified for the period specified by the Traffic Commissioner.

H. Levenson
Judge of the Upper Tribunal 
15th May 2015