No New Precedents Set by Tribunal
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THE eyes of everyone interested in licensing were focused on Edinburgh last 1 week, where the Transport Tribunal—reshuffled as a result of the 1962 Transport Act—sat under the chairmanship of its newly appointed president, Mr. G. D. Squibb, Q.C. Licensing Authorities in particular, transport barristers, solicitors and consultants are anxious to know whether their new referee will follow his distinguished predecessor, or forme a course of his own through the licensing "jungle," and it is for this reason that the proceedings before the Tribunal last week and this week have been reported in greater detail than usual in "The Commercial Motor."
In its first session under its new president, the Tribunal dealt with a total of 11 appeals against decisions made by the Scottish Licensing Authority, Mr. W. F. Quin, and his deputy, Mr. Ivo Townsend. All in all they were very much the usual " run of the mill" type of appeal—pleas by aggrieved applicants that they should have been granted more vehicles than they actually obtained; appeals by objectors (the British Transport Commission in particular) that the Authority had granted an operator more facilities than the 'evidence warranted.
Apart from voicing the Tribunal's displeasure at the undesirable practice adopted by the Scottish deputy Authority of seeking additional information from applicants and/or objectors subsequent to the public inquiry, without giving either party an opportunity of considering the additional evidence, Mr. Squibb has not, so far been called upon to deal with any .matter, the Tribunal's consideration of which might alter case law or bring. into being new precedents to be followed in the courts in future.
The Unilever Battle
An apneal which might have brought to the surface Mr. Squibb's feeling about the C licensee seeking a public carrier's licence to carry goods other than his own for hire and reward was that by Unilever, Ltd., whose numerous applications in various traffic areas (most of which have now been granted) have caused concern among hauliers up and down the country.
Unfortunately, after a long hearing, this appeal was remitted back to the Licensing Authority because, during the course of the application, upon a submission made on behalf of the many objectors that there was no case for them to answer, the Authority refused, without hearing evidence from the opposition, two applications by Unilever to convert several C vehicles to B licences operating from bases at Leith and Renfrew.
After hearing a very spirited argument between -the well-known Northern solicitor, Mr. T. H. Campbell Wardlaw, representing Unilever, and a Scottish QC., Mr. W. R. Mcllwraith, whom the R.H.A. had briefed on behalf of the respondents, the Tribunal considered there was "just enough" evidence to justify calling on the
objectors to rebut. As a result, the case goes back before the Licensing Authority to hear what facilities the objectors have to offer.
Some surprising propositions were put to the Tribunal by Mr. McIlwraith, A re'sumd of the appeal makes interesting reading.
Mr. Wardlaw opened his case by explaining to the Tribunal that the applications involved B licences for two vehicles to be based at the Leith depot, and four to be based at the Renfrew depot, of S.P.D., Ltd., a subsidiary corn
• pany of Unilever. The conditions sought on the licences were "Distribution of consumer goods from own warehouse at Renfrew (or Leith) or any goods returned to that warehouse within 70 miles of operating centre," and the applications were made under the provisions of section 180 of the 1960 Act—the holding company's section
S.P.D., Ltd., Mr. Wardlaw said, was a company which carried out transport and warehousing for Unilever and, as stated to the Authority during the application, they had some 43 warehouses scattered throughout Great Britain in which they stored, and from which they distributed, goods for other subsidiary companies of Unilever—its fellow associated companies —and goods for a certain number of companies which were not subsidiaries or even associates of the Group. Known as "third party" goods, it was in respect of this traffic that the applications were made, and Unilever proposed to give up a like number of C vehicles if grants were made,
Traffic had to be Subsidized There was no evidence that the vehicles were to be used solely for the conveyance of third-party traffic—the evidence was to the contrary.
The third party traffic was being carried, at present, by haulage contractors under long-term contract (no contract A licences were involved) and to all intents and purposes, these vehicles were used as if they were operated by S.P.D., and an assurance was given, during the Inquiry, that if the applications were granted the relationship which existed between the public hauliers and S.P.D. would not be distur bed.
Mr. Wardlaw stressed that the thirdparty traffic was not sufficient in quantily to allow the independebt hauliers to have full loads, and it was essential, in order that the vehicles be economically employed, that Unilever and S.P.D. should subsidize the operation of the outside hauliers with their own traffic.
The only evidence called by the objectors, Mr. Wardlaw continued, was a submisSion that there was no case for them to answer, and there was therefore no evidence from them to demonstrate that if the applications were granted; suitable transport facilities would be in excess of requirements.. As the case then stood, the Authority had no grounds for saying, in his decision, that there was no complaint from customers about the service they were getting from Unilever, and the L.A.'s remark that Unilever were "trying to get their feet into the haulage
industry" was irrelevant. They had alreadY got their. feet "very firmly" into the industry—they held B licences in most Traffic Areas, if not all. A more modest application could not have been made. and greater safeguards could not have been suggested.
Finally, criticizing Mr. Quin's remarks that there had been no real evidence of severe inconvenience and "nobody had lost their job," Mr. Wardlaw said: " It would be a terrible state of affairs if someone had to lose a job before a customer got better service."
Argument Goes Round in Circles For the respondents, Mr. W. R. Mellwraith, Q.C., said that the decision was quite correct in refusing an application which had absolutely no merit whatsoever, except, perhaps, an ill-conceived ingenuity. Mr. Wardlaw's argument never got down to the point. " It starts off going round in circles; it goes on in ever-diminishing circles until it disappears completely," he commented.
S.P.D., Ltd., he submitted, were not, and never had been, public carriers in Scotland.' It was also clear that they entered into agreements on a national scale, including Scotland, to warehouse and distribute goods for third parties, and in doing so they had taken warehousing and distribution arrangements away from other contractors.
They must have known, when they were entering into the agreements that, so far as Scotland was concerned, they would be dependent on the services of public transport and, unless they had their eyes glazed on this rather remote target, they must have been satisfied that public transport could carry out the work, otherwise, Mr. 1:vicilwraith said to the surpr;se of many in court, it was
almost fraudulent" to enter into agreements with other companies offering to distribute their goods in Scotland They must have known, he continued, that if the service were going to work economically, they would have to substitute third party traffic for Unilever traffic.
Real Customer Was &P.D.
." What are they complaining about today?"Mr. • Mcllwraith asked. It was "as clear as a pikestaff.Their real complaint was not that they could get no vehicles, but that in order to make the operation economical they had to put their own Unilever goods onto public carriers' vehicles—something they knew from the very beginning.
The customer was S.P.D., from a carrying point of view. If they were anxious to please their customers, what they should have done ,was to operate fewer C licence vehicles and bring in more public hauliers. But they (Unilever) were "too' greedy" to do -that. They wanted it both ways. They wanted to carry their own traffic in their own vans, and now they wanted to carry all the third party traffic as well.
Continuing his attack, Mr. Mcllwraith said that Unilever had made a bargain which had not turned out to be quite so good as they thought. Was it now right for them to come to the court and say, "Make us public carriers in Scotland, and get us out of our difficulties?" It was quite clear, also, that they were complaining that they had not enough third party goods to fill a vehicle, and the third parties would not get a more frequent service until there were enough third party goods to fill a vehicle. The case was ridiculous enough if it stopped there, Mr. Mcllwraith continued. But what did the appellants go on to do —to prove that third party traffic was increasing! "They are complaining that it is' too small, and then they go on to adduce evidence to the effect that it is increasing at a tremendous rate," he said, repeating his criticism that the case went round in ever diminishing circles until it completely disappeared.
If it was accepted that third party traffic was on the increase—and there was ample evidence to show that it was increasing—then Unilever's difficulty disappeared. There was less need to subsidize, and subsidizing the Unilever
traffic was the only complaint They were not complaining that there was not enough vehicles in Scotland; they were complaining that they had to put Unilever traffic on public vehicles when -they, themselves, held C licences.
Only Object—To Carry for Reward Winding up his argument, Mr. Mcllwraith submitted that Unilever did not really want B licences to carry their own goods. The only object of wanting B vehicles was to carry third party traffic, and if they did that they would be taking that amount of third party traffic away from public hauliers.
In reply. Mr. Wardlaw said that Mr.
• Mcllwraith's whole address had been an allegation of bad faith on the part of Unilever, Vague fears were being expre-sed that Unilever were trying to get into the transport industry, but those
fears were not based on evidence. The only result of a grant would be a measure of better service being afforded to the public, and unless the Tribunal were Satisfied that if the application were granted, suitable facilities would be in excess of requirements, they could only come to one eonelusion-j-to. allow the appeal..
The Tribunal, after hearing the argument in almost total silence, carefully avoided the issue, and passed the matter back to the Licensing AuthOrity to hear and consider any evidence the objectors may have to offer. Unilever are a little further forward in their bid, however, because, having said that there was just enough evidence on the part of Unilever to justify calling on the objectors, Mr. Squibb made it clear that the onus of proving that Unilever's need could be met by existing holders of public licences was upon the objectors.
Submission is Dangerous
. Except in the most obvious cases, a submission of "no case to answer" made on behalf of objectors, is a dangerous line to take. The Tribunal themselv :s, previously, have taken the view that it is always better for the objectors to call evidence so that all the facts are before the Authority when he comes to consider his decision. In the Unilever case much time and expense would have been saved if this Course. had been adopted, particularly as it was common knowledge that the applicants would probably appeal if their request for facilities failed_