Haulier wins appeal after judge slams TC
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TC Nick Jones criticised by upper tribunal judge Jacqueline Beech for handling of public inquiry By Roger Brown PLANT HIRE business Harkin Group has won an appeal to have its 0-licence application reheard after an appeal judge criticised a traffic commissioner's (TC) handling of the original public inquiry.
In a written decision following a hearing in December 2012, upper tribunal judge Jacqueline Beech said the company — which had its initial application refused in September by Nick Jones (pictured), TC for the West Midlands, on the grounds of lack of repute — should have its case reheard by a different TC.
At the public inquiry in Birmingham in September, the TC revoked the 0-licence of its predecessor, Small Heath-based J&J Harkin.
J&J Harkin had held a standard national 0-licence for four vehicles and two trailers since 1994, but entered compulsory liquidation in February last year with an estimated deficiency of £1.3m according to the official receiver's report.
Its successor, Harkin Group, subsequently operated vehicles under the old J&J Harkin licence, despite the fact that it did not have permission from the liquidator to do anything in the name of the business in liquidation.
Harkin Group had also received several warnings that it was not allowed to operate, including from its own solicitor.
In his written decision, Jones concluded: "I find that the Harkin Group has knowingly operated illegally without an operator's licence for a period of time and has not been truthful with me."
On appeal, James Backhouse, of Backhouse Jones solicitors, challenged the fairness of the refusal to grant Harkin Group an 0-licence, saying that the director and transport manager had not been appropriately prepared for the public inquiry; and that the total recording time, including the introductions and the delivery of an oral decision, was 20 minutes.
In her written decision, the appeal judge said Jones had not adequately explored the circumstances in which J&J Harkin had failed.
She added: "The difficulty with the conduct of the hearing is that the TC concentrated on one issue, which was the unlawful operation of vehicles by the appellant.
"While that issue was and is an extremely serious one in the context of operator licensing, and is usually fatal to an application, particularly when a negative impression has been given to a TC as a result of the demeanour of the witnesses, the TC did not even attempt to explore which other aspects of the appellant's operation could be weighed into the balance when determining whether the appellant was of good repute.
"In fact, when attempts were made in order to refer to the positive aspects of the appellant's conduct, the witnesses were cut short by the TC."
Give them a chance The appeal judge said Harkin Group should have been given an opportunity at the public inquiry — with guidance if necessary— to put its case as a whole so that a balancing exercise could be undertaken.