Director told not to attend PI wins appeal
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Lawyer should have made it clear to deputy TC that he had advised director to stay away from PI
By Roger Brown
AND HAULAGE has won its appeal against the decision to revoke its O-licence after the judge said the deputy traffic commissioner (TC) had been “led into error” by the firm’s lawyer.
In a written decision, Upper Tribunal Judge Michael Brodrick overturned the January decision of Miles Dorrington, the deputy traffic commissioner (TC) for the Eastern traffic area, to revoke the licence of the company based in Grays, Essex, and to disqualify its sole director, Nigel Roberts, for 12 months.
A March 2011 maintenance investigation into the firm – authorised for six vehicles and six trailers – was carried out after one of its vehicles had been issued with an S-marked prohibition.
The investigation found that between October 2010 and January 2011 a total of 27 maintenance-related prohibitions were issued to its vehicles.
Of these, two were Smarked, 10 more were immediate and 15 were delayed. They were issued for a variety of different defects.
Also, many trailer preventive maintenance inspection sheets did not identify the trailer that had been inspected, and the annual MoT performance was significantly below the national average.
AND Haulage was asked to attend a PI on 8 December, and warned that failure to attend might result in the TC making a decision in its absence.
The firm’s lawyer, Richard Tinkler, wrote to the TC asking to adjourn the PI as the firm’s transport manager had just died. According to Roberts, Tinkler advised him that he would not have to attend on the basis the hearing was a preliminary one and he would get the chance to speak later. When the PI began, the deputy TC asked why Roberts was not there. Tinkler replied: “Mr Roberts feels compromised. He has asked me to represent him because he is not prepared, he says, for this PI”.
The deputy TC refused the application for an adjournment and made his decision based on the prohibitions, the convictions, drivers’ hours and tachograph breaches, and the impact of these matters on good repute.
On appeal, Roberts said had the deputy TC known that he had been advised that he did not have to attend, it would have been wrong to disqualify him.
Judge Broderick said: “Instead of making it clear that Roberts was absent because he had been advised to stay away, Tinkler allowed the deputy TC to proceed on the basis that Roberts had made his own independent decision not to attend. If the deputy TC had known that Roberts had remained away on the basis of legal advice it would have been unwise, in this particular situation, to proceed to disqualify Roberts without giving him an opportunity to be heard. We are satisfied that the deputy TC was led into error because he was not told the whole story.” The appeal judge ordered the case to be reheard.
TC led into error
The deputy TC was “led into error” because he had not been told the whole story regarding the absence of the firm’s director from the PI.