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Companies an d Partnerships
Page 32
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'THE Tribunal, in another written
judgment, has, as already reported, dismissed the appeal of Hod(lam Transport Ltd., of Eeciefechan, against the refusal of a five-vehicle A-licence bid by the Scottish LA (" The Commercial Motor ", July 23). This case caused some hoary old decisions to be disinterred, notably the 1936 appeal of G.W. Railway Co. v. West Midland Licensing Authority. Lord Blanesburgh's speech, in that case, aPparently reinforced the Tribunal's decision in the Clark v. BTC appeal (1962) where the Tribunal ruled: "Normally the appropriate (my italics) licence for a haulier who does not desire to carry goods for or in connection with a trade or business carried on by him is an A licence. A B licence is appropriate for an applicant who carries on a trade or business other than that of a carrier of goods."
In the Hoddam case the bloodrelated " Hoddam Contracting Co. (a partnership) wished to transfer the B-licence work they had undertaken previously to Hoddam Transport Ltd., with identical directors, In support of their A-licence bid a director of the company, Mr. W. A. Valiance, said he believed that the correct licence was an A licence. The Tribunal say that if Mr. Valiance " was repeating the advice which he had received, that advice failed to take into account the fact that the word used in the passage just cited was ' appropriate ', and not • correct ' ". They go on to pronounce: "An applicant for a carrier's licence is never entitled to a licence ex debito justitice." (From what is due to justice. is one translation of this.) "Whether he receives a licence or not depends upon the exercise of discretion."
The Tribunal then deliver a master punch calculated to floor everyone but the lawyers, and to keep them in full employment till doomsday. "in exercising his discretion a Licensing Authority is entitled, if not bound, to exercise it so as to ensure that the scheme of the Road Traffic Act 1960 is complied with -in the spirit, as well as in the letter ", and they refer to Lord Devlin's remarks in the Merchandise Transport v. I3TC appeal in 1962, Those familiar with the Act will appreciate the difficulty of keep
530
ing all its clauses and sub-clauses and. 1 dare say. its saving clauses, in mind. To comprehend and act upon its " spirit " demands the dedicated inspiration of a Solomon—with no light distractions, either.
It has been said of a Corporation that it has no soul to damn or bottom to kick. Companies may qualify for the same jibe. The Tribunal, to their credit, in their Hoddam judgment, concede that "the fact that a limited company is a separate legal person may have great significance in cases where legal rights and duties are involved . . . but where a Court is not dealing with legal rights and duties but exercising its discretion under the Road Traffic Act 1960 it is permissible to look behind the veil of incorporation .under the Companies Act 1948 at the realities of this case ".
Doing precisely this, they go on: "In this case the truth of the matter is that Mr. Valiance and Mr. Anderson are carrying on the business of hauliers and the business of sand and gravel merchants. If they continued to carry on those businesses in partnership, the appropriate licence for them to hold would continue to be a B licence. If they decide for reasons which seem good to them to carry on their transport business through a limited company, it does not appear to us that their position under the Act of 1960 should be affected automatically. The appellant, though nominally independent, is in truth the instrument of Mr. Valance and Mr. Anderson. In these circumstances, it seems to us that the appropriate licence to be held by the appellant is a B licence". (The italics are mine.)