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Tribunal Throws Out Appeals Against S. and S. (Contracts) Grant
Page 47
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THE Transport Tribunal, sitting in London last week, dismissed appeals by British. Road Services Ltd. and 14 independent operators, who sought to reverse the Metropolitan Licensing Authority's decision to grant a 16-vehicle A licence to S. and S. (Contracts) Ltd. of Enfield Highway, Middlesex. The grant was made subject to the surrender of 22 contract A vehicles by S. and S.
For B.R.S., Mr. G. Mercer said that the case was unusual because the amounts which S. and S. received were strictly related to the invoice price of the goods sold by the customers. No rise and fall clause was contained in the contract, and any increase in costs had to be borne by the haulier. Therefore, if the appeal failed, the Tribunal would be saying that the haulier, who carried substantial traffic uneconomically, would be able to get by on other traffic, thereby encouraging overloading and other features which it should be anxious to avoid.
To grant a licence in order to put a business on a proper footing because the contracts entered into were " imprudent" was wrong. On this point the Authority had gone astray, Mr. Mercer submitted.
When Mr. Mercer referred to section 173(6) of the 1960 Act, the president of the Tribunal, Mr. G. D. Squibb, said that the Authority did not seem to have taken into account all other relevant considerations, which included the charges made in respect of facilities.
"So you would have the odd position here that an Inspector might bring this applicant before the Court because he had placed other licence holders at an unfair or undue disadvantage with regard to castings, and the L.A. would have to deal with this question of revocation, he having granted the licence on this basis. He (the L.A.) does not seem to have fully grasped the implications of this grant, where the applicant said that the operations were uneconomic, but that he proposed to continue them under an m.dinary A licence ", Mr. Mercer said.
Mr. Mercer pointed out that the Ipplicant's witness had agreed that his ..ontract A operations were "commercial ;Weide". The method of charging was very different from that prevailing in the ndustry. The Authority's mind seemed o work on balancing up the "swings tnd roundabouts ", whereas he should lave looked at how the industry itself vorked with regard to costing.
Mr. M. H. Jackson-Lipkin, for BeresOrd Transport and 13 other independent Terators, said that it was very strongly he contention in the court below that an S. licence was something of value; somehing not lightly to be granted, particuarly in these days. It should not be ;ranted merely because an applicant had leen imprudent in his previous arrangegents for the carriage of goods.
S. and S. was saying that it had been mprudent and its contracts were not the sort that anybody would enter into. The clauses of the contract ran contrary to the whole of the practice of the industry; but because of this and because in the contract there was no provision for an increase in rates, the applicant was asking the L.A. to grant an A licence. It really was a case where one could say that somebody was seeking an unfair advantage over the ordinary public carrier, Mr. Jackson-Lipkin submitted.
Furthermore, the L.A. had failed to consider what be was required to do by section 174(4)(b) of the Act—the previous conduct of the applicant in the capacity of a carrier of goods. On his own admission the applicant was persistently charging insufficient sums for his services.
Mr. K. W. Shepherd, managing director of S. and S. agreed with Mr. Squibb that the business had not been uneconomical at first. Sufficient profit bad been made to pay off the hire-purchase of some of the vehicles.
Giving the Tribunal's judgment, Mr. Squibb said that it would not be right to regard the respondents as persons who had been trying to get into the industry by undercutting. The Tribunal thought the contracts entered into were reasonable, from a commercial point of view, and they found that a prima facie case had been made out. However, the objectors had not discharged the statutory onus of proving an excess of suitable transport facilities. It would not be reasonable to expect customers to go round seeking one vehicle here and two vehicles there, from day to day. They were entitled to expect not necessarily one carrier, but at least regular services.