Firm with no TM loses suspension appeal
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Dundee Plant Company had not had a transport manager since 1996 By Roger Brown
DUNDEE PLANT Company, whose directors failed to tell traffic commissioner (TC) for Scotland Joan Aitken that its listed transport manager left in 1996, has lost an appeal against a decision to suspend its 0-licence for 12 weeks.
Following a hearing in Edinburgh, Upper Tribunal judge Mark Hinchliffe said the company — authorised to run seven vehicles and five trailers — had driven a "coach and horses" through the 0-licensing system. He upheld the decision made by the TC in June.
TC Aitken was told that director Brian Hovel had indicated falsely in correspondence to her office that the transport manager had left at the end of August 2012.
The company had failed to employ a new transport manager when the previous post holder, William Leith, left 17 years ago.
A licence checklist signed by fellow director Brian Hassan in 2009 was similarly misleading because it suggested the departed transport manager was still in post.
TC Aitken ordered Hovel to formally resign as a director within seven days of her decision, saying his behaviour had been "so below the standard expected of a director of a company holding an 0-licence". She had decided, "by a gossamer thread of human judgement", that she could trust Hassan and, with a new transport manager put in place, decided not to revoke the firm's 0-licence. Me 12-week suspension was due to start on 31 July. The firm appealed, however, saying that the period of suspension was
excessive and that it was likely that the firm would be compliant with the 0-licensing regime in future.
The firm said new systems had been put in place and the company should not be put out of business — which it argued was a real possibility if the 12-week suspension came into effect. Dundee Plant Company said the suspension would be equivalent to a revocation.
However, Judge Hinchliffe said the firm's conduct could not be tolerated.
He added: "We have no doubt whatsoever that revocation would have been justified and unimpeachable on appeal. The illegality lasted for 16 years, and was covered up by repeated dishonest and fraudulent concealment.
"If ever there was conduct that appeared to drive a coach and horses through the operator licensing system, this was it."
Hinchliffe added that the extent and duration of the unlawful conduct, coupled with blatant lies told to the TC's staff, had struck at the very heart of the 0-licensing regime. He concluded: "In all the
circumstances, we reject the submission that the TC's decision was inconsistent or plainly wrong. On any view, it was merciful."
The company's 12-week suspension began on 30 November.
Summing up
The appeal judge said TC Aitken had exercised her discretion in a judicia4 proportionate and rational way, and reached an explained outcome that properly reflected the gravity of the situation.