The Upper Tribunal has allowed an appeal by a Scottish operator against a decision to refuse an O-licence, after it found that the traffic commissioner (TC) had “erred in law”. Ali Johnston can now have his application reconsidered by another TC, although the appeal tribunal warned there was no guarantee of success at a reconvened public inquiry (PI).
Johnston’s application for a licence for three vehicles and three trailers was received shortly after a licence in the name of his father and with his mother as company secretary, operating as SAI (Services), was revoked.
In a written decision, the TC said that SAI (Services) had lost its financial standing due to VAT debts, and that unlawful parking and the driving of an HGV while medically unfit affected Gordon Johnston’s repute.
The TC also said Juliet Johnston had lost her repute due to the unlawful parking and that their son Ali Johnston’s application was intended as a phoenix company. She concluded that she could not trust the applicant and because he also fell down on repute, she could not grant the licence.
However, the decision was appealed on the grounds that Ali had no connection with or control of SAI except as a driver and therefore could not be applying for a phoenix company.
The finding that he could not be trusted was also appealed, since he had no convictions for fraud or dishonesty and he had “no part in any aspersions against the TC”.
This referred to a belief by the TC that Ali had suggested she had asked at the PI when his father was “going to die”, due to his ill health. However, the tribunal found that the matter was raised only by his solicitor, who saw it in his notes and had asked for a recording of the hearing to verify its source. It was then established that the TC had not made the comment.
As a result, the appeal tribunal found that the TC treating this as one factor to justify an application refusal was “taking into account a manifestly irrelevant consideration”.
It concluded: “The TC not only took into account an irrelevant matter, she also failed to take proper account of other relevant matters (or inadequate reasons have been given in respect of those matters).”
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