Appeal Allowed Following TC’s “Flawed” Reasoning

A tribunal has allowed an appeal by an Inverness company whose operator licence was revoked after a traffic commissioner found she could not trust its shareholder.

MacDonald Groundworks was disqualified after the Scotland TC Joan Aitken said it had lost her trust because the person who held 100% of the shares was a disqualified director who also ‘controlled’ the company and that members of the family had been used to obtain the O-licence.

Gary MacDonald was disqualified in 2014, along with fellow director Colin Thomson, after they admitted that they had misapplied funds of their company Highland Quality Construction (HQC), which eventually failed with losses in excess of £9m.

Shortly before both men resigned from HQC, MacDonald’s son Stephen incorporated new business MacDonald Groundworks and he also held all the shares. Later, Gary’s wife Michelle became director of this firm for a year before resigning, along with Stephen, and both were replaced with Lee Thomson.

In 2016, all the shares were transferred to Gary, but the office of the traffic commissioner was not informed.

At a PI in December 2018, TC Aitken said that, although there was no law preventing a disqualified director from being a 100% shareholder, to her it appeared that Gary controlled the operation, his family had failed to inform her office of Gary’s disqualification and share transfer and had also not mentioned the fact that another of Gary’s businesses had its licence suspended in 2011.

She revoked the licence and disqualified the operator until 2022.

However, MacDonald Grounds appealed, on the grounds that the TC had erred in law by taking into account irrelevant matters, had materially misdirected herself and made “perverse or irrational findings”.

In her written decision, judge Marion Caldwell agreed that the TC had made insufficient findings in fact to conclude MacDonald had used his family to obtain a licence on his behalf and had not explained on what basis she had made that decision.

The judge said there was a condition attached to the licence that any changes in the ownership of the business were notified to the OTC, but that this failure to do so was not sufficiently grave as to warrant revocation.

The TC had also failed to have proper regard to the distinction between a company and its shareholders and her reasoning that the operator could not be trusted because she couldn’t trust Gary MacDonald was “flawed”.

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