Mulberry Automotives Ltd

An operator’s licence may be refused for failure to satisfy the good-repute requirement even where there is no adverse vehicle-safety history. Good repute concerns compliance with the whole operator-licensing regime, not only vehicle maintenance and drivers’ hours.

Past findings of unlawful operation, attempted fronting, convictions and other relevant adverse history may be considered when assessing repute. An applicant cannot avoid the licensing regime by arranging for vehicles to appear to operate under another person’s licence while retaining effective control. On appeal, the Upper Tribunal does not conduct a fresh first-instance hearing. The appellant must identify objective grounds showing that the lower decision-maker’s reasoning or application of the law requires a different conclusion.

Mulberry Automotives Ltd appealed from a decision of a Deputy Traffic Commissioner dated 21 September 2021 refusing its application for a standard goods vehicle operator’s licence.

The refusal was based principally on the history and conduct of Subash Choudry, one of the company’s directors, including previous licence revocations, unlawful operation, attempted fronting and convictions arising from a vehicle-stop incident. The Deputy Traffic Commissioner also noted that the company’s other director had not attended the public inquiry, so her repute could not be assessed.

The appeal challenged the reliance on earlier findings, alleged bias, the treatment of previous punishment, and the conclusion that the company was not of good repute. The central issues were whether the Deputy Traffic Commissioner could rely on the adverse history and whether the decision disclosed an error of law or approach.

Appeal dismissed. The Upper Tribunal found no error of law or approach in the Deputy Traffic Commissioner’s refusal of the licence application.

1. The statutory licensing regime extends beyond vehicle maintenance and drivers’ hours. An applicant cannot choose which regulatory requirements to observe. The purpose of the regime includes ensuring compliance and preventing breaches, not merely responding after vehicle-safety failures have occurred. The absence of safety concerns in the operation of earlier licences therefore did not prevent adverse action on other grounds.
2. The previous finding that the appellant’s proposed application in the name of Elaine Choudry involved fronting was properly taken into account. Fronting arises where a vehicle appears to be operated by the holder of an operator’s licence but is in reality operated by an unlicensed entity whose activities require a licence. The appellant’s admitted intention that Subash Choudry would run the business supported that conclusion. The Tribunal applied the description in Silvertree Transport Ltd (NT/2012/71).
3. The Deputy Traffic Commissioner was entitled to rely on the earlier, reasoned findings that vehicles had knowingly been operated unlawfully. Those findings had followed a public inquiry and had not been appealed. He was also entitled to find further similar wrongdoing on the evidence before him.
4. Adverse history is relevant to good repute. Previous convictions or regulatory sanctions are not excluded merely because they have already punished the conduct for other purposes. The history was relevant to whether the applicant could be trusted to comply with the licensing regime.
5. On an appeal of this kind, the Upper Tribunal determines questions of fact and law on the material before the Traffic Commissioner without conducting a complete rehearing. Under the approach explained in Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695, the appellant must show objective grounds requiring the different view to be adopted. That threshold was not met.

The Tribunal also rejected the allegation of bias. A decision-maker is not biased merely because a party has received adverse decisions. The appeal was dismissed.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the Deputy Traffic Commissioner’s decision of 21 September 2021 dismissed.
• Deputy Traffic Commissioner: application for a standard goods vehicle operator’s licence refused following a public inquiry.