Nirwan Ltd & Anor

On an appeal against licensing sanctions, the Upper Tribunal asks whether objective grounds show that a different view is right, or that reason and law require it. Where unchallenged findings establish dishonesty, untrustworthiness and reckless regulatory non-compliance by the operator’s controlling mind, the Tribunal may uphold loss of repute, revocation and disqualification.

The Tribunal must consider favourable evidence, but it need not treat improvements as materially mitigating where they do not displace grave findings or demonstrate likely future compliance. Non-binding disqualification bands do not alter the ultimate question of whether the period imposed is plainly wrong or disproportionate.

Nirwan Ltd and its sole director and transport manager, Mr Daljeet Singh Nirwan, appealed against the Traffic Commissioner’s decision of 5 May 2022. The Commissioner revoked the company’s two standard national operator licences, found that Mr Nirwan was no longer of good repute as a transport manager, and imposed three-year disqualifications.

The findings included that Mr Nirwan had created a false disciplinary letter to mislead a traffic examiner and had deliberately or recklessly failed to make, keep or produce statutory records. The appellants did not challenge those findings. They contended that the Commissioner had given insufficient weight to improvements and other favourable matters, and that revocation and disqualification were disproportionate.

The central issue was whether those sanctions were plainly wrong or disproportionate.

1. The appeal was dismissed. Applying the appellate approach in Bradley Fold Travel Ltd & anor v Secretary of State for Transport [2010] EWCA Civ 695, the Tribunal had to decide objectively whether a different view was right, or whether reason and law required a different view from that of the Traffic Commissioner.

2. The unchallenged findings were exceptionally serious. They established that Mr Nirwan, as the company’s controlling mind, was untrustworthy and dishonest and had acted in reckless self-interest. The Tribunal held that the Commissioner was entitled to attach substantial weight to those findings.

3. The Commissioner had considered the favourable matters, including the absence of earlier adverse history and some compliance improvements. She was entitled to conclude that they did not materially affect the serious findings. It was therefore open to her to conclude that the appellants were very unlikely to operate compliantly in future and that the company ought to be put out of business under the Bryan Haulage Ltd v Vehicle Inspectorate and Priority Freight & Paul Williams framework.

4. The three-year disqualification was neither plainly wrong nor disproportionate. The stated one-to-three-year band was senior Traffic Commissioner guidance, rather than legislation or a regulation binding on the Tribunal. The relevant question remained whether the period was plainly wrong or disproportionate on the findings made.

5. The revocations and disqualifications were upheld. Their effect was deferred until 23:45 two months after the Tribunal’s decision, to permit an orderly winding down of the business.

• Upper Tribunal (Administrative Appeals Chamber): Dismissed the appeal and upheld the Traffic Commissioner’s revocation and disqualification decision, subject to a two-month deferral of its effect.
• Traffic Commissioner for the South Eastern and Metropolitan Traffic Area: On 5 May 2022, revoked the operator licences under Goods Vehicles (Licensing of Operators) Act 1995 provisions and imposed three-year disqualifications.