Mr Ian Phillips: [2016] UKUT 156 (AAC); [2016] AACR 40

Upper Tribunal Administrative Appeals Chamber decision by Judge Mitchell on 22 March 2015.

Read the full decision in [2016] AACR 40ws.

Judicial Summary

Traffic Commissioner – licence – termination by law, withdrawal or surrender – application of Goods Vehicles (Licensing of Operators) Act 1995 to partnerships

In September 2014 Mr Phillips failed to report the death of his business partner, Mr Walters, to the Office of the Traffic Commissioners (OTC) within 28 days as required under the terms of the road transport operator’s licence. In February 2015 he did write to the OTC to report the death, to confirm his new partner and to apologise for his delay (due in part to ill-heath and family bereavements). In March he took the OTC’s advice and applied for a regulation 31 direction under the Goods Vehicles (Licensing of Operators) Regulations 1995 so that he could be treated as the licence-holder. That application was granted in June during a preliminary hearing before a Deputy Traffic Commissioner (DTC) who explained that Mr Phillips would also need to apply for a new licence, as the direction would expire on 2 September 2015. On 3 July Mr Phillips applied for a sole trader’s licence but heard nothing further until an officer from the OTC wrote to him on 23 September to say that the Traffic Commissioner was considering revoking the operator’s licence (it appears the application Mr Phillips sent in July had not been received). Thereupon, Mr Phillips asked the OTC officer for advice on what he should do. He continued to remain in regular contact with that official and followed whatever advice he received. On 30 October 2015 the officer told Mr Phillips to request an interim licence, but the Traffic Commissioner revoked Mr Phillips’ licence on 3 November 2015 on the basis of the officer’s submission that Mr Phillips had failed to take suitable steps to obtain a licence. Mr Phillips appealed to the Upper Tribunal (UT) against that decision.

Held, allowing the appeal, that:

  1. the original partnership licence had ceased to exist upon Mr Walters’ death; the partnership was dissolved under section 33(1) of the Partnership Act 1890 and the operator’s licence terminated under section 16(5) of the Goods Vehicles (Licensing of Operators) Act 1995, the partnership’s dissolution being a termination event under regulation 29 of Goods Vehicles (Licensing of Operators) Regulations 1995 (paragraphs 53 to 54);

  2. the DTC was authorised to grant a regulation 31 direction, treating Mr Phillips as holding the former partnership’s licence: Sadler v Whiteman [1910] 1 KB 868. If regulation 31(2) was properly construed it followed that it was not a licensed partnership, but its members, which carried on a business. Where one of two actual holders of an operator’s licence died, then that was tantamount to the death of the actual licence-holder for the purposes of regulation 31. If that was wrong, then a purposive interpretation that equates dissolution of a partnership on the death of a partner with the regulation 31(2) specified events should be adopted (paragraphs 55 to 60);

  3. the DTC was satisfied that special (or exceptional) circumstances existed to justify making a regulation 31 direction exceeding the default maximum period, to allow Mr Phillips a reasonable opportunity to make an application and for the OTC to consider it before the direction expired, but erred in assuming that the default maximum period had already expired by the date of his direction (paragraph 61);

  4. the Traffic Commissioner wrongly proceeded by considering revocation of the original partnership’s licence which had terminated upon Mr Walters’ death, not the deemed licence under the regulation 31 direction. The deemed licence had been conditional upon Mr Phillips taking reasonable steps to progress his application and, as he had done so, it remained in force at the time of the Traffic Commissioner’s revocation decision (paragraphs 62 to 65);

  5. the Traffic Commissioner’s decision was a nullity if it concerned the original partnership licence or plainly wrong if it concerned the deemed licence under the regulation 31 direction; if the Commissioner relied upon the official’s misleading submission, then he erred in law (Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ 1409) or alternatively the flaws in the decision rendered it wrong (paragraphs 68 to 72).

The decision was set aside and the matter remitted to the Traffic Commissioner for re-determination.

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