Appeal sought on the grounds that Human Rights Act was breached
The Scottish Court of Session has refused leave for Douglas McKendry and his daughter Carrie McKendry to appeal against the decision of the Upper Tribunal to uphold the refusal of Traffic Commissioner Joan Aitken to return two impounded coaches to them.
The McKendrys had sought the return of the coaches on the grounds that they were unaware they were being operated without a PSV O-Licence.
The TC found that neither Mr McKendry nor Ms McKendry owned the coaches. She concluded that both coaches were owned by a partnership, McKendry Coaches, whose members were Mr McKendry and his wife.
She also considered that although one vehicle was purchased by Ms McKendry, she was not the owner. She had purchased the vehicle as an agent for the partnership.
Ms McKendry was not registered for VAT. The VAT paid on the purchase was reclaimed by McKendry Coaches, and the purchase invoice was addressed to McKendry Coaches at its trading address. Following its purchase, the vehicle had been used solely by McKendry Coaches and there was the absence of any hire agreement or such like between Ms McKendry and McKendry Coaches.
A document written by Stuart’s Coaches recorded that the second coach was sold to McKendry Coaches having been paid for in cash by Mr McKendry. That was a business transaction intended to benefit McKendry Coaches and it reclaimed the VAT paid on the purchase.
The TC also considered that both McKendrys knew that that the two coaches were being used without the necessary PSV O-Licence.
She referred to the very clear warning supplied to Ms McKendry and her sister by the Office of the Traffic Commissioner that, until their application for a PSV licence was granted, their partnership had no authority to operate PSVs.
The TC said she knew that those operating McKendry Coaches were aware that, as a result of the sequestration of Ms McKendry’s estate, her PSV O-Licence was terminated. She found that the operation was, in fact, carried on by a partnership whose members were Mr McKendry and his wife. Her findings suggested that the partnership had been carrying on an unlicensed passenger transport business [routeone/Court Report/23 November 2016].
The Upper Tribunal considered that the TC’s findings could not be faulted [routeone/Court Report/2 November 2017].
The McKendrys sought leave to appeal on the grounds that their solicitor was given insufficient opportunity to present an argument arising from the Partnership Act 1890 and that there had been a breach of the European Human Rights Act.
Refusing the McKendrys leave to appeal and ordering them to pay the costs of the Advocate General in responding to the claim, Lady Paton said that she agreed with the Upper Tribunal who had detected no error in the TC’s approach and conclusions. There was nothing that persuaded her that either the TC or the Upper Tribunal erred in any way.
Moreover, she was not satisfied that the proposed appeal would raise some important point of principle, or that there was some other compelling reason for the court to hear the appeal. Even if additional submissions had been made concerning the Partnership Act 1890, that would not have resulted in success.
