Traffic Commissioner (TC) Joan Aitken’s decision to revoke Kibex’s two-vehicle restricted licence and disqualify the company and its sole Director and shareholder, Paula Baillie, from holding or obtaining a PSV O-Licence for 30 months has been upheld by the Upper Tribunal on appeal.
The Gretna-based firm’s licence was granted in 2013 subject to a number of undertakings and on the understanding that Ms Baillie was the sole director and that she was in control of the business, not her domestic partner Kieran White.
In the event of Mr White becoming a shareholder or director, the licence must be surrendered unless the TC had allowed Mr White to be a shareholder or director. Mr White was subject to a Company Director Disqualification Order for a period of four years from 1 December 2010.
In her decision, in which she also disqualified Mr White and refused an application by the company for a four-vehicle national licence following a two-day Public Inquiry, the TC said that Mr White knew that Kibex did not have licence authority for a 49-seater and that journeys could not be undertaken lawfully by either him or Kibex using that vehicle.
A licence disc came into Mr White’s possession when he took delivery of the 49-seater vehicle purchased from Photoflash of Carluke. Mr White retained the Photoflash disc when he had no lawful authority to have it in his possession. Mr White exacerbated matters by refusing or delaying to return the disc to Photoflash. He was asked to return it on repeated occasions.
Mr White played a pivotal and pervasive role in Kibex. Mr White, whom she had sought to keep away from control over a business with an O-Licence, had operated beyond the terms of a restricted licence. She considered that Mr White had acted as a shadow director of Kibex [routeone/Court Report/7 September 2017].
Dismissing the appeal, the Tribunal said that the TC was unable to accept the assertions of Mr White and Ms Baillie that the latter was not aware of the unlicensed use of the 49-seater to generate income.
Based on the evidence of Mr White’s role in the business, that it was a joint enterprise with Ms Baillie and that they discussed everything, she was entitled to infer that Ms Baillie was aware of the operation of the vehicle and to find the assertions to the contrary implausible.
The TC, having found that Mr White was a shadow director, said that the directors of a company were collectively responsible for the company they managed. The TC was bound to find that there had been a material change of circumstances since the restricted licence had been granted and that there was a contravention of one of the conditions on which the licence had been granted.
Her decision that the unauthorised operation of the vehicle and the breach of the condition that Mr White would not control the company could not be said to be unreasonable. She was entitled to find that Kibex had lost its good repute.
