The serious implications of not meeting the financial standing requirements and what amounts to admissible evidence are illustrated in a recent Appeal Decision of the Upper Tribunal.
The Operator provided financial evidence in the form of bank statements, but these did not indicate sufficient financial standing.
At the Public Inquiry, the Operator maintained there were sufficient funds in his account (as of the date of the Inquiry), and he offered to email the latest statement to the Traffic Commissioner as proof.
The Traffic Commissioner ruled the emailed bank statement inadmissible as it would not be stamped and authenticated by the bank. The Traffic Commissioner revoked the licence for lack of Financial Standing.
Why was the licence revoked?
Leaving aside the all-important point that a single statement would not of itself provide evidence of financial standing over a period of months, the Upper Tribunal appears to support the Traffic Commissioners ruling the emailed statement was inadmissible:
‘It was appropriate for the TC to refuse sight of a single statement during a PI which showed a snapshot in time, and which could not be presented in the correct manner’.
Given the ubiquitous use of electronic banking and the practicalities of getting a bank to authenticate printed statements this appears to be an unhelpful approach.
If the Operator had been able to produce statements to the Traffic Commissioner, evidencing the financial standing requirements had been met, what then?
Are we to understand the Traffic Commissioner would refuse to consider the evidence and the Upper Tribunal would support this?
This appears to be an unreasonable and inflexible approach.
The Upper Tribunal went on to say that it was incumbent on the Operator to present bank statements well in advance of the Public Inquiry and added (apparently, without any enquiry):
‘It is likely that they would not have shown financial standing, and any adjournment to find the evidence would have simply delayed the inevitable’.
The Operator was unrepresented at the Public Inquiry. Accordingly, some latitude ought to have been extended.
Comment
Given the universality and ease of online banking, the Traffic Commissioner, without undue disruption to the proceedings, could surely have given the Operator an opportunity to email several months’ worth of statements.
Unhealthy bank statements would have led to the inevitable conclusion financial standing was not met. However, the point is, the Operator wasn’t afforded the opportunity provide the evidence. It was also open to the Traffic Commissioner to give the Operator a period of grace to demonstrate financial standing on a continuous basis going forwards.
In my view that refusal to admit the bank statement was unfortunate, and I am a little surprised by the attitude of the Upper Tribunal.
What if the most recent statements (if allowed to be admitted in evidence) had indicated a marked improvement in the Operator’s financial position which, averaged out, indicated the financial standing requirement was met?
What if the reason for the early shortfall had been because (as it happens this is precisely what the Operator claimed) the Operator had experienced difficulties in collecting moneys owed by customers?
This might have changed the entire complexion of the case, and the Operator ought to have been given the opportunity to demonstrate, now financial standing was met, they could continue to meet the financial standing requirements going forwards.
Lessons for Operators from this case
The general ‘take away’ from all this is that when called to a Public Inquiry, Operators should seek legal representation. But, above all they must ensure they provide the required financial evidence well in advance of the hearing.
Financial evidence is almost always required at Public Inquiries and both the call up letter and the Senior Traffic Commissioner’s statutory guidance provides explicit instructions regarding what is needed to evidence financial standing.
If you require Transport Law advice or representation at a Public Inquiry, don’t hesitate to contact John Dyne or Jared Dunbar.