This is a murky tale of one man, three companies and a lot of fly-tipping. It also illustrates how the courts will look at who truly controls a company …
I bet John Huke will bless the person who reported two of Abbey Excavation’s lorries for fly-tipping in Essex.
Huke was then a director of Abbey, so after the Environment Agency received the complaint, it asked him in for an interview. Huke told the agency that the lorries weren’t his; they had been sold to one Gary Sharpe. Who was Garry Sharpe? The answer is that he was a bit of a mystery. He was the owner of another company, called Bradshaw Tipper Hire, but nobody could find him. Not even when two of Bradshaw’s lorries were spotted fly-tipping.
The only way for Huke to contact Sharpe was by calling one mobile phone with no registered owner or another that was registered – lo and behold – to himself. What’s more, Bradshaw was subcontracted to a firm called Muck It whose transport manager was a certain John Huke. Oh, and by the way, Muck It had also been reported for fly-tipping.
By now, the lidless eye of the Environment Agency was focusing on Huke …
Now let me tell you about a bit of law. Did you know that to run a trucking business, you and the firm have to be of “good repute”, in good “financial standing” and be of “professional competence”. There is now a traffic commissioner with the power to grant, vary and revoke a trucking company’s licence. It is, pretty well, a judicial responsibility: the commissioner can hold public inquiries and torpedo a company’s right to do business.
The commissioner decided to hold an inquiry into Muck It, which is owned by Huke’s wife and her mum. When it came to a hearing before the traffic commissioner, the directors of Muck It (Huke’s wife and mother-in-law) did not attend. The commissioner was upset by that and revoked the company’s licence to truck.
Then the commissoner turned to Huke, the transport manager. On the face of it, he was a mere employee. But the legislation now looks at all those managing the business.
In essence, the commissioner found that by Huke’s role as transport manager, director or close relation of a director, of a number of companies linked by location and by the use of each other’s vehicles, Huke had manipulated those companies to “throw dust in the eyes of the authorities”.
Huke only contacted Sharpe by a mobile phone with no registered owner or another registered to himself
The commissioner also decided that the directors had stood aside while Huke had manipulated the company, its vehicles and its licence to his own advantage. So Muck It lost its licence to trade.
Unsurprisingly, Muck It took the commissioner’s decision to the next level, which is called the transport tribunal. The fact that Huke’s reputation had been lost was not appealed. Only the company came to the tribunal. Its directors had not turned up for the first hearing but expected the commissioner to hear all about the company from Huke. The commissioner had refused to let him give evidence on behalf of the company. Muck It said this was grounds for appeal.
The tribunal said Huke had said enough about himself, the company and the directors, so it dismissed the appeal. Muck It then went to the Court of Appeal.
That very senior court looked hard at the danger of taking away an operator’s licence because of the loss of reputation by a manager only. It will not ordinarily be the case that the behaviour of the manager tarnishes the company or vice versa, but here the Court of Appeal saw beyond the “corporate veil” of company structures. Huke was the true controller of Muck It and several companies. The Court of Appeal decided that Muck It would remain without its trucking licence.
The court, however, will listen to an appeal by the two directors since there was a real risk that their disqualification may have arisen by not knowing about the commissioner’s inquiry.
Just one other thing: a new rule on fly-tipping came into force on 18 October. The penalty for those found guilty is a fine of up to £50,000 and up to five years in prison. So the offenders will truly find themselves in the muck.
Tony Bingham is a barrister and arbitrator