Neutral Citation Number: [2013] UKUT 618 (AAC)

Appeal No.  NT/2013/52

NT/2013/53

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER (Transport)

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from DECISIONS of Donald Armstrong HEAD of the TRANSPORT REGULATION UNIT

Dated 10 July 2013 (Fergal Hughes) and 16 July 2013 (Perry McKee Homes Ltd)

 

 

 

Before:

His Hon Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

Appellant:

FERGAL HUGHES

 

V

Respondent:

 

DEPARTMENT of the ENVIRONMENT in NORTHERN IRELAND

 

 

 

Appellant:

PERRY McKEE HOMES LIMITED

 

V

Respondent:

 

DEPARTMENT of the ENVIRONMENT in NORTHERN IRELAND

 

 

Attendances:

For the Appellants: Fergal Hughes was represented by Ms Siobhan Murphy

Perry McKee Homes Ltd was represented by Mr Alan McKee, a Director

For the Respondent: In both appeals the Respondent was represented by Ms Nessa Fee

 

 

Heard at: Bedford House, 16-22 Bedford Street, Belfast.

Date of hearing: 29 November 2014

Date of decision: 5 December 2013

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that both appeals be DISMISSED.

 

 

 

SUBJECT MATTER:- Termination for Non-Payment

 

 

CASES REFERRED TO:-

 

1998 K 35 Derek Bertram

Appeal 2009/518 Rose & Sons Ltd

Appeal 40/2002 Thames Materials Ltd.

Appeal 2008/569 David Collingwood t/a Construction & Demolition Services

Appeal T/2010/16 & 21 Alan Cooper t/a Alan Cooper Haulage and Jeanette Wootten t/a Woodhouse Furniture

Appeal T/2010/17 Francis Edward Walter Cantle

Appeal T/2010/08 Brian Richards t/a B. Richards

Appeal T/2012/65 Claremont Marquees Ltd

Appeal T/2013/33 William Baker

Appeal T/2013/84 Michael Steven Reed

Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695

Ladd v Marshall [1954] 1 WLR

 

 

 

 

REASONS FOR DECISION

 

1.          These are appeals from decisions by the Head of the Transport Regulation Unit who refused to find that there were exceptional circumstances to justify disregarding the automatic termination of each appellant’s operator's licence under the provisions of s. 47(4) & (5) of Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010, ("the 2010 Act").  We heard these appeals separately but now give a joint decision because in both appeals the grounds of appeal raise the same point.

2.          Since these were the first appeals to arise under the provisions of the 2010 Act it may be helpful if we begin by setting out some background information.  We do so in the hope that it will assist others who may be considering an appeal against a decision by the Head of the Transport Regulation Unit or those who are preparing for the hearing of such an appeal.

BACKGROUND 

3.          The 2010 Act came into force in June 2012.  As from 1 July 2012 it made the Department of the Environment in Northern Ireland, (“DoENI”), responsible for the regulation of the operation of goods vehicles in Northern Ireland.  Within DoENI the powers conferred on the Department by the 2010 Act are exercised by the Transport Regulation Unit, (“TRU”).  The Head of the TRU is the Department’s official in authority and he is the equivalent in Northern Ireland of a Traffic Commissioner in Great Britain.

4.          It is apparent that many of the provisions of the 2010 Act and the Regulations made under that Act are in identical terms to provisions found in the Goods Vehicles (Licensing of Operators) Act 1995, (“the 1995 Act”), and in the Regulations made under that Act.  The 1995 Act and the Regulations made under it, govern the operation of goods vehicles in Great Britain.  The provisional conclusion which we draw, (because the point has not been argued), is that this was a deliberate choice on the part of the Northern Ireland Assembly to ensure that there is a common standard for the operation of goods vehicles throughout the United Kingdom.  It follows that decisions on the meaning of a section in the 1995 Act or a paragraph in the Regulations, made under that Act, are highly relevant to the interpretation of an identical provision in the Northern Ireland legislation and vice versa.  Assistance in finding decisions can be obtained via the links in the Digest which can be found at:-  http://www.judiciary.gov.uk/JCO%2fDocuments%2fTribunals%2ftransport-tribunal-digest.pdf (please be patient - the  link takes a long time to open the Digest)

5.          From the date when the 2010 Act came into force a person using a goods vehicle on a road for the carriage of goods, either for hire or reward, or for or in connection with any trade or business carried on by the user of the vehicle, has been required to hold an operator’s licence, (see s. 1 of the 2010 Act).  Use of a goods vehicle in contravention of s. 1 of the 2010 Act is a criminal offence under s. 1(6).  In addition a vehicle used in contravention of s. 1 becomes liable to be detained and impounded under the provisions of the Goods Vehicles (Enforcement Powers) Regulations (Northern Ireland) 2012.  The grounds on which the owner of an impounded vehicle can apply to have it returned are limited to those set out in Regulation 4.

6.          A person who wishes to hold an operator’s licence under the 2010 Act must apply to the TRU.  It is for the applicant for an operator’s licence to satisfy the Head of the TRU that the relevant statutory criteria for the grant of a licence have been met.  The standard of proof required is the normal civil standard, namely proof on the balance of probability.  The statutory criteria were originally set out in s.12 of the 2010 Act.  However it is important to note that paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012 substitutes a new section 12 and adds ss. 12A-12E.  These are now the provisions setting out the matters that an applicant for a licence must prove.  It is also important for operators to remember that the requirements set out in these new provisions are on-going requirements which operators must continue to meet as long as their operator’s licence remains in force.

7.          The Head of the TRU has the power to revoke, suspend or curtail an operator’s licence in the circumstances set out in ss. 23 & 24 of the 2010 Act.  He also has power to disqualify under s. 25.  If action is initiated under any of these sections it is for the Head of the TRU to show, on the balance of probability, why he is satisfied that any action taken is justified.

8.          There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act.  Leave to appeal is not required.  At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law.  However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again.  Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place.  For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695.  Two other points emerge from these paragraphs.  First, the Appellant assumes the burden of showing that the decision under appeal is wrong.  Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”.  The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.

9.          The Tribunal has the power to admit evidence under Rule 15(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, as amended.  However the power to admit fresh evidence is subject to two constraints.  The first is that paragraph 17(3) of Schedule 4 to the Transport Act 1985 provides that: “The Upper Tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  The second constraint is that for many years the Tribunal has refused to admit fresh evidence unless the tests laid down by the Court of Appeal in Ladd v Marshall [1954] 1 WLR are met, see: Appeal 40/2002 Thames Materials Ltd.  The distinction between these two constraints can be illustrated in this way.  If on an appeal against a finding that an operator is no longer of appropriate financial standing bank statements are put before the Tribunal showing the state of the account after the date of the decision under appeal the Tribunal cannot take them into consideration because they provide evidence of circumstances which did not exist at the time of the determination the subject of the appeal.  If on the other hand bank statements, (which were not before the Head of the TRU/Traffic Commissioner), show the state of the account at a time before the date of the decision which is the subject of the appeal then they are admissible subject to passing the tests for the admission of fresh evidence.  The difficulty that the Appellant will face in that situation is likely to be the requirement to satisfy the Tribunal that: “the evidence could not have been obtained, with reasonable diligence, for use at the public inquiry”.

10.       Under s. 13 of the Tribunals, Courts and Enforcement Act 2007 there is a right of appeal from a decision of the Tribunal to the relevant appellate court “on any point of law arising from a decision made by the Upper Tribunal”, (see also paragraph 14 of Schedule 4 to the 1985 Act).  In our view the relevant appellate court, in the case of an appeal from a decision of the Upper Tribunal, on appeal from a decision by the Head of the TRU, will be the Court of Appeal in Northern Ireland.  Leave to appeal is required.  Leave can be granted by the Upper Tribunal or the Court of Appeal in Northern Ireland but an application for leave can only be made to the relevant appellate court if leave has been refused by the Upper Tribunal.

FERGAL HUGHES

11.       The factual background to this appeal appears from the documents and the Head of the TRU’s decision and is as follows:-

(i)                   The Appellant was the holder of a standard international goods vehicle operator’s licence authorising 4 vehicles and 4 trailers.

(ii)                 The Appellant’s address for correspondence is 6 Ardross, Crossmaglen, Newry, Down, BT35 9BY, (“the correspondence address”).

(iii)                On 26 March 2013 the Northern Ireland Central Licensing Office, (“NICLO”), (which is based at Hillcrest House in Leeds), wrote to the Appellant.  The letter warned that failure to reply and to return the requested information by 30 April 2013, “will result in the termination of your operator’s licence”.  The letter went on to explain that while an operator’s licence, once granted, is continuous, it is subject to review every 5 years.  The letter indicated that £703 was the amount due and warned, in bold type, that: “No reminder will be sent”.

(iv)                A number of documents were enclosed with the letter, which required the Appellant to provide up to date information on a number of topics, in particular financial standing and maintenance.

(v)                 By 8 May 2013 NICLO had not received a reply to the letter of 26 March, nor had the continuation fee been paid.  As a result NICLO wrote to the Appellant, at the correspondence address, to inform him that his licence had automatically terminated under the provisions of s. 47 of the 2010 Act.  The letter warned the Appellant that he no longer had authority to operate any goods vehicle for which an operator’s licence is required.  It advised him that should he wish to continue to operate such a goods vehicle he would have to apply for and be granted a new licence.

(vi)                The Appellant received the letter of 8 May 2013.  It prompted a phone call and an email on 13 May 2013.  The email made it clear that the Appellant had not received the earlier letter.  It asked for a copy to be sent and gave an assurance that the fees would be paid immediately a copy of the original letter was received.

(vii)              On 14 May 2013 the Appellant was informed that the matter would have to be referred to the Head of the TRU and that he could only accept late payment in ‘exceptional circumstances’.

(viii)             On 21 June 2013 the Appellant emailed to ask whether any progress had been made because he had heard no more.  He was told that the matter would be looked at as soon as possible.

(ix)                On 27 June 2013 the matter was submitted to the Head of the TRU.  The submission contained a full summary of the facts, as set out above.  It went on to point out that the correspondence address was correct and that all previous documents sent to that address had been received.

(x)                 On 9 July the Head of the TRU agreed with the recommendation that no exceptional circumstances had been put forward, with the result that the termination of the licence, under s. 47(4) of the 2010 Act could not be disregarded.

(xi)                On 10 July 2013 the Appellant was formally informed of this decision, by letter.  The last paragraph of the letter referred to the Appellant having: “a statutory right of appeal” against the decision.

(xii)               On 6 August 2013 the Appellant filed a Notice of Appeal.  In his grounds of appeal the Appellant stated that: “the reminder letter which is referred to in the correspondence of 8 May 2013 does not appear to have been generated, sent or received by the Appellant”.  In the circumstances the Appellant submitted that the termination of the licence should not have been allowed to stand.

(xiii)             At the hearing of the appeal the Appellant was represented by Ms Siobhan Murphy. She made two submissions.  First, that non-receipt of the letter should have been regarded as an exceptional circumstance because if the letter had been received it would not have been ignored.  Second, that the fact that letters are sent out when a continuation fee is about to become payable gives rise to a legitimate expectation on which the Appellant was entitled to rely.

(xiv)             On behalf of the Respondent Ms Fee provided us, in advance of the hearing, with a helpful skeleton argument, for which we are grateful. She relied on the terms of the 2010 Act and the relevant Regulation, which provides that a continuation fee “shall be paid” at least 28 days before the date on which the 5 year period expires.  She told us that letters, such as that dated 26 March 2013, are sent by 2^nd Class Post to the correspondence address provided by the operator.  She referred us to a number of Tribunal decisions relating to the identically worded section of the 1995 Act.  We will refer to these and to the legislation in due course.

 

PERRY MCKEE HOMES Ltd

12.       The factual background to this appeal appears from the documents and the Head of the TRU’s decision and is as follows:-

(i)                 The Appellant was the holder of a standard national goods vehicle operator’s licence authorising 2 vehicles and 2 trailers.

(ii)                The Appellant’s address for correspondence is 87 Aughnacloy Road, Banbridge, Down, BT32 5QG, (“the correspondence address”).

(iii)               On 26 March 2013 NICLO wrote to the Appellant.  The letter warned that failure to reply and to return the requested information by 30 April 2013, “will result in the termination of your operator’s licence”.  The letter went on to explain that while an operator’s licence, once granted, is continuous, it is subject to review every 5 years.  The letter indicated that £703 was the amount due and warned, in bold type, that: “No reminder will be sent”.

(iv)              A number of documents were enclosed with the letter, which required the Appellant to provide up to date information on a number of topics, in particular financial standing and maintenance.

(v)                By 9 May 2013 NICLO had not received a reply to the letter of 26 March, nor had the continuation fee been paid.  As a result NICLO wrote to the Appellant, at the correspondence address, to inform it that it’s licence had automatically terminated under the provisions of s. 47 of the 2010 Act.  The letter warned the Appellant that it no longer had authority to operate any goods vehicle for which an operator’s licence is required.  It advised the Appellant that should it wish to continue to operate such a goods vehicle it would have to apply for and be granted a new licence.

(vi)              On 20 May 2013 Alan McKee, a director of the Appellant company, wrote to NICLO, on behalf of the Appellant, saying that the letter of 9 May was the first notification that the Appellant had received regarding the renewal of its operator’s licence.  Mr McKee added that, in accordance with company policy, there would have been a response to any correspondence received.  He asked for advice as to how to resolve the matter.

(vii)             On 27 June 2013 the matter was submitted to the Head of the TRU.  The submission contained a full summary of the facts, as set out above.  It went on to point out that the correspondence address was correct and that all previous documents sent to that address had been received.

(viii)            On 9 July the Head of the TRU agreed with the recommendation that no exceptional circumstances had been put forward, with the result that the termination of the licence, under s. 47(4) of the 2010 Act could not be disregarded.

(ix)               On 16 July 2013 the Appellant was formally informed, by letter, of this decision.  The last paragraph of the letter referred to the Appellant having: “a statutory right of appeal” against the decision.

(x)                On 14 August  the Tribunal received a Notice of Appeal, which appears to be dated 23 August 2013.  It appears that the appeal was received one day late.  For the avoidance of doubt permission to appeal out of time is granted.  In its grounds of appeal the Appellant stated that it had not received the letter dated 26 March and that it remained willing to pay the appropriate fee and any penalty for late payment.  The Appellant made it clear that if the letter had been received the fee would have been paid and the appropriate paperwork would have been returned.

(xi)               At the hearing of the appeal Mr McKee appeared in person on behalf of the Appellant.  He stressed that the Appellant was just a small company, he did not know what the continuation fee was hence he was not in a position to send it without the letter.  He added that the Appellant’s vehicles were ‘parked up’ awaiting a decision.

(xii)             On behalf of the Department Ms Fee provided us, in advance of the hearing, with a helpful skeleton argument for which we are grateful.  She repeated the submissions, which we have summarised at paragraph 11(xiv) above.  She submitted that in the light of what Mr McKee said this was a clear case of an operator ‘taking his eye off the ball’ and inadvertently failing to pay, so that it was on all fours with one of the decisions to which we will refer in due course.

DISCUSSION

13.        Both these appeals raise the simple question of whether non-receipt of a letter giving a reminder that the continuation fee is about to become due amounts to an ‘exceptional circumstance,’ which justifies the Department in disregarding the automatic termination of the licence resulting from non-payment.  It should be noted at the outset that the terms of s. 47(4) & (5) of the 2010 Act are identical to those of s. 45(4) & (5) of the 1995 Act, save for the reference to ‘the Department’ in the former and ‘the Traffic Commissioner’ in the latter.  It follows, in our view, that decisions under s. 45(4) & (5) of the 1995 Act provide useful guidance as to the effect of the same provisions in the 2010 Act.  In our view it is also important to have regard to the full terms of s. 47(5).  We say that because it is not only necessary for an operator to show that there are ‘exceptional circumstances’ it is also necessary for the operator to go on to show that the exceptional circumstances ‘justify’ the disregarding of the automatic termination of the licence.  In Appeal T/2010/16 & 21 Alan Cooper t/a Alan Cooper Haulage and Jeanette Wootten t/a Woodhouse Furniture the Tribunal considered the meaning of the expression “exceptional circumstances” and adopted the main dictionary meaning, namely that it meant “unusual circumstances”.

14.        In assessing whether non-receipt of a letter can amount to an exceptional circumstance which justifies disregarding the automatic termination of the licence it is important to consider whether or not the TRU is under any obligation to give notice that the continuation fee is about to become payable.  While s. 47(1) of the 2010 Act gives the TRU the right to charge “such fees” for, amongst other things, the continuation in force of an operator’s licence “as may be prescribed” the section contains no provision requiring the TRU to give notice that a fee is about to become due.  Regulation 4 of the Goods Vehicles (Licensing of Operators) (Fees) Regulations 2012 simply provides that: “the fee payable for the continuation of an operator’s licence shall be paid at least 28 days before the date of expiry of a period of 5 years, beginning with the date of either the issuing of the licence or the most recent five year anniversary of that date”.  In other words the Regulation imposes on operators a mandatory obligation to pay the continuation fee at least 28 days before the expiry of the relevant five year period.  It is silent about requiring the TRU to give notice.

15.        In our view the silence of both the Act and the Regulations on this point is deliberate.  We say that because s. 26 of the 2010 Act makes it a pre-condition to the TRU giving certain directions, (for example to revoke an operator’s licence or to make an order for disqualification), that the holder of the licence or the person who may be disqualified is first given notice that the TRU is considering such action.  Notice is defined in s. 58(1) of the 2010 Act as “notice in writing”.  More detailed provisions in relation to giving notice can be found in Schedule 3 to the Goods Vehicles (Licensing of Operators) Regulations (Northern Ireland) 2012.  In particular paragraph 5 of that schedule sets out the ways in which notice can be given.  Where notice is required to be given it can be “effected” by “sending it to the person by post to an address which is their proper address”, (see Paragraph 5(1)(b) of Schedule 3).  In addition to other definitions of ‘proper address’ paragraph 5(4) of Schedule 3 provides that a correspondence address given in an application for an operator’s licence or a new correspondence address notified under Regulation 23 of these Regulations “shall also be a proper address for service”.  In other words service is effected by posting the relevant letter to the operator’s correspondence address and it is not necessary for the TRU to go further and prove that the letter arrived or actually came to the operator’s attention.

16.        In Appeal 2008/569 David Collingwood t/a Construction & Demolition Services the Tribunal considered a submission that there was a reasonable expectation that a reminder would be sent and that since it had not been received there were exceptional circumstances.  The Tribunal rejected that submission saying, at paragraph 6: “There is no provision for reminders in the Act and the statutory position is clear: if a fee is not paid by the prescribed time, the licence terminates.  It is for the licence holder to comply with this requirement”.

17.        We were referred a number of Tribunal decisions under the identical provisions of the 2010 Act.  Before we refer to them we should stress that decisions on whether or not there are exceptional circumstances and if so whether or not they justify disregarding the automatic termination of an operator’s licence involve questions of fact.  In future we would discourage the citation of decisions turning on the facts of an individual case unless the facts of those decisions and those of the appeal are identical or so close that useful guidance can be obtained.

18.        In Appeal T/2010/17 Francis Edward Walter Cantle the initial explanation given by the Appellant proved to be incorrect.  At the end of the day the question was whether a payment made a few days late due to an oversight amounted to an ‘exceptional circumstance’.  The Tribunal agreed with the Traffic Commissioner that it did not.  In Appeal T/2013/33 William Baker the Tribunal was satisfied that the Deputy Traffic Commissioner had been correct in concluding that a reminder had been sent to the correct address and correct in concluding that there were no exceptional circumstances.  This was a case in which the Appellant had failed to pay on a previous occasion, when it had been accepted that there were exceptional circumstances.  In Appeal T/2010/08 Brian Richards t/a B. Richards the Appellant explained that he had ‘misplaced’ the correspondence.  The Tribunal agreed with the Traffic Commissioner that misplacing correspondence and/or forgetting to pay on time did not amount to ‘exceptional circumstances’.  In Appeal T/2012/65 Claremont Marquees Ltd the company had two directors. One was extremely busy at the material time.  The other, who dealt with the paperwork, had been unwell, with a recurring infection.  As a result paying the bills took second place to keeping the business running.  In rejecting the application to disregard the automatic termination the Traffic Commissioner pointed out that the fact that the vehicles had been running on out of date operator’s licence discs appeared to have been missed by those responsible for checking the vehicles.  In dismissing the appeal the Tribunal said that the Appellant ought to have had systems in place to ensure that this important regulatory requirement was dealt with on time.

19.        It was submitted on behalf of the Appellant Hughes that the fact that the TRU sent out reminder letters gave rise to a reasonable expectation that there would be a reminder that the continuation fee was due.  In the appeal of Collingwood, above, the Tribunal rejected a similar submission.  If the submission made on behalf of the Appellant Hughes is simply that there was a reasonable expectation that a reminder would be sent it seems to us that this would not assist the Appellant, in any event, because his complaint is that he did not receive the reminder.  If, on the other hand the submission goes further and is that in addition to the letter being sent the expectation is that the letter will be received we reject that proposition.  There are four reasons for reaching this conclusion.  First, we do not see how the fact that reminders are sent, when there is no obligation on the TRU to do so, can give rise to a legitimate expectation which goes further and requires the TRU to ensure that the letter comes to the attention of the operator.  Second, such an expectation would impose on the TRU, in circumstances where there is no legal requirement to give notice, a more onerous obligation than the 2010 Act and the Regulations impose in a case where notice must be given.  Third it would mean that letters which the TRU are under no obligation to send would have to be signed for and, further, that on every occasion on which such a letter was returned, not signed for, the TRU would be required to effect personal service.  Fourth, such an expectation would be quite contrary to the clear intention of the legislature, both in Great Britain and in Northern Ireland, namely that responsibility for payment of the continuation fee falls on the operator and failure to pay results in automatic termination, which can only be disregarded in the rare cases where exceptional circumstances justify the Head of the TRU in doing so.

CONCLUSION

20.        For the reasons we have given we are satisfied that the TRU is not required to send out a reminder that a continuation fee is about to become due.  Instead it is the responsibility of operators to pay the fee on time.  Given the automatic consequences of failing to pay on time operators would be well advised to devise a system which will provide a reminder of the date by which payment must be made.  One method would be a diary entry carried forward and counted down year by year.  Another would be to ensure that the daily walk-round check includes the expiry date of the licence disc.  Those who adopt the latter method need to remember that the fee must be paid not less than 28 days before the expiry date shown on the discs.  Any other reliable method of ensuring payment on time will suffice.

21.        We are satisfied that neither of these Appellants would be assisted by the argument that there was a reasonable expectation that a reminder would be given.  Even if it could be argued that the TRU have created a reasonable expectation that a reminder will be sent that does not assist either of the Appellants because their complaint is that the reminder was not received.  We are quite satisfied that there is no basis for concluding that the TRU has created a reasonable expectation that a reminder will be brought to the operator’s attention.

22.        Given that the TRU are not required to send out a reminder the question we posed at paragraph 14 can be refined so that it asks whether the non-receipt of a letter, which the TRU were under no obligation to send, can amount to an exceptional circumstance which justifies disregarding the automatic termination of the licence.  In our view the answer to that question has to be ‘No’.  Even if we had been persuaded that non-receipt in each case was an exceptional circumstance, (and we are not), we are quite satisfied that it would not justify disregarding the automatic termination of each Appellant’s licence.  The reason is that in each case the Appellant had no system in place to ensure that the continuation fee was paid when it became due.

23.        For these reasons both appeals are dismissed.

POSTSCRIPT

24.        Both the decision letters refer to the Appellant having a ‘statutory right’ to appeal.  Strictly speaking this is not correct.  Neither s. 47(4), automatic termination, nor s. 47(5), the right to disregard automatic termination, feature in s. 35 which lists the decisions which can be the subject of an appeal.  Nevertheless the Tribunal has accepted appeals on this point for many years and that approach, in Great Britain, appears to have had the tacit approval of the Department of Transport, as it then was.  We say that because in Appeal 1998 K 35 Derek Bertram the Department of Transport, as it then was, made written submissions to the Tribunal on an appeal following the automatic termination of an operator’s licence.  The submissions concerned the subsection under which the licence had been terminated and, as a result of those submissions, it was conceded on behalf of the Appellant that the appeal had to be dismissed.  The significance of the decision lies in the fact that it would have been open to the Department to submit that the Tribunal had no jurisdiction, because there was no right to appeal, but the Department did not take that course and allowed the appeal to proceed.  In Appeal 2009/518 Rose & Sons Ltd the Tribunal referred to the appeal of Bertram and said this, at paragraph 6:

“It was implicit in the approach by both the [then Senior] Traffic Commissioner and the Department that an appeal lies to the Tribunal in non-payment of fees cases and that stays should be granted where appropriate.  This approach is the more necessary with the emphasis since given to human rights and we think that a purposive construction must be given to the relevant legislation”.

25.        In fact in the case of Rose payment for the whole of the current year had been accepted “so as to preserve the status quo until the hearing of the appeal”.  As we understand the position a stay was not granted.  Very recently the Tribunal has expressed concern about the suggestion in the case of Rose that ‘stays should be granted where appropriate’, see Appeal T/2013/84 Michael Steven Reed.  In the first place refusing to disregard the automatic termination of a licence does not come within the provisions which enable a Traffic Commissioner or the TRU to grant a stay, see s.28(2) of the 1995 Act and s. 26(2) of the 2010 Act.  In the second place there are serious practical difficulties, for example would a stay involve any payment, if the appeal failed is there any basis on which the money can be returned and do fresh discs have to be issued, if so, what expiry date will they show?

26.        It follows, if a stay cannot be granted, that the speed with which these cases are resolved is important.  It is now over 6 months since these two Appellants were informed that their licences had automatically terminated and that they no longer had authority to operate goods vehicles to which the 2010 Act applies.  We were told by each of the Appellants that their vehicles have been off the road since the date in May when they were informed that their licences had terminated.  In both these cases it took nearly two months for a decision to be taken that the automatic termination of the licence could not be disregarded.  We would hope that in future it will prove possible to decide whether or not to disregard the automatic termination more quickly.  Following that refusal it has taken over three months for the appeals to be heard.  We accept that the Tribunal must endeavour to find ways to reduce this aspect of the delay.

27.        It is a matter for operators to decide whether to appeal in this type of case or whether to incur the expense of making an application for a new licence.  Decisions by the Tribunal on this point suggest that only a small number of appeals succeed.  In the case of those appeals that fail the only option open to an operator who wishes to continue to operate goods vehicles under the 2010 Act is to apply for a new licence.  For a previously compliant operator, who is likely to be able to meet the statutory criteria, a careful calculation needs to be made to decide whether the saving which will be achieved if the appeal succeeds will, in fact, exceed the cost of being off the road while waiting for the appeal has been heard and determined.  The ability to apply for an interim licence is another factor that has to be considered.

28.        We have not seen a copy of the letter sent to an operator who pays on time and who also complete the documents that accompany the renewal letter to the satisfaction of the Traffic Commissioner.  We express the hope that it contains a statement to the effect that a further fee will become payable in 5 years time, with the operator being responsible for ensuring that the appropriate amount is paid on time.

29.        We are concerned that many operators may be unaware of the following points and, in particular unaware of the serious consequences of failing to pay the continuation fee on time.  We hope that the following can be drawn to the attention of as many operators as possible:

(i)          It is the responsibility of every operator to pay the continuation fee on time.

(ii)         The TRU, (and in GB a Traffic Commissioner), has no legal obligation to send a reminder that the continuation fee is due.

(iii)       Failure to pay the continuation fee results in the automatic termination of the licence.

(iv)       Late payment of the licence fee can only be accepted if the operator satisfies the TRU/Traffic Commissioner that there are exceptional circumstances, which justify disregarding the automatic termination of the licence.

(v)        In many cases the only realistic option open to an operator who wishes to continue to operate goods vehicles under the provisions of the 2010 or the 1995 Act will be to apply for a new licence.

(vi)       An operator whose licence has been automatically terminated is unlikely to be able to operate goods vehicles under the 2010 or the 1995 Act until (a) a successful application has been made to have the automatic termination disregarded, or (b) an appeal against a refusal to do so has been determined in his favour, or (c) a successful application for a new licence has been made, or (d) there has been a successful application for an interim licence.  These options are not mutually exclusive.  In many cases an application for a fresh licence coupled with an application for an interim licence will offer the quickest and most realistic route to continued lawful operation of goods vehicles.

(vii)      An operator who operates in contravention of the 2010 or 1995 Acts, in the period after automatic termination but before the TRU/Traffic Commissioner has either disregarded the termination or issued a fresh licence/interim licence, runs the risk of having a vehicle or vehicles impounded.  Given the limited grounds on which impounded vehicles can be returned to their owners the probability is that they will not get the vehicle back.  In addition such conduct could put the operator’s continued good repute at risk.

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

5 December 2013