Neutral Citation Number: [2015] UKUT 441 (AAC)

Appeal No.  NT/2014/79

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER (Transport)

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of the HEAD of the TRANSPORT REGULATION UNIT

Dated 29 October 2014

 

 

Before: Kenneth Mullan, Judge of the Upper Tribunal

Mr S. James Member of the Upper Tribunal

Mr D. Rawsthorn Member of the Upper Tribunal

 

 

Appellant: Melvin Murray T/A Melvin Murray Transport

 

Attendances:

 

For the Appellant: Mr D. McNamee

 

For the Respondent Miss Jones instructed by the Departmental Solicitor’s Office

 

 

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

Date of hearing: 10 February 2015

Date of decision: 29 June 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and the Order of the Head of the Transport Regulation Unit will take effect at 23.59 hours on 27 July 2015.

 

 

SUBJECT MATTER:- Financial standing; loss of repute; professional competence

 

 

CASES REFERRED TO:- NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI; Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695; T/2012/17 NCF (Leicester) Ltd; NT/2013/82 Arnold Transport & Sons Ltd v DOENI; JJ Adam case (1992/D41); NT/2014/02 Janet Lyons t/a Lyons Haulage

 

 

 

REASONS FOR DECISION

The decision under appeal

1.        This is an appeal from the decision of the Head of the Transport Regulation Unit (“Head of the TRU”) dated 29 October 2014.

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

(i)               The Appellant is the holder of a standard international operator’s licence with authorisation to operate ten vehicles and twelve trailers.

(ii)              Following a number of infringements and prohibitions, the Appellant was called to and attended a Public Inquiry held on 30 August 2013.

(iii)             On 6 September 2013 a decision was issued to the Appellant with a number of undertakings. A summary of these undertakings is set out at paragraph 3 of the decision of the Head of the TRU.

(iv)            The Head of the TRU noted that between 6 September 2013 and 28 January 2014 there were a number of vehicle and trailer defects and driver hours or tachograph infringements detected by VOSA.

(v)             The Head of the TRU noted that between 28 September 2013 and 15 June 2014 there were a number of vehicle defects and driver hours or tachograph infringements detected by the Driver and Vehicle Agency.

(vi)            In paragraphs 6 to 19 of her decision, the Head of the TRU set out details of the Appellant’s response to the undertakings imposed following the Public Inquiry held on 30 August 2013.

(vii)           On 30 May 2014 a Public Inquiry call-up letter was issued indicating that the Public Inquiry had been called to consider whether or not to take regulatory action against the Appellant as the Respondent was concerned that the undertakings set against the licence had not been satisfied. The Public Inquiry was held on 12 September 2014. The Appellant was in attendance and was represented.

(viii)          A summary of the statement evidence submitted in connection with the second Public Inquiry is set out by the Head of the TRU at paragraph 26 of her written decision. A summary of the proceedings and the oral evidence and submissions is set out at paragraphs 27 to 42.

(ix)            The findings of fact arrived at by the Head of the TRU are set out at paragraphs 43 to 53 of the decision of the Head of the TRU.  

3.         At paragraph 74 the Head of the TRU has summarised the decision as follows:

‘In summary the Department, having considered that the purpose of the Act is to ensure that those who function in the occupation of road haulage must do so within the statutory licensing regime and on the evidence presented and considered in relation to this operator, finds that Mr Melvin Murray T/A Melvin Murray Transport does not meet the requirements of Sections 12A(2)(b), 12A(2)(c) and 12A(2)(d) of the Goods Vehicle Act in relation to repute, financial standing and professional competence. Therefore the Department is required to revoke the licence under Section 24(1) of the Goods Vehicles (Licensing of Operators Act (NI) 2010 and does so with effect from 23.59 hrs on 9 January 2015. Mr Murray is not disqualified from holding or obtaining an operator’s licence in the future

 

4.         The Appellant was notified of the decision of 29 October 2014 by way of correspondence dated 30 October 2014.

 

Some preliminary procedural matters

5.        We begin by addressing some preliminary procedural matters. The decision of the Head of the TRU dated 29 October 2014 was notified to the Appellant on 30 October 2014. On 25 November 2014 correspondence was received in the office of the TRU from Mr McNamee. The substance of the correspondence was as follows:

‘We refer to the above and advise that we intend to appeal the decision of the TRU to the Upper Tribunal. As such we would be obliged if the decision in relation to this matter could be stayed pending the outcome of the appeal.’ 

6.        On 26 November 2014 the Head of the TRU wrote to Mr McNamee, copying the correspondence to the Appellant. In substance, that correspondence was as follows:

‘Having carefully considered the request, and providing such an appeal is made to the Upper Tribunal, I can confirm that the Department has granted a stay. As a result, operator’s licence ON1114633 shall remain in force until the appeal has been disposed of.’

7.        The appeal was received in the office of the Upper Tribunal in Belfast on 27 November 2014.

8.        The appeal was listed for oral hearing on 10 February 2015.

9.        On 30 January 2015 correspondence was received in the office of the Administrative Appeals Chamber of the Upper Tribunal from the Departmental Solicitor’s Office in Northern Ireland. An application was made for a direction under rule 9(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the 2008 Rules’) to join the Department of the Environment as a Respondent in this case. The correspondent recognised that the application for a direction fell outside of the time-limits imposed by paragraph 6 of Schedule 1 to the 2008 Rules but sought a waiver, under rule 7(2)(a) of the failure to comply with the time-limit requirement.

10.      On 30 January 2015 I exercised my discretion under rule 7(2)(a) of the 2008 Rules and waived the requirement to comply with the time-limit requirement under paragraph 6 of Schedule 1 to the 2008 Rules. Under the provision of paragraph 7 of Schedule 1 I was, then, obliged to add the Department of the Environment as a Respondent to this appeal.

11.      On 2 February 2015 correspondence was received in the office of the Upper Tribunal from Mr McNamee. In this correspondence, Mr McNamee stated:

‘We refer to the above and note that this matter has been listed for hearing. We advise that our client has, as he was invited to by the Chairman of the Public Inquiry, applied for a new licence.

We note that this application is presently before the Department and obviously if this application was to be successful it would render this appeal otiose. We would therefore suggest that the hearing date should be adjourned in order to allow for the application to be processed. This would avoid any waste of the Upper Tribunal’s time in dealing with an appeal which would no longer be necessary.

We refer you to the decision of the Public Inquiry [where] revocation of the original licence was suspended to allow for the application of a new licence.’

12.      On 4 February 2015 I directed that:

‘A copy of the application for the adjournment was to be forwarded to the Respondent;

The Appellant, his representative and the Respondent were to be informed that the application for the adjournment of the appeal was refused, at this stage;

The Appellant and his representative were to be informed of their right to renew the application at the commencement of the oral hearing on 10 February 2015;

The Appellant and his representative were to be informed that without prejudice to the outcome of any renewed application for an adjournment, they should be prepared to address the substantive issues arising in the appeal;

The Respondent was asked to confirm:

·  Whether a further application for an operator’s licence had been made by the Appellant or by his representative

·  The date on which any such application was received in the Department

·  The stage at which the application rested in the Department’s consideration process

·  Whether the application was likely to be the subject of a Public Inquiry

·  The likely date of determination on the application

·  The Respondent’s position on the substantive application for an adjournment.

The Appellant and/or his representative were asked to be in a position to indicate the likely response to any successful determination of his renewed licence application in terms of the extant appeal against the decision to revoke.

13.      On 6 February 2015 a reply to the direction of 4 February 2015 was received from the Respondent. In summary, the reply was as follows:

·         There was no record of an application for a goods vehicles operator’s licence by the Appellant or his representative

·         An application had been made in the name of ‘Murray Haulage Ltd’ with Mrs Elaine Murray, the wife of the Appellant, named as the Sole Director. Further details of this application were provided

·         A decision was made on 3 February 2015 that this application should be considered at a Public Inquiry. No date for the Public Inquiry had been set

·         The Department aimed to determine unopposed GVOL applications within nine weeks of application and to determine those applications which are opposed and/or requiring a Public Inquiry within twenty-six weeks

·         The Respondent opposed the application for an adjournment on the basis that (i) the Respondent did not agree that a successful application for a goods vehicles operator’s licence would not mean that the appeal would ‘serve no purpose or result’ (ii) it is not in the public interest to adjourn the appeal as the Appellant has had sufficient time to initiate a renewed application and had not done so and (iii) as a stay had been granted, pending appeal, the Appellant could continue to operate until such time as the appeal was determined or withdrawn. 

14.      In the afternoon of 9 February 2015 a nineteen page skeleton argument was received by the Judge and Members of the Upper Tribunal. 

15.      At the commencement of the oral hearing of the appeal, we addressed with Miss Jones, the questions of the late application by the Respondent to be joined as a Respondent to the appeal and the very late receipt of the Respondent’s skeleton argument. Miss Jones conceded that the Respondent had been served with a copy of the Appellant’s Notice of Appeal on 28 November 2014 and that the application to be joined as a Respondent had not been received in the office of the Upper Tribunal until 30 January 2015. Miss Jones noted that the relevant procedure was that on receipt of notification of an appeal the Respondent would collate information held by it and proceed to instruct the Departmental Solicitor’s Office. She noted that the Respondent had been in discussions about the issue of delay and were putting in place a better framework for responding to receipt of notices of appeal from the Upper Tribunal. It was noted that it was essential that such a framework is put in place in order to seek compliance with the procedural requirements set out in the 2008 Rules. It was also observed that this was not the only appeal in which this Respondent had made such a late application. Miss Jones submitted that the late submission of the skeleton argument was consequent on the late application to be joined as a Respondent. She submitted that the skeleton argument had been served directly on Mr McNamee. It was noted that the two Members of the Upper Tribunal had only received the skeleton argument on the morning of the oral hearing of the appeal and had been inconvenienced as a result. Miss Jones submitted that the Respondent was committed to addressing this issue.

16.      Mr McNamee renewed the application for an adjournment at the oral hearing. He made reference to paragraph 74 of the decision of the Head of the TRU and submitted that the general ‘tenor’ of the reasoning contained in that paragraph was that the setting of the effective date of the revocation at 23.59 hrs on 9 January 2015, some ten weeks after the date of the decision was for the purpose of enabling the Appellant to make an application for a new goods vehicles operator’s licence. Mr McNamee conceded, however, that nowhere else within the papers was there a positive indication made to the Appellant that the purpose of the later setting of the effective date of revocation was to permit the Appellant to make a further application for a licence.

17.      Mr McNamee submitted that the decision to make an application in the name of ‘Murray Haulage Ltd’ with Mrs Elaine Murray, the wife of the Appellant, named as the Sole Director, was deliberate so as to distance the Appellant from the application. It had also been decided that the Appellant’s daughter should not be nominated as Transport Manager even though she was qualified to take on this role. Mr McNamee submitted that the application had been made timeously having been received within one month of the date of the revocation decision. In response to questions concerning the Respondent’s submission that an unopposed application would normally take nine weeks to process but that an application subject to a Public Inquiry, which was inevitable in the instant case, would take up to twenty-six weeks to process, Mr McNamee submitted that the imperative was to have the application determined within the shortest possible time-scale in order to prevent the winding-up of the existing business, even for a brief and temporary period, with the consequent loss of employment and business. He submitted that the timetable for the determination of the application was for the Department but that the Department could expedite such a determination.

18.      Finally, Mr McNamee noted that he had been in late receipt of the Respondent’s skeleton argument and that this had put him to inconvenience.

19.      Miss Jones continued to oppose the application for the adjournment. She noted that the twenty-six week period which had been cited was for the period within which a Public Inquiry might be held rather than for the full determination of the application. The decision to hold a Public Inquiry was entirely within the remit of the Department but the feeling was that a Public Inquiry was inevitable in connection with the new application. She submitted that the application made on 27 November 2014 had not been made timeously and not been made in the name of the Appellant but in connection with a wholly different business entity. There was no part of the decision of the Head of the Transport Regulation Unit which stated that the Appellant himself could not make a renewed application for a licence.  She asserted that the setting of the extended effective date for revocation was for the purpose of permitting the Appellant to have the opportunity to consider his position. While the Appellant’s representative had submitted that the only person to be disadvantaged by a refusal of the adjournment application would be the Appellant, all other haulage businesses would also be disadvantaged as any further adjournment would enable the Appellant to continue to trade in line with the terms of the stay. Such an outcome would also affect the safety of the public and the competitive advantage of other haulage companies.

20.      We regard the procedural rule in paragraph 5 of Schedule 1 to the Tribunal Procedure (Upper Tribunal) Rules 2008 to be somewhat unusual, requiring, as it does, the appropriate national authority, in this case the Department of the Environment for Northern Ireland, to apply for a direction, under rule 9(2) of the 2008 Rules, to be added as a Respondent to the appeal. It is unusual as the normal expectation, in appeal tribunal proceedings, is that a party against whom an appeal has been made automatically becomes the respondent to the appeal. Nonetheless, the rule is there and must be adhered to. Not only must the rule in paragraph 5 of Schedule 1 be adhered to but so must the rule in paragraph 6 which provides that:

‘An application under paragraph 5 must be sent or delivered to the Upper Tribunal so that it is received within 14 days of the date that the Upper Tribunal sent a copy of the notice of appeal to the person making the application.’

21.      In the instant case, the requirements of paragraph 6 were not adhered to. Indeed the paragraph 5 application was received some six weeks after the expiry of the paragraph 6 time limit. The appeal had, by the date of the receipt of the paragraph 5 application, already been listed for oral hearing. In our view the very late application by the Respondent for a rule 9(2) direction is not acceptable. Miss Jones, for the Respondent, outlined the reasons for the late application and explained that the delay was as a result of the Respondent collating the documentation which it held and then instructing the Departmental Solicitor’s office. That practice was not only adopted in the instant case but in relation to other appeals before the Upper Tribunal. The net result was that paragraph 5 applications were invariably being made at a very late stage and most certainly well after the expiry of the paragraph 6 time limit. Miss Jones informed us that discussions were taking place with regard to Departmental procedures on receipt of an appeal against a decision of the TRU. We regard it as imperative that such discussions take place. It cannot be the case that the routine response is the late submission of a paragraph 5 application outside of the paragraph 6 time limits. In such circumstances the Respondent is relying on the Upper Tribunal exercising a rule 7(2)(a) discretion to waive the irregularity. That discretion may not always be exercised in the Respondent’s favour.

22.      As was noted above, the late submission by the Respondent of the skeleton argument was consequent on the late application to be joined as a Respondent. The skeleton argument runs to nineteen pages and was only made available to the Upper Tribunal and the Appellant’s representative on the day before the oral hearing of the appeal. Miss Jones was correct to submit that there was no direction for the provision of skeleton arguments in this case and the Respondent was endeavouring to be helpful in providing one. We agree with that. Nonetheless, inconvenience was caused to all concerned. It is to be hoped that changes to the practice by the Respondent of lodging applications to be joined as a Respondent at a late stage will obviate the problem of the late production of skeleton arguments.

23.      We refused the Appellant’s renewed application for an adjournment. In so doing we did not accept the submission which had been made by Miss Jones that the further licence application had not been made timeously. The decision to revoke the former licence was made on 29 October 2014. The further licence application was received on 27 November 2014 which was well within a reasonable time period. Nonetheless we do not accept the submission made by Mr McNamee, on behalf of the Appellant, that it was implicit from paragraphs 73 and 74 of the decision of the Head of the TRU that the setting of the effective date of revocation some ten weeks after the date of the decision, and the grant of a further stay of the effect of the decision, was for the purpose of permitting an application for a new licence. Mr McNamee also submitted that now that the further application for a licence had been made, the application process should be permitted to run its course and that the present proceedings should be adjourned to facilitate that process. Mr McNamee submitted that if the further application is successful then the present proceedings would be rendered otiose. It is clear from the wording of paragraphs 72 and 73 of the decision that the Head of the TRU was satisfied that the Appellant should not be disqualified and was free to make an application for a new licence. It is equally clear that the decision to set the effective date of revocation at some time in the future was to permit the Appellant ‘… to make continued and consistent progress.’

24.      Things have moved on since the date of the decision under appeal. A further application has been made but the application is in the name of a new business entity and not in the name of the Appellant. A decision has been made by the Respondent that the application should be the subject of a Public Inquiry. The Respondent has indicated that its policy is to determine unopposed goods vehicle operator’s licence applications within nine weeks of receipt and to determine those applications which are opposed and/or requiring a Public Inquiry within twenty-six weeks. It was clear, therefore, that the determination of the further application would take a considerable length of time. It was not, in our view, in the interests of justice to allow the present proceedings to be adjourned during that further lengthy period. The outcome of such a decision would be that the Appellant would continue to have the benefit of the licence and continue to operate. In any event, we noted that we had an extant appeal before us. If the appeal was to be allowed then the revocation would be reversed and the Appellant would have his licence back. In these circumstances, the correct decision was to proceed with the determination of the appeal.

25.      Following the oral hearing of the appeal, e-mail correspondence was received on 11 February 2015 from the Departmental Solicitor’s Office on behalf of the Respondent. In this correspondence it was noted that a further licence application, dated 18 January 2015, was received in the Northern Ireland Central Licensing Office (NICLO) on 30 January 2015. The application was in the name of the Appellant. Irregularities in the application had been identified by NICLO. The Appellant had been given the opportunity to respond to certain queries about the irregularities in the application. Accordingly, the Respondent regarded the application as being at the application/pre-decision stage.

26.      Mr McNamee was provided with a copy of the e-mail correspondence of 11 February 2015 from the Departmental Solicitor’s Office. In a reply dated 21 February 2015, Mr McNamee indicated that he was presently out of the jurisdiction and would be for some months.

27.      We consider that this further development is not relevant to our determination of the present appeal which should be treated on its merits.

28.      On 11 February 2015 further e-mail correspondence was received from Mr McNamee. Mr McNamee attached to this correspondence a copy of a document published by the Transport Regulation Unit titled ‘A Guide to Public Inquiries’. He referred to a section of paragraph 12 of the document and submitted:

‘I have been asked by the tribunal to send them a copy of this guide in relation to a query relating to finance and the proper approach to same. The proper approach as submitted to the tribunal is set out at paragraph 12 under the heading “How will the Department consider finance?”

This makes clear that the finance is to be available “if the need arises” and is not limited to cash but also “assets from which money is easy to get”. ‘

29.      The e-mail from Mr McNamee and the attachment were shared with the Respondent on 17 February 2015. On 24 February 2015 a reply was received from the Head of the TRU. Attached to this reply were three Annexes. Annex A contained comments on the specific issue raised by Mr McNamee in his e-mail of 11 February 2015 and in connection with the attached Guide. Annex B contained more general submissions on certain issues arising in the appeal. Annex C contained what was stated to be a ‘Timeline of events and comments re financial standing in relation to case in hand.’ We have considered the submissions made in Annex A. we have not considered the submissions made in Annexes B and C. The Head of the TRU has acknowledged that it is not appropriate to provide further submissions to the Upper Tribunal at the post or-hearing stage. That statement is wholly correct. The submissions which are contained in Annexes B and C are contentions that should have been made in the skeleton argument and during the course of the oral hearing. 

 

The proper approach on appeal to the Upper Tribunal

 

30.      In NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, Upper Tribunal said the following, at paragraph 8 of its decision, on the proper approach on appeal to the Upper Tribunal:

‘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.’

31.      At paragraph 4, the Upper Tribunal had stated:

‘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. 

32.      The principles set out in paragraph 4 are important and relevant to the submission made by Mr McNamee concerning the ‘Guide to Public Inquiries’ document and the information contained therein in the section headed “How will the Department consider finance?’ It is clear, from paragraph 4 of NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, that the emphasis has to be on the legislative provisions and the interpretation of those legislative provisions through decisions of the appellate authorities in Great Britain and as summarised in the Digest. The ‘Guide to Public Inquiries’ document is as it is described. It aims to be helpful to those attending Public Inquiries but it is written as a fairly brief source of general background information rather than an authoritative summary of the meaning, context and application of the relevant legislative provisions. In addition, it seems to us that the document would carry less weight than the Senior Traffic Commissioner’s Statutory Guidance Documents.

 

General principles on the operation of the Act and Regulations

33.      At paragraphs 10 to 13  of the decision in NT/2013/82 Arnold Transport & Sons Ltd v DOENI, the Upper Tribunal set out the following general principles in the operation of the legislative provisions in Great Britain and Northern Ireland:

‘Some General Principles

10.  An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the Head of the TRU who takes them].  The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act.  The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and Transport Managers.

11.  The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded.  In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence.  It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended.  It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent.  The underlining, in each case is ours.  First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion.  Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear.

12.  The Tribunal has stated on many occasions that operator’s licensing is based on trust.  Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime.  In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field.  In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven.  Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business.  Cutting corners all too easily leads to compromising safe operation.

13.  It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question.  It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.  It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above).  We agree that this is a helpful and appropriate approach.  The attitude of an operator when something goes wrong can be very instructive.  Some recognise the problem at once and take immediate and effective steps to put matters right.  Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place.  A third group leave it even later and come to the Public Inquiry with promises of action in the future.  A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry.  It will be for the Head of the TRU to assess the position on the facts of each individual case.  However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.’

The reasoning of the Head of the TRU

34.      The Head of the TRU decided that the Appellant did not meet the requirements of Sections 12(A)(2)(b), 12A(2)(c) and 12A(2)(d) of the Goods Vehicle (Licensing of Operators) Act (Northern Ireland) 2010. Accordingly, the Appellant did not meet the requirements relating to repute, financial standing and professional competence.

35.      In connection with ‘professional competence’ the Head of the TRU found that the Appellant, at the date of the Public Inquiry on 12 September 2014, had been afforded sufficient opportunity to implement agreed undertakings and make improvements, but had not made any significant progress. He had failed to fulfil the undertaking to have a suitable qualified Transport Manager in place, while claiming to have carried out the role himself. His certificate of professional competence was not to a sufficient international standard. Accordingly he did not have a Transport Manager designated in accordance with Article 4 of Regulation 1071/2009 who satisfied the requirements of section 12A(3) of the 2010 Act to be professionally competent and of good repute.

36.      In connection with ‘financial standing’ the Head of the TRU found that the production of a livestock list on its own was insufficient evidence of financial standing and the significant negative balance on the Appellant’s bank account for three months prior to the Public Inquiry, even with an overdraft facility added on the day before the Public Inquiry was also insufficient ‘…to demonstrate the appropriate level and consistency of availability of finances as required.’

37.      In connection with ‘repute’ the Head of the TRU found that by not employing a suitably qualified Transport Manager the Appellant had benefitted from an unfair competitive advantage.   

 

 

The grounds of appeal

38.      In the appeal which was submitted to the Upper Tribunal and during the course of his oral submissions at the hearing before us, Mr McNamee set out the following grounds of appeal:

(i)    The second Public Inquiry on 12 September 2014 was not a de novo hearing but was an extension of the Public Hearing held on 30 August 2013.

(ii)   The Head of the TRU erred in not considering the material or giving proper weight to the material supplied in relation to financial standing. More particularly, the Head of the TRU erred in not considering the material which had been provided following the Public Inquiry. This was in contradiction to the reliance by the Head of the TRU on other material received post the Public Inquiry. Mr McNamee pointed to paragraph 38 of the decision where the Head of the TRU had stated that ‘… it was agreed that further evidence of finance should be provided post inquiry.’ Despite this, at paragraph 59 of her decision, the Head of the TRU had stated ‘The statutory declaration provided post inquiry could not be considered’.

Mr McNamee acknowledged that the Appellant had agreed an undertaking to sign up to an invoice factoring agreement. The Appellant had signed such an agreement but had not activated it. This was due to cost which he regarded as ‘too expensive’ and his opinion that he had no requirement for such an arrangement due to the successful nature of his alternative business. In addition, the Appellant had an overdraft facility in place. At the Public Inquiry the Appellant had provided a copy of his livestock herd list. Mr McNamee submitted that the relevant guidance in the Departmental ‘Guide to Public Inquiries’ document indicated that the Department would consider such an asset as available finance. The Statutory Declaration had been provided after the date of the Public Inquiry. All of this demonstrated that the Appellant complied with the financial standing requirements. Accordingly, revocation on that ground was not appropriate.

(iii)  The Head of the TRU had not been present at the Public Inquiry which had taken place on 30 August 2014. Accordingly she was not aware of the nature of the undertakings which had been given. Mr McNamee submitted that certain of the undertakings had been complied with while others had not. The HMRC audit in relation to the ‘fuel’ issues had been completed. There was an on-going appeal in relation to HMRC fuel detection which the Appellant would be expected to win. The Appellant had failed to communicate with the Respondent in connection with actions which he was taking and Mr McNamee accepted that criticism of his failure to communicate was justified.

(iv) Mr McNamee made reference to the undertaking to ‘… obtain an International CPC qualification at the earliest opportunity.’ The Appellant had thought that he would be able to sit the examination for this qualification as an ‘add-on’ to his existing certificate. He then discovered that this would not be possible. He had made efforts to engage a Transport Manager but discovered that existing transport managers were reluctant to ‘come on board’ with firms which had been called to Public Inquiries. He had approached a large number of individuals. His daughter had now obtained the relevant qualifications and was now the Transport Manager. He had employed one Transport Manager for two brief periods.

(v)  Mr McNamee made reference to paragraph 35 of the decision of the Head of the TRU. The Appellant had joined the FTA in January 2014 and was taking steps to comply with the relevant undertakings, particularly in connection with drivers’ records.

(vi) The conclusion arrived at by the Head of the TRU, at paragraph 61 of her decision, that the Appellant, in not employing a suitably qualified Transport Manager, had enjoyed a competitive advantage was completely incorrect and had failed to take cognisance of the evidence which had been given. The Appellant had restricted himself to only undertaking domestic haulage.

(vii)                The Appellant’s failure to communicate with the Respondent was insufficient to warrant revocation. The Appellant had been present at the Public Inquiry and had not ignored it. The conclusion of the Head of the TRU, at paragraph 63 of her decision, that the Appellant ‘… has not convinced me that he takes the responsibilities of holding an operator’s licence seriously’ reversed the burden of proof. The Head of the TRU had erred in believing that the onus was on the Appellant to convince her. This was a case where revocation was being considered as a method of controlling the Appellant’s behaviour. Where revocation was being considered the onus of proof lay with the Respondent. The Appellant did not have to prove anything.

(viii)               Mr McNamee submitted that the conclusion of the Head of the TRU that disqualification for a period of one yearwould put the Appellant out of business was incongruous with her overall decision that revocation was appropriate. On the one hand the Head of the TRU appeared to be suggesting that she was reluctant to put the Appellant out of business when her final decision had precisely that effect. Accordingly, revocation was a disproportionate response.

(ix) Mr McNamee made further reference to the comments made by the Head of the TRU at paragraph 73 and which reflected the arguments which he had made in his application for the adjournment. Permitting the Appellant to apply for a new licence was inconsistent with the overall decision to revoke.

(x)  The appropriate form of regulatory action, if the Respondent was concerned to achieve an alteration in the Appellant’s behaviour was to attach conditions to his licence. Revocation was not the appropriate form of action to achieve the desired outcome of a change in behaviour.

 

The response

39.      In her skeleton argument and at the oral hearing of the appeal, Miss Jones made the following submissions in response to the grounds of appeal:

(i)            The Public Inquiry proceeded by way of a hearing de novo. The Head of the TRU, who had not been present at the first Public Inquiry, had made clear at the outset of the second Public Inquiry that it was a new hearing. There was no perception that the second Public Inquiry was a continuation of the first.

(ii)           The call-up letter to the Public Inquiry had made clear that the Appellant was to provide certain documentation relating to drivers’ hours, vehicle maintenance and financial standing. Miss Jones submitted that the Appellant failed to provide a number of documents including safety inspection records and records of driver audits. When asked why the relevant documentation had not been provided, the Appellant had indicated that (i) he had brought certain of the documentation with him to the first Public Inquiry and, as it had not been looked at, he had not brought it to the second Public Inquiry and (ii) certain of the required information had been in the form of a diary which had been locked away and, accordingly was inaccessible. The Appellant had been given a further opportunity to provide the relevant information and, while certain information was provided post-Inquiry, a number of issues remained outstanding.

(iii)          The Head of the TRU had not had any regard to the HMRC/Fuel issues when arriving at her decision.

(iv)         The Respondent accepted that certain of the undertakings had been complied with. Nonetheless, there had been other significant failures. The Appellant failed to notify the Respondent that the Transport Manager was no longer in position. The undertaking relating to the financial aspects of the business had not been complied with. When asked at the Public Inquiry why he had not undertaken an audit as required by the undertakings, the Appellant indicated that he had not needed an audit. There was a history of infringements with several between the dates of the first and second Public Inquiries. The Appellant had to be reminded of the extent of his duties and responded in a reactive rather than proactive manner.

(v)          There had been no reversal of the burden of proof.

(vi)         The ‘financial standing’ requirement was tightly governed by the relevant legislative provisions, both Domestic and European. The evidence from the bank statements which had been provided demonstrated that the bank account was frequently overdrawn. The overdraft facility appeared to be operative from the day immediately prior to the Public Inquiry. The Statutory Declaration was dated and submitted after the date of the Public Inquiry. The Statutory Declaration related to a bank facility which was not in the name of the Appellant. The livestock herd list was not in the name of the Appellant. The ‘financial standing’ requirement was a continuing requirement. The Appellant did not meet the ‘financial standing’ requirement and, in such circumstances, revocation was mandated under section 24 of the Act.

(vii)        For a large part of the relevant period there was no Transport Manager in place and it made no difference to that requirement that the Appellant had limited his operations to domestic haulage. The licence which he held required a professionally competent Transport Manager to be in place. The Appellant did not hold an International CPC qualification. The Appellant had never designated himself as any kind of Transport Manager. Once again, section 24 of the 2010 Act mandated revocation in these circumstances.

(viii)       Relevant case-law supported the submissions in response which were being made. 

 

Our analysis

40.      We have not been satisfied that on the basis of the submissions which have been made on behalf of the Appellant that it could be said that the decision of the Traffic Commissioner in the instant case was ‘plainly wrong’.

41.      We begin with the question of financial standing. Section 12A(2)(c) of the 2010 Act provides that an applicant for a standard operator’s licence must be of appropriate financial standing “as determined in accordance with Article 7 of Regulation 1071/2009’. Article 7(1) of Regulation 1071/2009 makes it clear that this is a continuing obligation. If at any time it appears to the Head of the TRU that the licence holder no longer satisfies this requirement revocation of the licence is mandatory – see section 24(1) of the 2010 Act.

42.      The purpose of this requirement was set out by the Tribunal in T/2012/17 NCF (Leicester) Ltd ([2012] UKUT 271(AAC)), at paragraphs 11 & 12, as follows:

‘11.  Being of appropriate financial standing has always been considered to be a continuing requirement.  In other words it is a requirement that the operator must satisfy for the duration of the licence.  In our view this is now made crystal clear in Article 7(1) of Regulation (EC) No 1071/2009 of the European Parliament and of the Council, (“Regulation 1071/2009”), which provides: “In order to satisfy the requirement laid down in Article 3(1)(c), an undertaking shall at all times be able to meet its financial obligations in the course of the annual accounting year”.

12.  The purpose of the requirement to be of appropriate financial standing is spelt out, in general terms, in recital 10 to Regulation 1071/2009, which provides: “It is necessary for road transport undertakings to have a minimum financial standing to ensure their proper launching and administration”.  In our view ‘administration’, for the purposes of this Regulation, means the organisation and running of a haulage business which holds an operator’s licence.  In particular the requirement is intended to ensure that vehicles can be operated safely because the operator can afford to maintain them promptly and properly.’

43.      The requirement to be of appropriate financial standing cannot be satisfied by evidence of a ‘snapshot’ of the financial position on a particular day.  What is required is evidence that enough money is consistently available to satisfy the requirement. Because this is a continuing requirement the generally accepted position is that with an existing business the expected average amount available, over a period of three months, should equal or exceed the amount required for the number of vehicles authorised. With specific and limited exceptions assets, (using the term widely), put forward to meet the requirement to be of appropriate financial standing must be owned by and in the name of the operator.

44.      While it might appear possible, in theory, to put forward physical assets in order to meet the requirement to be of appropriate financial standing, the practical difficulties are such that it is unlikely to prove possible in practice. Paragraphs 18 to 22 of the decision in T/2012/17 NCF (Leicester) Ltd are relevant:

18.  While it is unnecessary, for the purposes of this decision, to consider the position where physical assets are put forward to satisfy the requirement to be of appropriate financial standing it may be helpful to consider three points that must be taken into account in that situation.

19.  First, it will be essential to distinguish between ‘working assets’ and ‘surplus assets’.  Working assets are those used to enable the business to function and earn money.  Surplus assets are those that are not needed for that purpose.  We find it difficult to envisage any circumstances in which a Traffic Commissioner will be prepared to take into account the value of working assets when deciding whether or not appropriate financial standing has been proved.  The reason is that the sale of a working asset, coupled with the use of the money to pay bills, is likely to reduce the ability of the business to earn money, which will, in due course, increase the time taken to restore the finances of the business to the level required to meet the requirement to be of appropriate financial standing.  By contrast the sale of a surplus asset does not have the same consequences.  Provided that the factors that follow are taken into account it seems to us that it is open to Traffic Commissioners to take the value of surplus physical assets into account, though they are not bound to do so if there are good reasons to exclude them

20.  Second, it seems to us that operators who put forward the value of a physical asset, in order to meet the requirement of appropriate financial standing, will need to satisfy the Traffic Commissioner that the asset in question is readily saleable and that the net sale proceeds will probably be available to be spent within 30 days of the decision to sell.  Unless it can be shown that the net sale proceeds will be available within 30 days the value of the asset cannot contribute to establishing appropriate financial standing because it is not available to serve one of the essential purposes of that requirement.

21.  Third, at the risk of stating the obvious, a physical asset can seldom, if ever, be used to pay a bill.  It follows that if such an asset is put forward to assist in satisfying the requirement to be of appropriate financial standing the operator will need to provide evidence that the asset can probably be sold and the proceeds received within 30 days, the probable sale price and the likely costs of the sale.  We have underlined ‘and’ to stress that it is only the net amount, which is likely to be paid to the operator after deducting any costs or expenses, that will count towards meeting the requirement to be of appropriate financial standing.  The reason is that it is only this amount which will be available to the operator for the payment of bills. 

22.  We accept that, in theory, it is possible to put forward a physical asset in order to satisfy the requirement to be of appropriate financial standing.  However operators, and those who advise them, should be under no illusions as to the difficulties that they will face, in practice, if they attempt to go down that route. Operators who seek to rely on the value of a physical asset but fail to provide satisfactory evidence on all the points raised in paragraphs 19-21 should not be surprised if the Traffic Commissioner declines to take the value of the asset into account.’

45.      The leading authority on the meaning of ‘having available sufficient financial resources’ is the decision in the JJ Adam case (1992/D41). At paragraph 33, it was stated:

‘In our judgment the opening words, namely “having available”, provide the key to the meaning of each expression.  “Available” is defined as: “capable of being used, at one’s disposal, within one’s reach, obtainable or easy to get”.  In other words an operator only has available financial resources or capital and reserves if he has money in the bank which is capable of being used, (ie. it is not already needed for the payment of debts in the ordinary course of the business) or an overdraft at his disposal in the sense that there is a balance undrawn before the limit is reached or he has debts which are obtainable because they are due and likely to be easy to collect or he has assets from which money is easy to get in the sense that the assets are items which can be readily sold without any adverse effect on the ability of the business to generate money, or he has some other way in which to come up with money at fairly short notice, should it be needed.  The above should be regarded as examples and not as a comprehensive list. Whether or not an operator has available sufficient financial resources or has available capital and reserves is a question of fact and degree which has to be determined according to the circumstances of each individual case.  For example two different operators might each have £50,000 in a bank account.  If in the case of the first the money was deliberately kept in a deposit account, in case of emergency, there would be no difficulty in concluding that the operator had available financial resources or capital and reserves of that amount.  If in the case of the second the money had been ear-marked to meet a VAT or tax bill, which was due in the next few days, there would be little difficulty in concluding that the £50,000 ought not to be included in any calculation of available financial resources or capital and reserves, because it would not meet the requirement of being available.  Different conclusions could equally well be justified in the case of the sale of plant, particularly working vehicles.  In the case of an operator operating at or near to capacity the outright sale of working vehicles is not a sensible way in which to raise money because it reduces the ability of the operator to operate efficiently and profitably and it means that the operator’s overheads would have to be borne by a smaller number of vehicles.  On the other hand an operator who has, or may in the future, have surplus vehicles, may well be able to turn them into cash, if the second-hand market is good, without any adverse effect on the business.  In the case of the operator who is working at or near capacity it would not be surprising if the value of his vehicles was excluded from the calculation of available financial resources or capital and reserves.  In the case of the other operator it would be surprising if the opposite conclusion was not reached.’

 

46.      We are also reminded of the comments of the Upper Tribunal in paragraph 17 of the decision in NT/2014/02 Janet Lyons t/a Lyons Haulage:

‘What is required is evidence that the average amount available over a period of time, (generally 3 months), is sufficient to cover the amount required by Article 7.1. The purpose of having appropriate financial standing is to ensure, amongst other things, that vehicles are properly and promptly maintained and that if emergency repairs are needed the money is available to enable them to be carried out. Since the purpose is to ensure that money is available to pay the bills for maintenance and repairs, (amongst other things), it follows that only assets which can be used to pay such bills can be used to satisfy the requirement to have appropriate financial standing.’ 

47.      We are wholly satisfied that the decision of the Head of the TRU that the appellant no longer satisfied the ‘financial standing’ requirement was one which she was entitled to make. On the basis of all of the evidence which was before her it was rational and cogent. The decision is in keeping with all of the principles which we have set out above.

48.      As was noted above, following the Public Inquiry which was held on 30 August 2013, the Appellant was issued with a decision on 6 September 2013. In that decision, a number of undertakings were set out in clear and comprehensible terms. To that extent Mr McNamee’s submission that the present Head of the TRU was not present at the first Public Inquiry and, accordingly, was not fully aware of what was agreed, is without basis. The undertakings were reduced to writing and were there for the Appellant to see and implement. One of the undertakings was that the Appellant would sign up to an invoice factoring facility tabled at the first Public Inquiry and confirm that he had so signed up by 28 September 2013 at the latest.

49.      In the call-up letter to the second Public Inquiry, the Appellant was advised that the reason for holding the Inquiry was to ascertain whether further regulatory action was mandated. Concern was expressed that there had been a failure to adhere to the agreed undertakings, including the undertaking relating to the invoice factoring facility. The Appellant was also advised that the Public Inquiry would also consider whether the Appellant continued to satisfy the financial standing requirement. In relation to this, the Appellant was advised that he should provide ‘all relevant up-to-date financial information’, including the latest profit and loss account and balance sheet for the business, original bank statements for the previous three months and details of any overdraft facility or other loan arrangement.

50.      Financial statements were received on 12 September 2014 for the period to 5 April 2013. On the same date a copy of an e-mail was received, dated 11 September 2014, from a bank official to the Appellant, confirming an overdraft facility in the amount of £50000. A further e-mail dated 11 September 2014 was also received indicating that another company had purchased a number of vehicles from the Appellant leaving a balance due to the Appellant of £41000.

51.      During the course of the Public Inquiry the Appellant stated that while he had signed up to an invoice factoring facility he had not implemented the facility. The reason was cost, the facility being too expensive. It was confirmed that the bank overdraft facility was agreed on the day prior to the Public Inquiry. When informed that the office of the TRU had not received bank statements for the previous three months, the Appellant replied ‘Did I not send them to you?’ The Appellant was requested to provide copies of the bank statements for his business within a period of two weeks. The Appellant supplied a livestock herd list and confirmed that the livestock was in his wife’s name.

52.      Subsequent to the Public Inquiry, Mr McNamee supplied additional documentation to the office of the TRU including bank statements for the period from 2 June 2014 to 17 September 2014, confirmation of the overdraft facility and a copy of a Statutory Declaration signed by the Appellant’s wife on 25 September 2014.

53.       It is clear that the Appellant did not satisfy the ‘financial standing’ requirement during the relevant period. The bank statements which were produced subsequent to the Public Inquiry demonstrate that the business account was more often overdrawn that in credit. It was, on many occasions, overdrawn to a significant extent, and during periods when the formal overdraft facility was not in place. The formal overdraft facility with the bank was only agreed on the day before the Public Inquiry.

54.      The livestock herd was not in the Appellant’s name but in the name of his wife. The Statutory Declaration was signed by the Appellant’s wife and related to her bank account and the livestock herd in her name. Mr McNamee submitted that it was unfair for the Head of TRU to ignore the evidence in the form of the Statutory Declaration which had been provided post the Public Inquiry while relying on other evidence – presumably the bank statements – which had also been supplied post Inquiry. The Appellant was under a duty to provide copies of the bank statements for the Public Inquiry. The call-up letter to him could have not been more plain or unambiguous. The Appellant failed to provide the bank statements, a failure which is representative of his ambivalent and indecisive attitude towards regulation and the legislative requirements for a holder of a goods vehicle operator’s licence. We are also of the view that the statement of the Head of the TRU, in paragraph 59 of her decision, that the ‘… statutory declaration provided post inquiry could not be considered’, is misleading. What was meant and was not properly set out was that the Statutory Declaration was dated 25 September 2014 and could not go to evidence of the Appellant’s financial standing for any period prior to that date.

55.      The Appellant did not have access to sufficient funds to satisfy the ‘financial standing requirement’. The provision of a livestock herd list and a Statutory Declaration’ both of which were in his wife’s name did not mean that there were assets readily available to the Appellant in connection with the operation of his business under his goods vehicle licence. As was noted above, Mr McNamee submitted that the relevant guidance in the Departmental ‘Guide to Public Inquiries’ document indicated that the Department would consider an asset such as a livestock herd list as available finance. We have noted above that It is clear, from paragraph 4 of NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, that the emphasis has to be on the legislative provisions and the interpretation of those legislative provisions through decisions of the appellate authorities in Great Britain. At paragraphs 44 to 46 above, we have set out the relevant legal principles on ‘financial standing’ and ‘having available sufficient financial resources’. Applying those principles in the instant case, it is evident that the Appellant could not satisfy the ‘financial standing’ requirement. Finally we cannot ignore the failure by the Appellant to disregard the undertaking to sign up to and implement the invoice factoring facility, demonstrative of an indifferent attitude to the regulatory scheme.  

56.      In the circumstances where the Head of the TRU determined that the Appellant no longer satisfied the ‘financial standing’ requirements, the revocation of the licence was not optional but was mandatory. Accordingly, the appeal to the Upper Tribunal must fail on this ground alone. It is apposite to consider, in this regard, the submission by Mr McNamee that the appropriate sanction was to attach conditions to the Appellant’s licence rather than to order its revocation. Section 24(1) of the 2010 Act is clear. It provides that the Department shall revoke a standard licence if it appears to the Department that the licence-holder no longer satisfies the requirements of section 12A(2). Mr McNamee submitted that revocation was inconsistent with what appeared to be the purpose of the Head of the TRU in affording the Appellant the opportunity to rectify problematic aspects of his business. This was why the Head of the TRU had not sought to disqualify the Appellant. The role of the Head of the TRU is to apply the legislative provisions which set up and apply the scheme for the regulation of those who hold goods vehicle operators’ licences. Where an operator fails to meet the requirements set out in section 12A(2) of the 2010 Act then revocation is mandatory not discretionary.

57.      Having found that the Head of the TRU was correct in her determination that the Appellant did not satisfy the ‘financial standing’ requirement and in ordering revocation of the Appellant’s licence, we do not have to consider whether the other aspects of her decision, concerning professional competence and loss of repute. Nonetheless, we are satisfied that these aspects of the decision were equally correct and that her analysis was rational and in keeping with the relevant legal principles. We would highlight that the Appellant, for a significant period of time, had not designated a Transport Manager in accordance with Article 4 of the 2009 Regulation and as required by section 12A(3) of the 2010 act. In this regard, it does not matter that the Appellant had limited himself to domestic haulage. The section 12A(3) requirement applies to standard licences. Even if the Appellant had intended to designate himself as the Transport Manager, there was not notification of that intention to the Respondent and no formal application to vary the licence. Further, there was no notification to the Respondent that the Transport Manager who had been designated for a brief period had left.  As was noted above, the Appellant failed to address other undertakings agreed following the first Public Inquiry, including the requirements to obtain an International CPC qualification, to carry out a compliance audit and to implement safety monitoring and audit systems.

58.      His response to a challenge to those failures and to the provision of further opportunities to address licence failings, was to demonstrate an attitude of indifference and to respond only when prompted or at the last possible moment. That is clearly evidenced in the flurry of activity immediately prior to the second Public Inquiry and in his responses at that Inquiry to challenges to his behaviour. He stated, for example that he had not brought certain documentation relating to safety inspections with him because when he had done so at the first Public Inquiry, the items had not been looked at. Further, when asked about evidence relating to random audits his response was that it was contained ‘… in a diary which I don’t have with me, it was locked in the office this morning and I couldn’t get it out of it.’ We also cannot ignore the further infringements which occurred between the first and second Public Inquiries details of which were set out in the decision of the Head of the TRU. Mr McNamee challenged the conclusion of the Head of the TRU that the Appellant had benefitted from an unfair competitive advantage submitting that he had not during the period when he had restricted himself to domestic haulage. There is no doubt that in being allowed to continue to operate despite several significant failings in the operating requirements, the Appellant did have such an advantage.

59.      We are of the view that the conclusion of the Head of the TRU, at paragraph 63 that the Appellant did not take the responsibilities of holding an operator’s licence seriously is apposite.

60.      We address two other issues as follows. We do not accept the submission by Mr McNamee that the second Public Inquiry was a continuation of the first. It is clear that the second Public Inquiry had a discrete purpose wholly different to that of the first. Moreover that discrete purpose and the independence of the second Public Inquiry was made clear to the Appellant and Mr McNamee. We also do not also accept the submission that the decision of the Head of the TRU is reflective of a reversal of the burden of proof. The Head of the TRU has adhered to the proper burden in arriving at her decision.

61.      We refer, once again as to what was set out by the Upper Tribunal in paragraph 12 of the decision in NT/2013/82 Arnold Transport & Sons Ltd v DOENI. The scheme for the licensing of operators is based on trust. Those responsible for the operation and regulation of the scheme must be able to trust those who hold operator licences. In turn, operators must be able to trust each other to comply with the scheme, and, more importantly, not to compromise or manipulate the scheme to gain an unfair competitive advantage in an uncompromising commercial sector. What requires, above all, to be avoided is the impinging of public safety through unprincipled commercial practices.

62.      This appeal is, accordingly, dismissed.

 

 

 

 

 

 

 

 

Disposal

 

63.      The decision of the Deputy Traffic Commissioner dated 29 October 2014 is confirmed in all respects save as follows:

 

We direct that the orders of the Deputy Traffic Commissioner shall come into effect at 23.59 hours on 27 July 2015.

 

 

 

 

 

Kenneth Mullan, Judge of the Upper Tribunal,

 29 June 2015