Appeal No.  NT/2015/26

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: 26 March 2015

 

 

 

Before:

Kenneth Mullan Judge of the Upper Tribunal

Mr George Inch Member of the Upper Tribunal

Mr John Robinson Member of the Upper Tribunal

 

 

Appellant:

Connolly Transport Limited

 

 

 

Attendances:

For the Appellant: The Appellant was not present and was not represented

 

For the Respondent: Ms Fee, BL, instructed by the Departmental Solicitor’s Office

 

 

Heard at: Tribunal Hearing Centre, Royal Courts of Justice, Belfast.

Date of hearing: 2 July 2015

Date of decision: 23 November 2015

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

SUBJECT MATTER:-

 

 

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;

 

 

 

REASONS FOR DECISION

 

 

1.         This is an appeal from the decision of the Head of the Transport Regulation Unit, (“Head of the TRU”) to revoke a standard goods vehicles operator’s licence.

2.        The factual background to this appeal appears from the documents in the appeal bundle, the Head of the TRU’s decision and a further written submission received after the oral hearing of the appeal, and is as follows:-

(i)            Prior to July 2012, goods vehicle operators licences in Northern Ireland were issued under the Transport (Northern Ireland) Act 1967 (‘the 1967 Act’).

(ii)           Records show that Connolly Transport Limited held a licence under the 1967 Act for a number of years.

(iii)          Connolly Transport Limited had three Directors, Clifford, Alan and David Connolly;

(iv)         Alan and David Connolly resigned from Connolly Transport Limited on 16 April 2010;

(v)          On 22 September 2010 a ‘Road Freight Operator’s Licence Application/Renewal form’ was received in the Driver and Vehicle Agency. The applicant was Clifford Connolly, stated to be trading as C Connolly Transport Ltd. The applicant stated that he was seeking renewal of an existing Operator’s Licence. The number of the existing Operator’s licence which was given was that which had been issued to Connolly Transport Limited. C Connolly Transport Ltd had been incorporated on 3 July 2009 with two Directors, Clifford Connolly and Kathryn Connolly.

(vi)         The application received on 22 September 2010 was processed by the Driver and Vehicle Agency as a renewal with checks carried out on repute and a declaration regarding the availability of finance was submitted.

(vii)        A Road Freight Operator’s Licence was issued on 24 January 2011. The name of the holder on the licence was Connolly Transport Ltd.

(viii)       The Goods Vehicle (Licensing of Operators) Act (Northern Ireland) 2010 (‘the 2010 Act’) received the Royal Assent on 22 January 2010 and introduced a new legislative scheme for the licensing of operators of goods vehicles.

(ix)         Article 4 of the Goods Vehicles (Licensing of Operators) (2010 Act) (Commencement No. 2 and Transitional Provisions) Order (Northern Ireland) 2012 (‘the 2012 Order’) provided that an existing operator’s licence, that is one granted under the 1967 Act and immediately in force before 1 July 2012 and which was due to expire on or after that date should be regarded as a standard licence under the 2010 Act until the expiry date of that licence.

(x)          A standard licence was issued under to Connolly Transport Limited under the provisions of Article 4 on 18 December 2012.

(xi)         On 14 January 2013 an e-mail was received in the Department from Clifford Connolly in which he stated that ‘… I am not operating any vehicles at present.’

(xii)        By way of correspondence dated 27 October 2014 Clifford Connolly sought to specify ten vehicles on a licence. The licence number which was given was that of the standard licence issued to Connolly Transport Limited under the provisions of Article 4 on 18 December 2012.

(xiii)       In correspondence dated 10 November 2014, 12 November 2014 and 10 February 2015, the Department wrote to Connolly Transport Limited using a reference to a licence number which was the standard licence issued under to Connolly Transport Limited under the provisions of Article 4 on 18 December 2012. The purpose of the correspondence was to inform the licence holder of the details of fourteen vehicles which were authorised for use under the licence.

(xiv)       On 24 February 2015 the TRU, on the basis of concerns that Connolly Transport Limited might not satisfy the statutory requirements with regard to finance, professional competence, maintenance and operating centres, wrote to Clifford Connolly seeking certain documentation. The licence reference number set out in the correspondence was that of the standard licence issued to Connolly Transport Limited under the provisions of Article 4 on 18 December 2012.

(xv)        Through a telephone conversation and e-mail correspondence, an extension to the time allowed for the provision of the documentation was sought by Clifford Connolly.

(xvi)       On 9 March 2015 a fourteen day extension was granted to Clifford Connolly to provide the required documentation.

(xvii)      Correspondence was issued to Connolly Transport Limited by the TRU on 20 March 2015 indicating that the time permitted for the provision of the required documentation had expired and urging Clifford Connolly to contact the TRU.

(xviii)     No response was received from Connolly Transport Limited.

(xix)       Searches of the Companies Register revealed that Connolly Transport Limited was dissolved on 14 January 2011 and C Connolly Transport Limited was dissolved on 20 February 2015.

(xx)        On 26 March 2015 the Department wrote to Mr Clifford Connolly indicating that the standard licence issued to Connolly Transport Limited under the provisions of Article 4 on 18 December 2012 was revoked due to the dissolution of Connolly Transport Limited.

(xxi)       In correspondence dated 14 April 2015 Mr Clifford Connolly made an application for a stay of the Department’s decision dated 26 March 2015 pending an appeal against that decision.

(xxii)      On 22 April 2015 the application for a stay was refused by the Head of the TRU.

(xxiii)     On 29 April 2015 an appeal against the decision dated 26 March 2015 was received in the office of the Upper Tribunal. As part of the appeal, the Appellant renewed the application for a stay of the decision appealed against.

(xxiv)    On 6 May 2015 a judge of the Upper Tribunal admitted the out of time appeal but refused the renewed application for a stay.

 

3.         The Appellant set out the following grounds of appeal:

‘I wish to appeal the revocation of my operator’s licence on the grounds that the company “C Connolly Transport” was dissolved in error due to the non-filing of an annual returns document which was an oversight on my previous accountants’ behalf and this therefore dissolved the company. I have instructed new accountants who are currently reinstating the company and this process may take up to three weeks. 

As for the point the company has never held an operator’s licence; I have operated vehicles on this licence since 2011 and I have had various correspondence over this period placing vehicles on and off my licence. I have had correspondence regarding my licence so to state I do not hold an operator’s licence is incorrect.’   

 

4.         As was noted above, the Appellant did not attend the oral hearing of the appeal.

 

5.         At the oral hearing, the Respondent was represented by Ms Fee BL. Ms Fee had prepared a Skeleton Argument for which we were grateful. Ms Fee submitted that the proper test to be applied on appeal was that set out by the Court of Appeal for England and Wales in Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport ([2010] EWCA Civ 695). Having set out the provisions of section 24 of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010, Ms Fee submitted that:

 

‘The licence ON1115137 was revoked on the basis that the entity, which held the operator’s licence, Connolly Transport Limited, no longer existed in law. That entity could not satisfy the statutory requirements in respect of an operator’s licence, as it no longer existed. As it is no longer a legal entity, it cannot hold a licence.

The appeal grounds imply that ‘C Connolly Transport Limited’ held this operator’s licence and that this company was dissolved in error due to non-filing of annual returns and was to be reinstated.

C Connolly Transport limited has never held an operator’s licence. This company was dissolved in February 2015. To date, there is no evidence that this company has been or is being reinstated. The respondent submits that in any event, it is irrelevant to this appeal, as the operator’s licence was at all times issued to and held by Connolly Transport Limited and no contrary information was supplied by the appellant at any time.

The Respondent submits that the licence was properly revoked, due to the dissolution of the entity, which held the licence, in January 2011.’

 

6.         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.’

7.         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.’

 

8.         Ms Fee is correct in her submission that the only entity which held a goods vehicles operator’s licence was ‘Connolly Transport Limited’. That company had been dissolved on 14 January 2011. As will be noted below, a goods vehicles operator’s licence should not have been issued in the name of ‘Connolly Transport Limited’ on 18 December 2012. That was because there was no business entity called ‘Connolly Transport Limited’ in existence as of 18 December 2012. The Head of the TRU was wholly correct, therefore, to revoke the licence which was issued in the name of ‘Connolly Transport Limited’ when it became known that that business entity had been dissolved and was, therefore, no longer in existence and, more significantly, when it became known that the licence issued to ‘Connolly Transport Limited’ on 18 December 2012 had been issued in error.

 

9.         We agree that the business entity ‘C Connolly Transport Limited’ has never held a goods vehicles operator’s licence. We have also noted that the business entity was dissolved on 20 February 2015. It is, therefore, irrelevant, that Mr Clifford Connolly was attempting to ‘revive’ the ‘C Connolly Transport Limited’ business entity.

 

10.      We would add, for the sake of completeness, that Mr Clifford Connolly has never held a goods vehicles operator’s licence in his own name.

 

11.      Those findings are sufficient for us to dismiss the appeal and we make an order to that effect.

 

12.      We would add the following comments. They are irrelevant to the decision which we have made on this appeal but ought to be considered in great detail by the Department, and the TRU, as a party to the proceedings.

 

13.      It is abundantly clear that the Department made an error in issuing a goods vehicles operator’s licence in the name of ‘Connolly Transport Limited’ on 24 January 2011. As was noted above, that business entity had been dissolved on 14 January 2011. Further the application for the licence had been made in the name of another business entity ‘C Connolly Transport Limited.’ The Department has submitted that in connection with the application ‘checks on repute’ were carried out and that a declaration regarding the availability of finance was submitted. More importantly, the Department has submitted that a check was carried out with Companies House in connection with the applicant ‘C Connolly Transport limited.’ Despite all of that the licence which was issued was in the name of a business entity which had been dissolved some ten days earlier.  

 

14.      Ms Fee has submitted that Mr Clifford Connolly had not notified the Driver and Vehicle Agency that the business entity in which name the licence had been issued had been dissolved or that the licence had been issued in the wrong name. While accepting that the holder of the licence had reporting responsibilities under the Transport Act, the fundamental error in issuing the licence under the wrong name, or more correctly, the name of a business entity which had been dissolved could have been avoided if more attention had been paid during the processing of the licence application.

 

15.      Ms Fee has submitted that no routine checks on repute or finance, including checks on incorporation, were carried out under the Transport Act licensing regime unless an issue was brought to the Department’s attention by an enforcement body. It is clear, therefore, that the Department’s own internal error was never going to be uncovered by the lack its own internal checking processes.

 

16.      The error made in issuing a licence in the wrong name in January 2011 fed into a further mistake in issuing a further licence in the name of ‘Connolly Transport Limited’ on 18 December 2012. As was noted above, that licence was issued under the transitional provisions which operated to bridge between the 1967 Act licencing regime and the new regime provided for under the 2010 Act. Under the transitional arrangements, an existing operator’s licence, that is one granted under the 1967 Act and immediately in force before 1 July 2012 and which was due to expire on or after that date was to be regarded as a standard licence under the 2010 Act until the expiry date of that licence. No routine checks on establishment, repute, financial standing or professional standing were carried out and the issue of the further licence in the name of ‘Connolly Transport Limited was on a ‘routine’ basis.

 

17.      We can understand that the Department was implementing a new legislative scheme and was endeavouring to migrate extant licences with minimal effect on the operators. We also accept that the holder of the licence had reporting duties under the terms of the licence. Nonetheless, we are also concerned that the first error was not picked up at this second stage.  

 

18.      It was only when there was a request to specify a significant number of vehicles on the licence in the name of ‘Connolly Transport Limited’ that apprehensions were raised in the Department and relevant checks were made. The rub is that a good vehicles operator’s licence had been issued in the name of a business entity which did not exist having been dissolved before the first of two licences were issued in the name of that business entity. Mr Clifford Connolly has submitted, in his notice of appeal, that he had operated vehicles on ‘a’ licence, probably the licence issued in error, since 2011. Once the facts have been established, it is clear that Mr Connolly has been operating vehicles with a licence which is contrary to the intent and purpose of the statutory licensing regime. While accepting, once again, that the holder of a licence has reporting duties under the terms of a licence and the statutory scheme, we cannot ignore the errors which were made in the Department and which permitted the operation of the vehicles of continue. In this regard, we note the comments from Mr Clifford Connolly that he continued to correspond with the Department concerning the operation of vehicles on the probable mistaken assumption, on the part of both him and the Department that he was permitted to do so. 

 

19.      Nonetheless, while we would wish the Department to take cognisance of these additional comments, they make no difference to our decision. For the reasons which are set out above the appeal must be dismissed. 

 

 

Kenneth Mullan, Judge of the Upper Tribunal,

23 November 2015