Case No. UKUT-37-(AAC)

Was the vehicle lawfully detained?23.The first issue to be determined by the Presiding Officer in this case was the question of whether the vehicle was lawfully detained in contravention of s.1 of the 2010 Act. He reached his decision by weighing the undisputed evidence before him. In summary the evidence was as follows. The vehicle in question was a right-hand drive lorry, with UK coloured registration plate and lights dipped in the direction of UK vehicles, suggestive of the fact that it was not used in Europe despite its Bulgarian registration. It was listed on DVA records as having been tested in Northern Ireland in 2018, with tachograph calibrations having taken place in Northern Ireland on 1 July 2019 (Toal Truck Services) and on 4 July 2017 (Granco Ltd), and a puncture repair having taken place in Northern Ireland on 18 June 2021. The tachograph data confirmed the vehicle had started and finished journeys in either the UK or Ireland from 26 May 2021, with this data having been locked in by Yellowford Transport, a Northern Ireland based company. The driver indicated that he was employed by Marcus Morgan, a resident of Northern Ireland with a UK contact number (his son) and who had instructed the driver to carry out the driving work on behalf of Lavery Transport, a Northern Ireland based company. The driver was wearing a Yellowford Transport jacket (Northern Ireland based) and confirmed he had never been to Bulgaria in the vehicle. The tachograph confirmed he had been the sole driver of the vehicle since 14 June 2021. He confirmed that the vehicle was either left at the premises of Lavery Transport (another NI based company) or at his own home address overnight (in Northern Ireland). It was an agreed fact that the vehicle was specified on a Bulgarian Community Licence in the name of Derrymorgan Transport Ltd and although the vehicle had been insured in Bulgaria from 24 August 2021, tachograph records demonstrated that it had never driven in Bulgaria since 26 May 2021. The vehicle had never been tested in Bulgaria, nor had it been taxed in Bulgaria. The Bulgarian telephone number for Derrymorgan Transport Ltd was unobtainable. This, in the view of the Presiding Officer, demonstrated on the balance of probabilities, that this was not a vehicle used in Bulgaria, but rather a vehicle that was used regularly in Northern Ireland by a Northern Ireland based operator(s). In the absence of the vehicle being listed on any Northern Ireland Operator’s Licence, the Presiding Officer determined that it was being used in contravention of s.1 of the 2010 Act. 24.It was submitted by the Appellant, that the Licensing of Operators and International Road Haulage (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/708) amended the 2010 Act so as to permit hauliers established in a European member state to carry goods for hire or reward overseas without a UK/NI operator’s licence. This was considered in more detail during the hearing and it was agreed by all parties that this was correct. It was agreed that the purported haulier was conducting the carriage of goods for hire or reward and that it was a goods vehicle. With this in mind, the key question was whether the haulier purporting to be carrying goods, namely Derrymorgan Transport Ltd, was a haulier established in a member state, which would entitle it to drive the vehicle without a NI operator’s licence while in Northern Ireland.25.Looking again at the undisputed evidence set out at paragraph 23 of this decision and bearing in mind that there was no fresh evidence put before either the Presiding Officer or the Upper Tribunal to contradict these facts, the decision of the Presiding Officer cannot be challenged. All the evidence set out above indicates that the vehicle operator was established in Northern Ireland and not in another member state. The links to Bulgaria, namely the vehicle registration plate and its presence on a Bulgarian Community Licence, are facts which, in the absence of any supporting evidence, could be considered to be a cover to give the impression that this is a vehicle used by a haulier based in a member state. All the evidence suggests that this is a UK/NI vehicle which was being used across Ireland and the UK, in which case the 2010 Act applies. It was also agreed that this vehicle is not listed on a Northern Ireland Operator’s Licence therefore it was being used in contravention of s.1 of the 2010 Act and consequently the DVA were correct to detain it. We are therefore in agreement with the decision of the Presiding Officer and find no error of law in his approach to this aspect of his decision.Ownership of the vehicle26.The second question to be determined by the Presiding Officer, was whether Derrymorgan Transport Ltd of Varna Bulgaria was the “owner” of the lawfully detained vehicle, as only the lawful owner is entitled to have the vehicle returned to them under Regulation 4 and 9 of the 2012 Regulations. The burden is on the applicant seeking return of the vehicle, in this case Derrymorgan Transport Ltd, to satisfy the DVA on the balance of probabilities, that it is the owner of the vehicle. Thereafter, the owner must satisfy the DVA that one of the conditions set out in Regulation 4 of the 2012 Regulations is satisfied so as to secure the return of the vehicle.27.The Presiding Officer was guided by the undisputed facts in this case, as summarised in paragraph 23 above, to determine ownership. All the facts pointed to one of a number of Northern Ireland based operations using the vehicle, and all doing so within the Republic of Ireland or Northern Ireland. It was highlighted by the Appellant that the vehicle was specified on a Bulgarian Community Licence in the name of Derrymorgan Transport Ltd, a Bulgarian registered company and that this was evidence that Derrymorgan Transport Ltd was the owner of the vehicle. The Presiding Officer reasoned that this was not conclusive evidence of ownership, but rather evidence merely of possession. It was submitted by the Appellant that there was no commercial gain to be had in anyone other than Derrymorgan Transport Ltd, the listed user on the Bulgarian Community Licence, to be using the vehicle. This matter wasn’t directly addressed in the Presiding Officer’s decision however, it is in the interests of an operator who seeks to avoid the financial and administrative requirements of the Regulatory regime in UK/NI, to pretend that this was a Bulgarian vehicle carrying out international transport, so this argument carries little weight. 28.In light of the evidence listed above, all of which indicated a Northern Ireland based vehicle under the control of Northern Ireland based operators/companies, the Presiding Officer determined that the owner was more likely to be Marcus Morgan personally or an entity within Marcus Morgan’s control. He was not satisfied on the balance of probabilities that Derrymorgan Transport Ltd of Varna, Bulgaria was the owner of the vehicle. With this decision we cannot disagree. There is evidence indicative of a number of entities who may be the owner of the vehicle but there is insufficient evidence to demonstrate on the balance of probabilities, in other words, that it is more likely than not, that any one of the entities connected to this vehicle, including Derrymorgan Transport Ltd of Varna, Bulgaria, is the owner of the vehicle. The Presiding Officer reached his decision logically and lawfully hence there is no error in law in this aspect of the appeal. As only the owner can apply successfully for the return of a detained vehicle, and as it was lawfully determined that Derrymorgan Transport Ltd was not the owner of the vehicle, the application for return of the vehicle was bound to fail. We find that the decision of the Presiding Officer was not “plainly” wrong.Unfairness29.The Appellant also raised, on appeal, the issue of unfairness. It was submitted that the identity of the observers in the detention hearing caused the Appellant’s solicitor to advise that should he give evidence, this may have consequences for his company and himself personally. It is further submitted that as a result of Marcus Morgan, as Director of Derrymorgan Transport Ltd, not giving evidence during the hearing, unfair inferences were drawn by the Presiding Officer when making his decision in this case. The Appellant cites as evidence of this, paragraph 23 of the Presiding Officer’s written decision which states, “I place some weight on the fact that the Appellant’s Director chose not to give evidence and answer questions before me”. 30.As to this submission, it is noted that the observers in the hearing room were the usual observers who could be expected, and indeed entitled to attend. There was no independent member of the public or press observing the hearing, for example. Appellant did not object to observers in the hearing room, nor did he attempt to find out who they were. This was perfectly within his right. Equally, he was given the opportunity to give evidence at the hearing, and it was his choice as to whether he accepted that opportunity or not. Giving evidence would have provided him with the opportunity to explain the applicant company’s side of the matter which in turn, would have provided more information for the Presiding Officer to work with in making his decision. Mr Morgan chose not to give evidence in support of the case and offered no explanation as to why he chose not to give evidence. Only the Appellant and his solicitor know the reasons why he considered there a risk of consequences against his company or himself personally if he chose to speak. He was of course entitled to choose not to speak. In the absence of any objection to the apparent block in his ability to give evidence, there can be no criticism made of this procedurally. Equally, there can be no criticism made of any inference drawn by the Presiding Officer in making his decision, as he is entitled to draw such inferences as appear proper from the applicant company Director’s silence. It has long been a common law principle of evidence within civil proceedings that an inference may be drawn from a party’s failure to respond to an allegation or from a party’s failure to give evidence. Whether it is appropriate to draw an inference and if so, the nature of the inference that can be drawn, will depend upon the facts of the case at hand (Shawe-Lincoln v Dr Arul Chezhayan Neelakandan [2012] EWHC 1150). A court may draw inferences from a party’s failure to rebut the other party’s evidence in relation to matters likely to be within the knowledge of the silent party, provided there is a reasonable basis to draw such a conclusion (Petrodel Resources Limited v Prest [2013] UKSC 34; [2013] 2 AC 415). In this case, it was within the remit of the applicant company director’s knowledge to be in a position rebut the evidence of the DVA, and to provide proof that not only was this the applicant’s vehicle, but that it was being used by a legitimate Bulgarian haulage business. The Presiding Officer was therefore entitled to draw inferences from Mr Morgan’s silence, and for such inferences to be added to the evidence to be assessed in determining this matter. 31.Irrespective of whether an inference was drawn or not, there was such a weight of uncontradicted factual evidence before the Presiding Officer, that any inferences drawn from the Mr Morgan’s decision not to give evidence is inconsequential to the outcome of this case. Without any inferences, we take the view that the Presiding Officer would have been entitled to reach the same conclusion. 32.Finally, it was submitted that the Presiding Officer strayed into matters of poor operating practice which indicated a deliberate or pre-conceived bias on the part of the Presiding Officer in reaching his decision. It is noted that the Presiding Officer questioned whether the Appellant company paid excise duty in a country other than NI/UK given that it had an operator’s licence there and had insured the vehicle in Bulgaria. The Appellant’s solicitor objected to this question during the virtual hearing, arguing that this was an issue regarding fitness to hold a licence and thus irrelevant to the issues in that particular hearing. The Presiding Officer did not pursue this line of questioning and comments in his written decision (at paragraph 31) that he did not therefore go on to ask about why an operator would allow a vehicle to be parked at a home address rather than at an official operating centre. The Presiding Officer therefore stopped short of straying into irrelevant issues such as fitness to hold a licence. He did however comment (at paragraph 32) that the evidence “overwhelmingly pointed to the detained vehicle being based in and operated in Northern Ireland and not Bulgaria. The issues relating to bad operating practice reflect the fact that Marcus Morgan has chosen to attempt to circumvent the need for an operator’s licence in Northern Ireland”. It is this latter point with which we agree. The matters regarding holding a licence in Bulgaria, insuring a vehicle in Bulgaria and whether excise duty is paid in that country, would all provide some evidence that this was a legitimate operation in Bulgaria. However, in the absence of that business related evidence, the Presiding Officer was left again in the position that there were few links to Bulgaria thus supporting the evidence that this was a Northern Ireland operator “flagging out”. Once again, the extent of the evidence before the Presiding Officer was sufficient on its own merits, to entitle him to reach the decision he did, and these comments, irrespective of whether he strayed into other areas, were also pertinent towards the issue of whether this was a legitimate Bulgarian operation. The Presiding Officer correctly adapted his approach and reached his decision in a procedurally fair manner. We do not find any error of law in this approach.