Case No. UKUT-5-(AAC)

rthern IrelandBefore: Ms. L.J Clough: Deputy Judge of the Upper Tribunal Miss S.J Booth: Member of the Upper Tribunal Dr. P Mann: Member of the Upper TribunalAppellant: Kevin McCaul t/a McCaul Transport Reference No: ON1136588Heard at: Royal Courts of Justice, BelfastOn: 25 October 2022DECISION OF THE UPPER TRIBUNALON APPEAL from the DECISION of the DEPARTMENT FOR INFRASTRUCTURE, for Northern IrelandBefore: Ms. L.J Clough: Deputy Judge of the Upper Tribunal Miss S.J Booth: Member of the Upper Tribunal Dr. P Mann: Member of the Upper TribunalAppellant: Kevin McCaul t/a McCaul Transport Reference No: ON1136588Heard at: Royal Courts of Justice, BelfastOn: 25 October 2022DECISION OF THE UPPER TRIBUNALTHE APPEAL IS DISMISSED.Subject matter:Regulatory Infringements. Loss of good repute and professional competence. Revocation of operator’s licence. Disqualification from holding or applying for an operator’s licence. Loss of good repute as Transport Manager. Disqualification from acting as Transport Manager on an operator’s licence. Cases referred to Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI [2013] UKUT 618 AAC NT/2013/52 & 53; Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695. Clarke v Edinburgh & District Tramways Co Ltd [1919] UKHL 303; (1919) SC (HL) 35; 56 SLR 303. 2009/225 Priority Freight Ltd & Paul Williams. Bryan Haulage (No.2) (T2002/217). Thomas Muir Haulage Ltd v Secretary of State (1998 SLT 666). VST Building & Maintenance Ltd. [2014] 0101 (ACC). 2005/355 Danny W Poole International Limited. 2005/426 Oak Hall T/A Premier Transport Services. REASONS FOR DECISION1. This is an appeal to the Upper Tribunal brought by Mr Kevin McCaul t/a McCaul Transport (“the Appellant”), against a decision of the Department for Infrastructure for Northern Ireland (“the DfI”), dated 23 November 2021. The decision was to revoke the Goods Vehicle Operators Licence belonging to the Appellant, to disqualify him from holding an Operator’s Licence indefinitely, and to disqualify him from acting as a Transport Manager under any Operator’s Licence indefinitely. 2.The appeal was considered at an oral hearing, at the Tribunal Hearing Centre within the Royal Courts of Justice, Belfast, on 25 October 2022. Mr McCaul was in attendance and was represented by Mr. Finnegan, Barrister at Law. Background facts 3. The Appellant is the sole proprietor of McCaul Transport which undertakes general haulage. He has a Standard International Goods Vehicle Operator’s Licence (ON1136588) which was granted on 23 April 2015 and authorised the use of one vehicle. This was subsequently varied to authorise the use of two vehicles and two trailers. The Operating Centre was specified as 260 Ballygawley Road, Dungannon. The Appellant also acted as the Transport Manager for the operation.4.On 29 June 2018, the Transport Regulation Unit (“the TRU”) issued the Appellant with a Formal Warning that he had failed to adhere to the undertakings required under the Goods Vehicle (Licensing of Operators) Act (Northern Ireland) 2010. This was because a number of roadside checks by the Driver and Vehicle Agency (“the DVA”) had demonstrated regulatory infringements, such as exceeding the number of vehicles permitted on his licence, lack of correct tachograph recording, and no rear number plate being displayed on a vehicle. These had amounted to “Very Serious Infringements” under the DVA guidance. He also had a low first-time annual test pass rate on his vehicles. The Appellant was advised that further episodes of non-compliance would result in the warning being taken into account if considering whether action should be taken against his operator’s licence. 5. Despite this warning, the Department continued to receive notifications of further infringements relating to the Appellant’s operation. These notifications, recorded between May and September 2019, included infringements in relation to insufficient daily rest breaks for drivers, exceeding the time permitted before a rest, and the tachograph not functioning properly. The DVA were also informed of a further reduction in the first-time pass rate for the Appellant’s annual vehicle test inspections (dropping from 33% to 25%). As a result of the continued infringements, all of which resulted in fines being issued and most of which were noted as amounting to a “Very Serious Infringement”, a Compliance Audit was arranged to take place by the DVA on 4 November 2019. 6. A pre-audit discussion took place on 29 October 2019 with Mr P Davey from the DVA, the Appellant and his newly appointed transport advisor, Mr P McElduff, all in attendance. The Appellant, as Transport Manager, was provided with copies of the “Guide to Maintaining Roadworthiness”, the “Safe Operator’s Guide”, the “Rules on Drivers’ Hours” and “Tachographs on Goods Vehicles in Northern Ireland and Europe”. It was noted that there were no written contracts in place for third party maintenance providers, but ad hoc maintenance work was being carried out by two named maintenance providers. There was little evidence supporting processes for routine safety inspections, defect reporting or for the rectification of such defects. No records were kept of the 6-weekly safety checks which were to be undertaken by the operation. There were no procedures in place for daily walk-around checks or driver hours recording but instead it was noted that the Appellant simply trusted each individual driver to undertake this procedure as required by virtue of their CPC qualification and their driver knowledge. There were no systems in place for ensuring vehicle weights were correct. The establishment from which the business operated was found to be basic but sufficient, albeit there was no phone or laptop, and the Appellant, as Transport Manager, was not able to produce any of the records that are required to be kept by the operation. It was considered that the Transport Manager (the Appellant) was not engaging in his administrative and regulatory duties fully due to the lack of policies, procedures and checks in place to ensure the regulations were being complied with. 7.The audit then took place as planned on 4 November 2019. It was noted by the auditor, that the Appellant had employed the services of an industry advisor, Mr P McElduff, to assist with the co-ordination of his administrative responsibilities, and Mr McElduff was present at the audit. The auditor recorded that the Appellant had accepted that his business was poorly organised and that he was in need of assistance and advice to ensure that his operation remained licenced. All sections of the audit report (relating to maintenance, driver’s hours, weights, transport manager, establishment and “other”) were returned with a rating of “unsatisfactory” and the operator, the Appellant, was deemed “non-compliant”. These findings were reported to the TRU on 2 December 2019.8. The Appellant’s licence came up for renewal in early 2020. The DVA noted that the Appellant had applied for a renewal as a limited company, KMC Transport Ltd. He was asked to confirm what legal entity he was applying under, as a change of name on the licence would require a fresh application to be submitted rather than a simple renewal. The Appellant did not respond to the correspondence requesting confirmation on the name. On 2 April 2020, the DfI wrote to the Appellant advising, once again, that his operator’s licence is not transferable to a new business entity and unless the new entity had a valid licence, it would be unlawful for him to operate under his current licence, as a company. He was asked once again to confirm whether he was operating as a limited company or as sole trader. There was no response, but he then deleted the “Limited” trading name in his renewal request. He was reminded once again that he could only operate under his current Operator’s Licence as a sole trader, and not as a limited company. 9. Following this, further infringements continued to be notified to the DVA, including one “Most Serious Infringement”. These infringements occurred after the audit had taken place, one on 29 December 2019, some six weeks after the audit. Five of the infringements were recorded on 5 February 2021. It appeared that the Appellant had also failed to notify the Department of the infringements which he was obliged to report under the conditions of his Operator’s licence. 10. The DfI became concerned that the Appellant was unable to manage his operation in line with the regulations, as a result of the persistent infringements to the regulations. This was particularly so, given the small number of vehicles in his fleet (two) and the continued lower than average first-time pass rate for annual vehicle inspections. The Department also became concerned that the number and type of infringements were such that the Appellant, in his role as Transport Manager for McCaul Transport, was not ensuring continuous and effective management of the transport operation, as the role obliges him to. In addition, the Department queried the Appellant’s financial standing as there was a risk that the infringements may have occurred due to a lack of financial resources to maintain his vehicles and the operation correctly. A Public Inquiry (“PI”) was arranged to take place in order to address these concerns. 11.On 16 November 2021, the Public Inquiry took place in respect of the Appellant’s Operator’s Licence. The Appellant did not attend the Public Inquiry (“PI”). He did not excuse his attendance and there was no explanation put forward for his absence. He had not supplied the DfI with the documentation it had requested in advance of the PI, which was necessary for consideration at the PI. He was represented by Counsel, Mr Finnegan, who requested an adjournment of the Inquiry that day. He did so on two grounds. The first was that his instructing solicitors had received the PI bundle late and while the papers had been dealt with straight away by instructing Mr Finnegan to act, his directions had not been actioned as the instructing solicitor had been called to England due to a death in the family, thus unable to deal with his work. Secondly therefore, Mr Finnegan had not had the opportunity to take instructions from the Appellant or fully prepare this case. The Appellant was not present to furnish his instructions on the day of the PI either, hence Mr Finnegan found himself in a position where he was therefore unable to deal with the case effectively on his client’s behalf on that day. 12. The Deputy Presiding Officer, who was chairing the PI on behalf of the DfI, refused the adjournment and therefore proceeded with the PI in the absence of the Appellant. He later determined, by written notice, that the Appellant’s operating licence was revoked, that he was disqualified from holding an operator’s licence indefinitely, and he was disqualified indefinitely from acting as a Transport Manager on any operating licence. The DfI’s decision under appeal13. The Deputy Presiding Officer, on behalf of the Department for Infrastructure, prepared a written decision in this matter, which was signed on 23 November 2021. In the first instance, he refused the application for an adjournment. He reasoned firstly that there was pressure on hearing time for the TRU matters and the last-minute nature of this application to adjourn was wasting hearing time should the application be granted. Notwithstanding this issue, the Deputy Presiding Officer also considered the adjournment application to be without merit in any event. He reasoned that it was for the Appellant to furnish the papers on his solicitors as soon as they were received, in order to ensure his case was prepared in time for the PI some six weeks later, but he had failed to do so. He had been issued with a call up letter on 8 October 2021 but had not instructed his solicitor for a number of weeks thereafter. He had also been asked to provide documents for the PI no later than 29 October 2021, but these documents had not been provided and no explanation had been offered for that failure. Irrespective of the unfortunate circumstances that his solicitor found themselves in, which had taken them away from preparing the case, the Deputy Presiding Officer found that the Appellant had demonstrated no desire to progress matters or actively deal with his case by simply sending the papers to his solicitor and making no contact thereafter. He noted that the Appellant had not excused his attendance at the PI and stated that it was inappropriate for an operator to presume the outcome of an adjournment application by failing to attend in the manner that the Appellant had done. Taking these circumstances all together, he found this to amount to “a patent failure to cooperate with the TRU”. The Deputy Presiding Officer therefore determined it to be in the interests of fairness that the hearing proceeded on the day of the PI and refused the application to adjourn. 14. In respect of the substantive issues in question for the Public Inquiry, the Deputy Presiding Officer determined that the list of “very serious infringements” and “most serious infringements” from 2017 through to 2021 called into question the repute of the Operator and Transport Manager, who in this case were one and the same person, the Appellant. These infringements included: failure to observe the regulations on drivers’ hours and on keeping proper records of them; the “unsatisfactory” audit results for maintaining vehicles in a fit and serviceable condition; repeated defects in vehicles and a failure to keep proper maintenance and driver defect records; failing to notify the DVA of convictions and penalties as obliged to do so; failing to notify matters which affect good repute; and failing to notify a material change, namely the change in trading entity. These infringements, many of which called into question the issue of road safety for both drivers and other road users, brought the Deputy Presiding Officer to the conclusion that the appellant, as operator, no longer satisfied the regulatory requirement of being of good repute, and no longer satisfied the requirement of being professionally competent. There was also a concern that the licence was being utilised in the name of a separate legal entity, namely “KMC Transport Ltd”, which also breaches the regulations, and the Appellant did not cooperate with the DVA when they attempted to clarify the matter in April 2020 at the time of his licence renewal. The Deputy Presiding Officer had not been furnished with any information on the Appellant’s financial standing when requested, hence he determined that the Appellant, as Operator, no longer had sufficient financial standing to hold an operator’s licence. The appeal 15.The appellant lodged an appeal against the decision of the DfI with the Upper Tribunal on an official appeal form which was signed and dated on 2 November 2021. The Appellant cited three grounds of appeal [paraphrased]:(i)The adjournment decision was against the Appellant’s right to a fair trial, was unfair in light of “compelling reasons” to adjourn, and was irrational.(ii)The revocation of the operator’s licence was not given a fair opportunity to be considered in light of the lack of adjournment and in any event, revocation was disproportionate.(iii)The decision to disqualify the Appellant in both regards was again problematic in light of the lack of adjournment, and in any event was also disproportionate, indefinite disqualification being the most severe outcome available.16.The appellant applied for a stay of the decision pending appeal, and this was refused by the DfI on 23 December 2021. The request for a stay was renewed to the Upper Tribunal but was again refused by Upper Tribunal Judge Hemmingway on 8 February 2022. The appeal was heard in the Tribunal Hearing Centre of the Royal Courts of Justice in Belfast on 25 October 2022. The Approach of the Upper Tribunal17. As to the approach which the Upper Tribunal must take on an appeal such as this, it was said, in the case of Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI [2013] UKUT 618 AAC, NT/2013/52 & 53, at paragraph 8:“There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act. Leave to appeal is not required. At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law. However, it is important to remember that the appeal is not the equivalent of a Crown Court hearing or 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.’ 18. At paragraph 4, the Upper Tribunal 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.”19. The task of the Upper Tribunal, therefore, when considering an appeal from a decision of the DfI in Northern Ireland, is to review the information which was before the Department along with its decision based on that information. The Upper Tribunal will only allow an appeal if the appellant has shown that “the process of reasoning and the application of the relevant law require the tribunal to take a different view” (Bradley Fold Travel Limited and Peter Wright v. Secretary of State for Transport [2010] EWCA Civ 695, [2011] R.T.R. 13, at paragraphs 30-40). In essence therefore the approach of the Upper Tribunal is as stated by Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36-37, that an appellate court should only intervene if it is satisfied that the judge (in this case, the decision of the Deputy Presiding Officer on behalf of the DfI) was “plainly wrong”.