Case No. UKUT-5-(AAC)

25. In relation to the decision to disqualify the Appellant from holding an operator’s licence, and from acting as a Transport Manager under any operator’s licence, Mr Finnegan raised two grounds. In the first instance, he submitted that the “indefinite” period of disqualification was disproportionate, and the aims of the operator licensing regime could have been met with a much lower disqualification period. Secondly, he submitted that the disqualification period imposed, appeared to have been set to penalise the Appellant for not attending the PI (2005/355 Danny W Poole International Limited at [8]: 2005/426 Oak Hall t/a Premier Transport Services at [8]). He further submits that the Deputy Presiding Officer should have allowed time for submissions to have been made on the issue of disqualification. 26. Section 25 of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010 (“the 2010 Act”) gives the DfI the discretion to disqualify “any person who was the holder of a licence” from holding or obtaining a licence either indefinitely or for such period as the Department thinks fit. The power can only be exercised after a direction that the licence is to be revoked under s.23(1) or 24(1) of the 2010 Act. The power to disqualify should be exercised so as “to achieve the objectives of the system” depending on the seriousness of the case before them, rather than as punishment for regulatory infringements (Thomas Muir Haulage Ltd v Secretary of State 1998 SLT 666). It is therefore a matter of fact and degree for the Department to determine according to the facts of the case before it. The case of Bryan Haulage (No.2) (T2002/217) requires consideration of the question, “Is the conduct such that the operator ought to be put out of business?” A preliminary question to this arises from the case of 2009/225 Priority Freight Ltd & Paul Williams i.e., “How likely is it that this operator will, in the future, operate in compliance with the operator’s licensing regime?” The less likely the operator is considered to be able to comply with the regulations in the future, the more likely a revocation and disqualification are to follow. 27. The Deputy Presiding Officer set out his reasons for revocation of the Appellant’s operator’s licence and disqualification from thereafter holding or applying for one, at paragraphs 23-25 of his decision. In making his decision, he had regard to Article 6 of Regulation (EU) 1071/2009, Regulation (EU) 2016/403 and the DfI’s “Practice Guidance Documents No.9 – The Principles of Decision Making and the Concept of Proportionality”, in particular Annex 4. He considered the nature and frequency of the Appellant’s regulatory infringements and found them to meet the “severe to serious” category of operator conduct, as outlined by virtue of Regulation (EU) 2016/403, and as a consequence, he was obliged to consider revocation of the operator’s licence and disqualification. Given the “number, gravity and repetition of MSIs” (most serious infringements) he found it to be proportionate that the Appellant should be considered to have lost his good repute as an operator. 28. The Deputy Presiding Officer addressed the “Priority Freight question (2009/225 Priority Freight Ltd & Paul Williams). Given the nature and consistency of the regulatory infringements over a considerable period, some of which followed an “unsatisfactory” audit during the infringements, coupled with the failure to cooperate with the PI process and the failure to attend the PI in order to address the DfI’s concerns about his operation, the Deputy Presiding Officer determined that the Appellant was not likely to comply with the licensing regime in the future. He also asked the Bryan Haulage (No.2) (T2002/217) question namely, “Is the conduct such that the operator ought to be put out of business?” He determined that the answer to this was “yes”, finding that the revocation of the Appellant’s licence, a discretionary power available to him under s.23 and/or s.24 of the 2010 Act, was necessary to protect road safety and to provide a level playing field for compliant operators. The Appellant’s lack of financial information in order to satisfy the requirement of continued financial standing, his loss of good repute and his lack of professional competence in light of the continued infringements, were further reasons for revocation of the operator’s licence under s.24 of the 2010 Act. The Deputy Presiding Officer then went on to disqualify the Appellant for an indefinite period from holding an operator’s licence and from applying to hold one in the future. 29. In addition, the infringements and failures (noted at paragraph 14) were found to reflect poorly on the conduct of the Transport Manager, who is also the Appellant in this case. The 2019 audit found the Appellant to be “unsatisfactory” as a Transport Manager and not fully committed to his responsibilities. The Deputy Presiding Officer found no evidence of improvement in management of the operation since that time. The Appellant’s failure to cooperate with the DfI and to provide the requested documentation for the PI, records which should have been readily available to him in his role as Transport Manager, added to the reasons for finally determining him to have lost his repute as TM. Given the nature and consistency of the infringements, the Deputy Presiding Officer found that the Appellant had not secured continuous and effective management of McCaul Transport as an operation, as is required by the regulations. Having lost his good repute as Transport Manager, the Appellant was disqualified indefinitely from acting in the capacity of Transport Manager on any operator’s licence thereafter under Goods Vehicle (Qualification of Operators) Regulations (NI) 2012 which provides under Regulation 15(2) that if the Department determines that a Transport Manager is no longer of good repute, it must order that person to be disqualified (either indefinitely or for such period as the Department thinks fit) from acting as a transport manager. All orders for revocation and disqualification were set to come into effect on 31 December 2021 in order to allow for the orderly closure of the business. 30. Mr Finnegan, on behalf of the Appellant, asked that the Deputy Presiding Officer, upon refusing the application to adjourn the PI, to delay his decision for written submissions to be made on the issue of revocation and disqualification. The Deputy Presiding also refused this request. Mr Finnegan submitted that he ought to have allowed a period of “a few days” and that his failure to do so amounts to a substantially unfair decision as there was no pressing need to immediately disqualify the Appellant, and in this case, a delay to receive submissions on the issue of disqualification would have been sensible (VST Building & Maintenance Ltd. [2014] 0101 (ACC)). In relation to this submission, we agree that the Deputy Presiding Officer could well have allowed a matter of “a few days” to allow for submissions to be presented in writing. However, there was no suggestion that Mr Finnegan had the missing PI documentation from the Appellant, hence he was without the full bundle of papers. He was still without responses to his directions from his Instructing Solicitor, and was still without full instructions from the Appellant, who had not attended the PI when that would have been a perfect opportunity to provide such instructions. As a result, while the Deputy Presiding Officer’s decision could have been delayed for “a few days” in order for submissions to be made, it is highly unlikely that the preparation and service of written submissions could actually have been achieved within the “few days” suggested by Mr Finnegan. Consequently, the Deputy Presiding Officer’s decision not to await submissions is unlikely to have made any difference to the outcome of this case. While we have some sympathy for this submission, it is also bound to fail as a result of the general lack of cooperation on the part of the Appellant.31. Overall, we cannot disagree with the conclusions of the Deputy Presiding Officer in this case. The regulatory regime under the Goods Vehicles (Licencing of Operators) Act (Northern Ireland) 2010 is a detailed one, in place to ensure safety and fair competition. The regime calls for precision and thoroughness in order to satisfy the requirements within it. The Appellant did not act with any precision to ensure the regime was complied with, and when infringements were reported, there was no obvious effort to avoid them being repeated. It was therefore difficult for the Deputy Presiding Officer to find that the Appellant would comply with the regulatory regime in the future. This was exacerbated by the lack of cooperation with the PI process, in failing to provide the requested documentation which could have assisted his case, and by failing to attend the PI, with no reason given as to that failure. There was no evidence before the Deputy Presiding Officer to suggest that positive action had been taken and had resulted in an improvement in the operation, which might have swayed the decision in his favour (2009/225 Priority Freight Ltd & Paul Williams). 32.Consequently, if it is not likely the operator will comply with the licencing regime, and no evidence to suggest that positive action had been taken to ensure future compliance, there is no reason to allow an operator to retain his operator’s licence and no reason to permit him to hold a licence again. Equally, having lost his repute as Transport Manager, there is no reason to allow him to retain that position or to allow him to act as Transport Manager in the future, especially given that the role of a Transport Manager is to ensure that the operation complies with the licensing regime. There was no suggestion that the Appellant received a disqualification simply because he did not attend the PI. His non-attendance was simply one of a number of circumstances which, when taken together, resulted in the findings and eventual outcome of this case. 33. Overall, we find that the decisions of the Deputy Presiding Officer, acting on behalf of the Department for Infrastructure of Northern Ireland, to proceed in the absence of the Appellant, to revoke his licence and thereafter to disqualify him indefinitely from either holding an operator’s licence or from acting as Transport Manager, were not “plainly wrong”. We therefore dismiss this appeal.