Case No. UKUT-00272-(AAC)

on behalf of the Department For Infrastructure, Northern IrelandBefore: Ms. L J Clough: Deputy Judge of the Upper Tribunal Dr. P Mann: Member of the Upper Tribunal Mr. A Guest: Member of the Upper TribunalAppellant: Andrew Murphy Transport Ltd Reference No: 21DET006 SV57EZOHeard at: Royal Courts of Justice, BelfastOn: 22 September 2022DECISION OF THE UPPER TRIBUNALON APPEAL from the DECISION of the HEAD OF THE TRANSPORT REGULATION UNIT on behalf of the Department For Infrastructure, Northern IrelandBefore: Ms. L J Clough: Deputy Judge of the Upper Tribunal Dr. P Mann: Member of the Upper Tribunal Mr. A Guest: Member of the Upper TribunalAppellant: Andrew Murphy Transport Ltd Reference No: 21DET006 SV57EZOHeard at: Royal Courts of Justice, BelfastOn: 22 September 2022DECISION OF THE UPPER TRIBUNALTHE APPEAL IS DISMISSED.Subject matter:Use of vehicle when not on operator’s licence; Impounding of vehicle; Grounds for Detention; Grounds for release of detained vehicles; ownership of vehicle; user of vehicle; knowledge of useCases 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. Clayton Car Sales Ltd 2012/053; T/2014/03 Sarah BoyesREASONS FOR DECISION1. This is an appeal to the Upper Tribunal brought by Mr Andrew Murphy t/a Andrew Murphy Transport Ltd (“the Appellant”), against a decision of the Head of the Transport Regulation Unit (“the TRU”) within the Department for Infrastructure for Northern Ireland (“the DfI”), dated 7 December 2021. The decision was to refuse an application for the return of a vehicle (registration SV57 EZO) and trailer (ID number NI/043661/04) detained under Regulation 3 of the Goods Vehicles (Enforcement Powers) Regulations (Northern Ireland) 2012 (“the Enforcement Regulations 2012”). 2.The appeal was considered at a hearing, at the Tribunal Hearing Centre within the Royal Courts of Justice, Belfast, on 22 September 2022. Mr Andrew Murphy attended and was represented by Ms J. Price, Barrister at Law. The Respondent was also in attendance and was represented by Ms A. Jones, Barrister at Law. 3. At the outset of the hearing, Ms Price applied to amend the appellant in the proceedings from the sole director of the company, Mr Andrew Murphy, who had completed all the appeal and related documents in a personal capacity, to that of his company, Andrew Murphy Transport Ltd. This was agreed by the Tribunal and therefore the Appellant is noted and recorded hereinafter to be “Andrew Murphy Transport Ltd”.The facts 4. At 0205hrs on 16th September 2021, a Scania tractor unit registration SV57 EZO (“the vehicle”), along with a Muldoon trailer ID number NI/043661/04 (“the trailer”) was observed by Vehicle Examiner Toman at Redlands Road, Larne. Checks on the vehicle found that it was not authorised on any Northern Ireland Operator’s Licence hence his colleagues stopped the vehicle to make further enquiries. The driver of the vehicle identified himself as Mr Caolan Gormley, who stated that the vehicle was owned by Mr Andrew Murphy, and he was in the process of transporting goods from Manchester, England to Drogheda, Republic of Ireland. Mr Gormley produced documentation relating to the load being transported by the vehicle and trailer. He indicated that he was employed by Mr Murphy to drive the vehicle. He produced no Operator’s Licence either relating to himself or to the vehicle, nor did he produce any documentation confirming his employment status. Investigations confirmed that the vehicle fell under the regulatory regime of the Goods Vehicle (Licencing of Operators) Act (Northern Ireland) 2010 (“the 2010 Act”), it being a heavy goods vehicle over 3,500kg and carrying goods for hire or reward. The driver of the vehicle, Mr Gormley, was found to be the director of CDG Transport Ltd. Neither Mr Gormley, nor his company, CDG Transport Ltd, hold a valid Operator’s Licence in NI. As the driver of the vehicle had failed to produce a valid Operator’s Licence to confirm the lawful use of the vehicle and had failed to satisfy Vehicle Examiner Toman as to the “user” of the vehicle, it was detained under the powers contained within s.1 of the 2010 Act and Regulation 3 of the Enforcement Regulations 2012. 5.In accordance with Regulation 8 of the Enforcement Regulations 2012, the Driver and Vehicle Agency (“the DVA”) published a notice in the Belfast Gazette on 8 October 2021, to report the detention of the vehicle and request that any person seeking claim to the vehicle and/or trailer should do so in writing, on the online claim form outlined within the notice, before 29 October 2021. Mr Andrew Murphy completed the online claim form (dated 21 October 2021) stating that he was the owner of the vehicle which was both “roadworthy” and “fully insured” (page 7 of the appeal bundle). He stated that there was space on his Operator’s Licence ON2000119 for the vehicle but due to his Transport Manager being unwell, the vehicle had not been recorded on it. However, as soon as he became aware that the vehicle was not on his licence, by virtue of the fact of its detention, he had immediately put it on his Operator’s Licence through the online portal. 6.Mr Murphy confirmed that he did not wish for his application for return of the vehicle to be considered at a hearing therefore the Head of the TRU, Mr D Mullan, requested skeleton arguments from the legal representatives of both sides in order to determine the matter on the papers. A decision was made by Mr Mullan on 7 December 2021 that the application for return of the vehicle was refused. No application had been received in respect of the trailer therefore his decision was that both vehicle and trailer should be disposed of accordingly. The appeal 7.The appellant lodged an appeal against the decision of the Head of the TRU with the Upper Tribunal on an official appeal form signed and dated 6 January 2022. The grounds of appeal were stated as follows (page 133):“1.The Appellant in the application for return of the tractor unit has clearly demonstrated ownership of the tractor unit.2.The appellant holds a valid operator’s licence.3.The appellant did not know the tractor unit was being used in contravention of the regulations.4.The detention of the tractor unit has caused hardship to the appellant.5.The decision refusing the return of the tractor unit is wrong in law.”8.The appellant applied for a stay of the decision pending appeal, and this was granted by the Head of the TRU on 17 January 2022. The appeal was heard in the Royal Courts of Justice in Belfast on 22 September 2022. The Approach of the Upper Tribunal9.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.’ 10.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.”11. The task of the Upper Tribunal, therefore, when considering an appeal from a decision of the Head of the TRU in Northern Ireland, is to review the material which was before them. 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 Head of the Transport Regulations Unit) was “plainly wrong”.