SCA Haulage Ltd v Head of the Transport Regulation Unit

The Appellant is the holder of a Standard International Operator's Licence authorising the use of 5 vehicles and 1 trailer. Mr Sean Patrick Woods is the sole director.

In correspondence dated 9 March 2022 an officer in the TRU informed the Appellant that the Department was considering making a direction to revoke the operator’s licence on a number of grounds.

In correspondence dated 28 March 2022, the Appellant made representations on the evidential basis for the proposal to revoke the operator’s licence and made a request for the case to be listed for a Public Inquiry of the points which had been made and not considered.

In email correspondence dated 5 September 2022 the Department wrote to the operator with a direction for the supply of records for assessment ahead of the Public Inquiry. These records, to be provided not later than 30 September 2022, related to financial standing, maintenance, drivers' hours, internal procedures and the authorisation to use the nominated operating centres.

The Department has asserted that no response was received, and no records were provided by the date specified.

The Department has stated that a ‘calling in letter’ was issued to the Appellant on 3 October 2022. Further, the Department has asserted that this letter ‘again … requested evidence of systems and procedures, and any representations, to be provided to the Department not later than 17 October 2022. As before no records were received in advance of the date specified.’

The Public Inquiry took place on 24 October 2022. Mr Woods was present and was represented by Mr Manley. We return below to aspects of what transpired at the Public Inquiry.

On 27 October 2022 the Head of the TRU issued his decision as summarised in paragraph 1 above.

An appeal against the decision of 27 October 2022 was subsequently received in the office of Administrative Appeals Chamber (AAC) of the Upper Tribunal.

Included in the notice of appeal was an application for a stay of the effect of the decision of 27 October 2022. In a determination dated 28 November 2022 the application for a stay was refused by the Head of the TRU.

The application for a stay was renewed before the Upper Tribunal. In a determination dated 7 December 2022 the further application was refused by Upper Tribunal Judge Hemingway.

“Standard” and “restricted” licences

On an application for a restricted licence the Department must consider—

On an application for a restricted licence the Department must consider—

if the Department thinks fit, whether the requirement of section 12D is satisfied.

Subsections (1) and (2) are subject to section 10 (publication of application), if applicable, and 47(2) (payment of application fee).

In considering whether any of the requirements of sections 12A to 12D are satisfied, the Department must have regard to any objection duly made under section 11(1)(a) in respect of the application.

If the Department determines that any of the requirements that it has taken into consideration in accordance with subsection (1) or (2) are not satisfied, it must refuse the application.

In any other case the Department must grant the application, unless either of the following provisions applies—

in section 12B(1), in the words before paragraph (a), before “requirement of” there were inserted “first”, and

after section 12B(1) there were inserted—

The second requirement of this section is that the applicant—

if an individual, is professionally competent (as determined in such manner as may be set out in regulations made for the purposes of section 12A(3)(a)(i)), or

if not an individual, or an individual who is not professionally competent, complies with section 12A(3)(b) as if the applicant were an applicant for a standard licence who is not an individual or is an individual who is not professionally competent.”

17.— Publication of notice of applications for variation of heavy goods vehicle licences in any locality affected

Subject to subsection (4), in relation to a heavy goods vehicle licence, the Department shall refuse an application for any of the directions mentioned in subsection (2) without considering the merits unless it is satisfied that subsection (3) has been complied with in respect of each locality affected by the application.

any direction under section 16(1)(a) that a maximum number of heavy goods vehicles specified in a licence under section 5 be increased;

any direction under section 16(1)(c) or (e) that has the effect of authorising the use of a heavy goods vehicle;

any direction under section 16(1)(g) that a new place be specified in a heavy goods vehicle licence as an operating centre of the licence-holder; and

any direction under section 16(1)(h) or (i) which might result in a material change in the use of any operating centre of the licence-holder.

This subsection has been complied with in respect of a locality affected by an application for the variation of a heavy goods vehicle licence if, within the period beginning 21 days before the date on which the application is made and ending 21 days after that date, notice of the application in such form and containing such information as may be prescribed has been published in one or more local newspapers circulating in the locality.

it is satisfied as mentioned in subsection (1), except that the form or contents of the notice of application as published in any newspaper did not comply with the prescribed requirements; and

it is satisfied that no person's interests are likely to have been prejudiced by the failure to comply with those requirements.

For the purposes of this section a locality is affected by an application for the variation of a heavy goods vehicle licence if—

23.— Revocation, suspension and curtailment of operators' licences

Subject to the following provisions of this section and the provisions of section 26, the Department may direct that an operator's licence be revoked, suspended or curtailed (within the meaning given in subsection (9)) for any reasonable cause including any of the following—

in the case of a heavy goods vehicle licence, that a place has, at a time when it was not specified in the licence as an operating centre of the licence-holder, been used as an operating centre for heavy goods vehicles authorised to be used under the licence;

that the licence-holder has contravened any condition attached to the licence;

that during the 5 years ending with the date on which the direction is given there has occurred a prescribed event affecting information required to be given to the Department under section 7 or 8;

that the licence-holder made, or procured to be made, for the purposes of—

the licence-holder's application for the licence,

an application for the variation of the licence, or

that the licence-holder, being an individual, has been adjudged bankrupt or has become the subject of a bankruptcy restrictions order or a debt relief order has been made in respect of him or he has become the subject of a debt relief restrictions order or, being a company, has gone into liquidation, other than voluntary liquidation for the purposes of reconstruction;

that since the licence was issued or varied there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue or variation or the licence;

that the licence is liable to revocation, suspension or curtailment by virtue of a direction under section 25(3).

24.— Revocation of standard licences

The Department shall direct that a standard licence be revoked if at any time it appears to the Department that

‘Some General Principles

An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the Head of the TRU who takes them]. The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act. The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and Transport Managers.

The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded. In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence. It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended. It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent. The underlining, in each case is ours. First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion. Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear.

The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.

It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.’

‘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.’

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.’

‘S2: The other point to make upfront is that this is a hearing at your request, following a letter proposing to revoke the licence; that was back on the 20th March. I need to also bring to the attention the fact that there was a letter issued on 5th September asking for information to be provided by the 20th September; we didn’t receive a response to that letter, that’s a concern that I’ll want to discuss. And then furthermore, there was a callup letter but then that had asked for any other information or any information to support your case to be provided by the 17th October; and again, no response to that. Before we proceed in terms of outlining my main concerns, can I get an understanding of why these important documents from the Department haven’t been responded to.

S3: So can I answer this question?

S2: No. If you don’t mind, I’ll ask-

S5: I got that letter late you see.

S2: You got it late?

S5: Yeah.

S2: You got it late in what sense, sorry?

S5: In came late in the post … like not late in the post, someone else must have signed for it.

S2: Someone else at your business?

S5: No, in the yard.

S2: So when did you receive it?

S5: I received it last month.

S2: So this is the 5th September letter you received last month?

S5: Yeah.

S2: Okay. So that’s still in September, so how come we still haven’t received a response?

S5: It’s October.

S2: So this is October; you received it last month?

S5: Yeah.

S3: Mr Mulhern, if I could just interject at this point, I appreciate obviously it’s for the Operator to respond to that particular question but in response to the letter that we received in September, obviously the company and the Transport Manager had to seek legal advice in relation to it. We have obviously over-shot that particular period in which to find that documentation and appreciate we are to be criticised and rightly so for that. Subsequent to that, since Friday evening past, my office undertaken to forward documentation in soft copy in response to many of the issues that were raised in the September letter; I appreciate that was dropped on you guys very last minute and no doubt you haven’t had an opportunity to even open it or indeed to consider it, but I just thought for the point of the record that information has been made available.

S2: Sorry, give me that again, sorry. What’s the concern, the date of the call-up letter?

S3: The call-up letter received by Registered Post is dated the 3rd October 2022. Now the point I would make is that in order to prepare for the inquiry, the period of time in which to provide is a minimum period of 21 days. My submission on the point is very simply that obviously there won’t have been enough time to prepare adequately, now that doesn’t … it’s by the by in terms of the information that has been requested by the Department, obviously there was a deadline proposed, they had advanced notice of that in the September letter, but it’s merely just a point that the Operator, Transport Manager and the solicitor are here today to deal with the issues they’ve had, and it’s really just to put the point on the record Mr Mulhern, essentially we wish to engage, this is really a means of engaging with the Department on all of the issues that you have and all the concerns that you have, and it was my advice to them that they sought an application in the circumstances for an adjournment – we didn’t wish to do that, we wanted to come and deal with the inquiry.

S2: Can I just clarify because I think it’s an important point going forward that if the grounds are there and I want to have a look at the call-up letter just to check the dates and you think there’s an opportunity to call for an adjournment, I’m happy to hear that. What I will say is what I don’t want to be done is be bound by-

S3: No.

S2: -if things don’t go a certain way I don’t then want to have gone through this process. So, what you’re saying is there’s an issue, there’s a question mark; you’re not asking for an adjournment, we’ll proceed on the basis, okay. Noted, thanks and I’ll certainly look at the dates.

S: 21 days was provided which is the statutory period.

S2: That’s I think the point Mr Manley is suggesting is that the 21 days hadn’t been reached.

S3: The letter is dated 3rd October and obviously we’re on the 24th which is the 21st day. My point is very simply that the letter wouldn’t have been received on time during that 21 day period. The point Mr Mulhern you’re making is look-

S2: Are they (inaudible; over-talking 00:09:09)?

S3: I don’t believe it has. But I take your point; if it’s an issue of an adjournment we’re suggesting that we’re waiving our right to an adjournment simply to let the inquiry progress.

S2: Okay. Thank you. What I propose to do then Mr Manley, is I’ll outline the concerns, there’s a few, replicating largely what’s in the call-up letters, these won’t be things. Can I just ask, when were you engaged by Mr Woods then?

S3: We would have been retained on the end of last week, I think it was Friday afternoon was the first opportunity I had to consult with Mr Woods on the matter.

S2: I appreciate that puts you under a little bit of pressure also.

S3: It did, but-

S2: So we’ll work through this as best we can.

S3: Absolutely.

…

We have attempted to the very best of our ability to address a number of the issues which have arisen in the context of the audit process and indeed some of the other fundamental proofs that are required to retain an Operator’s Licence. If I can begin firstly with the financial requirement; again, the Department has now been provided with a series of bank statements which you have had an opportunity to consider in a very brief fashion, but certainly it has shown, or at least the business has shown certainly early signs or health signs of a profitable business.’

‘I am advised that a bundle was provided, electronically, at 17:45 on Friday 21 October 2022, less than one working day before the hearing was due to commence at 14:00 on Monday 24 October 2022. This was issued using 'Drop Box' and could not be accessed by department officials. Regardless, even had the material been accessible, the timeframe was insufficient to allow an assessment of the material provided. I still do not have access to any of the requested records (aside from finance which I will address below) and on account of the timeframe allowed to the operator to provide the material, I do not offer the opportunity to allow a review of these records in advance of completing my decision.

…

Whilst I am appreciative to Mr Manley for doing his best to assist at the very last hour, I am mindful that this operator was requested to provide this evidence, not within the calling in letter, but in a previous communication dated 05 September - some seven weeks prior to the hearing. It is simply not appropriate for an operator to ignore the clear directions of the Department within its investigations. The 'propose-to-revoke' letter had previously put this operator on notice and it was the operator that requested the public inquiry, as is their right. The explanation that someone else had signed for the letter, and Mr Woods only got it on 05 October carries no weight with me. If true, this was still sufficient time to provide the material before the hearing - but it is one of many occasions where the operator laid the blame elsewhere.’

The Tribunal Head failed to give due consideration to an application for an adjournment in circumstances were the original "Call Up" Letter published by the Department was dated 03rd October 2022 with the Public Inquiry scheduled on 24^th October 2022. It is submitted that 21 clear days were not provided to the Operator as per the tribunal guidelines in preparation of the Public Inquiry. The Operator's failure to file documents on time were routinely criticised in the Decision notice, however the department's own shortcomings in this regard were merely overlooked. It is submitted that the Deciding Officer failed to strike a balance in assessing both parties shortcomings.

The Deciding Officer, despite having been provided with documents in support of the Appellant's position, in advance of the Public Inquiry, failed to acknowledge or indeed consider the documents presented. At paragraph 10 of the Decision Notice the Deciding Officer comments, "a bundle was provided, electronically, at 1745 on Friday 21 October 2022, less than one working day before the hearing was due to commence at 14:00 on Monday 24 October 2022". He further comments, "I do not offer the opportunity to allow a review of these records in advance of completing my decision". It is submitted that it is a regular feature of Public Inquiry's that further documents can and very often are served on the Operator immediately prior to the hearing of a Public Inquiry. Very often time is afforded to acquaint oneself with the documents supplied (as would be right and proper). The Appellant would respectfully submit that vital evidence was submitted which would undoubtedly alleviate the Department's concerns, however the Deciding Officer simply chose not to consider or indeed acknowledge the evidence provided.

The Deciding Officer proceeded with a Public Inquiry, in circumstances where an application to add a new Transport Manager was pending. At paragraph 4 of the Decision Notice the Deciding Officer comments that, "an application to add a new Transport Manager has been submitted". He later comments at paragraph 16, "the application to nominate Mr. McDonald as transport manager was submitted after the Calling in Letter and that there had not been any concerns raised by the team processing that application". The Appellant would therefore respectfully submit that the Deciding Officer could have and indeed should have applied discretion in affording the Appellant time to install the new Transport Manager thus alleviating many of the concerns held;

The Deciding Officer erred in both law and fact in failing to correctly distinguish the difference between a corporate entity and a single individual entity. The Deciding Officer routinely criticised the sole director, Mr. Sean Woods, for being unable to answer questions put to him in the course of the Inquiry and indeed for relying on the assistance of others in answering questions. At paragraph 18 the Deciding Officer comments "Mr. Woods was unable to answer questions put to him. Initially, I had to intervene to prevent Mr. McDonald from responding on behalf of the Operator - I reminded all in attendance that it was Mr. Woods, a sole director, with whom the Department was entrusting with a licence and it was he that needed to satisfy me as to the Department's concerns". At paragraph 21, the Deciding Officer comments "when coupled by the complete lack of operational knowledge held by Mr. Woods, satisfy me that this is not an Operator that I can trust". At paragraph 33 the Deciding Officer comments "it is Mr. Woods to whom I'm being asked to entrust a licence and I do not find him trustworthy or capable". It is clear from these comments alone that the Deciding Officer has conflated the idea Mr. Woods was in some way the 'holder' of the Operator Licence when in fact the Operator was a limited/corporate entity, which does not prevent third party assistance being provided.’