Bell Transport & Anor v Head of the Transport Regulation Unit

Robert Leslie Bell & Peter Erwin Bell, t/a Bell Transport (Upper Tribunal reference UA-2021-000275-NT), are the holders of Standard International goods vehicle operator's licence ON2002503 which authorises the use of 10 vehicles and 50 trailers from an operating centre notified to the Department as … Antrim …. Both partners are also listed as transport managers on the licence. The operator has held this licence since 20 June 2017.

Robert Leslie Bell, operating as a sole trader, (Upper Tribunal reference UA-2023-000508) also held Standard International goods vehicle operator's licence ON1114203 which authorised the use of 5 vehicles and 5 trailers from an operating centre of the same address. That licence was held since 01 February 2010 and revoked from 03 September 2021.

On 24 June 2021 the Department wrote to Robert Leslie Bell, sole trader, requesting surrender of that licence due to a change of entity, and a declaration being made on the partnership application form that the sole trader licence would be surrendered upon grant of that new application. No such request to surrender the licence was received and, as at the time of the June 2021 letter, no vehicle had been specified on the licence since 3 September 2019.

A response was received from the sole trader on 1 July 2021 stating that he did not wish to surrender the licence and planned to add a vehicle once repairs were made. On 8 July 2021 the Department inquired why the sole trader licence was required when there had been a change of legal entity, but no response was received to that request for information.

This led to the Department writing to the sole trader on 12 August 2021, proposing to revoke that licence on the following grounds:

The August 2021 letter went on to further state, in bold text, "You should note that revocation of the licence would render unlawful the operation of vehicles for which an operator's licence is required. Any such revocation may affect any other current licences or future applications involving anyone named on the licence record." The operator was also offered the opportunity to request a public inquiry to offer evidence as to why the licence should not be revoked.

As no response was received to the August 2021 letter the Department wrote to the sole trader on 06 September 2021 notifying him that the licence was being revoked with immediate effect. This letter was also emailed to the operator on 7 September 2021. It is noted that an application to surrender the licence, signed by the operator on 7 September 2021, after the revocation, was subsequently received by the Department.

No request was received for the Department to review its decision, nor was an appeal submitted (within the prescribed time limits for making an appeal) against the decision to revoke the sole trader’s licence or against the grounds for that revocation.

Following the revocation of the sole trader licence, and in accordance with section 26(1) of the 2010 Act, the Department wrote to the partnership on 06 September 2021 to serve notice that it was proposing to revoke that licence under the following grounds:

The Partnership was offered the opportunity to request a public inquiry and given until 27 September 2021 to provide written representations for the Department's consideration. A response was received by the Department on 08 September 2021 which included two points as follows:

Upon review of this response the Head of Transport Regulation Unit concluded on 28 September 2021:

The Department wrote to the partnership on 29 September 2021 notifying the operator that the licence would be revoked from 27 October 2021. An appeal against this decision was then received on 21 October 2021. The appeal was given the Upper Tribunal reference UA-2021-000275-NT.

Included with the Notice of Appeal was an application for a stay of the decision of the Head of the TRU. On 25 October 2021 the application for a stay was granted by the Head of the TRU.

‘An application has been made to the Upper Tribunal requesting the decision of the TRU - viz Robert Bell’s repute- also be appealed. Subject to a decision of the Upper Tribunal, this skeleton argument will proceed on the basis that the application has been granted and there are two Appellants – Robert Bell and Bell Transport (as the partnership). Ground of appeal one will deal with Robert Bell’s repute. Grounds two and three relate to Bell Transport.’

I note that there is no date of receipt on the appeal notice;

I am assuming that this appeal has not been registered on the system as, otherwise, it would have been picked up by the administrative support staff;

The appeal is late and interlocutory action will have to be taken to determine whether it can be admitted;

If admitted, rule 23(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the 2008 Rules’) provides that it must then be sent to the Respondent;

Paragraph 3 of Schedule 1 to the 2008 Rules states that on receipt of a copy of a notice of appeal under rule 23(6)(b), the decision maker must send to the Upper Tribunal a copy (and, on request, further copies) of (a)a written record of the decision appealed against and reasons for the decision; (b)all documents produced to the decision maker in connection with the decision;

The decision maker may wish to added as a party to the proceedings; and

All of the documentation would then have to be sent to the members of the tribunal.

The appeal in connection with Mr Robert Bell alone is to be processed in the usual manner in the office of the UT (AAC);

As noted above, the appeal is late and interlocutory action will have to be taken to determine whether it can be admitted;

If admitted then the steps set out in paragraph 8(v) and (vi) are to be carried out;

If admitted the appeal in connection with Mr Robert Bell alone should be listed for oral hearing together with the appeal with reference UA-2021-000275-NT;

The appeal with reference UA-2021-000275-NT, and, if admitted, the appeal in respect of Mr Robert Bell alone, should be re-listed before the Upper Tribunal Judge and Members who were due to sit on 31 March 2023.

‘The appeal of this specific decision is, by quite some margin, out of time.

However, there are three reasons why the Appellant respectfully requests that time is extended to permit its consideration.

First, on the appeal papers which the Upper Tribunal has sight of in relation to UA-2021-000275-NT, the issues which are raised in relation to Robert Bell's repute, are already substantially addressed. The question of Robert Bell's repute is inseparably bound up in the decision currently under appeal in relation to the partnership operator's licence (ON2002503). On this reading, it is arguably not a question of making an application to extend time, but a request for further documents from the TRU.

Secondly, and similar to the above, the Upper Tribunal is already substantively seized of the question of Robert Bell's repute. To formally include its consideration, the Upper Tribunal will not be burdened with considerable documentation at short notice. Instead, there are three letters which the Upper Tribunal will need to have sight of before making such a determination.

Thirdly, the formal inclusion of Robert Bell's repute is necessary for the Upper Tribunal to adequately and fully dispose of the appeal of UA-2021-00275-NT.’

For the reasons I set out above, I exercise my discretion in the Appellant’s favour. I extend time and grant permission to admit the Appellant’s appeal.

I make the following directions:

Rule 23(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the 2008 Rules’) provides that the notice of appeal must be sent to the Respondent, as the decision maker;

Paragraph 3 of Schedule 1 to the 2008 Rules states that on receipt of a copy of a notice of appeal under rule 23(6)(b), the decision maker must send to the Upper Tribunal a copy (and, on request, further copies) of (a)a written record of the decision appealed against and reasons for the decision; (b)all documents produced to the decision maker in connection with the decision;

The Respondent may wish to be added as a party to the proceedings; and

This appeal should be re-listed together with the appeal in decision which is under appeal to the Upper Tribunal with reference UA-2021-000275-NT and before the Upper Tribunal Judge and Members who were due to sit on 31 March 2023.

“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.”

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

‘Determination of good repute

5.—(1) In determining whether an individual is of good repute under section 12A(2)(b) of the 2010 Act or regulation 13A(1)(b), the Department may have regard to any matter but shall, in particular, have regard to—

In determining whether a company is of good repute under section 12A(2)(b) of the 2010 Act, the Department shall have regard to all the material evidence including, in particular—

For the purposes of these Regulations, any convictions or penalties incurred by any person include —

Determination that an individual is not of good repute

Serious Offences

7.—(1) A person has a conviction of a “serious offence” if—

The punishments are—

In paragraph (2) —

Road Transport offences

an offence under the law of any part of the United Kingdom relating to road transport including, in particular—

any corresponding offence under the law of a country or territory outside the United Kingdom.

Further provisions for the purposes of regulations 5 to 8

9.— For the purposes of regulations 5 to 8—

‘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.’

Ground One: The decision of the TRU to find that Robert Bell is without repute was disproportionate.

Ground Two: The decision of the TRU not to hold a public inquiry to consider the revocation of Bell Transport’s operator’s licence was wrong in law.

Ground Three: The decision of the TRU to revoke the operator’s licence of Bell Transport was disproportionate.

‘Ground of Appeal One: The decision of the TRU to find that Robert Bell

is without repute was disproportionate.

The TRU found that Robert Bell was without repute due to “an apparent failure to respond to correspondence… and the apparent false statement made on the partnership’s application for a licence”.

Although the TRU had offered Robert Bell a public inquiry in relation to the revocation and loss of repute considerations, a request for such was not received by the TRU. As such, the sole trader operator’s licence was revoked on 06/09/21 along with a finding that Robert Bell is without repute.

It is submitted that this decision was disproportionate. Neither Robert Bell nor his sole trader licence have had any criminal or regulatory history. The reasons given by the TRU for why Robert Bell is without repute is his lack of response to TRU correspondence and his failure to surrender his sole trader licence.

These will be addressed in turn:

It is, however, apparent from the TRU letters to Robert Bell in relation to the surrender of the sole trader licence that they did not make it clear that Robert Bell could lose his good repute. The main thrust of the letters speak to the revocation of the operator’s licence. For example, the PTR letter2 sets out the factors which indicate that the licence may be revoked (on discretionary grounds) or is to be revoked (on mandatory grounds). The issue of repute is found at the bottom of this list of factors. The appearance of not being of good repute is subordinate to a consideration of revocation. It is submitted that this ought to have been made much clearer and dealt with separately from (but also in addition to) the revocation factors.

Further, the TRU has gone beyond what is strictly necessary to ensure compliance with the statutory and regulatory regime. That the sole trader licence ought to have been revoked under Article 5(b) of Regulation 1071/2009 is beyond doubt. However, Regulation 5 of The Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012 states that the Department may have regard to any matter, but shall have regard to any information in its possession which goes to fitness. It appears that the TRU has not considered that Robert Bell:

Although there has been a prima facie failure to adhere to a declaration, the TRU ought to have asked itself what mischief was being addressed by removing Robert Bell’s repute in addition to the revocation. As mentioned, the licence had remained dormant with no vehicles specified on it. The TRU considered that the simultaneous existence of the two operator’s licences raised issues relating to operating in the wrong entity. The opposite, however, is true. The commercial reality was that in 2017, the entity began operating as a partnership. The application for a partnership operator’s licence reflected this change. No longer was Robert Bell operating as a sole trader. The vehicles specified on the respective licences reflected this. That the sole trader licence was inactive rendered it being in a state of all-but surrendered. It is also important to note that perhaps the main reason for the revocation was under Article 5(b), a provision which deals exclusively with dormant operator licences.

It is axiomatic that each case turns on its own facts. However, the practice of the TRU and the OTC in dealing with instances of dormant operator’s licences has been to revoke the operator’s licence only, and not to find that the holder of that licence is without repute. The comparatively robust approach of the TRU in the instant case indicates that the decision was disproportionate – the failings here cannot be considered an undermining of the industry or conduct which is patently unacceptable.

…

Ground of Appeal Three: The decision of the TRU to revoke the operator’s licence of Bell Transport was disproportionate

Although the TRU had not applied its own Practice Guidance Documents in deciding on the instant case, it is submitted that the alleged misconduct of Bell Transport calls for the matter to be considered as Moderate to Low according to Annex four.

The TRU has not considered the unblemished regulatory history of Bell Transport. It has also failed to consider the fact that the other partner in the business had not lost his repute either an operator or as a Transport Manager. As such, only one of two partners had lost their repute. The legislative and regulatory aims could easily have been satisfied by a request that Peter Bell applies for a sole trader licence, and, for example, Robert Bell removes himself as Transport Manager.’

Analysis

We begin with the appeal referenced UA-2023-000508 Robert Bell. The background to this appeal is set out in some detail above.

In summary:

Had an unblemished regulatory record under the partnership

Had never been a used of issues relating to road safety

Had never been accused of issues relating to unfair competition

Had no convictions whatsoever

‘Reading the decision of the Traffic Commissioner as a whole I cannot escape the conclusion that although she did initially ask herself whether the operators behaviour related to his fitness to hold a licence she then became more concerned with the unacceptability of the behaviour, and failed to give mature consideration to the question of whether that behaviour really did demonstrate for the purposes of section 27(1) a loss of good repute, bearing in mind the inevitable consequences of such a finding, and the need for proportionality. In saying that I am not suggesting that there was any need for the Traffic Commissioner expressly to refer to proportionality, or to anything other than the domestic legislation which was directly relevant, but the inappropriateness of her approach does seem to me to be most clearly demonstrated by her refusal to accept that by writing as he did to Miss Farr, and by apologising to the Traffic Commissioner herself, the operator had done enough to demonstrate that at any rate by 26^th November 2001 he was once again a person of good repute.

The Transport Tribunal, having set out the facts and summarised the submissions made on behalf of the appellant, said that his solicitor "repeatedly referred to the loss of the appellant's good repute as too high a penalty or sanction, although he accepted the use of such terminology in the context of the jurisdiction and powers of Traffic Commissioners was inappropriate." The terminology may have been inappropriate, but no doubt it was used because of the approach adopted by the Traffic Commissioner, whose decision in part is reminiscent of a judgment in proceedings for contempt of court. I recognise, as did the Tribunal, that the Traffic Commissioner had the benefit of seeing the operator, but to my mind little now turns on that because the Traffic Commissioner made her conclusions clear. The Tribunal recognised that "her decision may be viewed as harsh” but does not seem to have asked itself why it should be viewed in that way. In my judgment the reason was that the approach adopted by the Traffic Commissioner faltered in the way that I have described. That was an error of law.’

‘Section 23(1)(d) that the licence-holder made, or procured to be made, a statement of fact that, whether to the licence-holder’s knowledge or not, was false, or a statement of expectation that has not been fulfilled; namely that you declared on the application for the partnership’s licence that your licence would be surrendered.’

‘Section 24(1)(a) as the licence holder no longer satisfies the requirement to be of good repute under the provisions of section 12A(2)(b) (as determined in accordance with regulations and Article 6 of the 2009 Regulation)’

‘Importantly, I have no specific concerns in relation of road safety or fair competition which would prevent my granting of a stay.’