‘During the course of this inquiry an issue arose in relation to records purporting to originate from the regulatory authority in Great Britain. The operator would submit that these records in so far as this public inquiry in Northern Ireland is concerned are inadmissible. There are separate regulatory regimes in Northern Ireland and Great Britain and indeed other member states in the European Union. The public inquiry in relation to the operator’s licence granted in this jurisdiction is restricted in its consideration to materials and offences which arise in this jurisdiction. In any event the material which appears to have originated from Great Britain is of such a nature that it gives rise to serious concerns whether it could be fairly dealt with by the operator in this matter. It is noteworthy that the infringements completed by the DVA in the Northern Ireland jurisdiction are fully evidenced by the production of witness statements and other materials which outline the full circumstances of the infringement. The materials sought to be relied upon which originate from Great Britain are simply a computer printout in relation to alleged infringements which have already no doubt been resolved within the regulatory jurisdiction of Great Britain. These materials do not give enough information to allow the operator to deal with any alleged factual scenario arising under any of the alleged infringements and would of course require a considerable amount of speculation both on behalf of the Head of the Transport 6 Regulation Unit and would of course place the operator in an almost impossible situation to deal with such speculative questions. During the course of the public inquiry the operator was asked through his representative why these infringements had not been dealt with in the report of Mr John Logue who is a specialist in drivers’ hours and infringements and road transport matters. Mr Logue was contacted in this regard and has stated that he had not dealt with these matters as he believed they did not fall within the jurisdiction of the public inquiry in Northern Ireland. Further he confirmed that his belief was that Great British regulatory matters do not fall within the ambit of the public inquiry and that this had been the stated position of the Head of the Transport Regulation Unit over the course of the past number of years in this regard. Mr Logue’s recollection coincides with the recollection of the writer herein. The issue in relation to VOSA infringements are not matters that should not be admitted into the consideration of a public inquiry in the jurisdiction of Northern Ireland. This arises both from the fact that they are infringements that fall under another regulatory jurisdiction, not under the Northern Ireland statutory regime and further as stated above any inclusion of such matters in the form which they presently present would cause serious unfairness to the operator and the danger of widely inaccurate speculation on behalf of those conducting the public inquiry. We hope these submissions are of assistance to the head of the Transport Regulatory Unit in its consideration of whether these infringements should be properly admitted.’
‘Mr Damien Toner has lost his repute. He no longer satisfies the requirement to be of good repute as a Transport Manager pursuant to Section 123(a) of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010 and Article 6 of EC Regulation 1071/2009.’
‘The HMRC duty assessment has been reduced to zero and has not been considered as part of this inquiry. Financial standing is satisfied. Since the previous public inquiry in Sept 2013 DVA have reported a non compliance rate of 89% with 8 encounters resulting in 9 fines or penalties and 1 immediate prohibition. Investigations are reported as ongoing for one encounter. I am satisfied that the DVSA report is admissible and that it sets out sufficient information that enables it to be considered a factual document on which the operator can prepare a case. As detailed above there have been numerous encounters and prohibitions. In particular, there are 28 specific offences relating to various defects, excess weight, driver’s hours and tachograph infringements and driving without evidence of the required competence. Many of the graduated penalties which are proportionate to the severity of the breach are at the higher levels. I place the same weight on DVSA reports of factual offences as I do for DVA. This was the second Public Inquiry in less than three years. At the last inquiry the previous Head of the Transport Regulation Unit remained concerned at the number of infringements and attached an additional undertaking for DVA to carry out a compliance audit. After that Inquiry I would have expected this operator to implement systems and processes to ensure compliance in all aspects of operator licensing. Despite three compliance audits having been carried out the operator is still not compliant with respect to all the statutory requirements and undertakings on the licence. This poses a risk to road safety and undermines fair competition. Mr Toner cooperated fully with the DVA officers during the audits. 8 At the date of this Inquiry, the operator is rated compliant for maintenance and safety inspections and servicing. There is an 81% first-time pass rate. The operator focused on profit before compliance being too busy with other aspects of the business to make the required improvements to systems and process regarding drivers’ hours, tachographs, overloading and the respective record-keeping. The operator has been ineffective at driver management and failed to monitor and analyse drivers’ hours and tachographs. Following call-up to the Inquiry a transport consultant has recently been engaged to monitor and analyse drivers’ hours but no reports were presented for consideration. Mr Toner as a transport manager failed to maintain continuous and effective management of the transport undertaking. He holds a transport manager CPC. There is no evidence of him having undertaken any refresher training. The operator has breached the general undertakings on the licence. Several of Mr Toner's vehicles are undertaxed which results in a financial saving while also overloaded which provides a competitive advantage and risk to road safety. It is incumbent on the operator who chooses to tax vehicles at a reduced rate to maintain close engagement with contractors and properly select loads to be delivered. Mr Toner failed to do this leaving it to the contractor to organise.’
‘Without doubt there are some positives in this case. Following the inquiry in 2013 the operator has invested in making significant improvements in some, but not all, aspects of compliance. He cooperated with the DVA during the audits and received a green rating in audits relating to maintenance systems, servicing and safety. The first-time pass rate of his vehicles is 81% which is above average. Mr Toner has recently engaged the services of a transport manager. However these must be balanced against the ongoing failure to take opportunities to improve other compliance issues. This is Mr Toner's second Public Inquiry the first being in 2013. In the intervening period there have been three successive unsatisfactory compliance audits in respect of drivers’ hours and tachographs rules and numerous prohibitions. I note with concern that there have been persistent licence failures with no attempt to make improvement until the call-up letter issued. The operator has concentrated, invested in and continues to invest in maintenance and has built new workshops and office space. While this is potentially important to the business and indeed road safety there has been a significant lack of investment by way of money, time or conduct in the overall management of all aspects of the licensing regime. The requirements to hold an operator's licence encompass a wide range of statutory obligations and are not open to being preferentially addressed over such a long period of time. 9 Mr Toner has improved maintenance however it is appropriate that I ask myself whether I can be satisfied about the likelihood of compliance in other matters going forward. In receiving the call up letter the operator received legal advice and subsequently engaged the services of a transport consultant in June 2016. Following that part of the Inquiry heard in June 2016 the operator was afforded an opportunity to demonstrate how he was progressing with compliance and to present reports and plans for improvement to the reconvened enquiry in September 2016. Albeit that his transport consultant had suffered a family bereavement immediately prior to the reconvened enquiry … there appears to have been little effort made by Mr Toner to progress matters in the intervening period. At the reconvened inquiry the operator gave verbal proposals with no indication that he intended to seriously and robustly follow-up on necessary actions to improve, indeed it appears that this may be only when his workshop and office are completed. I have considered the positives in respect of maintenance and safety and the fact that this demonstrates that Mr Toner can put systems and processes in place if, it appears, he wants to. However he has steadfastly failed to make improvements in relation to non-compliance in respect to drivers’ hours and tachograph analysis and overloading. Given the number of times he has been advised of failings and that prohibitions have also been received in the intervening period the Department finds that it cannot have trust that compliance in this regard will now be achieved within a short period. The operator has delayed this matter for far too long and has rather belatedly made recent efforts to ensure the Department that non-compliance will be addressed. I give some credit to Mr Toner for commencing this action however this has been presented as a solution which is both illdefined and too little and too late. It does not, in my assessment, make him any more capable of discharging operator licensing requirements in the future I asked myself the 'Priority Freight' questions - is this an operator capable of ensuring future compliance? Based on the evidence above I must conclude 'no'. If the evidence demonstrates that future compliance is unlikely then that will, of course, tend to support an affirmative answer when I turned to ask myself the 'Bryan Haulage' question - are the actions of the operator so bad that he ought to be put out of business? There appears to have been no action taken to ensure that vehicles were not overloaded with the operator stating that unless there was a weighbridge at the premises where a trailer was lifted there was no way of knowing of the vehicle was overloaded. However vehicles remained both undertaxed and overloaded, at significant saving and competitive advantage and risk to road safety. Mr Toner's directions to drivers amounted to advice that it shouldn't be necessary to proceed to a weighbridge and that they should not take a trailer ‘if the tyres looked’ as if there was an overweight issue. The Department’s appropriate concerns over drivers’ hours and tachograph infringements have been belittled at the Inquiry with an attempt to pass the blame to the drivers. I accept the drivers also have a responsibility to ensure they adhere to the rules. However Mr Toner has been entirely ineffective in his driver management and as the licence holder and transport manager he is both responsible and 10 accountable. The persistent lack of analysis or monitoring in respect of drivers hours and tachograph is meant that Mr Toner had no idea what his drivers were doing at any time. In contravening the conditions on the licence, failing to notify the Department of prescribed events, namely offences and penalties and not fulfilling the undertakings on the licence Mr Toner has gained an unfair competitive advantage and risked road safety over other compliant operators who invest both their own time and money in ensuring compliance. Even after undertaking a careful balancing exercise and giving Mr Toner as much credit as I can I am satisfied that this is a classic example of an operator putting commercial considerations over compliance with operator licensing requirements. On the evidence above as a result of Mr Toner's actions and indeed failure to take action on many occasions, it is entirely proportionate to determine that the operator is no longer of good repute to hold an operator's licence … Under Section 24(1) of the 2010 Act the Department must therefore revoke the licence and does so …’
‘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.’
‘The first issue raised by this ground is to identify the breadth of the review which the Transport Tribunal (and, thus, now the Upper Tribunal) must undertake. On behalf of the Operator and Mr Wright, it is argued that the language of para 8 of Sch 4 to the 1985 Act ("full jurisdiction to hear and determine all matters whether of law or of fact") did not permit the Transport Tribunal to limit itself simply to a review of the "reasonabless/rationality" of the Deputy Commissioner's conclusions but required the actual evidence to be addressed and consideration given to the extent to which relevant features of the case had been ignored. This requires an analysis of the effect of the jurisdiction and its proper function as an appellate body from the decision of the Deputy Commissioner. The first point to make (the contrary not being suggested) is that the function of the Transport Tribunal is not equivalent to an appeal to the Crown Court against a conviction in criminal proceedings in the Magistrates' Court which is treated, in effect, as a new first instance hearing with evidence (which may or may not be the same as was called before the magistrates) being called a second time. Although there is a power to permit further evidence (see para 8(2), subject to para 9(2) which does not permit any appeal to take into consideration any circumstances which did not exist at the time of the determination subject of the appeal), whether or not to permit such evidence is clearly a matter for the tribunal: it does not arise in this case as no attempt was made to rely on it. Thus, although the jurisdiction is to hear and determine matters of both fact and law, the material before the Transport Tribunal will consist only of the documents placed before the Deputy Commissioner and the transcript of the evidence; the tribunal will not have the advantage that the Deputy Commissioner had of seeing the parties and the witnesses, hearing them give evidence and assessing their credibility both from the words spoken but also the manner in which the evidence was given. Recognising that advantage both in relation to credibility and findings of fact, in Biogen Inc v Medeva Ltd[1997] RPC 1 , 38 BMLR 149, Lord Hoffmann explained (at 45): "The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance . . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation." 14 The extent to which those considerations are appropriate was considered in Assicurzioni Generali SpA v Arab Insurance Group[2002] EWCA Civ 1642 , [2003] 1 All ER (Comm) 140,[2003] 1 WLR 577 , in which Clarke LJ (as he then was) gave guidance in relation to appeals based on errors of fact in these terms: "15 In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a 're-hearing' under the Rules of the Supreme Court and should be its approach on a 'review' under the Civil Procedure Rules. 16 Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way." The approach to appeals in cases such as this was further considered in Subesh and others v Secretary of State for the Home Department[2004] EWCA Civ 56 , [2004] INLR 417 in relation to the statutory regime then in force by which an appeal lay from the Adjudicator (who heard the evidence) to the Immigration Appeal Tribunal. Paragraph 22 of Sch 4 of theImmigration and Asylum Act 1999 conferred an unqualified right of appeal on any party, not limited by reference to any particular issue. Giving the judgment of the court, Laws LJ analysed the authorities (both general and specific to asylum and immigration). Having made the preliminary points that the IAT's jurisdiction was not limited by Wednesbury considerations (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 ,[1947] 2 All ER 680 ) (see[1948] 1 KB 223 ) and that it was "commonplace" that "an appellate court which has not heard the material oral testimony must be slow to impose its own view" (see 40 and 41), he approached the question of what was meant by error - as opposed to mere disagreement - sufficient to justify interference with its decision. He said, the emphasis being his (at 44): "The answer is, we think, ultimately to be found in the reason why (as we have put it) the appeal process is not merely a rerun second time around of the first instance trial. It is because of the law's acknowledgement of an important public interest, namely that of finality in litigation. The would-be Appellant does not approach the appeal court as if there had been no first decision, as if, so to speak, he and his opponent were to meet 15 on virgin territory. The first instance decision is taken to be correct until the contrary is shown. As Lord Davey put it in Montgomerie [[1904] AC 73 at 82-3], '[i]n every case the Appellant assumes the burden of shewing that the judgment appealed from is wrong' (our emphasis). The burden so assumed is not the burden of proof normally carried by a Claimant in first instance proceedings where there are factual disputes. An Appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an Appellant assumes is to show that the case falls within this latter category." Thus, Laws LJ made it clear that the question was whether the appellate tribunal "concluded on objective grounds that that a different view from that taken by the Adjudicator was the right one, or (and we mean it to be the same thing) whether reason and the law impelled them to take a different view" (53). For my part, this reasoning applies equally and with as much force to appeals from the Commissioner to the Transport Tribunal; neither do I read the recent decisions emanating from that tribunal to which we have been referred as suggesting to the contrary.’
‘14. In any event, Mr Laprell continued, it was disproportionate for the Traffic Commissioner to revoke the licence when he did. We think that the proportionality approach has to be seen in context. If the operator cannot establish that he meets the requirement of financial standing, as a question of fact, he is then in breach of the Act and revocation is mandatory, as the Traffic Commissioner observed. (So also if the operator is not professionally competent: see the Court of Appeal’s comments in the Anglo Rom case, set out at page 40 of the Tribunal’s Digest in its website www.transporttribunal.gov.uk). But, as with the issue of repute (see 2002/217 Bryan Haulage Ltd v. VI (No.2) also available under the heading “Decisions” on the website and see also p.11 of the Digest), proportionality must be approached to reflect Article 1 of the First Protocol that an operator’s licence is a possession of which an operator is not lightly to be deprived (see the Court of Appeal in the Crompton case at p.34 of the Digest). This approach imports a requirement of fairness and reasonableness into a traffic 17 commissioner’s decision-making. Put the other way, an unreasonable haste or a failure to provide opportunity to deal with a new matter (as mentioned above) would not be proportionate. Such an approach was adopted by the Tribunal in two recent cases. In 2003/30 Helms Coaches Ltd it was held that it was unfair to refuse a short adjournment to permit financial evidence to be obtained if readily available; and in 2004/362 & 2004/72 Britannia Hotels Ltd & Alexander Langsam (t/a Britannia Airport Hotel) it was held that surrenders of licences ought to have been accepted and that revocation for loss of repute and of financial standing was disproportionate.’
‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’
‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
‘The restricted right of appeal from an employment tribunal is significantly different from the right of appeal in an ordinary civil case, where there is a right of appeal on both fact and law. In ordinary civil appeals the question is not whether the court substantively or procedurally erred in law, but whether the decision of the lower court was “wrong”:CPR Part 52.11 (3). A decision of the court below is wrong if it erred in law and/or it erred in fact. The court may set the decision aside and order a new trial. An appeal may also succeed where, even though the decision of the lower court was not “wrong”, it was unjust because of a serious procedural or other irregularity. In cases where there is a right of appeal on both fact and law it has been held that the appellate approach to cases of excessive delay is to ask whether, as a result of the delay, the decision under appeal is “unsafe” and whether it would be “unfair or unjust to let it stand”: see the judgment of the Privy Council delivered by Lord Scott in Cobham v. Frett[2001] 1WLR 1775 at 1783D. Although it was not a case to whicharticle 6 of the Convention applied, the approach is, in my judgment, compatible with the Convention article and the jurisprudence on it. “In their Lordships’ opinion, a legitimate basis on which the Court of Appeal could assert the right to disagree with the judge’s evaluation of the evidence and of the witnesses was absent. It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge’s findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party. … In their Lordships’ opinion, if excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.”’
‘The decision maker took into account material which should not properly have been admitted, namely the DVSA reports. The decision maker took into consideration material which could not properly be addressed by the Appellant thus creating an unfairness to him which could not be remedied at the hearing. The decision maker ignored the fact that the last Head of the TRU refused to place any weight on DVSA material because of the reasons set out above.’
‘The DVSA report to the Public Inquiry is provided in the form of a printout from DVSA. The information provided refers to a number of encounters within a specified date range and the number of prohibitions arising from those encounters in respect of vehicle, drivers’ hours and overloading. In addition the registration mark of the vehicle and/or the mark of the trailer is provided along with the date of the defect and a description of the defect. Information is provided as to the dates of the journeys, the registration mark of the vehicle and the goods carried. The documents also provide details of the encounter date, the vehicle being driven, the name of the driver, the offence name and description and the amount of the graduated fixed penalties and deposits paid.’
‘There is nothing to prevent the operator, for example, from determining if the vehicle in question undertook the journey on a particular day, whether the records report accurately who was driving for him on the date in question and whether the record of an encounter with DVSA was erroneous. An operator could then present information from his own records to address the DVSA position. Such information may include, but not be limited to, tachograph analysis or other journey records which could indicate, for example, that drivers’ hours had not been infringed, that the vehicle had a different driver or was on a different journey on any specific date, that a driver’s CPC qualification was in place at a given time, or that appeals against the penalties had been initiated or completed successfully.’
‘20. Mr Nesbitt made two submissions. First, that the Traffic Commissioner had no jurisdiction to consider the Dutch company’s conduct and to take this into account in relation to repute under the GB licence, since the scheme of the European legislation was such that action against the Dutch company could only be taken by the Dutch authorities and not indirectly by the Traffic Commissioner in connection with a GB licence. Second, and in any event, he submitted that revocation of the GB licence was disproportionate and that the appropriate outcome was a warning or a short period of suspension.’
‘Paragraph 1 in Schedule 3 of the 1995 Act is in very wide terms (“any other information”) and we are satisfied that the Traffic Commissioner was entitled to take the Appellant’s conduct as the director of the Dutch company into account in considering the issue of repute under the GB licence. This was Mr Chamberlain’s submission on behalf of the Secretary of State and we have no doubt that it is correct.’
‘(i) The Appellant no longer satisfies the condition in section 12A(3)(a) of the 2010 Act to be of good repute as a Transport Manager. (ii) The Appellant is disqualified from acting as a Transport Manager in respect of the Operator’s licence ON1113748 or for any other road transport undertaking for a period of twelve months. This disqualification takes effect IMMEDIATELY on the promulgation of this decision. The Appellant’s certificate of professional competence will not be valid in any Member during the period of disqualification. (iii) The Appellant must complete a minimum two-day Transport Manager’s course before he can apply for the disqualification to be lifted. 30 (iv) As the Appellant is disqualified from acting as a Transport Manager in respect of the Operator’s licence ON1113748, the requirement in section 12A(3) of the 2010 Act is not satisfied. It will be, of course, for the Appellant to rectify this omission. Failure to do so (by three months from the date of this decision) will mean that Operator’s licence ON1113748 will be revoked from that date as the licence holder will no longer meet the requirement to be professionally competent pursuant to section 12A(2)(d) of the 2010 Act. (vi) The following undertaking will be added to Operator’s licence ON1113748: ‘A compliance audit will be carried out by the Driver and Vehicle Agency (DVA) on systems and processes for providing appropriate arrangements in relation to maintenance, training, drivers’ hours and record keeping. This audit should take place within six months of the date of this decision and the outcome reported to the Head of the TRU.’