Xport Transport Ltd v Driver and Vehicle Agency (Northern Ireland)

Material evidence in a public inquiry should ordinarily be disclosed before the inquiry and raised during it. Exceptionally, later evidence may be considered, but the decision maker should disclose it, identify any potentially adverse preliminary view, allow a reasonable response and offer to reconvene the inquiry.

A finding of loss of good repute must justify the proportionate outcome that the operator ought to be put out of business. The decision maker must balance negative and positive factors, consider alternatives, give adequate reasons and permit meaningful representations.

Xport Transport Ltd appealed against the Presiding Officer’s decision of 12 May 2024 to revoke its standard international operator’s licence following findings concerning regulatory infringements, loss of good repute and inadequate financial standing.

The appeal concerned late evidence about MOT payments, the relevance of a director’s conviction, proportionality, adequacy of reasons and the opportunity to make representations. The issues were whether the procedural defects and errors of law made the decision plainly wrong and what relief should follow.

1. Appeal allowed. The decision revoking the operator’s licence was set aside. The matter was remitted for redetermination before a different decision maker on behalf of the Department for Infrastructure (Northern Ireland).
2. The Upper Tribunal applied the review approach in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport, [2010] EWCA Civ 695, and Clarke v Edinburgh & District Tramways Co Ltd, 1919 SC (HL) 35. The appellant had to show that the reasoning and application of the law required a different view, or that the decision was plainly wrong.
3. Material evidence should be disclosed before a public inquiry and raised during it. Late evidence may exceptionally be considered before promulgation, but the decision maker should disclose it promptly, state any potentially adverse preliminary conclusion, allow adequate time for response and offer to reconvene the inquiry. Those safeguards were not followed.
4. The inquiry clerk was a member of the regulatory body. The failure openly to identify the source of the evidence, its receipt outside the inquiry and the other disclosure defects created a perception of unfairness. Staff involved in investigating or preparing a case should not ordinarily act as inquiry clerk.
5. The Presiding Officer was entitled to consider the director’s conviction when assessing the company’s repute under regulation 5 of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012. He nevertheless failed adequately to consider and explain the discretion under regulation 9(1)(b) to disregard the conviction having regard to elapsed time and proportionality.
6. Revocation following loss of good repute is mandatory, but the finding must itself be proportionate. The decision maker must assess future compliance, ask whether the operator ought to be put out of business, balance positive and negative factors, consider alternatives and give adequate reasons. The Presiding Officer omitted material considerations and failed properly to take representations on revocation and alternative outcomes.
7. The Presiding Officer was also plainly wrong to state that the operator had breached section 23(1)(b) and (e) of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010. Those provisions identify grounds for regulatory action; they are not provisions which the operator itself breaches.
8. The financial-standing decision was not disputed, but the Tribunal observed that refusal of a period of grace requires sufficient information to assess whether there are reasonable prospects of establishing financial standing.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the decision of 12 May 2024 was set aside and remitted for redetermination before a different decision maker.
• Presiding Officer on behalf of the Department for Infrastructure (Northern Ireland): operator’s licence revoked with effect from 31 May 2024.