Nyanza Express Transport and Training Ltd & Anor
[2024] UKUT 267 (AAC)
Sean Convery
25 September 2024
[2024] UKUT 312 (AAC)
Upper Tribunal
A truck company owner's licence was wrongly taken away. A court heard that the process was unfair and the punishment too harsh. The licence was given back but with limits on the number of trucks he can use and a need to hire a new manager to make sure everything's done correctly.
Key Facts
- •Sean Convery's operator's licence (ON1113939) was revoked, and he was disqualified as a transport manager indefinitely.
- •The revocation was based on numerous Most Serious Infringements (MSIs), failure to notify the Department of these infringements, an unsatisfactory Driver and Vehicle Agency (DVA) audit, and insufficient financial standing.
- •Convery appealed, arguing procedural unfairness at the Public Inquiry (PI) and disproportionate penalties.
- •The Upper Tribunal found the PI to be procedurally unfair and the penalties disproportionate.
Legal Principles
The burden of proof rests on the Department, not the licence holder.
Muck It Ltd and Others v Secretary of State for Transport (2005) EWCA Civ 1124
Regulatory action should not be a punishment for past conduct but an assessment of the operator's current fitness.
Robinson v The Secretary of State for Environment [1973] 1 WLR 1139
Operator licensing is based on trust; the Department must trust operators to comply with regulations.
NT/2013/82 Arnold Transport & Sons Ltd v DOENI
On appeal, the appellant bears the burden of showing the decision is wrong.
NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI
Outcomes
Appeal allowed; the PO's decision was set aside.
Procedural unfairness at the PI and disproportionate penalties.
Convery's repute as an operator and transport manager restored.
Considering improvements made and disproportionate nature of original penalties.
Operator's licence restored, but curtailed to 3 vehicles and 3 trailers.
Balancing the need for safety with the unfairness of the original decision.
Convery must employ a new Transport Manager.
To ensure compliance moving forward.