Trevor Cathers & Trevor Cathers Limited -v- The Minister for the Department for Infrastructure [2022] NICA 76
Summary
This is the first operator licensing case to come before the Northern Ireland Court of Appeal since 2002.[1] This was a rather extensive decision on determining leave to appeal from a decision from Upper Tribunal.
The Cathers decision will be of use to practitioners in advancing A1P1 and Article 6 ECHR arguments in relation to operator licensing proceedings.
Facts
There were two appellants in this case:
- 1st – Trevor Cathers.
- 2nd – Trevor Cathers Limited (whose sole director was Alister Cathers).
Trevor Cathers held an operator’s licence in Northern Ireland and an operator’s licence in Scotland. The Scottish operator’s licence was revoked by the Office of the Traffic Commissioner in May 2016.
In October 2016, the second appellant company was incorporated and, a little later, applied for an operator’s licence, but was not immediately granted.
Two years later, in October 2018, the TRU issued a propose to revoke (PTR) letter to the 1st Appellant (Trevor Cathers) in relation to the Northern Ireland operator’s licence. The public inquiry into Trevor Cathers’ licence was held in January 2021. This PI also decided upon the limited company’s application for an operator’s licence.
The decision of the TRU was to revoke Trevor Cathers’ operator’s licence and to refuse the limited company’s application.
Both decisions were appealed to the Upper Tribunal and were dismissed in November 2021. The Upper Tribunal refused permission to appeal to the Court of Appeal in December 2021.
Issues
The decision of the Upper Tribunal from November 2021 was the subject of this appeal to the Northern Ireland Court of Appeal. This was the UT decision pertaining to the revocation of the Northern Ireland operator’s licence of Trevor Cathers and the failure to grant a licence to the limited company.
The two main ‘pillars’ (as described at [24]) were: A1P1 read with section 6 of the HRA and Article 6 of the ECHR due to the considerable time delay in bringing the issues to hearing.
In relation to A1P1, Mr Clarke of counsel for the Appellants submitted that there had been excessive delay in convening the public inquiry giving rise to unlawful interference with their rights to peaceful enjoyment of their property. Further, by reason of the delays of the respondent, Trevor Cathers was deprived of the opportunity to advance, at a timeously convened public inquiry, the case that the TRU should exercise their discretion in a manner favourable to him by permitting termination of his operator’s licence (a voluntary surrendering of his licence).
As for the limited company’s A1P1 rights, the Appellant argued that it had been denied prospective possession (in contrast to Trevor Cathers’ actual possession) owing to the Upper Tribunal’s decision not to overturn the TRU on the refusal to grant the company an operator’s licence.
In relation to the second pillar, it had been argued that the inordinate delay by the TRU had breached the Appellants’ Article 6(1) rights in relation to cases being dealt with within a reasonable time. Further, as a result of the breach, Trevor Cathers should be permitted to voluntarily surrender his operator’s licence and in relation to the limited company, an operator’s licence ought to be granted to it.
Of academic interest also is [23] which considers the Upper Tribunal’s decision not to grant leave to appeal to the Court of Appeal.
Decision
At [25], McCloskey LJ, delivering the judgment, reminds us that a crucial element of any A1P1 argument is the degree of interference. The first Appellant’s submissions did not find favour with the court, which held that considering Trevor Cathers had intended to surrender his licence, it cannot be said that his peaceful possession had been interfered with.
In relation to the second Appellant’s A1P1 submissions, McCloskey LJ held that, in addition to the consideration of interference, a test of whether the possession is in accordance with the general interest must be applied. This application to the facts of the limited company led to a clear answer that, although there had been a breach of its A1P1 rights; on the basis that wrongdoing by the limited company had been established (namely, being used as a ruse to circumvent the decision of the Scottish TC in 2016), the interference “was manifestly in the public interest” ([32]).
As for the Article 6 submissions, the Court found that there had indeed been a breach of the reasonable time guarantee under Article 6(1), there having been a delay of four years and three months (described by the Upper Tribunal at second instance as being “insupportable”, “deplorable” and “inexcusable” [20]). However, the next consideration is “where this should have led as a matter of law” ([42]).
The court applied AG’s Reference No.2 of 2001[2] which concerned criminal proceedings, which often involve the loss of liberty or reputation pre- and post-trial. The remedy for such cases will be an acknowledgement of the breach, a reduction in penalty or payment of compensation to a defendant ([44]).
However, applying this to the instant case, the Court considered that if the remedy sought by the Appellants were to be “…sanctioned by this court…. the unchallenged regulatory action taken against both Mr Cathers senior and Mr Cathers junior in Scotland, the undisputed breaches of the first appellant’s licence conditions [and undertakings] and the overwhelming evidence of four years of business operations in defiance of the regulatory regimes would be cancelled at a stroke” ([45]).
Reliance was also placed on the inevitability of the decision being the same, whether heard timeously or otherwise ([48]).
Discussion
A1P1 arguments are quite often engaged at public inquiries and at appeals to the Upper Tribunal. This, however, appears to be the first time a Court of Appeal has addressed this ground of action in relation to operator licensing.
Although nothing particularly ground-breaking has been decided, [32] is an obiter door stop, holding open the possibility of A1P1 claims for prospective interference due to inordinate delay by the TRU – importantly, absent any wrongdoing on the applicant’s behalf which might engage the ‘general interest’ test. This marks a slight change from the usual A1P1 engagements – where an existing licence is revoked, suspended or curtailed.
As for the Article 6 grounds, four years and three months is quite clearly a breach of the reasonable time guarantee. Practitioners in this jurisdiction will be aware of some of the listing pressures at the TRU over the past few years. However, this decision makes clear that an Article 6 action may not be of particular use in many cases. [43]-[44] reminds us to look at the effect of the delay in the round. An application case will be considerably different to a revocation case; particularly if a stay of the decision has not been granted.
At [52] et seq. McCloskey LJ adds a section titled ‘a brief discourse’ and examines some other Article 6 jurisprudence. In short, another factor to consider is whether the delay occurs between the hearing and the issue of the decision letter; or if the delay relates to getting the matter to a hearing. Judgments in favour of Appellants who have had to wait unreasonable durations for a decision letter after the hearing has taken place, are generally limited to exceptional circumstances and have not led to a general rule that a decision may impugned due to excessive delay without more.
As for the matter raised at [23] (power to grant leave to appeal). McCloskey has dealt with this slightly differently than the Court of Appeal in London. In previous Court of Appeal decisions, the procedure of appealing from the Upper Tribunal to the CoA has been described as a “first appeal”,[3] a simple application of section 13 of the Tribunals, Courts and Enforcement Act 2007,[4] or simply not addressed at all but noting that leave to appeal had been refused by the Upper Tribunal.[5] As such, it appears that it is settled law that the Upper Tribunal do have jurisdiction to determine applications for leave to appeal to the Court of Appeal. This will be under section 13 of the 2007 Act and under the first appeal procedure, and not the second appeal procedure under section 13(7).
[1] Which had been on a discrete point of convictions and rehabilitation; Re Joseph McParland’s Application for Judicial Review [2002] NICA 22
[2] [2003] UKHL 68
[3] Catch22Bus Ltd. & anor. -v- SoS for Transport [2019] EWCA Civ 1022, [36].
[4] Bradley Fold Travel Ltd & anor. -v- SoS for Transport [2010] EWCA Civ 695, [41]-[42].
[5] Coach Hire Surrey Ltd & anor. -v- Traffic Commissioner for the London and South East Traffic Area [2020] EWCA Civ 1706, [2].
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