AT THE HEART OF THE ROAD TRANSPORT INDUSTRY.

Call our Sales Team on 0208 912 2120

THE EFFECTS OF APPEALS

18th January 1935
Page 43
Page 44
Page 45
Page 43, 18th January 1935 — THE EFFECTS OF APPEALS
Close
Noticed an error?
If you've noticed an error in this article please click here to report it so we can fix it.

Which of the following most accurately describes the problem?

on the haulage industry Vital Principles That Underlie the Decisions of Licensing Authorities and the Appeal Tribunal. Points That Should Carefully be Watched in Seeking Discretionary Tonnage ALTHOUGH the Appeal Tribunal under the Road and Rail Traffic Act, 1933, commenced its public activities several months ago, its functions and the

principles upon which its decisions are based are not yet generally understood.

An analysis of the Tribunal's decisions, made in conjunction with a brief summary of the relevant Article (23) of the Goods Vehicles (Licetices and Prohibitions) Provisional Regulations, 1934, and of the Road and Rail. Traffic Act, 1933 (Appeal Tribunal) Rules, 1934, provides an informative guide to the principles governing the deliberations of the Tribunal. It should be realized that the decisions and comments of the higher court "must inevitably affect the rulings of the Licensing Authorities. Consequently, appeal decisions have considerably more than domestic significance.

The Time for Appeals.

Article 23 requires that an appeal against the action of a Licensing Authority shall, in the case of a notifiable applkation, be lodged within a month of the publication of the decision in "Applications and Decisions," and, in the case of a nonnotifiable application, within a month of the date of decision. It should, however, be noted that these regulations are at present under review.

The grounds of an appeal cannot be changed at the• hearing, as was attempted in the case of the Ewhurst haulage Co. In this instancQ, the Tribunal explained that, if it allowed The notice of appeal to be amended, it would, in effect, be entertaining an appeal on a notice not given within the prescribed period.

Briefly, the Tribunal's • Rules specify the seven sets of documents required to be supplied by the Licensing Authority to the Tribunal, copies of six of which may, on payment of a fee, be obtained by any party to an appeal, whilst the seventh may be secured free of charge.

The Tribunal has power to subpcena witnesses. In the case of Messrs. E. and H. Ridgewell, it was decided that Rule 9 of the Tribunal's Rules, requiring notice to be given of the calling of witnesses, applied only to subpcenaed witnesses and not to persons who were prepared voluntarily to give evidence.

Legal Assistance Desirable.

A party to an appeal may be heard in person. If the appellant, or a party applying for costs in the case of an abandoned appeal, or a person seeking authority to subpcena a witness does not attend the hearing of the application, the case may be dismissed. The appeal of Mr. j. T. Smith was refused for this reason.

Although the appellant himself has the right of audience before the Tribunal, he would be well advised to obtain legal assistance. If his appeal be opposed by the railway companies, he will have to submit to a searching examination by experienced counsel.

In this connection, we would stress the importance of accuracy in statistical and other data submitted to Licensing Authorities, as well as to the Tribunal. In several cases objectors have been able to show that figures prepared as evidence by hauliers were incorrect. In such an event the question must inevitably arise, at least subconsciously, of whether the errors were 'intentional.

There is current an impression that an appeal is bound to fail. Although this idea is completely erroneous, its foundation is, perhaps, not far to seek. The majority of appeals has been dismissed and, in some cases, the appellants' activities and methods of presenting their cases have been adversely criticized.

Nevertheless, several appeals have been allowed, and on a recent occasion at Nottingham the Tribunal upheld an appeal without the slightest hesitation.

The functions of the Tribunal are judicial, and not administrative, and each case is decided on its merits. The policy of the Tribunal is thus opposite to that of the Minister of Transport in his appellate capacity under the Road Traffic Act, 1930. As is now well known, the Minister's decisions are made in furtherance of an administrative policy, but with due regard, it is claimed, to the elementary factors of justice.

For some time passenger-transport operators have been agitating for the appointment of an independent, judicial appeal tribunal. The Minister has, so far, been unable to accede to this request, a possible reason being a natural reluctance to sacrifice power. As, however, goodsvehicle owners have been afforded this concession of justice, publicservice-vehicle operators may, with perseverance, eventually succeed in their rightful claim.

Sympathetic Grounds Useless.

Some appeals have been based partly on sympathetic grounds, but the Tribunal does not recognize such claims. Appellants must show that industry would be hampered if the Licensing Authority's decision were allowed to stand unaltered.

An important principle concerning grounds of appeal emerged from the case of Mr. T. Lucas and others, who did not allege that they were aggrieved by the decision of the Licensing Authority on their application. They sought, however, to obtain from the Tribunal a decision that an objection lodged by an authorized agent (an official of the Commercial Motor Users Association) for a disclosed principal, who is entitled to object, is a valid one, and that a joint objection by persons entitled to object is valid. The Tribunal decided that the appellants were not aggrieved within the meaning of Section 15 (1) (b) of the Act, therefore it had no jurisdiction to entertain the appeal.

The Tribunal's opinion of the n29

duties of an applicant was conveyed in the case of Messrs. J. 'Enston and Sons, when it was stated that " he must discharge the onus of proving that there are persons ready and willing to employ ' him and, in addition, must lead evidence sufficient to make out to the satisfaction of the Licensing Authority a prima facie case that the haulage work which he proposes to carry on, or embark on, cannot, for some reason or reasons, be done by other existing operators, whether road or rail. If he does this,then 'it is for the objectors, if they can, to rebut the prima facie case which the applicant has made."

This decision is, perhaps, the most contentious that has yet been made under the Act. It saddles an applicant with the burden of a duty which is, in normal circumstances, virtually impossible of fulfilment. In most cases the railways can justifiably submit that they can carry the traffic proposed to be handled by the applicant, although whether they could deal with it to the satisfaction of the customer is another matter. It is also likely that other operators in the district could claim to be able to perform the work.

A Heavy Burden.

Under the usual principles of court practice, it appears that the objectors should establish that the proposed haulage can be carried out by them. Despite the fact that Mr. Rowand Harker, K.C., the chairman, once remarked that the proceedings of the Tribunal would be conducted with some regard to precedent, the applicant has been set the almost hopeless task of proving the negative.

The decision also raises other vital questions. Could it be construed as an instruction to Licensing Authorities not to grant licences to applicants who do not satisfy that requirement, although the Act does not, in its terms, empower the Tribunal to give directions to the Authorities? Moreover, is that ruling sound in law ? These issues are too wide to be discussed in this article, but they will be closely investigated in a subsequent article.

It appears that the Tribunal is not certain that its ruling concerning the onus of applicants could generally be applied, for in the case of Mr. J. T.

Plenty it -was stated : it is not necessary for us to decide, in this casehow far, if at all, that decision is applicable to an applicant for a B licence."

As it happens, in his appeal Mr. E. C. Fry was able to show that the u30

supply of transport in his district (Northam, Devon) was inadequate, but the circumstances were exceptional.

Some indication of the Tribunal's opinion on the definition of "adequate facilities" can be gained from this case. In evidence, which was regarded by the Tribunal as valueless, a witness expressed the opinion that sufficient road transport should be provided in his district to enable . a lorry to be obtained at not more than an hour's notice. The Tribunal thought this view to be much exaggerated.

The Rights of Traders.

This question of the responsibility of applicants is closely applied to a principle raised in the appeal of Mr. R. F. Petrie. On his behalf it was submitted that traders were entitled to a choice of hauliers, and that although there might be other operators ready, able and willing to carry their goods it was, in the traders' and the public interest that the number of hauliers should be increased.

The Tribunal construed this argument as implying that it was the Licensing Authority's duty to increase the supply of transport, so that -traders might have still greater opportunities of bargaining with operators. The Tribunal disagreed with the appellant's submission and remarked that it would, in effect, deprive the Licensing Authority of the discretion given by the Act and place it in the hands of traders.

In our opinion, a haulier may reasonably expect that, when his customers have new work to offer, they will afford him the first opportunity of carrying it out. This expectation might be thought to be an adequate ground for an application for additional vehicles, but the ruling in the Petrie case contradicts this view.

Important statements concerning the hiring of vehicles by hauliers, as opposed to the enlargement of their own fleets, were made in the appeals of the London, Midland and Scottish Railway Co. and the London and North Eastern Railway Co. versus R. Barr (Leeds), Ltd. In this instance the Tribunal stated that "the question as to how far a Licensing Authority is justified in authorizing an applicant to use vehicles of his own, instead of continuing to hire vehicles, is one which, in our opinion, must depend on the circumstances of each case."

R. Barr (Leeds), Ltd., had for some years hired vehicles when it was more convenient and cheaper to do so, rather than tti acquire new machines or to use vehicles already in their possession. No evidence was given to show that the company had experienced any difficulty in hiring. The Tribunal expressed the view that, when a haulier had adopted a policy similar to that of the Barr concern, a Licensing Authority was not justified in granting discretionary tonnage solely because the haulier wished, in future, to avoid the need for hiring.

There might, in some instances, be special circumstances justifying such a grant, and in one respect such circumstances existed in the Barr case. It was shown to be highly desirable, from the points of view of both the Barr company and traders, that certain goods should be transported in vehicles driven and controlled by the company's employees.

The Tribunal obviously appreciates the delicacy of the situation regarding hiring. It stated that if a company, which had as a general policy hired to a considerable extent, was allowed to acquire additional vehicles hauliers who had invested capital in providing vehicles for that concern would have machines on their hands with little or no work. -

On the other hand, it is, in our opinion, important that unduly close limits should not be imposed on the. acquisition of additional vehicles by hauliers for their own purposes.

An Unsound Argument.

The necessity of observing regulations concerning driver's hours and the loading of vehicles is not good evidence for the increase of a fleet, because, as was pointed out in the Barr case, these provisions have, for the most part, been in force since early in 1931. Such a submission of need was made in the case referred to, but the Tribunal inferred from the evidence that the business and profits had been increased by overworking the drivers and overloading the vehicles.

In the appeal of L. V. Ward and Co. it was argued that the appellant's sub-contractors had obtained business on their own account from the principal's customers. Mr. Harker replied that such risk as the appellant ran of losing customers to sub-contractors was one which every person who hired vehicles must accept.

It is clear that an allegation of difficulty in hiring vehicles will not assist an applicant's_ or appellant' a case, unless he be able to substantiate it with a number of definite instances of inconvenience; dates and other

relevant details should be given where possible. In submitting evidence as to difficulty in hiring, proof should also be given that the inconvenience is not caused by the underpayment of sub-contractors.

Another significant statement concerning the increase of fleets was made in the itidgewell case. The Tribunal remarked : " It is clear that, if increased tonnage was authorized solely on the evidence of increased work for particular crustomers, an applicant could secure dual grants. We think it of great importance that this possibility, or maybe probability, should be guarded against by Licensing Authorities, otherwise the control provided for by the Act would be seriously jeopardized."

A feature of the hearing of appeals has been the number of applications for the admission of new evidence, and a statement by Mr. Harker in the appeal of Mr. W. H. Taylor indicates the requirements of the Tribunal in the matter. "Appeals to the Tribunal are not,"• he said, " new trials or re-hearings, and, before we allow any new evidence to be given, we must be satisfied that such evidence is material to the questions we have to decide, and the party desiring to give or call new evidence must give some reasonable explanation as to why that evidence was not called before the Licensing Authority."

In the appeal of Mr. J. T. Plenty the Tribunal pointed out that, "whilst we cannot, as at present advised, go so far as to say evidence as to events which happen after the Licensing Authority has given his decision will never be allowed to be given on appeal, we can, and do, say that it will, if at all, be allowed only in most exceptional circumstances." Several smaller, but interesting, points emerge from the Tribunal's decisions on appeals. It is clear that an applicant for discretionary tonnage who was, during the basic year, a partner in another haulage business, but now operates on his own account, has no security in the fact ot his operation in such capacity during that year.

Moreover, the Tribunal is not prepared to accept undertakings by appellants to use A-licence vehicles only for limited haulage for certain concerns. The Western Licensing Authority, has, however, made such agreements, although the Tribunal is doubtful whether a breach of the undertaking would be an adequate reason for a refusal to renew a licence. Cases of this sort are, in the Tribunal's opinion, typical of those intended by Parliament to be dealt with by contract licences.


comments powered by Disqus