Decision

Decision for Truck Trans Ltd

Published 26 February 2024

0.1 EAST OF ENGLAND TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. PUBLIC INQUIRY HELD IN CAMBRIDGE ON 8 JANUARY 2024

3. OPERATOR: TRUCK TRANS LTD LICENCE OF2018388

4. Background

Truck Trans Ltd holds a standard international goods vehicle operator’s licence (OF2018388) for 15 vehicles and 10 trailers. No vehicles are currently specified. The licence was granted in December 2018. The sole director of the company is Ionut Paun. The nominated transport manager on the licence is Catalin Paun, Ionut Paun’s brother.

5. 2021 Public inquiry

Truck Trans Ltd was called to a public inquiry on 12 July 2021, due to a high prohibition rate and poor MOT test history. The repute of transport manager Catalin Paun was marked as tarnished but not lost, and the operator gave an audit undertaking.

6. DVSA stop of vehicle

On 10 September 2021 (i.e. two months after the public inquiry referred to above), DVSA stopped vehicle EY65 FCO. The licence disc displayed in the windscreen was in the name of RW Boyes (Transport) Ltd and had expired on 30 June 2021. The driver stated that he was working under the instruction of Truck Trans Ltd. DVSA traffic examiner Sean Bateman checked and found that the vehicle was not specified on any licence. He checked the licence of Truck Trans Ltd and found that the company was authorised to operate 15 vehicles: 15 vehicles were specified on its licence but EY65 FCO was not one of them. TE Bateman phoned the operator and spoke to director Ionut Paun. Mr Paun said that he was unsure whether his company was operating the vehicle EY65 FCO and needed to check. Mr Paun phoned TE Bateman back five minutes later to confirm that the vehicle was indeed being operated by Truck Trans Ltd: he asked what the problem was. TE Bateman then noticed that EY65 FCO had been specified on Truck Trans’s licence in the five minutes between the two phone calls. He drew Mr Paun’s attention to this: Mr Paun at first denied it, but when TE Bateman mentioned that he could see the date and time of the vehicle change on his system, Mr Paun stated that the previous failure to specify it had been an administrative mistake. TE Bateman noted that tachograph evidence showed that the same driver had been driving EY65 FCO since 20 August 2021.

TE Bateman’s downloads of the driver’s card and vehicle tachograph unit revealed several serious drivers’ hours infringements as well as three significant instances of driving without a card. He issued four fixed penalties to the driver totalling £900.

At the same encounter, DVSA vehicle examiner Seadon noted that the MOT of the trailer being drawn by EY65 FCO (trailer C159085) had expired on 30 June 2019.

7. DVSA follow-up investigation

DVSA traffic examiner Matthew O’Connor carried out a follow-up investigation of the company’s drivers’ hours compliance over the period 13 September to 12 December 2021. His subsequent report noted the following areas of concern:

• there were 6039 missing kilometres (i.e. kilometres when the vehicle was driven without a tachograph card) over the 3 month period;

• the operator’s explanations for these missing miles consisted of simple manuscript annotations: “mechanical test”, “yard shunting” and “delivery to PMI” (preventative maintenance inspection). It was next to impossible that these occasions could account for so much missing mileage;

• on numerous occasions there had been a very swift (less than a minute) change of driver tachograph cards, a potential indicator that the same driver was using two different cards. ANPR data showed that many of these changes had taken place hundreds of miles from the operating centre, with no record of any positioning journeys by a second driver;

• one of the tachograph cards involved in these quick switchovers away from base was that of the director, Ionut Paun;

• three vehicles not specified on the licence had been operated during the 3 month period – these were in addition to the 15 specified on the licence. There appeared to be more than 30 occasions when more than 15 vehicles had been operated at the same time;

• almost all drivers were “self-employed”.

Interviewed by DVSA, transport manager Catalin Paun said that he could not remember whether he had issued drivers’ hours infringement reports to drivers. He probably had. He did not believe that more than 15 vehicles had operated at any one time but changing of vehicles on the licence was done by people in the office, not him. He had not seen any missing mileage reports but would have acted on them if he had done.

Also interviewed by DVSA, director Ionut Paun said that any driving recorded on his card had been done by him. He had not given his card to other drivers. He may have gone in other vehicles to take over from drivers as they had run out of hours. He had not realised the need to record these positioning journeys. He accepted that he had not been recording his walk-round checks on his tachograph card.

TE O’Connor concluded that the operator appeared to treat compliance with legislation as an inconvenience and that actual compliance was potentially non-existent. He considered that Ionut Paun’s “actions as a driver and leader of the company were a serious threat to road safety”.

8. Public inquiry

Concerned by this report, I decided to call the company and its transport manager to a public inquiry. A number of drivers were also called to parallel driver conduct hearings. Call-up letters were sent on 4 December 2023. The letters cited Section 26(1)(b), (c)(i), (ii) and (iii), (ca), (e), (f) and (h) and Section 27(1) of the 1995 Act.

The public inquiry took place in Cambridge on 8 January 2024. Present were director Ionut Paun and transport manager Catalin Paun, assisted by an interpreter. TE Mathew O’Connor was also present.

Evidence of Ionut Paun

Ionut Paun made the following points:

• the company had not operated any vehicles for the past year. No vehicles were now specified on the licence;

• he had applied on 29 September 2021 for an increase to 25 vehicles and had received an email from the licensing team in Leeds saying that he could operate the increased number. He had later received an email saying that they had changed their mind. [There was no trace of either of these emails on the system: on the contrary, there is a letter from the licensing team to the operator dated 12 October 2021 which specifically says that the company should not operate beyond its existing authority until the application for an increase is decided.]

• Ionut Paun denied that he had ever lent his card to other drivers.  Asked to explain the numerous instances of where his card was used for short periods away from base, filling in gaps between the use of a card by another driver. Mr Paun said that he would help his drivers out around the country when they ran out of hours. When I pointed out that many of the card changeovers had occurred far from base, he said that he had frequently stayed in hotels around the country. Invited to present evidence of payment of hotel bills in support of this statement, he changed his evidence and said that in fact he had normally slept in his car.

• Autumn 2021 had been a very busy period, with the Covid crisis at its height. Mr Paun realised that he might have made some mistakes. He wanted to be given the chance to show that he could improve and run compliantly.

Evidence of Catalin Paun

Catalin Paun said that he now preferred to withdraw as transport manager for the company. For every drivers’ hours infringement he had handed the driver an infringement report to sign and they had signed it. He had sent some drivers on CPC refreshers. [TE O’Connor intervened at this point to say that he had been given only one signed infringement letter in the original production of records for the 3 month period in question.]

9. Findings

After considering all the evidence, I make the following findings:

• the company lacks stable and effective establishment in that no vehicles have been specified on the licence since March 2023 (Section 27(1)(a) of the 1995 Act refers). It also lacks stable and effective establishment in that it has not fulfilled the requirement of having drivers in proportion to the fleet. Only one driver appears to have employed status.

• the company has failed to fulfil its undertakings –

• to ensure the lawful driving and operation of vehicles (Section 26(1)(f) refers). A trailer was operated out of MOT. The company has operated more vehicles than it was authorised to use. I was not persuaded by the company’s argument that it had received permission from the central licensing team to operate extra vehicles. The only piece of evidence which exists directly contradicts this argument.

• to ensure that rules relating to drivers’ hours and tachographs are observed. There was a very large amount of driving without a card over the three month period looked at.  I find the company’s catch-all explanations of yard movements, road testing and delivery to PMI to be wholly inadequate to explain this. In addition to the numerous infringements committed by drivers over the period September to December 2021, the company’s drivers continued to incur fixed penalties for drivers’ hours offences throughout 2022.

  • seven of the company’s drivers have incurred convictions for failing to make a tachograph  record or for making false tachograph records (Section 26(1)(c)(ii) refers).

  • at least four of the company’s drivers have incurred fixed penalties for drivers’ hours offences since September 2021 (Section 26(1)(ca) refers);

  • in addition to the above, I make a specific finding that director Ionut Paun has lent his tachograph card to other drivers to facilitate driving in excess of their permitted hours. This is a “most serious infringement” as defined in Regulation EC 1071/2009. I reject his assertion that he was travelling around the country and filling in where and when needed. For example, on 23 September 2021 Ionut Paun’s card was used for 36 minutes between 0342 hours and 0418 hours. The vehicle was seen at the same time by ANPR cameras in Cumbria, more than 300 miles from the operating centre in Purfleet, Essex. This period of 36 minutes driving is sandwiched between periods of driving by another driver and would conceal a driving period of 4 hours 55 minutes without a break by that driver. It is not credible that Ionut Paun would travel more than 300 miles to Cumbria to drive a vehicle while the first driver took a break, then travel 300 miles back again. In another example, on 17 November 2021 Ionut Paun’s card was inserted for 50 minutes between 2205 hours and 2256 hours. Another driver’s card was removed less than a minute before Mr Paun’s was inserted and was again inserted less than a minute after Mr Paun’s was withdrawn. The vehicle was at the southbound services at Rothers Thorpe in Northants at the time Mr Paun’s card was inserted, over 90 miles from the operating centre. Again, it is not credible that Mr Paun would have travelled that distance just to take over for 50 minutes. These are just two examples from more than 30 over the 3 month period looked at. There are no records of any positioning journeys or of any cards in slot 2. I conclude that by far the most likely explanation of these occurrences is that Ionut Paun lent his tachograph card to other drivers for use if they found themselves running out of hours.

  • the transport manager Catalin Paun is not of good repute (Schedule 3 and Section 27(1)(b) of the 1995 Act refer). He has clearly failed to exercise the required continuous and effective management of the transport activities of the business. On his watch in autumn 2021 there was a huge amount of missing mileage which, even if he was not complicit, went unnoticed by Catalin Paun. Still worse, Ionut Paun was lending his tacho card on an almost daily basis to drivers to facilitate serious drivers’ hours infringements. Catalin Paun should have spotted the strange pattern of use of Ionut Paun’s card. Even if he was not fully cognizant of the use of Ionut Paun’s card by other drivers, he must have been shutting his eyes to the obvious. Further, his lack of effective control is emphasised by his failure to realise that more than the authorised 15 vehicles were in possession and in use. Catalin Paun’s repute was tarnished at a public inquiry in July 2021 but this does not seem to have acted as a stimulus to do better. I find that his repute cannot survive the degree of neglect (if not active connivance) which the present inquiry has revealed.

10. Consideration

Balancing act

I weighed up the negative against the positive issues. On the negative side were the above findings. I could not find anything substantive to put on the positive side, apart from Ionut Paun’s intention to do better in the future and that he had co-operated with the DVSA investigation (although I have found that he was untruthful when interviewed about the use of his card). I consider that the negatives heavily outweigh the positives.

Priority Freight and Bryan Haulage questions

I asked myself if I could trust this operator to be compliant in the future (the Priority Freight question). The answer is an emphatic no. The operator was found to have compliance issues at the public inquiry in July 2021. Instead of improving, it operated more vehicles than authorised and completely failed to ensure that drivers’ hours rules were observed. Indeed, the director was complicit in helping drivers to evade these rules. The company cannot therefore be said to be of good repute (Section 27(1)(a) refers).

A negative answer to the Priority Freight question tends to suggest an affirmative answer to the Bryan Haulage question of whether the operator deserves to go out of business. The scale and range of the drivers’ hours offences found in the DVSA investigation, and the fact that the operator has prioritised commercial considerations rather than fulfilling its undertakings and complying with the law, leads me to conclude me that it does.

11. Decisions

Operator licence

I have concluded that the operator lacks good repute and stable and effective establishment. Owing to the recent resignation of Catalin Paun as transport manager, it also now lacks professional competence. Revocation of the licence is therefore mandatory under Section 27(1)(a) of the 1995 Act. I am also revoking it under Section 26(1)(c)(ii), (ca) and (f) of the 1995 Act. As the company is not currently operating vehicles, there is no need to allow any time for the business to be wound down: the revocation will take effect from 0001 hours on 9 February 2024.

Disqualification – Operator

For the reasons outlined above, and having performed the same balancing act, I conclude that both the company and director Ionut Paun should be disqualified under Section 28 from holding or obtaining an operator’s licence in the future and (in Mr Paun’s case) from being the director of any company holding or obtaining such a licence. In deciding upon the length of the disqualification, I have taken account of paragraph 108 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This states that for a first inquiry a disqualification of between one and three years could be appropriate and that in severe cases where, for example, the operator allows drivers to falsify records, an indefinite period of disqualification may be merited. I conclude that Ionut Paun should serve at least a five year period of disqualification, given the seriousness of his misconduct.

Disqualification – Transport Manager

Having removed his good repute, I must also disqualify Catalin Paun from acting as transport manager on any operator’s licence (paragraph 16 of Schedule 3 refers). I consider that his failings have arisen out of gross neglect rather than actual connivance with the wrongdoing of his brother Ionut Paun (there was insufficient evidence for me to find that Catalin Paun definitely knew what was going on). But his neglect allowed truly appalling practices to prevail. I am disqualifying Catalin Paun from acting as transport manager for a period of three years, until 9 February 2027.

11.1 Nicholas Denton

Deputy Traffic Commissioner

2 February 2024