Decision

Decision for WBM South East Ltd

Published 8 March 2024

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

1. WBM SOUTH EAST LIMITED OK2066895

2. TRAFFIC COMMISSIONER’S WRITTEN CONFIRMATION OF AN ORAL DECISION AND SUMMARY OF REASONS

2.1 GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

3. Reasons

The full history is set out in the Public Inquiry case bundle and in particular summarised on pages 2-4 of that bundle. It makes indefensible reading. Counsel Mr Simon Collingham, representing the Applicant, gave a helpful opening which acknowledged from the Directors that the previous licensing history means that they came to the hearing with no expectations. This is not surprising when that history includes unlawful operation of large vehicles and unsafe practices when holding operator licence OK1124193 WBM Scaffolding Ltd. I revoked that Licence from 23:45 on 29 August 2019 after a Public Inquiry the same day, confirmed in writing by e mail and letter on 30 August 2019. I also disqualified WBM Scaffolding Ltd, Mr Julian Drage and Mr Westley Brown from holding or obtaining an Operators Licence or being involved in any entity that holds or obtains such a Licence in Great Britian for an indeterminate period with effect from that date and time. I found them both to be dishonest, disingenuous, and disengaged. The reasons for making those serious conclusions are set out in my written confirmation of oral decision, found at pages 122-125 of the Public Inquiry bundle. In terms of disqualification that decision includes:

• “In my judgement the circumstances of this case warrant a period of disqualification. This Operator was given a chance in 2013. It is saying today all the things it will have said in 2013. It is an aggravating feature that on 22 August 2019, Mr Drage uploaded a new application including a number of false statements for the new company application. The directors have posed a significant risk to road safety and gained an unfair competitive advantage for a long period.  Further it is a message to the industry as a whole that there will be no advantage in the end to disregarding the regime. The message is that only lawful operation pays dividends. The only glimmer of hope for these directors is that the period is not fixed. They can apply to lift the disqualification at any time, but the test is a high one. The test must be met and the disqualification removed before any new application can be considered.  I have already said that the application currently on the system needs to be withdrawn, the disqualification adds to that.  Urgent, informed legal advice is needed.”

This was the starting point for any new application. As per the case summary, there was a further attempt to obtain a Licence application being prepared on the same day as the hearing (as per VOL change history) and submitted online on 3 September 2019. It follows that no proper consideration was given to anything I said at the hearing at that point. Further, these Directors continued to operate in-scope vehicles even though there was no Licence in force at the time. Just two months after the revocation, one of its vehicles SN67UKC was on the road and the driver Terry Martin said that he was working for WBM Scaffolding Ltd. That Company was in liquidation from 9 August 2019, with no Regulation 31 in place. In any event by that time the Directors had incorporated WBM South East Ltd, and it was more likely than not over the period between the 8 October 2019 and 6 November 2019 (when it was also driven without a tachograph card on 15 occasions), it was working for the benefit of WBM South East Ltd. Since that time, the various statutory liquidator reports have been uploaded to Companies House. There reports now raised questions both as to what I was told at the 2019 Public Inquiry, and what was submitted by the Applicant’s bundle submitted for the Inquiry on 11 January 2024.

Mr Drage told me on the 28 August 2019 that he was unaware of the actual date WBM Scaffolding Ltd’s CVA moratorium ended and it  went into liquidation and Mr Brown deferred to Mr Drage on knowledge (page 123 of the Public Inquiry bundle). The first annual Liquidator report in fact confirms that the assets of WBM Scaffolding Ltd were sold to WBM South East Ltd under a pre-pack arrangement for £282,000 inc VAT to be paid by way of 36 monthly instalments of £7,833.33. The successive reports confirm that a short payment holiday was agreed for the first few months of the COVID pandemic, but no payments were made at the end of that holiday period to the next report. Thereafter the report ending 8 August 2022 confirmed that only £30,000 had been recovered during that period. The fourth report (09 August 2022 to 08 August 2023) states that only £66,501 had been received in total since liquidation, when the full amount was due to have been cleared by the 25 August 2022. It confirms a breach of the agreement and that investigations had been reopened. When I raised this with Mr Drage at the hearing he said that the balance was finally paid on 6 December 2023 to the liquidators. Mr Drage gave the impression that was a sufficient explanation. It is not. I asked Mr Drage why WBM South East Ltd had been set up in the first place and he confirmed it was due to financial advice because of the bad debt held by WBM Scaffolding Ltd. I asked Mr Drage how this chronology sits with his oral evidence at the 2019 PI. The liquidator annual reports clearly contradict his account. Mr Drage accepts that these were further deliberate untruths he told me in the Public Inquiry in August 2019. I asked Mr Drage what assets were actually purchased for the £282,000 and he confirmed that it was scaffolding poles and boards but that the vehicles were leased, and they went back around September – October 2019. I pointed out that at least one of those vehicles was on the road illegally until 6 November 2019. Mr Drage admitted that they continued operating the vehicles in part to be able to meet the payments to the liquidator. I note there that I asked Mr Drage what happened to SN67UKC after 6 November 2019, he told me that the vehicle went back to the lease company. I do not believe him. The vehicle went on to a different local licence the next day for just a week and on balance it is more likely than not that these Directors’ approach is such that it unlawfully “borrowed” someone else’s Licence – again, unlawful.

It follows that despite the care I took to make myself crystal clear, what I said and wrote in August 2019 fell on deaf ears. Further, the Directors have built the business of WBM South East Ltd by failing to pay for the very assets they were using to launch the new business. WBM South East Ltd is founded on disingenuous behaviours to the detriment of those left owing by WBM Scaffolding Ltd and its ongoing competitors. This strikes at the heart of fair competition.

In support of financial resources and to demonstrate that they will not go into liquidation again, the Directors made very positive statements about how healthy the current financial position is for WBM South East Ltd. It now has been awarded a lucrative contract to work on a site in central London with an existing customer worth seven figure sums over a two-year period (page 131-132 of the bundle). I am pleased that such work is available, but if it needs an Operator Licence then it should be available to the hard working and honest scaffolders in Great Britian who comply with the Licensing regime in terms of lawfulness, safety, and finances (including paying their bills as and when they fall due). Instead, WBM South East Ltd are in a position to bid for this work despite its indefensible Licensing history which continued even after I revoked the last Licence. The acts and omissions of these two Directors since 9 August 2019 inform me that little has changed about their selfishness to the detriment of others. Mr Drage told me that he has a whole new approach to life as it is now turning into a family company with him and Mr Brown having sons in the business. The challenge for me there is what they are actually learning when it comes to running a business and that will need to be considered if family members make an application in the future.

At the Public Inquiry in August 2019, I was not only concerned about honesty but also about lack of basic knowledge and commitment, both Directors  having failed to step away from commercial need and in to the office to put compliance first. Mr Drage sought to persuade me that his knowledge was vastly improved through home learning but when I asked actually what he had done and what he had read it was a lot of waffle. The only positive is that the company are putting Mrs Cara Waterer (Manager) through her Transport Manager CPC and that they will join the Road Haulage Association. Mrs Waterer attended the hearing. I do see the involvement of Mrs Waterer as a positive but I can only give it limited weight because of who she reports to.

In closing, Mr Collingham asked me to accept Mr Drage has taken responsibility for his previous behaviours and that building blocks are being put in place to move back towards trust and gaining knowledge. Mr Drage asked me to accept that he can learn from his “mistakes” and that those mistakes were not deliberate. In my judgment every time Mr Drage has lied to me it has been deliberate. He has lied to me in my own Public Inquiry room and acted dishonestly thereafter. The only other positive is that Mr Drage now knows what I have come to learn of his acts and omissions since 2019 and the impact it has and will continue to have on WBM South East Ltd until I am satisfied that he is finally committed to doing things properly at every level. It is for that reason alone that I have lifted the disqualification in relation to him. Mr Brown did not attend and therefore I am not in a position to make any decision about him but the findings of fact in this decision will impact any application he makes in the future for a Licence. Accordingly, I have reached the decision set out in paragraph 1 above.

3.1 Addendum:

A copy of this decision will be sent to the liquidators for WBM Scaffolding Ltd.

4. Decision

The application to cancel the disqualification under Section 28 of the 1995 Act in relation to Mr Julian Drage is granted.

The disqualification order regarding Westley George Brown remains.

The application by WBM South East Ltd OK2066895 for a Restricted Licence authorising three vehicles is refused.

Miss Sarah Bell

Traffic Commissioner

Written confirmation: 1 February    2024