Decision

Impounding: Written decision regarding an impounding by the Deputy Traffic Commissioner for the North Eastern Traffic Area for H J Van Bentum BV

Published 13 November 2023

0.1 In the North East of England Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Impounding Hearing: In respect of the application by H J VAN BENTUM BV (“the applicant”) for the return of VEHICLE REGISTRATION NUMBER: 82 BHP 2

2. The statutory background

The Goods Vehicles (Licensing of Operators) Act 1995 (the Act) and the Goods Vehicles (Enforcement Powers) Regulations 2001 as amended (the Regulations) make provision for vehicles operated by a person or an entity without the authority of an operator’s licence or an exemption to be detained by an authorised person.

The owner of such a detained vehicle is entitled to apply to DVSA and subsequently to the Traffic Commissioner for the release and return of the vehicle.

Application may be made on four grounds, summarised as follows.

The grounds are:

That at the time the vehicle was detained:

• The vehicle was being used at the time under the authority of a valid operator’s licence (whether or not authorising the use of the vehicle);

• The use to which the vehicle was being put to at the time, or to which it had been put, was not of a sort that contravened Section 2 of the Act;

• Although the use of the vehicle was in contravention of Section 2 of the Act that the owner did not know that it was being or had been so used;

• Although it was known that the use of the vehicle was in contravention of Section 2 of the Act, that the owner had both taken steps to prevent that use and to prevent such further use.

In proceedings of this type that are adversarial in nature it is for:

• A claimant to prove on the balance of probabilities that it owned the detained vehicle at the material time.

• DVSA to prove on the balance of probabilities it had reasonable grounds to detain the vehicle in question.

• A claimant to prove on the balance of probabilities that one of the grounds for its return applies.

3. Detention of the vehicle.

The Dutch-owned vehicle, 82 BHP 2 (hereafter the detained vehicle) with trailer attached, loaded with bulk PVC was encountered at Immingham in Lincolnshire by DVSA on Saturday 16 September 2023. Downloads of the vehicle’s digital tachograph and the driver’s digi-card showed the vehicle entering the UK on 20 July 2023, some 58 days earlier. It had not left since its arrival. The driver was not in possession of all his load documents since entry into the UK.

DVSA believed that the vehicle and its user were engaged in haulage activities for hire or reward, and therefore that for such use to be lawful, the cabotage requirements required to be met.

EU operators may only conduct cabotage journeys after arriving laden into the UK. The vehicle may then make only two further cabotage movements within 7 days of arriving and unloading in the UK, before then leaving the UK. There is a requirement that under the cabotage rules that the driver must carry with them all the transport documentation applicable to activity carried out on the visit.

DVSA issued a prohibition notice and seized the vehicle on the basis that movements far exceeded the cabotage limitations and the driver carried only the paperwork for the current journey. Records of CMRs subsequently provided by Van Bentum showed that the detained vehicle had carried out some 70 movements in the period from 10 July 2023, without leaving the UK.

4. Claim for return of the seized vehicle.

A single, timely claim was made for return of the vehicle by the claimant company, H J Van Bentum BV (hereafter Van Bentum), through its manging director, Wijnand Hendrikse. Richard Tinkler of Tinklers Solicitors of Ipswich represented the claimant in these proceedings.

The application disclosed two grounds for return, set out in the regulations, namely that:

(a) That at the time the vehicle was detained, I did not know that it was being, or had    been, used in contravention of Section 2 of the 1995 Act.

(b) That although knowing, at the time the vehicle was detained, that it was being, or had been, used in contravention of Section 2 of the 1995 Act, the owner:

(i) had taken steps with a view to preventing that use; and

(ii) has taken steps with a view to preventing further such use.

The claimant sought an oral hearing. Both Wijnand Hendrikse, director and Richard Tinkler, his solicitor were present in person at the hearing. Traffic Examiner Janice Skelton appeared for DVSA by video link.

A brief for the hearing was prepared by my Clerk and served upon both parties.

Mr Tinkler provided written submissions dated 24 October 2023.

5. The hearing

5.1 Ownership of the vehicle

Only the owner of a detained vehicle can make a legitimate claim for its return. I was provided with a copy of the receipt for the sale of the vehicle to Van Bentum dated 2 January 2017 by the claimant. DVSA did not dispute that Van Bentum was the owner and there being no other claims, I was satisfied on the balance of probabilities that the claimant had established its ownership.

The tractor unit had been purchased for [REDACTED] euros in 2017. I was told its value now was [REDACTED] euros.

5.2 The right to detain:

The second stage requires DVSA to prove on the balance of probabilities that they had reason to believe that the detained vehicle, was being, or had been, used on the road in contravention of Section 2 of the 1995 Act.

TE Skelton adopted her written statement which ran to 3 pages. I found the contents to be credible, the evidence was not in dispute, so I accepted it.

I had asked the TE about the response of the driver at roadside, including whether her contact with him had included mention that his use at the time had been under the Combined Transport regime. She said that it had not. The prohibition had been for breach of cabotage.

Her statement asserted that there had been two earlier encounters with Van Bentum vehicles:

• On a date before 28 April 2016, that its vehicle had been encountered operating in breach of cabotage rules (in an unspecified manner). In consequence a pre-impounding letter had been issued by DVSA dated 28 April 2016, warning that future contraventions of the Act may result in indefinite detention of its vehicle.

• On 16 December 2020, when DVSA had recorded and held an entry in its systems to the following effect:

 “98 B DH7 - No operator licence - Sec 2 GV (LOO) Act 1995. (Journey not within cabotage Regs)”  

The TE said no further information was recorded about that encounter by DVSA. No prosecution had followed, and it was unclear whether a prohibition had been issued.

Mr Tinkler conceded on behalf of his client that there were reasonable grounds for the detention.

Against this background, I was satisfied of DVSA’s right to detain the vehicle. I therefore proceeded to the third stage of proceedings.

5.3 Proof of the grounds claimed:

I heard from the managing director, Wijnand Hendrikse. He had filed two statements in the proceedings which he relied upon dated 4 October 2023 and 9 October 2023.

• He had been involved in the European transport industry for 15 years. He joined Van Bentum as Deputy Director in early 2020, becoming Managing Director from 1 January 2022.

• Van Bentum describes itself (in an attachment to its managing director’s first statement) as follows:

“For us as a family business it is very important that we continue to shift gear in these challenging times. With Brexit, the immense driver shortage and the lingering impact of corona pandemic, we will have to pull out all the stops to guarantee the strong demand from our customers with the same quality. We have a young and dynamic team of people and with this step we will further prepare the organisation for the future.”

“With 45,000 ferry crossings per year Van Bentum is a specialist in bulk and packed transport to and from the United Kingdom.”

• In describing its fleet and drivers, it referred to its “highly trained staff”.

• And as to the logistics process:

“Our horizontal central organisation enables us to monitor the entire logistics process permanently. We support this with education training [..] for all employees.”

• The company had specialised in bulk transport to/from the UK for many years. Whilst it operated 23 tractor units from the Netherlands, only two of them were deployed to its work within the UK (hereafter the Dutch vehicles). I was told that for 99% of the time (adjusted to 95% in the second statement), it contracted with UK based and licensed operators to collect and deliver product and return its unaccompanied trailers from/to UK ports of entry/exit. It was said that the two Dutch vehicles acted as a “fill-up” at busy times.

• On 14 September 2023, trailer BT-751 had been loaded in the Netherlands and hauled to Rotterdam Docks from where it was shipped unaccompanied to Killingholme (UK) arriving on 15 September 2023. It was collected on 16 September 2023 by Driver Haynes, then driving the vehicle, soon after detained.

• Mr Hendrikse said he had no prior knowledge of the DVSA warning letter from April 2016, not having been with Van Bentum at that time. There were no records of that matter retained by the company.

• An email on 16 December 2020 had however been located concerning the DVSA encounter with a Van Bentum vehicle, 98 B DH7, in 2020, which was provided in evidence during the hearing. Its contents referred to a Combined Transport movement and to CMR paperwork discrepancies and to the issue of a fixed penalty of £300 to the driver for what appeared to be a breach of weekly rest requirements, in the light of his failure to record a positioning journey.

• In his first statement the managing director asserted that before, and up until the impounding event now under consideration, the movements carried out by the Dutch vehicles when in the UK were purportedly undertaken in accordance with the Combined Transport Rules (made under Council Directive 92/106/EEC of 7 December 1992 on the establishment of common rules for certain types of combined transport of goods between Member States.)

• He went on to acknowledge, however, that since that detention that legal advice had drawn to his attention that the right of operators in EU member states to conduct Combined Transport movements had ceased with effect from 1 January 2023. Combined Transport (had it been in force) would have permitted certain types of intermodal transport where goods are transported in the same loading unit or vehicle using two or more modes of transport. Typically, vehicle and trailer combination driven to a port, a sea crossing, and then an onward vehicle and trailer journey by road to its destination. In his oral evidence it was admitted that his planners “had been a bit too flexible” in the application of those rules, since they applied a geographical limit that was not always complied with.

• He went on to state that he was “forced to admit … a regrettable oversight” that both the Dutch vehicles had been treated, from his transport planners’ perspective, like those of an operator’s licence-holding UK subcontractor.

• It was his position that he had been “unaware” of the change in the relevant regulations, or of the notification of change issued by the Department for Transport in December 2022. He accepted that movements by Van Bentum vehicles ought to have been carried out instead under cabotage rules (as summarised in paragraph 7 above).

• In the second statement he referred to the company’s planners who “just forgot or did not apply the cabotage Rules”.

• His first statement was to the effect that the use of Dutch vehicles in the UK had ceased. The second vehicle had been returned to the Netherlands and the UK work was “now totally dedicated” to UK contractors and subcontractors. It was said that if cabotage was ever undertaken in the future that he “would ensure that both our planners and our drivers fully understood their limited movements and would be sure to introduce online training for both”. It was said that consideration was being given to an application for an operator’s licence and the establishment of a UK limited company. Notwithstanding his first statement was dated 4 October 2023, it transpired from the second statement that a Dutch vehicle had been deployed in the UK from 1 October to 9 October 2023. CMRs were produced designed to evidence that lawful cabotage journeys had been carried out.

• Attempts had been made by Van Bentum to track down information about the circumstances of the warning in 2016 but these had been unsuccessful. I was told that this search had included minutes of the Board meetings, but they carried no record either.

• Pressed by me, the managing director accepted that but for the encounter in September 2023 it was possible that breach would have continued.

6. Findings and Consideration

Once there has been a finding that there are reasonable grounds for the detention, it is well-established that the burden thereafter lies with the claimant to prove on the balance of probabilities the ground(s) raised. I have considered each ground separately.

6.1 The first ground:

Ground (c) requires the claimant to prove a negative, that is, its lack of knowledge of the unlawful use at the time, and previously.

The Senior Traffic Commissioner’s Statutory Guidance Document No.7 refers to the requirement to examine any reason for failing to act, or any other explanation put forward by the operator. It identifies that the motivation for the owner’s conduct, or its failure to take steps, as likely to be extremely relevant. It invites consideration of whether there were obvious inferences to be drawn, or obvious inquiries to be made.

The submissions prepared by Mr Tinkler included a list of “facts” in 7 unnumbered paragraphs. From what I had read and heard in evidence, I have no reason to argue with any of them, as such. I do however remind myself of the case-law that has constantly stated that there is no residual discretion for a traffic commissioner embodied in the legislation that would import a concept of proportionality into the decision-making process.

His submission contained extracts from the Statutory Guidance document including the starting point (para 55) and submissions were provided in conjunction with the questions (para 60) identified by the Upper Tribunal in assessing whether evidence shows that there is an innocent explanation.

The overarching question is:

“Has the claimant satisfied me that he, she or it probably did not know that the vehicle was being or had been used in contravention of the Act?”

I have begun by asking the question:

“Is there any evidence before me on the basis of which I could be satisfied that the claimant probably did not know that the vehicle was being or had been used in contravention of section 2 the Act?”

I have concluded that there is some evidence: direct written and oral evidence from Mr Hendrikse asserting -

• That neither he, nor the company were aware of the pre-impounding warning issued by DVSA in 2016 concerned with unlawful operation and the future risk of detention, until it was raised in relation this detention, and

• That he was not aware of the incident in 2020, also concerned with alleged  breach of cabotage, until the matter was raised in relation this detention and from the email from the driver later located, and

• That neither he, nor the company were aware that the exemption which had once enabled operators in the EU to carry goods into the UK without breaching Section 2 of the Act by acting in accordance with the Combined Transport arrangements had ceased on 1 January 2023, and

• That neither he, nor the company were aware of the Department for Transport letter from Morag Rethans to ECMT members across Europe dated 2 December 2022, foreshadowing that change,

• That neither he, nor his managers were aware that his transport planners had been and were treating Van Bentum’s Dutch vehicles as though they were a part of that group of contractors or subcontractors lawfully able to carry out movements under UK operator’s licences, without limitation.

I have therefore moved on to assess that evidence. In so doing I note I must be careful to avoid reversing the burden of proof as it is not for a Traffic Commissioner to be satisfied that the claimant did know of the contravention, only for determination of whether the claimant has proved on the balance of probabilities that it did not know.

The Upper Tribunal has identified five categories of knowledge, each of which in turn describes what would need to be proved if knowledge is to be found by one of these routes.

The first is that claimant had (i) actual knowledge of the use of the vehicle on the day of the detention (and previously) in breach of the Act. I find there was no clear basis on the evidence before me which would demonstrate on balance of probabilities that the company had actual knowledge that the use of its vehicle had been and was unlawful.

I turned however to the categories which described two forms of imputed knowledge:

• Category (ii) knowledge: that is the knowledge that the claimant would have acquired if it had not wilfully shut his eyes to the obvious, and

• Category (iii) knowledge: that is the knowledge that the claimant would have acquired if it had not wilfully and recklessly failed to make such enquiries as an honest and reasonable person would.

7. The route to decision

Addressing myself to the first question:

(a) What enquiries would an honest and reasonable person have made in the circumstances faced by the person claiming the return of the vehicle?

If the answer is “None” there can be no question of imputed actual knowledge under category (iii).

If the answer is that an enquiry or some enquiries would have been made the questions that follow must be answered separately in relation to each enquiry that the honest and reasonable person would have made.

I have on balance concluded that there were inquiries that an honest and reasonable person in the position of the claimant would have made.

This was a company with a long and apparently successful track record of trading across Europe and especially into the UK. It operated large goods vehicles both on the mainland of Europe and in the UK; international transport was the central purpose of the claimant company. I find it incredible that the claimant would not have required to assure itself that its operations were lawful in circumstances where its contracts required movement by its own vehicles in the UK. Vehicles are valuable assets and protection of assets is one of the basic and fundamental aspects of running any business, the more so in a business where detention of vehicles would disrupt day to day operations and might lead to financial loss through their impounding.

Addressing myself to the next question:

(b) Did the claimant make such enquiries?

If the answer is “Yes” there can be no question of imputed actual knowledge under category (iii).

If the answer is “No” the next question must be answered.

The claimant admits that enquiries were not made about the continued lawfulness of the arrangements for its operation of vehicles in the UK. Central to the reasons for this position was that the director had no reason to suspect that Combined Transport no longer provided a legitimate method of operation.

I reject the submission made that because Dutch vehicles made up only a small part of operations in the UK that this meant that enquiries were unnecessary. I find an honest and reasonable person would seek assurance about all operations.

Addressing myself to the next question:

(c) Did the claimant wilfully refrain from making such enquiries?  For the purposes of the question “wilfully” means “deliberately and intentionally” as opposed to “accidentally or inadvertently”.

If the answer is “No” there can be no question of imputed actual knowledge under category (ii).

If the answer is “Yes” the next question must be answered.

According to the company itself, at its helm, was Mr Hendrikse, an experienced transport professional, in post alongside owners described by it as “closely involved in the day-to-day business and further developments of the organisation”.

The appointment of Mr Hendrikse into the business was during the Brexit withdrawal period. Arrangements for trade between the UK and its former European partners were then subject to almost constant debate, discussion about transition arrangements and change. Whilst the operation of its Dutch vehicles into the UK may have been only a small part of its carriage of goods into the UK, I find it inconceivable that any honest and reasonable claimant would not have kept up to date with developments and made inquiries to assure itself of lawful operation. Its own materials (referred to above) acknowledge the need because of Brexit “to pull out the stops”.

Against such a background, I conclude that there is wilful failure here, far beyond accidental or inadvertent conduct but instead amounting to deliberate and an intentional refraining from the taking of obvious steps.

In reaching this conclusion, I have taken account of the opportunity within the 90-minute hearing to make an assessment of Mr Hendrikse. I was unable to find that his evidence was always credible. Whilst he took full responsibility for the failures to uncover the unlawfulness of the operation of the Dutch vehicles and was apologetic for his failings, I struggled to conclude he understood the seriousness of the position. There was repeated reference to there being only a single warning and the implication that a warning of the consequences of committing criminal offences by DVSA, might be regarded as time-limited, or reduced relevance. A further example was when I asked about disciplinary action taken for the transport planners who had in his words “dropped the ball”. He described having “a good sit down” and that the outcome was akin to “Don’t do it again.” Very little I was told about led me to conclude that there was active supervision of the transport planners and he had told me that the compliance officer was “too busy”. The role of transport planners seemed not to be as focussed on the need for compliance with the law, as the commercial interests of the business. Overall I had concerns about what appeared to be a “laissez-faire” culture in the business where leaders were not hands-on and staff were left to make their own decisions unchecked.

The truth is that if Mr Hendrikse, or the compliance officer with in the company, had either taken advice from transport professionals, or perhaps its UK Legal Advisor about the impact of working in a post Brexit environment it would have become plain that its model for operation (Combined Transport) was no longer available, and had been superseded by amended cabotage arrangements.

It is not unreasonable for those who operate large goods vehicles to be expected to know and understand the relevant legal requirements.

I conclude that contrary to the submission that the director had not shut his eyes to the likelihood things would have changed, that this is what happened. I find it is more likely than not that he deliberately decided that he did not want to know, or that it was not his problem, regardless of the consequences. I find it striking that I was told nothing about how the company kept up to date with developments impacting it and conclude therefore there was a deliberate failure to make any reasonable enquiries. I find it more likely than not that the motivation for the claimant’s conduct, or failure to take certain steps is not innocent but simply to allow itself to continue to operate as before.

Addressing myself to the next question:

(d) Did the claimant recklessly refrain from making such enquiries?

For these purposes recklessly means not caring about the consequences of failing to make such enquiries.

If the answer is “No” there can be no question of imputed actual knowledge under category (iii).

If the answer is “Yes” the next question must be answered.

For the reasons set out above and the clear failure to ascertain the true legal situation that conduct was both wilful and reckless, marked by a lack of proper and necessary caution. I reject the argument that an absence of more recent warning, although it is the case that the incident in 2020 may have served such a purpose, is of direct relevance. I find that an honest and reasonable claimant would wish proactively to assure the continuing legality of its operations.

1. Addressing myself to the next question:

(e) Was a high degree of fault involved in wilfully failing to make such enquiries?

If the answer is “No” there can be no question of imputed actual knowledge and category (iii).

If your answer is “Yes” a finding that the vehicle owner had imputed actual knowledge under category (iii) is justified.

I conclude that the failure to make enquiries and the shutting of the eyes to the position clearly constitute a high degree of fault. On the operator’s admission the detained vehicle and the second vehicle had continued to operate under the superseded Combined Transport arrangement since 1 January 2023. By the day of the detention, some 259 days had therefore passed (although it was of course unclear what the extent of use had been).

A warning had been issued putting the operator on notice of the risk of detention in 2016, and there had been a further encounter in 2020. I find it would have been an entirely reasonable expectation that with this history, irrespective of the passage of time that there would have been some specific and ongoing attention to compliance matters, where its vehicles were deployed in the UK. It would be expected that some “corporate memory” would allow such important issues to remain in focus, despite changes in management arrangements.

Having reached the conclusion that I have answering the questions, I would record that I also conclude it would be unconscionable for the owner of this vehicle to defeat the purposes of the regulations by shutting his eyes to the obvious, and by a wilful and reckless failure to make such inquiries as an honest and reasonable person would make, especially given what he must have known about the changing business environment and the particular circumstances at that time which would put an honest and reasonable person on inquiry.

7.1 The second ground:

Ground (d) – for the claimant to succeed it is necessary for it to prove on the balance of probabilities both that steps had been taken to avoid the breach, in the first place, and that steps have been taken to avoid repetition.  

In considering whether the claimant proved the ground, I would have expected consider a range of written materials evidencing previous systems, a review of what had gone wrong and details of new processes that would assure me about future delivery of cabotage operations. As it was though, very little was before me, beyond the CMRs for a vehicle deployed to the UK in early October, after the detention. CMRs alone are insufficient on their own to show cabotage has been carried out lawfully. There is little before me but assurances for the future.

The Upper Tribunal decision in Van der Gaag Transport de Lier BV (supra) made clear that:

• The meaning of “steps” means “all reasonable steps” available to the owner, or to put it another way, all those steps that a reasonable person would take in the circumstances they find themselves in, not only in context preventing past unlawful use, a but future unlawful use,

• Whilst each case will turn on its own facts that “the hurdle is a high one” because the claimant must demonstrate steps that they have taken to prevent themselves from committing criminal offences.

The judgement included that since the requirement of Ground (d) was that there was a finding that the owner had in effect committed a criminal offence, that it did not accept that an owner could be allowed latitude in how they approached the steps they should take to prevent recurrence. It concluded that users, those who control vehicles:

“.. They are responsible for the scheduling of journeys the vehicles undertake and they manage and control the staff who plan or schedule those journeys. Ultimately, it is within the power and control of owner operators to stop unlawful operation if they so wish and those who do so wish, should be to demonstrate robust systems procedures that they have put in place which would constitute reasonable steps within the meaning of sub paragraphs (i) and (ii) along with adequate explanations as to why those steps did not work in the instant case.”

Applying the statutory test, and asking myself if the company has satisfied me - In circumstances where breach of Section 2 of the 1995 Act is accepted, had the owner taken steps with a view to preventing that unlawful use and has it taken steps with a view to preventing any further such use? - I conclude the answer is “No” and that the claimant fails on both sub paragraphs of the ground.

The decision went on at paragraph 38 to outline a non-exhaustive list of the sorts of reasonable steps that might be available to operators to prevent unlawful use. It then went on as follows:

“In view of the fact that the impounding provisions are designed to prevent criminal offending, we are not satisfied and that in the case of a company, oral evidence alone (however credible the TC may find it to be) will be sufficient under paragraph 4(3) (d) because one of the tasks of the TC will be to consider the efficacy of the steps relied upon by the applicant. For example, it may be accepted by the TC that training was given to the planning team of the owner operator but perusal of the training documents themselves may reveal the training was in fact inadequate. It may be accepted that an instruction had been given to planners and drivers about the documents, which the driver must carry with him to claim lawful cabotage, but perusal of that written instruction may reveal that the instruction was incorrect or in some other way inadequate. We would expect that at a hearing for the return of the vehicle that a member of the management team of an owner/operator who is able to give evidence about operational matters should be called in order to do so.”

The claimant has manifestly failed to satisfy me that ground (d) is made out and therefore the application fails on that ground too.

7.2 Decision

Neither ground being satisfied, I direct the vehicle may be disposed once any appeal period for appeal available to the claimant has expired.

Simon Evans
Deputy Traffic Commissioner for the North East of England

29 October 2023