Decision

Impounding: Written decision regarding an impounding by the Traffic Commissioner for the Welsh Traffic Area for S.C D’Agostino Autotransporti SRL

Published 6 April 2023

0.1 In the Welsh Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Impounding Hearing: In respect of the application by S.C D’Agostino Autotransporti SRL (“the applicant company”) for the return of VEHICLE REGISTRATION NUMBER: AB42DAG

2. Background

On 22 July 2022, vehicle AB42DAG, a Romanian registered vehicle towing an Italian trailer, was stopped and detained by the Driver and Vehicle Standards Agency (“DVSA”). The background to the detention is set out in the impounding hearing witness statement of DVSA Traffic Examiner (“TE”) Alyn Williams dated 7th September 2022 and, in summary, is as follows:

• The vehicle, an articulated HGV towing a trailer, was stopped at the DVSA checksite, Coldra, Newport on 22 July 2022. The driver, Mr Neacsu, confirmed that the vehicle was being used in connection with the applicant company’s business and was on a journey from Banbury to pick up a load in Cardiff. After checking the CMR documents and following further analysis of the driver’s incoming ferry ticket, his tachograph and ANPR data it was apparent that the vehicle had entered the UK on 16 July 2022 and had not left since. TE Williams’ analysis of the log of the vehicle’s loading and unloading journeys confirmed that there had been additional journeys that the driver was not carrying CMR documents for, and it was apparent that the vehicle had conducted at least six separate cabotage journeys and was on its way to load a seventh cabotage load.
• Given that a cabotage offence appeared to have been committed TE Williams checked the DVSA “cabotage list” and noted that the applicant company had received a pre-impounding warning letter in April 2021 informing it that further cabotage breaches may result in its vehicles being impounded. DVSA then impounded the vehicle under regulation 3 of the Regulations.

An application for the return of the vehicle was made by the applicant company, received on 23 August 2022. The applicant company requested that its application be considered at a Hearing. It relied on the following grounds for the return of the vehicle - ground set out in regulation 4(3)(c) of the Regulations that, although at the time the vehicle was detained it was being, or had been, used in contravention of section 2 of the Act, the owner did not know that it was being, or had been, so used; and ground set out in regulation 4(3)(d) of the Regulations 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 Act, the owner (i) had taken steps with a view to preventing that use; and (ii) has taken steps with a view to preventing any further such use. The applicant company included with its application an explanation of its case as a separate attachment (pages 18 and 19 of the Brief for Impounding Hearing (“the Brief”). In advance of the hearing, the applicant company provided certified English translations of Romanian documents to prove ownership of the detained vehicle. It also provided a witness statement dated 5 September 2022 from the Managing Director of the applicant company, Giampero D’Agostino, with various documentation attached (pages 22 to 86 of the Brief). Some of the documents were English, some were in Romanian with certified English translations attached, and others were in Italian without certified English translations, even though the letter to the applicant company inviting it to the hearing made it clear that evidence must include certified English translations of any foreign language documents, as does the Senior Traffic Commissioner’s Statutory Document 7 on Impounding (“Statutory Document 7”) (paragraph 59).

3. The Hearing

The impounding hearing was originally listed for 19 September 2022. However, that date became a public holiday at short notice following the death of her Majesty the Queen and so the hearing could not proceed on that date. It was re-listed for 6 October 2022 but was adjourned at the applicant company’s request due to the unavailability of their legal representative. The hearing was re-listed for 30 November 2022 and went ahead on that date.

Giampiero D’Agostino, Managing Director, attended as representative for the applicant company. The applicant company was represented by Timothy Deal of Counsel, (instructed by ADL Solicitors) who confirmed that Mr D’Agostino had authority to speak on behalf of the company.

DVSA TE Alyn Williams and Senior TE David Rhys attended for the DVSA, represented by Justin Davies, solicitor.

The evidence contained in the DVSA statements was not disputed, save in one minor respect in Appendix 5 of TE Williams’ statement (page 19). Mr D’Agostino did not recognise the reference to trailer XA585JC which TE Williams referred to in that Appendix. The DVSA did not call any witnesses and I heard evidence only from Mr D’Agostino, following which I concluded the hearing and indicated that I would issue a written decision.

4. Evidence and Findings

The applicant company’s ownership of the vehicle is not disputed.

The applicant company accepted that DVSA had reason to believe that the vehicle was being used in breach of section 2 of the Act and that the vehicle was lawfully impounded.

The evidential burden is on the applicant company to prove the grounds relied on for return of the vehicle in accordance with the established principles in 2013/021 Societe Generale Equipment Finance Ltd v VOSA and 2011/060 Nolan Transport v VOSA, summarised at paragraphs 54 to 60 of Statutory Document 7. Counsel for the applicant company confirmed that it relied on the 2 grounds set out in the application form for the return of the vehicle:

i. That, although at the time the vehicle was detained it was being, or had been, used in contravention of section 2 of the Act, the owner did not know that it was being used, or had been, so used (regulation 4(3)(c)), and

ii. 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 Act, the owner (i) had taken steps with a view to preventing that use; and (ii) has taken steps with a view to preventing any such further use.

In answer to the question, “Has the claimant satisfied me that it probably did not know that the vehicle was being or had been used in contravention of the Act?”, the answer is, “No”.

The only evidence supporting the applicant company’s contention that it did not know that the vehicle was being, or had been, used in contravention of the Act came from Mr D’Agostino. His witness statement dated 5 September 2022, included at pages 22-24 of the Brief, explained that the cabotage breaches by the applicant company on 24 May 2022 and 27 July 2022 were due to mistakes made by one of its employees. Mr Bratfalaen, the UK traffic manager, had taken over that role but there had not been a proper handover and he had not realised that the temporary relaxation to the cabotage rules had ceased at the end of April 2022. As a result of the cabotage breach and upon receipt of the Fixed Penalty fine in respect of that offence on 19 July 2022 his statement explains that, in response, the applicant company commenced a search for someone to replace Mr Bratfalaen. They were unable to find a replacement between receiving the fine and the date of the subsequent impounding for a further breach of the cabotage rules on 27 July 2022. This is consistent with the statement made in the application for the return of the vehicle which states that the company’s lack of knowledge “resulted from disruption caused by staff changes”.

However, in his oral evidence at the hearing Mr D’Agostino put forward a quite different explanation involving an error made by staff who should have arranged for the vehicle to return to Calais with the trailer but, instead they booked the trailer to travel unaccompanied and the vehicle remained in the UK. It was suggested that this was a “one off” that could not have been foreseen as it had never previously happened. I find it strange that this version of events was not previously mentioned in the application, or Mr D’Agostino’s written statement. There were no supporting documents to evidence that version of events. However, even if there had been, there was no explanation of control systems and effective management of the detained vehicle’s movements in the UK during the period 16th July until 27th July. The most basic control system would have revealed that the vehicle had remained in the UK for more than 7 days and that it was engaged in cabotage operations in excess of the maximum permitted number.

Mr D’Agostino, in oral evidence, stated that the applicant company had known about the changes to the cabotage rules that would be coming into force in the UK from 1 May 2022 and had known about these changes since February 2022. He accepted that the applicant company had breached the cabotage rules in March 2021 (although he stated that he did not know of that until receiving the Brief), in May 2022, and in July 2022. He stated that the applicant company had taken steps to prevent further cabotage breaches on 20 July 2022 when the Fixed Penalty notice was paid. He explained what these were, including new procedures and checking systems and instructions to drivers. However, none of this was substantiated by documentary evidence either in the bundle produced for the hearing, or at the hearing itself. Indeed, it was the same driver who was stopped and found to be in breach of cabotage requirements in May 2022 and in July 2022, clearly indicating that whatever instructions had been given had not been sufficiently clear and robust.

There was no evidence about enquiries the applicant company made into the use of the vehicle during the period in question or instructions to the driver who was acting on the applicant company’s behalf during that period and I find that highly probative of a deliberate intent to deceive, or at least wilfully turning a blind eye. Even after the DVSA supplementary evidence of ANPR sightings and discrepancies between CMR documentation and the driver’s delivery logsheet, Mr D’Agostino and the applicant company have provided no evidence to explain those vehicle movements resulting in the breach of cabotage requirements, and no evidence of investigation or disciplinary action taken against drivers/planners.

The Societe Generale Decision sets out five categories of knowledge. The third category is that “knowledge that the person would have acquired if he had not wilfully and recklessly failed to make such enquiries as an honest and reasonable person would make”. I find that there has been a high degree of fault on the part of the applicant company which failed to make the reasonable enquiries that an operator engaged in intense traffic to the UK should have, such that knowledge of the unlawful use in breach of cabotage rules is imputed, if not actual.

Turning to the second ground relied upon by the applicant company, I have considered the evidence put forward by the applicant company as to steps taken with a view to preventing unlawful use. As the Upper Tribunal stated in the case of 2016/008Van Der Gaag Transport De Lier BV v DVSA, “steps taken” in this context means “all reasonable steps available to the owner” and “the hurdle is a high one”. It is for the applicant company to demonstrate, by way of evidence, robust systems and procedures that it has put in place which would constitute reasonable steps along with adequate explanations as to why those steps did not work in the instant case. The documentary evidence that an applicant should produce is set out at paragraph 59 of the Statutory Document 7.

The applicant company failed to produce any of that documentary evidence set out in the relevant Statutory Document to show the systems in place, planning guidance and instructions, training provided for those responsible for scheduling journeys, the scheduling in the instant case which had resulted in the vehicle being detained, investigations following the cabotage breach in May 2022 or in the instant case, disciplining, retraining or dismissal of staff or instructions given to drivers to ensure they had all necessary documentation to comply with cabotage requirements. It is quite clear that the steps taken by the applicant company following the cabotage breach in May 2022 were insufficient because a further breach occurred only 2 months later, involving the very same driver. The applicant company has failed to satisfy me that it had taken steps with a view to preventing the unlawful use of the detained vehicle and that it has taken steps with a view to preventing any further such use.

In summary, the applicant company has failed to satisfy me that it did not know of the unlawful use of the detained vehicle and has failed to satisfy me that it had taken steps with a view to preventing the unlawful use of the detained vehicle in breach of cabotage rules and has taken steps with a view to preventing any such further use.

5. Decision

The application to return vehicle AB42DAG to the applicant company is REFUSED.

Victoria Davies

Traffic Commissioner for Wales

8 December 2022