Decision

Decision for Border Surfacing (Contracting) Ltd

Published 30 June 2021

1. DECISION OF THE TRAFFIC COMMISSIONER FOR WALES

1.1 Public Inquiry held 13th May 2021 at Pontypridd

Goods Vehicles (Licensing of Operators) Act 1995 (“The Act”)

1.2 In the matter of

2. Border Surfacing (Contracting) Ltd OG1110968

2.1 In attendance at the public inquiry

• Gareth Jordan, director

• Raymond Warren, friend and company adviser

3. Background

Operator details

Border Surfacing (Contracting) Ltd holds a restricted vehicle operator’s licence (OG1110968) for five vehicles. There is one vehicle specified on the licence.

DVSA Reports

DVSA traffic examiner Anthony Lewis submitted a report following an encounter with a vehicle operated by Border Surfacing (Contracting) Ltd on 29 October 2019. His report stated that:

• There had been an inspection of vehicle VX53TGE at the DVSA Enforcement Site at Coldra on 29 October 2019 during which it was established that there was no valid Goods Test Certificate in force, the driver gave a false name and ran off.

• TE Lewis had attempted to contact Gareth Jordan to discuss the incident on numerous occasions between November 2019 and February 2021. He spoke to him twice on the phone during that period to arrange a meeting however, despite Gareth Jordan stating that he would contact TE Lewis when he was able to attend a rearranged meeting (after a period of self isolation), he failed to do so.

DVSA vehicle examiner Jason Davies submitted a report following a roadside check with vehicle VX53TGE operated by Border Surfacing (Contracting) Ltd on 13 March 2020. His report stated that:

• The roadside check on 13 March resulted in 3 Immediate prohibitions, 5 Delayed prohibitions and 6 Inspection notices being issued.

• Numerous attempts were made thereafter by VE Davies to undertake a full maintenance investigation. These attempts were met with a lack of co-operation from the company and no agreement was reached to facilitate VE Davies’ requests.

• On 15 October 2020 VE Davies conducted a Maintenance Investigation Report, the results of which were unsatisfactory and detailed various areas of concern with regard to the management of the operator licence.

• During the investigation on 15 October 2020 vehicle VX53TGE was presented for inspection and was found to have no road tax, the tax having expired in April 2020. Records indicated that the vehicle had been used in the period between April and October 2020.

• There were various shortcomings related to unsatisfactory processes and procedures, evidence of poor maintenance arrangements, unsatisfactory defect reporting and issues of poor compliance.

• It was also discovered that vehicle SF05CCX was used throughout July and August 2020 without being specified on the licence and that vehicle SF05CCX had not held a valid MOT certificate since 2017.

• Relevant prohibitions had been recorded against the company and/or its servants/agents within the past five years which had not been reported to OTC within 28 days of imposition, in breach of the licence conditions.

• Details on Companies House revealed that company Director, Philip Jordan, resigned as a director in 2018. This was not notified to OTC within 28 days and Philip Jordan remains listed as a director on the licence.

4. Public Inquiry

• In the light of the report from VE Davies, the operator was called to a public inquiry. The call up letter was issued on 22 December 2020, with the inquiry to take place in Pontypridd on 28 January 2021.

• Due to Covid lockdown restrictions, the inquiry did not proceed on that date and was relisted for 21 April 2021.

• However, prior to the hearing on 21 April, my office received the report from TE Lewis which detailed the lack of cooperation from the company as outlined above. To give the company sufficient opportunity to receive and consider this new evidence the inquiry was relisted for 13 May 2021, by call in letter dated 16 April 2021.

• Although each of the call in letters included Directions which clearly specified that the operator must provide details of who would be attending, including any legal or professional representatives in advance of the hearing date, the company failed to do so.

• The call in letter required the company to submit evidence of its financial resources , showing access to an average of [Redacted] over the last three months before 6 May 2021. It failed to do so.

• The call in letter also required the company to submit maintenance records for all vehicles for the last 9 months, the maintenance contract, forward planner and evidence of systems for managing drivers before 6 May 2021. It failed to do so.

• The call in letter advised (in bold underlined text) that it was important to provide the information seven days ahead of the inquiry so that the safety of the participants could be assured during the current pandemic. It further stated “you must not bring the evidence required on the day of the hearing” and that any failure to adhere to the timescales could lead to the traffic commissioner making a finding that there had been a failure to cooperate with the inquiry and the evidence would not be taken into account.

• Gareth Jordan attended the inquiry with Raymond Warren and stated that he wished to be represented by Mr Warren. I was advised by my clerk that Raymond Warren told him that he had used to be a solicitor but no longer held a practising certificate. This had not previously been intimated to my office and, as a preliminary issue, I asked Gareth Jordan to explain why he had not indicated who would be attending, nor sought permission for Mr Warren to represent the company in advance of the hearing date. I asked for further information as to why he wished Mr Warren to represent the company and the nature of his relationship with Mr Warren. Gareth Jordan explained that Mr Warren had been a friend of his father and that he had helped the company out in the past with legal matters, he had known Mr Warren for a number of years, Mr Warren knew about the company and was involved in it. Mr Jordan had not sought permission in advance because he had not read the call in letter.

• I retired to consider the representations made and Statutory Document 9 on case management, specifically paragraph 42 of that document. Given what I had been told, I was not satisfied that Mr Warren was a legal representative authorised to carry out reserved legal activities. Whilst I had a discretion to allow non legally qualified representatives, permission had not been sought in advance, and on the basis of what I was told by Mr Jordan, I was not satisfied that Mr Warren had no interest in this case. I therefore refused permission for Raymond Warren to represent the company at the inquiry.

• Gareth Jordan, sole director, appeared for the company at the inquiry. He did not have the hearing bundle with him and had provided no evidence of financial standing, maintenance records or other documentary evidence to demonstrate compliance with licence obligations or how the failings identified in the reports had been addressed.

• Mr Jordan stated that he had not read the call in letter properly, which is why he had not provided the requested information in advance of the inquiry and he accepted that he only had himself to blame for that. He accepted that prohibitions had been served on his vehicle, but his evidence was that he did properly maintain his vehicle and had relied on his maintenance provider in that regard. He stated that he had spent a significant amount of money on maintenance and that the vehicle had been at the maintenance provider from the date the prohibitions were issued in March 2020 until 7 August 2020. His explanation for using the vehicle without road tax between it being returned to him on 7 August and the DVSA inspection on 15 October was that he had taxed the wrong vehicle by mistake.

• In evidence, Mr Jordan denied using vehicle SF05 CXX during July and August 2020 when vehicle VX53TGE was undergoing repairs. However, when I asked how he could explain the existence of driver defect reports for that vehicle on dates in July and August, he was unable to do so. I am satisfied from the DVSA evidence that the vehicle was used on those dates without MOT.

• Regarding the failure to cooperate with the DVSA examiners, Mr Jordan initially stated that he thought that he had. However, when asked why he had failed to get in touch with TE Lewis in February to rearrange the meeting, as he had promised to do, he was unable to give a reason.

• Mr Jordan apologised for not having co-operated with DVSA, and for using vehicles without road tax and MOT, and explained that there had previously been three family members running the business. His father had dealt with the lorry aspects but, since he passed away some years ago, and his brother subsequently left the company, it was now down to him alone. It had been hard with three of them involved and was now even more so.

5. Findings

• In light of the reports from DVSA Examiners Lewis and Davies, and the oral evidence of Gareth Jordan given at the inquiry, I make the following findings:

• the operator has failed to fulfil its undertaking to keep vehicles fit and serviceable: VX53TGE was in a lamentable state when it was encountered by DVSA on 13 March 2020. Steering gear leaking; Bonded suspension unit defective; Horn inoperative; Exhaust system leaking; Cab step damaged both sides likely to cause injury; Direction indicator inoperative unable to be used to show driver’s intention; windscreen cracked. The same vehicle was in a poor condition when brought for inspection by DVSA on 15 October 2020. Steering gear leaking; Exhaust system leaking; Wing badly torn; Driver’s seat defective with air leak; windscreen cracked (Section 26(1)(f) of the 1995 Act refers);

• the operator has failed to fulfil its undertaking to keep records for 15 months of driver defect reports, safety inspections and routine maintenance and make them available when requested to do so by DVSA and my office in advance of the public inquiry (Section 26(1)(f) of the 1995 Act refers);

• the operator has failed to fulfil its undertaking to inform my office immediately of any changes which affected the licence, namely a change in the directorship of the company (Section 26(1)(f) of the 1995 Act refers);

• the sole vehicle specified on the licence was issued with eight prohibitions (three of them immediate) for the issues at paragraph 19 above (Section 26(1)(c)(iii) of the 1995 Act refers);

• the operator has failed to fulfil its undertaking to ensure the lawful operation and driving of vehicles. The vehicle was used whilst untaxed and without MOT;

• by failing to respond to DVSA’s request for information and numerous items of correspondence, failing to engage with DVSA having agreed to do so, failing to provide financial evidence and records in advance of the public inquiry, as required, the company has shown that it is not fit to hold an operator’s licence. I find that there has been a material change in circumstances of the licence holder, namely that the company no longer remains of the required fitness and, in the absence of any evidence of finances, I cannot be satisfied that the operator continues to have sufficient financial resources to maintain its vehicles in a fit and serviceable condition (Section 26(1)(h) of the 1995 Act refers).

6. Balancing exercise and conclusions

• There is little to put on the positive side of the balance – the operator’s refusal to engage with the authorities has meant that it has passed up the chance of demonstrating how it is acting as a compliant operator, adhering to the rules and fulfilling the undertakings given at the time the licence was applied for. No evidence was provided to show that it is doing so.

• Gareth Jordan expressed an element of remorse for not having engaged with DVSA or the inquiry in that regard and I accept that the loss of his father a few years ago is likely to be the reason why this operator has let things go in terms of compliance. However, I agree with the evidence of VE Davies this this operator has shown no relevant control of its operating licence. The answer to the Priority Freight question of how likely is it that the operator will comply in the future is – in light of the findings and the operator’s behaviour to date – extremely unlikely. All the evidence demonstrates that the operator fails to run its vehicles in a compliant manner and does not engage with the authorities. I conclude that the operator thus deserves to go out of business.

7. Decisions

• In the light of the above, I have decided to revoke the licence with effect from 23:59 hours on 24 May 2021 to allow an orderly run down.

• Following the Court of Appeal judgment in Coach Hire Surrey Ltd & Paul Jones v TC for London and the South East & the Secretary of State for Transport [2020] EWCA Civ 1706, I have given very serious consideration as to whether I should disqualify the operator from holding an operator’s licence in future. The seriousness of the failings would militate in favour of that type of direction. I have, exceptionally, not made an order for disqualification here. In reaching that decision I have taken account of the effect of revocation on the business.

Victoria Davies

Traffic Commissioner for Wales

17th May 2021