Decision

Impounding Decision for JOHN PRONK TRANSPORT BV

Published 1 September 2022

0.1 DEPUTY TRAFFIC COMMISSIONER FOR THE EAST OF ENGLAND

0.2 JOHN PRONK TRANSPORT BV

0.3 Applicant

-v-

0.4 DRIVER AND VEHICLE STANDARDS AGENCY

0.5 Respondent

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

2. Background

On 26 May 2022, DVSA traffic examiner Lesley Hunt impounded a Dutch-registered heavy goods vehicle 57-BK-V2 at the port of Harwich, Essex. It was being driven by Brian Mobbs who stated that he was working for John Pronk Transport BV, a company based in the Netherlands. The vehicle was laden with empty flower boxes and was en route back to the Netherlands.

Under post-Brexit cabotage rules, the number of cabotage journeys (ie movements carrying goods within the UK) that an EU-based vehicle can perform after its incoming international journey is limited to two, after which the vehicle must depart the UK within seven days of tipping the inbound international load. This limit was temporarily relaxed between October 2021 and 30 April 2022 to help tackle driver shortages. But on 26 May 2022 the cabotage limit was again in force. DVSA’s interrogation of Tachoscan (and an interview with the driver) showed that vehicle 57-BK-V2 had entered the UK on the night of 18/19 May 2022 and had subsequently performed five cabotage operations before starting its return journey to the Netherlands in the course of which it was intercepted by DVSA at Harwich on 26 May 2022.

John Pronk Transport BV had previously been sent a pre-impounding letter by DVSA on 4 October 2019, after it was established that the company had breached cabotage regulations earlier that year. A vehicle had been issued with a prohibition on 26 August 2019 for performing illegal cabotage, and the driver given a £300 fixed penalty. The letter warned the operator that any vehicle found to be operating in contravention of Section 2 of the Goods Vehicles (Licensing of Operators) Act 1995 was liable to be detained indefinitely.

Having previously issued the operator with a clear warning against further illegal cabotage, DVSA now – on 26 May 2022 - decided to impound vehicle 57-BK-V2. Driver Mobbs put TE Hunt in touch by phone with Steve Perry, the operations director of John Pronk Transport BV. Mr Perry was unhappy about the impounding and told TE Hunt that the vehicle was being run under the relaxed cabotage rules (which in fact had ceased to apply some 26 days previously).

3. Application for the return of the vehicle

On 14 June 2022 the traffic commissioner received an application for the return of vehicle 57-BK-V2 from lawyers Smith Bowyer Clarke, acting for John Pronk Transport BV. The ground cited was that the operator did not know that the vehicle was being or had been used in contravention of Section 2 of the Goods Vehicles (Licensing of Operators) Act 1995.

4. Hearing arranged

A date for a hearing for Cambridge was set for 15 July 2022. In advance of the hearing, I received from John Pronk Transport BV a bundle of documents containing evidence of ownership of the vehicle, a Community Permit and various CMR and carriage documents covering the period 18-26 May 2022.

I also received a submission from DVSA’s legal representative, Toby Sasse. He recapped the findings in TE Hunt’s report and added that tachoscan analysis of the vehicle had also shown that it had been used in the UK in a prior period in May, namely between 2 and 16 May 2022, after the relaxation of the cabotage rules had ended. He pointed out that John Pronk Transport BV had provided no explanation for this. He further stressed that the advice on the Government website, published on 14 October 2021 and last updated on 28 October 2021, announcing the temporary relaxation of cabotage restrictions, had included clear information about the end date of the relaxation: 30 April 2022.

The hearing duly took place in Cambridge on 15 July 2022. Present were Steve Perry, operations director of John Pronk Transport BV. The company was represented by Tom Dunne, solicitor. Traffic examiner Lesley Hunt attended by video; DVSA was represented by barrister Toby Sasse.

5. Ownership of the vehicle

The applicant provided me with copies of the original purchase invoice for the vehicle and of the Dutch equivalent to the V5 certificate. No other applicant having come forward, I was satisfied on the balance of probability that John Pronk Transport BV were the rightful owner of the vehicle. I therefore proceeded to hear the case for and against the restoration of the vehicle to the applicant.

6. The hearing

There was some dispute over the exact number of cabotage journeys which vehicle 57-BK-V2 had carried out after its incoming international journey. It was not however in dispute that the number of cabotage journeys had exceeded two and that the cabotage rules had therefore been broken (DVSA’s figures showed three illegal journeys: the operator’s two). The date of arrival in the UK from the Netherlands was established as 19 May rather than 18 May (the vehicle had checked in at Eurotunnel in Calais on the evening of 18 May, but arrived in Folkestone in the early hours of 19 May).

Giving evidence, Steve Perry made the following points:

• he recalled the October 2019 warning letter from DVSA, which he had relayed back to the planning team in the Netherlands;

• Messrs Dood and Groot, the two planners working during the week of the cabotage operations from 19-26 May 2022, were worn out at the time because it was the end of the season. Mr Dood had had an extended weekend off; Mr Groot was due to go off the following weekend. There had been no proper handover on Wednesday 25 May. Human error was responsible for the fact that the cabotage limit had been exceeded;

• Mr Dood had wrongly thought that driver Mobbs had performed the incoming international journey on Monday 23 May (rather than the evening of Wednesday 18 May) There had been a lack of attention and understanding by the planners;

• Director John Pronk had disciplined the two planners and warned them that repetition would lead to dismissal;

• Driver Mobbs understood European and UK rules on cabotage. He had known he was in breach of the rules. Mr Perry had no idea why Mr Mobbs had not said anything to the planners;

• a new system, Movicoach(?), had been introduced in March 2022 which should prevent such occurrences in the future. Asked why in that case it had not prevented the May occurrence, Mr Perry said that it was being implemented gradually.

For DVSA, Mr Sasse pointed out that, as well as having carried out illegal cabotage in 2019 (for which the company had received a warning), the company’s vehicles had been stopped on at least two occasions in 2020 also carrying out illegal cabotage journeys (ie in excess of the permitted two). Mr Perry said that this had probably been investigated by the company at the time but no action had been taken. No records of the investigation existed.

Mr Sasse referred to the cabotage journeys by the vehicle over the period 2-16 May: Mr Perry had no explanation for them. He accepted that the company had not got everything in place.

Mr Sasse rehearsed the cabotage journeys in excess of the permitted number which he said had taken place in 2019, 2020 and May 2022 prior to the period 19-26 May 2022 which had resulted in the impounding of the vehicle. The company ought to have known that such cabotage was taking place. There was no evidence that they had learnt any lessons or altered their behaviour after each episode. The company had had knowledge of their actions but had chosen to overlook it.

Mr Sasse believed that it must have been apparent to planners that vehicle 57-BK-V2 was being scheduled to carry out more cabotage journeys than the law permitted in the period 18/19 May-26 May 2022.

Mr Dunne, summing up for John Pronk Transport BV, said that the ground for the return of the vehicle had been established. The company carried out a huge number of movements a year. Human error by the planners had caused the excessive cabotage in the period 19-26 May 2022 to slip through the net. There had been substantial investment in the Movicoach system. The company’s response had been adequate and they would avoid a reoccurrence of the issue. Actual or imputed knowledge of illegal operation could not be imputed. It would be disproportionate to deprive the operator of an asset of significant value.

7. Consideration of the evidence

In considering the question of whether or not the company knew that its vehicle 57-BK-V2 was being operated in contravention of Section 2 of the 1995 Act, I have reminded myself of the five categories of knowledge as established by the Upper Tribunal (paragraph 57 of the Senior Traffic Commissioner’s Statutory Guidance Document 7 refers). The first category is actual knowledge.

In considering whether there was actual knowledge that the vehicle was contravening the law, I bear in mind that the appellant is the company, John Pronk Transport BV, not any individual. For the ground of appeal to be made out, the company (not any one or more persons within it) must show that it had no knowledge of its vehicle’s illegal cabotage operations in the period 19-26 May 2022.

I did consider Mr Perry’s evidence that the two planners had got things mixed up owing to exhaustion and a poor handover. But I was not convinced that a botched handover on Wednesday 25 May was a plausible explanation for illegal cabotage which began (according to both driver Mobbs and to DVSA’s analysis of the vehicle’s tachoscan data) on the evening of Monday 23 May. The evidence that the planners did not know of the illegal cabotage is therefore very flimsy (to put it no higher).

Having considered the evidence produced both in advance of and at the hearing, and irrespective of whether Messrs Dood and Groot had actual knowledge, I find that the company did have actual knowledge of this. The reasons for reaching this finding are:

• Driver Mobbs, who Mr Perry confirmed understood the rules relating to cabotage, knew that he was carrying out more than the two permitted cabotage journeys. Although not directly employed by John Pronk Transport BV (he is employed through the UK company), he was the agent of the Dutch company in the week in question. The company’s agent knew that the vehicle’s schedule had passed into illegality during the week in question;

• the schedulers in the Netherlands planned the incoming international journey on 18/19 May 2022 and (collectively) planned at least five cabotage journeys thereafter before the outgoing international leg due to take place on 26 May. Whether any individual scheduler knew that the permitted number of cabotage journeys was about to be exceeded or had been exceeded is immaterial. The fact is that the company as a whole had this knowledge and failed – whether through poor systems, miscommunication, human error or deliberate act - to prevent it.

• I have also reminded myself of paragraph 59 of Statutory Document 7. This relates to the question of whether a company had taken steps to prevent illegal cabotage, which is not in fact the ground claimed in this application. However, it is worth citing at length because it illustrates starkly how insouciant the company has been in the face of the 2019 warning in causing or permitting further illegal cabotage operations since then.

• Paragraph 59 states:

“In the ordinary course of events, the applicant should be able to produce documentary evidence to show (translated if necessary):

• the necessary systems were in place to ensure that the planning of journeys of vehicles into GB would, in the ordinary course of events, be compliant with the legislation, for instance planning guidance and instructions given to those responsible for scheduling vehicles and their journeys;

• the training provided to those responsible for scheduling journeys;

• the scheduling in the instant case which had resulted in the impounding;

• the investigations undertaken by the management of an owner/operator as to what went wrong in the instant case and insofar as there have been more than one warning letter sent to the owner/operator about unlawful operation in GB, the investigations following each warning letter and the additional steps taken to prevent the commission of criminal offences in GB;

• the disciplining, retraining or dismissal of staff who were responsible for scheduling a vehicle which resulted in the commission of a criminal offence in GB;

• the instructions and procedures which were in place to ensure that the driver of a vehicle undertaking cabotage had with him the necessary documents for inspection during roadside checks so that Article 8(3) of Regulation (EC) No 1072/2009 is complied with;

• the disciplining, retraining and dismissal of staff, including drivers who have failed to ensure that Article 8(3) of Regulation (EC) No 1072/2009 was complied with.

The above list is not exhaustive.”

In re-reading this paragraph and its lengthy list of the kind of evidence which an appellant might be expected to produce, I am struck by the fact that John Pronk Transport BV has not been able to provide any documentary evidence of any such actions. No evidence of journey planning systems or guidance, or of training for schedulers has been provided. No evidence of any investigation or any other action following the October 2019 warning letter from DVSA has been provided. No evidence of the disciplining of the schedulers has been provided.

As I mention above, the failure to provide such evidence is not strictly relevant to my finding that the company had actual knowledge of its transgression, but it illustrates the point that the company had actual knowledge of its transgression from October 2019 at the latest but failed to take any action to avoid a repetition and to design its systems to ensure that its servants and agents had the same knowledge which the company as a corporate entity had.

8. Decision

John Pronk Transport BV has failed to demonstrate that it did not know that vehicle 57-BK-V2 was being used during the period 19-26 May 2022 in contravention of Section 2 of the 1995 Act. That being the case, its application for the return of the vehicle is refused.

This decision will be notified to the applicant and to DVSA and it will be for DVSA to dispose of the vehicle once the 28-day period for appeal against this decision has ended.

Nick Denton

Deputy Traffic Commissioner

28 July 2022