Decision

Decision for Drake Freight Ltd (OB2013843) & James Fittes, Transport Manager

Published 6 April 2023

0.1 In the North Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Drake Freight Ltd (OB2013843) & James Fittes, Transport Manager

2. Introduction:

Drake Freight Ltd is the holder of a Standard National Goods Vehicle Operator’s licence for 8 vehicles and 10 trailers, granted on 2 August 2018. Its sole named director is Alison Drake. Its Transport Manager (TM) is James Fittes.

This licence had no formal regulatory history before the matters that prompted this Public Inquiry. The operator’s record shows a single delayed mechanical prohibition in October 2021, since the grant of the licence. There had however been both previous fixed penalties and offence prohibitions for drivers’ hours matters.

3. The hearing:

The operator and its TM were present before me at Public Inquiry on 13 February 2023 at Leeds, represented by Graham Quigley, solicitor. Four of the company’s drivers were dealt with at a conjoined Driver Conduct Hearing for serious drivers’ hours offences.

The central issues for consideration at the Public Inquiry raised in the calling-in letter were as follows:

• DVSA’s allegation that the transport activities carried-out under the auspices of this operator’s licence by Drake Freight Ltd, at the direction of Alison Drake as director, are/were a ‘front’ for Colin Drake, her husband, following the revocation of his sole trader licence in that name (OB0228974) and the loss of his good repute.

{A ‘front’ in this context being where the appointment of an individual in a position of authority to hold a licence is designed to obscure the fact that another person, who might not be able to hold such a role in his own right, is in fact the controlling mind behind that business.}

• The relevance of the convictions, both at the Crown Court and the Magistrates’ Court, for seven of the company’s drivers for serious drivers’ hours offences, including the convictions of Colin Drake [REDACTED] Also fixed penalties levied against and paid by drivers. Offences included both matters of making false records of their drivers’ hours and offences of failing to make records of such hours. The sample period was January and February 2021.

• That an unfair competitive advantage was being gained by the operator as a consequence of its drivers (or some of them) being treated as self-employed contractors, apparently provided through the sole trader business carried out by Colin Drake, under the trading name G & C Freight, when in reality they ought to have been employees of Drake Freight Ltd, for whom PAYE, national insurance and the entitlement to be enrolled in a pension scheme ought to have applied.

• The ‘unsatisfactory’ outcomes of DVSA Investigations carried out initially by Vehicle Examiner (VE) Douglas and by Traffic Examiner (TE) White and the follow-up Desk Based Assessment (DBA) concluded by VE Ridge, together with the analysis of documents and records produced by the operator for this hearing, undertaken by VE Hodgson and by TE Morrow. Whether such outcomes constituted breaches of licence conditions, the statement of intent and undertakings on the operator’s licence.

• Whether TM Fittes, who had held that role throughout the relevant period, retained his good repute as a result of any findings on each of those issues.

• Likewise, the good repute and professional competence of the company.

During the hearing, as the evidence unfolded, a linked issue arose that fell to be considered but had not been directly raised in the calling-in, it concerned:

• Whether the operator’s licence identity discs were in effect being “loaned” by Drake Freight Ltd to Colin Drake’s business, G & C Freight, which had continued to trade.

4. Background:

An operator’s licence had previously been held by Colin Drake trading as G & C Freight (OB0228974); an unincorporated sole trader business. He is Alison Drake’s husband: he was not called before me, being currently subject to imprisonment for offences referred to above.

His operator’s licence for 2 vehicles and 2 trailers was revoked on 4 December 2018, having been in force since 2000. It had a considerable regulatory history with two separate curtailments at Public Inquiries and a formal warning. Revocation had followed the issue of an “S” marked prohibition at roadside. DVSA had been unable to carry out a follow-up investigation, despite its efforts to arrange to speak to the operator. A simultaneous investigation into tachograph and drivers’ hours offences had also raised serious shortcomings. Whilst ultimately, an attempt was made by Colin Drake to surrender of the licence (which was refused), there was no formal response by him to the Propose to Revoke (PTR) process. Revocation took effect under both Section 26 and 27 of the Act. Colin Drake’s repute had been lost.

Colin Drake is a director of Thompson Truck Services Ltd, a company incorporated in September 2020. His co-director in that venture is John Jackson. Thompson Truck Services Ltd has been carrying out the maintenance of Drake Freight’s vehicles with its own facilities co-located at the site of its operating centre. This change to the maintence arrangements (for Drake Freight) had not been notified to the Office of the Traffic Commissioner, in breach of the requirement to do so.

Alison Drake told me that G & C Freight had continued to trade as a business after the revocation of her husband’s operator’s licence. She had exhibited a series of G & C Freight invoices for each month of 2022, directed for payment by Drake Freight. The scant narrative for each was “CONTRACT SERVICES FOR (MONTH) 2022” with a sum including VAT set out. The email contact recorded on each was [REDACTED]

In evidence Alison Drake admitted that she did not know the price of the contract but acknowledged that perhaps she “ought to have”.

In his evidence John Jackson confirmed that the invoices were for the supply to Drake Freight Ltd of drivers by G & C Freight. The sums payable under the invoices increased as the year progressed, included VAT and that for December was a gross figure close to [REDACTED]. DVSA were told that some staff including two of their drivers were directly employed by Drake Freight Ltd, but it was common ground that the majority were not.

[REDACTED]

5. DVSA’s investigation:

5.1 Maintenance:

Upon the receipt of intelligence, a DVSA investigation had been begun by Vehicle Examiner Douglas (formerly VE, but now TEM - Traffic Enforcement Manager) in March 2021. He recorded an ‘unsatisfactory’ outcome for both the operator and its TM following his visit. The principal criticisms related to the inadequacy of record keeping, an unnotified change of maintenance contractor (to Thompson Truck Services Ltd), the lack of measured brake testing at each PMI and that there was a long-term absence of any continuing professional development by the TM.

The VE’s report was not the subject of material dispute in respect of those findings and assurances were given about future operation. The operator’s case was referred for follow-up after 6 months through DVSA’s Desk Based Assessment (DBA) processes. VE Ridge confirmed a ‘mostly satisfactory’ outcome in November 2021, albeit in his SIPCAT, he found that record keeping still lacked compliance for 86% of records checked.

Documents produced for the Public Inquiry, and since checked by DVSA, raised the following matters:

• Preventive maintenance records were (still) not fully completed (32% of the sample).

• A vehicle had been brake tested using an incorrect brake test code, rendering unreliable its outcome.

• There were missing records for two vehicles.

• Some driver detectable defects were found during maintenance inspections.

5.2 Drivers’ hours compliance:

Meanwhile, Traffic Examiner (TE) White had begun a drivers’ hours investigation following an encounter on 6 February 2021. At that time, Driver Marshall had been driving a company vehicle, but it became clear that he had been using the driver card of Colin Drake. Fixed penalties were issued (and later paid) for failures to make a proper record and the use of an unauthorised card, albeit the driver had originally offered that the card was used by him by mistake, when Colin Drake was said by him to have turned up “drunk” for his shift and had been replaced by him.

TE White’s subsequent investigation into drivers’ hours compliance for January and February 2021 uncovered a wider range of offending that led to prosecutions and convictions of seven of the company’s drivers including Colin Drake. Drivers had been formally interviewed but all except one gave largely “No comment” interviews. Driver Moore, however, under caution described being paid in cash and described himself as being answerable to Colin Drake.

Other evidence collected by the TE also pointed to drivers and the company’s main client referring to Colin Drake as continuing to play a significant role in the company’s operations. Alison Drake denied this was the case.

A significant sub-contract for Fowler Welch involved multiple long journeys from the North East of England to several different locations in Hampshire, some drivers were based in separate parts of the country and trips that often involved trailer swaps at motorway services between those locations. A common feature appeared to be that of drivers ending their shifts other than at their base, hence the need for “positioning journeys” that were not being recorded, when such drivers were carried as passengers in other company vehicles. Those drivers carried in that manner ought to have recorded “other work” at these times.

TEM Douglas, who gave oral evidence, shared TE White’s conclusion that Colin Drake was playing the lead role in the business, exampling that when he had visited the operating centre that those present checked the position with Colin Drake, before the release of records by them, and not Alison Drake, as director. He told me that Alison Drake played only a limited part in the discussions on his second visit to the operator when others were present. As far as he was concerned “only the name of the director had changed” (between the end of the sole trader licence and the grant of the licence to the company).

TE White had recorded that it was hard to say whether drivers were treated as self-employed, worked through an agency or were casual. Most were described as employed through G & C Freight. He criticised arrangements where day-to-day instruction to drivers came though the client Fowler Welch, or from G & C Freight, rather than through Drake Freight, as licence holder.

When attempts had been made to put matters to Alison Drake, she too had given a mostly “No Comment” interview, as was her right.

Documents produced for the Public Inquiry, and since checked by DVSA, raised the following matters:

• The unlawful use of vehicle NU63 HHG without it being taxed in the period August 2022 to January 2023; it had been newly acquired. The operator explained that a mistake had been made in believing that VED would be payable at the same time as the MOT was due. Th operator was apparently ignorant that since 2014, VED has been payable immediately by a new owner on the acquisition of a vehicle and no longer transferred with it.

• Whilst some drivers’ hours infringements were noted, they were explained by mode switch errors or were considered minor in nature.

5.3 The operator’s oral evidence:

Alison Drake told me that back in 2018, around the time of the revocation his own licence, her husband had become disillusioned with the industry and had wanted to get out of it. She had thought it was “a shame” and it was then she had decided to set up Drake Freight Ltd with the assistance of John Jackson (her book keeper) and TM Fittes. She had previously worked in the NHS for 30 years.

It was her evidence that DVSA’s assertions that her husband continued to play the central role in the business were wrong and that she was its guiding mind. Some contractual documentation with Fowler Welch was provided that was signed by her as director and there was evidence that some of the start-up funding was from a savings account held by her. It was her original evidence that a part of it might have been from a joint account with Colin Drake. She stated she was at the operating centre 3 days per week but when asked by her solicitor was unclear where the office keys were kept and admitted to very limited knowledge of tachograph and drivers’ hours requirements. Asked by him about work carried out she showed a knowledge of the clientele but was initially confused about the practical details of the Culina contract. Asked by me about what key business decisions were made by her, she admitted she normally deferred to John Jackson and TM Fittes to help her.

Further questioned by me, she described playing only a limited administrative role in the previous sole trader licence held by her husband. From the grant of the company licence and her appointment as sole director, however, she had no other employment. That said, she admitted there had been a period of 8 or 9 months when, from November/December 2020 to August 2021, when she was “not around” because of the serious illness of a very close family member, when Mr Jackson and TM Fittes took up greater responsibility. She said she “trusted them 100%”.

She maintained that Colin Drake took no role in the business, although when pressed, accepted that he was a driver from time to time and that he would have been seen in and around the operating centre but said this reflective of his role at Thompson Truck, also based there.

[REDACTED]

Alison Drake accepted that she did not find out about the roadside event that triggered DVSA inquiries for several weeks after it occurred on 6 February 2021. She did not seem to understand the issues around self-employed drivers and could not therefore describe why nothing had been done about their status.

John Jackson gave evidence that he had been involved in the setting up of Drake Freight Ltd. He was a friend of both Colin and Alison Drake, though he had had no role in Colin’s sole trader licence and confirmed that Colin had taken a step back. His role as a co-director with Colin for Thompson Truck Services was restricted to the accounting aspect not maintenance itself, not dissimilar (he said) to that he carried out for Drake Freight Ltd. He held a TM CPC qualification and the plan was that he would ultimately succeed TM Fittes in the role.

He demonstrated a detailed knowledge of the main contracts Drake Freight worked on, in striking contrast to Alison Drake. These were said to be contracts for traction only provided to Culina Group (which includes Fowler Welch), and separately as a sub-contractor for Muller.

Vehicles were fuelled using Fowler Welch facilities, that cost being reflected in final invoices payable by Fowler Welch for work done, since Drake Freight had no fuel card facility of its own.

On the Muller contract, however, it became clear Drake Freight neither employed, nor paid the drivers who were provided by G & C Freight and he had no knowledge of the drivers’ actual employment status. He accepted that day-to-day Drake Freight would not even know the identity of the drivers deployed. He admitted that G & C Freight had negotiated the Muller deal and that it was G & C that were paid for the work, not Drake Freight (unlike the position with the Fowler Welch work). He acknowledged that it should not be like that and could see why a traffic commissioner might be concerned by it.

Asked how Drake Freight benefited from such arrangements, he described a framework whereby invoices were to be matched by contra transactions during the financial year, with a reckoning to be carried out at year end, and an adjustment by provision of a balancing sum to be made. He admitted the paperwork was not being fully completed, there was no formal contract underpinning and regulating the arrangement and that it was possible that some of the VAT reporting formalities (required by HMRC) were not being met. It was conceded this set-up was further complicated through the involvement of Thompson Truck Services as maintenance provider with its invoices off-set in some form because of rents due to Drake Freight as a sub-tenant.

James Fittes told me that he had arranged a TM refresher for later in the month. He had known Alison Drake’s dad, whilst he had not been approached to carry out the role by Colin Drake, nor known him beforehand, he had met both at the time of his appointment. Aged 79 and physically fit and active, he said he planned to retire at Christmas. He said he had not seen a great deal of Colin Drake but that the last time he (Colin) did driving shifts was in the period October to December 2022. As TM he carried out the download routines both vehicle units and drivers and fed back to the latter. Asked about the “positioning journeys”, he said it was his understanding that there represented a “grey area” in terms of compliance. Recent arrangements had now been made for the remote downloading of vehicles in the future. His lack of knowledge of who, from the group of drivers provided by G & C Freight, was actually driving vehicles on any day appeared to mirror the evidence of John Jackson, although he claimed that he provided the feedback to whichever driver it was, sometimes through the yard man, William Wilson, as he was unlikely to be present at the time drivers set off from, or returned to, base.

6. Assessment of the witnesses and the evidence:

Mark Douglas gave evidence both in his former role as a VE and now as a Traffic Enforcement Manager (TEM) but on behalf of TE White, who was not available. His testimony was credible and coherent in both aspects of what he told me and his acceptance that whilst there were shortcomings in maintenance, that the fitness and serviceability of vehicles was not a significant concern, was a balanced one.

At the outset of the hearing, I had acknowledged the emotional sensitivity of the occasion for Alison Drake [REDACTED], and that if breaks were necessary during her evidence these would be accommodated. Whilst there were tearful moments, she coped well with the hearing and did not take up the prospect of additional breaks. Mr Quigley’s later description of her as being “like a fish out of water” was not wide of the mark, but I felt this was because she became exposed due to her lack of understanding of the fundamentals of the business, rather than the pressures of the hearing.

Taking account of the difficult context and making suitable allowance for the stresses of the Inquiry, whilst I found her evidence to be relatively open and often very frank, the strong impression I gained was of someone whose knowledge of the actual business arrangements was extremely limited. For the most part, I find she was a naïve and amenable bystander, likely to have been placed in a wholly invidious position by the circumstances of lost licence of her husband. I do however conclude in recent time that she has probably placed much greater reliance on John Jackson, and to some extent on TM Fittes. Whilst I conclude there has been a change (since the DVSA inquiries began) and her husband’s position within Drake Freight has probably receded, [REDACTED], he had been playing a significant role in the operation of vehicles, whether in his role at G & C Freight involving his close association with the majority of drivers, operating as though he had an operator’s licence, in his role in the maintenance of vehicles or otherwise in contact with Fowler Welch and on the Muller sub contract, so much so that she was a front for him.

John Jackson was a credible witness, although I formed the view that he was embarrassed, at least from a professional point of view, about the Drake Freight’s business arrangements which lacked transparency and that were subject to criticism.

James Fittes was a coherent witness but whose evidence sometimes belied the fact that he had not attended any refresher programme since he qualified by examination some years earlier. It reflected to a large degree the system shortcomings referred to by DVSA.

7. Submissions

At the outset of the hearing, Mr Quigley had drawn my attention to the Statutory Guidance Documents, as far as they concerned both fronting and the loan of discs and to the case of Paul Oven Transport Services Ltd (2006/056). He argued that his client was bound to have difficulty “in proving a negative”, especially when the allegation was of one spouse fronting for another.

He reminded me of the well-established position that the burden is on the Commissioner to be satisfied on the balance of probabilities that repute is lost because there is fronting, not on the operator to demonstrate the opposite. Where serious allegations are made it will often cause the operator to seek to address the allegation directly, as was the case here, but the burden does not lie with them. He invited consideration of whether there was really evidence of bad faith or dishonesty on the part of the director, or if “unsatisfactory arrangements” were the result of “mistakes” which had been answered straightforwardly.

As to the impact of any regulatory action, I was told all 8 vehicles were in use currently and that revocation of the licence would be likely to lead to closedown of the business. I was told that action falling short of revocation would be likely to cause serious contractual issues with the two main clients referred to above for whom daily provision of vehicles was necessary. No written or documentary evidence of the impact of regulatory orders was before me.

8. Consideration

This is a case where both the definition of “fronting” that I have set out in paragraph 4 above (concerned with someone who might not be able to hold a licence being hidden behind another who could hold one), also needs to be considered in the context of a linked allegation of fronting where a non-licence holding business uses a licence whilst it is held by another entity (a “disc loaning” scenario).

Both are very serious allegations going directly to good repute. In both, such actions if proven, have the effect of depriving the regulator of the opportunity to oversee the true operator, and therefore undermine the regulatory regime.

In the case of Sana Aziz (2016/044) the Upper Tribunal reiterated that when concerns are raised that an applicant could be a ‘front’, they will need to do more than make bare assertions and rely on their good character. Traffic Commissioners will look for “clear blue water” between the a licence holder and the entity without an operator’s licence.

I found the arrangements for the carrying on of the Drake Freight business, by any standards, to be opaque. Manifestly they were not understood by Alison Drake, even though she purported to be the guiding mind behind Drake Freight. Whilst I make no finding that anything illegal was taking place, this lack of transparency and the recurring shadow of Colin Drake as the proprietor of G & C Freight, as co-director of Thompson Truck Services, and as spouse of the director of Drake Freight, supports to the argument that his involvement has been much more significant than is admitted. I find that there is evidence he was more likely than not to be central to the operation of Drake Freight’s large goods vehicles.

I reach this conclusion because:

• I find that the activities of Drake Freight Ltd and G & C Freight are very closely intertwined financially, in terms of the provision of, and instructions to, drivers and in the involvement of Colin Drake.

• I find that on the balance of the evidence that the Muller contract was carried out by G & C Freight but was achieved using vehicles (and their discs) provided by Drake Freight Ltd. I find there has been “disc loaning” to G & C Freight. This is an arrangement that continued at the date of the hearing.

• None of the formalities that would be expected to be in place where work was contacted for by a non-licence holder, or for the provision by a non-licence holder of drivers to an operator, were in place. Using the terminology of the Sana Aziz decision (above) there is “no clear blue water” between the two businesses. Indeed, G & C Freight was paid directly for the work done and whilst it invoiced for drivers it was said to provide, invoices were without the necessary detail as would enable to supposed client (Drake Freight) to determine whether they were accurate or not. The invoices were not paid at the time. An inference might appropriately be drawn that such an arrangement might only exist where the activities of the two businesses were so closely intermingled in terms of ownership and management that it did not matter that there was no detail.

• I find that for an arrangement for the provision of drivers by a third-party business to an operator be legitimate, arrangements would be necessary for the exercise of control over those drivers manifestly to be in the hands of the operator. As was accepted here, Drake Freight did not even know the identity of the drivers (on either contract, except presumably those they employed directly) until after the event, nor was there evidence they had any role in their direction on the ground. I cannot conclude that the process of checking drivers’ hours compliance after the event is enough.

• Whilst there were documents appropriately signed by Alison Drake as director, it was clear from the evidence I read and heard that fundamental business decisions were not being made by her. Her lack of knowledge about important events at the time including the encounter in February 2021, especially because of the involvement in that of her husband, played to the contention that her role was a peripheral one. I conclude that in effect she has allowed her name to be used to legitimise a situation where others are making the key decisions without true oversight by her as director.

• I find that her fronting is much more than a mistake, and although not falling into a category which might be described as dishonest, it is wilful, in the sense I find it to be deliberate.

• I find that there is evidence of fronting in this case at the time that DVSA conducted its enquiries in the first six months of 2021. In that regard I prefer the evidence of the DVSA officers. As to whether Colin Drake’s significant involvement in the business Drake Freight business continued beyond that date is less clear.[REDACTED]

• [REDACTED]

• I find the TM’s belief that positioning journeys were a “grey area” to represent a concerning lack of knowledge that he ought to have clarified, if he was truly in doubt about them. I find the TM appeared able to convince himself that he was carrying out the full role but was in fact doing only half the hours previously listed on his TM1 application.

• Whilst the evidence presented to me is to the effect that maintenance concerns are not DVSA’s most significant concern, I find that recurring issues about proper record keeping have continued throughout the process of their enquiries up to the date of this hearing. I do not understand how the TM can have failed to appreciate this was the case and to address it successfully.

• I find that the company’s management failed to ensure compliance with the relevant law concerned with drivers’ hours compliance and that convictions are recorded and fixed penalties have been imposed. The system where drivers were purportedly provided by a third-party business managed by Colin Drake was not effective in achieving compliance. Colin Drake committed offences so serious as to lead to his imprisonment, yet drivers are still provided through his business.

• I find that the arrangement for the provision of drivers through G & C Freight, as though it were a driver employment agency, to have been a ‘sham’ purporting to avoid the consequences of Drake Freight employing its drivers under the PAYE scheme.

9. Findings and conclusion:

10. Drake Freight Ltd

In reaching a decision based on these findings and the written evidence, I have taken account of the Senior Traffic Commissioner’s Guidance Document No. 10. - the Principles of Decision-making and the Concept of Proportionality.

My consideration of the positive and negative features described in the guidance lead me to balance the following features:

10.1 Positive features:

• No previous appearances at Public Inquiry,

• An absence of any significant volume of prohibitions,

• An MOT pass rate mirroring the national average,

• Successful steps taken to tackle and reduce the incidence of drivers’ hours offending, as shown by the review of records provided for this hearing.

10.2 Negative features:

• The continued deployment of self-employed drivers who do not meet the requirements of that status,

• The provision of drivers through a business whose owner is serving imprisonment for drivers’ hours offences and who has been allowed by this operator to use its discs to meet the needs of a business contract, which would require a licence it does not possess,

• Ineffective management control and insufficient systems and procedures in place to prevent breaches of the licence undertakings,

• An undue risk to road safety because of a lack of assurance, and an undermining of the principles of fair competition, since the operator would appear to be avoiding taking steps other compliant operators would take, and failing to make changes to correct the position,

• Multiple drivers’ hours convictions and fixed penalties.

I conclude that ‘severe’ regulatory action is appropriate. I find that the negatives referred to far outweigh any positives that may be offered up. I conclude that the company’s good repute has been lost, since when I ask myself the so-called “Priority Freight” question, I conclude I cannot be satisfied that this operator will be compliant in the future. My trust and confidence that the operator’s business as presently constituted will comply with the requirements contained in undertakings under the licence has been severely undermined. The continuing involvement with G & C Freight is absolutely unacceptable.

So much so that when I ask myself the “Bryan Haulage question”: Is the conduct of this operator such that it ought to be put out of the business? I conclude that it is appropriate and proportionate to answer that question in the affirmative, given the findings made in the balancing exercise undertaken. Action falling short of revocation, for example by suspension of the operator’s licence, whilst steps are taken to address shortcomings, cannot be justified, this licence is beyond repair, tainted as it is by the personal involvement of Colin Drake and by the fronting and unlawful operation that has occurred.

This operator’s licence will be revoked in accordance with Section Section 26 (1) (b), (c) (i), (ii), (iii), (ca), (e), (f) and (h) and under Section 27 (1) (a) (good repute) of the Goods Vehicles (Licensing of Operators) Act 1995.

I have considered whether I ought to exercise my powers to disqualify the company and Alison Drake from holding an operator’s licence in the future. In the event, and exceptionally, I have decided to draw back from such a course in respect of Alison Drake. It is appropriate however that I disqualify this company from holding or obtaining a licence and do so indefinitely.

On balance, I am prepared to delay the revocation of this licence for a period of 10 weeks, to allow the director (if she wishes) to make a fresh application, in some other entity, to make application for an operator’s licence, perhaps to continue the contracts held and to maintain work for its drivers. I consider it proportionate to permit a refreshed management to seek to salvage the business, which until DVSA uncovered the events under consideration had a relatively unremarkable history.

For such an application to be successful, as a minimum there would be a need to rearrange its governance, so that it had active partners or co-directors, who would be capable of realistically assuring a traffic commissioner that Colin Drake would have no role whatsoever within it, or in supplying services to it, or receiving services from it. Alison Drake would need to undertake suitable training so that she was able to play her full part in managing the business, or if appropriate in properly supervising and holding to account others who might carry out that role day-to-day in conjunction with her. Any association with G & C Freight would need to cease, and assuming that vehicles were owned by, or leased to the entity holding the licence that drivers would be employees of it, unless truly falling into one of the limited categories, where the use of self-employed drivers might be legitimate. A new maintenance contractor would need to be identified. Any steps would need to be taken quickly if a gap between the end of the Drake Freight licence and the start of the any new licence was to be avoided. In the light of my findings below, a new TM, would be required. I would not have any objection to John Jackson, provided there was “clear blue water” between him and Colin Drake.

11. TM James Fittes

As far as the TM is concerned, I find his decision not to carry out TM refresher training before this hearing, to be telling. James Fittes acknowledges that such retraining is overdue, but whilst the course is booked, he has waited for this Public Inquiry, rather than carry it out in advance. I find Mr Quigley’s concession that perhaps TM Fittes might think it opportune now “to close the book on his professional life” to be an apt one. I note that his intention is to retire shortly anyway. In that light, and bearing in mind the limited criticisms of him by DVSA, I shall record his good repute as tarnished but not lost.

Simon Evans

Deputy Traffic Commissioner for the North East of England

7 March 2023