Decision

Decision for Expert Trans Ltd (OF2031762) and Ana-Maria-Silvia Cojocariu - Transport Manager

Published 18 December 2020

In the Eastern Traffic Area

Confirmation of the Traffic Commissioner’s Decision

1. Background

Expert Trans Ltd seeks a Standard International Goods Vehicle Operator’s Licence authorising 5 vehicles and 5 trailers. The Director is Olimpia Gabriela Cojocaru. The nominated holder of a Certificate of Professional Competence is Ana-Maria Silvia Cojocariu.

The application proposes use of one Operating Centre: Unit 1a/b E.E.D. A Site, Beacon Hill Industrial Estate, Botany Way, Purfleet RM19 1SR. The applicant proposed to use one contractor: K E Kent Transport Storage in Basildon, to undertake Preventative Maintenance Inspections of vehicles and trailers at 6 weekly intervals. I was then provided with a contract dated 1 September 2020 with HGV London Ltd for 8 weekly inspections. In evidence I was told that the applicant had decided to replace the first contractor that was proposed.

Express Service Ltd held OF2018124, authorising the operation of 6 vehicles and 6 trailers until it was revoked on 14 January 2020. This applicant was incorporated on 6 January 2020. The application was received on 12 March 2020 but consideration was delayed by the pandemic.

2. Hearing

The Public Inquiry was initially listed for hearing on 29 September 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. That hearing did not proceed due to the CPC holder still being in quarantine. The matter was relisted for today, 21 October 2020. The operator was present in the form of the Director, Olimpia Gabriela Cojocaru, accompanied by Ana-Maria Silvia Cojocariu.

3. Issues

The public inquiry was called to allow the applicant opportunity to make representations so that I might be satisfied that the statutory criteria were met and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 13A(2)(b) – to be of good repute
• 13A(2)(c) – to have the requisite financial standing
• 13A(2)(d) – to be professionally competent by reference to a qualified and reputable Transport Manager who is capable of exercising effective and continuous management of the transport operation
• 13C(2) – to have satisfactory arrangements to comply with the law regarding drivers’ hours and tachographs
• 13C(4) – to have satisfactory facilities and arrangements for maintaining vehicles etc in a fit and serviceable condition
• 13D – that those arrangements are not prejudiced by a lack of financial resources.

The applicant was directed to lodge relevant documentation with the Office of the Traffic Commissioner by 18 September 2020, and in particular:

• evidence of financial standing, demonstrating a 28 day average to meet the requirement for £30,250, but this should have read £25,800;
• details of the proposed vehicle maintenance system, including sample safety inspection records, the daily defect reporting system and the maintenance contract;
• details of how it will comply with the laws regarding drivers’ hours.

4. Summary of Evidence

Mr Constantin-Silviu Malinici, who until recently hold an operator’s licence as a director of Express Services Ltd OF2018124. Following a failure to provide financial evidence as part of a financial undertaking lead to a letter being sent on behalf of the Traffic Commissioner proposing to revoke the operator’s licence. Mr Malinici requested that the matter be considered at a public inquiry. In his decision the Traffic Commissioner stated that if a public inquiry was required then repute will also be at issue.

That licence was only granted on the basis of an undertaking, which was not met. In response to correspondence, Mr Malinici requested a Public Inquiry but failed to appear.

This applicant submitted a bank statement in the limited company name showing a closing balance to meet the prescribed sum, following large deposits made to the account, apparently from the Director. The applicant later explained that two of the large deposits were from a family friend and colleague:

“Constantin and his mother Verona Bordeianu both loaned money to me, Olympia for the company. The funds were transferred into the Limited Company as can be seen from the Bank Statement from a joint account held by the former. I am colleague and family friend and there were no terms or pressure to pay the loan money back. The rest of the funds as previously stated came from my personal savings. There is no involvement in the Directorship, Shareholdings or day to day running of the company with Constantin. It is possible although no definite that Constantin will work as a part-time HGV Driver or on the maintenance for the company if and when the Operator Licence is granted.”

The applicant asserted that Mr Malinici would have no involvement in the Directorship, Shareholdings or day to day running of the company but he may work as a part time driver or be involved in the maintenance, if the licence was granted. I noted that the CPC Holder used the same correspondence address as Mr Malinici. I was concerned with the prospect of his involvement given his previous conduct. He was not present at the hearing, so I was in no position to make an assessment. At the hearing I was told that the personal loan has been repaid and that Mr Malinici will not be involved with the applicant. I was offered a condition to that effect.

The evidence of finance appeared to be satisfactory and to meet the prescribed sum.

I remained unclear as to how the requirements of Article 4 would be met. Having gained her CPC in Bucharest 26 October 2019, Ana-Maria Silvia Cojocaru attended a two-day Transport Manager CPC refresher course on 19 and 20 November 2019. However, in evidence she was unable to explain to me the basis of the maintenance arrangements and the PMI intervals. She was unable to produce a sample of the proposed PMI form to show that she had checked that current standards would apply. She has yet to visit the proposed contractor and was therefore unable to confirm the available facilities. She referred to the potential for use of a decelorometer to test brake performance and to utilise a rolling road brake tester four times per year. This was based on advice from the contractor and she appeared unaware of the Guide to Maintaining Roadworthiness. The applicant Director and the CPC holder were unable to tell me what the policy would be around a wheel-off and retorque procedures.

I was reassured that any vehicle would be fitted with a digital tachograph, with plans to download driver cards on a fortnightly basis. There was less certainty around download of the vehicle units and the type of reporting to be undertaken by the external analyst.

The drivers and vehicles have yet to be sourced but Ms Cojocariu’s lack of practical experience showed through. The applicant Director suggested that it might be more appropriate to learn the job with an experienced CPC holder before being formally appointed. I suggested that she would also gain from reference to the Guide to Maintaining Roadworthiness and the DVSA Guidance: Heavy vehicle brake test: best practice.

5. Determination

The fitness of the Directors is an essential element in determining the repute of any company. In making the application an applicant declares who will be responsible for overseeing compliance. In line with Tribunal decisions in 2011/037 Utopia Traction, 2012/071 Silvertree Transport Ltd, and 2016/044 Sana Aziz, a Traffic Commissioner must be concerned as to who is actually in control of the Operator’s Licence. On the basis of the condition offered, I was satisfied as to the repute of the company.

Following the approach of the appellate Tribunal in 2014/058 Angus Smales t/a Angus Smales Eventing, the question is not one of qualification but whether the nominated CPC holder is sufficiently focused on the responsibilities as Transport Manager and can confidently show the ability to exercise continuous and effective management of the operation. I regret that this was not the case with Ms Cojocariu. The suggestion made by the applicant Director, is precisely the course described by the Tribunal in the Smales case and which offers the potential for Ms Cojocariu to show that she meets the requirements in the future. The applicant Director is aware that she will require time to source an experienced CPC holder and for those details to be published, as required.

As at the date of this Public Inquiry I remain to be satisfied that the applicant meets sections 13A(2)(d), 13C(2) and (4), and I refuse the application on that basis.

Richard Turfitt

Traffic Commissioner

21/10/2020