Decision

Application to the Traffic Commissioner for the return of detained vehicle K66PAF

Published 27 June 2022

0.1 WESTERN TRAFFIC AREA

1. Application to the Traffic Commissioner for the return of a detained vehicle

2. K66PAF

2.1 by

3. Allen & Foxworthy Ltd

4. BACKGROUND

The facts relating to the detention of this vehicle are not disputed and are set out in the statement of DVSA Traffic Examiner Richard Bate. In summary:

• The vehicle was specified on the licence of Allen & Foxworthy Ltd OH0223409 until 7 March 2020.

• The operator’s licence terminated “continuation not sought” on 7 March 2020 and all vehicles were removed from it.

• The vehicle was encountered by DVSA at Handcross on the A23 in West Sussex on 16 September 2020. The driver was told that there was no operator’s licence in force and relayed that to his manager. That is positively recorded in the Traffic Examiner’s statement.

• On 22 September 2020, the same vehicle and driver were encountered at DVSA’s check-site at Junction 9 of the M25, Leatherhead. Having achieved internal clearances and having regard to the encounter the previous week, at around 14:00 hrs, TE Bate detained the vehicle for operating without the benefit of a goods vehicle operator’s licence.

Further background arises from the public inquiry bundle for the company. The five-year licence fee was due for payment by 28 February 2020. A licence checklist and fee reminder was sent to the operator on 23 January. No response was received and the licence terminated “continuation not sought” on 7 March 2020. A confirmatory letter was sent to the operator. It is notable that these dates pre-dated the Covid lockdown period.

At 15.40 pm on 22 September, the operator emailed the licensing team to enquire about the status of the licence. At 16.41, Iain McNab, Transport Manager, emailed saying that the renewal had not been received due to Covid. The Team Leader responded to him at 18.21 on 23 September pointing out that the renewal pre-dated Covid. On 24 September at 06:20, the operator provided a further explanation for the failure to renew the licence citing bereavements. The application was referred to me by a team leader at 22:41 that evening and I replied at 23:08 the same day. Following the operator agreeing to educational undertakings and paying the overdue fee, the licence was reinstated on 25 September at 13.49. I include the timing of those tasks to show the exceptional efforts made by the licensing team to get this operation back on the road at a time when there is immense pressure on the licensing service.

An application for the return of the vehicle was submitted on 29 September 2020. The ground cited was that “I did not know that it was being, or had been, used in contravention of the 1995 Act”. The operator expanded upon that, saying “We were unaware that our operator’s licence had run out. It has now been renewed.”

5. DETERMINATION

No-one has attended for the applicant today. The case was originally listed for 25 November 2020. Pursuant to Regulation 23 of the Goods Vehicles (Enforcement Powers) Regulations 2001/3981, I directed that this be outside the statutory time period at Regulation 11 of that instrument such that a conjoined public inquiry could be heard into the company’s failure to declare the impounding and the apparent persistent unlawful use, particularly after the 16 September encounter.

The Covid public inquiry directions require compliance and finance documentation to be lodged seven days in advance of a hearing. Nothing had been heard from it by 23 November at which point my office chased. By email on 24 November, the operator requested an adjournment as members of the team (unspecified) were apparently self-isolating and the company needed more time to prepare. To ensure that the adjournment had a meaningful purpose, I asked for a commitment from the operator to engage legal representation. That was accepted and I granted the adjournment. The hearing was relisted for 12 January.

Again the directions were not complied with and my office chased on 7 January. A response was received on 11 January stating again that they were having a major issue with staff self-isolating, some having tested positive for Covid. There is no evidence that any legal advice had been taken. Later that day, the company emailed again saying that six staff had gone home with symptoms. As infection rates were climbing nationally and because this did not appear to be a suitable case for a video hearing, especially given the operator’s ongoing failure to comply with Covid directions, I granted an adjournment until 14.00 hrs today.

My office corresponded with the operator on 25 February and 5 March once again chasing the requested documents for the public inquiry. A phone message was left but not returned. At 10:43 this morning, the operator emailed to request a further adjournment. No specific reason was given nor any explanation for the extreme lateness of the request. I refused the application and the operator was notified that the hearing would go ahead at 11.55. The operating centre in Swindon is less than an hour from the inquiry room.

I am satisfied that the applicant is fully aware of the time and date of the hearing. I refer to the Senior Traffic Commissioner’s Statutory Guidance Document No. 9 on case management to consider whether to proceed. Paragraph 24 reminds me that fairness of proceedings is key. Paragraph 25 indicates that there should be a clear purpose for the adjournment. Paragraph 26 notes the considerable public interest in cases going ahead when listed. I should consider carefully the reason for the adjournment. Parties who wait until the last minute to apply for an adjournment will arise suspicion as to motives. Paragraph 27 indicates that the failure to engage in a professional and cooperative way is harmful to the individual’s position.

I am satisfied that the applicant has had the required notice and has been served with sufficient evidence. I am not told with any detail why an adjournment request has been made so late in the day nor what purpose the adjournment would serve. This is the third adjournment request and my tribunal room has already been left empty by this operator on two occasions when tribunal resource is at an absolute premium. I am left to conclude that the adjournment request is another device to avoid scrutiny. I proceed to make a decision.

I am satisfied from the documentary evidence supplied with the application that Allen & Foxworthy Ltd is the owner of K66PAF.

The ground of appeal is that the company did not know that the “operator’s licence had run out”. The renewal date is clearly marked on each disc displayed in each window, viewed each day by each driver as part of their walk-around checks. A reminder was sent on 23 January 2020, well before any Covid measures or impacts were conceived. The termination letter was sent on 7 March, again well before any Covid restrictions. This is a standard licence with a transport manager and both he and the statutory directors should be aware of the terms of the licence. Finally, the DVSA encounter on 16 September, where un-rebutted DVSA evidence is that a manager in the business was clearly told that no licence was in force, was the operator’s last chance to remove vehicles from the road until the licence was reinstated or a new one granted. All of those triggers mean that I find that, on the balance of probabilities, the operator had actual knowledge that there was no licence authority in force on 22 September. In the alternative, I find with a high degree of confidence considerably more likely than not that had anyone in the business, transport manager or director, asked the questions a reasonable man should, they would have become so aware.

The application for the return of the vehicle is refused.

Kevin Rooney

Traffic Commissioner for the West of England

8 March 2021