Decision

Decision for Apex Distribution London Limited (OF2031768) & OK2058614 (under consideration) & Darren Paul License – Former Transport Manager

Published 7 September 2023

0.1 In the South Eastern & Metropolitan Traffic Area

1. Traffic Commissioner’s Written Decision

1.1 Apex Distribution London Limited (OF2031768) & OK2058614 (under consideration) & Darren Paul License – Former Transport Manager

2. Background

Anthony Thomas Guinchard (“Mr Guinchard”) is the sole director of Apex Distribution London Limited (“Apex”). Apex was incorporated on 28 March 2018. Companies House filings confirm trading starting at some point after 1 April 2019. It applied for a Standard National Operator Licence in the Eastern Traffic Area on 28 January 2020 which was granted under delegation on 10 April 2020. Mr Darren License was the nominated Transport Manager. Mr Guinchard attended a virtual DVSA (Driver and Vehicle Standards Agency) New Operator Seminar on 10 August 2020. Although Mr Guinchard was previously a director of a Licence holding Company with his father for 6 years, the seminars are offered for all new Licences. Between 11 August 2020 and 1 April 2022 Mr Guinchard’s father Peter Anthony Guinchard was a director, but this was not notified to the Office of the Traffic Commissioner (“OTC”) until 2 December 2021. Mr Guinchard explained the delay due to personal issues he was experiencing at the time, and he mistakenly believed Companies House and OTC were linked. As a result, a warning letter was issued.

The full history and the issues before the Inquiry are set out in the call-in letter dated 14 March 2023 (page 9 – 13), supplemented by the Case Summary (pages 3 - 7). Of note the Case Summary includes: -

“On 13 August 2021 vehicle YL15 ORT was stopped by DVSA, and the driver Bhavinkumar Dilipbhai Patel confirmed he was working for Apex Distribution London Ltd. A download of the vehicle unit revealed that Mr Patel had used two driver cards in his name. Driver card DB17348161001810 was found in use in the vehicle unit and Mr Patel produced the driver card DB17348162101800 when asked. Checks found that DB17348162101800 had been replaced DB17348161001810 on 7 July 2020. Analysis of the drivers’ hours at roadside revealed a breach of the weekly rest hours. Mr Patel declined to comment at a PACE interview at roadside and exercised his right to seek legal advice.

A follow up investigation was commenced on 15 September 2021 when a traffic examiner contacted the director and arranged an appointment to carry out a visit on 4 October 2021. This was changed at the director’s request to 8 November 2021. A Section 99ZA request was sent to the operator on 30 September 2021.

Analysis of the documents submitted by the operator raised the following concerns: -

• Vehicle YC64 WNU – 3 June 2022 (SBTC note for written decision – this should be 2021) – driven without a driver card inserted from 7.04 to 14.31 (4 hrs 48 mins 324kim). A diary entry shows the driver was Anthony Guinchard.

• No driver data received for driver Bhavinkumar Dilipbhai Patel.

• Analysis of data downloaded at roadside on 13 August 2021 showed Mr Patel had used two driver cards in his own name on numerous occasions between 7 October 2020 to 20 July 2021. Mr Patel had also driven vehicles listed on the operator licence held by Dnata Catering UK Ltd, OF1115407. Dnata Catering Ltd confirmed Mr Patel had worked for them until 3 August 2021.

Due to analysis of the data, the traffic examiner rearranged the appointment to 25 November 2022 (SBTC note for written decision – this should be 2021). The visit found the following shortcomings: -

• Only one driving licence check carried out in October 2021. Operator unable to provide a copy Mr Patel’s driving licence or CPC.

• No infringement reports produced. No missing mileage reports produced. Operator reviews the Tachomaster system and issues warning letters as necessary. No download of drivers’ cards carried out at first employment.

• No driver card download data produced for driver Patel.

• No Working Time Directive system in place.

• Transport manager, Darren License, does not appear to have access to the Tachomaster system. Director has limited knowledge of how the Tachomaster system works.

• Insurance documents from 3 December 2020 shows GN11 JTU, BK61 RLZ, MX10 APZ (none of which have been specified on the licence). From 2 March 2021 the operator insured GN11 JTU, YL15 ORT and DS15 PUE.

• No vehicles specified on the operator licence until 2 March 2021, but director admitted that vehicles were used since October 2020 when Cooltrans Stanmore Ltd, OF1125542 ceased trading. (Checks show that Peter Guinchard and Thomas Guinchard were directors of Cooltrans (Stanmore) Ltd whose operator licence was revoked on 14 December 2020 as the company failed to notify the Traffic Commissioner that the company had been dissolved via voluntary strike off on 20 October 2020).

Driver - Bhavinkumar Dilipbhai Patel

• 14 x Knowing make a false tachograph record.

• 13 X Fail to take required weekly rest.

• 20 X Insufficient rest within 24-hour period

Driver – Anthony Thomas Guinchard

• 2 x Fail to use a driver card.

The director, Anthony Guinchard was interviewed by the examiner on 25 November 2022 (SBTC note for written decision – this should be 2021) when he confirmed that vehicles GN11 JTU and BK61 RLZ had been used by Cooltrans (Stanmore) Ltd until the company was dissolved in October 2020. He explained that due to personal issues at the time, he failed to specify the vehicles. He admitted that the vehicle units had not been downloaded.

Two warning letters dated 9 July 2021 for Mr Patel (one for a daily rest infringement and one for the use of two driver card) had been produced by the operator. During the interview Mr Guinchard confirmed the third warning letter dated 20 September 2021 to Mr Patel regarding the use of two cards had been prompted by the information provided by the traffic examiner. Mr Guinchard stated the use of two cards had been highlighted on the Tachomaster system and Mr Guinchard had spoken to Mr Patel regarding this around 8 July 2021 and then issued the warning letter. When asked why it had taken to 20 September 2021 to identify that Mr Patel used two driver cards. Mr Guinchard stated that Mr Patel’s driver card had not been downloaded during that period because he dismissed Mr Patel around 16/17 August 2021. The examiner points out that the letter to Mr Patel ‘offering no more work’ is dated 20 September 2021.

During the interview Mr Guinchard confirmed that he does not pay Mr License for his TM (Transport Manager) duties and that Mr Guinchard has been overseeing the maintenance compliance, Mr Guinchard stated that Mr License had looked at the tachograph records but has never reported any infringements to him.

An interview was carried out with Darren License on 7 December 2021. Mr License admitted he has carried out no refresher training since January 2017. Mr License confirmed he had not been paid as transport manager at his request. He stated that he normally attends the operating centre on a Sunday, when he checks the drivers are ok and that the vehicles are in good condition. He confirmed that he was not carrying out any TM duties until March or April 2021. He confirmed that Mr Guinchard deals with the maintenance records, and he asks Mr Guinchard if everything is ok when he attends. The downloading is carried out by the Lead Driver, and he has not checked Tachomaster as he needs training on the use of the system.

Mr License was unaware that Mr Patel had being using two driver cards but recalled a discussion with Mr Patel regarding the loss of his driver card. Mr License said, when asked again regarding Mr Patel’s use of two cards, that he recalled that Mr Patel contacted Mr Guinchard as he had been stopped and it had been found that he was using two cards. Mr License could not explain how the use of two cards had been picked up by Tachomaster as he could not use Tachomaster. Mr Licence accepted that he had been TM in name only and stated he should have informed Mr Guinchard that he was struggling and no longer able ‘to put the time in.’

The examiner carried out analysis of the data for driver Mr Patel supplied by his previous employer, Dnata Catering UK Ltd, and found Mr Patel was not recording all of his duty.

On 3 February 2022 the examiner sent a letter to invite the other director, Peter Guinchard, to an interview. In response a letter was received from Anthony Guinchard declining the invitation due to Peter Guinchard’s ill health and confirming that Peter Guinchard had resigned as a director.

In response to her TEVR, the examiner received a letter from Carolyn Evans of CE Transport Law dated 8 March 2022, which explained that following the DVSA investigation the company had carried out a ‘root and branch’ review of the business. Advice had been taken from a Transport Consultant and had implemented a number of measures to improve compliance, which include: -

• Printing infringement reports and bringing them to the driver’s attention.

• Carrying out a more thorough driver licence check.

• Will purchase automatic downloaders for the vehicles.

• Implement a disciplinary procedure.

• Provide training for drivers on drivers hours.

• Mr Guinchard will attend an OLAT course.

An explanation of the business is set out in the letter, the company has only one client, Kat Souris, who was also the sole customer for Cooltrans (Stanmore) Ltd. Apex drivers make several journeys per day from a factory in Elvedon Road to a distribution centre (around a mile apart) where the drivers wait whilst the vehicles are loaded and unloaded. The operation is a 24-hour business and drivers’ duties are limited to 10 hours per day with plenty of rest breaks.

At the time of the investigation, Mr Guinchard was using the Tachomaster system and would go into the infringement himself and print of (sic!) the warning letter. Very few infringements occurred due to the nature of the work. Most infringements were mode switch offences. Mr Guinchard was unaware that the transport manager was not accessing the Tachomaster system.

The operator accepts that the systems were inadequate. The company was unaware that close inspection of the drivers’ hours revealed that Mr Patel was driving for more than one operator.

Mr Bhavinkumar Dilipbhai PATEL attended Luton Magistrates Court …and entered a plea of guilty to all 14 charges. The Magistrates then committed the case to Luton Crown Court for sentencing on 6 January 2023 when he was sentenced to 8 months in prison suspended for 18 months and 200 hours of community service.

2.1 New application – OK2058614

On 25 July 2022 the company made a new application for 2 vehicles at an operating centre ate (sic!) Unit 2 Premier Park Road, London, NW10 7NZ. The applicant has declared that OF2031768 will not be surrendered on the grant of the application. The applicant has declared a link with Cooltrans (Stanmore) Ltd, OF1125542, a revoked licence. The proposed transport manager is Darren License who has declared he works 40 hours per week as a Warehouse Manager for Bakkavor Meals London. In a letter dated 14 September 2022 Mr Guinchard states that Mr License works for the company that supplies all of their work and Mr License will continue to be in constant contact with the drivers. Mr License has full access to the Tachomaster Remote Dot System and is present when the driver cards are downloaded.”

Considering the DVSA’s findings I determined that the Operator and Transport Manager be called to a Public Inquiry and that I would consider the new application and co-join a Driver Conduct Hearing for Mr Patel at the same time. Mr License was removed as Transport Manager by Mr Guinchard after the hearing concluded.

3. Hearing

The Public Inquiry commenced, and the evidence concluded, on 24th April 2023. As we finished late in the day, I afforded a further period for the operator’s solicitor to send in a written closing with all matters reserved. At the Inquiry I heard oral evidence from Mr Guinchard and DVSA Traffic Examiner Victoria Foster. Also, in attendance was proposed new Transport Manager, Mr Ashley Brown. Former Transport Manager, Mr License, failed to attend. An urgent call back message was left first thing by my office with a colleague who answered Mr License’s mobile phone because he was in a meeting. Nothing further was heard thereafter. The Driver Conduct Hearing was completed first, but the evidence was also, with the driver’s consent, adopted over to the Public Inquiry and he was proffered for questioning by the operator’s solicitor. At the conclusion of the driver conduct hearing, I revoked Mr Patel’s vocational driving entitlement as disqualified him for 4 years with immediate effect.

4. Approach

Mr Guinchard has been the sole director since 1 April 2022. Mr Guinchard’s evidence is that his father was only added to the Licence on 11 August 2020 in case anything happened because he was experiencing personal challenges for some time. As per 2013/008 Vision Travel International Limited and 2013/061 Alan Michael Knight, I am entitled to treat the conduct of a sole Director effectively as the conduct of the limited company and repute or fitness is determined accordingly. As well as the operator licensing obligations, any company director must exercise his or her statutory duties of demonstrating independent judgement, reasonable skill, care, and diligence, as per sections 173 and 174 Companies Act 2006 (as amended). It follows that there is no such thing as a director in name only. If one director abdicates responsibility to another, then it should come as no surprise if the outcome for both directors is the same. I must also not lose sight that Mr Peter Guinchard was the sole director of Cooltrans (Stanmore) Limited in the lead up to dissolution in October 2020, Mr Guinchard having resigned in January 2020. At the same time on his own evidence Mr Guinchard was engaged with the transition from Cooltrans (Stanmore) Limited to Apex.

5. Documents

5.1 Prior to commencing this written decision, I have reviewed the following: -

a. Public Inquiry Brief.

b. My contemporaneous handwritten notes from the Hearing.

c. DVSA pre-Public Inquiry report dated 20th April 2023.

d. Operator’s documents sent in advance and the written representations appended there to (representations dated 17th April 2023 (pages A5 - A14 in operators bundle) and documents A4 - A39 for statutory records and supporting documentation and B17 - B25 for additional information).

e. Application to add Ashley Brown as Transport Manager with supporting documentation uploaded 18th April 2023.

f. Email and written closing submissions from operator’s solicitor received by my office at 9am on the next working day, namely 2nd May 2023.

g. Email received at the same time confirming Mr Brown’s attendance at a 2-day Transport Manager CPC Refresher on 27th and 28th April 2023.

h. South Bucks District Council and another V Porter(FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions.

i. Re H & R HL 1996 A.C.265 on the burden and standard of proof.

j. Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision; and

k. The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions (‘SGSD’) current versions as at the date of the Hearings.

6. Issues

Mr Guinchard accepts the written reports from the Traffic Examiner and agrees the factual oral evidence, albeit not some of the conclusions which are a matter for me in any event. Specifically, the areas of concern are: -

a. Unauthorised use of an operating centre – not specifically referred to in the call-in letter but apparent in the evidence given by Mr Guinchard to the Traffic Examiner during her investigation and repeated at the Public Inquiry.

b. The convictions of driver Mr Patel, the operator’s part in how they happened in the first place and were able to be repeated over a sustained period.

c. Tachograph infringements committed by Mr Guinchard.

d. As a result, a breach of the undertaking on the licence that the rules on drivers’ hours and tachographs would be observed and proper records kept.

e. Material change in that having received a warning for failing to notify the appointment of Mr Peter Guinchard, it then failed to notify his removal as a director in April 2022.

f. The role of Mr License in the above and his admission in interview under caution that he was not exercising continuous and effective management of the transport activities of Apex.

g. The “transition” of vehicles operated under Cooltrans (Stanmore) Limited after dissolution of that company in October 2022 and the ultimate revocation of its licence (dissolution not having been notified) in May 2023.

h. In terms of the new application whether all mandatory criteria are met.

7. Evidence

7.1 Traffic Examiner evidence

The Traffic Examiner was measured and fair throughout and everything said was evidence based. Where her evidence differs from that of Mr Guinchard, I prefer the Traffic Examiner’s evidence. The Traffic Examiner adopted both written reports unamended save Apex has always been authorised for 4 vehicles and 4 trailers. The operator’s solicitor did not ask the Traffic Examiner any questions in relation to the first report. I asked the Traffic Examiner about the 3 warning letters, which the Operator says it gave to Mr Patel and that she received on 2nd November 2021 as part of the Section 99ZA response. I did so because Mr Patel’s evidence was that no one at Apex raised his use of two cards and he just worked as much as he could. The first letter dated 9 July 2021 refers to an insufficient weekly rest committed on the 2 June 2021. The second letter of the same date refers to Mr Patel’s possession of 2 cards in relation to an offence committed on 14 June 2021. The third letter is dated 20 September 2021 regarding the use of 2 cards and stating that no further work would be offered.

Mr Guinchard told the Traffic Examiner in interview and continued to maintain the line thereafter that he became aware of the use of 2 cards shortly before 9 July 2021. The Traffic Examiner confirmed to me there is no good reason “both cards” would not also be referred to in the infringement letter for 2 June 2021 as the data shows the same situation arises as 14 June 2021. Further Mr Patel was using both Digi cards regularly in Cooltrans/Apex vehicles between 23 July 2020 and 2 August 2021, Mr Patel having left his other employer on 3rd August 2021. In February 2021 Mr Patel used both driver cards but then only used the more recent one until the 27 May 2021 when he restarted using the older card as well. It follows the two cards could and would also have shown up previously on Tachomaster if the same reports were run as those just before 9 July 2021.

Mr Guinchard insisted that he picked up the matter of the false record in June 2021 but somehow missed that of the 27/28 May 2021 and 1 June 2021 (covered in the Driver Conduct Hearing). Mr Guinchard relies on the fact the Traffic Examiner missed the false record on 27 May 2021 until the driver conduct hearing. This carries no weight with me because there is a difference between a complex false record investigation and business as usual contemporaneous tachograph analysis for two vehicles. The Traffic Examiner was clear that the warning letters of 9 July 2021 make no sense on the operator’s own evidence. If Mr Guinchard’s case is correct that the warning letters of 9 July arose from Tachomaster alerts, then the letter for the infringement on 2 June should be identical to that of 14 June 2021. Further Mr Guinchard should have seen the issues in January, February (having allegedly started to become organised in March) and May. The letter of 20 September 2021 was issued after the Traffic Examiner had made Mr Guinchard aware of the issues with Mr Patel’s false record keeping (which only came to DVSA’s attention on 13 August 2021). By way of re-examination, the operator’s solicitor suggests to the Traffic Examiner that missing some of the events was consistent with Mr Guinchard’s interview where he accepted that he had not been checking properly and it was possible that he could have missed the other events. The Traffic Examiner accepted it was possible, but I set a marker that I would want to hear from Mr Guinchard in his oral evidence about the warning letters and the missed opportunities considering the same “indicators” on Tachomaster, but each dealt with (or not) differently.

In terms of her updated report assessing recent records immediately before the Public Inquiry, the Traffic Examiner confirmed that the working time directive offences appeared to be mode switch related. She accepted that the 59 kilometres missing mileage ties in with an MOT (albeit it is not then known whether it is a fitter or a driver behind the wheel – drivers would still need to record such an event) and the other 3 missing mileage events were because the driver cards had not been downloaded at that point. The Traffic Examiner had also noted an anomaly between drivers’ signatures as they were the same albeit meant to be 2 different drivers. This was something that the driver, operator, Transport Manager (and Transport Consultant) had all failed to notice.

7.2 Operator’s Pre-Hearing Representations and Documents

The representations submitted on behalf the operator prior to the Hearing and adopted as evidence in chief for the Public Inquiry can be summarised as follows:

a. When Mr Patel was stopped on 13th August 2021 it was one of the very few journeys undertaken going any further than the 1 mile between the factory and distribution centre. After this encounter, Mr Guinchard produced data and records for DVSA’s investigation. Apex has only one customer with 3 premises across Park Royal in Wembley. The work requiring larger vehicles are undertaken by the client and the work requiring smaller vehicles between the Elveden Road factory and Premier Park is done by Apex. Apex drivers repeat the one mile pick up and drop off throughout the shift with shifts covering 24 hours save for between 3am and 6am. Mileage covered per shift can be as little as 10 kilometres. (I note here that Park Royal in Wembley is in the South East and Metropolitan Traffic Area but at the time of the relevant events, the operator’s vehicles were meant to be normally kept at its operating centre in Bushey in the Eastern Traffic Area).

b. The Operator admits that -

• It failed to notify OTC of the changes relating to Mr Peter Guinchard
• Mr Guinchard failed to use his driver card on 24 July 2021 or make an appropriate manual entry; and
• On 3rd June 2021, Mr Guinchard drove an in-scope vehicle without using his Digi-card.

c. The failure to send Mr Patel’s data to DVSA for their investigation is accepted but is said to be inadvertent. Mr Guinchard was unaware of Mr Patel’s other work, and it did not have any appropriate declarations of such other work in place at the time. The failings accepted were “just negligence” because throughout the period Mr Guinchards’ father Peter Guinchard had cancer, his wife was pregnant and with a new baby he “took his eye off the ball completely.”

d. Mr Guinchard’s approach to drivers’ hours were to see if Tachomaster raised alerts. He would then go into the infringement itself and print a warning letter. That said, it is accepted that the actual infringements were not printed off the system. There were few infringements arising due to the nature of the work and the working time directive issues appeared to be mode switch errors. Mr Guinchard says that his knowledge around these areas was limited at the time.

e. Mr Guinchard does not accept that Mr License was a Transport Manager in name only albeit Mr License made that admission in interview under caution. Mr Guinchard relies on the opportunities there would be for the drivers to engage with Mr License, including his lead driver, because Mr License had a full-time job with the client based at the depots.

f. Mr Guinchard admits that Mr License did not start his Transport Manager role until an unspecified date in 2021 and that Mr License was not formally paid, with money simply being set aside for him at his request. This arrangement changed after the DVSA investigation.

In the representations it is put forward that the case sits in the “serious to moderate” category Stat Doc 10 Annex 4. The negative and positive features are split out to assist. As the Traffic Examiner evidence and that of Mr Guinchard evolved through the Hearing, several issues must be fed into that assessment. This is acknowledged on the written closing submissions.

7.3 Operator’s Oral Evidence Overview

Mr Guinchard was vague across most of his evidence, and it was challenging to get a straight answer to a direct question. Mr Guinchard’s underpinning evidence is that from early 2020 family issues (his father and own young family) meant that he was distracted from the day to day running of the business. He relied heavily on his Lead Driver and Mr License. He would go down to the depot and see them and drivers a couple of times per week. After the DVSA investigation he emphasised to Mr License and the Lead Driver the importance of keeping a proper eye on things and more driver training. However, Mr Guinchard’s approach continued as before whereby he relied on them to tell him if there was an issue. He was not checking other than through Tachomaster alerts. Promises made to DVSA in March 2022 via its solicitor were not met because both managers failed to do what he expected. Mr Guinchard says that he takes full responsibility for all failings, but this is trite when considered in context. By way of example (a) Mr Guinchard made a deliberate decision to resign from Cooltrans in January 2020 but his evidence is fluid over time as to the chronology that followed; and (b) he did not undertake the OLAT training, something only he personally could undertake. Further particulars of Mr Guinchard’s evidence relevant to my decision are included below.

8. Consideration and Findings

8.1 Vehicle Operation March 2020 – March 2021

Transport operations between the cessation of trading and subsequent dissolution of Cooltrans and the start of using the Apex Licence was outwardly seamless. Both entities transport operation needs were met for periods which suited the respective directors. There is no transparency on VOL (Vehicle Operator Licence) as to which entity was operating which vehicles and when from March 2020. This makes a mockery of the operator licensing system. The extent of this nefarious approach is opaque because the last vehicle was removed from Cooltrans on 4 March 2020 (and it was the only vehicle since 4 September 2019). This strongly indicated Cooltrans ceased trading at that point. The Apex Licence was granted on 10 April 2020, but no vehicles were specified on Apex until 2 March 2021. Until that point Mr License believed it was still Cooltrans serving customer needs because Mr Guinchard had not told him otherwise.

Mr Guinchard admits use of vehicles without specifying them on the Apex Licence from October 2020 when Cooltrans dissolved. Mr Guinchard told me he was not aware of the Cooltrans dissolution at the time. Mr Guinchard suggests Apex only took over after Cooltrans was dissolved but he also says he was unaware Vehicles GN11JTU and BK61RLZ were never specified on Cooltrans. Mr Guinchard initially told the Traffic Examiner that BK61RLZ had nothing to do with Apex. At the visit to the operating centre, she noticed the VRM on the screen whilst Mr Guinchard was looking at Tachomaster. Mr Guinchard then contradicted himself saying to the Traffic Examiner that Apex started using both vehicles when the Cooltrans licence ceased (page 186). Mr Guinchard said that was from October 2020. Mr Patel started driving in July 2020 for ‘the Operator’ and Mr Guinchard originally said that he engaged Mr Patel for Apex but when I pointed out the timing, Mr Guinchard then suggested it was Cooltrans first (with Mr Guinchard doing driver checks for his father). Mr Guinchard then said he was not going to comment further as he did not know where I was going with my questions. I pointed out that he did not need to know that, he only needed to give truthful answers to my relevant questions. Mr Guinchard then admitted that drivers were being paid by Apex in 2020 even when he suggests Cooltrans was the Operator. Mr License believed vehicles were operated by Cooltrans until March 2021 because it was only then Mr Guinchard put him on notice his Transport Manager responsibilities began. When I asked Mr Guinchard if the Cooltrans Transport Manager was involved from March 2020 (as it was not Mr License) I was told that “he would pop in now and again”. Mr Guinchard said he failed to notice the absence of any vehicle discs displayed in the windscreens because he did not spend much time there.

Mr Guinchard explained his fluid evidence by saying it was a “big transition period,” his father was ill, and it was all very confusing. I do not find the factual chronology or the explanation compelling and Mr Guinchard’s reluctance to answer questions when he appears to contradict himself disquieting. No matter the personal circumstances Mr Guinchard was the director of a Licence holding entity for 6 years (Cooltrans 2014 to 2020) up to the “transition” point and attended a New Operator Seminar on 10 August 2020. Mr Guinchard was not new to the requirement for ongoing compliance and had two very recent refreshers on its importance (signing the Apex application declaration and the seminar). No matter what the other circumstances, Mr Guinchard was fully aware of the risks posed by any approach where he failed to exercise proper quality monitoring and control both on his own account and for his father. The fact the suggested confusion went on for up to a year is dismaying. Regrettably matters did not improve after March 2021 save that the vehicles were specified on the Apex Licence.

8.2 Drivers’ hours, tachographs, working time directive, warning letters and convictions.

Mr Patel’s roadside encounter was on 13 August 2021. The warning letters to Mr Patel referred to are at pages 190 – 195). Mr Guinchard maintained throughout that the two warning letters he drafted dated 9 July 2021 were sent to Mr Patel the day dated, confirming an oral reprimand the day before. Mr Guinchard says that he relied on Mr License and the Lead Driver (Mr Hayoukane) to schedule the drivers, but he would receive a copy of the rota. The work is mainly very local with plenty of downtime and therefore easy to schedule. The Traffic Examiner’s first report (page 145+) confirms that Apex scheduled Mr Patel to work 9 shifts/days in a row between 17:29 on 12 July 2021 and 15:41 on 20 July 2021, when rest should have started no later than 17:29 on 18 July 2021. Accordingly, Mr Patel was scheduled for two additional shifts that could never be completed lawfully for Apex (and commencing 3 days after the said warning letters). The data shows Mr Patel used both cards over that period leading to a false record and “hiding” a breach of the weekly rest rules. Mr Patel only ceased using his old card when he no longer needed to, namely because he no longer drove for Dnata (3 August 2021).

In interview Mr Guinchard refers to not downloading Mr Patel’s card from early July 2021 but accepts, “No I can’t go against what the raw data says”. The Traffic Examiner then takes Mr Guinchard to his own paperwork diary records submitted on 2 November 2021 with Mr Patel’s name and start and end times each day clearly set out. It follows that a record existed which was so obvious that even on a cursory check it should jump off the pages (diary is pages 266 – 271). Mr Guinchard then says “It is negligence on our part and have asked what he can and can’t do and we haven’t bothered to check. I have no answer, I’m sorry.” I remind myself of the principles articulated in Norbert Dentressangle 2001/49 that where there are repeated infringements there is likely to be some degree of deliberateness or recklessness.  Mr Guinchard refers to dismissing Mr Patel on 16 or 17 August and not seeing him since, with further suggestion of offering to attend his home. The reality is that the Operator’s own work diary demonstrates Mr Patel drove for the company even after the 28-day deadline, on Monday 16 August 2021 finishing at 15:15hrs (page 294) and the third warning letter of 20 September 2021 only refers to offering him no more work from that point.

In Re H & R (supra) the more serious the allegation the more cogent the evidence should be within the factual context. The threshold is met and on balance the two letters dated Friday 9 July 2021 were created Mr Guinchard after the event to mislead DVSA in the follow up investigation because:

• Mr Patel’s oral evidence that he was not spoken or written to prior to 13 August 2021, which was not tested by the Operator at the hearing.

• Mr Patel’s continued use of 2 cards until his own circumstances changed so that he no longer needed to use two cards (3 August 2021)

• Both the 2June 2021 and 14 June 2021 infringements arise from same circumstances and Traffic Examiner’s firm evidence that Tachomaster analysis/alerts for both would be identical.

• Mr Guinchard had sought to remedy his position by producing a screen shot for each date with the closing submissions. This approach is open to manipulation by the data being requested at any point. There is no covering statement only a mere assertion via the solicitor that Mr Guinchard did nothing different. The screenshots were not available to the Traffic Examiner, and I am not prepared to re-open a case for what would be the equivalent of a Newton Hearing. The screenshots also work against Mr Guinchard’s assertions as per the next point:

• Tachomaster creates warnings which can simply be printed off. This is shown with a “Print Letter” tab on the screenshot. Mr Guinchard relies on not knowing how to use Tachomaster but there is a noticeably clear and obvious one click solution to a warning letter. However, Mr Guinchard wrote ‘bespoke’ ones, the latter of which has no data date stamp to create an auditable trace.
• The contradiction in Mr Guinchard’s evidence as to when he does and does not properly engage in compliance. Mr Guinchard asks me to accept diligence such that (i) he spoke to Mr Patel on or around Thursday 8 July 2021; and (ii) immediately followed up in writing by way of two warning letters on Friday 9 July 2021 including one for using 2 cards but then negligence in (a) failing to spot both infringements arose from the use of two cards; (b) the scheduling of Mr Patel’s shifts for the following week starting Monday 12 July 2021 without checking the arrangements; and (c) not even downloading card within the maximum 28 days permitted even though Mr Patel was on duty.

For this reason, the other alleged disciplinary letters produced to Mr Morgan (pages194 - 201) is something I cannot give any material weight to.

My conclusion is that Mr Guinchard’s answers are fluid and do not stand up to scrutiny when the evidence is analysed. Mr Guinchard’s general approach permitted sustained, serious breaches of the Licence undertaking. In terms of Mr Patel’s warning letters, I am satisfied on balance that Mr Guinchard gave a dishonest account during interview under caution and in written and oral evidence throughout the Public Inquiry. For the avoidance of doubt, even if Mr Guinchard’s evidence had been straightforward regarding the Cooltrans/Apex “transition” period, my conclusion regarding this aspect would have been the same. It stands alone in the face of such cogent evidence. His self-serving approach to the truth with DVSA and compliance with the Licence conditions and undertakings continued even after receiving legal advice in February/early March 2022.

8.3 Operator’s failure to meet written assurances to DVSA dated 8 March 2022 sent on its behalf by Operator’s Solicitor.

Mr Guinchard engaged an expert transport solicitor to assist him respond to the DVSA TEVR served on 15 February 2022. The letter is summarised on page 5 above as part of the background. Mr Guinchard admits that he failed to meet those promises, most of which were not commenced until after receipt of the call-in letter sent by e mail and post on 14 March 2023. By way of example, he only started running regular infringement reports from 1 April 2023. Mr Guinchard suggested there was no reason to print reports in between as everything was in order. However, a cursory look by me demonstrated he was not checking the vehicle calendar as suggested because the Traffic Examiner pre-hearing report shows no driver card on 4 occasions (at page 60). As such a report should have been produced in at least January and February and not waited until after 1 April 2023. Mr Guinchard’s evidence also casts doubt on the timing and veracity of either his evidence or the disciplinary letter at page 78 of the Traffic Examiner prehearing report. The letter is signed by Mr License and the driver ostensibly on 31 March 2023. This is before the reports were said to have been run and refers to infringements in January and February as well as March – a direct contradiction of Mr Guinchard’s answer to me that everything was ‘green.’ As per paragraph 17 above, Mr Guinchard relies on his own “negligence” for the failure of others to comply with his directions to that point. It is a real cause for concern that a director, with full knowledge of the extent of Mr Patel’s offending still did not change his own behaviours for over a year and has a fluid approach to truthfulness when answering my questions in April 2023.

8.4 Unauthorised use of an operating centre

The definition of an operating centre is where the vehicles are “normally kept” – there is no reference to “when not in use” in the legislation, as per paragraph 2 of SGSD No. 4 – Operating Centres etc. It is surprising that the closing submissions quote from SGSD4 paragraph 44 alone, without reference back to paragraph 2 and thereby not assessing the actual position. If the vehicles are permanently working from customer premises in Park Royal with just 3 hours down time (taken in Park Royal) and this is the case 24/7, the answer of where they are ‘’normally kept’ is straightforward. It is the customer premises at Park Royal, which must therefore be the nominated Operating Centre. There is no need for semantics. The Operator’s insurance for the relevant period requires the overnight post code to be declared – given as WD23 3EG which is the Bushey Operating Centre (p.944), but the vehicles were not kept there or the subsequent Northampton address. The shift pattern prevented this. Therefore, it appears that a false insurance declaration was made as the vehicles were barely, if ever, at the nominated Operating Centres. Unauthorised use of an Operating Centre is not only a breach of a condition on the Licence it is also a criminal offence. The only mitigation is Mr Guinchard applied June 2022 for a SEMTA Licence, but I give this limited weight. The application was not granted, no interim was in place and yet he continued as before and a further example of his wilful behaviour.

8.5 Incomplete Maintenance Records for Public Inquiry

Mr Guinchard failed to submit all the maintenance records required for my consideration and cross checking with the Traffic Examiner updated evidence for PI (Public Inquiry). I only received one complete Preventative Maintenance Inspection Sheet, making a meaningful audit of the driver defect sheets challenging. The PMIs (Preventative Maintenance Inspections) had the last page missing (no evidence of a signed declaration of roadworthiness), and brake tests were inadequate because Mr Guinchard did not understand what he was looking at - relying on the ‘PASS’ statement at the bottom. The PMI for YL15ORT on 18 January 2023 has two pages missing. I am told that vehicle YL15ORT did not have a PMI on 14 March 2023 as it was VOR. However, no copy VOR sheet that should have been used was produced. A VOR sheet/excel spreadsheet should include the date, time, and odometer when it became VOR (with the same detail when it goes back into service – I was told still VOR at the hearing). There are no wheel torque/retorque records, there is just a six line ‘policy’ which is not dated, or version controlled. As page 3/4 was missing from 2 out of 3 PMIs I could not assess if tyres had been changed. The invoice for a tyre produced at page A26 of the operator’s bundle is for a puncture repair and does not say if the wheel was removed. The only evidence of a recall check is on 13 April 2023, confirming one non safety critical recall for YC64WNU software update required. By failing to produce a complete picture, Mr Guinchard prevented the Inquiry from considering this part of the Operator’s adherence to an important Licence undertaking.

8.6 Conclusion

There are a few positives. This is the Operator’s first Public Inquiry but that is not a barrier to revocation in a serious case. The Traffic Examiner’s recent report was favourable albeit room for some improvement. However, (a) I cannot give much credit to Mr Guinchard for this in light of my findings in paragraphs 25 and 26 above; and (b) that assessment includes acceptance at face value of documents whose veracity does not add up to scrutiny (paragraph 26). Mr Guinchard finally undertook a One Day Licensing Awareness seminar albeit a year later than promised, but I give this limited weight because (i) you cannot learn honesty and integrity on a course; and (ii) Mr Guinchard left it too late for any suggested improvements to be materially checked over a meaningful period. This is exacerbated by failing to produce all the maintenance documents. The Operator has used the time wisely since the call-in letter in March 2023 by engaging the solicitors and taking some remedial steps. This includes finding a new transport manager. However, I conclude that the positives put forward on behalf of Mr Guinchard, both at the hearing and in closing submissions, do not materially impact the very serious findings about Apex and Mr Guinchard under the various headings above. I am sure that the Public Inquiry was a rude awakening, but Mr Guinchard only has himself to blame, especially as he knew from September 2021 there was a real problem but failed to change his behaviours.

I have reminded myself of the helpful Upper Tribunal case of NT/2013/082 Arnold Transport Ltd: -

1. The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded.  In our view it is clear both from the terms of the 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence.  It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended.  It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent.  The underlining, in each case is ours.  First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion.  Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear.

2. The Tribunal has stated on many occasions that operator’s licensing is based on trust.  Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime.  In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field.  In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven.  Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business.  Cutting corners all too easily leads to compromising safe operation.

3. It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question.  It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute.  It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above).  We agree that this is a helpful and appropriate approach.  The attitude of an operator when something goes wrong can be very instructive.  Some recognise the problem at once and take immediate and effective steps to put matters right.  Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place.  A third group leave it even later and come to the Public Inquiry with promises of action in the future.  A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry.  It will be for the Head of the TRU to assess the position on the facts of each individual case.  However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.

The Operator sits within the second category. However, this case is more complicated than that. I have made serious adverse findings about Mr Guinchard above - dishonesty, recklessness, and self-interest dating back to the Licence grant. Mr Guinchard relies on personal challenges for taking his eye of the ball but at no point did he stop operating or put in meaningful additional layers of supervision. In any event, such an explanation is self-serving when nothing changes in his attitude even with (i) knowledge of Mr Patel’s serious offending over a sustained period; (ii) an interview under caution; and (iii) taking informed advice when providing written assurances to DVSA. All should have provided a stark warning.

Trust lies at the heart of operator licensing. Failing to have safe systems to ensure lawful operation of vehicles is a gross breach of trust. Misleading DVSA and me is a serious matter. Unauthorised use of an operating centre is a breach of a condition on the Licence and an offence (s.7 of the 1995 Act). The fact that this breach lasted over years is insupportable. That cannot be put down to ‘mere’ negligence; it is a sustained course of conduct.  In my judgement, the starting point in this case is SERIOUS to SEVERE in terms of SGSD No. 10, Annex 4. As at the date of this decision, it is very unlikely on the facts that I can trust Mr Guinchard and Apex moving forward. The appointment of a different Transport Manager does not amend Mr Guinchard’s character. The reality is that Mr Guinchard is a mendacious and self-serving individual who puts commercial need ahead of safety and adherence to the Licence terms at will.  Even when Mr Guinchard knows that he should do something, he disregards it if it does not suit him. That is not someone that I can trust moving forward.   When I pose the question is Apex under the controlling mind of Mr Guinchard an enterprise that should to be put out of business, the answer must be yes. It has posed a significant risk to road safety and gained a significant commercial advantage for too long. Revocation and a finding of loss of good repute is not disproportionate where, the director tries to mislead a DVSA Examiner and the Regulator and as here, there is an “… absence of any objective justification and excuse, there have been long term, sustained, repetitive deficiencies” (2009/041 Waterstone Motors t/s the Green Bus Service).

8.7 Disqualification

As per paragraph 8 above, all matters were reserved for written closing submissions. In paragraphs 32 - 25 of the submissions, it is acknowledged the case sits in the SERIOUS category and even if I accept the solicitor assessment of the case disqualification is one of the possible outcomes. As can be seen from above, I find the case to be at a higher level. The relevant case law and principles are set out in Chapter 13 of the Upper Tribunals Digest of Traffic Commissioner Appeals (2023) and Statutory Document No. 10 paragraphs 65 – 69 and 107 – 109. The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified. Each case must turn on its own merits: 2009/011 Katherine Oliver and J W Swan & Partners and Catch22 Bus Limited, Philip Higgs v The Secretary of State for Transport [2019] EWCA Civ 1022.

Disqualification is a potentially significant infringement of rights, and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification the Operator/individual are entitled to know the reasons. In 2010/29 David Finch Haulage the then Transport Tribunal said:

“The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary. Additionally, periods of disqualification can range from comparatively short periods to an indefinite period, and can be confined to one traffic area or be extended to more than one”.

In my judgement a period of disqualification is required because Apex through Mr Guinchard (and for a period with Peter Guinchard’s acquiescence) has demonstrated that they cannot be trusted to tell the truth or comply with the regulatory regime. I am particularly cognisant of the cumulative impact of the failings, particularly:

• the fluid “transition period”,

• producing fake disciplinary letters,

• no professional competence in either the legal or common sense meaning of the word from the day the Licence was granted; and

• continuing with the other disingenuous behaviours for years, including operating with inadequate driver and vehicle safety systems and from an unlawful operating centre.

In terms of the SGSD No. 10 the starting point for a first Public Inquiry is 1 – 3 years. I have given limited weight to the positives such as to not materially interfere with my deliberations. This case must sit at the top end of the bracket. To do otherwise would send entirely the wrong message to the professional, hardworking legitimate industry.

I have included the full scope of section 28 in my order because I reminded myself of the then Transport Tribunal in 2005/457 Leslie John Ings stated:

“The purpose of the Traffic Commissioner’s jurisdiction is to regulate the conduct of operators so as to ensure, first and foremost, compliance with the legislative framework of operator’s licensing. When a Traffic Commissioner has exercised his powers under s. 28 of the Act, he must ensure that the purpose of the order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence. In the event of a disqualified person wishing to be employed by another operator, whomsoever they may be, the Traffic Commissioner must be satisfied that the role that they are to play within the structure of that company would not cause them to be in breach of the order of the disqualification…”. Mr Guinchard’s character indicates to me that he may otherwise be tempted to seek help circumventing my direction. Accordingly, I have reached the decision set out in paragraph 2 above.

8.8 Mr License and the absence of professional competence from grant.

Mr License admitted in interview under caution (summarised at page 4/5 above) that he was a transport manager in name only. He left the maintenance side to Mr Guinchard and was unable to engage in the tachograph analysis as he could not use the system. There is no evidence I can rely on to suggest Mr License approach materially changed post interview or call-in letter until replaced, apart from a few recent documents, the veracity of which are in question. I cannot take Mr Guinchard’s word and Mr License failed to attend and give his own account. The facts are such that it is not possible to put a figure in terms of years on disqualification or set rehabilitation measures. There is liberty for Mr License to apply in future for some further particulars if OTC receive written representations. SGSD 10 sets out the parameters when seeking to vary or end a period of disqualification. Accordingly, I have reached the decision set out in paragraph 3 above.

8.9 SEMTA application.

The decision at paragraph 2 means this application must fail.

8.10 Addendum

In NT/2020/071 J Owens Transport Ltd – the Upper Tribunal reminded us that the relationship between an operator and a transport manager is dynamic and integral to the successful operation of a transport business. The Apex decision demonstrates what happens when the relationship is barely given lip service by either party. There is no place for absent or disengaged Operators and/or transport managers in this regulated regime. Where such behaviours are found the potential outcomes are clearly set out in SGSD No. 1, 3, 9 and 10 in particular. Operators and transport managers have deemed knowledge of the advice and guidance in the public domain, as per 2012/030 MGM Haulage & Recycling Limited. There is no room for suggesting ignorance or inadvertence.

Decision confirmation for publication:

9. Decision

Pursuant to adverse findings under Sections 26(1)(a), (b), (c)(iii), (ca) (e), (f) and (h) and Section 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995, Licence OF2031768 is revoked with effect from 23:45 on 12 October 2023.

Apex Distribution London Limited, Anthony Thomas Guinchard and Peter Anthony Guinchard, are disqualified from holding or obtaining an operator licence or being engaged in the management, administration or control of any legal entity that holds or obtains an operator licence in Great Britain for a period of 3 years from 23:45 on 12 October 2023.

Upon a finding that the former Transport Manager, Darren Paul License, no longer satisfies the requirements of Section 13A(3) of the Goods Vehicles (Licensing of Operators) Act 1995 to be of good repute, in accordance with Schedule 3 of the said Act and a finding that he is unfit to manage the transport activities of an undertaking, Darren Paul License is disqualified from acting as a transport manager on any operator licence for an indeterminate period with immediate effect.

The application by Apex Distribution London Limited for a Licence in the South East & Metropolitan Traffic Area (OK2058614) is refused.

Miss Sarah Bell

Traffic Commissioner

22 August 2023