Decision

Decision for BJ Haulage Carnagh Limited

Published 11 November 2022

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. BJ HAULAGE CARNAGH LIMITED

1.1 OC2029188

1.2 TRANSPORT MANAGER BERNARD JAMES HUGHES

2. DECISION OF THE TRAFFIC COMMISSIONER

2.1 In the matter of the Goods Vehicle (Licensing of Operators) Act 1995

3. Public Inquiry held at Golborne on 25 October 2022

4. Background

BJ Haulage Carnagh Limited (“the operator”) has held a standard international goods vehicle operator’s licence, OC2033456, since 19 May 2020 authorising the use of five vehicles and five trailers.

The operator’s sole director and Transport Manger is Bernard James Hughes.

The licence was granted with a warning following a concession by Mr Hughes that he had started to operate vehicles before grant.

The operator was then called to a preliminary hearing on 3 May 2022 following its failure to respond to a DVSA request to cooperate with a desk-based assessment of its systems combined with concern about whether it continued to operate from its authorised operating centre at Moss Side Farm, Tarleton, Preston. There was also concern arising from a DVSA encounter in July 2021 that a vehicle had been operated without a valid excise licence and after its MoT had expired. Additionally, it appeared its tachograph unit had not been downloaded in the previous 5 years.

Mr Hughes attended the preliminary hearing and was legally represented. It was conceded on behalf of Mr Hughes at the hearing that he has not been exercising continuous and effective control of the licence. It was also conceded that the operator has not been operating from the authorised operating centre for some time.

By way of explanation, I was told that Mr Hughes had a health condition that had affected his memory and his ability to travel from Northern Ireland to Great Britain since the middle of 2020. The operating centre was now located at 4 Hotspur Road, Bootle and an application for variation would be submitted imminently. The hearing was also attended by Fionnuala Kelly who was presented as the proposed new Transport Manger on the licence. Ms Kelly was the partner of Mr Hughes’ father and a CPC holder since 2011. The operator said it had three vehicles in possession but was only operating one at present due to a shortage of drivers.

I indicated that the matter would need to be referred to a full public inquiry. I also noted with my concern that some of the maintenance records submitted for the preliminary hearing appeared to have been edited to obscure the name of the operator to whom they were directed. Despite the attempt at concealment, it was evident some had been issued to other operators with one name being REDACTED. It also appeared that some maintenance invoices had been paid by REDACTED who had then been reimbursed by the operator. The operator was told that an explanation would be sought at public inquiry for these matters.

The operator has not submitted any applications to vary the licence since the public inquiry. There has not been any notification of the change to operating centre and no application has been made to replace Mr Hughes as Transport Manager.

On 30 June 2022 the DVSA undertook an unannounced maintenance investigation visit at the operating centre. The outcome was unsatisfactory as the examiner was unable to contact the operator. The leaseholder of the nominated operating centre informed the examiner that he had been in occupation since November 2019 (well before this licence was issued) and had never heard of the operator or Mr Hughes. The two listed maintenance providers also informed the examiner that they did not have any current maintenance agreements in place with the operator. One disclosed that he had not undertaken any work for the operator since repairing a trailer in January 2021.

The examiner’s report also confirmed that an “S” marked prohibition notice was issued to the operator on 13 June 2022 after a trailer was found to have brake and suspension defects. A vehicle was also issued with a delayed prohibition on the same date for a steering defect.

All these matters prompted the call to the Public Inquiry.

5. The Call to Public Inquiry

The operator was called up to public inquiry by letter dated 26 July 2022. The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(a), 26(1)(b), 26(1)(c)(iii), 26(1)(e), and 26(1)(f)) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) were to be considered as well as the provisions for disqualification in Section 28 of the Act.

Mr Hughes was called up as Transport Manager by a letter of the same date that gave notice of consideration of the requirement of good repute in Schedule 3 of the Act.

6. The Public Inquiry

The Public Inquiry was heard at Golborne today. A conjoined driver conduct hearing was held for Richard James Winder who was alleged to have been involved in a collision whilst driving for the operator.

The operator was not represented by this director or any other person. No further explanation was provided for the absence of the operator and the operator did not submit any of the evidence requested.

The solicitor who represented Mr Hughes at the preliminary hearing confirmed in advance of the public inquiry that he was no longer instructed.

Mr Hughes was contacted by telephone by my office on the eve of hearing. He initially claimed to be unaware of the hearing, but Royal Mail tracking information confirmed both call up letters had been signed for on delivery.

Mr Hughes then sent an email to my office acknowledging he had received the correspondence on 28 July 2022 and explaining he would not be attending because of health issues. No supporting medical evidence was provided. Mr Hughes did not request a postponement off the hearing and his email indicates he anticipated a final decision would be made in his absence.

Mr Hughes said he had taken a step back from his business and asserted he was no longer operating a haulage business at the present time (it is noted that he removed the last two vehicles from the licence at the same time he sent the e-mail). He added that he hoped to restart his business in the New Year.

Mr Hughes did not provide any further evidence of financial standing or vehicle and driver management.

I have considered Paragraph 5(7) of Schedule 4 of the Goods Vehicle (Licensing of Operators) regulations 1995 and the guidance in the Senior Traffic Commissioner’s Statutory Document Number 9: Case Management. I consider that it is appropriate to proceed to a determination of the public inquiry in the absence of the operator and its director. I am satisfied they are aware of the hearing, and I find that they have made a conscious decision not to attend or cooperate with the inquiry process.

7. Findings of fact

In the absence of Mr Hughes, I have reached the findings below based on the evidence contained in the brief and the information that was provided when Mr Hughes attended the preliminary hearing on 3 May 2022 with his solicitor.

I have also taken account of Mr Winder’s evidence during his conjoined driver conduct hearing.

I make the following specific findings:

• The operator has never used the authorised operating centre at Moss Side Farm.

• It is clear that operations have continued to as recently as 13 June 2022 when the prohibition notices were issued. It follows that if the operator is not at Moss Side Farm, it must have been using an unauthorised operating centre. It was conceded at the preliminary hearing that the operator had already moved operating centre. No application to change the operating centre has been made.

• The prohibitions issued on 13 June 2022 are evidence of a serious failure in the operator’s approach to maintenance. In the absence of any other evidence, I cannot be reassured about the risk of recurrence. I note the mechanical prohibition rate for the last 5 years is 50%, well over double the national average.

• The operator permitted a vehicle to be operated on 2 July 2021 without a valid excise licence or MoT. The vehicle had been on the operator’s licence since 2020 but there was no evidence its tachograph unit had been downloaded since 2016.

• The concern about maintenance standards is amplified by the fact that there appears to be no current agreement in place with any maintenance provider and the details notified to my office have been out of date for some time.

• Mr Hughes on his own admission at the preliminary hearing, has not been undertaking his Transport Manager duties for around 2 years. Mr Hughes did not inform my office of his absence until he appeared at the preliminary hearing.

• It appears that Mr Hughes has continued to be absent from his duties since the previous hearing and the steps promised to replace him as Transport Manager have not been progressed in any way.

• Consequently, I find that Mr Hughes has not been exercising continuous and effective control of the licence as Transport Manager.

Whilst medical evidence to support Mr Hughes’ claims about his health has not been provided, I am satisfied that he has been absent from the business for a considerable period. His evidence at the preliminary hearing suggested he was largely resident in Northern Ireland. That then begs the question of who has been managing the operation in his absence? My concern at that point is increased by the fact that the vehicle maintenance documents produced in May 2022 appeared to be addressed to other operators. Mr Hughes was unable to explain why those documents had been redacted in an apparent attempt to conceal that fact. This raises the question of whether this operation is in fact a front for some other person or persons.

Mr Winder gave evidence that he had worked for the operator for 2 years until it ceased operating about 2 months ago. He said he was paid by the operator but had no contact with Mr Hughes or anyone else from the company. He had never been spoken to about driving infringements and believed the tachograph downloads were done remotely. Mr Winder said he received his instructions from the transport planner for REDACTED for whom he understood he was working as a “subbie”. Mr Winder confirmed that at weekends the vehicles would be parked at REDACTED. Mr Winder’s evidence was consistent with the impression given by the other evidence in the case about the lack of active management of the licence by Mr Hughes.

These findings lead to my determination that the grounds for regulatory action in section 26(1)(a) of the Act are met in that the operator has operated from an unauthorised operating centre.

I find that the prohibitions issued on 13 June 2022 satisfy the ground for revocation in Section 26(c)(iii) of the Act.

The failure to notify changes in maintenance arrangements means a statement made on applying for the licence has not been fulfilled and the ground for revocation in Section 26(1)(e) is consequently met.

The evidence of the prohibitions, use of vehicle with an expired annual test and the failure to download tachograph unit means I find the operator has failed to fulfil the undertakings signed up to on application for the licence, specifically the undertaking to keep vehicles fit and serviceable and to observe the rule on drivers’ hours and tachographs and keep proper records. Additionally, I have not seen evidence of driver defect reports or safety inspection reports in the name of the operator. These matters satisfy the ground for revocation in Section 26(1)(f) of the Act.

The cumulative effect of the findings above taken with Mr Hughes failure to attend the public inquiry today or take any steps to address the issues identified at the preliminary hearing, leads me to conclude that the operator can no longer be considered to meet the requirement of good repute.

Further it is clear that the operator does not meet the requirement to have a stable establishment.

Finally, I record the operator is not professionally competent. Mr Hughes has not exercised continuous and effective control of the licence for 2 years and failed to promptly notify his absence to my office. The failures in compliance described above are attributable to his failure as Transport Manager. I find that his good repute is lost.

These findings consequently lead to a determination that the grounds for revocation in Section 27(1)(a) and 27(1)(b) of the Act are satisfied.

8. Relevant considerations

Having reached the findings of fact recorded above, I have considered the balancing exercise and have considered the positive and negative features by reference to the guidance in the Senior Traffic Commissioner’s Statutory Document Number 10.

There are few positive features to this case. I do give some credit for the 100% MoT pass rate although this needs to be seen in the context that one vehicle was operated after its test had expired. I also accept that this is the first public inquiry for the operator albeit that a previous warning has been issued.

On the other hand, I identify the following negative features:

• The persistence with which the various issues have arisen within the first two years of the licence.

• The prohibition history including a recent “S” marked prohibition aggravated by the fact that these were not notified to the traffic commissioner within 28 days

• Ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings

• Ineffective or no analysis procedures in place to detect falsification, drivers’ hours or Working Time Directive infringements

• The failure to produce evidence of any changes made to ensure future compliance

• Insufficient procedures in place to ensure appropriate use of tachograph or manual records by drivers

• High prohibition rate

The negative features far outweigh the positive features, and I am satisfied that this is a case that falls in the category of “severe” for the purposes of assessing the starting point for regulatory action.

I have gone on to consider the Priority Freight and Bryan Haulage questions.

In relation to the first, I do not have any confidence that the operator in the control of Mr Hughes can be trusted to be compliant in future. Mr Hughes has failed to fully cooperate with the public inquiry process. He has failed to take the opportunity presented since the preliminary hearing for him to try to address the issues identified by nominating a new Transport Manager and seeking to add a new operating centre. On the other hand, within little over a month after the preliminary hearing, the operator’s vehicle received an “S” mark prohibition indicating that any lessons from the hearing had not been heeded.

I have then considered the Bryan Haulage question of whether the company deserves to be put out of business. I note that Mr Hughes has indicated that he has already ceased operating vehicles.

The extent of the failings in this case and my concern about the operator’s ability to manage a safe and compliant operation is such that I am satisfied it is proportionate to direct the revocation of the licence. I would have reached that conclusion even if Mr Hughes had expressed an intention to continue operating the licence.

Turning to the question of disqualification, as the operator has only a single director in Mr Hughes, I consider it is appropriate to approach the issue as one for both the company and its individual director.

I have applied a balancing exercise and the features identified above in relation to regulatory action are equally pertinent to the question of disqualification. The negative features outweigh the positives and I consider a period of disqualification is justified.

In deciding upon the length of the disqualification, I have taken account of paragraph 105 of the Senior Traffic Commissioner’s Statutory Document Number 10 which states that for an operator’s first Public Inquiry, consideration of a disqualification period of between 1 and 3 years may be appropriate. The guidance adds, “Serious cases …may merit disqualification of between 5 to 10 years or in certain cases for an indefinite period.”

This is indeed a serious case, but I have balanced this with the fact it is the first Public Inquiry for the operator and director. I do not exclude the possibility of rehabilitation and a future application for an operator’s licence being allowed.

I would add that the first step in any rehabilitation process is a full acknowledgement of the extent of past misconduct and acceptance of responsibility.

I consider that a period of disqualification is necessary for Mr Hughes to reflect on the events that led to the loss of the licence and to seek further education on how to run a compliant operation. Any future application would also be strengthened by evidence that he had sought independent advice and support from a specialist source such a transport consultant. I would also wish to see evidence of attendance at an operator licence awareness training course provided by a recognised organisation.

After careful consideration, I have determined that the period of disqualification for the operator and its director can be limited to 12 months. Any return to holding an operator’s licence after that time would need to be supported by evidence of the steps, I have set out above.

I have separately considered the position in relation to Mr Hughes in his capacity as a Transport Manager.

I have reminded myself of the directions on the general responsibilities of Transport Managers set out in the Senior Traffic Commissioner’s Statutory document no. 3. These include:

• to review any shortcomings such as prohibitions and/or annual test failures;

• to ensure that relevant changes are notified in accordance with operator licence requirements;

• to ensure that vehicles and trailers are kept in a fit and roadworthy condition;

I was provided with little or no evidence that Mr Hughes had complied with these requirements. On his own admission, he has been absent from the role since the middle of 2020. The health reasons cited are not supported by medical evidence. Even if that explanation is accepted, Mr Hughes was still under a duty to notify my office of his absence and he failed to do so until he appeared at the preliminary hearing.

I find that Mr Hughes is not of good repute as a transport manager in the light of all the matters detailed above. As a result, disqualification must follow.

I have undertaken the same balancing exercise referred to previously and conclude that in this respect also the negatives far outweigh any positive features. I have again considered the guidance as at paragraph 98 above and I disqualify hm under Schedule 3 from acting as a transport manager for a period of 12 months. That period is appropriate for the same reasons as the corresponding disqualification from holding a licence.

At the very least I would expect to see evidence that Mr Hughes had attended a Transport Manager CPC refresher course before considering any future appointment to such a role after the disqualification has ended.

9. Decision

I direct the licence must be revoked on the grounds set out above.

In view of the indication that the operator has ceased to operate vehicles already, I direct that the revocation takes effect in 14 days’ time to allow proper notice to be given.

I direct that the operator is disqualified from holding or obtaining an operator’s licence for 12 months. I make the same order in relation to director Bernard James Hughes.

I further direct that Bernard James Hughes is disqualified from acting as a Transport Manager for 12 months.

Gerallt Evans

Traffic Commissioner for the North West of England

25 October 2022