Decision

Decision for Eagle Haulage Ltd (OF11404010)

Published 16 February 2021

IN THE EASTERN TRAFFIC AREA

1. EAGLE HAULAGE LTD – OF1140401

2. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

3. Background

Eagle Haulage Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 5 vehicles and 5 trailers, having been upgraded on 18 January 2018. The Director is Gary Ewen.

There is one Operating Centre at Unit 5, Roy Humphrey Group, A140 Ipswich Road, Eye IP28 8AW. There is one declared contractor showing on the licensing record; that is the Roy Humphrey Group, undertaking Preventative Maintenance Inspections of vehicles and trailers at 10-weekly intervals.

The application was considered at Public Inquiry because of links to A & R Haulage Ltd, which held OD1081841 and OF1057980, which were revoked in May 2013. Mr Argus was a Director and Transport Manager and had been made the subject of a disqualification. The application was granted subject to undertakings:

• Vehicles will undergo roller brake testing at every PMI by Rykel (as stated in the letter dated 14 March 2016, received in this office on 22 March 2016).

• The Operator will ensure that processes will be in place to ensure that trailers used will be properly maintained in line with the DVSA 2014 Guide to Maintaining Roadworthiness.

• Drivers’ records will be analysed externally, and the vehicle units will be downloaded every 28 days.

Mr Ewen previously held a Standard International licence authorising 2 vehicles and 2 trailers (OF1084993) from March 2009. He was apparently called to public inquiry in 2011 when a warning was issued. The licence was revoked in May 2013 following a failure to notify the resignation of the Transport Manager.

4. Hearing

The Public Inquiry was listed for today, 2 February 2021, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge, the application for an adjournment dated 31 December 2020 having been refused. The operator was present in the form of Mr Ewen who appeared unrepresented, by video link.

5. Issues

The Public Inquiry was called at the request of the operator, having been alerted to the seriousness of its position in correspondence from the OTC dated 6 November 2020. It was, therefore, for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• Section 26(1)(b) – breach of a licence condition;

• Section 26(1)(e) – statements made when applying for the licence were either false or have not been fulfilled;

• Section 26(1)(f) – undertakings have not been honoured;

• Section 26(1)(h) – material change regarding financial standing;

• Section 27(1)(a) – stable and effective establishment, repute, financial standing and professional competence;

• Section 28 – disqualification.

The operator was Directed to lodge evidence in support by 19 January 2021, and in particular:

• up to date finances, showing access to an average of £26,400 over the last three months;

• regular safety inspection records for the last 12 months for all vehicles;

• maintenance contracts;

• 12 months of driver defect reports, for all vehicles;

• evidence of training or disciplinary action received by drivers and managers.

On 19 January 2021, the Office of the Traffic Commissioner received a request for an extension for service of the above and then subsequent notification that Dynes solicitors were no longer instructed. An email requesting confirmation that Directions would be complied with was sent direct to the operator, but there was no response. Mr Ewen apparently failed to obtain the return of his copy of the bundle despite having had 14 days from the date when the solicitors withdrew.

6. Summary of Evidence

I refer to the statements of Mr Hawkins at pages 34 onwards. There are ongoing concerns regarding drivers for Eagle Haulage Limited. FY63 HRL was stopped on 3 September 2020 and again on 10 October 2020 by the DVSA. Analysis on the first occasion suggested that Driver Dearing had been removing his card and continuing to drive. This was confirmed in interview: 21 August 2020, when he drove 13.2 km for 16 minutes so he could get back to the yard and for the same reason on 24 August 2020 travelling 1 km for 7 minutes.

On the second occasion, Mr Ewen was found to have driven without his driver’s card inserted. He apparently inserted his card once DVSA signalled him to pull over, having driven 2 hours and 15 minutes without his card. Analysis also showed that on 9 October 2020 he drove for 14 minutes without a card and prior to that on 4 October 2020 when he drove for one hour and twenty-two minutes. AV14 NSJ was also stopped that day whilst driven by Paul Michael Stoker and for this operator. It was found that he was driving without his CPC qualification card and a check of the DVLA database revealed that the driver’s CE entitlement had expired on 1 March 2017. Mr Ewen just assumed that he had his licence and was unclear whether Mr Argus had completed any checks.

The incidents resulted in formal action, with a prohibition and fixed penalty notices being issued. I refer to correspondence at pages 72 onwards relating to the DVSA investigation commenced on 12 October 2020, initially relating to the operation of FY63 HRL, AV14 NSJ, JM60 MED, DE13 OLW, and PO61 BXP on and between 1 August and 11 October 2020. The Traffic Examiner, Mr Hawkins subsequently sought copies of driving licences for Gareth Dearing, Gary Ewen, Andrew Slade, Clive Stephenson, and Paul Stoker, payslips for Mr Slade, Mr Stephenson, and Mr Ewen on given dates in August, September and October, Proof of Delivery notes for FY63 HRL, AV14 NSJ, JM60 MED for given dates and confirmation of who was driving FY63 HRL on 10 October 2020 and AV14 NSJ on 28 and 29 August 2020. A transport consultant, Mr Olney, apparently sought an extension until 8 December 2020. It prompted a visit to the premises on 11 December 2020 and to seek an interview under caution.

The OTC received notification from the Transport Manager, Lee Anthony Argus, dated 10 September 2020 giving 3 weeks’ notice. In fact, he was removed from the licence, using the online service, on 22 September 2020. He was also removed from the licence as a director. These findings may be relevant to any future application by Mr Argus.

Correspondence was issued to the operator on 24 September 2020, with a response from Terence Cronley of Oplas Transport Consultancy. He requested a Period of Grace to appoint a replacement. He also lodged confirmation of OLAT training for the remaining Director, Gary Ewen. As Mr Cronley was not on record and no authority was provided, I was unable to consider that request. As a result, the operator was put on notice in the proposal to revoke dated 6 November 2020 (page 64).

Mr Dunbar was then instructed and in his email of 11 November 2020, he referred to the application. His further communication of 27 November 2020 confirms that Mr Ewan had been booked to attend the RHA OLAT course, that the operator had engaged a transport consultant, Mr Cronley, and that Cameron Ewen intended to sit a transport manager examination in the future. A Public Inquiry was requested.

I considered that request and referred to the test suggested by the Upper Tribunal in 2014/008 Duncan McKee namely whether there were reasonable prospects for a good outcome. I noted that there was no suggestion that the Director’s son had actually started studying to obtain a CPC, so there was little prospect of him fulfilling those responsibilities by the date of this Public Inquiry. My question as to whether Mr Dunbar had considered an alternative course was not put to him and the Case Summary fails to explain why. It remains the case that there is no Transport Manager in place.

While preparing the hearing bundle it was noted that a local newspaper contained reference to the conviction of 17 people involved in a conspiracy to supply cocaine and for money laundering offences at Isleworth Crown Court. It refers to Gary Ewen, of New Hall Lane in Great Cambourne, Cambridge, who had used his haulage business, Gary Ewen Haulers, with lorries stored at ‘Aztec Logistics’ in Letchworth Garden City, to ship cocaine into the UK from the continent. That address was the registered address for this operator up to March 2020. He was charged and sentenced to eight years imprisonment for conspiracy to supply controlled drugs. The press notice indicates that he had concealed drugs within his lorries before passing them to another member of the network, who had been selling the drugs onto street dealers. Officers recovered 45 kilogrammes of cocaine and £150,000 in cash. That report is at page 48 of my bundle.

In evidence Mr Ewen confirmed that he had been convicted and that he had failed to notify the Office of the Traffic Commissioner, when he became a Director in December 2016. He was apparently under the impression that this was the responsibility of the Transport Manager but there was no effort to check, although Mr and Mrs Argus were both Directors as well at that time. He appeared to be unaware of the statutory provisions on rehabilitation and that an offence attracting that level of sentence would require notification even now. He denied himself the opportunity of appearing before a traffic commissioner to explain and in doing so has inevitably undermined the trust which might be placed in him.

7. Determination

The operator requested this Public Inquiry but then failed to comply with Directions. In evidence Mr Ewen indicated that he had been unable to obtain the necessary documentation in full. In fact, he had lodged no documentation. He indicated that he had been working with the consultant, Mr Cronley, since September 2020 and yet there was no evidence by which I might satisfy myself that there had been any improvement even without a Transport Manager in place. I was unable to confirm whether the undertakings given to obtain the operator’s licence (referred to, at paragraph 3 above) have been complied with, but I have limited my adverse findings.

I was satisfied to the civil standard of proof that there had been breaches of the licence requirements and specifically: section 26(1)(b) – breach of the licence condition to notify me of matters that might impact on the repute of the operator; sections 26(1)(c)(iii) prohibitions (pages 44 and 45), section 26(1)(ca) – fixed penalty notices (page 46), section 26(1)(f) – undertakings to keep vehicles and trailers in a fit & serviceable condition, to have an effective written driver defect reporting system (see the Prohibition Notice), and to comply with the rules on drivers’ hours and tachographs, to retain and produce maintenance records for 15 months, section 26(1)(h) – material change regarding financial standing and professional competence.

Mr Ewen suggested that he could identify a suitable Transport Manager within 24 hours, having failed to do so in the 4.5 months since Mr Argus left. I did not find that a credible suggestion and noted the circumstances regarding OF1084993. It was perhaps inevitable that I would make adverse findings under section 27(1)(a) in respect of professional competence and financial standing. A notice for compulsory strike-off of the company was published on 27 October 2020. No financial evidence was produced. Mr Ewen very frankly admitted that he had parted with his solicitors due to concerns over the cost of representation. He was apparently aware that he would not be able to provide evidence to demonstrate financial standing. He indicated that there had been a change in his personal financial position some 18 months previously. This had impacted on the health of family members, but there was nothing that could explain the absence of documentation. Mr Ewen’s reference to issues with retrieving boxes from a storage company confirmed that they were not being stored at the establishment notified on the operator’s licence.

There was little positive evidence to weigh into the balance. I noted the reference to attendance at Operator Licence Awareness training. Mr Ewen indicated that he had been working with Mr Cronley since September 2020. That is reflected in the correspondence dated 29 September 2020 at page 59, but there was no other documentation produced to support Mr Ewen’s contention that he could be trusted to comply in future. I was told that his son had booked to start his CPC studies, but the courses had been cancelled. Mr Ewen referred to the possibility that Mr Cronley might act as the Transport Manager but there was no record of an application been lodged. I was satisfied that the evidence showed deliberate acts by Mr Ewen to circumvent the requirements on drivers and the operator but these were not just limited to him; there was evidence of ineffective management of the compliance systems and no evidence of any change was produced at the Public Inquiry. This placed the case in the ‘Severe’ starting point for regulatory intervention.

As the Upper Tribunal explained in 2013/082 Arnold Transport Ltd, these are continuing obligations, which an operator is expected to meet throughout the life of the licence. It went on to explain that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the…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. The attitude of an operator when something goes wrong can be very instructive, but not when it fails to produce any compliance evidence at Public Inquiry. That can only lead to an adverse conclusion.

I therefore considered the question posed by the appellate Tribunal in 2009/225 Priority Freight namely how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? I concluded that, even if a TM were present, Mr Ewen had failed to provide me with evidence of any improvement and against which he might restore the trust which his decision had so blatantly undermined. In those circumstances I concluded that this is an operator which must be removed from the industry (as per 2002/217 Bryan Haulage - no. 2), for the reasons explained above. I therefore made a finding under section 27(1)(a) that the operator is no longer of good repute. Having already heard evidence on the impact of regulatory action, I communicated to Mr Ewen that the situation could not be permitted beyond a 7-day run down of the operation. The operator’s licence will be revoked from 23:45 on 9 February 2020.

I indicated that I would reflect on whether it was necessary to make orders for disqualification. The Court of Appeal has recently considered the approach in Coach Hire Surrey Ltd & Paul Jones v TC for London and the South East & the Secretary of State for Transport [2020] EWCA Civ 1706. Disqualification is not to be seen in the same way as a punishment imposed by a criminal court. The Court of Appeal referred to the disciplinary function arising in this jurisdiction and highlighted the general purpose of the legislation in securing appropriate standards in the interests of the public and preventing “corner cutting”. The Court declined to provide a tariff or general guidance on disqualification, leaving that to Statutory Document No. 10, to which I have referred.

I am satisfied that there is a call for deterrent action in this case where the Director failed to disclose a serious conviction, has committed offences as a driver, whilst also failing to ensure compliance generally. The operator has continued to operate without financial standing and professional competence, requiring limited tribunal resources to be diverted whilst failing to comply with directions. There was an element of dishonesty in his actions as a driver, but I have given some credit for his frank admissions during the Inquiry. I have determined that disqualification is required to meet the wider purpose of the regulatory regime. The operator will be disqualified under section 28(1) from holding or obtaining an operator’s licence for a period of 3-years. I refer to the Tribunal decision in 2015/078 Black Velvet Travel Ltd, Western Greyhound Ltd and Michael John Bishop, Mr Ewen will be disqualified under section 28(4) from holding or obtaining an operator’s licence and from being involved in management, administration, or control of the transport operations of an entity that holds or obtains such a Licence for a period of 3-years.

Richard Turfitt

Traffic Commissioner

2 February 2021