Decision

Decision for Edward Taylor Metcalfe

Published 8 March 2024

0.1 IN THE NORTH WEST OF ENGLAND TRAFFIC AREA

1. EDWARD TAYLOR METCALFE Trading as ET METCALFE  OC0256886

2. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

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

3. Public Inquiry held at Golborne on 13 February 2024

4. Introduction

Edward Taylor Metcalfe trading as ET Metcalfe (“the operator”) is the holder of a restricted goods vehicle operator’s licence OC256886 issued in 1996 and authorising the use of 2 vehicles.

On 13 February 2023, the Operator attended a public inquiry before me. The operator had not previously been called to a public inquiry or been brought to a Traffic Commissioner’s attention.

The public inquiry followed the issue of an “S” marked prohibition in June 2022 and a DVSA maintenance investigation visit in September 2022 that made several unsatisfactory and troubling findings.

At the hearing Mr Metcalfe (supported by his son, Kevin Metcalfe) assured me he was now familiar with the Guide to Maintaining Roadworthiness and were seeking to make sure they followed its recommendations. I found that there had been some limited improvements made to the operator’s systems and compliance since the DVSA investigation. I also gave Mr Metcalfe credit that this was his first public inquiry in the 26-year history of the licence.

However, I balanced this with several negative features and determined that regulatory action in the form of an indefinite curtailment of the licence from 3 vehicles to 2 vehicles was required to both underline to Mr Metcalfe the gravity of the position and to limit the risk to road safety of him operating more than the vehicles currently in his possession until I was reassured that compliant systems were in place.

In relation to that reassurance, I recorded three undertakings from Mr Metcalfe, namely,

• That he would arrange an independent audit to be conducted by 31 May 2023 and would submit it my office by 30 June 2023.

• That all vehicles would undergo a roller brake test at least every 3 months in addition to annual test.

• That Mr Metcalfe would attend an Operator Licensing Awareness Training course (“OLAT”) by 30 April 2023 and would supply proof of such attendance by 31 May 2023.

I concluded the hearing by warning Mr Metcalfe in person (and subsequently confirmed in my written decision) that if he failed to rapidly bring his approach to managing the licence into a compliant position, he could expect to be called back to public inquiry and revocation of the licence altogether would be considered.

On 1 June 2023 my office sent Mr Metcalfe a reminder about the OLAT undertaking. A response was received from Kevin Metcalfe’s email address but signed as “Ed” saying Mr Metcalfe had been suffering from health issues and was struggling to find an in-person course.

On 1 July 2023, a further reminder was sent about the audit undertaking. An email was received back from Kevin Metcalfe in which he claimed Edward Metcalfe was “away” and would reply on his return.

As neither undertaking had been fulfilled, a proposal to revoke the licence was sent at my direction on 12 July 20923.

A response was again received from Kevin Metcalfe saying that they had taken advice from solicitors and wanted to request a public inquiry. My office responded by pointing out that only the licence holder could make such a request. A handwritten letter was received from Edward Metcalfe dated 21 July 2023 confirming a request for a public inquiry.

A public inquiry was duly called for 26 September 2023. The operator was called up to the hearing by letter dated 14 August 2023. The call up letter gave notice that the grounds for regulatory action in Sections 26(1)(c)(iii), 26(1)(e), 26(1)(f) and 26(1)(h) of the Act were to be considered as well as the provisions for disqualification in Section 28 of the Act. 

The initial date was changed due to listings issues and the hearing was re-arranged for 9 November 2023. Mr Metcalfe then contacted my office on 31 October 2023 to state that he could not attend as he was recovering from [REDACTED] that meant he could not drive or be a passenger in a vehicle for any length of time. The hearing was further adjourned to today’s date.

The adjournment was confirmed by letter dated 3 November 2023 that also contained a proposal to suspend the licence with effect from Friday 10 November 2023 until the date of the public inquiry unless Mr Metcalfe provided representations against the suspension and/or an audit. No response was received but it appears the need to follow up the recording of the suspension was overlooked.

Mr Metcalfe did not provide any of the requested documents prior to the hearing. I was not provided with evidence of either OLAT attendance or the completion of an audit. No further explanation was forthcoming for the apparent failure to fulfil either undertaking.

Mr Metcalfe did not attend the hearing today without warning or explanation.

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 am satisfied that proper notice of the hearing has been given to the operator and that it has been given a fair opportunity to attend or otherwise respond to call to public inquiry.

I note that Mr Metcalfe acknowledged receipt of the call to public inquiry listed on 9 November 2023 and asked to be excused. He was therefore clearly aware of the pending public inquiry, and I apply the presumption that there was effective service of the letter informing him of the today’s revised date. In the absence of any evidence to the contrary, I find that the operator has deliberately absented himself from the hearing without good reason. I consider that it is appropriate to proceed to a determination of the public inquiry in his absence.

5. Findings of fact

I have considered the evidence as set out in the brief. As the operator has not presented any representations or evidence in response, I rely on the evidence in the brief to reach the following conclusions.

Mr Metcalfe has not fulfilled the promise he made at the public inquiry on 13 February 2023 to attend an OLAT course. Mr Metcalfe has also failed to honour the undertaking to arrange an independent audit. In the absence of any evidence of roller brake testing, I also find that relevant undertaking has not been honoured. These matters satisfy the grounds for regulatory action in in Section 26(1)(f) of the Act.

I find that Mr Metcalfe has failed to communicate promptly with my office about these issues. Other than the request for a public inquiry there has been no attempt made to provide evidence that the undertakings have been fulfilled or to otherwise explain the absence of that evidence and ask for an extension of time. I further find that Mr Metcalfe has failed to cooperate with the public inquiry process by complying with the case management direction to provide evidence in advance of the hearing and ultimately by his failure to attend before me today.

The cumulative effect of the findings above taken with the directors’ failure to attend the public inquiry today leads me to conclude that the operator can no longer be considered to meet the requirement that it must not be unfit for the purposes of Section 13B of the Act. I also find that the operator has failed to produce evidence to satisfy me that it continues to hold sufficient financial resources to maintain its vehicles in a fit and serviceable condition as required by Section 13D of the Act. These findings lead me to determine that there has been a relevant and material change in the circumstances of the operator that meets the grounds for regulatory action in Section 26(1)(h) of the Act.

6. 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. In my 2013 decision, I gave Mr Metcalfe credit for the limited improvements made to systems and compliance since the DVSA investigation. I also gave him Mr Metcalfe credit that was his first public inquiry in the 26-year history of the licence. Those matters no longer carry the same weight as Mr Metcalfe’s conduct has resulted in his swift recall to public inquiry. Further I have no evidence to reassure me that the improvements seen previously have been maintained and developed further.

On the other hand, the failures to honour the undertakings given at the 2013 public inquiry and the subsequent failures to cooperate with the current inquiry process (despite the warning issued at the previous hearing) are significant and tangible negative features.

Having balanced these factors and considered the evidence heard at the public inquiry, I consider this is a case that falls into the category of “serious” for the purposes of considering 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 can be trusted to be compliant in future. I gave Mr Metcalfe the opportunity last year to show me that he could be so trusted. That demonstration was to be achieved by fulfilling the undertakings. Mr Metcalfe has completely failed to take advantage of that opportunity. He has not given me any basis for confidence that he will comply with the requirements and expectations of a compliant licence holder in future.

I have then considered the Bryan Haulage question of whether the company deserves to be put out of business. 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 also take into account the failure of the operator to cooperate with my inquiry and to provide any form of reassurance about his future compliance.

I have considered the question of disqualification. I have again applied the balancing exercise but for the purpose of this question, I consider greater weight can be given to the previous 26 years of unblemished operation. Whilst the sudden deterioration in compliance since 2022 justifies revocation, that relatively short period of time gives me some cause to give Mr Metcalf some hope that he could reapply for a licence in future.

I therefore draw back from making an order for disqualification. However, I make it clear to Mr Metcalfe that if applies in future to hold an operator’s licence, he must be able to provide a satisfactory explanation for his conduct over the last year, together with evidence of the tangible steps he has taken to educate himself on the requirements of a licence holder and reassurance on how he will deliver compliant operation.

I direct that the revocation and orders for disqualification take effect in 28 days’ time to allow for proper notice to be given to the operator.

If the operator contacts my office before 13 March 2024 with a good reason to explain their non-attendance today and confirming their willingness to attend a future hearing, I will consider setting aside this decision and calling a new public inquiry.

Gerallt Evans

Deputy Traffic Commissioner

14 February 2024