Decision

Decision for FAD International

Published 30 June 2021

0.1 IN THE EASTERN TRAFFIC AREA

1. IN THE MATTER OF A DETAINED VEHICLE: B170 6BA

2. F.A.D. INTERNATIONAL LTD (Applicant)

-V-

3. THE DRIVER AND VEHICLE STANDARDS AGENCY (Respondent)

3.1 WRITTEN DECISION OF THE TRAFFIC COMMISSIONER

The background to this application is as set out in the Notice of Detention, to be found at page 7 of my bundle, and subsequently confirmed in evidence before me.

Vehicle B170 6BA, a 2 axle Scania tractor unit, drawing a 3 axle SDC semi-trailer NI025933/99, was encountered on the Eastbound carriageway of A14 on 13 March 2021 and instructed to enter the DVSA site at Elmswell. The vehicle was eventually impounded at 9:10 am on 15 March 2021. Police attended the site, and the driver was eventually interviewed under caution at 11.22.

No issue was taken with the Respondent’s notification following which the Office of the Traffic Commissioner received an application completed by the Applicant. As is now the practice in a number of subject areas, the preparation of this case was completed outside this traffic area.

Considering the restrictions brought about by the pandemic and the need to ensure that the proceedings were understood, I determined that it was necessary to extend the statutory timetable under Regulation 23. I made further Directions for the fair hearing of the case on 9 April 2021, requiring mutual exchange of the evidence to be relied upon within 14 days of that date, with 14 days to serve any evidence in response. The Applicant was sent the instructions on how to attend the virtual hearing on three separate occasions. Four requests were sent to him to confirm whether an interpreter was required, the last being on 12 May 2021, with no substantive response.

4. The Hearing

The application form dated 17 March 2021 indicated that the Applicant might not require a hearing but in-line with current Upper Tribunal case law, it was determined that a hearing was required, to make a fully informed decision. Notification of the hearing was sent on 6 May 2021 (pages 20 to 21 and 23 to 24). That hearing took place on 17 May 2021 in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The Applicant failed to appear via video link; the Respondent was represented by Mike Hayward and Charlotte Hunt of Woodfines Solicitors, with Examiners Arlene Mansell-Baker and Susan Lee, in attendance to give evidence.

Paragraph 60 of Statutory Document No. 7, to which I must have regard, explains that any claimant who fails to attend an impounding hearing runs a significant risk that the application will fail because there is no evidence to prove the ground upon which return is sought and/or because the applicant is unable to answer any point raised during the hearing. A traffic commissioner cannot be expected to know what case the applicant might be able to make and is not required to become involved in helping an applicant to complete the grounds. I refer to the research carried out by the Respondent and summarised at pages 39 to 42 of my bundle. Searches of the Bulgarian Register against the Applicant’s details (page 81) indicate that the recognised manager is Dean William Lyons, who is described as the sole capital owner. The application is signed by Veselin Stoykov. Mr Stoykov is listed as a Director of another entity based in this traffic area (page 102) but appears to have no obvious authority to pursue this application. The position is further complicated by the fact that a different name, namely Veselin Stoya was given in email correspondence sent on behalf of the Applicant (fad.international@eclipso.eu - i.e., the email address given in the application), with the Respondent’s legal representative dated 5 May 2021 (page 189).

At the commencement of proceedings, following usual practice, I sought to explain the process for the hearing and to confirm the grounds upon which the Applicant sought return of the vehicle. The application form referred to one ground: “a) that, at the time the vehicle was detained, the user held a valid operator’s licence namely 19144, so it was not being used in contravention of section 2 of the 1995 Act”. In the ‘details of the application’ the applicant indicates that it was unaware of any problems with ‘Bulk Tranz Ltd’ which it said had leased the vehicle. The application refers to having seen a certified copy of the Bulk Tranz licence. I take this to refer to a licence said to have been issued by the Automobile Administration Executive Agency of the Ministry of Transport for the Government of Bulgaria.

5. The Law

Section 2(1) of the 1995 Act provides that no person shall use a goods vehicle on a road for the carriage of goods: a) for hire or reward; or b) for or in connection with any trade or business carried on by him, except under a licence issued by this Act. Article 8(2) of Regulation (EC) No 1072/2009 defines the extent to which non-resident carriers from other Member States are permitted to operate national road haulage services (i.e., cabotage). Since 14th May 2010 this has been limited to three such operations within seven days following entry to the relevant Member State.

The Goods Vehicles (Enforcement Powers) Regulations 2001, as amended allows for the detention and disposal of vehicles, which are not being operated legally. The Regulations also provide the limited grounds upon which an application can be made to a traffic commissioner for the return of the vehicle.

The owner of a detained vehicle may within that specified period apply to the traffic commissioner for the area in which the vehicle was detained for the return of the vehicle.

6. The Evidence

In reaching my Decision, I have reviewed the following documents: (i) the Application (pages). (ii) Case Summary and Bundle lodged on behalf of the Respondent. (iii) the Senior Traffic Commissioner’s Statutory Document (No. 7) on Impounding.
I need not repeat the full evidence here, it is adequately recorded on the taped transcript of the hearing and the hearing was in any event short, allowing me to rely on my contemporaneous notes rather than request a transcript.

7. Findings

It is necessary for the Respondent to satisfy me that they had reason to believe that the detained vehicle was being or had been used on a road in contravention of the legislation. The standard of proof required is the balance of probability. No issues have been raised as to the seizure of the vehicle, but the Applicant’s email of 13 May 2021 suggests that Mr Stoya intends to report B170 6BA as stolen and to inform his insurance company. It appears to query the continued retention rather than the basis of the seizure.

The statement provided by Ms Mansell-Baker (pages 115 to 118) describes the circumstances of the seizure. I refer below to the checks carried out against the various documents purporting to show that there was authority to operate the vehicle in Great Britain. The Respondent found the vehicle to be liveried in the name of “Lyons” at the time of the stop (pages 133 to 141). The driver gave his name as Karoly Nemeth, with a home address in Omagh in Northern Ireland. He stated that he was on a journey from Holyhead to Felixstowe. The vehicle was laden with sprinkler pipes. He was requested to supply documentation and presented a folder containing documents referring to a Bulk Trans Ltd. This included a document purporting to be a Community Authorisation licence, but Ms Mansell-Baker explains that this was not a valid document. The driver also supplied 5 analogue tachograph discs and a driver digital card in the name of Karoly Nemeth. The analogue chart removed from the tachograph had not been properly completed. Searches showed that a different card had been issued in the name of Karoly Nemeth. The driver claimed that the current card was not in his possession. The Respondent has identified different spellings: on the driver card – Memeth, and the driver qualification card - Nemeth. The vehicle was found to be 1,460 kilogrammes above the permitted weight of 18 tonnes.

I conclude that the detention of the vehicle on 15 March 2021 by the Respondent’s officer under the Regulations, was lawful, the Respondent having satisfied me that, on the balance of probability, the authorised officer had reason to believe that the vehicle was being, or had been, used on a road in contravention of the legislation.

The onus for proving ownership lies with the Applicant. The application asserts that the Applicant is the lawful owner of the vehicle. I refer to the summary of the relevant case law in the Senior Traffic Commissioner’s Statutory Document No. 7. As per the Upper Tribunal Decision in 2011/029 David Pritchard, it is for the applicant to prove ownership of the relevant vehicle before I am required to consider other issues, although it might be appropriate for me to hear all the evidence. As is apparent from the case law, the correct test is whether the applicant can produce sufficient evidence to satisfy me upon the balance of probabilities that he is the owner, not whether there is credible evidence that the vehicle is owned by anyone other than the Applicant.

The Applicant relies on an invoice purporting to be issued by EMG Transport Ltd of Varna in Bulgaria, to this Applicant. It refers to a Scania R580 4x2 unit, B170 6BA. It refers to what I understand to be a sum of 10,000 liv. I understand that a liv might be worth approximately 44 pence. However, it is apparently signed by Mr Stoykov as ‘Paid in full’ rather than the vendor. No other corroborating evidence has been provided. Ms Mansell-Baker refers to a licence, OL033314 in her statement of 20 April 2021 (page 182), which was apparently supplied by this Applicant. The records show the Applicant as the registered keeper of B170 6BA, but at the address of Bulk Tranz in Bulgaria. I have noted that it was only Mark Lyons who communicated with the Respondent regarding the vehicle. As per the Tribunal decision in 2005/565 Construction Access UK Ltd and 2005/259 R J Evans, neither the production of the logbook nor the identity of the registered keeper is conclusive evidence that the Applicant is the owner.

There was no other conflicting application made to the Office of the Traffic Commissioner, but the Respondent refers to a letter (page 99) which it received, purporting to come from Mark Lyons, claiming ownership on behalf of Bulk Tranz Ltd. The Respondent has provided evidence that Mark Lyons repeatedly contacted the Examiner once the vehicle had been stopped and claimed ownership (page 99 or 107). The Respondent suggests that Mr Stoykov features in a written decision delivered by my colleague, Miss Harrington, sitting as a Deputy Traffic Commissioner for the North Eastern Traffic Area, in September 2018. That decision was served on the Applicant but not included in my initial bundle. Miss Harrington makes specific findings in relation to Mark Lyons and an appeal to the Upper Tribunal in his name (2015/032). There are several instances referred to, including his conviction before the Belfast Magistrates’ Court on 20 September 2016 for the unlawful use of the Bulgarian operator’s licence to transport feed within the United Kingdom. Mark Lyons gave evidence that the vehicle travelled from the Republic of Ireland to Great Britain on 26 July 2018, whilst being driven by Veselin Georgiev Stoykov, who delivered a load of 28 tonnes, to a customer in Darlington on 27 July 2018. Mr Stoykov then drove to Bradford and parked there for the weekend when the vehicle was collected by a Kenneth Dickinson. The tachograph showed that the journey commenced in Belfast but was inconsistent with the CMR documentation. Miss Harrington refers to a letter from Mr Stoykov, which Miss Harrington found to be untrue due to contradictory evidence, including ANPR.

Having given explicit Directions, referred to in the Case Summary and intended to assist both parties, I see no merit in giving the Applicant further time to produce evidence of payments, or other corroboration. Even if financial records could be produced by the Applicant to corroborate the payment by the Applicant to the vendor, I see no justification to delay this determination any longer in anticipation of unspecified evidence.

On the above evidence, the Applicant has failed to satisfy me to the civil standard of proof that it is the legal owner of vehicle, B170 6BA. I have however followed the approach in Pritchard and proceeded to consider the remaining matters raised on behalf the Applicant.

There appears to be no issue that an operator’s licence was required, for the detained vehicle to have been operated in the manner described (pages 117 to 1128 and 127 to 128). At pages 17 to 19, I have been provided with what purports to be a lease contract between the Applicant and Bulk Tranz Ltd which is described as resident in Varna in Bulgaria. Its Director is given as a Mark Lyons. However, there are several apparent difficulties with this document, not least that it has apparently been signed on behalf of the lessor, namely this Applicant, by Mr Lyons. There is a manuscript date of 1 February 2021 but no signature on behalf of the lessee and no official or date stamp. I remain to be satisfied as to the status of this document. I also note that it seeks to charge the lessee an annual price of 5200 liv, i.e., over half its purchase price of 10,000 liv. The document suggests that the annual leasing price must be paid within 3 months of signing the agreement. This suggests that the vehicle would be released to the lessee without any payment up front. There is no reference to any operator licence requirements.

The Respondent points out that the unique identification code ascribed to the Applicant on that document is 13 digits rather than the usual 9 used by the Bulstat Registar, the public register of businesses trading within the Republic of Bulgaria. It is perhaps strange that the actual owner of the Applicant, Dean William Lyons, did not sign the agreement, given the familial relationship described by the Respondent. The Respondent also relies on reports of enforcement activity dating back to 15 January 2015 where this vehicle B170 6BA was found to be operated by Bulk Trans Ltd. I am also referred to the calibration certificate produced to the Examiner, which is in the name of Bulk Trans Ltd and dated 23 December 2019.

In its application, the Applicant refers to an operator’s licence with the number 19144. This I take to be the document at pages 15 to 16 of my bundle (with a better copy at pages 176 to 177) produced by Ms Mansell-Baker and referred to as a Bulgarian Registration Document. The Respondent did not accept its veracity. It has not been translated for me, but I can see from the copy presented to me that it carries the same identification number. I cannot tell who it might have been issued to. The Respondent has supplied a statement (page 181 to 182), which addresses the other documentation supplied to it: 13 March 2021 OL257488, suppled by the driver, does not entitle the operator to engage in the carriage of goods; 15 March OL264208 supplied by Bulk Tranz Ltd via email, does not entitle the operator to engage in the carriage of goods. In evidence I heard that OL033314 had also been supplied by Bulk Tranz Ltd on that day but was subject to similar restrictions.

The Senior Traffic Commissioner’s Statutory Document No. 7 on Impounding, usefully summarises the law. Once DVSA has established a right to impound the burden of proof is on the Applicant. Whilst the leading cases of 2013/021 Societe Generale Equipment Finance Ltd v VOSA and paragraphs 110 – 121 of 2011/060 Nolan Transport v VOSA, summarise the law on knowledge, they provide important principles to be applied. In this case the application simply asserts that there was an operator’s licence permitting lawful operation. It fails to address the identity of the actual operator nor does the ‘lease’ suggest that the Applicant has undertaken any kind of check, although the application refers to a certified copy of the Bulk Tranz licence. The Statutory Document suggests where a traffic commissioner might need to consider whether obvious inquiries have been made.

I cannot ignore the connections between the Applicant and Bulk Tranz Ltd. I note the exchanges with Mr Mark Lyons recorded by the Examiner (page 110). I am entitled to infer that the Applicant’s Director has chosen not to involve himself in this application and, despite the connections to Bulk Tranz Ltd, no-one has been called to give evidence in respect of its operations and the validity of the licence, upon which this application is based. No reference has been made to the Community Licence in the application. The discrepancies in the evidence provided on behalf of the Applicant and the apparent links to previous unlawful activity undermine the credibility of this application. I refer to the principle to be drawn from the Tribunal decision in 2011/025 Asset 2 Asset Ltd, namely that the regulations are intended to prevent owners knowingly permitting or facilitating the unlawful use of vehicles. The applicant has failed to satisfy me that it was the owner of the vehicle and that the was being used under valid licenses allowing it to operate in this jurisdiction. It would be unconscionable to conclude otherwise. The application therefore fails.

I am grateful for the assistance of Messrs Woodfines, acting on behalf of the Respondent, and their attempts to put the Respondent’s bundle into some comprehendible form. The labelling of documents, sometimes using the same letter, left something to be desired and at times appeared almost designed to confuse this tribunal. I hope that lessons will be learned by managers within the Respondent agency.

R Turfitt

Traffic Commissioner

17 May 2021