Decision

Decision for Liam Molloy Transport Limited (OF1063129) and William Molloy - Transport Manager

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the Traffic Commissioner’s decision.

1. Background

Liam Molloy Transport Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 2 vehicles and 2 trailers. The Director is Emma Louise Stuart. The current Transport Manager is William Molloy, who acts under an Acquired Rights Certificate. There is an additional undertaking that all tachograph charts will be independently analysed monthly. Mr Molloy resigned as a director in September 2018.

There is one authorised Operating Centre at the Water Compound, Walton Avenue, Felixstowe IP11 3HH. There are five declared contractors showing on the licensing record: undertaking Preventative Maintenance Inspections of vehicles and trailers at 6-weekly intervals. Only HB Commercials, MIZ and Truck East are now in use.

The operator was called to a Public Inquiry on 14 May 2015, following findings of missing mileage at a roadside check in October 2014. The vehicle was being driven by Mr William Molloy. Further inquiries identified other issues with drivers’ hours compliance. Mr Molloy ceased being the transport manager for I Z Stuart Transport Services Ltd (OF1120354) prior to the Public Inquiry. Mr Rooney issued a formal warning and accepted the undertaking for independent analysis. Mr Molloy’s vocational driving entitlement was suspended for a period of 14 days.

The operator applied to increase its authorisation to five vehicles and five trailers, and to add a new operating centre and to appoint a new transport manager, Haley Rampton. Ms Rampton was the transport manager for I Z Stuart Transport Services Ltd from 11 June 2018 to 10 November 2018. This operator failed to pursue that application by supplying requested documentation, so the application was refused on 8 January 2019. An application was then made in May 2019 to add Ian Stuart as transport manager. Requests for Mr Stuart’s CPC and details of the application were made on 19 June and 10 July 2019, but no documentation was provided. The operator only responded to a proposal to revoke the operator’s licence. The company was notified on 4 October 2019 that the application would be considered at a public inquiry.

Ian Zaid Stuart was a director of I Z Stuart Transport Services Ltd. That entity was liquidated on the day that the licence terminated, on 31 October 2018. It had been due at a Preliminary Hearing following an ‘S’ marked prohibition and an unsatisfactory maintenance investigation; both of the vehicles currently specified on this licence were previously operated by I Z Stuart Transport Services Ltd. ## Hearing

The Public Inquiry was originally listed for today, 27 July 2020, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was present in the form of Mrs Stuart, Director, accompanied by Mr Stuart, nominated CPC holder, represented by Murray Oliver of Oliver Legal Solicitors Ltd. Mr Molloy failed to appear and without excuse.

2. Issues

The public inquiry was called for me to consider whether there were grounds for to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(b) condition to notify issues going to repute and professional competence
• 26(1)(c)(iii) – prohibitions (page 73)
• 26(1)(ca) – fixed penalties (page 78)
• 26(1)(e) - statements that William Molloy would exercise the statutory duty as transport manager and that vehicles would normally be kept at the Water Compound when not in use
• 26(1)(f) – undertakings (vehicles and trailers fit and serviceable, effective written driver defect reporting, compete maintenance records, drivers hours and tachographs)
• 26(1)(h) – material change:
• 27(1)(a) – repute, financial standing, professional competence
• 28 – disqualification

and whether to prevent Mr Molloy from relying on his CPC under 27(1)(b), schedule 3 and Article 4.

3. Summary of Evidence

The statement at page 62 from Traffic Examiner, David Smith, details the vehicle stop which took place at 10:21 on 7 December 2018 when AY07 DVC was being driven by Driver Narcis-Vldut Macovei. The driver confirmed his employment with this operator. Mr Smith found that the vehicle was out of annual test, which expired on 30 June 2018. The vehicle unit and driver card were downloaded and the following five Drivers Hours’ offences were found:

• 09/11/2018 drove for 5 hours 51 minutes without required break(s)
• 19/11/2018 drove for 6 hours 39 minutes without required break(s)
• 28/11/2018 drove for 5 hours 27 minutes without required break(s)
• 05/12/2018 drove for 5 hours 27 minutes without required break(s)
• The driver was also issued with a Fixed Penalty Notice for a insufficient daily rest offence where he had 9 hours 11 minutes rest and not the required 11 hours.

Mr Macovei had worked as a driver for Mr Stuart’s previous company but through an agency. He was employed by this operator but following the above circumstances he was dismissed. There are now two drivers. Mr Stuart and another gentleman. He is not an employee, despite the very clear guidance from HMRC, which was published following requests from the RHA, of which this operator is now a member.

The operator has attracted one driver’s hours offence notice (page 77), issued to Driver Macovei, and six Fixed Penalty Notices (page 78 onwards) relating to that driver’s offences and to an offence on 20 August 2019 when Mr Stuart was found driving EU08 OWV without evidence of a Driver CPC. I was assured that he has the qualification, but he had just returned from holiday and was carrying the wrong wallet.

The statement of Traffic Examiner, Barry Pope, at page 65 outlines his inquiries. He attended the site on 28 January 2019 and was met by Mrs Emma Louise Stuart and Mr Ian Zaid Stuart. In interview under caution, Mrs Stuart indicated that she had bought the business in October 2018. She indicated that she had put in place additional management. The Traffic Examiner Operator Report was marked as ‘mostly satisfactory’. She was under the impression that taxing the vehicle on 5 December 2018 would have advised her of the annual test status. Mr Molloy, Ms Rampton and Mr Stuart apparently failed to advise her to the contrary. Mr Pope was told that the maintenance documentation was in the possession of Mr Molloy. He was also advised that the Operator was already in the process of changing the Transport Manager. Reference was made to joining a trade association. The vehicle was tested on 13 December 2018 with a PRS result for lamps with advisories for ‘Glass and view of the road’ and ‘axles/stub Axles/wheel bearing’.

The prohibition notices are a matter of record: 28 March 2017 issued to Mr Molloy regarding C274817 and its service and parking brakes, the notice issued on 7 December 2018, and a further Immediate notice issued to Driver Docan, in respect of C274817 again for brakes and a broken indicator; of these, two were immediate and one delayed.

The annual test history was lamentable and set out from page 84 onwards:

• from 27 July 2015 the initial pass rate stands at 33.33% based on six tests, two passes, two PRS and two fails;
• from 27 July 2018 the initial pass rate stands at 0% based on three tests, 0 passes, 2 PRS and one fail.

I sought to understand whether the purchase of this company’s share capital was another means by which the IZ Stuart operation might continue. I also sought to understand Mr Molloy’s involvement on the back of the test history.

I was able to make an assessment of the Director during the Public Inquiry. I am satisfied that this is Mrs Stuart’s business and that she is committed to greater supervision in future. A number of errors have been made since her purchase of the capital. It was on the suggestion of her then accountant but it is clear that there was not a full due diligence exercise as part of that purchase. If there had been then the unauthorised move from the Operating Centre to another site between Dock Gates 1 and 2, would have become evident. In her evidence Mrs Stuart was frank that, whilst payments continued to be made to Mr Molloy as part of the purchase, he did not attend the site of operations. His name was on the licence, but he did not exercise effective and continuous management. At no point was I notified.

On the Director’s evidence, all the records had been given to Ms Rampton, who acted in that compliance role until the operator failed to pursue her nomination. Again, no-one notified me that Mr Molloy was not acting in that capacity. He officially retired due to ill-health in the middle of 2019. Applications to add Mr Stuart as the Transport Manager, to change Operating Centre, to increase authority, all foundered as they were not pursued promptly. I do understand that Mr Stuart’s family suffered a bereavement during some of that process but neither the operator nor Mr Molloy corrected me. I was effectively misled.

Mr Stuart has been acting to ensure compliance since his original nomination. The operator was requested to supply compliance documents by 17 July 2020, which was arranged by Mr Oliver.

On my dip sampling of the electronic records that were produced, EU08OWV had not been presented for a laden metred brake test during 2020 until the last Preventative Maintenance Inspection (PMI). The PMI forms regularly refer to a visual test and a decelorometer but all are unladen. If the operator was employing a static test this would suggest air brakes and should then refer to weight calculations in respect of dead weight of the axles. There are no such references. The most recent inspections on 23 May and 2 July 2020 also show driver detectable defects where I have yet to see a driver defect report. I make similar observations in respect of NK56 BUP but where the brakes locked on 22 February and 2 May 2020, there is reference about sending the vehicle to Truck East for further work. I did note that whilst the forms for C375379 referred to static tests, there were roller brake test print outs attached but, again, the inspections show driver detectable defects.

Mr Stuart’s knowledge of brake testing and grip of the maintenance documents was not encouraging. His reference to brake testing relied more on the advice of contractors than the starting point described in the Guide to Maintaining Roadworthiness. I can allow for some nervousness and his answers did improve, demonstrating a better understanding of the need for monitoring of recurring issues and the principles behind preventative inspection.

4. Determination

I am satisfied to the civil standard that there have been breaches of the Operator Licence requirements such that support adverse findings under section 26(1)(b), (c)(iii), (ca), (e), (f), and (h) material change in transport manager and Operating Centre. I already made a finding under section 27(1)(a) to allow a Period of Grace to the hearing on professional competence. The simple fact is that I have an operator with no authorised Operating Centre and who has had no authorised Transport Manager for a sustained period.

I start by quoting from the Tribunal decision in 2011/036 LWB Ltd:

when nominating an individual as a transport manager, (whether on an application for a licence or as an addition to or replacement for an individual who has acted as transport manager), it will be necessary to show that the person concerned will be able to exercise ‘continuous and effective responsibility’.

I follow that by referring to 2012/025 First Class Freight:

While it is true that a transport manager must “effectively and continuously” manage the transport activities of the undertaking for which he or she works and is now required to be familiar with a wide range of topics, including the law in relation to operator’s licensing, that does not mean that the person or persons who control an entity which operates heavy goods or public service vehicles is or are absolved of responsibility. Such a person must know enough to ensure that someone employed as a transport manager is up to the job and they must also be able to supervise them to ensure that they do a proper job. It is, after all, for the director or directors of a company to set the standards which the employees are required to meet.

It is truly unfortunate that Mrs Stuart chose to await the outcome of this Public Inquiry rather than booking some training for herself. Mr Stuart may have only qualified in 2016 but in his first such nomination, he has required the assistance of oversight. When I posed the initial question suggested in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? There must be some doubt based on that recent history. I have attempted to give credit for the recognition that a smaller operation will allow the operator to demonstrate compliance. I have noted the additional driver checks and the weekly downloading of vehicle units and driver cards, to use RHA analysis software and to create the necessary reports. There are still too many driver detectable defects occurring without being reported. There is not the type of effective brake testing required in order to meet the undertaking on the licence. As the Tribunal remarked in Priority Freight: promises are easily made, perhaps all the more so in response to the pressures of a Public Inquiry. What matters is whether those promises will be kept. In the present case the Appellant company was entitled to rely on that old saying that ‘actions speak louder than words’.

2006/277 Fenlon:

It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.

There is a need for deterrent action here.

This is not the first Public Inquiry, although it is the first under this management. In failing to check the licence requirements and then failing to address them promptly, there must be a clear understanding that this should not happen again. I will allow Mr Stuart’s appointment albeit with a warning as to his future conduct and a reminder of the content of paragraph 54 of Statutory Document No. 3 on Transport Managers I am willing to grant a temporary exemption under section 4 in order to allow that time, there will be other actions and I require undertakings:

• Director attendance at Operator Licence Awareness Training course within 2 months, proof of attendance to be lodged with OTC within that timescale;
• Full compliance audit 6 months from the date of this Public Inquiry

I have taken account of the evidence regarding the operation and sole main customer. I have also weighed in the current trading environment, but this was a bad case, although some efforts have been made. The Operator’s Licence will be curtailed so that the operator loses 50% of the authority down to 1 vehicle for 1 month commencing 23:45 on 29 July 2020.

I understand that there may have been some health issues but in failing to communicate with me, repeatedly and over a long period of time, even after previous intervention, Mr Molloy has put his repute as a Transport Manager at question to such a degree that I must make an order preventing him from relying on his Certificate of Professional Competence until such time as he can demonstrate to a Traffic Commissioner that he can meet the statutory duty. That will allow him to seek to vary that direction at any time.

RT/TC/27/7/20