Decision

Decision for MJA Haulage Services Ltd, Midlands Freight Logistics Ltd and MJ Direct Ltd

Published 21 July 2021

0.1 WEST MIDLANDS TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER

1.1 PUBLIC INQUIRY HELD ON 23 JUNE 2021

1.2 OPERATOR: MJ DIRECT LTD OH1040213

1.3 APPLICANT: MJA HAULAGE SERVICES LTD

1.4 APPLICANT: MIDLANDS FREIGHT LOGISTICS LTD

2. Background

2.1 Previous history: MJ Direct Ltd

MJ Direct Ltd (“MJ Direct”) holds a standard national goods vehicle operator’s licence (OH1040213) for 20 vehicles and 10 trailers. There are five vehicles currently specified on the licence. The sole director of the company is Sidney John Nicholls. The company nominated Nicholas Martin as transport manager on 6 August 2020 after the central licensing office in Leeds (CLO) had reminded it that it lacked a transport manager. At the same time CLO was informed of a change of director: Sidney Nicholls had replaced the previous director Paul Diggins.

CLO’s standard inquiries revealed that Sidney Nicholls had been convicted of two serious offences: he had been sentenced to two years’ imprisonment in 2015 for fraud and in 2019 had been sentenced to one year in prison (suspended for two years) for environmental offences involving illegal waste sites. The environmental conviction is not spent until March 2024. After it had been drawn to Mr Nicholls’ attention that he should have declared these convictions when notifying CLO of the change of directors, he recognised he could not act as a director of a goods vehicle operating company and offered (by email dated 10 March 2021) to surrender the licence.

I might in other circumstances have accepted the surrender of the licence. However, in the meantime I had received a report from DVSA which stated that MJ Direct’s authorised operating centre in Wokingham had not been in use for several years and that some of the vehicles which had been specified on its licence in December 2020 had previously been on licence OD0263642 held by Mark Edward Howl which I had revoked with effect from 29 November 2020. There was the possibility that these vehicles might not be under the control of MJ Direct and were continuing to operate despite the revocation of OD0263642. I decided to consider these issues and the proffered surrender at a public inquiry.

2.2 Previous history: Mark Howl, Matthew Howl, MJA Transport Ltd, MJA Haulage Services Ltd

I had revoked Mark Howl’s licence OD0263642 at a public inquiry in October 2020 after finding that Mark Howl had not been the de facto operator of his licence for a considerable period. The real operator had been his son Matthew Howl and, since early 2019, MJA Transport Ltd a company of which Matthew Howl and Mark Howl were directors. At the inquiry I also removed the repute of the transport manager concerned, Paul Taylor, as he had failed to ensure that the correct entity held the licence and indeed had had hardly any involvement with the business. At the same inquiry I refused the application for a licence made by MJA Transport Ltd because its prospective transport manager, the same Paul Taylor, lacked the required good repute. In my written decision I stated that “if the company wishes any new application to be considered favourably it must nominate an acceptable transport manager, Matthew Howl should first attend an operator licence management course and the company must show that its vehicles have not operated in the meantime.”

On 2 December 2020, three days after the revocation of licence OD0263642 took effect, CLO received an application for a standard national licence for 10 vehicles and 10 trailers from MJA Haulage Services Ltd. The nominated transport manager was Nicholas Martin (also the transport manager on the licence of MJ Direct Ltd until March 2021 – see paragraph 1 above). Matthew Howl had not attended an operator licence manager course (as I had stated he first should do if I were to consider an application favourably) although he later did so in April 2021.

When it came to the question of whether the vehicles which had been on licence OD0263642 (effectively operated by MJA Transport Ltd) on the date of revocation of 29 November 2020 were still operating, some concerning issues were drawn to my attention by DVSA. Within a week of the revocation of OD0263642, three of the vehicles on that licence (YK61 FCE, YJ08 AHA and AY11 DVF) were specified on licence OD2029710 held by SRS Gas and Water Utilities Ltd (“SRS”). DVSA’s report contained a statement by the director of that company, Stephen Swann, to the effect that he had had no knowledge of any of these vehicles and, when he had received the discs from CLO Leeds in early December 2020, had contacted the company’s transport manager, Nicholas Martin (see paragraphs 1 and 5 above), to ask what was going on. Mr Swann had then removed the vehicles from the licence himself and had changed his login password on the online database. Subsequently, he was informed by DVSA that vehicles YJ08 AHA and AY11 DVF were registered to SRS at an address which turned out to be the residential address of Matthew Howl. Mr Swann stated that SRS had had nothing to do with the vehicles, neither operating nor keeping them. Mr Swann said he was later contacted by Nicholas Martin in March 2021 who asked him if DVSA had been inquiring about the three discs he had received.

Mr Swann removed the three ex-OD0263642 vehicles from SRS’s licence on 12 December 2020. On 18 December 2020 they were specified on the licence of MJ Direct Ltd. MJ Direct’s director, Sidney Nicholls, subsequently denied all knowledge of these vehicles: in a witness statement he said that he had taken all vehicles off the licence in August 2020 and put staff on furlough (CLO’s records confirm that all vehicles were removed at that time). No vehicles had been operated since (indeed, he wanted to surrender the licence). Mr Nicholls stated that he had since spoken to transport manager Nicholas Martin about the matter and that Mr Martin had confirmed that the vehicles were added “by mistake”.

On 15 January 2021, DVSA stopped vehicle YJ08 AHA at the Wall Weighbridge site on the A5. The driver Mark Hall stated that he was carrying steel from Walsall to Leicester, driving for MJA Transport Ltd. Mr Hall subsequently provided a statement to the effect that he had been taken on as a driver by Mark Howl in November 2020 (without being asked to show his driving licence) and had been told he was working for MJA Transport Ltd. This was the name he was given at all collections and deliveries. From mid-January 2021 Matthew Howl had returned from illness and made it clear to Mr Hall that he (Matthew Howl) was in charge. Mr Hall had last driven the vehicle on 29 January 2021: he had left the company because he was offered only part-time work.

3. Public inquiry

Concerned by the DVSA report, I decided to call both MJ Direct and the application by MJA Haulage Services to a public inquiry. I also decided to call the application made by Midlands Freight Logistics Ltd, as the sole director and nominated transport manager was Nicholas Martin. Mr Martin was also called in his capacity as previous transport manager to MJ Direct, to consider his good repute.

The public inquiry took place in Birmingham on 23 June 2021. Present were Matthew Howl and Nicholas Martin and DVSA traffic examiners Edward Evans and Daniel Joyner. Stephen Swann of SRS participated by video link. Sidney Nicholls did not attend, but provided a statement.

3.1 Evidence of Nicholas Martin

Mr Martin denied that he had been responsible for specifying the ex-OD0263642 vehicles first on SRS’s licence and then on MJ Direct’s licence. He had simply passed to Sidney Nicholls the registration numbers of the ex-OD0263642 vehicles he knew were for sale, as Mr Nicholls had expressed an interest in acquiring vehicles. Mr Nicholls must then have specified these vehicles on the MJ Direct licence. Mr Martin had been loaned a laptop by Mr Nicholls but had had to return it in January 2021. Mr Nicholls must somehow have had access to the information on the laptop to enable him first to specify the vehicles on SRS’s licence and then, when this was rumbled by Mr Swann, to put them on MJ Direct’s licence. Mr Martin could not explain how Mr Nicholls had done this on 18 December 2020 when the laptop had not been returned to him until January.

Mr Martin accepted he had taken his eye off the ball, as he had not been aware that the three ex-OD0263642 vehicles had appeared first on the SRS licence (on which he was the transport manager) then on MJ Direct’s (likewise). He had decided that henceforth he did not want any involvement with anyone else’s business: that was why he had applied for a licence for his own company (Midlands Freight Logistics Ltd) and no longer wished to act as transport manager for MJA Haulage Services Ltd. He had resigned as transport manager for MJ Direct as soon as he had found out about Mr Nicholls’ convictions.

3.2 Evidence of Matthew Howl

Matthew Howl denied that he or MJA Transport Ltd had continued to operate vehicles after the revocation of licence OD0263642 on 29 November 2020. He had sold the vehicles for export shortly afterwards, bar one whose engine had blown up and which was still off the road. He had produced to DVSA a copy of MJA Transport’s invoice dated 21 December 2020 for the vehicles addressed to a Marian Bogaiciuc at an address in Ukraine. Payment had been in cash so could not be evidenced. Asked why the registered keepership of YJ08 AHA and AY11 DVF had changed at this time from MJA Transport (or Mark Howl) to “SRS Gas & Water Utilities Ltd” at Matthew Howl’s residential address (rather than the address of SRS), Mr Howl said that he had left it to the purchaser Mr Bogaiciuc to fill in details of the new keeper [even though the V5 document makes it clear that it is for the existing keeper to do this] and that Mr Bogaicuic must have filled in the details of SRS and his (Mr Howl’s) residential address rather than his own (Mr Bogaicuic’s) details. Asked how Mr Bogaicuic could possibly know these details, Mr Howl said that he must have seen them on his desk somewhere. Although the new V5 documents would have been sent to Mr Howl’s residential address, Mr Howl said that he had never received them.

Asked about driver Mark Hall, Matthew Howl said that he had no knowledge of him and had never employed him. He had no idea why Mr Hall would claim to have been in the employ of MJA Transport Ltd. MJA Transport Ltd had not operated since 29 November 2020 and all vehicles had been sold in December, for export as far as he was aware.

I asked the DVSA traffic examiners to see if the vehicles YJ08 AHA and AY11 DVF had been seen on the UK road network since December 2020. The day after the inquiry I received information from TE Joyner to the effect that YJ08 AHA had been sighted on 330 occasions by ANPR cameras on the UK road network over the three month period 26 March to 23 June 2021; AY11 DVF had been seen on 286 occasions over the same period. Sample photographs of both vehicles, clearly loaded, were provided. In one photograph the load clearly consisted of steel products. I concluded that both vehicles have remained in more or less continuous operation.

I asked my clerk to forward this information to Matthew Howl and give him the opportunity to comment. Matthew Howl responded to the effect that they were not his vehicles and neither he nor his company was operating them. He had no knowledge of what they were doing now.

In his concluding remarks, Matthew Howl reiterated that he had not operated any vehicles since the end of November 2020. The vehicles had been sold in December 2020. He had since attended an operator licence management course (in April 2021) as I had asked, and had even studied for and taken the transport manager CPC exam in June. He was currently awaiting the results.

4. Consideration

Clearly I am faced with two directly contradictory accounts of what has gone on. DVSA has, on the one hand, presented evidence showing that at least three of the vehicles on licence OD0263642 (revoked with effect from 29 November 2020) were specified first on SRS’s licence in early December without the knowledge of its director Stephen Swann; then, after Mr Swann had removed them on 12 December, on the licence of MJ Direct whose director Sidney Nicholls also denied knowledge of them. Both directors in their statements pointed the finger at Nicholas Martin who was transport manager for both licences at the time, as well as being the nominated transport manager on the application made by MJA Haulage Services Ltd. DVSA did not explicitly say so, but the implication of their report is that Nicholas Martin and Matthew Howl conspired together so as to continue to operate the vehicles under the cloak of other licences on which Mr Martin was the transport manager (and thus had access to the licences’ records in the online database).

On the other hand, both Nicholas Martin and Matthew Howl flatly deny that any such thing occurred. Mr Martin says that he only passed to Mr Nicholls some registration numbers of vehicles for sale and that Mr Nicholls must be responsible for the ensuing wrongdoing. Mr Howl insists that he stopped operating at the end of November and sold the vehicles shortly afterwards. He denies any involvement with driver Mark Hall.

For the explanation put forward by Messrs Martin and Howl to be the correct version, all of the following must be true:

i) the Ukranian purchaser of vehicles must have filled in the green section 6 of the V5 documents (name and address of new keeper) not the yellow section 9 (transfer to the motor trade), despite the fact that the form makes clear that it is for the existing registered keeper to do this. The purchaser must have filled in section 6 not with his own details but with the name of a company entirely unconnected with him and the address, not of that company, but of Matthew Howl’s home. Matthew Howl did not notice any of this;

ii) the new V5 documents for vehicles YJ08 AHA and AY11 DVF, which would have been sent to Matthew Howl’s home address, both went astray and were never seen by Mr Howl;

iii) the Ukranian purchaser never chased up the apparent lack of new V5 forms, even though he would have needed them to export the vehicles;

iv) although the vehicles were supposedly sold for export, they have in fact carried on operating in the UK to the present day;

v) at least three vehicles were put on SRS’s licence in December 2020 by Sidney Nicholls, although Mr Nicholls had no connection with SRS (Stephen Swann had never heard of him) and did not get the laptop (with SRS’s login details) back from Nicholas Martin until January 2021;

vi) Mr Nicholls subsequently put the vehicles on his own company’s licence although the registered keepership remained unchanged with SRS at Matthew Howl’s home address;

vii) Driver Mark Hall, although he had never worked for MJA Transport Ltd and had never met Matthew Howl, simply fabricated the story that he was working for MJA Transport Ltd when stopped on 15 January 2021. He was later able to name both directors of MJA Transport Ltd as well as the correct mobile phone number for Mark Howl according to the CLO’s database.

I agree with Nicholas Martin that Sidney Nicholls, given his convictions for fraud and waste offences, cannot be considered to be a wholly reliable witness, but I was nevertheless struck by the fact that what he says happened (the vehicles appearing without his knowledge on his company’s licence) is the same explanation as the one given by SRS’s director Stephen Swann whose probity is not in question. I am therefore inclined to attach some weight to the statement of Mr Nicholls.

5. Findings

All in all, I find that the sequence of occurrences listed in paragraph 20 i) to vii) above is, on the balance of probability, extremely unlikely. Much the likelier explanation of events is the one which DVSA has advanced, supported by the detailed testimony of several unrelated parties (Messrs Nicholls, Swann and Hall) – that MJA Transport Ltd and one or both of its directors contrived to keep operating vehicles after the revocation of licence OD0263642 on 29 November 2020 by getting Nicholas Martin to put the vehicles on the SRS licence (of which Martin was the transport manager) in early December 2020 and then, when SRS director Stephen Swann became aware of this and removed them, specifying them instead on another licence for which Mr Nicholls acted as transport manager, MJ Direct Ltd. The vehicles are still in operation today.

It follows from the above paragraph that neither Matthew Howl nor Nicholas Martin can be considered to be of good repute. I find that they have conspired together to frustrate the revocation of a licence by putting vehicles on the licences of companies which were not the true operators of those vehicles and have been untruthful at the public inquiry about what they have done. Good repute cannot possibly survive such conduct.

6. Conclusions

6.1 Licence revocation – MJ Direct Ltd

MJ Direct Ltd has offered to surrender its licence. However, because of Sidney Nicholls’ failure to declare his convictions for serious offences when he became director in August 2020, I am revoking it under Section 27(1)(a) and (b) of the 1995 Act. The company also lacks financial standing, professional competence (it has no transport manager) and a stable and effective establishment (it has no operating centre and has no vehicles at its disposal, the vehicles on its licence being at the disposal of other entities).

6.2 Disqualification – Sidney Nicholls

Mr Nicholls would never have gained approval as a director had his convictions been declared at the time. I am consequently disqualifying him under Section 28 of the 1995 Act from holding or obtaining an operator’s licence, and from being the director of a company holding or obtaining such a licence, until his latest conviction becomes spent, which it does on or around 1 April 2024.

6.3 Transport manager – disqualification

Having concluded that Nicholas Martin’s good repute is lost I must also disqualify him under paragraph 16 of Schedule 3 to the 1995 Act from being a transport manager on any licence. The disqualification takes immediate effect. Mr Martin has, through his conduct in specifying MJA Transport’s vehicles on licences of operators who had no knowledge of or control over these vehicles, enabled a business whose licence had been revoked to continue operating. This was a disgraceful thing for a reputable transport manager to have done. The deception was significant and sustained and is compounded by Mr Martin’s lack of truthfulness at the public inquiry. I conclude therefore that he should be disqualified from being a transport manager for the period of five years, until 1 July 2026.

6.4 Application – Midlands Freight Logistics Ltd

Because I have concluded that the director and prospective transport manager of this company, Nicholas Martin, is not of good repute, I must refuse the application under Section 13A (2) and (3) of the 1995 Act.

6.5 Application – MJA Haulage Services Ltd

Because I have concluded that the director Matthew Howl is not of good repute, and because there is no longer any transport manager associated with the application (and the person who was the nominated transport manager now lacks good repute), I must refuse the application under Section 13A (2) and (3) of the 1995 Act.

I note that my decision on licence OD0263642 made it quite clear to Matthew Howl that I would only consider an application involving him favourably if he had first attended an operator licence management course and could demonstrate that his vehicles had not operated in the meantime. He did not attend an operator licence management course until four months after submitting the application. More seriously, far from being able to demonstrate that his vehicles have not operated in the intervening period, there is a significant body of evidence to justify the conclusion that he has carried on operating them as usual. I recognise that he denies this in very strong terms, but there is not a shred of independent evidence to back up his claim that he disposed of the vehicles. All the evidence which exists points the other way.

I am requesting DVSA and the Police to employ their ANPR and on-road resources to identify and stop the vehicles which have been associated with licence OD0263642, namely YK61 FCE, YJ08 AHA, SN14 VCZ and AY11 DVF. Any of these vehicles found carrying goods on the public road without an operator licence is liable to be impounded and disposed of.

Nicholas Denton

Traffic Commissioner

30 June 2021