Decision

Decision for Phillip Lee Edney

Published 4 July 2024

0.1 WESTERN TRAFFIC AREA

1. PHILLIP LEE EDNEY – TRANSPORT MANAGER

2. DECISION OF THE TRAFFIC COMMISSIONER

3. PUBLIC INQUIRY 18 JUNE 2024

4. BACKGROUND

Phillip Lee Edney incorporated Harcourt Motors Ltd on 29 April 2021. The company lodged an application for a standard national goods vehicle operator’s licence on 26 May 2021. It sought to authorise fifteen vehicles and twenty trailers from an operating centre at Lynch Hill, Stanton Harcourt, Oxfordshire.

The caseworker noted large payments to the company’s bank account from Daniel Cleaver and W Cleaver. These were questioned. Mr Edney responded on 17 September explaining that the large sums were loans from Francis William Cleaver and Daniel Cleaver. He went on:

“As detailed in the application, I’ve been working for A W Cleaver Haulage Ltd as a compliance manager. Whilst undertaking this role it has become apparent that there is a great deal of general haulage work available, but a lack of operators to undertake it.

An opportunity arose for me to rent a vacant premises, previously known as Harcourt Motors, which has parking space and an undercover area for a workshop and some offices. I have several customers that are willing to contract work to the new business including Amazon. This will be a general haulage operation and in a different sector to that of A W Cleaver Haulage Ltd who mainly operates tippers. All the work that Harcourt Motors will carry out will be new work and in no way connected to A W Cleaver Haulage Ltd.”

The licence was granted as applied for on 14 October 2021. No vehicles were specified on it. On 9 August 2022, the trading name of AW Cleaver Haulage was added. On 7 December 2022, fourteen months after the licence had been granted, nine vehicles were added. Each had previously been specified on licence OH2019101 A W Cleaver Haulage Ltd until that licence was revoked on 5 December 2022, the company having entered liquidation on 5 October  2022.

I had previously disqualified Daniel Cleaver from being the holder of a goods vehicle operator’s licence. That was in February 2019.

On 24 November 2022, PC Sally Barden of Thames Valley Police encountered Daniel Cleaver driving MJ19VKF, at that point still specified on the licence of A W Cleaver Haulage Ltd. Tachograph analysis indicated a number of infringements and two fixed penalty notices were issued. Daniel Cleaver paid one at the time but refused to pay the second, saying it was the responsibility of his father, Francis.

DVSA encountered vehicle MJ19VKH on 31 July 2023 and the vehicle was prohibited for a tyre defect. The nature of the defect was such that the issuing Examiner considered it derived from a significant failure of compliance systems. That triggered a maintenance investigation at which it became apparent that Mr Edney was not in the business due to ill health. He provided a letter to the Examiner saying that he had passed his transport manager duties on to Darren Marshall-Deane. He had passed his director duties to Daniel Cleaver.

A liquidator’s progress report in October 2023 records that the assets of A W Cleaver Haulage Ltd had been sold to Harcourt Motors Ltd but the latter had defaulted on the payments. The vehicles were repossessed and sold at auction.

I was concerned that the operation had been a pre-emptive phoenix for A W Cleaver Haulage Ltd from the outset and it was apparent from various police and DVSA encounters that both Cleavers were playing significant roles within the business. Francis Cleaver was subsequently convicted of serious drivers hours offences facilitated by the use of a second drivers card. I was further concerned that there was no specified transport manager. Mr Marshall-Deane applied to be transport manager in January 2024. The company and Mr Edney were called to public inquiry.

5. THE PUBLIC INQUIRY

Mr Edney notified just ahead of the hearing that he was not well enough to attend. He was represented by Carolyn Evane, solicitor, who had offered him the opportunity to attend remotely via Microsoft Teams. I saw medical evidence which significantly pre-dated the date of the hearing. I am not a doctor but the symptoms did not seem to me to rule-out sitting in front of a computer screen.

Written submissions were provided. I summarise the parts relevant to Mr Edney here:

• Mr Edney had now resigned entirely and left the business

• He had previously worked as a counsellor but took a break from that in 2020 to work as a compliance officer for A W Cleaver Haulage Ltd.

• By September 2021, Mr Edney had achieved his transport manager CPC and agreed with Francis Cleaver to incorporate Harcourt Motors Ltd in the event that A W Cleaver Haulage Ltd did not survive its financial pressures (it was in a Creditors Voluntary Arrangement).

• It would seem that Mr Edney’s long-term sick started around December 2022.

• Mr Edney accepted that he should have resigned sooner.

• He had not been paid for several months.

I made decisions in relation to Mr Marshall-Deane’s application and recorded undertakings and a formal warning for the company. The undertakings were designed to remove any connection between Harcourt Motors and the Cleaver family.

6. DETERMINATION

It is notable throughout that Mr Edney does not appear to be referred to in any investigation. His ill-health coincides with the first vehicles being specified on the licence. He allowed the business to default on the payments for those vehicles leading to their repossession. He allowed a business to operate without an effective transport manager for a long period, somewhere between a year and eighteen months.

I find, on the balance of probabilities but by a significant margin, that Mr Edney colluded with the Cleaver family to provide a means to continue the A W Cleaver Ltd business following its sad demise, for what appear to be genuine reasons and very unfortunate circumstances.

I find that Mr Edney knowingly made a false statement at the time of the application when he said that the new business was for new work. It is now accepted in written submissions that was not true.

Whether Mr Edney ever did anything in his role as transport manager or director is not known. The prohibition history in the early part of 2023 was very poor. He failed to attend the inquiry and so failed to take the opportunity to demonstrate that he had been effective, at least at some point.

Having made a false statement which led to the grant of an operator’s licence and having failed to notify his absence from the statutory roles of director and transport manager for an extremely long period, I find that Phillip Edney has forfeit his good repute as transport manager. Not having met him, I am not in a position to state rehabilitative measures nor determine a period of disqualification so that must be indefinite.

Kevin Rooney

Traffic Commissioner

25 June 2024