Decision

Decision for Pro Car Transport Ltd (OH2047232) and Cheryl Rogers (Transport Manager)

Published 2 December 2024

0.1 In the Western Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 5 November 2024 at Bristol

2.1 Operator: Pro Car Transport Ltd (OH2047232) and Cheryl Rogers – Transport Manager

3. BACKGROUND

Pro Car Transport Ltd is the holder of a standard international goods vehicle operator’s licence authorising the use of four vehicles and three trailers from an operating centre at Poltimore, Exeter. This licence was granted interim authority in November 2021 and substantively in March 2022. The sole director is James McGrath. The transport manager was, from March 2023 until 21 March this year, Cheryl Rogers. The operator appointed a new transport manager, Matthew Cooper, who was approved on 23 May 2024.

The operator has significant regulatory history:

• James McGrath previously held a sole trader licence, OH1098096. That licence was granted in 2010. The licence was called to public inquiry in 2015. It appears from the papers before me that was because of concerns and convictions in relation to drivers hours. An increase from one vehicle to two was granted with an undertaking for a compliance audit. A formal warning was issued.

• In June 2020, the operator applied to increase authorisation to 5 vehicles and 5 trailers. It would appear that the nominated transport manager resigned at that point and another was nominated. Compliance history triggered a DVSA investigation which found concerns leading to a second public inquiry in July 2021. Adverse findings were made in relation to the unauthorised use of an operating centre, Mr McGrath was found to have been largely absent from the operation whilst travelling in Europe, serious maintenance failings including missing documentation, failure to monitor the transport manager (my emphasis), failings with the transport manager, and breaches of undertakings and conditions.
  The Deputy Traffic Commissioner found some balancing positive features in relation to training undertaken, engagement of consultants, and promises made. Mr McGrath’s repute was found to be “by the narrowest of margins retained”.  The licence was revoked with effect from 30 September 2021. That date was later extended to 21 November 2021 to allow for the limited company application.

• When this licence was issued in November 2021, it was with a warning:

“The Traffic Commissioner notes from the activity on the record of the director’s former sole trader licence that he appears to have continued to have in possession and to operate on a regular basis 4 vehicles despite the variation application having been refused. If it comes to the Traffic Commissioner’s attention that more than three vehicles are in possession of the limited company the licence will be called to public inquiry and the director’s previous poor history will be taken in to account. It should not need to be spelled out that revocation and disqualification of both operator and the transport manager could well be a likely outcome”

• The operator was called to a public inquiry on 9 March 2023 in front of a different Deputy Traffic Commissioner. The decision letter indicates concerns with tachographs and goes on “The main issue identified by the Traffic Examiner is that the operator operated a hired vehicle that was not specified on its licence between 14 January 2022 and 20 January 2022”. The licence was curtailed to two vehicles and two trailers for one week.

On 11 January 2024, DVSA Vehicle Examiner Adrian Williams carried out a maintenance investigation. The outcome was “report to OTC” with the most serious issues being prohibitions, maintenance records and driver defect reporting. It was apparent that the operator had changed maintenance providers and vehicles were being inspected in the operator’s yard with no facilities. VE Williams found the operator’s response to the shortcomings to be unsatisfactory.

DVSA Traffic Examiner David Liddall conducted an analysis of tachograph records on 3 March 2024. He identified numerous drivers hours and tachograph offences. Of particular concern was a period of driving on Friday 24 November. The driver that day has run out of hours. A break of sixteen minutes was then recorded followed by a further 3 hours and 32 minutes of driving with no card inserted. The driver was interviewed under caution. He had a clear recollection of another driver having come out to bring the vehicle home, Curiously, though, whilst the recollection of having been rescued was clear, the location, and the identity of the rescue driver could not be recalled. An email was later received from Matthew Cooper who investigated the event in May 2024 (he was not in the company at the relevant time). He told TE Liddall that James McGrath had been delivering a van to Birmingham and had then driven the HGV back to Exeter. Mr McGrath had lost his tachograph card at that time, had been taking printouts but these had been lost by the former transport manager. No evidence such as applications to DVLA were provided in support.

Given the serious maintenance concerns and the fresh concern in relation to driving without a card, I called the company and transport manager Cheryl Rogers to public inquiry.

Prior to the public inquiry, I noted in the compliance documents a tyre presented for a safety inspection on 9 September 2024 with extensive wear well beyond the tread. The operator had included an investigation that referred to delamination and concluded that the wear had recently occurred. Mindful of the Upper Tribunal decision in T/2022/148 RAM Logistics Ltd, I had the documents passed to DVSA and was promptly provided with an independent expert report compiled by VE Williams. Mr Williams had made attempts to locate the tyre but it had not been possible to do so. He was therefore able only to work from the photographs taken by the tyre company. In VE Williams’ opinion the tread wear damage was longstanding and appeared not to be caused by delamination.

4. THE PUBLIC INQUIRY

James McGrath and Matthew Cooper attended for the operator represented by Samuel Jones of counsel, instructed by Backhouse Jones solicitors. Compliance documents were provided in hard copy in advance in line with the standard directions. Written submissions on behalf of the operator were provided the previous afternoon. Cheryl Rogers attended unrepresented. Nothing had been received from Ms Rogers in advance. She provided on the morning some written submissions and evidence and these were shared with the operator. It seems these had been sent to an incorrect email address.

Finances were satisfied as a preliminary matter. I had provided Mr Jones with a history of the recent vehicle movements on and off the licence.

4.1 The evidence of Matthew Cooper

Matthew Cooper told me that he had been appointed as a full-time employed transport manager on this licence in May 2024. He had passed his national CPC in 2003 and international in 2010. He had worked as a transport manager throughout that period. He had been aware of the DVSA concerns when he was appointed. At that stage, he realised that there were improvements that needed to be made, some of which were quite significant. He had previously joined operators in need of assistance. He had never attended a public inquiry but had assisted with preparations. He had had no interaction with Ms Rogers.

Since the MIVR, the maintenance provider had been changed. They now used Frank Tucker Commercials and City West Commercials. All PMIs were now carried out in workshops with all equipment. He checked all the paperwork for the declaration of roadworthiness and to ensure all defects were rectified. Vehicles were presented for brake testing loaded using customer vehicles. That was not easy to organise but they had achieved a loaded brake test on every occasion since changing providers. Customers might not be happy if they found out that a £80-90,000 vehicle was being used as a load for a brake test. Mr Cooper described what appeared now to be a reasonable VOR process. Mr Cooper had checked for recalls and would do that every six months.

The working relationship with Mr McGrath was very good. There were monthly compliance meetings and they worked in the same office nearly every day. Forward planning was on an excel spreadsheet. Vehicle planning was on a whiteboard as was routeing. The driver defect reporting document had been rewritten and made more robust, He had carried out gate-checks on all the drivers. Defect reporting was moving to an app-based system. There was a Whatsapp group for defects.

Following a vehicle having been presented for PMI with a severely defective tyre, he had carried out a detailed investigation. The driver could not be disciplined because he was self-employed. He had now been employed properly. They had introduced a weekly tyre check with the drivers measuring and recording the tyre tread depths every week.

Monitoring of AdBlue had been introduced. They had changed tyre provider as North Devon Tyres had not been conducting re-torques. They had moved to TruckTyre who did always carry out a 30-minute re-torque. He issued a compliance briefing to drivers twice a month and had covered load security in one of those. The prohibition issued for load security was because the driver had thought that a drop-well was equivalent to a chock. They now required all drivers to use three straps with four on the first and last vehicles. All policies were being updated and, once that was done, the driver handbook would be issued to all drivers. At this stage, Mr Cooper believed that compliance had improved and there were still improvements that needed to be made. The culture needed to change and Mr Cooper believed he could do that starting from the top. Mr McGrath now realised that that change needed to be made and the drivers understood that also. Site security was now much improved as was lighting. Mr Cooper was satisfied that he could exert continuous and effective control over the operation.

The event of driving without a valid card had been investigated. They had a driver in the Birmingham area who wasn’t going to be able to get back in his hours. Mr McGrath had driven a van to a delivery in Birmingham. He then took over the truck and drove back. He had lost his tachograph card at the time and had been taking printouts but these had been mislaid by the previous transport manager. I noted that there was no evidence in support. Mr Cooper told me that they had only been asked to provide evidence for the last 6 months and that was why the evidence of the lost card had not been included.

Driver cards are downloaded weekly and vehicle units fortnightly. Any infringements are dealt with soon after they occur.

An audit had been conducted on 10 May 2024 and Mr Cooper had been present. He had also prepared the response to the MIVR. A further audit in October had shown improvements.

I referred to the list of vehicles. Mr Cooper told me that N28PRO had been removed from the licence and put up for sale on 3 June 2024. It was replaced by CA71ZOO. BU12YTL then had to go in to a body-shop for some work so N28PRO was re-specified for that period being 12 June to 8 July with BU12 removed from the licence to make space. BU12 had not been SORNed as it had not been off the road for a month. BX67ZGO was replaced by KV19FND on 14 June, was SORN and up for sale. I noted the other movements that concerned me pre-dated Mr Cooper’s involvement.

I referred to the infringement reports in the files and noted that the most offending driver appeared to me Mr McGrath himself. The analysis system rated him as “very high risk”. I contrasted that to Mr Cooper’s earlier comments in relation to Mr McGrath’s apparent thirst for compliance. Mr Cooper told me that Mr McGrath had not previously made manual entries for other work. He had trained Mr McGrath how to make manual entries. A lot of those infringements were errors making manual entries. They were making improvements. I noted that the issue stemmed back to April and there had been countless comments of “advice given” but no improvement. I put it to Mr Cooper that it might suit Mr McGrath to make those errors as it then became impossible for anyone to work out whether he had taken his daily and weekly rests.

I asked about the self-employed drivers. Mr Cooper told me that there had been three. One had left for compliance reasons, one had been brought on to the books and the third was no longer used to drive vehicles on the o-licence.

4.2 The evidence of James McGrath

Mr McGrath told me that the operation was transport of classic and new cars. He acknowledged the previous history and apologised for it. He further apologised for the recent shortcomings identified by DVSA. Matters had not been managed correctly and paperwork wasn’t filed correctly. He had realised that there were shortcomings around May when the audit was done by Dave Robbins Transport Consultant. Cheryl handed her notice in around April. He had tried to recruit an internal transport manager in early 2023. He rarely saw Ms Rogers. She would come in for a few hours on a Wednesday but not every Wednesday or maybe a Friday. He had spoken to her on a “couple of occasions” and could speak with her by email or telephone.

If defects were identified, Mr McGrath would get them repaired by the maintainer. Ms Rogers would have known about that. Mr Jones referred him to evidence provided that morning which purported to be a memo by Ms Rogers to him raising concern about a driver’s continuing drivers hours and working time infringements and recommending that the driver attend training. He did not recall seeing memos from her but he had put that driver on a course.

Mr McGrath accepted that he had not provided sufficient oversight of Ms Rogers. That was because he didn’t see much of her and she was not in control of the operation. They had spoken but he had not followed it through with more meetings and control so he had booked an audit in – that was the Dave Robbins audit. Mr McGrath was at the office every working day. He only drove to cover holidays or to help out.

Discussion turned to the apparent offence in November 2023 of a driver driving without a card. Mr McGrath confirmed the version of events in the submissions and as described by Mr Cooper. He would have the DVLA correspondence. The printouts were put on a tray for Ms Rogers. He had been asked to take the van to Birmingham at short notice. The driver had enough time to get back himself.

Mr McGrath told me he was mostly office-based and he did a manual entry for every day. He never went over his drivers hours, any issues were with the working time directive. He was not making the erroneous manual entries to hide anything. He understood that the regulatory situation was difficult. He felt that I should give him another chance as he now had Mr Cooper in his business as both general manager and transport manager. Mr McGrath could be trusted because Matt was a good mentor and had sent him on several courses, including an OLAT, TM CPC refresher course, on load security and on drivers hours. Mr Cooper had done an amazing job putting systems and procedures in place. They had systems and procedures previously but they hadn’t been followed through.

A lot of money had been invested in the business. The company could not exist without an operator’s licence. Suspension of authority for anything more than a week would also cause the business to fail. There was no margin and all four vehicles were in use. Any curtailment would bite and hurt the bottom line. Undertakings were offered to engage the services of a transport consultant for 12 months and for a further independent audit in 6 months.

I referred Mr McGrath to the issue of the tyre presented for a safety inspection with the tread worn away completely and the report of the DVSA Examiner. Mr McGrath told me that driver had now been employed by the company.

Mr McGrath had advertised for a transport manager on Indeed and that had attracted the application from Ms Rogers. He had no arrangements in place to oversee her work. He was always in the office. He reviewed the safety inspection reports. He became aware of the lack of roadworthiness sign-off on the reports and the wording was then changed. Mr McGrath told me that his maintenance provider did have a workshop. He may have done one or two inspections in the yard. The previous provider lost a couple of technicians and then stopped doing inspections. He knew of Phil Daly as a fitter and he was reliable, turning up when he said he would. There was an account with Stuart Truck & Bus for brake testing and the vehicles were brake tested prior to the inspection.

I took Mr McGrath to page 85 of my bundle which was part of the Vehicle Examiner’s report. I referred to the statement in relation to W28PRO “Brake tests have not been carried out with the last 5 safety inspection reports”. Ms Rogers had told him that he had had the required number for the year, four. They now had them done every inspection. I referred Mr McGrath to the “SIPCAT”, which showed the vehicle had a roller brake test on 25 May 2023 but nothing thereafter in that year. Mr McGrath told me that work had been done on it by A C Binns, an operator in Kettering, but he had been unable to get the brake test report. I referred to references in the Examiner’s report to vehicles being presented for safety inspections with flat tyres and brake wear warning lights on the dashboard. Mr McGrath accepted that compliance during the period reviewed by DVSA was not good.

I referred to page 128 of the bundle which was part of the operator’s response to the Vehicle Examiner. The document was a report from Ms Rogers on a gate check carried out on 12 February 2024. I noted the following statement: “Steve then started to unload the vehicles on the trailer, he advised that he had not put his card in to record other work “as it would lose an hour to an hour and a half”. I did advise Steve his card should be in recording other work. I suggest Steve is spoken to by you and this conversation recorded”. Mr McGrath told me that he had never asked a driver to do that. He should have had his card in. He had told all the drivers to use their cards. I asked about any disciplinary process at the time. There had been none. I suggested it was indicative of the culture of the business. Mr McGrath repeated that the driver should have had his card in and he would not have done that again.

I invited Ms Rogers to pose any questions through me. It was difficult to separate Ms Rogers’ questions from her evidence. She had found the job on Facebook. Mr McGrath conceded that Ms Rogers had attended once a fortnight either a Wednesday or a Friday and done gate checks on a Monday morning. Ms Rogers told me she attended every week and from January it had been two or three times a week.

Ms Rogers submitted that she always completed a report after her visits and submitted that to the operator. Mr McGrath told me that he had seen reports sometimes but not always, maybe half the time. He did not accept that Ms Rogers was not made aware of defects. He did accept that corrective action had been taken with respect to some of the drivers and their infringements. He had kept records of his working time on A4 timesheets but not on his tachograph. Timesheets were completed weekly.

4.3 The evidence of Cheryl Rogers

Ms Rogers had started in the transport business in 1982. For eight years she had managed a HGV rental business in Plymouth. The company had its own training school and she took her CPC in 2018 and a refresher with Dave Robbins in 2023. She had been transport manager for two companies in Cornwall while the operator took the exam themselves. She no longer wanted to use her qualification having had the experience with Pro Car.

There had been a Facebook advert. She responded and arranged to meet Mr McGrath. She was subsequently invited to be transport manager. She had not been aware of the previous public inquiries until she attended the inquiry in March 2023. She had advised that brake testing be done at every PMI. It had been a struggle to get them done. James had said he would get them in when the vehicles were coming back. When that did not happen, there had been constant discussions but not documented. She had tried booking them in but the vehicles were not made available. At that time, she thought she could make the business compliant.

I referred to the list of vehicles and asked how many vehicles were in possession. She told me that she had advised Mr McGrath that any vehicle owned should be on the operator licence but that was not accepted. More than four vehicles over 3.5 tonne were in possession and in use by the business “on and off”. In response to a question from Mr Jones, Ms Rogers was clear that more than four vehicles were in use. I clarified my understanding that not more than four vehicles were actually operated at the same time but more than four were in possession at the disposal of the business. All parties agreed that to be the case.

4.4 Closing submissions on behalf of the operator

In the negative were the serious shortcomings identified by the DVSA on both maintenance and traffic. On the matter of the vehicle being driven without a card, the operator’s position was that Mr McGrath had been driving, had produced a printout but that had been lost. It was a documentary failure, not an actual case of a vehicle being driven without a card to hide an offence.

The most recent issue of the tyre presented for a safety inspection was accepted as an issue the driver should have identified. There was adverse regulatory history. In terms of culture, it had to be accepted that there had been a lack of oversight by Mr McGrath but significant weight should be given to Mr Cooper’s evidence that the culture was changing. It was clear that Mr McGrath and Ms Rogers did not have a wholly productive relationship. They were at cross-purposes. The DVSA matters fell on both of them.

The significant positive is the involvement of Mr Cooper and the change in approach of Mr McGrath. He had to change his approach and culture or be put out of business. Mr Cooper gave credible evidence of his engagement. Mr Cooper had grabbed the bull by the horns and he clearly has a plan for the future. The operator had fully complied with the DVSA investigation and public inquiry process.

In relation to the Priority Freight question, this operator could be trusted to be compliant in the future and he deserved one more chance. He would have the sword of Damocles over his head. It would be disproportionate to put this operator out of business. Good repute was tarnished but not lost. In relation to the Senior Traffic Commissioner guidance, whilst the case starts in the serious bracket, the positive features took it to the very lowest level of that bracket, or even out of it. I was invited to curtail by as little as possible and with notice. If I were to suspend, I should keep that as short as possible and provide notice. I was offered the undertakings for a transport consultant and for a compliance audit. I could also be offered an undertaking that the operator would have a full-time internal transport manager.

5. FINDINGS OF FACT

Financial standing is satisfied.

The drivers hours matters revolve around the conduct of one driver and of the company. In the witness statement of TE Liddall dated 11 March 2024, he tells me that the driver had committed ninety-three infringements over an 18-month period. That is more than one every week. TE Liddall then focusses on the driver only in respect of vehicle BX67ZGO which the driver drove for the first time on 22 September 2023. That reduced the number to twelve. All bar three of these would not attract a penalty at the roadside if found to be isolated offences. There were two offences of exceeding 10 hours driving, one by 40 minutes and one by 19 minutes. There was a further offence of exceeding 9 hours driving by 17 minutes.

On 24 November 2023, I see from the Tachoscan reports that the driver starts his day with a period of availability of sixteen minutes then a period of other work of two minutes. I assume the POA is to cover the walk-round check as it is unlikely anyone could perform any meaningful check on a car transporter in two minutes. Of course, he may not have conducted a check at all. Driving starts at 07:23 and the day looks uneventful until the driver’s card is ejected at 17:33. Driving recommences immediately. At this point, the driver had driven for 7 hours and 54 minutes. There is then a further period of driving of 3 hours and 32 minutes taking the day’s driving to 11 hours and 26 minutes. The driver’s time sheet showed that he finished work at 2200 not 17:30. The driver was interviewed on 28 May 2024 about an incident which occurred on 24 November 2023. He was asked in advance to bring any relevant information such as time sheets or work records that might assist him in remembering. The driver did not bring them.

The driver’s account in interview under caution is that he had run out of hours, someone had driven out to meet him, put the car on the back and then his rescuer drove back. He could not recall who that person was.

The company’s account is that the driver had realised he could not get home with the hours available and conveniently Mr McGrath happened to be in Birmingham having just driven a van there as a delivery. The driver and Mr McGrath met up and Mr McGrath drove home. He had lost his card at the time, taken printouts and subsequently the company had lost those too. Mr McGrath told me that the driver did not in any case need to pull his card as he had the time to get home. I note the total driving that day came to 11 hours and 26 minutes so Mr McGrath’s statement there is simply untrue, and by a wide margin.

There is clearly some disparity in the two accounts. The driver appears cagey in interview. He had been asked to bring relevant documents such as a diary, time sheets, and anything else that might exist to help him work out his movements. It seems he had brought some evidence but none that was relevant to the week of concern. I appreciate that it was six months after the event but a driver needing to be rescued should be a relatively rare event. Picking up your boss from an address in Birmingham and causing him to have to drive you home is also something one might ordinarily remember. Normally, the immediacy of driving following card removal is a strong indicator but, in this case, it is said that both drivers were in the cab so that might be possible.

I am not persuaded by either account given the lack of any supporting evidence and the substantial differences between them. I make my findings on the civil standard, that of “is it more likely than not?” I am also aware that, despite applying the civil standard, the more serious the allegation, the more cogent must be the evidence supporting it. I do find that, more likely than not, the driver in question simply pulled his card and drove home. In making that serious finding, I rely on the different accounts provided by driver and operator. I also rely on the fact that what Mr McGrath told me in his account, that the driver had enough hours, was not true. Finally, I rely on the lack of any corroborative evidence such as the delivery note for the van Mr McGrath claims to have taken to Birmingham or evidence that his driver card had been lost at the time. All that and more should have been available to answer the allegation. It seems it is not. Hence, I conclude that the driver pulled his card and the company has attempted to hide that. However, whilst this might in most circumstances be enough on its own for good repute to be forfeit, the evidence is not at the highest level so I do not attach as much weight to this adverse finding as I might otherwise. But it is serious nonetheless.

It is not clear why Traffic Examiner Liddall did not proceed to check compliance systems. Had he done so, he would have had rick pickings. He needed to have looked no further than the director who either never makes a record of other work or routinely records almost the entire week as other work. I accept that it is burdensome on occasional drivers to make manual entries but it is the law. Without doing so, it is impossible for an enforcement officer to determine whether the necessary rest periods have been taken. Mr McGrath has been advised on the requirement countless times but, it seems, stubbornly fails to comply. That is either because he wants to hide his true working time and rest periods, or because he has no regard for the law. Either is a highly negative outcome so I do not need to decide between them.

In response to the MIVR, the operator and transport manager provide a copy of a report of a gate-check carried out by Ms Rogers on 12 February 2024. I discussed this with Mr McGrath – see paragraph 29 above. A driver told the transport manager that he was unloading with the card removed so he could save time for later that day. Mr McGrath’s response was simply to say that he had not told the driver to do that. There was no evidence of any disciplinary action to what in most companies is an offence that would lead to dismissal. That, taken with the director’s continuing failure to comply, appears to demonstrate a culture of risk-taking and non-compliance. I find that the rules on drivers hours and tachographs have not been complied with and Section 26(1)(f) is made out. I attach additional weight to the finding given that the most prolific offender is the company director, the same director who took no action against a driver falsifying his driving record.  

I turn now to maintenance and to VE Williams’ report. The operator accepts that the position was poor. That is understating it. There are too many examples of dangerous vehicles and trailers in use. A car-transporter trailer C095524 was inspected by the maintenance provider in the yard, without under-vehicle inspection facilities, on 30 September 2023. A defective air sensor is found and the inspection report signed to say that the trailer was not in a roadworthy condition. There is no evidence of any repair. On 4 October, just 1300 kms later, a driver records a defect on that trailer “N/S/R trailer hub/wheel broken”. VE Williams interprets that as the wheel and hub having become detached. Car transporter trailers are low to the ground and it is not possible to inspect them effectively without facilities. Mr McGrath’s decision to have inspections conducted in his yard appears to have led to a wheel loss, commonly known to be a very dangerous incident.

The same trailer has a defect of “ABS light on dash” reported by drivers from 21 April 2023 until 26 October 2023. It was encountered by DVSA at Plymouth on 31 January 2024 and was issued a delayed prohibition for the ABS warning light which remained on when driven. It was issued with an advisory for one weak spring brake. The previous PMI on 29 December 2023 was signed of as not roadworthy. There are countless other examples supporting VE Williams conclusion of “clear evidence of vehicles used with reported safety defects”. In adopting that finding, I refer also to the light goods trailer which was issued with an immediate prohibition on 10 October 2023 at Burton-in-Kendal services on the M6 in Cumbria. The defect is described as “service brake does not operate on every road wheel. Nearside axle 2, brake drum parts missing”. I have never known brake drum parts to fall off – there is generally no way past the backplate and roadwheel. That was clearly a conscious and deliberate decision to use a trailer in a dangerous condition. I also have account of the very recent incident in September of this year when a trailer was presented for a safety inspection with the tread completely worn away and cords also worn away. Vehicles have not been kept fit and serviceable; Section 26(1)(f) is further made out.

This licence has been in force since November 2021. In the three years since, the operator has been issued four mechanical prohibitions, three of which were of immediate effect. There has been one drivers hours prohibition and a prohibition for overloading. Section 26(1)(c)(iii) is made out.

Much of this appalling compliance took place under the tenure of Ms Rogers as transport manager. She was an external transport manager who attended generally weekly – a position eventually accepted by Mr McGrath who had previously argued that he rarely saw her. She seems to have relied upon memos to spur the director to act. She did not herself have authority to hire and fire drivers or to change maintenance providers. That is not a position any transport manager can allow themselves to be in, but it is sadly all too common where the individual is external to the organisation. The warning signs were all too clear and her resignation should have come far sooner.

In considering Ms Rogers’ culpability, I must take in to account the way she was managed by the operator. When his sole trader licence was revoked in 2021, the DTC was critical in the following terms “The operator fails to “constantly monitor and supervise” the transport manager in accordance with the Transport Tribunal appeal case of Alison Jones t/a Jones Motors L56 1999”. Exactly the same happened here. Ms Rogers did not do enough and did not resign soon enough but she had no support from Mr McGrath. I find her good repute to be badly tarnished but still intact.

There have been improvements over the past few months since Mr Cooper was appointed as a full-time internal transport manager and I give Mr Cooper credit for that. I have to consider the operator as of now. The Upper Tribunal gives helpful direction on that in T/2014/59 Randolph Transport Ltd & Catherine Tottenham when it said “Although repute must be considered as at the date of the decision, that does not mean that the past becomes irrelevant. In many cases, the present is simply the culmination of past events”.

So I give Mr Cooper and the operator credit for the very recent improvements but they come at the tail end of non-compliance over a period of some nine years. Ultimately, whilst Mr Cooper can produce policies and procedures, he is yet to change the underlying culture of non-compliance. That culture is easily demonstrated in two very recent examples. The first is Mr McGrath’s continuing mis-recording of his other work despite countless pieces of advice to do that simple task properly. Second is the trailer presented for a safety inspection with a tyre worn to and through the cord structure. VE Williams comments on that tyre as follows:

“this issue has not happened recently, due to the wear through 3 layers of steel cords. The tyre issue would most likely be present for a few days before 09/09/24 and on the morning of 09/09/24 during the driver walkaround before driving to inspection”.

I cannot act as an expert witness but I can record as a specialist tribunal that I have never before seen a tyre in such a condition on a GB-registered vehicle. It can only be in that condition because of a culture of non-compliance within the business.

So I turn to the two questions helpfully provided by the Upper Tribunal to support Traffic Commissioners in considering proportionality. The first question arises from T/2009/225 Priority Freight and asks me to consider whether this is an operator who can be trusted in the future. This is the director’s fourth public inquiry. Regulatory action has been taken previously to no apparent effect. There have been common threads of drivers hours abuse, poor maintenance, ineffective transport management control. There have been findings of more vehicles in possession than authorised on previous occasions and Mrs Rogers confirmed that was the position during her tenure. (I say here that I make no adverse finding in relation to the dual-purpose vehicles whose use appears in line with published guidance if not the law.) The only thing that is different at this point is Mr Cooper and, of course, he is free to leave at any time. The toxic culture towards compliance remains. I find very clearly that I cannot trust this operator to be compliant in the future.

Having made such a finding, I have now to ask myself the question posed by the Upper Tribunal in T/2002/217 Bryan Haulage: is the operator so bad that it requires to be put out of business. For the reasons set out above, I find this operator poses a real and present danger to itself and other road users. Attempts at regulatory action previously have failed. It cannot be trusted to comply in the future. It follows that its business must end in the public interest. I find that James McGrath and Pro Car Transport Ltd have lost their good repute.

Disqualification does not automatically follow revocation but neither need there be any additional feature. This operator has been non-compliant for at least nine years despite multiple interventions from DVSA and Traffic Commissioners. James McGrath simply refuses to comply. I have no doubt that he knows the rules perfectly well but chooses not to apply them. A short period of reflection should allow him to consider first whether he wants to re-enter this highly-regulated, and dangerous, industry and, if he so decides how he can run a successful business within the rules – as countless of his competitors do every day.

Kevin Rooney
Traffic Commissioner

18 November 2024