Decision

Decision for Proctor & Son Haulage Ltd – OF0205275

Published 19 July 2023

0.1 In the Eastern Traffic Area

1. Written Decision of the Deputy Traffic Commissioner’s

1.1 Proctor & Son Haulage Ltd – OF0205275

2. Background

Proctor & Son Haulage Ltd holds a standard national goods vehicle operator licence, granted in April 1994, for 13 vehicles and 6 trailers. The directors of the company are Philip Arthur Proctor, Gary Philip Proctor and Lee Henry Proctor

Philip Arthur Proctor (“PAP”) and his son Gary Philip Proctor (“GPP”) are the nominated transport managers on the licence.

3. Previous history

3.1 Public inquiry in 2011

The company was called to a public inquiry in 2011 after a (then) VOSA investigation had found extended intervals between safety inspections, inspection records not being fully completed by the mechanic, a poor initial MOT pass rate of 52% and multiple prohibitions. The Deputy Traffic Commissioner issued a formal warning and secured undertakings by the operator that vehicles would be given a roller brake test at least every 12 weeks (not including the test at MOT) and that vehicles would be given a thorough and effective pre-MOT inspection. The good repute of transport manager Maurice Proctor was found to be lost.

3.2 Public inquiry in 2019

The company attended a public inquiry before me on 25 November 2019. I curtailed the licence from 13 vehicles to 11 vehicles for the period of 28 days after I found that the company had failed to fulfil undertakings:

• to have roller brake tests every 12 weeks. I noted that the tipper trucks had fallen out of the roller brake testing regime at some point a few years previously;

• to carry out effective and thorough pre MOT inspections. Such inspections appeared not to have been effective, because there was again a very high MOT failure rate (50% over the two years preceding the 2019 inquiry);

• to keep vehicles fit and serviceable. See the poor MOT failure rate above;

• to ensure that drivers report defects in writing. Driver defect reporting had not been carried out as effectively or thoroughly as it should have been, as could be seen from the multiple MOT failures for driver detectable items.

I refrained from taking away the good repute of the transport managers PAP and GPP, although I did remark that GPP should be given more freedom by his father PAP to manage the transport activities of the business. I was assured that this would happen.

4. Application for an increase and DVSA investigation

In February 2023 the company applied for an increase from 13 to 20 vehicles. This triggered an investigation by DVSA, who reported an unsatisfactory level of compliance in that:

• on three occasions trailer preventative maintenance inspection (PMI) records were used to record PMIs of vehicles;

• of the 49 PMI records checked, none was correctly completed. Declarations of roadworthiness were frequently not signed; tyre tread depths were frequently unrecorded; some dates were incorrect and the odometer reading was missing on some records;

• the roadworthiness declarations for vehicle PS14 PAS had been signed three times by the director GPP, not the mechanic;

• one PMI record for trailer C416333 simply recorded “Fenno on holiday”. This did not constitute a PMI;

• there was minimal evidence of roller brake testing being carried out. Such brake testing had been carried out in only one in ten PMIs on average (instead of the required one in two);

• the majority of PMIs were being carried out on time, but on four occasions there were gaps of between 51 and 87 days between inspections (against the declared 6 week (42 day) frequency);

• driver detectable defects were found in nine of the 25 vehicle PMI records checked;

• the in-house mechanic held only a level 2 certificate in HGV routine maintenance and was still attending college;

• the MOT test history since the 2019 public inquiry was 15 initial failures out of 34 presentations, a failure rate of 44% compared with a national average of 14%. The operator’s final failure rate was 32% (national average 9%);

• there was no evidence of a wheel security or tyre management system in place;

• there were 14 notable instances where drivers had driven without their tachograph cards, in one case for over 400km and 8 hours;

DVSA concluded that “there are very significant failings in the maintenance systems and procedures”.

5. Public inquiry

In the light of this concerning report, the company and its two transport managers PAP and GPP were called to a public inquiry. The call-up letters were issued on 5 May 2023, citing Section 26(1)(b), (c )(iii), (ca), (e), (f) and (h), Section 27(1)(a) and (b) and Section 28 of the 195 Act.

The inquiry was held in Cambridge on 12 June 2023. Present were Philip Arthur Proctor and Gary Philip Proctor.

5.1 Evidence of Gary Philip Proctor

Asked about the adverse conclusions of the DVSA maintenance investigation, GPP made the following points:

• i) the in-house fitter was his brother-in-law and it was very difficult to discipline him for failure to fill in the maintenance records properly. The fitter simply “wouldn’t listen to anything I say”;

• ii) indeed he barely saw the fitter or what the fitter was doing, because he (GPP) worked in the office which was separate from the workshop, and the fitter did not return his calls. PAP, the other transport manager, was out driving most days;

• iii) he was unsure whether the extended gaps between PMIs found by DVSA were a result of missing paperwork or because the inspections had not been carried out. Too much trust had been placed in the fitter;

• iv) he (GPP) had found some vehicle maintenance records to be missing, so he had created them using trailer inspection sheets by mistake and had signed the roadworthiness declaration himself;

• v) asked about DVSA’s comment that roller brake tests were still not being carried out, he stated that it had now been decided to install roller brake test facilities in the workshop (although this had not yet been done). There had been a delay because his father (PAP) had considered the facility to be too expensive and had not wanted to spend the money;

• vi) GPP had had some conversations with the fitter about the numerous MOT failures: the fitter “usually had a good answer”;

• vii) another, experienced, mechanic had now been brought in on Thursdays to help out;

• viii) GPP accepted that he had turned a blind eye to much unacceptable behaviour and poor performance because he felt unable to solve it.

5.2 Evidence of Philip Arthur Proctor

PAP accepted that he had not always had time to look at the maintenance records; he had glanced at them perhaps “once every three months”. He accepted that he had considered that the roller brake facility was too expensive and had delayed its acquisition. He accepted that he had not fulfilled his transport manager duties effectively. Perhaps it was time to take a back seat and just work as a driver.

5.3 Closing submission

GPP said that he had placed too much trust in others. “Personal stuff” had got in the way. His performance as transport manager had not been to the required standards but he thought he would be capable of fulfilling his duties if given another chance. A new mechanic was needed. Revocation of the licence or a substantial suspension would severely affect the company and its employees. He hoped I would allow the licence to continue.

6. Further information

I adjourned the inquiry at this point in order to take a written decision. The next day the inquiry clerk received an email from the operator, enclosing attachments which showed that the vehicles and trailers had been given roller brake tests in late May 2023 (this information had not been made available at the inquiry, where the roller brake tests presented numbered one or two for each vehicle over the previous 12 months). Evidence was also presented of a finance agreement for a new roller brake test facility at the operator’s premises.

Subsequently I was also sent a copy of a letter dated 21 June 2023 from Philip Arthur Proctor resigning as transport manager; he stated that he was still continuing as a director of the company.

7. Consideration

In reviewing the operator’s history, the most recent DVSA report and considering the evidence given at the public inquiry, I am very concerned that the same shortcomings found in both 2011 and 2019 continue to be present - notably an extremely poor MOT pass rate, missed PMIs, failure to have regular roller brake tests, and poor quality PMI records. The operator does not appear to have learnt any lessons from its previous appearances at public inquiries and has failed to make the necessary improvements. The company’s reliance on an unqualified and clearly insubordinate fitter, despite continued multiple MOT failures clearly indicating that he was incapable of maintaining a roadworthy fleet, is absolutely extraordinary.

It also became evident at the inquiry that the situation in which GPP – nominally the managing director - was in practice unable to exercise proper management owing to the domineering attitude of PAP (a situation which I had observed and commented adversely upon in 2019) had continued to the present day.

Even more seriously, I noted that GPP had stated that he created three vehicle maintenance records (on the wrong - trailer-specific - forms) to fill in gaps in the maintenance records. Falsification of maintenance records is a criminal offence under Section 38 of the 1995 Act. Falsifying such records is also a gross breach of the trust that should exist between traffic commissioner and operator.

8. Findings

After considering the evidence, I make the following findings:

a) the company has failed to fulfil its undertakings:

i) to keep vehicles fit and serviceable (Section 26(1)(f) of the 1995 Act refers). The MOT initial failure rate since the 2019 public inquiry is 44%. Vehicles have failed on a wide variety of issues, including steering, brakes systems and components, suspension and road wheels and hubs. There have been multiple failures for brake related issues. It is clear that vehicles have been on the road in an unroadworthy and dangerous condition;

ii) to give vehicles roller brake tests at least every 12 weeks. DVSA’s investigation concluded that such tests had been carried out only very infrequently and I saw much the same evidence at the inquiry: it was only from March 2023 that roller brake tests began to be carried out at the frequency demanded. The failure to fulfil the undertaking to have regular roller brake tests is all the more astonishing given the numerous MOT failures for brake issues.

b) the company has failed to keep its promise, made on application, that vehicles would be given a safety inspection every six weeks. DVSA found gaps in the records and, had the examiners known that three of the vehicle records had been falsely created, would have reported more gaps (Section 26(1)(e) refers);

c) transport manager Gary Philip Proctor is not of good repute. He has failed to exercise the continuous and effective management required of a transport manager in that he has been unable to effect the necessary improvements in maintenance because he has permitted a situation to persist in which the company’s incompetent fitter has been a law unto himself. GPP has lacked the authority to tackle this. Worse, GPP has created false maintenance records to make it look as though vehicles were given their preventative maintenance inspections. Such a dishonest act means that the loss of his good repute is inevitable (Section 27(1)(b) and paragraph 1 of Schedule 3 to the 1995 Act refer);

d) transport manager Philip Arthur Proctor is not of good repute. He has also entirely failed to exercise the required continuous and effective management of the transport activities of the business. Looking at maintenance records every three months or so in a cursory manner is not sufficient, especially when PAP was on warning after the 2019 public inquiry that a much better level of performance was expected;

e) because managing director and transport manager Gary Philip Proctor has falsified maintenance records, the company also lacks good repute (Section 27(1)(a) of the 1995 Act refers).

9. Balancing act

I carried out a balancing act. On the negative side were the above findings. On the positive side were the fact that vehicles have been given roller brake tests in March and May 2023 and arrangements to purchase a roller brake test facility have been made. Another fitter has been engaged for one day a week. But I conclude that these measures have come too little and too late. It is depressing that the same issues found at the inquiry in 2019 have been found to persist today – some of the issues go right back to 2011 indeed. This is a dysfunctional company, where the nominal managing director GPP (who is also one of the transport managers) seems to lack all authority and be treated with disdain by both the other “transport manager” PAP and the mechanic. I found very similar problems in 2019 and was assured that things would change. They have not.

9.1 Priority Freight and Bryan Haulage questions

I also considered the Priority Freight question of how likely it is that the operator will comply in future. Given that the company had its licence curtailed for 28 days at the public inquiry in 2019 yet three years later was found by DVSA to have made no improvement, and given that the company has resorted to falsifying maintenance records, I conclude that the answer is highly unlikely. I have zero confidence that this company will, with its current directors and other personnel, comply in the future.

A negative answer to the Priority Freight question tends to suggest an affirmative answer to the Bryan Haulage question of whether the operator deserves to go out of business. The persistence of the extremely poor MOT pass rate, with vehicles clearly being operated in a dangerous condition, and the gross breach of trust constituted by the creation of false records, mean that it does.

10. Decisions

10.1 Revocation of the licence

Having concluded that the company and both transport managers are no longer of good repute, revocation of the licence is mandatory under Section 27(1)(a) and (b) of the 1995 Act. I am also revoking the licence under Section 26(1)(e) and (f) – see paragraph 18 a) and b) above. The revocation will take effect at 0001 hours on 7 August 2023.

10.2 Disqualification of the company and its directors

For the reasons outlined above, and having performed the same balancing act, I conclude that Proctor & Son Haulage Ltd and its directors Philip Arthur Proctor, Gary Philip Proctor and Lee Henry Proctor should be disqualified under Section 28 from holding or obtaining an operator’s licence in the future and from being directors of any company holding or obtaining such a licence. Lee Henry Proctor did not attend the public inquiry, but I consider him equally culpable – as a statutory director – for the failings of the company. In deciding upon the length of the disqualification, I have taken account of paragraph 108 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This states that in serious cases where, for example, there are persistent operator licence failures with inadequate response or previous public inquiry history, a disqualification of between 5 to 10 years may be merited. I consider that this case falls squarely within this definition and am thus imposing a disqualification order of five years.

10.3 Disqualification – transport managers

Having removed their good repute, I must also disqualify Philip Arthur Proctor and Gary Philip Proctor from acting as transport manager on any operator’s licence (paragraph 16 of Schedule 3 refers).

The complete lack of interest in his responsibilities shown by Philip Arthur Proctor, and his failure to make the required improvements to compliance over a very extended period of time, means that I am very reluctant to see him ever act as a transport manager again. I am disqualifying him from acting as such for an indefinite period of time.

I have a little more sympathy for Gary Philip Proctor: he has been put in place as managing director but not in practice permitted to exercise that function properly (although a more forceful person would have done so). But as a transport manager he has failed dismally, and his conduct in falsifying maintenance records has been reprehensible. I am disqualifying him as a transport manager for the period of five years, to reflect the period of disqualification as a director. GPP needs a substantial period away from transport manager and/or director responsibilities in order to slowly rebuild his good repute, level of knowledge and force of character if he ever wishes to act as a transport manager again.

Nicholas Denton

Deputy Traffic Commissioner

10 July 2023