Decision

Decision for PURPLE ROCK LOGISTICS LTD & CHRISTOPHER ANDREW MARTINS, TRANSPORT MANAGER

Published 18 August 2022

0.1 IN THE EASTERN TRAFFIC AREA

1. PURPLE ROCK LOGISTICS LTD – OF2031574

AND

2. CHRISTOPHER ANDREW MARTINS – TRANSPORT MANAGER

3. CONFIRMATION OF THE TRAFFIC COMMISSIONER’S DECISION

4. Background

Purple Rock Logistics Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 15 vehicles and 15 trailers. The Directors are Michael Tomalin, Raymond Hill, Helena O’Neill, and David Scott. The Transport Manager listed on this licence is Christopher Martins. A bundle of documents submitted on behalf of the operator refer to car transporter operations.

There is one Operating Centre at the East of England Arena, Oundle Road, Alwalton, Peterborough PE2 6XE. Mr Martins indicates that the former site at Rockingham Logistics Hub, Mitchell Road, Corby, NN17 5AF was only removed in late 2021 having been retained as a contingency. Preventative Maintenance Inspections are said to be carried out by CTS Corby, Truckeast, Manchetts, LTS Transport Solutions and Commercial Vehicle Services, at 8-weekly intervals. The bundle which was received immediately prior to the first hearing included a contract with CVS dated 18 May 2022, LTS dated 15 December 2021, Truckeast Ltd dated 3 May 2020, but only a letter from Manchetts dated 2 November 2020, with no attachment. A MAN web planner was illegible, but the Preventative Maintenance Inspections suggest that this might have been produced by Manchetts. A screen print of the 2020 planner was similarly illegible. Mr Martins added to this in his subsequent statement and exhibits.

Representations suggest that the operator is part of a corporate structure connected to Belfast City Auctions Limited, trading as City Auction Group, which has been engaged in the auctioning of used cars and other motor vehicles for approximately 25 years since. The Group decided to expand its activities into England, via an entity known as City Auction (Peterborough) Limited, operating from a Peterborough base, located with the East of England Showground in Peterborough. In response to dissatisfaction with the transport arrangements, it decided to bring those activities ‘in-house’ albeit through the separate entity holding this operator’s licence.

Mr Martins was the Director and Transport Manager for Eulos EU Ltd (OF1119179). That company went into administration in December 2019. On 10 March 2020 his details were removed via the online account and the licence was subsequently revoked in May 2020. Mr Martins was issued with a warning after a failure to notify those material changes. Two of the vehicles that were specified on Eulos EU Ltd (T24 EUL & T27EUL) were specified on the application by this operator, having been purchased at auction.

5. Hearing

The Public Inquiry was originally listed for 15 June 2022, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The operator was not present. I was told that Mr Tomalin, who had planned to attend, was now busy with meetings. Mr Martin was in attendance. I was invited to accept a letter of authority which was timed at 10 minutes before the hearing was due to commence. Both parties were represented by Rhys Meggy of Counsel (QEB Hollis Whiteman Chambers) instructed by Berryman Lace Mawer, solicitors.

The legal representatives renewed the application to adjourn for a third time and by reference to R v Bristol Magistrates Court (ex parte Rowles) [1994] RTR 40. In that case the Divisional Court intervened where it was found that the refusal of an adjournment has resulted in procedural unfairness. The application was made to allow the attendance of an expert witness. The refusal was made on the basis that there had been multiple previous adjournments. The Divisional Court reminded the Justices that the decision whether to grant an adjournment is not a mechanical exercise but depends on an assessment of the interests of justice.

I had previously considered the request for an adjournment on 31 May 2022, which I refused. The lawyers renewed that application under cover of a letter dated 8 June 2022 on the basis that the operator and CPC holder would be denied a fair hearing due to an inability to prepare the case within the time allowed. I distinguished between i) the position of the operator and Transport Manager, and ii) that of the lawyers. As the solicitors acknowledged, the DVSA assessment was dated December 2021. The matters of concern, which were identified by DVSA, were conveyed to the operator at that time. At the hearing, I was provided with the following chronology:

• 21 October 2021 – DVSA commence desk-based assessment

• 4 November 2021 – operator’s response, through Mr Martins

• 1 December 2021 – DVSA completed the desk-based assessment

• 2 December 2021 – operator’s response

• 6 May 2022 – call up letters to operator and Transport Manager

• 17 May 2022 – solicitors instructed following authority from the relevant insurance company

• 18 May 2022 – Counsel instructed

• 20 May 2022 – operator provided first tranche of documentary instructions

• 21/22 May 2022 – solicitors worked through that documentation

• 23 May 2022 – financial evidence provided

• 28 May 2022 – operator requested to provide additional documentary instructions

• 28 May 2022 – operator responds

• 30 May 2022 – substantial additional documentary instructions supplied to the solicitors

It was the operator’s decision to instruct solicitors and to rely on insurance funding. The letter of authority and the representations asserted that Mr Martins could assume responsibility for compliance and at the Public Inquiry. That clearly undermined the argument that he could only present his case and that of the operators, once his legal representatives had enjoyed further time to prepare the papers.

In the absence of an explanation as to why the parties were not prepared, I remained to be satisfied that the party would be denied a fair hearing. I reminded myself of the continuing obligations under the existing licence, to which the operator and Transport Manager committed at the point of application, the previous exchange with DVSA and the call up letters of 6 May 2022. I noted that admissible financial evidence and compliance documentation were yet to be received.

The application was renewed at the hearing. The compliance documentation served the evening before added to my concerns regarding road safety. It was also admitted that the operator could not provide evidence of financial standing. This was described as an oversight but in fact financial standing was never in the name of the operator until advised by the representatives. An email electronic bank statement was provided to show that funds had only just be placed in the name of the operator despite the clear instruction in the call up letter and the published Statutory Document. At the reconvened hearing I was provided with copy statements for the month of July only. There was evidence of a salary being paid to Mr Anjos, and payments to Mr Buzzard but few others. In evidence I was assured that drivers and Mr Martins are employed by the operator, except for Mr Harris who provides training services through his company. The operator’s own documents suggest that Mr Harris is now driving regularly. I was assured that he was subject to the same discipline and control. I directed the operator to the HMRC factsheet and the very strong steer from the tax authorities.

In considering the request for an adjournment, I referred to the leading case of 2009/225 Priority Freight. In making the assessment suggested by the Upper Tribunal I pointed to the need to assess the fitness of the Directors and the ability of the Transport Manager in discharging the statutory duty. That does not require a paginated bundle but does require me to be able to assess their efforts including the treatment of compliance paperwork. It was only through my questioning at the first hearing that it became apparent that Mr Martins was not reading the brake test reports and called into question his ability to do so. In addition, the Director(s) had decided to absent themselves without seeking permission and this was only communicated on the day of the first hearing. In evidence at the second hearing, he confirmed that the way in which the records were presented to me, did not reflect his approach to the vehicle records, but they had been re-filed solely for the purposes of the Public Inquiry.

I referred to the different assessments required during the hearing, in order to undertake the ultimate balancing exercise. I therefore remained to be satisfied that an adjournment was required or served the interests of justice. In considering the arguments raised by Counsel, I recognised that the hearing would go part heard. I therefore used the opportunity to convey my assessment of the documentation (as summarised below), allowing the opportunity for the representatives to take further instructions. I relied on the legal representatives and Mr Martin to convey those observations to the statutory Directors. I further directed that: statements be lodged on behalf of the Transport Manager and a Director, that verified financial evidence was required for the next hearing, that all documentary evidence and representations should be lodged by 15 July 2022, in advance of the reconvened hearing on 29 July 2022. There were attempts to lodge further evidence, even after that, with an updated statement from Mr Martins dated 27 July 2022.

The Public Inquiry continued on 29 July 2022 when the operator was present in the form of Michael Tomalin. Mr Martin, Transport Manager, was also present, accompanied by Maria Avery, described as the manager of the Peterborough Centre. Both parties were again represented by Rhys Meggy of Counsel, instructed by Clyde & Co (Alexander Trail and Nick Benson, both present).

6. Issues

The public inquiry was called for me to determine whether I should intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – condition to notify matters relating to changes to the maintenance and safety inspection arrangements.

• 26(1)(e) – statement that vehicles would be inspected at the declared 8 weekly intervals and that maintenance would be carried out by the notified providers.

• 26(1)(f) – undertakings (vehicles and trailers to be kept fit and serviceable, effective written driver defect reporting, complete maintenance records, drivers’ hours, and tachographs).

• 26(1)(h) – material changes.

• 27(1)(a) – good repute, financial standing, professional competence.

• 28 – disqualification to be considered in the event of revocation.

• 27(1)(b) by reference to Schedule 3 - repute and professional competence of the nominated transport manager

The operator was originally directed to lodge evidence in support by 1 June 2022, including financial, maintenance and other compliance documentation. The operator was subsequently advised through its representatives of the need to produce original or verified financial evidence in the name of the operator (not a parent or connected entity). The documents lodged amounted to Companies House register of interests, a letter dated 9 June 2022 from a Mr McClean of Baker Tilly Mooney Moore, accountants, referring to Belfast City Auctions Ltd and a further undated letter from the same referring to the ownership of share capital by Belfast City Auction Group Ltd and attaching unaudited financial accounts for that entity, 106 pages of unverified bank statements in the name of Belfast City Auctions Ltd from 28 February to 23 May 2022. I could see large payments in from the operator, but no operational accounts, showing driver wages and other establishment expenses, were produced.

The electronic ‘Documents from Case Brief File’ appeared to contain much of the Public Inquiry bundle, although the ‘index’ documents would not open. The red lever arch file produced on the day of the first hearing did not contain the maintenance or connected compliance documentation.

Having taken the time to put the operator on notice of the issues which it needed to address, I was far from impressed to yet again be faced with voluminous paperwork with my office expected to handle a flood of electronic records, with an expectation that I would either work through them in electronic form or the tribunal would have to print them out. The Senior Traffic Commissioner’s Statutory Document No. 9 records that: an unfortunate practice has developed whereby parties and/or their representatives ignore the given timetable for compliance. A failure to comply with the timetable given may result in the traffic commissioner being unable to hear the case that day and, for instance, an application being put back into the list for another day. However, it should not be used as a device to avoid an adverse finding. The Senior Traffic Commissioner refers to the stance adopted in 2010/043 Stephen McVinnie trading as Knight Rider: In this day and age, and especially in the essentially inquisitorial framework of the public inquiry system, there is in our view a clear duty on operators to help the traffic commissioner deal with cases fairly and justly – and to avoid delay, so far as compatible with the proper consideration of the material issues. The modern trend is to expect parties to tribunal proceedings (and, by analogy, operators) to co-operate generally. This will be especially important, and in the interests of the compliant operator, if it emerges that their operation is under scrutiny by DVSA or the traffic commissioner. A wise operator will take whatever steps are required to ensure that he takes advantage of every opportunity to submit relevant and helpful evidence before, and not after, matters come to a head, and well before a traffic commissioner sits down to make his or her final decisions.

In response to the failure of the Directors to appear at the first hearing, I was provided with electronic copies of unsigned statements. Raymond Hill, who describes himself as Chairman of this operator and an investor in the City Auction Group (Belfast City Auctions Ltd) assures me that he pays close attention to both businesses and that he is aware of his ongoing duties as a director of this operator but refers to monies held by the other entity. No explanation or apology is offered for the failure of the operator to attend at the first hearing. Helena O’Neill describes herself as the Financial Director of this operator, responsible for managing its financial affairs. She also seeks to assure me that she pays close attention to this business and that she is aware of her ongoing duties as a director of this operator and by reference to the same piece of appellate case law. No explanation or apology is offered for the failure of the operator to attend at the first hearing. David Scott describes himself as the Group Sales Director; he also seeks to assure me that he fulfils his duties as a director of this operator and by reference to the same piece of appellate case law. No explanation or apology is offered for the failure of the operator to attend at the first hearing. Michael Tomalin, who was described as the Managing Director, decided not to attend the first hearing, sought to assure me that he is aware of his ongoing duties as a director of this operator and by reference to the same piece of appellate case law. No explanation or apology was offered for the failure of the operator to attend at the first hearing, until prompted at the reconvened hearing.

The operator failed to secure original or endorsed copies of the bank statements prior to the reconvened hearing. I was provided with photocopies suggesting basis upon which to extend the Period of Grace.

7. Summary of Evidence

The DVSA completed a desk-based assessment following 12 months of operation. The Traffic Examiner, Alison Smith, and Vehicle Examiner, Neil Ridge, recorded the following adverse comments (pages 73 to 94):

• Safety inspections not managed

• No contract evidenced for Scania (Truck East), and contract for MAN not signed by the contractor.

• Operators’ details recorded as ‘Eulos’ on a number of safety inspections.

• Insufficient safety inspection records for trailers C416747, and C322828 (where the annual test expired on 30 April 2021)

• Weak driver defect reporting system.

• Incorrect train weight and brake tests recorded for vehicles/trailers KV13ZXY and C416749 on several occasions

• no system in place for the monitoring of maintenance contractors and no process of investigation, rectification and prevention considered for annual test failures or the issue of prohibitions.

• Inadequate forward planning including a process for checking and actioning safety recalls

• Inadequate VOR process and no procedure to prevent unintentional vehicle use

• KV13ZXY, VED expired 01/10/21 and T27EUL, VED expired 01/11/21

• No system evidence provided, that the operator can ensure satisfactory operation of emission control systems, monitor fuel or ad blue consumption

• No evidence of a system for wheel security and operator stated that there is no system in place for tyre management arrangements.

• No evidence of suitable training or instruction provided regarding load security

• No effective systems being used for checking driving licences or monitoring driver CPC

• Operator provides induction training only, but driver CPC training is left to the drivers.

• Vehicle T27EUL not locked in with Company card until 12 November 2021, vehicle was specified on licence 10/06/20. No Vehicle Unit data available prior to 12 November 21.

• No driver infringement reports for the 6-week period requested.

• Missing mileage reports showed 4 vehicles (but did not include T27EUL, with no VU download confirmation).

• VU download was missed by 338 days and only 2 driver card downloads were produced

• No system in place for managing working time or storing and retaining working time records. No recognised WTD reports produced.

The operator’s response (page 95 onwards) was signed by Mr Tomalin, Director, and Mr Martins as Transport Manager on 7 December 2021. It refers to Mr Martin working 40-50 hours a week for the operator, but in various roles. The response can be summarised as follows:

• The operator has subscribed to the R2C system which incorporates all safety inspections, defect, and all other maintenance on to the one system, which is shared with maintenance contractors, so the forward planner spreadsheet is no longer used. Will review the VOR process and with the R2C system, it will be monitored and managed

• Signed contracts for Scania Truck East and MAN attached to the letter.

• R2C will be used to record the safety recall process, but in the meantime, it has been added to the fleet maintenance diary for periodical checking

• All safety inspections were carried out on time.

• The operator will check the reports for the correct details following rectification and the safety inspection records.

• C322828 and TRL28EUL are not the correct chassis details for the trailer, it is C416747. The trailer for T28EUL is C416747 and has not changed since March 2020. The operator blames incorrect information on the maintenance contractor.

• Trailer C322828 has never been owned by the operator

• The issue of safety inspection reports being issued with ‘Eulos’ will be raised with Scania Truck East. Mr Martin describes this as an “inadvertent error”, which has now been addressed.

• A more robust system will be put in place using the drivers’ app from R2C to report defects direct to the agent or through current platform SmartCheck.

• Training guides will be issued to the drivers for assessing the severity of defects

• A compliance report has been produced of the drivers’ daily checks through the SmartCheck platform currently in use for the defect reporting system.

• The R2C system is linked directly to the maintenance suppliers so driver detected defects will be signed off following the repair in the workshop or through the company access to R2C

• Current daily checks are managed using the Smart Check platform but there will be improved oversight

• The train weight and Roller Brake test issues will be raised with the contractor.

• The operator proposed to audit maintenance suppliers more closely, using the R2C system.

• All vehicles are taxed and have passed annual test (KV13ZXY and T27EUL)

• A telematics system (Verilocation) is used to monitor fuel usage, driver performance and AdBlue

• All trucks have wheel nut marker caps which form part of the daily checks on the Smart check inspection lists.

• There are agreements with two national companies which undertake fleet tyre checks, with the current contracts leading to more stringent fleet checks.

• All drivers go through a training program of between 5-10 days and are signed off by the driver trainer at the completion of the training. The operator is developing a vocational training program for car transporters, which will count towards the Drivers Vocational training.

• A process for checking drivers licenses has now been put in place and will continue to be managed better. The register will be used, and the check will be done on all drivers every 6 months regardless of the last checks.

• Vehicle T27EUL not being locked in, was an oversight and was rectified in November

• Confirmation that the raw driver information for the 2 drivers who drove T27EUL during the requested dates was attached to the response.

• T27EUL was not part of the contract with the telematics company, which was how it came to be missed from the VU download and accounts for the missing mileage information

• WTD reports are provided by the tachograph analysis provider.

In respect of KV13ZXY, Mr Martin sets out the arrival of various vehicle and trailer combinations from Omagh. They were apparently subject to annual test and “refurbishments” in Northern Ireland but, in the absence of paperwork, were presented for test in Great Britain. KV13ZXY and C343739 was undertaken on 13 July 2020, with the other combinations being presented at various dates in July to October 2020. Mr Martin contacted DVSA to demonstrate that vehicles had been the subject of annual test, but he outlines the problems encountered in locating the test certificate number or booking number from Truck East. He had ensured completion of a “New Truck On The Fleet” checklist but I only saw the document for KV13ZXY. He conceded that it would have been preferable to obtain documentary confirmation of each annual test upon taking possession. He refers to a commitment to a first use inspection (or written verification where rented). He has apparently obtained advice from the RHA to implementing a system which will reports on all compliance areas.

At the first hearing I noted what was termed the ‘old maintenance diary’, but for 2022. This refers to vehicle and trailer inspection dates, fleet tyre checks, and periods where the vehicle is said to be off road e.g., T24 EUL and KV13 ZXY. I was unable to determine the odometer readings or the exact date of when the vehicle returned to service, as against any first use check. It is different to the ‘PRL Maintenance Calendar’. I was also provided with an example of a ‘PMI & Services’ and ‘Unit Services’ message regarding inspections arrangements made by some of the contractors, as well as an R2C generated forward planner.

Mr Martin referred to a spreadsheet entitled “Fleet Service Schedule” to inspections, services, tyre check, annual test, tachograph calibration, vehicle excise duty and vehicle recall checks for 2022. He also retains a real-time record of when the maintenance takes place, which also records when the vehicle and corresponding trailer are off road. The record has run from January 2021 and provides two summary tabs which allow him to track performance at the Preventative Maintenance Inspections. The labelling of the tabs clearly makes sense to Mr Martin although may not be obvious to others. It appears to be accepted that decisions were taken to exceed the notified interval of 8 weeks, whilst the vehicle was off the road and/or awaiting a major repair. Mr Martin also refers to the absence of a driver. Mr Martin’s response in respect of the late inspections risks the impression that the contractor’s availability dictates compliance with the operator licence availability. Delays of 17 or 18 days in inspections should not have been tolerated. Calendar issues such as bank holidays should be part of the planning process. Incidents, such as the failure to produce a maintenance inspection record around 27 July 2021 should have been identified by the Transport Manager. I was concerned by the suggestion that C416749 and T24EUL might have been presented for annual test without preparation, suggesting that the annual test was instead of a preventative maintenance inspection.

He suggests that there was no logic in failing to undertake an inspection, but also refers to minor delays, due to factors outside its control, such as contractor availability. I accepted Mr Martin’s response to DVSA that vehicles had been presented for Preventative Maintenance Inspections and that records were available, but these factors need to be recorded as part of any risk management process. Like this regulator, I doubt whether the Directors would be minded to wade through the chain of emails, to which Mr Martin refers. I had already noted that KV13ZXY/C343739 were taken off road prior to the annual test on 9 July 2022. This was apparently at the expense of the inspection of KV13ZXZ. This was described as an isolated occurrence and an anomaly. The ‘aspiration’ to phase out of manually updated spreadsheets led to the investment in R2C in December 2021. The operator then found out that several service providers had ceased to use this platform, so it is retained for only 3 of the 5 vehicles in operation (KV13ZXY, KV13ZXZ and T28EUL with Truck East). Manchetts uses the MAN Document Storage system instead. Mr Martin claims that the two systems complement each other, although the maintenance spreadsheet is still required. The explanation of the late inspection around 17 September 2021 involving C416749 and T24EUL just goes to illustrate the risks arising from the systems adopted by this operator.

The Vehicle Off Road arrangements apparently relied on the allocation of drivers. There is too heavy a reliance on a specific driver being allocated to a specific vehicle, but this seems to also be used as a reason for extending maintenance intervals. I noted one instance where the driver was on holiday. The maintenance spreadsheet is run as a ‘failsafe’. Mr Marin referred to driver training but that did not appear to prevent unintentional use of the vehicle. The vehicles which are removed from operation for long periods are stored at the maintenance contractor. As Mr Martin acknowledged, this relies on information from several sources so the R2C system is being used. Mr Martin’s statement referred to a longer-term objective to document VORS, but I was told that this is imminent, following discussions with Mr Scotney of the RHA. At present, the VOR log requires MAN vehicle details to be uploaded. Mr Martin’s evidence describes a multitude of different spreadsheets and records. This is just one example. Periodic checks for safety recalls (7 January 2022, 4 March 2022, 29 April 2022 and 24 June 2022) also must be recorded. Mr Martin has opted for checks by the contractor on the occasion of each inspection, with any work recorded on the inspection job card.

I was referred to the communication dated 2 December 2021, referring to a telematics system (“Verilocation”) to monitor fuel usage and driver performance. However, the fleet is mixed with Euro 6 and Euro 5 engines, so comparisons are limited. There is yet another system to monitor fuel usage, showing the CO2 in KG used, to calculate Adblue usage.

Mr Martin describes efforts to evolve the document management system. The work with the RHA appears to be necessary given the findings of the enforcement agency. On his own information safety records for trailer C416747 also include records for trailer C322828. Both trailer C416747 and C322828 have the fleet number TRL28EUL. As a result, rolling road brake tests are logged under TRL28EUL. Mr Martin ascribed this to another inadvertent error on the part of the maintenance contractor and that T28EUL is also erroneous. C322828 and C416747 have apparently been conflated. Mr Martin assumes that this also led DVSA to conclude that there were missing inspection records. This only came to light because of the DVSA intervention, and the systems have had to be updated.

It was also admitted that the vehicle excise duty expired on KV13ZXY and T27EUL. This is again described as an inadvertent oversight, which was remedied as soon as it was brought to Mr Martin’s attention. It led me to question Mr Martin’s responsibilities. It became abundantly clear that the Directors have no formal means of monitoring compliance with the operator’s licence requirements. Mr Tomalin assured me that the licence was considered to be a valuable asset, but the Board oversight failed to reflect that and was almost entirely reliant on Mr Martin, despite the considerable other duties placed on him. In evidence I heard about plans to recruit devoted support for Mr Martin as an assistant or traffic planner. That recruitment was promised by 1 October 2022. I will expect that to be reflected in any further reporting and auditing.

I was referred to contracts with MAN, and Scania, Truck East. References to “CTS Corby” are thought to be Commercial Vehicle Services (Immingham) Ltd (“CVS”). I was referred to the images provided by Manchetts and an explanatory email from TruckEast and further images from LTS. It is accepted that the operator has, within the last 15 months, engaged with 8 contractors who were not notified. It is suggested that these were emergencies whilst in operation and none were involved in preventative maintenance inspections. Hydraquip appeared to be a regular emergency call out, but that is due to the number of hydraulic hoses involved in care transporters. Tructyre and Lodge Tyres are also contracted, with other specialists used for areas such as LOLER. Mr Martin referred to a multi-faceted approach. I refer to the maintenance documentation below.

Following the operator’s response, the Traffic Examiner confirmed that the operator had produced some of the requested documentation and taken on board the concerns raised. She referred to the assurances provided after the DVSA report was issued.

It was accepted that T27 EUL was not locked in with Company Card until 12 November 2021, having been specified on licence 10 June 20. This was described as another oversight, but this has resulted in a failure to record across many of the compliance fields and missing data for 338 days. The operator and Transport Manager should not make assumptions about movements in the yard, particularly where it is said not to be in use. That should be established through missing mileage reports. T27EUL was not on the contract with the Telematics supplier. It was acknowledged that the Transport Manager had misunderstood the request from the Examiner and was late in supplying raw data. It remained in an unreadable format as it is only available via Descartes, which has yet to be resolved. The limits in the data available are accepted. Driver Balzaravicius left employment on 3 September 2021. There is missing data because of a card not being inserted between 25 and 31 August 2021. The infringements were against that driver but were only identified on 14 September 2021.

The DVSA intervention has led the Transport Manager to consider the infringement reporting that the use of ‘debriefer’ on all the infringement forms provided. Mr Martin’s statement suggested that the issue had yet to be resolved but I then noted examples such as at page 3572 of the operator’s second bundle, suggesting that it has been resolved. I was not attracted by arguments around the number of infringements. I wished to see evidence that the systems were being managed. Mr Martin identified that many arose from the incorrect use of ferry mode. He has explained to each driver individually why they had registered a purported fault and how to avoid this. An email instruction was sent on 28 April 2021. It is recognised that whilst there has been action, further improvements can be made. Two vehicles still default to this setting, but action will ensure that this is addressed by next week, if not before.

The Working Time Directive systems also rely on a number of spreadsheets. I noted the criticisms identified by the Examiner. Mr Martin referred to two main reports: “WTD Ref Period summary” and “WTD Drivers over 48 hours report”. The information was not available at the time to supply to DVSA due to issues with Descartes. The analysis system is apparently set to default to ‘rest assumed’ if there is no driving/working entry due to holidays and sickness, assuming an 8-hour day. In addition, Mr Martin has over relied on Smart Analysis reporting and has not checked for gaps in leave days/sick leave/paternal leave etc. He has supplied ‘sample documents, as an illustration amounting to ‘custom drivers’ hours infringement summary’ from 23 to 29 May 2022, infringements by depot 1 June 2021 to 31 May 2022, a missing mileage report for 9 to 15 May 2022, a vehicle off road log 17 February to 24 May 2022, and a Working Time Directive record 25 April to 21 August 2022. There appears to be no record of any action in relation to the reduced amount of time spent on driver walk rounds. From my dip sampling of the infringement reports I could see that drivers are regularly notified of infringements, many of which relate to errors in the use of the mode switch, notably when in ferry transit, but there are recurring issues with breaks. Documents entitled ‘SignDebriefedMessage’ do not appear to have been signed. I was assured that there are now controls to access for print rolls, with a log.

The Traffic Sheets are excel records purporting to show the allocation of vehicles to drivers, with weekly loads or Preventative Maintenance Inspections. I was concerned to note that none of the drivers appear to have company email addresses. I was assured that they are employees. I have referred to the lack of identifiable wages in the financial evidence. The excel record refers to Drivers: Keith Harris, James Bush, Ben Henderson, Ricardo Anjos, Jay Gallagher, Egidious Balzaravicius, Bob Fairman, Jon Bird, Gintaras Vaiciunas, Tony Campbell. The Driver Licence permission forms refer to Drivers Alistair Robinson, Gintaras Vaiciunas, Keith Harris, R Fairman, Ric Anjos, and copies of the entitlement for Tony Campbell. In amongst those records, is a set of excel spreadsheets with individual infringements dating August 2021 to March 2022, apparently recording a driver debrief. The tachograph card information checks, driving licence checks, and DCPC logs refer to Ricardo Anjos, Egidious Balzaravicius, Gintaras Vaiciunas, Keith Harris, Tony Campbell, R Fairman, and Dale Buzzard.

The Driver Training Matrix refers to Ricardo Anjos, Gintaras Vaiciunas, Keith Harris, Tony Campbell, and Dale Buzzard only. I noted that some of the drivers have been the subject of refresher training assessments. I refer to Mr Martin’s explanation elsewhere. There appears to be a developed refresher training programme but this concentrates on the loading of the transporters. The master training record does not provide the level of detail suggested by the training programme. Again, there is a heavy emphasis on the loading of the car transporter and that is also reflected in the operator’s promotional material. I also noted the course timetable as set out in the Driver Handout.

Mr Martin stated that the Weekly Driver Infringement Report program refers to previous drivers and fitters. I am told the operator’s own records do not reflect its one vehicle, one driver practice. I was then provided with examples of a request to the Descartes Service Desk, to remove all ex-employees and non-staff. This was confirmed in evidence at the reconvened hearing but there are some recurring issues with vehicle units, which need to be resolved.

It was acknowledged that it took the DVSA intervention to ensure the systemic checks of driving licences, driver qualification cards, driver cards etc. The pandemic prevented physical checks, which are now also undertaken. Mr Martin’s statement committed to 6-monthly checks rather than the current starting point of quarterly checks. The attitude to the Driver CPC has changed and the operator and Transport Manager now accept their responsibilities. Mr Martin would like to incorporate a vocational training program for car transporters. I have commented on the heavy onus in the training documents which were provided to me prior to the first hearing. Mr Martin’s statement confirmed the induction training and by reference to Mr Vaiciunas but since the other drivers “were known to the company” no induction was provided. Mr Martin described this as “not ideal” but insisted that the topics covered are entirely appropriate and relevant to their role as car transport drivers, even in the face of the shortcomings identified. I was concerned to see greater emphasis on driver reporting, the working time directive, vehicle safety. I was told that the annual refresher training covers aspects of damage awareness, safety, and security procedures. Mr Martin produced another spreadsheet or “Driver Training Schedule”.

I was also interested to view the maintenance reports. The maintenance records were originally presented in monthly order rather than a recognisable vehicle files. The June 2022 file contained three reports from Trucktyre only.

C343740L:

• 18 May 2022 - Inspection with a road test of brakes and records top marker smashed, nearside front reflector missing, off-side middle marker missing, offside rear lamp extruding and various leaks.

• 26 March 2022 – inspection with roller brake test (no print-out): 31% and 19%. It records 1st axle tyre worn below legal limit, broken ratchet straps but only ordered, nearside and offside wings cracked and patched.

KV13 ZXY:

• 18 May 2022 – inspection with a road test. It records driver detectable defects: number plate hanging down, sump gasket leaking but not repaired.

• 10 May 2022 - roller brake test: 46%, 33%, 13% as only presented at 60% of GVW, with imbalances on the offside of each axle.

• 18 February 2022 – inspection with roller brake test (separate print-out): 43%, 22%, 20% with second axle pads wearing, but presented at 58% of GVW. It also records a fuse blown on the dash, offside third axle tyre worn and punctured, offside front marker light inoperative.

T27 EUL:

• 30 May 2022 – inspection with a road test and despite ABS showing on the dash (again). It records corroded fuel tank and leak at the steering pump joint, but not repaired.

• 28 April 2022 – inspection with road test. It records offside side guard loose, windscreen chipped (again), leak from compressor but not repaired and the tachograph seal is broken.

• 28 April 2022 – roller brake test print-out: 39%, 14%, 8% as presented at 55% of GVW.

• 4 April 2022 - inspection with a road test and despite ABS showing on the dash. It records a chip in the windscreen, and nearside DLR lamp inoperative but neither repaired

• 4 April 2022 – roller brake test print-out: 39%, 15%, 7% as presented at 62% of GVW (different weight).

• 4 March 2022 – inspection with road test. It also records that all lamps failed due to wiring.

• 3 March 2022 – roller brake test print-out: 42%, 15%, 8% as presented at 56% of GVW.

• 8 February 2022 – inspection with road test, despite ABS warning on dash – not repaired.

• 8 February 2022 – roller brake test print-out: 41%, 15%, 9% as presented at 59% of GVW.

• 7 January 2022 – inspection with unladen roller brake test: 45%, 16%, 8%. It also records nearside step bolt missing, rear work lamps shorted but not repaired, and oil leaks.

• 5 January 2022 – roller brake test print-out – as above, presented at 59% of GVW.

There appeared to be several inspection documents missing from the bundle produced at the first hearing. I highlighted the erratic approach to brake testing. Mr Martin’s statement appeared to rely on a selective quote from the Guide to Maintaining Roadworthiness, even after I had alerted him and his representatives to the DVSA Guidance:

Heavy vehicle brake test: best practice:

1. Locked wheels and the brake test

Vehicles must be fully loaded before being roller-brake tested because the grip between the tyre and the rollers is more effective that way. The wheels keep turning for longer, and a higher brake force will be achieved.

If your vehicle is empty or only lightly loaded, the grip between tyre and the road (or the rollers on a roller- brake tester or ’RBT’) will be lower, and a relatively small brake force will cause the wheels to lock (stop turning).

Once locked, no matter how much more the brakes are applied, the recorded brake force won’t increase. This means that if the vehicle’s load is too light, the wheels may lock before achieving the required brake efficiency.

If a vehicle is properly loaded, there are two concessions in the HGV inspection manual that Driver and Vehicle Standards Agency (DVSA) inspectors can make:

• front wheel lock allowance (FWA): this takes into account the weight transfer to the front axle(s) that occurs when the vehicle is on the road

• passing on locks (locked wheels): if more than half the wheels on a system lock, then the vehicle will pass on locks, unless there’s another reason for failure

You shouldn’t rely on either condition during test preparations. If the wheels don’t lock in the actual test, the vehicle will have to meet the required efficiency.

Remember: a locked wheel does not always mean a good brake

8. 2. Preparing your vehicle for the brake test

Authorised Test Facilities (ATFs) are responsible for making sure that vehicles are properly loaded before the MOT starts. This normally means at least 65% of the vehicle design axle weight (DAW).

You can do this in a number of ways:

• by arranging to load the vehicle or trailer yourself

• by asking the ATF to provide load simulation - a loading fee may apply

• in the case of a tractor unit, using ballasted trailers - ask your local ATF if they have one for hire

Where load simulators can’t be placed above the rear axles, vehicles or trailers - unless exempt by design - must be loaded when tested. This includes:

• any multi-axle vehicle or trailer (excluding tri-axle semi-trailers) with a bogie weight exceeding 10,000kg

• tri-axle tractor units that are fitted with air suspension on any of the rear axles: to provide sufficient load these must be coupled to a loaded semi-trailer, so that the drive axle is loaded at or very close to the plated weight shown in column 2 of the plate and plating certificate

When loading a vehicle for brake test:

• place loads close to the rear axles

• aim to apply at least 65% - and not less than 50% - of the design axle weight to each axle

• if possible, use similar loads to add weight to the vehicle: this will help in placing the loads correctly, and achieve consistency between tests

• where load simulators can’t be placed above the axles - unless exempted by design - the vehicle or trailer must be presented laden

I had already considered whether the absence of brake testing was due to the nature of the vehicles themselves, but some vehicles appeared to be presented for brake testing with sufficient load, so as to achieve the required level of brake efficiencies before the wheels locked. However, the majority, including those listed above, clearly were not. I referred to the updated DVSA brake guidance issued on 10 February 2022. The incident where the train weight for KV12 ZXY was incorrectly recorded appears to argue against Mr Martin. It has led to discussions with both contractors. It does not allow the operator to simply rely on “two experienced franchise dealers that we utilise” is not an excuse I expect to hear from a Transport Manager, particularly when discussions with the contractors after notice was given, have confirmed that “brake tests on all of our vehicles and trailers will be performed on a laden basis”. I took some time to explore with Mr Martins the challenges in brake testing these vehicle combinations. However, examples such as T24EUL should have prompted the Transport Manager to investigate earlier and to annotate the record accordingly by reference to the DVSA reference material, if necessary. An email of 26 July 2022 to Mr Harris confirms that the Categorisation of Defects is now available.

Prior to the reconvened hearing, I was eventually supplied with hard copy records and again carried out a dip sampling exercise:

Trailer C416750 (operator’s tab 22)

• 6 April 2022 – LTS “Ministry Inspection” with no brake test. It also records offside front tyre low, nearside marker light inoperative, nearside red triangle marker broken.

• 8 February 2022 – inspection with brake test print out attached: 32% and 21%. It also records manufacturers plate missing, 3rd and 2nd axle shock absorbers leaking, offside outline and side marker inoperative, nearside reverse light inoperative.

• 8 December 2021 – inspection with brake test print out attached: 23% and 15% after 1st and 3rd axle discs being worn. It also records issues with 3rd and 2nd shock dampeners.

• 15 October 2021 – Annual test

• 15 October 2021 – inspection with no brake test print out attached but refers to: 69% and 37% after discs showing signs of overheating. It also records defects to nearside and offside tyres on axles 1 and 3, offside caliper seized, offside rear markers not working, of light inoperative, offside upper indicator lamp, arch bushes insecure s nearside rear damage to the number plate lamp,

• 18 August 2021 – inspection with no brake test print out attached but refers to 42% and 21%. It also records missing ministry plate (again), nearside rear tyre worn to 1 mm, 3 x axle shock absorbers leaking, offside rear taillight inoperative, nearside top marker inoperative, offside top marker damaged,

• 7 June 2021 – inspection with unladen brake test print out attached: 40% and no % after all brake discs were noted to be worn low (again). It also records missing ministry plate, nearside 2nd spray suppression loose, nearside 3rd and offside 1st shock dampeners, nearside rear damage to the number plate lamp,

• 8 April 2021 – inspection with unladen brake test print out attached: 33% and 22%. It also records floor plate bracket is missing.

• 16 February 2021 – inspection with unladen brake test print out attached: 15% and 10% after all brake discs were noted to be worn low. It also records nearside rear damage to the number plate lamp.

T28 EUL (tab 25)

• 6 May 2022 – inspection with brake test print out (5 May 2022): 58%, 25%, 20%. It also number plate delaminating.

• 9 March 2022 - Inspection with no brake test print out but: 41%, 25%, 18%, with offside 2nd axle brake chamber leaking and 2nd axle discs rusting. It also records oil levels low on power steering, engine oil low, gear box seal leaking, nearside cab light inoperative.

• 7 January 2022 – inspection with brake test print out: 45%, 25%, 19%.

• 9 November 2021 – inspection with brake test print out: 57%, 20%, 24%. It also records number plate bulb, dash warning light bulb blown, offside 2nd cut to cords and offside first axle tyres tread lifting, trailer stabiliser bar mountings loose, seat covers, washer jet blocked, night heater inoperative (again).

• 10 September 2021 – inspection with under laden brake test print out: 45%, 25%, 19%. It also records offside shock dampener, despite having been replaced, night heater inoperative, internal exhaust pipe broken, wipers etc.

• 12 July 2021 – inspection with under laden brake test print out: 47%, 25%, 20%. It also records driver’s floor mat holed, offside chock dampener defective.

• 21 May 2021 – inspection with under laden brake test print: 41%, 25%, 18%. It also records dash table obstructing view, nearside outer tyre sidewall split, nearside front tyre cut to cords, oil levels low, washer jet blocked, offside front shock absorber leaking, nearside marker light inoperative.

• 24 March 2021 – CVS inspection with no brake performance test. It records driver’s door pins defective, nearside front wing damaged, rear lamp smashed nearside marker light inoperative.

An email from Mr Martin dated 26 July 2022, 3 days before the reconvened hearing indicates that the operator will arrange for vehicles to be loaded prior to the Preventative Maintenance Inspections. However, his statement of 27 July 2022 was more equivocal: “where possible”. In evidence he confirmed the instruction to contractors that unladen brake tests must be agreed by the operator with an aim of no less than four laden brake tests per year. That is different to the theoretical “isolated occasions” given as the justification in the statement of 27 July 2022. In the end the operator went further than this suggestion and offered the undertaking recorded below, to which I attached some weight.

I picked up on Mr Martin’s response to a driver detectable defect which appeared at inspection on 2 June 2021. Records confirmed that the ABS defect was the subject of an email on 20 May 2021 (6.31am) generated by the Descartes system arising because of Driver Balzaravicius. The defect was reported to Manchetts & MAN UK on several occasions in conjunction with T27 EUL. The problem apparently dates back to purchase in 2016. In 2021 Mr Martin was told it was a software issue. MAN UK subsequently contacted Manchetts. It was subsequently agreed to send both T24EUL and T27EUL to Manchetts for investigation on 4 June 2021. A cancellation ensured earlier inspection on 3 June 2021. There is no documentary evidence of the recoding of the system, but to that date there was no way of knowing whether the illuminated light showed a genuine defect with the ABS or the software issue. I noted the absence of other driver defect reports. I was told that it was the amber light which was illuminated and that it had been reported repeatedly by the driver. I was also told that the manufacturer had been slow to provide the resolution.

I have deliberately not rehearsed each of the responses provided to instances where driver defects were identified at a Preventative Maintenance Inspection. I had alerted Counsel to the number of driver detectable defects being left to inspection and noted the driver defect reporting app, supplied via Descartes. By way of example, the inability to explain why a driver failed to report inoperative lamps and tyre treads, should have put the operator on notice. Mr Martin variously confirms that drivers had not reported some of those defects. Even my own dip sampling suggested that this is more than a random failure. Mr Martin acknowledged that, historically drivers notified him of defects by email, meaning that the driver defect system has not worked as it should.

The operator invested in the Smartcheck mobile phone app from September 2020. I was already acquainted with this system. The printout supplied showed that it records the time of inspection, duration (several which were concerning, lasting seconds and very few extending to 10 minutes), recording odometer readings and there is a suggestion of inspection ‘post trip’. Mr Meggy’s instructing solicitors included a copy of the mobile user’s guide and the internal instructions, apparently issued to the drivers. It appears to list the items covered in the Annex to the Guide to Maintaining Roadworthiness. There is no statement on the time which should be allocated to the walk round. The electronic file lodged before the first hearing contained several blank ‘untitled attachments’ as well as prints of the various screens presented to the derivers as they use the app. Mr Martins assured me that the operator’s system requires the driver to walk round. They are also monitored by cameras. He suggested that this represents a failure to record ‘other work’, but that is not acceptable from professional drivers relying on vocational entitlements. I heard that it will form part of the dedicated training next week.

I share Mr Martin’s alarm at the failure to report a loose wheel nut. I was not attracted by arguments based on whether how loose the nut might be, because of how quickly that can develop into a wheel loss incident when in operation. I do note that the vehicles are fitted with wheel-nut markers, which may have led to complacency. The drivers are described as highly experienced operators of transportation vehicles, but I noted that the emphasis on the car transporter elements in the driver training syllabus. I suggested that, if the Transport Manager is aware of a practice of the tyre company refraining from retorquing wheels prior to inspection, it was reasonable for that to be risk managed in the operator’s processes and management.

It was accepted that wheel security had not been documented prior to DVSA intervention. It led to the guidance: “Wheel Security Process in Purple Rock” to every driver on 7 July 2022. It will be picked up again in training. The content appears to be comprehensive, but its effectiveness will depend on training and how it is managed. It must fully support the tyre management system, which is now covered in “Purple Rock Tyre Management Process”, which has been introduced in the same way. I have referred to the tyre contractors and the SmartCheck app, above

Mr Martin described the driver defect reporting system in place at paragraph 26 onwards of his statement. I sought evidence. His statement acknowledged that more needs to be done to encourage the consistent uptake of the SmartCheck app amongst drivers, as opposed to simply emailing. The app produces a Nil record. The app allows the time of receipt and corresponding action to be recorded but the data must be extracted from the app. I was told about changes to the systems to make this more prescriptive. Instructions have been issued expressly concentrating on the findings of the DVSA investigation. The way in which the app is completed appears to be a distraction as the total inspection time should be available through the driver’s hours record. Mr Martin believes that drivers have responded positively because of the monitoring conducted since 1 June 2022. Another spreadsheet was provided with tips etc recorded. There is another for rectification work, which links into the VOR log, which I record above is based on the R2C system. Each driver will receive an in-house refresher from Mr Harris during the first week of August, lasting 2.5 hours. I was referred to the operator’s disciplinary processes. An email of 26 July 2022 from Mr Martin to Mr Harris instructs him to deliver 2 to 2.5 hours of training next week on the reporting of defects and tyre management, with a record to be kept of attendees. Following the training there can be no further excuse for weaknesses in the driver defect reporting and I would expect to see that reflected here.

I am assured that the operator adheres to the HSE Code of Practice and DVSA guidance on safe loading. That is reflected in the emphasis in the driver training. I have noted the involvement of the driver trainer, Keith Harris. I am aware that Driver Vaiciunas was the driver who attended induction training, although analogous training is said to have been provided to Driver Balzaravicius. Drivers Buzzard, Harris, Fairman, Vaiciunas, Anjos attended the refresher training on 7 and 8 December 2021, Mr Campbell attended on one day on 17 May 2022. Mr Fairman is also a trainer. Load security equipment is the subject of additional annual LOLER assessments.

9. Determination

In response to the evidence, summarised above, I was satisfied that there was sufficient basis to record adverse findings pursuant to the following sections: 26(1)(b) – condition to notify matters relating to changes to the maintenance and safety inspection arrangements, 26(1)(f) – undertakings (vehicles and trailers to be kept fit and serviceable, effective written driver defect reporting, complete maintenance records, drivers’ hours, and tachographs.

In the absence of the required financial evidence, it was inevitable that I conclude that there had been a material change and recorded findings under sections 26(1)(h) and 27(1)(a).

• 27(1)(a) – good repute, financial standing, professional competence.

• 28 – disqualification to be considered in the event of revocation.

• 27(1)(b) by reference to Schedule 3 - repute and professional competence of the nominated transport manager

This Public Inquiry was concerned with the ability of the operator to ensure future compliance. As was suggested by the Upper Tribunal in 2009/225 Priority Freight, I start with the question: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? The operator’s case was not assisted by an absence of close involvement by the Directors, who are ultimately responsible, the resulting additional pressures placed in the Transport Manager, which detracted from his ability to meet the statutory requirement for effective and continuous management of the transport operation and an over complication of the systems used to deliver compliance.

Mr Martins refers to Mr Hill as one of Northern Ireland’s most respected auctioneers, with a wealth of knowledge. Mr Tomalin is described as having 30 years of experience specialising in the corporate automotive business sector. Mr Martin claimed that combined with his day-to-day involvement, this amounted to a highly competent and experienced team able to meet many of the challenges faced in the current trading environment. It was not sufficient to prevent the shortcomings identified above. The Directors’ statements quoted from the appellate Tribunal in 2014/024 LA & Z Leonida trading as ETS: “… it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means that they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular”. As the Senior Traffic Commissioner has recorded in Statutory Document No. 1: the Tribunal has dismissed an appellant’s belief that responsibility for maintenance failings sat with the persons to whom she had handed over responsibility, ultimately the proprietor of the business has the responsibility for ensuring that properly maintained vehicles were used for the purposes of that business.

As will be obvious, I was troubled by the operator’s approach to this process. I was asked to accept that the operator treated the Public Inquiry with the utmost seriousness. That was not reflected in the decision of the Directors to absent themselves from the first hearing. It is not reflected in the current reporting arrangements. A lot has been made of the enhancements to maintenance planning and use of the R2C and MAN Document Storage systems, but that and other changes have to be overseen and must deliver full compliance. The decision to effectively delegate most representations to Mr Martin and to then describe the shortcomings as “administrative lacunas in administration” failed to convey either that seriousness of approach or as deep understanding of the need for effective risk management.

I refer to the useful guidance of the Upper Tribunal in 2013/082 Arnold Transport Ltd in which it stresses that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion. The licence is granted on trust that the operator will comply with all relevant parts of the operator’s licensing regime. Compliance is a matter of fair competition and to ensure an effective regulatory regime, without which the roads would not be safe. In its decision the Upper Tribunal draws attention to the old saying that: “actions speak louder than words”. It describes the attitude of different operators as instructive.

In this case, it was left to Mr Martin to address the issues of alleged non-compliance. As a result, representations conflated any intervention against the operator’s licence with a loss of the use of the Certificate of Professional Competence. One does not necessarily result in the loss of the other. I had noted Mr Martin’s attendance at various driver CPC modules on 20, 21 and 24 April 2020, and a virtual Transport Manager CPC refresher course on 14 and 15 June 2020. Mr Martin refers to having acted in this position for 27 months and after 34 years of experience working within the logistics industry. Tellingly, his 34-page statement described him firstly as the Operations Manager.

He appeared to question the warning given to him when he failed to disclose information during the application for this operator. That statement also settled on language which may be better suited to criminal or civil litigation, rather than the inquisitorial nature of these proceedings. However, in his second statement and in his conduct at the second hearing, I detected a better understanding of the concerns which led to the Public Inquiry, and which are outlined at paragraphs 19 and 20 above. It should be obvious by now that the previous experience was not sufficient to prevent instances which have led me to record those adverse findings at paragraphs 50 and 51.

It cannot be said that there was no fault on the part of the operator, some improvements have only materialised between the two hearings as the operator realised the need to act. It is part way towards effective management with processes and procedures to prevent operator licence failings. I took account of the conditions during the last two years. The operator is closer to ensuring effective analysis and management of drivers’ hours recording and I have attempted to summarise some of the effective changes which have been introduced. Further work is required in respect of the driver defect reporting system. I noted the low prohibition rate and efforts to secure first time passes at annual test. There is a real need to rationalise those systems to avoid further confusion as is evidenced from the VOR recording. The operator has now joined the Road Haulage Association and Mr Martins has already met with the Area Manager with a view to obtaining detailed advice.

I weighed into the balance, the following undertakings:

• All vehicles and trailers will undergo a laden roller brake test at least 5 times per year, excluding annual test. The tests will comply with current DVSA guidance, will be recorded and the records will be kept for at least 15 months.

• By 30 August 2022, the operator will supply to the Office of the Traffic Commissioner a copy of the Key Performance Indicators which will be adopted by the Board of Directors to monitor and ensure compliance with the operator licence requirements going forward, with quarterly written reports provided to the Directors.

• The operator will arrange an independent audit to be carried out by the RHA, Logistics UK, or other suitable independent body to assess the systems for complying with all operator licence requirements, and the effectiveness with which those systems are implemented. The audit should cover at least the applicable elements in the annex, to be supplied by the Office of the Traffic Commissioner and reflect the statements and actions summarised above. A copy of the audit report, together with the operator’s detailed proposals for implementing the report’s recommendations, must be received by the Office of the Traffic Commissioner in Cambridge no later than 27 January 2023.

I therefore assessed this case as falling within the Moderate category, referred to in Annex 4 of Statutory Document No. 10. I did not follow Mr Martin’s statement on the impact of regulatory action. Some of those representations appeared based on the interests of the other, connected entity rather than the impact on this company. I also recalled the words of the Upper Tribunal in 2013/047 Dundee Plant Hire Ltd that words of doom and gloom are easy to utter but need to be backed up by actuarial evidence. As it was, having determined on that starting point I confirmed that the intervention would not place the operator at direct jeopardy. The shortcomings have inevitably tarnished the repute of both operator and the Transport Manager. Mr Martin should not have allowed himself to be stretched too thin, and the Directors should not have permitted it. They were warned to that effect.

I therefore identified the need for clear deterrent action so that Directors and Transport Manager were clear as to the need for full compliance going forward. This is entirely consistent with the statutory aims, as the Upper Tribunal confirmed in 2019/025 John Stuart Strachan t/a Strachan Haulage. The operator’s licence was therefore curtailed by 5 vehicles from 23:45 on 29 July 2022.

I allowed an extension to the Period of Grace to demonstrate that the mandatory and continuing requirement for financial standing is now met. By 30 September 2022 the operator will provide original or copies (verified by the issuing bank or building society) of financial evidence in the name of the operator covering the recent 3-month period to the Office of the Traffic Commissioner in Cambridge. This must show that the operator has continued to meet the required level of available finance throughout the period by reference to an average balance, as explained in the Senior Traffic Commissioner’s Statutory Document No. 2. The operator was explicitly warned as to the consequences of failing to meet that requirement.

R Turfitt

Traffic Commissioner

30 July 2022