Decision

Decision for Scooby Limited (OK2011127) and Transport Manager: Philip Lynch

Published 30 November 2022

0.1 In the South Eastern & Metropolitan Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Scooby Limited (OK2011127) and Transport Manager: Philip Lynch

2. Background

The full history is set out in the Public Inquiry bundle case summary and the documents in the bundle itself. I do not repeat that history here. This is a serious alleged drivers hours offence case linked to possible unauthorised use of operating centres and operating more vehicles than authorised. When the DVSA reports were received I directed that the Operator be called to a Public Inquiry.

3. The Hearing

The Public Inquiry commenced and concluded on 12 October 2022 at The Public Inquiry Room, 4th Floor, Ivy House, Ivy Terrace, Eastbourne, BN21 4QT. I heard oral evidence from Mr Philip Lynch who is the sole director and the proposed Transport Manager. The company and Mr Lynch were represented by Mr Richard Dawson of Counsel. The former Transport Manager Ms Ewelina Lesniak attended at my request as a witness, not as party. It is important to set out here that Ms Lesniak was only Transport Manager between 22 June 2022 and 26 August 2022. DVSA Traffic Examiner Vicky Haulkham attended via Microsoft Teams. At the conclusion of the case, I confirmed that a written decision would follow within fourteen days maximum. Regrettably other commitments and events have delayed this.

4. Documents and Evidence

Prior to completing this written decision, I have reviewed the following: -

• Public Inquiry brief.
• My handwritten contemporaneous notes.
• Updated report from the Traffic Examiner dated 7 October 2022.
• Written submissions on behalf of the Operator submitted by Rotheras Solicitors dated 10 October 2022.
• Operators bundle of documents.
• South Bucks District Council and another V Porter(FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions generally;
• Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision; and
• The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions (‘SGSD) current versions.

5. Consideration and Findings

I have not set out the evidence in full as it is available from the documents and a transcript. However, I do set out the material evidence which supports my findings. In light of the admissions made during the course of Mr Philip Lynch’s oral evidence I make the following adverse findings: -

• Use of more vehicles than authorised under the Licence after 5 May 2021. The TEVR evidence is accepted and therefore there has been a breach of the undertakings on the Licence in relation to drivers hours, tachograph adherence and record keeping as per Section 26(1)(f) of the 1995 Act. There is no good reason why statutory records were left at the Transport Manager’s permanently. Mr Lynch’s evidence was inconsistent and at one point he said he trusted Mr Black and then in the next breath said that he was asking for the records from the Transport Manager after conviction and before sentence they weren’t produced.

• The Operator moved operating centres without notifying OTC. Even if there is a need to urgently depart a centre, a period of grace and notification of where the vehicles are being parked is required. Use of an unauthorised operating centre is a breach of a condition on the Licence and a criminal offence (S.7(2) of the 1995 Act). This is a breach as per Section 26(1)(a), (b) and (h) of the 1995 Act.

• The maintenance records demonstrated a system which was far from sufficient to ensure vehicles were roadworthy at all times and this is a breach of Section 26(1)(f) of the 1995 Act. In particular a vehicle was able to travel from Scotland to Milton Keynes without wheels being retorqued after removal. It is fortunate that there was no wheel loss incident. There is an anomaly with the handwritten retorque registers for the 1 and 4 July 2022 which precludes a proper audit trail, at best. There is no measured brake performance testing save for a random test in Reading in 22 August 2022. The Operator failed to produce any invoices for repairs or work done to the vehicles that are actually being operated. The forward planner was only produced in the hearing. Even then it had not been updated properly so there is a late PMI.

During the course of Mr Lynch’s evidence further breaches of the Licence undertakings came to light. As is appropriate in line with SGSD No. 9, Counsel was given such time as he requested to take instructions as the hearing continued. Accordingly : -

• ‘Feeder’ journeys from base to Milton Keynes are never recorded, which meant all related duty activity/rest claims are inaccurate.

• Mr Lynch did not tell the Traffic Examiner, nor Ms Lesniak, about the use of ‘feeder’ journeys

• Tachograph cards are not necessarily inserted before walkaround checks, which meant all related duty activity/rest claims are inaccurate. Further it may mean that on any given occasion a walk round check was not conducted at all.

• Mr Lynch told DVSA that when he received records from the wife of the former Transport Manager Michael Black, he would send them to the Traffic Examiner for her to assess. When I asked why this did not happen, Mr Lynch told me that these records were received but they were never forwarded to the Traffic Examiner. This deliberate omission prevented DVSA reporting on the full picture at that time.

• At present the two vehicles in operation are not ‘normally kept’ at the specified operating centre because they only return for preventative maintenance inspections. This has been the case since February 2022 where operations have focused from Milton Keynes. This is a breach of the “normally kept” provision and is a breach of Section 26(1)(a) of the 1995 Act.

• Ms Lesniak was contacting Mr Lynch repeatedly requesting evidence, roller brake tests, retorque records etc but they were never sent. Mr Lynch accepts this.

In terms of whether the Operator used more vehicles than authorised after 5 May 2021, Mr Lynch was not a credible witness. Mr Lynch’s evidence throughout the Traffic Examiner investigation and via his instructions to Solicitor and Counsel before12 October 2022, was that he did not know that the interim direction on the OH Licence had been withdrawn along with the application. Mr Lynch insisted that it had all been done behind his back. It was only when Mr Lynch was presented via my office with a screen shot of Mr Lynch using his own self service online access to withdraw the application, did his case change. Mr Lynch withdrew the OH application, failed to return the OH discs and on the follow up OF application an interim was never granted. Mr Lynch knew what he has done and with VOL self service access, if in any doubt he could check 24/7. There was no room for Mr Lynch to have any shadow of a doubt as to how many vehicles Scooby was or wasn’t authorised to operate at any given time. Further he has attempted to pervert the DVSA investigations and mislead the Inquiry by insisting otherwise.

There are few positives in this case.

• There is a good MOT pass rate, but I give that limited weight in light of the deficient systems to ensure roadworthiness 365 days of the year as opposed to the one day it knows DVSA will see the vehicle.

• The Traffic Examiner acknowledges that records produced prior to the hearing show an improving picture. Again, I only give this limited weight because (i) it is not possible to distinguish which improvements are due to Mr Lynch as opposed to Ms Lesniak, if any; and (ii) ‘feeder journeys’ have not been taken into account for the reasons set out above, creating a false picture.

• Mr Lynch has passed his Transport Manager CPC. Again, I give this limited weight as knowing the law and rules does not prevent Mr Lynch from breaking them.

• This is the first Public Inquiry, but in a serious case that is not a barrier to revocation.

Mr Lynch’s confidence will have taken a blow shortly before the hearing with the VOL Change History screenshot. I have kept that in mind in terms of his oral evidence and apparent nervousness. However, when looking at his course of conduct over a sustained period, the reality is that Mr Lynch is a mendacious and self-serving individual. Mr Lynch puts commercial need ahead of safety and adherence to the Licence terms at will.

In 2006/277 Fenlon the then Transport Tribunal reminded us: “It has been said on many occasions that trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules, and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip, and the public will suffer.” Even when Mr Lynch knows that he should do something, e.g. park vehicles up, if it does not suit him, he continues in his own best interests. That is not someone that I can trust moving forward.

As Mr Lynch is the sole director, it is his conduct which informs the good repute of the Company. When I pose the question is Scooby an enterprise that deserves to be put out of business, the answer must be yes. It has posed a significant risk to road safety and gained a significant commercial advantage for too long. It is time to draw the line. Revocation and a finding of loss of good repute is not disproportionate where, as here, there is an “… absence of any objective justification and excuse, there have been long term, sustained, repetitive deficiencies” (2009/041 Waterstone Motors t/s the Green Bus Service). As at the hearing the Operator is under a POG as it no longer meets the mandatory requirement of professional competence. Mr Lynch applied to be nominated. That application is refused. Mr Lynch is not of good repute based on the numerous adverse findings set out above. Even if the Licence were not revoked I would not be minded to extend the period of grace as Mr Lynch failed to make contingency arrangements to have an alternate proposed. Accordingly, I have reached the decision set out in paragraph 1 above.

6. Disqualification

The relevant case law and principles are set out in Chapter 13 of the Upper Tribunals Digest of Traffic Commissioner Appeals (2021) and Statutory Document No. 10 paragraphs 61 – 66 and 104 – 106. The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified. Each case must turn on its own merits: 2009/011 Katherine Oliver and J W Swan & Partners and Catch22 Bus Limited, Philip Higgs v The Secretary of State for Transport [2019] EWCA Civ 1022.

Disqualification is a potentially significant infringement of rights, and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification the Operator/individual are entitled to know the reasons. In 2010/29 David Finch Haulage the then Transport Tribunal said:

“The principles that derive from these and other cases on the point can be simply stated. The imposition of a period of disqualification following revocation is not a step to be taken routinely, but nor is it a step to be shirked if the circumstances render disqualification necessary in pursuit of the objectives of the operator licensing system. Although no additional feature is required over and above the grounds leading up to revocation, an operator is entitled to know why the circumstances of the case are such as to make a period of disqualification necessary. Additionally, periods of disqualification can range from comparatively short periods to an indefinite period, and can be confined to one traffic area or be extended to more than one”.

In my judgement a period of disqualification is required because Mr Lynch has demonstrated that he cannot be trusted to tell the truth or comply with the regulatory regime. I am particularly cognisant of the cumulative impact of the failings. It is not one aspect of the Licence obligations that have been breached, the failings are across the board. Operating more vehicles than authorised with inadequate driver and vehicle safety systems and from an unlawful operating centre is a disaster waiting to happen. Scooby Limited and Mr Lynch are fortunate that there was not a serious or fatal incident as a hearing before the Traffic commissioner would have been the least of his worries. Whilst the positives are few, I have reduced the disqualification period from an appropriate starting point of 3 years by one year to reflect them. I have included the full scope of section 28 because I suspect Mr Lynch may otherwise be tempted to seek the help of others in finding a “home” for the Scooby vehicles to be run nefariously. I remind all legitimate operators that ‘fronting’ is a serious matter which will put their own Licence in real jeopardy. Accordingly, I have reached the decision set out in paragraph 2 above.

Miss Sarah Bell

Traffic Commissioner

10 November 2022