Decision

Decision for West Midlands Machinery Services Ltd

Updated 1 November 2021

0.1 WEST MIDLANDS TRAFFIC AREA

1. DECISION OF THE TRAFFIC COMMISSIONER

1.1 PUBLIC INQUIRY HELD ON 8 JUNE 2021

1.2 APPLICANT: WEST MIDLANDS MACHINERY SERVICES LTD

2. Background

2.1 Application

On 3 February 2021 West Midlands Machinery Services Ltd (“WMMSL”) applied for a standard international goods vehicles operator’s licence for three vehicles and three trailers. The nominated transport manager is Alan Cooper; the sole director of the company is Nicola Greenfield.

The central licensing office (CLO) in Leeds referred the application to me because of a potential connection with KJ Hudson Machinery Services Ltd (“KJHMSL”), whose licence OD2024063 I had revoked with effect from 29 November 2020. I had also disqualified the company and its director Claire Dey from holding a licence for three years.

The reasons which caused CLO to suspect that WMMSL might be a front for KJHMSL were:

i) bank statements showed a payment to KJHMSL;

ii) the prospective transport manager Alan Cooper had been the transport manager on the licence of KJHMSL at the time its licence had been revoked;

iii) Companies House records showed that WMMSL had been incorporated on 2 November 2020, four days after my decision dated 29 October 2020 revoking KJHMSL’s licence from 29 November.

2.2 Previous history

In considering whether to call this application to a public inquiry, I recalled that that there was a substantial history to KJHMSL and its former director Kenneth Hudson. In brief, the relevant facts were:

iv) KJHMSL had originally held a restricted operator’s licence (OD1044443), which was revoked in February 2015 after a public inquiry heard that the operator’s vehicles and drivers had incurred numerous prohibitions and fixed penalties;

v) I had revoked licence OD1134681 held by KJHMSL in November 2018 after a public inquiry heard that the company had operated a vehicle with an AdBlue emulator, had operated more vehicles than authorised and had a very high prohibition rate. The then director Kenneth Hudson was disqualified from holding a licence for three years;

vi) in February 2020 I had revoked licence OD2018791 held by David John Price after I had found that he had been a front for continued operation by Kenneth Hudson and KJHMSL;

vii) in December 2019 I granted licence OD2025603 to KJHMSL after Kenneth Hudson had been replaced as sole director and shareholder by Claire Dey. The company gave an undertaking that Kenneth Hudson would not be involved with the business in any capacity;

viii) after indications that the company was not complying with this undertaking, I called KJHMSL back to a public inquiry in August 2020. The inquiry had to be adjourned until October to allow the company to consider additional evidence. After finding that the company had broken its undertaking regarding Kenneth Hudson and that it had also operated during the period from November 2018 to December 2019 when it did not hold an operator’s licence, I revoked KJHMSL’s licence by decision of 29 October 2020, disqualifying both the company and Claire Dey for three years.

3. Public inquiry

Concerned that the application from WMMSL might be yet another attempt by Kenneth Hudson and/or KJHMSL to circumvent their disqualification, I decided to consider it at a public inquiry. This was held in Birmingham on 8 June 2021. Present were director Nicola Greenfield, prospective transport manager Alan Cooper and Scott Bell, solicitor from Backhouse Jones, representing.

Mr Bell made the reasonable point that it was difficult to prove a negative, ie that the application was not a front for KJHMSL. The bank statement payment was explained by the fact that WMMSL had purchased a couple of 3.5 tonne recovery trucks from KJHMSL and had since sold one of them on. WMMSL had originally been established as a buying and selling company, purchasing assets from distressed companies and selling them on for profit. This was its link with KJHMSL which had now entered liquidation. WMMSL had been incorporated on 2 November 2020, but evidence was provided to show that the idea for the company had been gestating for several months before this: it had not been a quick reaction to the revocation of KJHMSL’s licence. The company wished to operate one HGV to start with in order to take specialist machinery services plant to auction – a different business model to that of KJHMSL. WMMSL had alighted on Alan Cooper as transport manager as he had known the Greenfield family for several years.

I noted that the vehicles on KJHMSL’s licence at the time of revocation had since appeared on another licence with no apparent connection to KJHMSL. I noted too that the operating centre proposed by WMMSL was different to the one which had been on the licence of KJHMSL. However, I noted that the contact telephone number given in WMMSL’s application by Nicola Greenfield was the same as the contact number which had been given by Claire Dey when she had submitted KJHMSL’s licence application in 2019: this number had remained the contact number for KJHMSL throughout the life of its licence OD2025603. This suggested to me that the connection between the two businesses was closer than I was being told.

Nicola Greenfield stated that she had purchased a sim card with this number at a phone shop. She could not explain how it came to be that this mobile phone number was the same as that of KJHMSL’s.

At this point I adjourned the inquiry in order to take a written decision. Later in the day, I received an email from Scott Bell explaining that Nicola Greenfield had found the receipt relating to the purchase of the simcard. A copy of the receipt was attached: it was a handwritten note on a headed notepad of “thephonebox” mobile repair specialists. It recorded that £11 had been paid in cash on 30 January 2021 for a simcard with the phone number in question and a £10 top-up.

Essentially I am being asked to decide which of the following scenarios is the more likely:

• that some time between October 2020 and January 2021 KJHMSL gave up their mobile phone number (although the company continued to do business until March 2021 when a voluntary liquidator was appointed) and that by sheer coincidence this was the very number that was associated with the simcard subsequently bought by WMMSL in January 2021;

• that the phone number used by KJHMSL has simply been passed by KJHMSL to WMMSL and that WMMSL has attempted to conceal that fact from me.

I have no hesitation in concluding that scenario ii) is by far the more likely on the balance of probability. The chances of scenario i) happening are infinitesimally small. It stretches credulity to accept that out of all the many millions of mobile phone numbers available, the number associated with the simcard purchased by WMMSL was the very same number which had been in the possession of KJHMSL. Neither was I convinced that the handwritten receipt on a notepad (albeit letterheaded) was authentic.

4. Conclusion

There are certainly aspects about WMMSL’s business which are different from that of KJHMSL. The business model appears different, the operating centre is different and KJHMSL’s vehicles appear to have been disposed of elsewhere. On the other hand, the transport manager is the same and, as I have concluded above, the connection between the two businesses is clearly closer than the applicant has admitted.

I mentioned to Mr Bell at the inquiry that the question of the phone number was a worrying niggle. After considering the matter further (paragraph 11 above refers) I am forced to find that the applicant has attempted to mislead me about the true nature of its connection with KJHMSL. For this reason, I conclude that I cannot have the trust in the applicant that is necessary for me to be able to grant it an operator’s licence. Because of the deception it has practised, I am unable to find that, on the balance of probability, the applicant has the required good repute: I am accordingly refusing the application under Section 13A(2)(b) of the 1995 Act.

Nicholas Denton

Traffic Commissioner

9 June 2021