Decision

Impounding decision for the return of 07RN6408

Published 1 August 2023

0.1 IN THE WELSH TRAFFIC AREA

1. IMPOUNDING HEARING

1.1 In respect of the application by Speedogistic Limited (“the applicant company”)

1.2 For the return of VEHICLE REGISTRATION NUMBER: 07RN6408

under the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”)

And

The Goods Vehicles (Enforcement Powers) Regulations 2001 (“the Regulations”)

1.3 BEFORE VICTORIA DAVIES, TRAFFIC COMMISSIONER FOR WALES

1.4 HEARD AT THE OFFICE OF THE TRAFFIC COMMISSIONER, PONTYPRIDD ON 12 JULY 2023

2. Background

On 17 April 2023, vehicle 07RN6408, an Irish registered vehicle, was stopped and detained by the Driver and Vehicle Standards Agency (“DVSA”). The background to the detention is set out in the witness statement of DVSA Traffic Examiner (“TE”) Jonathan Woodward dated 6th June 2023 and, in summary, is as follows:

• The vehicle, a Scania R500 2 axle HGV towing a trailer, was stopped at the DVSA checksite, at Dalar Hir in Anglesey, North Wales on 17 April 2023. The driver, Mr Carry, confirmed that the vehicle was being used in connection with the applicant company’s business and was on a journey from St Helens to Ireland loaded with Amazon packages. The driver provided TE Woodward with a community authorisation issued in Ireland in the applicant company’s name. The driver confirmed that the vehicle had entered the UK unladen on 15 April 2023. TE Woodward noted that, in such circumstances, a vehicle is not permitted to conduct cabotage movements and must only complete international loads (that is, pick up a load and take it out of the UK). Following entry at Holyhead port, the vehicle had made 2 journeys to St Helens Amazon depot, taking one load to Holyhead port and then another journey to collect the load carried at the time of the stop. No load paperwork was available for the first load from St Helens to Holyhead. TE Woodward determined that the vehicle movements were in breach of the cabotage requirements in that firstly, no cabotage movements were permitted because the initial movement into the UK was unladen and secondly, the paperwork for the first load from St Helens to Holyhead had not been retained in the vehicle, as required by the cabotage rules.

• Given that a cabotage offence appeared to have been committed TE Woodward checked the DVSA “cabotage list” and noted that the applicant company had received a pre-impounding warning letter following a previous cabotage breach informing it that further cabotage breaches may result in its vehicles being impounded. DVSA then impounded the vehicle under regulation 3 of the Regulations.

An application for the return of the vehicle was made by the applicant company but was received late into the OTC Detained Vehicle Appeals team on 14 June 2023 from O’Dwyer solicitors on behalf of the applicant company. Their letter of 12 June 2023 requested an extension of time to bring the application, the deadline for application having expired on 12 May 2023. I invoked regulation 23 of the Regulations to extend the deadline to allow the application to be considered. The application form submitted and included in the Impounding Hearing Brief (“the Brief”) is signed by Gerard Dockery, director, and is dated 10 June 2023. It relied on the following ground for the return of the vehicle - ground set out in regulation 4(3)(c) of the Regulations that, at the time the vehicle was detained, the applicant company did not know that it was being, or had been, used in contravention of section 2 of the Act. In the section of the form requesting details of the application, it is stated “see letter + [illegible]”. Also included in the Brief at pages 33 and 34 is a letter from the applicant company’s solicitors to the DVSA Fixed Penalty office dated 31 May 2023 in which it is stated that their client used a subcontractor to provide driver services and that they were unaware that the driver as a subcontractor was engaged in conduct which could fall foul of the domestic cabotage rules. The letter states that their client is in possession of documents which substantiate that subcontractor relationship and that these can be provided. The letter goes on to state that, in effect, these are invoices from the applicant company to the subcontractor in relation to the driving work undertaken on their behalf. Included in the Brief, pages 21 to 26 are some documents, which are not attached as exhibits to any witness statement, nor otherwise explained. These appear to be invoices from Sean Carry to SGL Logistics for driving work done. SGL Logistics is not the name of the applicant company and nowhere in the evidence is there any reference to that entity.

3. The Hearing

The impounding hearing was listed for 12 July 2023 in Pontypridd. The letter calling the applicant company to the hearing was dated 15 June 2023. It was sent by recorded delivery post and by email to the applicant company’s solicitor to the postal and email address specified in its application. Having regard to the Senior Traffic Commissioner’s Statutory Document 7 on impounding, I made case management directions to the applicant company which were set out in the letter of 15 June 2023. These were as follows:

“14 days prior to the date for hearing, the Applicant must lodge with OTC any documentation which the applicant asserts proves its ownership of the impounded vehicle and serve a copy of the respondent. Please be advised that V5C Vehicle Registration document identifies the registered keeper of the vehicle and is therefore NOT sufficient to establish ownership. You should submit evidence of ownership such as a receipt for purchase of the vehicle.

“14 days prior to the date for hearing the Applicant must lodge with OTC a statement(s) detailing how the impounded vehicle came to be used and what inquiries the applicant made prior to the alleged use and serve a copy on the Respondent.”

Despite an email reminder sent to its solicitor on 28 June 2023, the applicant company did not comply with the directions, it did not submit any evidence in advance of the hearing and did not return the attendance form to confirm that it would attend the hearing.

I also made case management directions to the Respondent, the DVSA. These were as follows:

“14 days prior to the date for hearing, the Respondent must lodge with OTC a statement(s) of evidence to include why they believe the impounding was lawful and why the grounds relied upon by the applicant is not made out, and serve a copy on the Applicant.”

The Respondent complied with those case management directions and its evidence was included in the Brief for the Impounding Hearing which was served on all parties in advance of the hearing.

The hearing proceeded as listed on 12 July 2023 at 10am. Although there had been no response from the applicant company regarding attendance at the hearing, Mr Thomas Stanway of Counsel appeared on behalf of the applicant company. He confirmed that he was instructed by O’Dwyer solicitors, that he had received the Brief and some correspondence between his instructing solicitors, their client and OTC, but he had not yet had an opportunity to take instructions from the applicant company director. He had been instructed on 7 July 2023 and could not explain why those instructing him had not responded to email correspondence from my office, nor why his client had failed to comply with my case management directions. He had been contacted by a Mr Patrick Dockery, director of the applicant company, at 9.30am that morning and Mr Dockery had advised him that his ferry was late and that he would not arrive at the hearing venue until 10.10am. Mr Stanway asked me to delay the start of the hearing until 10.30am to allow for his client to arrive and for him to take instructions. Traffic Enforcement Manager Simon Jenkins attended the hearing to represent the DVSA along with TE Woodward, the impounding officer. I acceded to Mr Stanway’s request and the hearing was reconvened at 10.30am, by which time Mr Patrick Dockery had arrived. However, Mr Stanway then requested some further time to take instructions from Mr Dockery. I again acceded to this request but asked to be addressed on why his client had failed to comply with my case management directions and failed to respond to correspondence regarding the hearing, including as to who would be attending. The hearing resumed at 10.45am. Mr Stanway indicated that he had sufficient instructions to proceed but advised that he had been unable to speak to his instructing solicitors and so could not answer my questions about their failure to respond and could only apologise on his client’s behalf.

The DVSA evidence was not disputed.

I heard oral evidence from Mr Patrick Dockery, director of the applicant company, who was also the company’s transport manager. Before closing submissions, Mr Stanway requested permission to produce a document which had been emailed to him during the hearing and which he asserted proved the applicant company’s ownership of the vehicle. This was a copy of an Irish Registration certificate in respect of the impounded vehicle which named the applicant company as the “Registered Owner”. I allowed the document to be admitted in evidence.

I indicated that I would consider the evidence before me and would notify the applicant in writing of my determination as soon as reasonably practicable, and within 14 days.

4. Evidence and Findings

When a vehicle is impounded, establishing lawful ownership is a basic “condition precedent” before any person or entity can make an application to a Traffic Commissioner for its return. That general rule has been repeated by the Upper Tribunal and the onus of proof is upon the applicant company (2012/053 Clayton Car Sales Ltd; 2014/03 Sarah Boyes). The applicant company’s written application did not include any evidence as to ownership of the impounded vehicle. I gave specific directions on the issue of ownership, namely that the applicant company must provide evidence to prove its ownership of the vehicle, as already set out above. It failed to comply with that direction. An Irish registration document was produced by the applicant company during the impounding hearing and a copy of that document was provided to the Respondent. Mr Jenkins, on behalf of the Respondent, submitted that he was unable to accept the document as probative of ownership, given that he had only received it during the hearing and had not therefore been able to make relevant enquiries. That position was quite understandable. I was invited by Mr Stanway to accept this document, along with the oral testimony of Mr Dockery, as proof of ownership. He asserted that this document was different from a V5C Registration Document in the UK because it included at paragraph c.4.c a section entitled “Registered Owner” which named the applicant company, and this linked with the vehicle registration number shown on the document. There were no other prospective owners who had come forward to claim ownership of the impounded vehicle, which he submitted was also relevant to my considerations. On the balance of probabilities on the evidence before me I make a finding that the applicant company has satisfied me that it was the legal owner of vehicle 07RN6408 at the time it was impounded by the DVSA.

It is clear to me on the evidence, which was not disputed, that the DVSA examiner had reason to believe that the impounded vehicle was being used in contravention of section 2 of the Act because it was in breach of the cabotage requirements and that the impounding on 17 April 2023 was lawful.

The applicant company relies on the ground set out in regulation 4(3)(c) for the return of the vehicle namely that, although at the time the vehicle was detained, it was being, or had been, used in contravention of section 2 of the Act, the applicant company did not know that it was being, or had been, so used. The evidential burden is on it to prove the grounds relied on for return of the vehicle in accordance with the established principles in 2013/021 Societe Generale Equipment Finance Ltd v VOSA and 2011/060 Nolan Transport v VOSA, summarised at paragraphs 48 to 60 of the Senior Traffic Commissioner’s Statutory Document number 7 on Impounding.

In answer to the question “Has the claimant satisfied me that it probably did not know that the vehicle was being or had been used in contravention of the Act?” I find the answer to be “No”.

The applicant company had been sent a pre-impounding letter following a previous cabotage breach. At no time has haulage within the UK been available to any operator who entered the country without a load. The applicant company’s vehicle entered the country without a load, in breach of basic cabotage rules. The vehicle, when stopped, was only carrying relevant documentation for the second internal movement, and not the first, which was also in breach of basic cabotage requirements. Mr Dockery, as a qualified transport manager and director of the applicant company which is engaged in regular haulage operations to the UK should have been aware of those rules and he indicated that he was.

The applicant company failed to comply with case management directions issued in advance of the hearing requiring it to lodge a statement detailing how the impounded vehicle came to be used and what inquiries the applicant company made prior to its use. The only evidence supporting the applicant company’s contention that it did not know that the vehicle was being, or had been used, in contravention of the Act came from Mr Dockery. His evidence was that the driver (who was not a driver employed by the applicant company, but a subcontracted “relief” driver) was supposed to depart from Ireland with a loaded trailer for delivery to Liverpool, in the UK. His evidence was that the applicant company did not know that its driver had not done so until the DVSA detained the vehicle 2 days later. However, no supporting documents were provided to substantiate that version of events. I find it quite incredible that the applicant company would not have been made aware that a load that was scheduled to be collected on a due date, bound from Dublin to Liverpool, was neither collected as planned, nor delivered as planned. There was no evidence of any written instruction given to the driver who was acting on the applicant company’s behalf, of any systems in place to ensure that the planning of journeys of vehicles into the UK would, in the ordinary course of events, be compliant with the cabotage legislation nor of the instructions and procedures in place to ensure that the driver had with him the necessary documents for inspection during roadside checks so that the cabotage requirements are complied with. Indeed, when asked what instructions the applicant company gave drivers engaged in cabotage movements, Mr Dockery’s response was “previous to this, very little, to be honest.” I find that highly probative of a deliberate intent to deceive, or at least wilfully turning a blind eye.

The Societe Generale Decision sets out five categories of knowledge. The third category is that “knowledge that the person would have acquired if he had not wilfully and recklessly failed to make such enquiries as an honest and reasonable person would make”. I find that there has been a high degree of fault on the part of the applicant company which failed to make the reasonable enquiries that an operator engaged in haulage operations to the UK should have, such that knowledge of the unlawful use in breach of cabotage rules is imputed, if not actual.

5. Decision

The application to return vehicle 07RN6408 to the applicant company is REFUSED.

Victoria Davies

Traffic Commissioner for Wales

17 July 2023