Decision

Impounding: Decision on the application by GMP Plant Limited for the return of a vehicle

Published 10 March 2022

0.1 EASTERN TRAFFIC AREA

1. DECISION OF THE DEPUTY TRAFFIC COMMISSIONER

1.1 APPLICATION FOR THE RETURN OF DETAILED VEHICLE HEARD AT THE TRIBUNAL ROOM, OFFICE OF THE TRAFFIC COMMISSIONER, EASTBROOK, SHAFTESBURY ROAD, CAMBRIDGE, ON 2 FEBRUARY 2022

1.2 APPLICATION BY GMB PLANT LIMITED IN RESPECT OF VEHICLE X1 GMP

2. DVSA Evidence

Traffic Examiner Hawkins told me that on the 1 November 2021 vehicle X1GMP was stopped and enquiries revealed that the vehicle was not authorised on an operator’s licence. The vehicle had last been authorised under the licence held by GMP (UK) Limited and this licence had been revoked on the 12 October 2020. The driver of the vehicle, which was displaying livery in the name GMP Plant Hire, said he was working for that company and was on a journey from Ardleigh to Bury St Edmunds. Delivery notes were found in the vehicle in the name GMP Plant Limited together with e mail correspondence relating to the collection of a digger. A telephone call was made by Mr Hawkins to Shanice Poulter who was the company secretary of GMP (UK) Limited. She said that she was on maternity leave and not involved in the day-to-day business. She also said that a licence had been applied for by GMP Plant Limited and this had been refused on the 5 February 2021. Another application had been made by GMP Projects Limited which was pending. Ms Poulter had told Mr Hawkins that her transport manager, Christopher Baker was dealing with this application.

Mr Hawkins told me that the vehicle was impounded, and the prescribed procedures were followed thereafter.

2.1 Application – GMB Plant Hire Limited

On the 16 November 2021 an application for the return of the vehicle was submitted in the name GMB Plant Limited with a contact name Shanice Poulter. The application was made on the ground that “the applicant did not know that the vehicle was being used, or had been, used in contravention of Section 2 of the 1995 Act” i.e. without an operator’s licence.

Ms Poulter attended the hearing via Microsoft Teams on behalf of the applicants and was represented by counsel Mr Dawson. Submissions had been sent to the Office of the Traffic Commissioner before the hearing and I confirmed that I had read through these prior to the hearing.

Ms Poulter told me that she was the director of GMP Projects Limited and GMP Plant Limited. The vehicle in question X1GMP had been owned by a different company GMP (UK) Limited who had gone into liquidation. She had been the secretary for that company. She said that the directors of that company had been owed a large amount of money in directors’ loans and rent and as a result the liquidators had decided that certain assets should be retained by the directors as part of the process. X1GMP was part of these assets and one of the directors Gavin Poulter, who is Ms Poulter’s father, had “gifted” the vehicle to GMP Plant Limited. The vehicle registration document had been changed to show GMP Plant Limited as the registered keepers and insurance had been taken out by that company. Despite repeated attempts it had not been possible to obtain confirmation in writing from the liquidators that the arrangements had been made as stated. The agreement to allow the directors to keep certain assets had been made in a telephone conversation.

In relation to the use of the vehicle on the 1 November Ms Poulter confirmed the contents of the submission and said that she had commenced maternity leave in April 2021. An application for an operator’s licence had been made in March 2021 by GMP Projects Limited with X1GMP shown as one of the proposed vehicles. She had given advice to the yard manager Greg Taylor that the vehicle should not be used until it was lawful to do so. Mr Taylor had told her subsequently that the proposed transport manager Christopher Baker had told him that an interim licence had been granted and the vehicle could be used. Ms Poulter said that she believed this happened two months after she went on maternity leave and a system was put in place whereby the vehicle was leased from GMP Plant Limited (the owners) to GMP Projects Limited with payments being made for this service. She did not visit the operating centre between the start of her maternity leave and the date of the vehicle impounding in November.

3. Findings and Decision

In deciding this case I have had regard to the guidance set out in Statutory Document 7 issued by the Senior Traffic Commissioner and the relevant cases from the Upper Tribunal. These encourage a structured approach to these decisions with the first consideration – has the applicant established by evidence that it is more likely than not that they are the owner of the vehicle? In this case I remind myself that the applicant entity is GMP Plant Limited, and Shanice Poulter is the sole director of the company. Her evidence is that the vehicle in question was “gifted” from a separate company GMP (UK) Limited during the process of liquidation. On the 13 December 2021 Ms Poulter confirmed that she had received an e mail from the Office of the Traffic Commissioner asking for further evidence to support the claim that the liquidators of GMP (UK) Limited had allowed the company to retain property including the vehicle as opposed to those assets being recoverable on behalf of the creditors. No further evidence was presented prior to hearing and at the hearing I was shown a copy of a schedule of “directors’ loans to invoices” but nothing sent by or on behalf of the liquidators.

I am not satisfied that the applicant has established ownership to the evidential standard required. It is, in my experience, unusual for a liquidator to allow assets to be retained by officers of the failed company without paying a market level price for them and even more unusual that no written confirmation was sent to the debtor company. Ms Poulter claims that the arrangement was made during a telephone conversation and not in written correspondence but even if this was the case a request for written confirmation could still be made for the purposes of this application. I also enquired if a liquidator’s final report was available having been told the process concluded in 2020 but once again nothing was available to corroborate the claim being made. In those circumstances I am not satisfied that ownership by the applicant has been established to the standard of proof required.

In the absence of a finding of ownership I could conclude my decision but for completeness I will also deal with the second aspect of the application, which relates to knowledge of the use of the vehicle without an operator’s licence – this question would be relevant if I had found that ownership had been proved.

I remind myself that the applicant is GMP Plant Limited, and this was the company the driver said he was working for when stopped and the name on the delivery documentation. This company has not held an operator’s licence and an application was refused on the 5 February 2021. I was asked to find that the director of the applicant company was unaware of the use of the vehicle because she was on maternity leave, and the yard manager Greg Taylor allowed the vehicle to be used in the erroneous belief that an interim licence was in force having been told this by the proposed transport manager on an application for a licence by GMP Projects Limited.

The first and obvious difficulty with this argument is that, even if I believed the version of events being put forward it would not cover the operation of the vehicle by GMP Plant Limited. I was told that this company, as the owners of the vehicle (which I have not accepted) hired the vehicle to GMP Projects Limited believing they had a licence. If GMP Projects had been the users of the vehicle when it was stopped then consideration would have had to be given to whether this provided the necessary evidence of lack of knowledge. However, as GMP Plant Limited were the operators it is irrelevant whether GMP Projects Limited believed that a licence covering their use was in force. The facts are that the vehicle was being operated by GMP Plant Limited and that use was either within the knowledge of the director Ms Poulter and/or the yard manager on her behalf. In either case there is no evidence to show that they did not know the vehicle was being used without an operator’s licence.

I do not intend to detail further findings in relation to the evidence presented by Ms Poulter. Suffice to say that there are inconsistencies and anomalies that cause me to question the veracity of her evidence. She claimed that she did not know the vehicle was being used but then detailed the arrangements for monthly hire between the companies. The papers in my possession show that she sent an e mail to the Traffic Commissioner on the 22 September 2021 in relation to the requested hearing for the new application for GMP Projects Limited. This followed a notification to the company and the proposed transport manager sent by post to the operating centre address that the Commissioner was proposing to refuse the application. Both parties were therefore aware of the view being taken of the application but nevertheless she was asking me to believe that she and the yard manager were unaware of the position in relation to the new application and believed that an interim licence was in force. I do not need to make specific findings in relation to this evidence but raise my concerns considering the application for a licence by GMP Projects Limited which is pending.

My decision is to refuse the application for the return of the vehicle on the grounds as stated and to direct that the DVSA may dispose of the vehicle once the time for appeal against this decision has expired.

John Baker

Deputy Traffic Commissioner

7 February 2022