Decision

Impounding: Written decision regarding an impounding by the Deputy Traffic Commissioner for Wales for Van Huet Glastransport Polska SP.ZO.O

Published 16 November 2022

0.1 In the Welsh Traffic Area

1. Written Decision of the Deputy Traffic Commissioner

1.1 Impounding Hearing: In respect of the application by VAN HUET GLASTRANSPORT POLSKA SP.ZO.O (“the applicant company”) for the return of VEHICLE REGISTRATION NUMBER: SCZ78916

2. Background

On 22nd June 2022, vehicle SCZ78916, a Polish registered vehicle was stopped by DVSA examiners en route from Swansea to Goole. The driver Jacek Jerzy Nowak produced a Community Driving Licence and driver qualification card. He was unable to produce proof of the vehicle’s incoming international journey to the UK and relevant documentation relating to each cabotage operation performed as required by the Regulations. A cabotage prohibition was issued.

It was noted that the company operating the vehicle, the applicant company, had received a pre-impounding warning letter in October 2019 informing them that further cabotage breaches may result in their vehicles being permanently detained.

It was also noted that on 5th July 2021 a prohibition had been attached to the same vehicle for a cabotage offence.

The driver was unable to state when the vehicle had entered the UK and could only say that he had been flown into the UK on 19th June by the company to commence HGV operations.

DVSA ascertained from the vehicle tachograph unit that the vehicle had entered the UK on 9th June via a ferry crossing. It had therefore exceeded the 7 day period for cabotage operations and was duly impounded.

3. The Hearing

On 5th September 2022, Mr Marek Bekas, “Country Manager for Poland”, attended as representative for the applicant company. The applicant company was represented by Mr Richard Scott, Solicitor who confirmed that Mr Bekas had authority to speak on behalf of the company.

DVSA Traffic Examiners, David Haines-Burke and Christopher Price, and Senior Traffic Examiner, David Rhys, attended on behalf of DVSA together with Solicitor, Ms Hines.

The evidence contained in the DVSA statements was not disputed.

I heard evidence from TE Haines-Burke and from Mr Bekas.

4. Evidence and Findings

It is accepted that DVSA had reason to believe that the vehicle was being used in breach of section 2 of the Act and that the vehicle was lawfully impounded.

The applicant company’s ownership of the vehicle has not been disputed.

The application form relies on 2 grounds for return of the vehicle: I. That, at the time the vehicle was detained, it was not being, and had not been, used in contravention of section 2 of the 1995 Act. (Reg. 4(3)(b)), and, II. That, although at the time the vehicle was detained it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner did not know that it was being, or had been, so used. (Reg. 4(3)(c))

Ground (I) was not pursued at the hearing.

Ground (II) was relied on by the applicant company, the burden of proof being upon the applicant in accordance with the established principles in 2013/021 Société Generale Equipment Finance Ltd. v. VOSA and 2011/060 Nolan Transport v. VOSA, summarised at paragraphs 55-64 of Senior Traffic Commissioner’s Statutory Document No. 7 – 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?”, the answer is firmly, “No”.

The applicant company had received a pre-impounding letter in October 2019 and the very same vehicle was still subject to an outstanding prohibition from July 2021.

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 Bekas. He was unconvincing and unimpressive as a witness, even allowing for possible language difficulties and unfamiliarity with the nature of the proceedings. He was hesitant and vague and I find his evidence to be deliberately misleading.

Even if the applicant’s size of operation prevented the individual director or, his representative before me, Mr Bekas, the “Country Manager for Poland”, from having direct prior knowledge of the detained vehicle’s movements, there is minimal evidence of control systems and effective management and, once the vehicle was detained, the applicant company’s response has been wholly inadequate and irresponsible.

The driver failed to produce CMR documentation detailing the arrival of the vehicle into the UK and the loads carried out between 10th and 22nd June. The statement from Mr Bekas states at paragraph 6, “the driver of the vehicle during the relevant period was Jacek Nowak. Mr Nowak arrived in the United Kingdom on 19 June 2022 by air”.

I find this statement to be deliberately misleading as Mr Bekas’s enquiries of the planners must have revealed that there had been a driver before Mr Nowak arrived who had undertaken numerous movements/operations between 10th June and 19th June, part of the “relevant period”.

The applicant company’s representative asks me to read into the sending out of Mr Nowak an intention to comply with the rules and at worst evidence of “dysfunctionality”. I cannot agree, as taken together with the absence of previous CMR documents, his arrival is more consistent with the attempt to create the false impression that the vehicle had only carried out 2 cabotage journeys within 7 days prior to the DVSA stop.

The most basic control system would have revealed that the vehicle had remained in the UK for more than 7 days and the “random checks” mentioned by Mr Bekas were either non-existent or inadequate to prevent unlawful use.

Mr Bekas was willing to make a statement in support of the application on the 19th July 2022 that was patently false. He stated “It can be seen that since the easing of the cabotage restrictions on 30 April 2022, we have been compliant with the new regime by restricting ourselves to no more than 2 cabotage operations within 7 days from entering the United Kingdom, followed by an international movement, usually to Dublin.”

This statement was clearly contradicted by the subsequent DVSA interrogation of the ANPR systems which revealed 140 sightings between 10th June when the vehicle entered the UK and 22nd June when the vehicle was stopped. Without that supplementary investigation the applicant would have sought to rely on the limited CMR’s produced without any apparent attempt to explain the vehicle’s movements between 10th and 22nd June. When asked whether he or the company had made any enquiries into the use of the vehicle in that period, Mr Bekas stated, “no”. It was so easily within the applicant’s capacity to make those enquiries , that I find the failure to do so highly probative of a deliberate intent to deceive, or at least a wilfully turning a blind eye.

Even after the DVSA supplementary evidence of the ANPR sightings, Mr Bekas and the applicant company have given no explanation for the failure to comply with the regulations and have given minimal evidence of investigation, root cause analysis or remedial action taken. This gives me further cause to doubt the applicant company’s honesty and credibility and I have no hesitation in finding proof of a high degree of fault such that knowledge of the unlawful use is clearly imputed if not actual in accordance with categories (ii) and (iii) of the Société Generale case.

In summary, the applicant company has failed to satisfy me that it did not know of the unlawful use of the detained vehicle.

5. Decision

The application to return vehicle SCZ78916 to the applicant company, is REFUSED.

Anthony Seculer, Deputy Traffic Commissioner,

Welsh Traffic Area.

6 September 2022