Decision

Written decision for BW (Stoke) Ltd

Published 25 November 2020

In the West Midlands Traffic Area.

Decision of the Traffic Commissioner.

Virtual Public Inquiry held on 13 November 2020.

1. Decision

The application for a standard international goods vehicle operator’s licence, made by BW (Stoke) Ltd is refused pursuant to Section 13A(2)(b) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

2. Background

2.1 Application and previous history

On 11 March 2020 BW (Stoke) Ltd submitted an application for a standard international goods vehicles operator’s licence for 10 vehicles and 15 trailers. The sole director of the company is Lewis Weller. The prospective transport manager on the application form was originally James Coates, but he was substituted by Lewis Weller in September 2020.

As a sole trader, trading as B&W Transport, Lewis Weller had held licence OD0260642 until it was revoked in September 2015 after Mr Weller had been declared bankrupt. A company of which he had until February 2015 been a director, B&W Storage Ltd, applied for a licence in May 2015, which was granted in September 2015. The directors of the company at the time of grant were Lewis Weller’s son James Weller and two other family members.

B&W Storage Ltd was wound up by court order in September 2017: its operator licence had been revoked on 1 June 2017 due to lack of financial standing.

A company called Freightpro Ltd (sole director James Weller) had already applied for a licence in January 2017. I considered this application at a public inquiry on 5 July 2017: I granted the application but delayed the coming into effect of the licence until 1 August 2017, as a mark of my dissatisfaction that the company had clearly operated during the application process.

Freightpro Ltd subsequently went into liquidation on 24 October 2019, although the company failed to communicate this change in its circumstances to my office. The licence was eventually revoked on 22 April 2020.

On 11 March 2020 BW (Stoke) Ltd submitted its application described above. In answer to the question “has anyone named in the application ever been declared bankrupt?” the answer given on the application form was “no”. In answer to the question “has anyone named in the application ever had an operator’s licence revoked?” the answer given was no. A similar negative was given to the question about whether the applicant had within the past 12 months purchased the assets of another entity which held or had held an operator’s licence.

On 6 February 2020 DVSA stopped vehicle JH57 RTH. The driver stated that he was working for Freightpro Ltd, although when he attended an interview under caution a few days later he stated that he worked for BW (Stoke) Ltd and took his instructions from Lewis Weller the transport manager. The driver said that he believed that Freightpro had changed its name to BW (Stoke) Ltd.

In view of the serial liquidations associated with Lewis Weller and his family and in view of the inaccuracies on the application form and the evidence that the company was in fact already operating in advance even of making an application, I decided to consider the application at a public inquiry.

Before the inquiry could be called, DVSA encountered another vehicle, GK62 VLE, being operated by BW (Stoke) Ltd on 26 September 2020. The disc in the windscreen was in the name of Freightpro Ltd.

3. Public inquiry

A virtual inquiry was held on MS Teams on 13 November 2020. Director Lewis Weller attended. The company was represented by Anton Balkitis, solicitor, of Rotheras.

Lewis Weller stated that he had relied on a consultancy to carry out the application. He had told them that he had been made bankrupt and had purchased assets of a previous operator (Freightpro Ltd). He had thought he had surrendered his sole trader licence OD0260642 and so had answered no to the question on whether he had ever had a licence revoked. [Shortly after the inquiry Lewis Weller presented evidence in the form of communications between him and the transport consultant, in March 2020, supporting the above statements]

I asked Lewis Weller why, after Freightpro Ltd had gone into liquidation in October 2019, BW (Stoke) Ltd had clearly operated vehicles in advance of its application. Mr Weller stated that on 6 February 2020 there had been a very urgent load and he had not been able to find a sub-contractor to carry it. I took him to the driver’s delivery schedule, found by DVSA in the vehicle cab and which showed continuous transport jobs throughout January 2020. I also referred to the bank statements provided in support of the application which clearly showed continuous transport related activity (fuel payments, driver wages etc) throughout 2020. Mr Weller accepted that he had continued to operate the vehicles after the demise of Freightpro Ltd. There had been contracts to fulfil and drivers to keep in employment.

Mr Balkitis accepted that operation in advance of the licence being granted was likely to affect the company’s good repute. He suggested that, with a different transport manager and a reduced number of vehicles (for example, two or three) I might be prepared to grant the licence. Positive points were i) that there had been no roadworthiness or maintenance compliance issues with any of the licences with which Mr Weller had been involved; and ii) that Mr Weller had completed a two-day transport manager CPC refresher course within the past few days.

4. Findings

After having considered the evidence, I make the following findings:

1. B&W Transport, B&W Storage Ltd and Freightpro Ltd have essentially been the same family business, with a high degree of continuity of vehicles, drivers, operating centres etc. Over the last six years, the business has suffered a bankruptcy and two liquidations, leaving a trail of unpaid creditors (including HMRC) in its wake on each occasion. I am not convinced that, if the application from BW (Stoke) Ltd were granted, the outcome would be any different.

2. The applicant BW (Stoke) Ltd is not of good repute. It has been operating five or six vehicles without authority since at least early January 2020 (according to documents found on the driver in February 2020 and to bank statements submitted in support of the application). I was unimpressed by Lewis Weller’s explanation that he had begun the application process with the transport consultancy in October 2019. Not only was there no evidence that this was so, but he must have known that the application was not submitted until 11 March when (according to VOL) Mr Weller himself submitted it electronically. Subsequently, letters from the central licensing office in Leeds (CLO) dated 6 and 20 April 2020 made it quite clear that HGVs could not lawfully operated unless and until the application was granted. Despite this, the company continued to operate. Mr Weller initially attempted, during the inquiry, to give me the impression that the operation of a vehicle on 6 February 2020 had been a one-off instance, caused by the necessity of fulfilling a contract, but did subsequently accept that the company had operated since Freightpro Ltd had gone into liquidation. Whilst I can appreciate the desirability of keeping drivers in jobs and vehicles gainfully employed, the company has to act within the law. It cannot simply wish away the rules relating to operator licences to suit its own commercial convenience. An aggravating factor is that the last time I saw a member of the Weller family (James Weller in July 2017) I also found that the company (then Freightpro Ltd) had begun operations before the application had been granted and warned him about this. The company has knowingly and deliberately operated for more than a year without an operator’s licence: a finding that it is not of good repute is proportionate and justified.

5. Conclusions

Having found that the applicant company is not of good repute, I am bound to refuse the application under Section 13A(2)(b) of the 1995 Act.

Given the company’s track record of operating without a licence, I have limited faith that it will now cease to operate vehicles. I am therefore passing details of the vehicles it has been operating to DVSA and the police. If the company continues to operate HGVs it risks them being impounded. If ANPR data shows that the vehicles are continuing to operate, any chance of a successful future application involving Lewis Weller will evaporate.

As it is, I am unlikely to consider favourably any such application for at least the next 12 months (mirroring the amount of time the company has operated without authorisation). The same goes for any applications which are fronts for continuation of the business.

Nicholas Denton

Traffic Commissioner

13 November 2020