Decision

Written decision for EM DZHEY EL LIMITED EOOD

Published 16 November 2020

Decision of the Deputy Traffic Commissioner for the North West of England .

In the matter of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) and Goods Vehicles (Enforcement Powers) Regulations 2001 (“the Regulations”).

Regulation (EC) No. 1072/2009 of the European Parliament and of the Council of the European Union (the EC regulations”).

Vehicle Reg. No. B4516BM.

Claimant/Appellant: EM DZHEY EL LIMITED EOOD (a company incorporated in Bulgaria).

Respondent: The Driver & Vehicle Standards Agency (DVSA).

Hearing at Golborne on 21 October 2020.

1. Decision

The claimant not having satisfied me, on the balance of probabilities, that the ground claimed for its return is made out, the application for the return of the vehicle is refused.

DVSA may dispose of the vehicle once the period for appeal has expired.

2. The statutory background

The Goods Vehicles (Licensing of Operators) Act 1995 (the Act) and the Goods Vehicles (Enforcement Powers) Regulations 2001 as amended (the Regulations) make provision for vehicles operated by a person or an entity without the authority of an operator’s licence or an exemption to be detained by an authorised person.

The owner of such a detained vehicle is entitled to apply to DVSA and subsequently to the Traffic Commissioner for the release and return of the vehicle.

Application may be made on four grounds, summarised as follows.

The grounds are:

That at the time the vehicle was detained:

• The vehicle was being used at the time under the authority of a valid operator’s licence (whether or not authorising the use of the vehicle);
• The use to which the vehicle was being put to at the time, or to which it had been put, was not of a sort that contravened Section 2 of the Act;
• Although the use of the vehicle was in contravention of Section 2 of the Act that the owner did not know that it was being or had been so used;
• Although it was known that the use of the vehicle was in contravention of Section 2 of the Act, that the owner had both taken steps to prevent that use and to prevent such further use.

In proceedings of this type that are adversarial in nature it is for:

• A claimant to prove on the balance of probabilities that it owned the detained vehicle at the material time;
• DVSA to prove on the balance of probabilities they had reasonable grounds to detain the vehicle in question;
• A claimant to prove on the balance of probabilities that one of the grounds for its return applies.

3. The application

My office received a GV500 application from EM DZHEY EL LIMITED EOOD dated 21 September 2020. The company made application for the return of this detained vehicle via Simon Clarke of Smith Bowyer Clarke, Road Transport Lawyers. The director of the above named company is Mark Johnathan Lyons.

The application was timely, it disclosed a single ground for return set out in the regulations, namely that under the first ground:

(a) That at the time the vehicle was detained, the user of the vehicle held a valid licence (whether or not authorising the use of the vehicle).

The vehicle in question is a Scania R580 LA6X2 4MNA tractor unit (which had been pulling a loaded tipper trailer) with a Bulgarian registration number B4516 BM. The tractor unit was emblazoned with the name “Lyons”.

I issued directions for the conduct of an oral hearing set down for 21 October 2020 at Golborne.

At the hearing, DVSA was represented by Andrew Stewardson, solicitor. Present via a video-link was Traffic Examiner (TE) Elizabeth Ferrie, together with Traffic Enforcement Manager (TEM) Kevin Barnes.

Simon Clarke, barrister, represented the claimant company, for which its director, Mark Lyons, was also present.

3.1 Detention of the vehicle

The vehicle had been escorted into the DVSA check site at Todhills, near Carlisle, Cumbria on the M6 motorway on 3 September 2020 for a random check. The driver claimed to have loaded that day in Hull, and that he was on the way to Ayr with a load of potash. He said he arrived from Wexford, in the Irish Republic on “Monday” (which would have been 31 August 2020).

DVSA believed that the vehicle and its user were engaged in cabotage activities. Driver O’Doherty was asked to produce the company’s Community Authorisation, the import CMR for the incoming delivery into the UK, CMRs for all internal work carried out since that entry into the UK, the driver’s driving licence and CPC card, analogue tachograph charts required to be carried by him and the driver’s digi-card.

The vehicle was apparently being operated at the time by the claimant/appellant in these proceedings, EM DZHEY EL LIMITED EOOD, a Bulgarian company. That name is a transliteration of the name MJL Ltd. It is understood that MJL is itself a representation of the initials of Mark Johnathan Lyons. (For ease in this decision, hereafter, I have used the name “MJL Ltd” as referring to that Bulgarian claimant company engaged in these proceedings).

A file containing a Bulgarian community authorisation (No. 1124870002 with a certification number 179658) in MJL Ltd.’s name, Green Card insurance, also in that name and a vehicle registration passport for the vehicle, was produced on request by Driver O’Doherty at the check. When later interviewed, and asked for whom he was working that day, the driver replied “MJL” and that he was “part-time and self-employed” by that business.

MJL Ltd is not the holder of a GB operator’s licence. It transpired when TE Ferrie checked the position that its Bulgarian community authorisation (referred to above), which was produced on the day, had been revoked earlier by the Bulgarian authorities. It followed that the use was an apparent breach of the cabotage regulations under which it purported to operate. A decision was therefore made by DVSA to impound the vehicle.

That impounding of the vehicle was subsequently advertised, and copies of a notice were served on statutory bodies. The claim made by MJL Ltd was the only claim for return of the vehicle.

A brief for the hearing was prepared by my Clerk and served upon both parties. It ran to some 189 pages, to which was added:

• An invoice raised by Lyons Haulage on 4 January 2017 in respect of the sale of the vehicle (then carrying its UK registration number FJ56 FCP) to MJL Ltd;
• An extract (with an English translation) from the Bulgarian equivalent of Companies’ House, evidencing that Mr Lyons was an officer of that company;
• The statement of TE Wilkinson in respect of a matter involving a different Bulgarian registered vehicle on 15 July 2020.

4. The hearing

Impounding hearings typically have up to three stages: concerned with ownership of the vehicle, the right to detain it and proof of grounds for return.

4.1 Ownership:

It is for the claimant to prove ownership of a detained vehicle, since only owners can make legitimate claims. On the basis of the documents produced, the lack of any objection raised by DVSA and there being no other claims, I was satisfied on the balance of probabilities that the claimant company had established its ownership. In these circumstances, it serves no useful purpose to set out the evidence itself, so I do not do so.

4.2 The right to detain:

The second stage requires DVSA to prove on the balance of probabilities that they had reason to believe that the vehicle, was being or had been, used on the road in contravention of Section 2 of the 1995 Act.

Helpfully, Mr Clarke on behalf of the claimant conceded that the vehicle was properly detained by DVSA on the day in question. It was confirmed by Mr Clarke that no dispute was taken with anything that TE Ferrie had said in her written statement. On this basis, Mr Stewardson chose not to call his witness, TE Ferrie, to give evidence.

In consequence, I found that I was satisfied of DVSA’s right to detain the vehicle.

TE Ferrie’s written statement ran to 20 pages, attached to it were a series of appendices A to H.

Some passages from it concerned with the aftermath of the vehicle stop became more relevant as the case proceeded, so I set out here those matters that were pertinent from her statement:

• After the decision was made to impound the vehicle, TE Ferrie had spoken to the driver and asked him to notify the operator of that decision;

• Shortly afterwards the driver reverted to her, asking that she speak to Mark Lyons on his mobile phone. She declined due to Covid-19 precautions but offered a landline number for him to ring her;

• Mark Lyons rang to ask what was happening. During the conversation he insisted to her that the “licence” had not been revoked but there had been an oversight by him, in that he had not changed the community authorisation in the truck. He told her that he had transferred the vehicle from the MJL licence to that of Bulk Trans Ltd;

• He said he had the new Bulk Trans Ltd licence in his office and would email it across. Later, a valid community authorisation in the name of Bulk Trans Ltd (no. 1191440001 with a certification number 257488) was provided;

• Having been told that despite the provision of further evidence that the impounding decision would stand, Mark Lyons had then asked to speak to her line manager;

• TE Ferrie informed the driver that he would need to remove all his personal belongings from the tractor unit. The driver subsequently returned to her to report that Mr Lyons had told him not to remove his belongings and to stay in the truck. The driver was informed that if necessary, the police would be called to remove him from it;

• Mr Lyons phoned TE Ferrie again and a discussion ensued regarding the driver’s welfare, as he would have no transport. TE Ferrie offered to arrange a taxi to take him to the Carlisle railway station. She reported that this offer had been rejected by Mr Lyons, as he pointed out there were no direct routes from Carlisle to Northern Ireland. (In the event the driver left the site bound for the port with another Northern Ireland-based operator, whose vehicle had been brought in);

• TE Ferrie had informed Mr Lyons that the trailer was not subject to the impounding and that he should arrange for its collection. She agreed to leave the gate of the site open to allow him to collect it. She recorded that Mr Lyons was agreeable to that arrangement being made;

• After the driver had left the site, Mark Lyons had phoned once again to say that he had spoken to his son, Dean Lyons, to report that the correct file containing the community authorisation was in fact with the vehicle in the cupboard above the passenger seat. Mark Lyons asked that TE Ferrie retrieve it from the vehicle, which she had declined. (A statement on file from other DVSA officers reported the outcome of a later search of the detained vehicle: no such authorisation could be found);

• Mark Lyons had emailed TE Ferrie on 3 September 2020 at 13:55 hours and again at 15:49 hours.

4.3 Proof of the ground claimed:

The claimant relied on Ground (a) –

that at the time the vehicle was detained, the user of the vehicle held a valid licence (whether or not authorising the use of the vehicle).

For the claimant to succeed it was necessary for it to prove the ground on the balance of probabilities. Mr Clarke called Mark Lyons to give evidence and to answer questions.

Mr Lyons denied that Driver O’Doherty was employed by MJL Ltd. Asked why the driver might have said that he was, Mr Lyons offered that he could have seen it on the side of the vehicle. He asserted instead that the driver worked for Bulk Trans Ltd. He maintained that the user of the vehicle on the day was Bulk Trans Ltd.

He asserted that he did not direct the operations of Bulk Trans Ltd, and that he did not know what work they did, nor what they were doing on that day.

Mr Stewardson put it to Mr Lyons that whilst he suggested he had no knowledge of the activities of Bulk Trans Ltd, his actions and his insistence on the day suggested that this was not the case. In response Mr Lyons denied being involved.

Questioned by me, he claimed that his possession of the community authorisation of Bulk Trans Ltd was a reflection of his concern as lessor of the vehicle to that company, to ensure that the lessee had appropriate cover for its use.

I asked him how Dean Lyons (whom it transpired was his son) had become involved and how (as described in TE Ferrie’s statement) he had come to indicate to his father the purported whereabouts of the necessary community authority said to be in the vehicle cab. Mr Lyons prevaricated in answering. Asked what Dean’s job was, he first replied “being his son”. I considered he was probably dissembling about the true position, so I pressed him. Mark Lyons then declared that he had never seen a copy of TE Ferrie’s written statement, in which Dean was mentioned as the source concerned with the whereabouts of the authorisation.

At this point, Mr Clarke asked for a short adjournment to speak with his client, which I granted.

On his return, Mr Clarke addressed me making four points, which his client confirmed as representing his position:

1. He confirmed that his client had in fact seen TE Ferrie’s statement. He reconfirmed that Mr Lyons did not dispute its contents;
2. He declared that Dean Lyons was and is a director of Bulk Trans Ltd;
3. He told me that in that role he (Dean) would have put the authorisation into the vehicle, when his company took it over;
4. His client (Mark) accepted that he “fell into error” in what he said in evidence before the short adjournment.

He apologised to me for his lack of transparency in his answers. He said he could only explain it in terms of his fear about the loss of the vehicle.

I put it to him that his involvement with TE Ferrie on the day was much greater than one would have expected for someone who claimed that the predicament in which the driver O’Doherty found himself was not a matter for him and his company MJL Ltd, but instead for Bulk Trans Ltd. In response he claimed that Driver O’Doherty had already rung his son before he became involved. That he was simply being “helpful” since his son was only 21. He said he had a close father-son relationship in which he was often asked for help.

5. Submissions

Mr Stewardson for DVSA, invited me to focus on the conduct of the parties on the day in question in determining the identity of the user of the vehicle. He reminded me that its driver said he was employed by MJL. He described Mark Lyons’ conduct as betraying his stated position that he had nothing to do with Bulk Trans Ltd, through his heavy involvement that day.

Mr Clarke for the claimant argued that I should accept the evidence of Mark Lyons that this was simply a case where the wrong community authorisation was in the vehicle. This was resolved by way of a son turning to his father for advice and being assisted by his father. He contended that I should not infer that the use on the day was other than by Bulk Trans Ltd, purely as a result of Mark Lyons making the contact with a DVSA officer that he already knew. He invited me to accept that the lease documentation for the vehicle should be taken at face value – a vehicle owned and insured by the father but operated by the son under a lease. This was not “a licence lending case” and on the balance of probabilities Bulk Trans Ltd was its user.

On this basis he asked me to find that Ground (a) had been proved on the balance of probabilities, that is, that at the material time, the user, Bulk Trans Ltd, was the holder of an operator’s licence issued by the Bulgarian authorities.

In fairness to the claimant, I indicated to Mr Clarke that my reading of Ground (a), that is, the provision contained in Regulation 4 (3) (a) of the Goods Vehicles (Enforcement Powers) Regulations 2001, as amended by the Goods Vehicles (Enforcement Powers) (Amendment) Regulations 2009, differed from his.

In response, he argued that a reading of it in a manner that restricted the meaning of “held a valid licence” as being an exclusive reference to an operator’s licence granted by a Traffic Commissioner in the UK, could not be right. He contended that in a Europe-wide scheme, it must be construed as a reference to a licence issued in any EC state. He contended that fairness demanded that a wider reading was necessary to cover operators with licences granted in other EC countries.

He acknowledged however that my reading of the provision aligned with that of my colleague, DTC Harrington in her decision contained in the brief. That was in fact in a matter concerning the same claimant in an impounding, MJL Limited Eood v DVSA in September 2018, which had been included in the brief for the hearing by DVSA.

He conceded that there was no Upper Tribunal authority on the point. The newly published updated guidance contained in the Upper Tribunal Digest, reported about what it termed as Ground 1, that:

There have been no decisions on appeals under this ground. This may not be surprising because an application under this ground immediately draws attention to the fact that the holder of an operator’s licence has been using an unauthorised vehicle thus enabling the TC to decide whether or not to take regulatory action against the holder of the licence.

6. Findings

The first decision I am required to make concerns a finding whether the claimant has satisfied me on the balance of probabilities that Bulk Trans Ltd was the user of the vehicle at the time it was detained.

The undisputed evidence in the statement of TE Ferrie, upon which DVSA acted, was based on the production by the driver of documents in the name of MJL Ltd, including what appeared to be a valid community authorisation in that name. There was further evidence in support of MJL Ltd being the user, when in the interview under caution of Driver O’Doherty, he told TE Ferrie that he was employed by and was driving for MJL Ltd. I accepted her unchallenged evidence as coherent and credible.

On the other hand, Mark Lyons asserted that Driver O’Doherty was mistaken about the nature of his employment. He had engaged with DVSA on the day on behalf of his son and had produced a valid community authorisation in the name of Bulk Trans Ltd.

Mark Lyons’ was the only oral evidence that I heard. My assessment of his credibility was affected by the answers he gave to me, as I sought to clarify what he was telling me, in particular when I put questions to him about what happened on the day. I found his initial responses were disingenuous, that is, that he was pretending that he knew less about matters than was truly the case. When finding it difficult to explain his involvement, he resorted to making a statement that he knew was false, that he had never seen the statement of TE Ferrie. Whilst he subsequently “held his hands up” to what he had done, after having taken some legal advice, his credibility had been seriously undermined. He had only then revealed that his son, Dean, was a director of Bulk Trans Ltd, and far from the evidence he had initially given that the activities of Bulk Trans Ltd were a matter for that business, not for him, I found this was not the case.

I noted that Driver O’Doherty was not called to give evidence, nor was Dean Lyons, or any other officer of Bulk Trans Ltd called before me, as they might have been. There was none of the delivery or loading documentation produced in satisfaction of the strict cabotage requirements, which might have named the user of the vehicle.

Having weighed the conflicting evidence before me, I find that the claimant has not satisfied me that it is more likely than not that Bulk Trans Ltd was the user of the vehicle. Whilst I can well understand that a father might be asked to assist his son in dealing with officialdom, when he is inexperienced himself, I cannot understand why there would be any need to conceal that assistance if it were innocent. I consider that it is more likely than not that the facts here are as represented by DVSA. That is, a vehicle being operated by a driver reporting he was employed by MJL Ltd. Documentation in the vehicle which referred only to MJL Ltd and to no other operator. All contact during the initial impounding process being with the director of MJL Ltd.

MJL Ltd is not the holder of a valid operator’s licence either in the UK, or, for that matter, in Bulgaria. It has not been argued that the vehicle is specified on any other UK licence. Ground (a) is not available to the claimant where MJL Ltd is the user.

It follows that the claim of the return of the vehicle fails, as I am not satisfied that the ground claimed has been proven on the balance of probabilities.

In the event that I am wrong (which I do not accept) in my finding that Bulk Trans Ltd has not been shown on balance to have been the user, I set out briefly below the reasons for my conclusion that Ground (a) would not have been available to the claimant anyway (if Bulk Trans Ltd had been). I acknowledge that this reasoning draws very heavily upon the approach of DTC Harrington in the decision referred to above, whose careful analysis, I agree with and adopt.

Section 2 of the Act sets out that, unless permitted to do so under an exemption, it is unlawful in Great Britain to use a goods vehicle on a road, for the carriage of goods, either for hire or reward or for or in connection with any trade or business carried on by the user of the vehicle, without holding an operator’s licence.

It follows therefore, that where DVSA has reason to believe a vehicle is being used for hire and reward by a company registered in in another EC country (say Bulgaria), it will need to consider first the following possibilities:

a) Whether that user holds an operator’s licence issued by a Traffic Commissioner under the provisions of the Act in Great Britain;

b) Whether the vehicle is specified on any goods vehicle operator’s licence issued by a Traffic Commissioner in Great Britain.

If that were not the case, it would need to consider whether any of the several other exemptions is applicable. The two most likely to be applicable being:

c) Whether the user is engaged in international carriage by a haulier established in another member state (not the UK), in accordance with Section 2 (2) (b) of the Act. International carriage being defined by the relevant EU regulation as being “a laden journey undertaken by vehicle the point of departure and the point of arrival of which are into different member states, with or without transit through one or more member states, or non-member countries; or

d) Whether the user is engaged in lawful cabotage operations in accordance with the EC regulations. Article 8(2) of Regulation (EC) No 1072/2009 defines the extent to which non-resident carriers from other Member States are permitted to operate national road haulage services. Since 14 May 2010 this has been limited to three such operations within seven days following entry to the relevant Member State. The 2009 regulations require the haulier to produce clear evidence of the incoming international carriage and each of the consecutive cabotage operations. That evidence must be kept in the vehicle and made available for inspection at any roadside check.

In the event that an impounding were to take place in circumstances of a) and b) in paragraph 53, despite the user holding a GB operator’s licence, or the vehicle being specified on a GB operator’s licence, an avenue for return of the vehicle would, on the face of things, be available to them under Ground (a).

Further, in the event that an impounding were to take place in circumstances of c) or d) in paragraph 53, despite the journey being within the described terms for international carriage, or constituting a lawful cabotage operation complying with all the requirements, an avenue for return of the vehicle would be available to them under Ground (b), since there would not have been any breach of Section 2.

It follows that the need for a claimant with an operator’s licence held elsewhere in the EC to substantiate his claim to return of a vehicle, in circumstances where there has been compliant operation within the UK of an impounded vehicle would not arise. Therefore, it would be unnecessary for Ground (a) to be read in the manner that Mr Clarke contends.

Simon Evans

Deputy Traffic Commissioner

for the North West of England

28 October 2020