Decision

Written decision for Mark Edward Howl (OD0263642), K J Hudson Machinery Services Ltd (OD2025063) and MJA Transport Ltd (OD2031185)

Published 16 November 2020

In the West Midlands Traffic Area.

Decision of the Traffic Commissioner.

Conjoined Public Inquiry held in Birmingham on 27 August and 20 October 2020.

Operator: Mark Edward Howl (OD0263642)

Operator: K J Hudson Machinery Services Ltd (OD2025063)

Applicant: MJA Transport Ltd (OD2031185)

1. Decisions

The standard national goods vehicle operator’s licence OD0263642 held by Mark Edward Howl is revoked with effect from 0001 hours on 29 November 2020, pursuant to Section 26(1)(c)(iii), (f) and (h) and Section 27(1)(a) and (b) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

Paul Taylor has lost his good repute as a transport manager, pursuant to schedule 3 paragraph 1 of the 1995 Act. Under paragraph 16(2) of that schedule, he is disqualified indefinitely from acting as a transport manager on any operator’s licence. If he wishes to act as a transport manager again he must first retake and pass the transport manager CPC examination

The application made by MJA Transport Ltd for a goods vehicles operator licence for four vehicles and three trailers is refused, pursuant to Section 13B of the 1995 Act.

The standard national goods vehicle operator’s licence OD2025603 held by K J Hudson Machinery Services Ltd is revoked with effect from 0001 hours on 29 November 2020, pursuant to Section 26(1)(c)(iii), (f) and (h) and Section 27(1)(a) and (b) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

K J Hudson Machinery Services Ltd and Claire Dey are disqualified for three years, from 29 November 2020 until 29 November 2023, from holding or obtaining any type of operator’s licence in any traffic area and (in Ms Dey’s case) from being the director of any company holding or obtaining such a licence, pursuant to section 28 (1), (4) and (5) of the 1995 Act.

Claire Dey was the initial transport manager on the licence of K J Hudson Machinery Services Ltd. She was called to the August 2020 inquiry in her capacity as transport manager, as well as the director of the company.

For the same reasons set out in paragraph 31 of my decision re K J Hudson Machinery Services Ltd, I find that Claire Dey’s good repute as a transport manager is lost, pursuant to paragraph 1 (b) of Schedule 3 to the Goods Vehicles (Licensing of Operators) Act 1995. I am imposing the same disqualification period as a transport manager – three years – as Ms Dey has been disqualified from holding an operator’s licence, as it would make little sense for someone deemed unfit to hold a licence to be able to act as a transport manager. The disqualification, pursuant to paragraph 16 of Schedule 3, takes immediate effect and has effect until 1 November 2023.

2. Background

2.1 Mark Edward Howl: operator details

Mark Edward Howl holds a standard national goods vehicles operator’s licence for two vehicles and two trailers. The licence was granted in 1998. The nominated transport manager on the licence is Paul Taylor.

In 2011 Mark Howl agreed to an undertaking whereby an independent compliance audit would be carried out every six months. Following a failure to provide such an audit or to respond to chasing letters, “propose to revoke” proceedings were commenced in late 2017. In response to these Mark Howl’s son Matthew Howl got in touch to say that his father had been ill and had buried his head in the sand. He (Matthew Howl) had been helping to run the business. On behalf of Mark Howl, Matthew Howl attended a meeting with Andy Booth, my senior team leader, in December 2017. They discussed the operating entity and Mr Booth advised Matthew Howl to make a fresh application, either in his own name as a sole trader, or in the name of a company, as soon as possible. Shortly afterwards, Matthew Howl contacted Mr Booth to say that he had set up a new company, MJA Transport Ltd and would be putting in an application. The directors of the company were Matthew Howl and Mark Howl. In the event, however, MJA Transport Ltd did not make an application until 26 November 2019.

MJA Transport Ltd came to my attention on 21 November 2019 at a public inquiry into an application by K J Hudson Machinery Services Ltd (“KJHMSL”). This company had had its licence revoked in November 2018 after a public inquiry had found AdBlue fraud and a very high level of roadworthiness prohibitions. The then director, Kenneth Hudson, was disqualified from holding a licence for three years. During the inquiry into the company’s fresh application (it now had a new director and majority shareholder, Claire Dey), the company presented evidence of how its transport had been provided since the revocation of the licence. One of the main pieces of evidence presented was a letter dated 4 November 2019 from a Matthew Howl of MJA Transport Ltd stating that “I write to confirm that MJA Transport have been receiving subcontracting work from Miss Claire Dey of K J Hudson Machinery Services Ltd.”

Although I was satisfied, on the balance of probability, that KJHMSL had contracted out its transport requirements rather than continued to operate HGVs without a licence, the letter did raise the issue that MJA Transport Ltd appeared to be operating under Mark Howl’s sole trader licence. I granted the application from KJHMSL, with the undertaking that Kenneth Hudson would have nothing to do with the business in any capacity. Meanwhile, my senior team leader Andy Booth contacted Matthew Howl to warn him that MJA Transport Ltd must make an application immediately.

MJA Transport Ltd made its application on 26 November 2019, with Paul Taylor as the prospective transport manager. That application was eventually refused owing to the company’s failure to provide further information requested by the central licensing office in Leeds. In February 2020 Matthew Howl spoke to my office about the possibility of making an appeal against the refusal or making a new application. In the course of that conversation the issue of MJA Transport’s work for KJHMSL was raised: Matthew Howl denied having ever seen, still less signed, the letter dated 4 November 2019 that Claire Dey had produced at the 21 November 2019 public inquiry. Matthew Howl stated that the signature was different to his own and that the real MJA Transport Ltd letterhead was different from the one which appeared on the 4 November 2019 letter.

At this point I decided to call both the new application by MJA Transport Ltd (received on 4 March 2020) and the existing licence of KJHMSL to a public inquiry. Because of the Covid-19 crisis, this could not be held until 27 August 2020.

Parallel with these events, I held a public inquiry on 28 January 2020 into licence OD2018791 held by David John Price (transport manager: Claire Dey). I revoked this licence because I found it was a front for continued operations by Kenneth Hudson, who was still disqualified from holding a licence. I also removed Claire Dey’s repute on the grounds that she had worked for David Price without a contract (indeed without any salary) despite signing the TM1 application form to explicitly confirm that she had such a contract; that she must have known that the disqualified Ken Hudson not David Price was the real power behind the operation; that she failed to carry out the required downloads from the vehicle tachograph units; that she failed to ensure that defects identified by the maintenance provider were rectified in a timely way; that she failed to ensure that loads were properly secured by drivers. However, I concluded that, as a relatively newly-qualified transport manager, she had been manipulated by the rogues Ken Hudson and David Price. Although there were significant gaps in her knowledge I believed that these could be rectified by attendance at a two-day transport manager CPC refresher course. I said that she could apply to be nominated as a transport manager again once she has attended such a course. She attended such a course on 19 and 20 February 2020. Shortly afterwards, K J Hudson Machinery Services Ltd nominated Alan Cooper as transport manager (in place of Claire Dey who had been removed following loss of her good repute). The company also applied for an increase from three vehicles to six. I decided to consider all these issues at the conjoined public inquiry.

The public inquiry was held in Birmingham on 27 August 2020. Present were Mark Howl, Matthew Howl, Paul Taylor, Claire Dey and James Backhouse, solicitor, representing KJHMSL. I attended via video link, as I was in quarantine after being caught in France when new restrictions on travellers from France were imposed.

2.2 Evidence of Matthew Howl

Matthew Howl confirmed his statement that he had not signed the letter of 4 November 2019 to KJHMSL and that it was not on his company’s letter-headed paper. He stated that he had never met Claire Dey: he always dealt with Ken Hudson whom he had seen on numerous occasions in 2019. He had not been aware that Mr Hudson was disqualified from holding an operator’s licence. He had transported goods on several occasions for KJHMSL in 2019: KJHMSL had also frequently transported goods for MJA Transport throughout 2019 (relevant invoices were produced in support of this statement).

2.3 Evidence of Paul Taylor

Mr Taylor accepted that he had been ignorant of the operating entity issue until he had attended a transport manager CPC refresher course in January 2020. He did not have a contract in his role as the transport manager on Mark Howl’s licence. He was not paid any financial sum for acting as transport manager: Matthew Howl helped out with maintenance on Mr Taylor’s own HGVs from time to time (Mr Taylor also had his own sole trader licence), as recompense for the transport manager role. I asked Mr Taylor some questions about missing mileage reports, roller brake testing and stretched safety inspection frequencies: Mr Taylor was unable to reply directly, turning to Matthew Howl for the answers. He did not give me the impression that he was exercising effective management of the transport activities of the Mark Howl/MJA Transport Ltd business: quite the opposite in fact.

2.4 Evidence of Claire Dey

Ms Dey stated that, contrary to what Matthew Howl had told me, she had met him three times, once on 4 November 2019 when he had signed the sub-contracting agreement. Ken Hudson was not involved in the business: she hardly ever saw him. This statement was challenged by Mark and Matthew Howl who stated that they had seen Ken Hudson’s car at KJHMSL’s premises earlier that day.

2.5 Adjournment and resumption of the inquiry

At this point I adjourned the inquiry in order to make a written decision. In the course of preparing this I realised that Mr Backhouse and Claire Dey had had no advance notice of the invoices throughout 2019 from KJHMSL to MJA Transport Ltd (submitted by Matthew Howl shortly before the inquiry). Because I was contemplating making an adverse finding from these invoices – which showed that KJHMSL had been offering and carrying out transport services at a time when its licence had been revoked - I asked my clerk to provide Mr Backhouse and Claire Dey with copies and request their comments. From the reply received from Laura Hadzik of Backhouse Jones it became clear that it would be necessary to resume the inquiry.

The inquiry duly resumed in Birmingham on 20 October 2020. Present were Claire Dey, Laura Hadzik (representing K J Hudson Machinery Services in the absence of James Backhouse, now self-isolating) and Matthew Howl.

On behalf of her client Ms Hadzik made the following points:

• Ms Dey had not been aware of the invoices presented by Matthew Howl or of the transport jobs to which they referred;

• the email address and the mobile phone numbers on the invoices were not those of the company but personal to Ken Hudson;

• KJHMSL had not been in possession of any HGVs in 2019, acquiring vehicles from David Price only in early 2020 some weeks after the new operator’s licence had been granted;

Matthew Howl explained that the transport jobs carried out by KJHMSL for MJA Transport Ltd in 2019 had involved the use of low-loaders and vehicles with cranes, types which MJA did not possess. He accepted that he had not paid the invoices (nor had KJHMSL paid the invoices in the opposite direction) because by the time he had received the statement of account in December 2019 and the suggestion from “Pat” at KJHMSL that payments in both directions now be made, he had become embroiled in the situation in which that company had forged a document (the letter of 4 November 2019) purporting to come from MJA.

Mr Howl also stated that he had seen Ken Hudson driving a KJHMSL vehicle around ten days previously. This was accepted by Ms Dey who said that she had paid him to deliver a vehicle to the maintainers.

I asked Ms Dey how KJHMSL had paid David Price for the two vehicles BU56 DFK and YJ09 EOD which had been on his licence (and which had previously been on the previous licence of KJHMSL at the time its licence had been revoked in 2018). Ms Dey said that the company had paid cash for the vehicles.

Concluding, Ms Hadzik stated that the compliance picture for KJHMSL was now generally positive. The company was complying with its undertakings. There was no evidence that Ms Dey had been involved with or had any knowledge of the transport jobs supposedly carried out by KJHMSL for MJA. It was more likely that that Ken Hudson had been carrying out the transport on the licence of David Price, using invoices adapted from KJHMSL paper. Matthew Howl’s evidence had been inconsistent and unreliable. He had made very serious allegations but the evidence in support of these allegations was minimal.

3. Consideration

3.1 Mark Howl’s operator licence

It is clear that Mark Howl has not been operating in his capacity as a sole trader for a considerable time. What was his business has been carried out since early 2018 by MJA Transport Ltd (and for a period before that by Mark’s son Matthew Howl). Nor has Mark Howl’s licence had the necessary professional competence, as he had no contract with his transport manager Paul Taylor and no financial payment has ever been made to Mr Taylor for his services. The Upper Tribunal has made it clear in its decision T/2015/40 Tacsi Gwynedd that specific legal ties between operator and transport manager are required and that “voluntary” transport managers are not acceptable.

3.2 Paul Taylor’s repute

Mr Taylor seems to have been completely unaware that it was not acceptable for Matthew Howl to be, effectively, running his father’s licence or that, once MJA Transport Ltd had been incorporated and had started running vehicles in early 2019, it needed to do so under its own licence, not Mark Howl’s. There was no contract nor therefore any genuine link between him and Mark Howl. He was not aware of the meeting between Matthew Howl and my senior team leader Mr Booth nor aware of its outcome. Many of the issues thrown up by the most recent audit seem to have come as a surprise to him. I find that Paul Taylor was not exercising the required continuous and effective management of the licence. By putting his name as transport manager on this licence without performing the duties of a transport manager he has effectively allowed the business to be carried on with the appearance but not the reality of professional competence. Although he attended a refresher course in early 2020 and learnt about entities, that knowledge does not appear to have jolted him into any action to stop MJA Transport Ltd’s operations pending consideration of its application. I find, in the light of the above considerations, that Paul Taylor has lost his repute as transport manager.

3.3 K J Hudson Machinery Services Ltd

It is depressing that diametrically opposed, and contradictory, accounts have been offered by Matthew Howl and Claire Dey. One of them is not telling the truth. On the balance of probability, I prefer the account of Matthew Howl. This is because:

• he has no motive to claim that the letter of 4 November 2019 is a fake if it were in fact real. He has already accepted that MJA Transport Ltd has been operating using Mark Howl’s licence;

• he has offered the more concrete evidence that the letter is fake, by showing that his signature and company letterhead are different from those on the 4 November letter;

• invoices provided by Matthew Howl suggest that K J Hudson Machinery Services Ltd was in fact operating vehicles during the period its licence was revoked. The bank account details and VAT number on the invoices are those of KJHMSL. The statement was annotated by a manuscript message from Pat, who is an employee of KJHMSL.

• Claire Dey said she had nothing to do with Ken Hudson these days but later agreed that she had used him to drive a vehicle on one occasion;

• Claire Dey has a track record of misleading me with regard to her connection and involvement with Ken Hudson: that is why I removed her good repute as transport manager.

I accept Ms Hadzik’s contention that Matthew Howl has at times contradicted himself or been confused in his oral evidence. However, the reasons for preferring his account listed above are based on more concrete evidence than just his account.

I recall that at the January 2020 inquiry into his licence, David Price could not produce any evidence that he had actually paid KJHMSL for the vehicles on his licence, even though he claimed that he owned them. Similarly, KJHMSL can produce no evidence that it has paid David Price for them since, although it claims that the vehicles were under his ownership and control throughout 2019. I find that the KJHMSL invoices provided by Matthew Howl make it quite clear that the de facto operator of these vehicles throughout was KJHMSL and Ken Hudson.

Had I known at the inquiry of 21 November 2019 that the 4 November 2019 letter was a forgery and that, far from MJA Transport Ltd having acted as a sub-contractor for KJHMSL during its period of disqualification, the opposite had in fact frequently been the case (KJHMSL having carried goods for Matthew Howl), I would never have granted the application from KJHMSL. I find that the company has seriously and knowingly misled me.

I also find that the company has failed to fulfil its undertaking that Ken Hudson should not be involved in any capacity. His employment as a driver (even if that was a one-off occasion as Claire Dey states) is a strict breach of this undertaking.

The good repute of KJHMSL cannot survive my finding that it misled me at the November 2019 inquiry.

4. Decisions

Given that Mark Howl has not been the de facto operator of his licence for at least three years and, since there was no contract with Paul Taylor, he has not had professional competence, I am revoking his licence with effect from 0001 hours on 29 November 2020, pursuant to Section 26(1)(h) and 27(1)(a) and (b) of the 1995 Act.

Since I have found that Paul Taylor lacks good repute, I must also disqualify him from acting as a transport manager under any licence (Schedule 3, paragraph 16 of the 1995 Act). I concluded from the inquiry that Mr Taylor lacks much of the required knowledge of a modern-day transport manager (his qualification dates from 1994). I am therefore disqualifying him for an unlimited period, but he may re-establish his good repute by taking and passing the transport manager CPC examination.

As the application from MJA Transport Ltd no longer has associated with it a prospective transport manager of good repute, I am refusing the application under Section 13A(3) of the 1995 Act. If the company wishes any new application to be considered favourably it must nominate an acceptable transport manager, Matthew Howl should first attend an operator licence management course and the company must show that its vehicles have not operated in the meantime.

I have found that K J Hudson Machinery Services Ltd is not of good repute (Section 27(1)(a) refers); revocation of the licence is therefore mandatory. I am revoking the licence with effect from 0001 hours on 29 November 2020. Having decided to revoke the licence, it follows that the company’s application for an increase in vehicles falls.

4.1 Disqualification

I have considered whether to disqualify director Claire Dey from holding or obtaining an operator’s licence in future, and from being the director of any company holding or obtaining such a licence. In January 2020 I gave her something of the benefit of the doubt, believing that she had been to some extent taken advantage of by Ken Hudson and David Price. In retrospect, I feel that it is me, not she, who has been naïve. I have concluded in this decision that Claire Dey knew perfectly well that the evidence she presented to me on 21 November 2019 to the effect that MJA Transport Ltd had been “receiving contracting work” from K J Hudson was a false document. As director of the company, she must have known about the invoices issued by KJHMSL in 2019 to MJA Transport Ltd for transport services rendered. Any trust I have had in her has been completely destroyed at this inquiry. I conclude that she should be disqualified under Section 28 of the 1995 Act from holding a licence. In deciding upon the length of the disqualification I have taken account of paragraph 100 of the Senior Traffic Commissioner’s Statutory Guidance Document 10. This posits a starting point of between one and three years for a first public inquiry. This is actually Claire Dey’s third inquiry, although each has essentially focused on the same issue. I am therefore treating it as a first inquiry, albeit one where the seriousness of the deception involved (essentially allowing the continuation of operations by someone disqualified from doing so) justifies a disqualification period at the upper end of this scale – three years. I am disqualifying both Ms Dey and KJHMSL from holding an operator’s licence until 29 November 2023.

Nicholas Denton

Traffic Commissioner

29 October 2020