Decision for by MDH Readymix Ltd (OC2061821)
Written decision of the Traffic Commissioner for the North West of England for MDH Readymix Ltd
IN THE NORTH WEST TRAFFIC AREA
MDH READYMIX LTD – OC2061821
WRITTEN DECISION OF THE TRAFFIC COMMISSIONER
PUBLIC INQUIRY HELD IN GOLBORNE ON 22 MAY 2025
DECISION:
This application for a Restricted HGV Operator’s licence is refused as the applicant has failed to satisfy the requirements of Section 13B & 13D of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”)
This is an application for a Restricted Goods Vehicle Operator’s licence, by MDH Readymix Ltd (“Readymix”) seeking authorisation for 12 vehicles and 2 trailers. As with all applications, the burden lies with the applicant to satisfy the Traffic Commissioner that they meet all statutory requirements in order to obtain a licence.
Background
At the time of writing Mr. David Paul Horton and Mr. David Dodgson are listed as the Directors on the application for the Operator’s licence, although Companies House lists Mrs. Michelle Clair Horton as the sole Director.
The application was originally created in December 2022 but was held in abeyance pending an investigation by the Insolvency Service into MDH Services Group Ltd (“Services Group”).
Services Group held Operator’s licence OC2008843, with Mr. David Horton and Mrs. Michelle Horton as statutory Directors. It was subject to an order of compulsory liquidation. The commencement of winding up was dated 30 November 2022. Mr. and Mrs. Horton had both previously resigned as Directors of Services Group (on 02 February 2022) and were replaced by an Alexander McDowell. Mr. Horton failed to declare on the application for Readymix that he had been involved in a company that has gone into liquidation.
The Insolvency Service investigation resulted in Mr. Horton accepting a disqualification undertaking by the Secretary of State on 20 January 2025 for three and a half years. This disqualification came into effect on 10 February 2025. No action was taken in regard to Mrs. Horton.
The notice of application for Readymix’s Operator licence was published on 01/12/2022, which was the day after the court order to wind up MDH Services Group Ltd was issued. On the date of the application a request was made for an interim licence, stating:-
“MDH Readymix has seen the number of customers wishing for us to deliver to them with our own fleet rise. This will make us more customer focused by allowing us to be in control of not only producing the materials but delivering them too most of our customers want their deliveries in the morning and being that we need barrel drum mixers they are getting harder to find sub-contractors with these. An interim licence will allow us to secure future demand from our existing customers and allow us to continue to invest and succeed in the future of the business.”
This makes no reference to the situation regarding Services Group. Due to concerns with the linked company, that interim application was refused. To date, no vehicles have been specified on the Readymix application. In May and September 2022, vehicles EY12YFW and MX12AEU were removed from licence OC2008843, using Mr Horton’s user account – noting that Mr Horton resigned as Director in February 2022.
Both these vehicles were moved to licence OC1071532 on 05 January 2023, which is a Sole Trader Licence held in the name Michelle Clair Horton.
A surrender application for Services Group was submitted, signed by Mr Horton on 23 November 2022. The surrender request was refused as Mr Horton was not listed as a Director of the Company.
In a letter dated 08 February 2023, Mr Horton explained that the reason VOL was still being accessed under his user account was “The new Director would from time to time ask me to add or remove vehicles from the licence as I could not hand them over my login details. I repeatedly asked that they request their own login details and make amendments to the Director’s name on the licence, they kept telling me they would. I would log on to check from time to time and saw they had not so I made them aware that if they did not do this, I would surrender the licence as it wasn’t correct that my name was still on the licence.”
This office proposed to refuse the application by way of a letter dated 06 March 2023, and a Public Inquiry was requested. That was listed for 19 June 2023 to consider the application, however, due to ongoing insolvency investigations into Services Group the Public Inquiry was adjourned.
As a result the application was held in abeyance. On 13 February 2025, following the conclusion of the Insolvency Service investigation, the licence was again proposed to be refused. The applicant requested a Public Inquiry through correspondence from Beverley Bell Consulting Ltd.
It is noted that Mrs. Horton was appointed as Director, on Companies House, for MDH Readymix Ltd on 05 February 2025. This was not notified to the Office of the Traffic Commissioner. Five days following Mrs. Horton’s appointment, Mr. Horton resigned as Director, again the Office of the Traffic Commissioner was not notified of this change.
Subsequent to this, Mr. David Dodgson also resigned as a Director from the applicant company. This change was reflected on Companies House, but not notified to the Office of the Traffic Commissioner.
Pre-Hearing
The letter calling the applicant to a Public Inquiry was issued on 19 March 2025 and it included a number of case management directions to be complied with. This was sent by both recorded post and by email. Case management directions included the requirement to notify this office of attendance, and whether the applicant would be represented. It asked for provision of bank statements to ensure financial requirements for the application were met. The deadline for the case management directions to be complied with was 08 May 2025. The case management directions were not complied with.
A further email, dated 13 May 2025, was issued by way of a courtesy follow up to the call-up letter. As before, no response was received.
On 21 May 2025, the day before the scheduled Hearing, this office received an email from Beverley Bell Consulting Ltd seeking an update on the request for a Public Inquiry. Having been informed that it was scheduled for the following day an urgent application for an adjournment was made on the basis that the applicant had not received notification. The adjournment request also referred to a failure to notify Beverley Bell Consulting as per a commitment offered by a member of staff within the Hearing Centre . Due to the nature of the work of a Traffic Commissioner I did not receive the adjournment request until the morning of the Hearing. I prioritised this and provided an urgent response refusing the request for an adjournment and setting out the reasons for that refusal as follows:
“The calling-in letter was issued on 19 March 2025, and sent by recorded delivery. I have sight of the Post Office tracking record which shows the calling-in letter was received and signed for on 20 March 2025. In addition, the calling- in letter was also issued by email dated 19 March 2025 (at 11:17am) to the single registered email address for the application – [Redacted].
I have regard to the Upper Tribunal guidance in Ocean King Limited 2024 which reaffirms the previous decision of Instant Freight 2010;
It is an established principle, that the operator licencing regime relies on trust. One important aspect of that trust is that the Traffic Commissioner must be able to rely on an operator having in place:
(a) an address at which he can reliably receive important correspondence, (whether it be from the DVSA, the Office of the Traffic Commissioner, the Central Licensing Office or any other significant source), and,
(b) a system which ensures that correspondence is fully answered, within any time limit which has been set, or else within a reasonable time and that if documents are requested that they are sent.
(see paragraph 6 of the Upper Tribunal decision of T/2010/056 Mohammad Islam trading as Instant Freight).
In addition, I have regard to the guidance offered by the Senior Traffic Commissioner at paragraph 131 of Statutory Document 4 which states
A traffic commissioner must be satisfied that, on the balance of probabilities, an operator has received relevant correspondence. Whilst further evidence that a notice has been received might be obtained from the postal system, it is not a requirement. As with the courts and tribunals, where correspondence has been sent to the specified address (below) this will be considered good service, unless shown to the contrary. The following means will be deemed to be good service: (this includes for a Public Inquiry) - letters Recorded delivery to correspondence address & Electronically via Vehicle Operator Licensing self-service or email
Whilst I note the representations… [Redacted]… this is, I conclude, different to being the registered legal representative.
More importantly, the onus is on the applicant to have regard to the communications. I take note of the current position with this application, and I am minded to find that the failure to react to the calling in letter is consistent with the management of the licence application in recent times.
The application on the Vehicle Operator Licensing system, reference OC2061821, is in the name of MDH Readymix Ltd. The named directors on that application where, and remain, Mr David Horton and Mr David Dodgson. The application was commenced in December 2022. Due to a concern raised with a joint director at that time, Mr David Horton, the application was not granted - eventually leading to this public inquiry scheduled for later today at 2pm. Since that time both Mr Horton and Mr Dodgson have been removed as directors on Companies House and replaced by a single Director Mrs Michelle Clair Horton. It is my understanding that these changes have not been notified to this office, certainly the VOL system has never been updated by the applicant. There is a single user account for the applicant’s Self-Service Administration function on VOL. This was created on 05 December 2022 with a “last login” recorded (as at today, 22 May 2025) as 13 September 2023.
In summary, I find that good service has been provided, and that the responsibility for receiving and responding to the calling in letter lies with the applicant and not Beverley Bell Consulting Limited. The request for an adjournment is made within 24 hours of the hearing for which valuable time and resource have been made available. The application for adjournment would have the requirement of proving to me that the letter was not received. I appreciate that this requires the applicant to prove a negative, but in the absence of any such evidence, and on consideration of the facts above, I refuse this very late request for adjournment”.
Public Inquiry
The Public Inquiry took place on Thursday 22 May 2025 at the Golborne Hearing Centre. The applicant company failed to attend. I therefore make the following decision based on the best available evidence before me.
Summary of Evidence
Fitness
On application the burden lies with the applicant to satisfy me that all statutory requirements are met. In the case of this application, the initial concern related to the links with the licence which had been subject to a winding up order (Services Group). Mr. Horton was subsequently subject to a disqualification undertaking from 20 January 2025 for a period of three and a half years. This office is right to inquire as to whether this new application was a phoenix application or a front for the previous.
Subsequently Mr. Horton resigned as a Director and Mrs. Horton was appointed. These changes were not made to the application. Later Mr. Dodgson resigned as a Director. That change was also not notified to this office. In order that I consider an application for a Restricted licence the applicant must satisfy me that it, and its statutory Directors are fit to obtain that licence.
I have regard to 2013/007 Redsky Wholsalers Ltd, where the Upper Tribunal touches on the question of fitness
In the absence of argument…we draw back from holding that the “Priority Freight” approach is a requirement when considering the question of fitness…
BUT is very likely to be relevant to fitness in most cases. We do not think that fitness is a significantly lower hurdle than the requirement to be of good repute
The Senior Traffic Commissioner reminds us, at paragraph 21 of Statutory Document 5 that:
“Traffic Commissioners are required to have regard to the previous conduct of a company or any of its officers, servants or agents, so long as it relates to fitness to hold a licence. The Upper Tribunal has indicated that where the corporate entity is, in effect, an extension of an individual including director(s), the ‘corporate veil’ can be lifted so that the individual cannot hide behind limited liability status to reveal the reality of the structure and operation of the transport undertaking. The Upper Tribunal has now clarified that there is no blanket bar to piercing the corporate veil for the purposes of inquiring into who is or might be the controlling mind of an incorporated applicant in the event of certain wrongdoing or impropriety”.
The applicant has denied me the opportunity to make these inquiries and therefore has denied itself the opportunity to satisfy me that the statutory requirement to be “not unfit” is met.
Finances
Section 13D requires that the provision of the facilities and arrangements for maintaining the vehicles in a fit and serviceable condition is not prejudiced by reason of the applicant’s having insufficient financial resources for that purpose.
For a Restricted licence seeking authorisation for 12 vehicles the applicant is required, as per the Senior Traffic Commissioner’s directions at paragraph 37 of Statutory Document 2, to provide evidence of access to a balance of at least £21,800. Paragraph 54 sets out that applicants may need to submit further evidence where their application is delayed. This requirement, by way of bank statements, was set out within the case management directions issued ahead of the Public Inquiry.
The lack of response to case management directions, and the failure to attend the Public Inquiry has resulted in the Operator failing to provide evidence which satisfies me that this requirement is met.
Findings
On application the burden lies with the applicant to satisfy me that the requirements to obtain an Operator’s licence are made out. For the reasons set out above I am not satisfied. There remain outstanding and legitimate questions as to the controlling mind of this application company, the reason for the application so soon after the insolvency proceedings against the previous company, and the apparent ongoing management role within that company (certainly in respect of the Operator’s licence) by Mr. Horton after his resignation as Director. This coupled with the subsequent failure to update the VOL records and notify this office of material changes to the ownership of the applicant company, are reasons why I am not yet satisfied that the applicant is fit to obtain a licence.
In addition, and also as a standalone issue, the applicant has failed to supply the requested financial information to support the application. I am therefore yet to be satisfied that the application is supported by adequate financial resources.
The legislation is clear at Section 13(2) of the 1995 Act - “On an application for a Restricted licence a traffic commissioner must consider (a) whether the requirements of Section 13B and 13C are satisfied, and (b) if the commissioner thinks fit, whether the requirement of Section 13D is satisfied”.
Section 13(5) is equally clear “If the traffic commissioner determines that any of the requirements that the commissioner has taken into consideration in accordance with subsection (1) or (2) are not satisfied, the commissioner must refuse the application”. Emphasis is my own.
Decision
For the reasons set out above the applicant has failed to satisfy me that the requirements to obtain a restricted Licence are met. Accordingly, this application is refused.
I have been unable to question the applicant as to why they failed to comply with the case management directions. The request for an adjournment set out that the application for an adjournment was made on the specific basis that the applicant did not receive the call-up letter. I am satisfied that this office served the letter correctly and it is not for this office to consider or determine what happened thereafter. The onus is on the applicant to have in place the appropriate mechanisms to receive and respond to post. I have not received any reasoning for the email copy not being acted upon.
I am also prevented from questioning the applicant about the outstanding concerns resulting from the links to the previous company and the changes to the named Directors. This is, I find, a result of the Operator failing to have in place the required systems to receive and respond to correspondence from my office.
That said, in the interests of fairness I hold back from giving a direction which would prevent this applicant from submitting a further application. Any application will be considered on its own merits, and the applicant, if it does wish to pursue an application, should prepare to answer the outstanding concerns as well as provide some explanation for failure to respond to the calling-up letter and email.
David Mullan
Traffic Commissioner for the North West of England
27 May 2025