Neutral Citation Number: [2010] UKUT 285 (AAC)

 

Appeal No. T/2009/525

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Tom Macartney

Deputy Traffic Commissioner for the Scottish Traffic Area

Dated 10 November 2009

 

 

 

Before:

Frances Burton, Judge of the Upper Tribunal

Patricia Steel, Member of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

 

 

Appellant:

JAMES G. INNES

 

 

 

Attendances:

For the Appellant: John McLaughlin of Culley & McAlpine, Solicitors

 

 

Heard at: The Eagle Building, 215 Bothwell Street, Glasgow G2 7EZ

Date of hearing: 28 June 2010

Date of decision: 28 July 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal against the Decision of the Deputy Traffic Commissioner for the Scottish Traffic Area dated 10 November 2009 when he refused to return to the Appellant the detained vehicle registration number SV05 FVF.

2.           The factual background appears from the documents, the hearing before the Deputy Traffic Commissioner and the Deputy Traffic Commissioner’s written Decision and is as follows.

(i)               On 8 April 2009 vehicle registration number SV05 FVF was stopped by PC Cooper and PC Stevens loaded with wood, displaying no operator’s disc, and driven by David Calder who produced a Department of the Environment Northern Ireland (DOENI) authorisation for Magee Haulage Ltd. He said that the vehicle was leased from J.G. Innes to Magee Haulage Ltd but was in possession of a delivery note from James Jones & Sons which showed the haulier as J.G. Innes. On 15 April 2010 James Innes applied for return of the vehicle on the grounds that he did not know it was being used in contravention of s.2 of the Goods Vehicle (Licensing of Operators) Act 1995 (“the Act”), relying on paragraph 10(4)(e) of the Goods Vehicle (Enforcement Powers) Regulations 2001 (“the Regulations”). On 2 June 2009 the Traffic Commissioner issued a written Decision without a hearing (as none had been requested) refusing to authorise the return of the vehicle. This Decision was appealed to the Transport Tribunal which remitted the application for hearing by a different Traffic Commissioner. That hearing was held at Edinburgh on 19 October 2009. Mr J.G. Innes was present, represented by his solicitor, Mr J. McLaughlin of Culley & McAlpine, Solicitors. Mr A. Magee was called as a witness on the Appellant’s behalf. Evidence was given by TE Dunlop and Mr R. Loftus, Intelligence Officer, on behalf of VOSA.

(ii)              The Traffic Examiner gave evidence, adopting a statement of 13 May 2009 describing the Appellant’s history and the events leading up to the impounding and referring to a letter dated 2 February 2009, sent to the Appellant by a Senior Traffic Examiner, which warned the Appellant that VOSA would impound any unlicensed vehicle operated by him after 16 February 2009. The reason for rehearsing the history was that the Appellant had been disqualified from holding or obtaining an operator’s licence for 5 years after a public inquiry in 2008 at which his licence had been revoked for serious breaches of drivers’ hours rules and tachograph use. This Decision of 5 March 2008 had been appealed, and the appeal dismissed by the Transport Tribunal on 23 July 2008 (when the Decision had stated that the case was a bad one) and a further appeal was dismissed by the Court of Session on 18 December 2008. Meanwhile the Appellant had continued to operate on a stay. On 12 January 2009 the Traffic Area Office wrote to the Appellant, confirming the revocation on final dismissal of the appeals, and requiring the return of the licence documents and discs.

(iii)            However on 28 January 2009 a vehicle registration number SV51 EAJ was stopped by Police Officers and TE Dunlop spoke to the Appellant who claimed he was unaware he had lost his licence, but said he would return his vehicles to base and his discs to the Traffic Area Office. On 30 January 2009 another vehicle, registration number SV06 EZS was stopped by Police, and David Calder, the driver, said he was employed by J.G. Innes. This resulted in the VOSA letter of 2 February 2009. On 3 February 2009 the Appellant was interviewed by TE Dunlop under caution, and in the presence of PC Palmer. He admitted operating a vehicle on 30 January 2009. Further incidents continued: A vehicle registration number SV57 EZC was stopped by PC Cooper, laden with straw bales and without an operator’s licence (5 February 2009); a vehicle registration number SV05 FVF was seen by TE Dunlop, laden with steel (12 February 2009); the same vehicle, laden with steel, was stopped by PC Cooper (21 March 2009). On this last occasion the driver was Michael Ellis, who when interviewed under caution by PC Cooper, said he was employed by J.G. Innes though the vehicle was operated by Magee Haulage Ltd. He also produced the DOENI authorisation in the name of Magee Haulage Limited of County Tyrone but a delivery note in the name of J.G. Innes. It was stated that the vehicle was leased from J.G. Innes.

(iv)            It was established that when the vehicle was impounded on 8 April 2009 all documentation in the vehicle, except the DOENI authorisation, was in the name of J.G. Innes, including a J.G. Innes fuel card which the driver admitted was used for fuelling the vehicle. The vehicle had had no livery and had also had immediate prohibitions imposed on the trailer for brake and shock absorber defects. However Mr McLaughlin disputed that the driver, David Calder, had been interviewed under caution and insisted that his instructions were that the interview had not been under caution.

(v)             The Appellant gave evidence, describing himself as a farmer with an interest in haulage. His evidence as recorded in the transcript was somewhat vague: he conceded that he had “heard of” the Court of Session Decision dismissing his appeal (on 18 December 2008) and had expected that result but indicated that he had been on holiday till “about” 28 January 2009 (after the letter of 12 January 2009 had been sent by the Traffic Area Office) and claimed that he had been waiting for the formal Decision. He conceded that he had received VOSA’s letter of 2 February 2009. He nevertheless appeared to rely on his arrangements with Mr Magee, stating that they had done work for each other in the past and that Mr Magee had a Northern Ireland operator’s licence. He stated that he had hired a vehicle to Mr Magee in early 2009, as Mr Magee could not fund a purchase, had contracted originally with Mr Magee verbally but had had a written agreement from 23 March 2009. He stated that the impounded vehicle had been on the operator’s licence of Magee Haulage Ltd on 8 April 2009 but in fact that company obtained a Northern Ireland operator’s licence for that vehicle only on 9 April 2009. He conceded that he owned the trailer drawn by the vehicle impounded on 8 April 2009.

(vi)            The Appellant similarly insisted that the driver of the impounded vehicle, David Calder, had been employed by Magee Haulage Ltd on 8 April 2009 (despite the fact that he lived in Glasgow, not Northern Ireland) and, while both David Calder and Michael Ellis had been employed in the past by the Appellant, that both had been employed by Magee Haulage Limited in March-April 2009. Mr Magee also gave evidence in support of the Appellant, insisting that the drivers had been working for him in February-April 2009 but that insurance and fuel were dealt with by the Appellant, for which Mr Magee was to be charged separately (but for which, again, no documentation could be produced). Nor was there any documentary proof of contra arrangements said to offset these charges. Mr Magee’s only other contribution was to state that his wife did his administration (so it was she who must have failed to obtain the licence for the impounded vehicle before 9 April 2009) though he was also an experienced operator and CPC holder. He had added that as he was not the owner or keeper of the vehicle, the impounding was nothing to do with him.

(vii)           In considering the evidence, including documentary evidence of the state of account between the Appellant and Mr Magee handed in after the hearing, the Deputy Traffic Commissioner concluded that the Appellant could not make out the regulation 10(4)(c) defence to impounding. He did not believe, when the Appellant employed professional representation for all his appeals, that the Appellant did not know of the result of the Court of Session appeal (decided on 18 December 2008) until early February 2009, that he did not receive the Traffic Area Office’s letter of 12 January 2009, and that he was not fully aware that he had lost his licence when vehicles were stopped in January to April 2009. He said in his Decision that the case was “the most extreme case of multiple warnings being given to an operator that impounding was likely”. He added that although it was claimed that Mr Magee operated the impounded vehicle under a hire agreement this was not proved by the sketchy documentation submitted, which did not give a clear indication of the operator or controller of the impounded vehicle. In addition Mr Magee operated in Northern Ireland and the impounded vehicle had never been there, while Mr Magee had no Scottish operating centre “which” the Deputy Traffic Commissioner said, as a haulier of long standing, “Mr Magee must know”, finding on a balance of probabilities that there was no hire agreement. Mr McLaughlin submitted a number of authorities indicating that the Deputy Traffic Commissioner must be satisfied that the owner of the impounded vehicle must have either “closed his eyes to the obvious” or else “buried his head in the sand”, which the Deputy Traffic Commissioner had confirmed that he had studied carefully although he was already “familiar” with many. He determined that the Appellant and Mr Magee had “generated a false hiring agreement in an effort to continue operating goods vehicles after the revocation of his licence and his disqualification from the industry”. He said the Appellant had “gone far beyond closing his eyes to the obvious” and had “conspired to continue his operation”.

3.           At the hearing of the appeal the Appellant was again represented by Mr McLaughlin who had provided a helpful skeleton argument and a bundle of authorities, for which we were grateful. The grounds of appeal were:

(i)              the Deputy Traffic Commissioner wrongly and/or in error of law determined that the Appellant did not satisfy paragraph 10(4)(c) of the Regulations;

(ii)             the Deputy Traffic Commissioner erred in fact and law by taking into account the following matters that were irrelevant: (a) whether the Appellant knew the Decision of the Court of Session before VOSA’s warning letter of 2 February 2009; (b) the use of vehicles on 5 February 2009 and 12 February 2009; (c) the lack of documentation produced by Mr Magee which was not within the Appellant’s control; (d) that Mr Magee did not have an operating centre in Scotland (which he said in fact he did); (e) that Mr Magee had an authorisation for only 4 vehicles, and had 4 vehicles specified, and therefore had no space to specify the Appellant’s;

(iii)            the Deputy Traffic Commissioner was unduly influenced by these irrelevant matters;

(iv)           the Deputy Traffic Commissioner had wrongly and/or in error of law acted on information/evidence which was incorrect or misunderstood: (a) failure of the Appellant to produce evidence of employment of drivers – but the drivers were employed by Mr Magee, whose records were outside the Appellant’s control; (b) the Appellant’s evidence that Mr Magee would specify the impounded vehicle on his own licence – but Mr Magee did not have authorisation for the vehicle until he took that out on 9 April 2009, the day after the impounding; (c) the Appellant’s evidence that the freight contract for the wood carried by the impounded vehicle was between the Appellant and James Jones – because this was a normal commercial transaction where the consignor would have no interest in the actual carrier; (cc) the evidence in support of the hire agreement – much of which was in the possession and control of Mr Magee; (d) the Appellant’s evidence about the issue of the Decision of the Court of Session – i.e. that it would not be issued or come into effect on 18 December 2008 but that there would be a period of delay in issue and then in implementation – in amplifying this ground Mr McLaughlin said that the Appellant had been misunderstood when he had said he expected “the same result” from the Court of Session as from the Traffic Commissioner, as he had meant NOT that he expected dismissal but that the Court of Session decision would not be effective immediately, there would be a delay before a written Decision was handed down and then a delay before implementation ;

(v)             the Deputy Traffic Commissioner wrongly or in error of law did not weigh the competing versions of the evidence of Michael Ellis (a) to the police and (b) as later corrected by him, so that the evidence was not fully evaluated and the Decision flawed;

(vi)           the Deputy Traffic Commissioner, wrongly or in error of law, failed to treat evidence appropriately (a) in relation to the employment of Michael Ellis when the Appellant and Mr Magee stated that he was employed by Mr Magee; (b) that the vehicle was kept at the Appellant’s operating centre – when it was kept at Mr Magee‘s, at an address close to where the driver lived; (c) that the insurance, tax and fuelling of the vehicle by the Appellant, the owner, was consistent with a normal commercial venture; (d) that the Appellant would not have been aware that Mr Magee had not specified the vehicle and that he had insufficient authorisation to operate it until 9 April 2009; (e) that the use of the Appellant’s customised documentation in the Appellant’s vehicle used by Mr Magee would routinely be the case in a normal commercial transaction so the owner could keep track of maintenance and subcontracted work, and do not demonstrate the Appellant’s knowledge of the illegal use of the vehicle.

4.           Mr McLaughlin submitted that the Deputy Traffic Commissioner did not fairly assess the case. He said that there had been a gentleman’s agreement from February 2009 which was not reduced to writing until March 2009, but that this was honest evidence, not deviousness. He submitted that, similarly, the non-production of the usual vehicle operating documentation did not prove that the vehicle was not operated by Mr Magee. He said that this was not a normal “paper trail” case and that Mr Magee did have more documentation in Ireland but had not brought it with him to Scotland. He added that the parties could have created that paper trail, but had not. (He had no explanation, however, in answer to our question as to why, if such documentation existed, it could not have been collated between October and the appeal hearing date.)

5.           Mr McLaughlin insisted that the Appellant had not, as a matter of fact, heard of the result of the Court of Session appeal by 28 January 2009 when he returned from holiday, and that, although counsel had informed Culley & McAlpine, he told us a letter informing the Appellant of the outcome was sent to him which he did not receive. The Appellant did not receive the letter from VOSA informing him of the result so it was not surprising that the Appellant had not known earlier. He submitted that the Appellant was busy with his business on his return as he was still operating vehicles under a stay. He added that the Deputy Traffic Commissioner had misunderstood the evidence about the employment of the 2 drivers. To our question as to why the Appellant did not simply produce the drivers’ P45s, since they had apparently once worked for the Appellant but left to go to Mr Magee, Mr McLaughlin had no answer.

6.           Mr McLaughlin next submitted that although the Deputy Traffic Commissioner had not been satisfied by the documentation in support of the hire agreement, there was enough to suggest that, on a balance of probabilities it was not a complete sham. He further submitted that the Deputy Traffic Commissioner had not focused sufficiently on the extent of the Appellant’s knowledge, as the authorities required him to do. The fact that his documentation was a little thin, and not entirely in Mr Magee’s company name, did not mean that the hire agreement was a sham. He said, for example, Mr Magee did have a Scottish operating centre, at Campbell’s yard, near the home of one of his drivers. In answer to our question as to why, when time was given for production of documents that might have assisted the Appellant’s case, nothing was done, Mr McLaughlin said that some had been produced. Asked about e.g. the lack of fuel receipts for February, Mr McLaughlin said that that had been dealt with on a contra basis.

7.           Mr McLaughlin drew our attention to his bundle of authorities, emphasising that we needed to be satisfied that the Appellant had been “wilful” in disregarding actual knowledge of the illegal use and to have shown “a high degree of fault”: 2003/3 Close Asset Finance; we had to find the facts on a balance of probabilities and to approach the Appellant’s knowledge on a subjective (not objective) basis: 2003/139 WC Commercials; 2003/338 Andrew Simon Deacon; he added that being put on inquiry was not at all the same as exhibiting a “high degree of fault”; 2006/268 London Office Furniture Warehouse; he also referred to 2005/464 Secure Transport & Trading Limited in which a hire agreement not believed genuine by the Traffic Commissioner did not stop the Transport Tribunal allowing the appeal, especially as the Tribunal appeared to accept that there had been an oral agreement only in that case; and finally on 2005/412 Capital Bank plc where it had been concluded that there was no requirement for the owner to take positive steps to ensure that an O licence was in place, that there was no requirement to take reasonable steps to be read into regulation 10(4)(c) and that a high degree of fault was required to show actual knowledge.

8.           We disagreed with Mr McLaughlin that the Deacon case was helpful. The Appellant in that case could not read. We also commented that Secure Transport was returned for rehearing. We were familiar with the remainder of the authorities and their principles are well known.

9.           We do not agree that the Deputy Traffic Commissioner has got this case wholly wrong. We do not believe that the Appellant, being professionally represented, did not know about the revocation. We noted that Mr McLaughlin could not provide us with any clear answer when we asked him when he knew the result of the appeal to the Court of Session. In any case the Appellant conceded that he received VOSA’s letter of 2 February 2009 telling him that vehicles would be impounded after 16 February 2009, so that was a clear enough indication that the appeal had been lost. In fact VOSA did not impound a vehicle for another 7 weeks although the Appellant’s vehicles were both stopped and seen during that period.

10.       It is clear to us that Mr Magee was called as a witness and could have produced more documentation, had he got it, in Ireland or elsewhere. The Deputy Traffic Commissioner gave an additional 24 hours at the conclusion of the hearing for any further documentation to be sent to him and some was, but none relating to the employment of drivers or recovery of costs. The fact that there is no evidence of recording or reimbursement of fuel costs is extraordinary. Likewise the assertion that the Appellant’s vehicle insurer was willing (on the strength of a phone call and without any subsequent documents being exchanged or additional charges made) to extend cover under his policy to a third party hirer of one of his vehicles leads to incredulity. Again there was no evidence of reimbursement of costs. These are major costs of operation and it is inconceivable that they could have been compensated on contra grounds: if they were, where are the essential records? None at all were produced. It seems to us highly unlikely that such costs could have been managed and balanced out purely orally. We do not believe that the Deputy Traffic Commissioner was wrong in concluding that the vehicle registration number SV05 FVF was operated by the Appellant, being taxed and insured by him and refuelled using a card belonging to him.

11.       The type of arrangement that the Appellant asked us to accept, on the basis of the trust existing between himself and Mr Magee, is in theory possible. However it is essential where this version of events is to be relied upon that it is supported by sufficient contemporaneous documentary evidence sufficient to prove its existence at the time it was claimed to have been made. In the Appellant’s case it was asking too much of the Deputy Traffic Commissioner and of the Tribunal to take his explanation on trust without such supporting evidence, particularly as his recent revocation and lengthy personal disqualification had demonstrated that he could not be trusted to operate in a compliant manner.

12.       We believe that the Deputy Traffic Commissioner was correct in concluding that the Appellant had gone beyond closing his eyes to the obvious. We agree that in collusion with Mr Magee the Appellant generated a false hiring agreement in an effort to continue operating goods vehicles after the revocation of his licence and his personal disqualification.

13.       We dismiss the appeal.

 

 

 

Frances Burton

Judge of the Upper Tribunal

28 July 2010