Neutral Citation Number: [2010] UKUT 366 (AAC)

Appeal No: T/2010/44

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF BEVERLEY BELL,

TRAFFIC COMMISSIONER for the NORTH WESTERN TRAFFIC AREA

DATED 14 MAY 2010

 

Before:

Judge Mark Hinchliffe,

Deputy Chamber President; Health, Education & Social Care Chamber

 

Patricia Steel

Member of the Upper Tribunal

 

John Robinson

Member of the Upper Tribunal

 

Appellant:

 

Anthony J Long t/a AJ Long Services

 

Attendance:

 

For the Appellant: Mr A. J. Long, represented by Mr C. Harris, Transport Consultant

 

Appeal heard at: Victory House on 23 September 2010

 

Date of decision: 5 October 2010

 

DECISION OF THE UPPER TRIBUNAL:

 

The appeal is dismissed

 

Subject Matter:

 

Impounding

 

Cases referred to:

 

None

 

 

 

 

 

 

REASONS FOR DECISION:

 

1)    This was an appeal from the decision of the Traffic Commissioner for the North Western Traffic Area, made on 14 May 2010, when she determined that an impounded vehicle, BX04YXD should not be returned to its owner, Mr Long.

 

2)    The factual background to this appeal appears from the documents, the transcript and the Traffic Commissioner’s decision, and is as follows:

(i)    On 9/12 /2009 the Traffic Commissioner revoked an operator’s licence held by GCI International Ltd, of Oldham. She found that the operator, along with others, had allowed its operator’s licence to be used by others for the sole purpose of facilitating the continued operation of commercial vehicles by people who had had licences refused or revoked or who had been disqualified from holding a operator’s licence. The Traffic Commissioner found that officers of the company, including one Nadeem Iqbal, either knew or should have known that the use of GCI International’s licence in this way was illegal.

(ii)   The Appellant, Mr Long, is the owner of a Volvo 3 x 3 axle articulated combination, vehicle registration number BX04YXD. On 16/12/09 the vehicle was directed into a VOSA check site in Greater Manchester. The driver of the vehicle was Mr J Clintworth. He said that he was being paid by Mr Long. No goods vehicle operator licence disc was displayed and Mr Clintworth could not name the operator. All he could say was that he thought that the vehicle was operated from Rochdale. The vehicle was transporting a 40 foot shipping container carrying medical equipment from Liverpool docks to a company called Arizant in Wakefield.

(iii)  Mr Clintworth was asked for his tachograph records for the previous few days. Journeys on 9/12/09, 10/12/09, 11/12/09, 12/12/09, 14,12/09, 15/12/09 and 16/12/09 -the day of the impounding - all commenced from Kirkby. The Inland Transport Order, produced to VOSA officers, named AJ Long Services, of Knowsley Industrial Park, Kirkby, as the haulier. Since Mr Long did not have an operator’s licence (and GCI International Ltd had had its licence revoked the week before) the vehicle was impounded.

(iv) A Traffic Examiner, Mr Henry, spoke to Mr Long on the telephone. Mr Long admitted that the vehicle belonged to him but claimed that he had hired the vehicle to GCI International Ltd, and they had an operator’s licence and they were the operator. He said he was unaware that their operator’s licence had been revoked. Mr Long has subsequently confirmed that the trailer and the shipping container also belonged to him, that the original contract for the transportation of the goods was made with AJ Long Services, and that AJ Long Services were being paid for the job.

(v)   On 29/12/09, Mr Harris (Mr Long’s representative) wrote to VOSA seeking the return of the vehicle. Mr Harris said that the equipment was being operated by GCI International Ltd under a rental agreement with AJ Long Services and, although BX04YXD was not actually specified on the (revoked) operator’s licence of GCI International Ltd, it had recently been taken by them in order to replace another vehicle supplied by Mr Long that had broken down earlier that week. VOSA declined to return the vehicle.

(vi) On 21/1/2010, a Volvo 3 x 3 axle vehicle, PN06CVV was stopped by a uniformed police officer on the M6 northbound carriageway. The vehicle, which was not in fact specified on an operator’s licence, was displaying what turned out to be a forged operator’s licence disc from Northern Ireland. Mr Long was the driver of the vehicle and he told the Traffic Examiner in attendance that he was driving the vehicle on his own behalf, and that he traded as Container Service Logistics of Kirkby, Liverpool. He admitted that he did not have an operator’s licence and that he had put the disc in the window. He denied that he had made the forged disc. In due course it transpired that Mr Long was not in fact the owner of the vehicle, he was the lessee under an unregulated lease agreement dated 6/8/08. The owners were Close Asset Finance, who applied for the return of the vehicle. VOSA declined to return the vehicle.

(vii)  In due course applications were brought in relation to both impoundings and, because of the links involving Mr Long, and because much turned on the reliability and credibility of Mr Long’s evidence, the Traffic Commissioner decided to hold both hearings together, although she made separate (and different) determinations in respect of the two vehicles. The hearings began on 12/3/2010. Mr Long told the Traffic Commissioner that he rented vehicles to GCI. He said “We have like … we rent vehicles out and we have a fleet forwarding company”

(viii)    At one point the Traffic Commissioner asked Mr Long about Mr Clintworth, the driver of BX04YXD:

TC: Now, he said when he was interviewed that he was paid by you. What do you say to me about that, Mr Long.

Mr Long: He was paid by GCI. He was not paid by me.

TC: But he told VOSA that he was paid by you. Why would he make that up?

Mr Long: I can’t answer that Ma’am.

TC: Well, do you know John Clintworth?

Mr Long: I know of him.

TC: You know of him?

Mr Long: Driving at CGI.

TC: So who employed him?

Mr Long: GCI.

(ix)           At the conclusion of the hearing, the Traffic Commissioner reserved her decision. Subsequently, however, she learned that Mr Long had appeared before Deputy Traffic Commissioner Evans at a driver conduct hearing on 12/10/09. At this hearing, Mr Long said that he had been disqualified from driving for some 4 years but had successfully applied to have the disqualification lifted on 1/12/08. The Deputy Traffic Commissioner then asked:

DTC: What have you been doing since then?

Mr Long: Just a bit of warehousing work, some stackers you know, just bits and pieces wherever I can, bits and pieces and that.

(x)            The Traffic Commissioner felt that this evidence was inconsistent with Mr Long’s claim before her to be engaged in vehicle logistics, and to be leasing or buying vehicles, and then sub-hiring them to a licensed operator, and then hiring them back again under that other company’s operator’s licence in order to undertake haulage on behalf of AJ Long Services; or to own and run a company called Container Service Logistics. The Traffic Commissioner reconvened the hearing and put these inconsistencies to Mr Long, who said that the Deputy Traffic Commissioner had asked him what he was doing personally:

Mr Long: He was asking what I was doing and, obviously, what I was doing, I was earning money. I was driving stackers in the warehouse unloading containers.

TC: Well it was hardly the whole truth.

(xi)           The Traffic Commissioner was asked to rely on a “Without Driver Vehicle Hire Agreement”, dated 25/8/09 between AJ Long Services and GCI International Ltd, and a statement from Mr Nadeem Iqbal of GCI, in which he stated, in relation to Mr Clintworth (the driver of BX04YXD):

“We had agreed to hire the driver Mr John Clintworth from AJ Long Services for a couple of weeks in the run up to Christmas. We had not had an opportunity to meet the driver but we were assured by Mr Long that he was properly qualified and experienced.”

(xii)          The Traffic Commissioner issued her decision on 14 May 2010. She returned vehicle PN06CVV to Close Asset Finance but refused to return BX04YXD to Mr Long. She found that Mr Long was the true operator of BX04YXD and that any link with GCI International Ltd was a sham. In these circumstances, the claim that Mr Long did not know that the operator’s licence of GCI had been revoked was irrelevant. Mr Long was the operator. He knew that he was the operator. He knew that he did not have an operator’s licence, and he knew that he should have had one – hence the illegal and sham pretence to hire the vehicle to GCI and then hire it back with their driver.

(xiii)        The Traffic Commissioner rejected as untrue the evidence given by Mr Long to Deputy Traffic Commissioner Evans. Before her, the Traffic Commissioner said that Mr Long’s answers were dishonest, calculated to deceive and not substantiated by independent evidence. Thus, insofar as key aspects of Mr Long’s case depended upon his credibility, and the reliability and honesty of his evidence, she did not believe him.

(xiv)        In her narrative of the evidence, the Traffic Commissioner correctly referred to the forged disc as being in the windscreen of PN06CVV, which Mr Long had been driving. At two places in her findings and determination, however, the Traffic Commissioner, wrongly, referred to the disc as having been in BX04YXD, which Mr Long owned.

 

3)    At the hearing of this appeal, the Appellants were represented by Mr Harris who submitted a skeleton argument for which we were grateful. The first point made was that the Traffic Commissioner erred in law by basing her assessment of the Appellant’s credibility and state of mind on the facts surrounding another impounding event which took place just over a month later. The facts relating to the two impoundings were different and the Traffic Commissioner should not have linked one with the other.

 

4)    We reject this submission. The link between the two impoundings was obvious and, in both cases, it readily appeared as if in reality Mr Long was operating the vehicles himself. The applicable impounding regulations were made by the Secretary of State under the Goods Vehicles (Licensing of Operators) Act 1995, and the Traffic Commissioner has power under the Act to hear related or linked matters together if it is just and convenient to do so. We therefore see no reason why this power should not extend to impounding hearings and – so long as each case receives individual consideration –we find nothing objectionable in the Traffic Commissioner taking this approach. Indeed, it would have been artificial and inappropriate to try to maintain a false separation between these two cases. The Traffic Commissioner was able to reach separate and different conclusions in relation to each application. This demonstrates that she did give each case individual and separate consideration.

 

5)    The next point, however, raises a linked issue – namely the slips made by the Traffic Commissioner when she incorrectly attributed the false disc to the vehicle that Mr Long owned rather than, as she should have done, to the vehicle that he was driving. However, we are satisfied that the Traffic Commissioner was not labouring from beginning to end under a false apprehension. Her initial narrative of the facts was accurate, and there was no hint of confusion at the hearing itself. They were no more than slips and, in our view, the Traffic Commissioner’s views as to credibility are amply justified whichever vehicle the disc was in.

 

6)    It was submitted that any variation in the Appellant’s evidence in relation to his business activities is not relevant. We disagree. In an impounding hearing based upon Regulation 10(4)(c) of the Goods Vehicles (Enforcement Powers) Regulations 2001, as amended, the burden of proof is upon the applicant. The nature of what the Appellant’s business is – and is not – lies at the heart of the case. Mr Long sought to suggest that he did have a business, but that it did not extend to operating HGVs for the commercial carriage of goods. To persuade the Traffic Commissioner of this, despite appearances to the contrary, required consistent and credible evidence from Mr Long, preferably supported by the consistent, corroborative and credible evidence from others. We considered that these features were entirely lacking from the evidence adduced by Mr Long. The Traffic Commissioner was not plainly wrong to disbelieve him.

 

7)    The tribunal were particularly disturbed by the inconsistent and contradictory evidence presented in relation to the driver. As is well known, a helpful indicator of who might be the operator of a vehicle is to be found in the question of who controls the driver, who directs his activities and who pays him.

 

8)    At the hearing before us, Mr Long said that he did pay Mr Clintworth, but then billed GCI for the amount. His role was like an agent – putting forward Mr Clintworth to a client and charging the client for Mr Clintworth’s services. However, despite producing a “Without Driver” agreement with GCI (which we regard as evidentially worthless) no documentation was produced to support the claim of billing GCI for the driver - a claim which, in any event, was totally inconsistent with what Mr Long told the Traffic Commissioner.

 

9)    It is regrettable that this impounding case became as complicated and drawn out as it did, with the papers and transcripts exceeding 500 pages. The vehicle BX04YXD was owned and insured by Mr Long, was driven by a man who said he was paid by Mr Long and who could not name any other operator. This driver was (according to GCI) supplied by Mr Long and they had not met him. The vehicle had never been specified on GCI’s licence and GCI was, in any event, a company that had systematically allowed unsuitable persons to use its operator’s licence illegally. Although Mr Long, in contrast, told the Traffic Commissioner that GCI paid Mr Clintworth, and he only knew of him, this was not the account given by the driver himself. The journey was for the benefit of Mr Long, and Mr Long’s business was named as the haulier on the Inland Transport Order. That Mr Long was the true operator appears to us to be as clear as day, and that Mr Long’s evidence was unreliable and contrived, from beginning to end, is equally clear.

 

10) Of course, the more complicated a case is permitted to become, the easier it is to make a slip. Although we can see the point in dealing with the two impounding hearings together, we think the Traffic Commissioner thereafter made her job more difficult than was necessary, and the hearings strayed from the strictly relevant. Having said that, we are satisfied that her material conclusions were based on a correct application of the law to facts reasonably found on the relevant evidence, and the appeal is, therefore, dismissed.

Judge Mark Hinchliffe, DCP

5 October 2010