Neutral Citation Number: [2012] UKUT 473 (AAC)

Appeal No.  T/2012/53

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of John Baker DEPUTY TRAFFIC COMMISSIONER for the South Eastern and Metropolitan Traffic Area

Dated 13 August 2012

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken Member of the Upper Tribunal

George Inch Member of the Upper Tribunal

 

 

Appellant:

CLAYTON CAR SALES LIMITED

 

 

 

 

Attendances:

For the Appellant: John Daly, of Chabra Cass & Co

 

 

Heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 9 November 2012

Date of decision: 19 December 2012

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and the matter be remitted to be reheard and determined by the Traffic Commissioner.

 

 

 

SUBJECT MATTER:-   Impounding

 

CASES REFERRED TO:- Maddox v Storer [1963] 1 QB 451, [1962] 1 All ER 831

Traffic Commissioners for South Wales Traffic Area v Snape [1977 RTR 367

Vehicle and Operator Services Agency v Johnson [2003] EWHC 2104 (Admin) DC

Wurzal v Addison [1965] 2 QB 131, [1965] 1 All ER 20

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Deputy Traffic Commissioner for the South East and Metropolitan Traffic Area to refuse the Appellant’s application for the return of an impounded vehicle.

2.          The factual background to this appeal appears from the documents and the Deputy Traffic Commissioner’s decision and is as follows:-

(i)                   On 12 January 2007 a Lincoln Town Car Stretch Limousine, registration number B18 VOW, (“the Lincoln”) was submitted to the Vehicle and Operator Services Agency, (“VOSA”), for a ‘Single Vehicle Approval’, (“SVA”).  The vehicle was a left-hand drive model, which had recently been imported.  According to the details of the SVA scheme it: “provides pre-registration inspection of vehicles less than 10 years old that have not been ‘type-approved’ to UK or European Union (EU) standards. Its main purpose is to ensure that these vehicles have been designed and constructed to acceptable safety and environmental standards before they are used on public roads”.  Under the heading: ‘Will SVA affect you’ the following appears: Your vehicle will need SVA inspection if it is not already type-approved to UK or EU standards, and is a car or light passenger vehicle (including dual-purpose vehicles) with: 4 or more wheels and 9 seats or fewer including the driver's seat”.

(ii)                 On 5 February 2007 the Lincoln was first registered in the UK.  The taxation class was shown as ‘11 Private Light goods (PLG)’.  At the very bottom of the first page on the Registration Certificate, (“V5”), under ‘Special Notes’ the document records that: “SVA/IVA issued 12 01 2007, Left Hand Drive”.

(iii)                On 30 June 2012 a joint operation between the Metropolitan Police and VOSA, commenced on the Victoria Embankment in London.  The purpose of the operation was to check Stretch Limousines

(iv)                On 1 July 2012 the Lincoln was stopped on the Victoria Embankment as part of this operation.  The Appellant was by then the registered keeper.  The driver gave his name and said that he had been paid for the journey.  The hirer confirmed payment of a deposit and the balance.  The driver said that he had just collected the 7 female passengers from Trafalgar Square and that he was to take them back to Bedford, having collected them from Bedford the previous afternoon.

(v)                 It was noted that the Lincoln had a front passenger seat.  A COIF officer, (“certificate of initial fitness”) was then asked to establish the seating configuration of the vehicle.  Using a measurement of 400 millimetres per person he concluded that there was seating for 9 passengers in the rear of the vehicle and a tenth passenger next to the driver.  The COIF officer noted that there was no ‘sculpting’ to define the number of seats in the rear of the Lincoln.  Purely on the basis of a measurement of 400 mm per person he concluded that there was space for three passengers facing forwards, three facing to the rear and three at the side.  He did not state whether there were or were not seatbelts, or more importantly, how many, nor did he provide any other details of the Lincoln, for example whether or not there was a partition between the rear compartment and the driver or whether or not any form of refreshment was provided in the rear compartment and, if so, what.

(vi)                The Lincoln was displaying an ‘in-date’ tax disc for a vehicle in the ‘PLG’ class.  However if the seating capacity was 10 it should have been taxed as a bus.  It was not displaying a valid current operator’s licence for a Public Service Vehicle (“PSV”).  Checks confirmed that the Appellant company did not hold a PSV operator’s licence, that the Lincoln did not have a COIF and that it was not specified on any operator’s licence.  A logo, ‘A1 Stretch.com’ was etched on a window.  A number of ‘A1 Stretch’ cards were found on the console.  The driver was asked whether the vehicle belonged to A1 Stretch and he replied that it did.  A1 Stretch appears to be a trading name of the Appellant company.

(vii)              A Police officer examined the driving licence held by the driver.  He found that the driver was entitled to drive a vehicle of the relevant class, (D1), but that he had a ‘101 restriction’ in relation to this class of vehicle, meaning that he was not entitled to payment for driving a vehicle of that class.

(viii)             The driver was interviewed that night.  He confirmed the arrangements for the hire, which have been described above.  He said that the agreement to hire the vehicle was with the Appellant company and that he had been given the job of driving the Lincoln at the offices of the Appellant company.

(ix)                A decision was taken, in consultation with VOSA’s National Enforcement and Compliance Manager, to impound the vehicle on the ground that it was transporting passengers for hire or reward without there being in force a current operator’s licence.

(x)                 On 2 July 2012 the Managing Director of the Appellant, Mr Eddy Ellis, telephoned David Cox, a Traffic Examiner who had been involved in the impounding.  He asked why the vehicle had been impounded.  He was told that the seating configuration meant that the vehicle required a PSV operator’s licence and that the driver had confirmed that he was operating for hire or reward.  Mr Ellis expressed annoyance that he had not been given the opportunity to remove the front passenger seat because he had the appropriate Private Hire Licence issued by Dacorum Borough Council, (“the Borough Council”).  In a later conversation Mr Ellis asked whether the IVA/SVA on the vehicle could be the basis of an appeal.  He was advised to contact a COIF officer.

(xi)                On 4 July 2012 a letter was sent to Mr Ellis, as an owner of the vehicle for the purposes of the Public Service Vehicles (Enforcement Powers) Regulations 2009, (“the 2009 Regulations”).  It advised him of the impounding and alerted him to the notice that appeared in due course in the London Gazette.

(xii)               An application for the return of the Lincoln was submitted to the Traffic Commissioner.  It is signed but undated and the details of the owner of the vehicle are unclear.  Under the heading “if you own the vehicle as an individual” Mr Ellis has given his name and most of the registration number of the Lincoln.  But then after the heading “if the vehicle is owned by a partnership, company or unincorporated body” he entered ‘Ltd’ and under ‘name and position in the business’ ‘Director’.  The application requested a hearing and gave two grounds for the return of the Lincoln.  The first was that the user held an operator’s licence.  The details provided were of the Private Hire licence issued by the Borough Council, (see paragraph 2(ix) above).  The second was that the Lincoln “was not being or had not been used in contravention of section 12 of the 1981 Act”.  The 1981 Act is the Public Passenger Vehicles Act 1981, as amended.

(xiii)             In the section headed ‘Details of the Application’ a number of points were made.  The most important are (i) that the Lincoln was never used for more than 8 passengers, (ii) that on a previous occasion on which the vehicle was stopped nothing was said about the front passenger seat, (iii) that VOSA had failed to tell the Borough Council that the vehicle had been given an SVA.  A number of documents were attached to the application including copies of the licence issued by the Borough Council.

(xiv)             On 20 July 2012 Mr Ellis wrote to the Traffic Commissioner.  The letter heading was that of ‘The Quality Car Company’.  The address at the foot of the letter is the same as the address for the Appellant company.  The letter began by pointing out that the vehicle had been SVA’d on 12 January 2007, (see paragraph 2(1) above), “which means that it can only carry 8 passengers”.  Mr Ellis went on to assert that the driver was licensed and that he could produce the job sheets which would prove that the vehicle had never carried more than 8 passengers.  Mr Ellis went on to say that he was enclosing the Log Book, (ie the V5), “which clearly states that the vehicle can carry 9 people including driver”.  Unfortunately it would appear from the appeal file that he may only have enclosed the second page and not the first page with the reference to the issue of an SVA.  In addition Mr Ellis enclosed an insurance cover note again showing that the number of seats was 9.  Mr Ellis asked for the return of the vehicle on the ground that it was not a PSV.

(xv)              On 31 July 2012 the Office of the Traffic Commissioner (“OTC”), wrote to the Appellant indicating that a Public Inquiry, (the letter should have referred to a hearing), would be held on 13 August 2012.  The Appellant was told that if it was unable to attend on that date the OTC should be contacted immediately.

(xvi)             On 10 August 2012 Solicitors acting for VOSA provided the Traffic Commissioner with a Note setting out their view of the relevant law.  We will return to this in due course.

(xvii)            The hearing took place before the Deputy Traffic Commissioner on 13 August 2012.  VOSA were represented by Mr Hallsworth of Woodfines, Solicitors but no-one attended on behalf of the Appellant.  The Deputy Traffic Commissioner, sensibly, arranged for the Appellant to be telephoned.  The call was answered by a Mr Neil Percival.  He said that Mr Ellis was abroad and that Mr Ellis “thought that the hearing was on 14 August”.  He asked for an adjournment.

(xviii)          The Deputy Traffic Commissioner gave a written decision dated 13 August 2012.  He began by setting out three factors which he took into account in deciding not to adjourn the hearing.  The third of these was the potential merits of the application as gleaned from the written application submitted by Mr Ellis.  The Deputy Traffic Commissioner then went on to give reasons for concluding that it was unclear who owned the Lincoln.  He also concluded from the uncontradicted written evidence that the vehicle was adopted, (sic), (he obviously meant ‘adapted’) to carry 10 passengers so that it was subject to the PSV operator’s licencing regime.  For those reasons he refused the application.

(xix)             On 7 September 2012 the Appellant filed a Notice of Appeal.  The first ground of appeal put forward a different version of the conversation in which Mr Percival requested an adjournment, but it did not assert that the refusal of an adjournment was wrong.  The second ground of appeal provided more detail in relation to ownership.  The third ground of appeal relied on the fact that VOSA had conducted an SVA on the vehicle.  The fourth ground of appeal asserted that the configuration of the seating had never been altered, in other words it had not been ‘adapted’ and went on to make the point that the front passenger seat is in a separate compartment.  The fifth ground of appeal asserted that if the vehicle has been wrongly designated, (by VOSA), it would be unfair to deprive the Appellant of it.

3.           At the hearing of the appeal the Appellant was represented by Mr Daly and Mr Ellis was in attendance.  VOSA, who had not applied to become parties to the appeal, were neither present nor represented.

4.           At the outset Mr Ellis frankly accepted that the failure to attend the hearing was his fault.  He did not seek to criticise the decision by the Deputy Traffic Commissioner to refuse an adjournment.  Having had an opportunity to take a broader view of this appeal we have come to the conclusion that there was other material, which could and should have come to the attention of the Deputy Traffic Commissioner.  We have no doubt that if this additional material had come to his attention the result would have been the adjournment of the hearing in order that the issues could be determined by evidence on both sides.

5.           Before we explain the nature of this additional material we wish to make it clear that there is widespread and in our view justified concern about the extent to which stretch limousines are operated, in circumstances where a PSV operator’s licence is required, without there being a PSV operator’s licence in force.  Nothing we say is intended to undermine the use of impounding in circumstances in which stretch limousines are being use in contravention of the requirement to hold a PSV licence.  But it is important that all VOSA officers concerned with the possible impounding of Stretch Limousines recognise that Stretch Limousines are only liable to be impounded if they are being operated in a way that contravenes the requirement to hold a PSV operator’s licence.

6.           The expression Public Service Vehicle is defined by s. 2 of the 1981 Act in these terms:

“1. – (1) Subject to the provisions of this section, in this Act ‘public service vehicle’ means a motor vehicle (other than a tramcar) which –

(a) being a vehicle adapted to carry more than eight passengers, is used for carrying passengers for hire or reward; or

(b) being a vehicle not so adapted, is used for carrying passengers for hire or reward at separate fares in the course of a business of carrying passengers”.

7.             In this particular case VOSA relied on s. 1(1)(a), because its case was that the Lincoln was ‘adapted’ to carry more than 8 passengers’.  It is clear from the grounds of appeal that the Appellant wished to argue first, that ‘adapted’ for the purposes of this sub-section means ‘changed’ or ‘altered’ and second, that the Lincoln was not caught by the subsection because records would show that it never carried more than 8 passengers.  It is equally clear from a cursory look at the notes to s.1 of the 1981 Act in the current edition of the Encyclopedia of Road Traffic Law and Practice that these submissions are untenable.  The reason is that the Divisional Court defined the meaning of ‘adapted’ in 1963 and the definition has been applied ever since. In Maddox v Storer [1963] 1 QB 451, [1962] 1 All ER 831 the Divisional Court had to consider a provision in Schedule 1 to the Road Traffic Act 1960 which defined the maximum speed for: “a vehicle … adapted to carry more than seven passengers exclusive of the driver”.  The argument that ‘adapted’ meant ‘altered’ was rejected.  Lord Parker CJ held that the word ‘adapted’ in this context meant ‘fit and apt for the purpose’.  Ashworth J said that it meant ‘suitable’.  The third member of the court agreed with both the other Judges.  In our judgment the expression ‘adapted’ in s. 1(1)(a) of the 1981 Act should also be interpreted to mean ‘fit and apt for the purpose’ or ‘suitable’.

8.             It follows, in our judgment, that what is fit and apt or suitable for one purpose will not necessarily be fit and apt or suitable for another purpose.  In other words the question of whether or not a vehicle is adapted to carry more than eight passengers is a question of fact and degree that will turn on the purpose for which the particular vehicle is used and how it is equipped. This conclusion is supported by other reported decisions.

9.             The first of these decisions is Wurzal v Addison [1965] 2 QB 131, [1965] 1 All ER 20.  That case turned on the true construction of the definition of public service vehicle in the Road Traffic Act 1960 and in particular the meaning and effect of the expression: “adapted to carry eight or more passengers”.  It was agreed that there was seating for six passengers in the rear of the vehicle and that in the front there was a bench seat four foot six inches, (1370 mm) wide.  It was also agreed that the gear lever and the handbrake were situated in the middle of the driver’s compartment and that the gear lever was two foot nine inches high.  There was evidence that with two passengers on the front seat the driver would have to lean forward to reach both gear lever and handbrake but that the passenger in the centre would not be inconvenienced.  It was argued that that meant that the front seat was suitable for carrying two passengers, with the result that the vehicle was a public service vehicle.  The Justices upheld a submission of no case on the ground that the position and length of the gear lever and handbrake meant that the front seat was not suitable for two passengers.  The Divisional Court confirmed the earlier decision as to the meaning of ‘adapted’ and dismissed the appeal against the conclusion reached by the Justices.  However Lord Parker CJ stressed that the decision turned on the particular evidence before this bench of Justices and that the same conclusion would not necessarily follow in another case if the evidence differed.  One point made by Lord Parker CJ was that the fact that the passenger would not have been inconvenienced was not conclusive because if the driver was inconvenienced by the presence of a second passenger that pointed to the vehicle not being adapted to carry eight or more passengers.

10.          Before coming to the next decision it is important to remember that the evidence put forward by VOSA, in order to show that the Lincoln was adapted to carry more than eight passengers, was confined to three features.  First, that there was no sculpting to define the number of seats in the rear.  Second, using a measurement of 400 mm per person it was physically possible to seat nine people in the rear compartment.  Third, there was a passenger seat next to the driver, potentially providing for a tenth passenger.  The measurement of 400 mm is derived from Regulation 28(1)(b) of the Public Service Vehicles (Condition of Fitness, Equipment, Use and Certification) Regulations 1981, (“the 1981 Regulations”), which provides that: “a length of at least 400 millimetres measured horizontally along the front of each seat shall be allowed for the accommodation of a seated passenger”.  The underlining is ours because we wish to stress that the Regulation clearly provides for a minimum of 400 mm per seated passenger and not an absolute requirement from which there can be no deviation.  It follows, in our view, that while the minimum may be appropriate in the case of a mini-bus it will not necessarily be suitable in a stretch limousine, where the expectation of the passengers is likely to be that they are entitled to expect a greater degree of comfort.

11.          This proposition is confirmed by the next case to which we refer which is Vehicle and Operator Services Agency v Johnson [2003] EWHC 2104 (Admin) DC.  That case involved an appeal from Justices who had dismissed three charges relating to the use of a PSV.  The common ingredient in all three charges was that VOSA had to prove that the vehicle in question, a stretch limousine, was a PSV, within the meaning of s. 1(1)(a), ie a vehicle adapted to carry more than eight passengers.  The Justices found that the vehicle was not suitable for carrying more than eight passengers and VOSA required them to state a case for the opinion of the Administrative Court.  The evidence was that the seating was arranged on three sides of the passenger compartment.  At the rear was a front facing bench seat with a central arm rest which could be extended from the back of the seat.  To the side there was a bench seat apparently divided, by the design of the upholstery, into four sections, three along the side and one in the corner between the side and the front seats.  At the front the seat facing the rear was said to be suitable for one passenger.  At first sight therefore the vehicle appeared to be adapted for seven passengers.  However it was agreed that the rear seat with the arm-rest retracted was 1462.5 mm wide and therefore capable of taking three passengers.  The side seat and the front seat formed an ‘L’ shape with a total length of 2,400 mm, the side facing section being 1,750 mm long and the rear facing section 650 mm long.  In other words if the two were taken together there was said to be room for six passengers, making a total of nine, while if they were considered separately they could seat five, giving a total of eight.  It was accepted that it would have been physically possible to squash six people onto the side and rear facing seats.  However it was also accepted that that would mean that one passenger would have a seat length of less than 400 mm.  There was other evidence before the Justices to the effect that the passenger compartment was fitted with eight seat belts and that the purpose of the vehicle was to convey passengers in a degree of luxury.  Pitchford J, (as he then was), had no doubt that the design of the seating and the number of seat belts, (depending on the circumstances), were relevant considerations.  However he added that they were not decisive considerations.  The Justices concluded that the fact that the vehicle was carrying nine passengers when stopped was only one of the factors to be taken into account.  They went on to conclude that the seating provided in a stretch limousine was likely to be more generous than the minimum specified in the Regulations, that in normal use it was not practicable to carry a ninth passenger and that in view of the design, layout and purpose of the vehicle it was not adapted to carry more than eight passengers.  They concluded, on that basis, that it was not a public service vehicle.  Their approach was upheld and the appeal was dismissed.  Pitchford J said this:

“In deciding that mere straight line measurement was not appropriate to judge the accommodation, which included a corner seat and the short arm of the L to which I have referred, I consider the Justices exercised sound judgment and common sense.  Their decision was plainly open to them on the facts”.

12.          The case of VOSA v Johnson can be contrasted with Traffic Commissioners for South Wales Traffic Area v Snape [1977 RTR 367.  That case concerned a mini-bus which had three individual seats and a bench seat seven feet four inches long.  The equivalent provision to paragraph 28 of the 1981 Regulations provided for a minimum seat width of one foot four inches, (or 406 mm).  The Justices dismissed the case on the ground that the minimum seat width set out in the Regulations was not a determining factor in deciding whether the vehicle was a public service vehicle.  The Divisional Court held that they were wrong and that that on the basis of the minimum measurement the vehicle was a public service vehicle.  It is important to remember that this case concerned a mini-bus and that the bench seat was straight so that no consideration had to be given to corners.  Of the two decisions VOSA v Johnson is clearly the more relevant to any case that involves a stretch limousine.

13.          It was for VOSA to show, on the balance of probability, that the Lincoln was adapted to carry more than eight passengers in the sense that it was ‘fit and apt for that purpose’ or ‘suitable’ for that purpose.  They sought to do so in two ways.  First, by showing, on the basis of 400 mm per passenger, that it was possible to seat nine people in the passenger compartment. Second, they appear to have relied on the mere presence of a front passenger seat without seeking to explain why, in this particular case, it was fit and apt or suitable for use by a passenger.  Given that VOSA were a party to the most important and most recent decision this causes us some surprise and concern.  Serious consideration must be given to providing further training to all who are concerned with decisions in relation to stretch limousines to ensure (a) that all the relevant evidence, both favourable to VOSA’s case and unfavourable to it, is reliably gathered, (b) to ensure that decisions are then made, on the basis of that evidence, which accord with the guidance in the authorities and (c) to ensure that all the relevant material is put before the Traffic Commissioner who is required to determine a claim for the return of an impounded vehicle.

14.          In asserting that the seating was sufficient, on the basis of 400 mm per passenger, the Vehicle Examiner who expressed that opinion did not provide the total measurement of each seat nor did he show whether he had made any allowance, and if so what, for the two corners.  In our view he should have provided this information.  In addition it seems to us that he gave no thought to the fact that this was a vehicle in which passengers would expect a greater degree of luxury.  A space of 400 mm per seat may be sufficient in a mini-bus but it may well be inadequate when a greater degree of luxury is to be expected.  It was for VOSA to show that 400 mm per passenger would have been sufficient to meet the reasonable expectations of the passengers in this vehicle.  This is another factor that should have been taken into account in the evidence.  There is no evidence as to whether or not seat belts had been fitted, or if so, how many.  This too should have been set out.  Many stretch limousines have a bar or drinks cabinet.  In our view the presence or absence of a bar or drinks cabinet is also a relevant consideration because if the passengers are drinking they may well expect to have more space so that they do not accidentally spill drink on each other.  In our view the correct test is not whether it is physically possible to seat more than 8 passengers in the vehicle, with a minimum of 400 mm each, the question is whether the vehicle in question is fit and apt, or suitable, to carry more than eight passengers.  It follows that when deciding to impound this vehicle VOSA would appear to have used the wrong test.

15.          It would appear that VOSA simply relied on the existence of the front passenger seat without giving any thought to the question of whether or not it was suitable for carrying one of the passengers in this particular vehicle.  If this was their approach we are satisfied that it was the wrong approach because it was based on the question of how many passengers the vehicle was physically capable of carrying, which is the wrong question.  In the case of a mini-bus it may well be reasonable to expect someone to use a passenger seat next to the driver, but in the case of a stretch limousine it seems to us that different considerations may apply.  The first point is that anyone using the front passenger seat in a stretch limousine will be facing away from the party in the back, which is likely to make it difficult, if not impossible, for them to join in.  The second point is that such vehicles commonly have a partition between the passenger compartment and the driver, which provides those in the back with a degree of privacy.  If one of the party is expected to use the front passenger seat the party as a whole will have to make a choice between keeping the partition closed and thereby excluding the person in the front or keeping the partition open with the result that they forgo any privacy.  It seems to us that a party faced with that choice would almost certainly say “the vehicle is not suitable”, and that it would be open to a Court or Tribunal to come to the same conclusion.  For obvious reasons the presence of a bar or drinks cabinet would increase the difficulty of saying that a front passenger seat was suitable for use by a passenger.

16.          At the end of the day, as we have already pointed out, it is a question of fact and degree whether this vehicle was suitable to carry more than eight passengers.  If it was not, and it seems to us that it may not have been, then it did not come within the definition of a PSV on which VOSA relied and it would follow that they had no right to impound it.

17.          We can deal quite shortly with the submission that records would show that this particular vehicle never carried more than eight passengers.  In our view this is an irrelevant consideration for the simple reason that the test laid down by Parliament requires a judgment of whether the vehicle is suitable to carry more than eight passengers.  If the answer is that it is suitable to carry more than eight passengers the fact that it has never carried more than eight makes no difference.

18.          Our concerns as to whether VOSA had the right to impound the Lincoln are reinforced by the fact that it was given an SVA, by VOSA, on 12 January 2007.  It seems to us that in January 2007 VOSA must have been satisfied that the vehicle had nine seats or fewer, including the driver’s seat otherwise they would have said that it did not qualify under the SVA scheme.  In other words in January 2007 it would appear that VOSA did not consider that the Lincoln came within the definition of a PSV set out in s. 1(1)(a) of the 1981 Act.  There is no evidence in the papers before us to explain how, when and why VOSA changed their mind.  Nor is there any indication that that change of mind was communicated to the Appellant.  It may simply be a case of one section of VOSA not being aware of what another section has done.  If so it seems to us that VOSA would be wise to consider, before impounding any vehicle in the ‘PLG’ class, whether they have given the vehicle an SVA, and, if so, whether the vehicle remains in the same state.

19.          We return to the position in which the Deputy Traffic Commissioner found himself on the morning of the hearing.  He had, by then, received a written submission from VOSA, which purported to provide a resume of the relevant law.  However it made no reference to the meaning of ‘adapted’ in s. 1(1)(a) of the 1981 Act, nor did it refer to the authorities cited above.  It follows that the Deputy Traffic Commissioner would appear to have been unaware of the inadequate nature of VOSA’s evidence or of the fact that they had failed to apply to correct test when deciding to impound the Lincoln.  The Deputy Traffic Commissioner must have been aware of the Appellant’s contention that the Lincoln had been SVA’d on 12 January 2007 and that that meant that it could only carry eight passengers because Mr Ellis made this point specifically in his letter of 20 July 2012.  However there is no indication that the Deputy Traffic Commissioner was aware of the significance of this assertion nor is there any indication that VOSA appreciated it or sought to explain their change of mind.  We are quite satisfied that if the Deputy Traffic Commissioner had been aware of these matters he would, (or should) have taken a different view of the merits of the application when deciding whether or not to allow an adjournment.  Indeed he would not have said, in paragraph 8 b. of his decision, that ‘it is quite clear that the vehicle is adapted for carry 10 passengers’.  In addition it seems to us that if Mr Hallsworth had been aware that there were doubts about VOSA’s right to impound he would probably have invited the Deputy Traffic Commissioner to adjourn the case rather than oppose an adjournment.

20.          We accept that on paper the Appellant’s claim to be the owners of the Lincoln does not appear to be promising.  We also accept that, as a general rule, ownership is the sensible starting point in any impounding hearing or decision because it is only the owner who can apply to a Traffic Commissioner for the return of an impounded vehicle.  But the Deputy Traffic Commissioner recognised that at a full hearing the position might change, saying: “If Mr Ellis had attended it would have been incumbent on him to prove legal ownership”.  However in any case where the is any reasonable doubt about VOSA’s right to impound our view is that VOSA would be well-advised to be cautious about resisting an application to adjourn and Traffic Commissioner’s would also be wise to be cautious about refusing an adjournment.  The reason is that if the true owner of an impounded vehicle can prove (a) ownership and (b) that VOSA had no right to impound the vehicle it may well follow that VOSA will be liable under the Torts (Interference with Goods) Act 1978, in which case they might be exposed to a claim not only for the value of the vehicle but also for loss of the profit which the vehicle would have made had it not been impounded.  Whether or not such a claim would succeed would depend on the evidence in the individual case but it seems to us that faced with a choice between agreeing to the adjournment of an impounding hearing or facing the possibility of Civil proceedings that VOSA would be likely to opt for the former and that Traffic Commissioners would be unlikely to oppose that course.

21.          In all the circumstances of this case we are satisfied that, for reasons of which the Deputy Traffic Commissioner appears to have been unaware, the decision to refuse an adjournment was plainly wrong.  The only appropriate course is to remit the matter for rehearing and determination.

22.          If the Appellant is in a position to provide a clear evidential paper trail establishing when, from whom and how it acquired the Lincoln they would be well advised to supply it to VOSA and the Traffic Commissioner, in advance of any further hearing.  In turn VOSA would be well-advised to consider their position in the light of the guidance we have given above.  In the longer term they need to consider the training and procedures which are appropriate before decisions to impound stretch limousines are taken, especially those on the margin between being suitable for up to eight passengers and being suitable for more than eight passengers.

23.          Finally we should mention a passage at the end of the judgment of Lord Parker CJ in the case of Wurzal v Addision, which might, at first sight, suggest that a stretch limousine adapted to carry no more than eight passengers could come within s.1(1)(b) of the 1981 Act.  In that case the vehicle in question was being used to transport a group of workers from their factory to the estate on which they lived.  One member of the group made the arrangements and paid the full fare.  She was then reimbursed by her colleagues.  Lord Parker CJ held that it made no difference whether each passenger paid their fare directly to the driver or indirectly via their colleague because in each case the driver was carrying passengers for hire or reward at separate fares.  It is important to remember that this case turned on different legislation.  Our provisional view, (because the point was not argued) is that the effect of s. 1(3) of the 1981 Act is that where the conditions set out in Part I or Part III of Schedule 1 to the 1981 Act are fulfilled a vehicle carrying passengers for hire or reward at separate fares in the course of a business of carrying passengers is not to be treated as a PSV unless it is adapted to carry more than eight passengers.  It may be that this explains VOSA’s reliance, in this case, on s. 1(1)(a) alone.

 

 

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

19 December 2012