Neutral Citation Number: [2013] UKUT 537 (AAC)

Appeal No.  T/2013/50

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Nick Denton TRAFFIC COMMISSIONER for LONDON AND THE SOUTH EAST OF ENGLAND

Dated 3 July 2013

 

 

 

Before:

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

Stuart James, Member of the Upper Tribunal

Andrew Guest, Member of the Upper Tribunal

 

 

Appellant:

TARIQ MEHMOOD AKHTAR

 

and

 

Respondent:

VEHICLE and OPERATOR SERVICES AGENCY (VOSA)

 

 

 

Attendances:

For the Appellant: Laura Hadzik of JWM Solicitors

For the Respondent: Stephen Thomas

 

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 8 October 2013

Date of decision: 28 October 2013

 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

SUBJECT MATTER:-   Impounding

 

 

CASES REFERRED TO:- Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for London and the South East of England 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 Traffic Commissioner’s decision and is as follows:-

(i)                   The Appellant was the holder of a restricted goods vehicle operator’s licence authorising two vehicles.  His licence was revoked following a Public Inquiry held on 9 April 2013.

(ii)                 On 10 April 2013 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant to inform him that his licence had been revoked on the grounds set out in a call-up letter dated 26 February 2013, which had warned the Appellant that the Traffic Commissioner was considering the revocation of the licence.  As a result of an administrative error the letter stated that the licence had been revoked on 28 April 2013 but this was subsequently corrected.  The letter concluded with a warning that the Appellant had no authority to operate a vehicle of over 3.5 tonnes gross plated weight and that if he did so, in contravention of s. 2 of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"], the vehicle could be detained under Regulation 3 of the Goods Vehicles (Enforcement of Powers) Regulations 2001, (“the 2001 Regulations").

(iii)                On 11 June 2013 a Mercedes refrigerated goods vehicle, registration number FX57 CCN, (“the vehicle”), was stopped by a Traffic Examiner in Wimbourne Road, Southall, London.  The Appellant was the registered keeper of the vehicle.  Displayed on the windscreen of the vehicle was a restricted operator’s licence, (OK1107020), in the Appellant’s name, with an expiry date of 31 December 2016.  In addition there was a sheet of paper attached to the windscreen showing a number, OK1121014, similar in format to the operator’s licence number on the Appellant’s operator’s licence.  There was no trace of either licence number on the VOSA mobile compliance system.  However it appeared that OK1121014 was the number given to an application for a licence by a company called Abdullah Halal Meat Ltd, with a director named as Mohammed Saleem.  This application was still being processed.

(iv)                The driver of the vehicle was Tariq Munir.  He confirmed that he was employed by the Appellant.  He said that the vehicle’s load, of lamb and sheep carcasses was being moved in connection with the Appellant’s trade or business.  He was interviewed under caution.  During that interview he accepted that he knew that the Appellant’s operator’s licence had been revoked.  He said that he was told to use the vehicle by the Appellant and that on the day the vehicle was impounded it was transporting the Appellant’s goods in connection with his trade or business.  He went on to say that he thought that the vehicle had been bought from the Appellant, the previous Saturday, by Mohammed Saleem.  He added that he had been given the piece of paper found on the windscreen by Mohammed Saleem, who had said that the number could be used.

(v)                 After the vehicle had been stopped inquiries were made to establish whether or not the Appellant was operating the vehicle without being the holder of a valid operator’s licence.  As a result of those inquiries the Traffic Examiner had reason to believe that the vehicle was being used in contravention of s. 2 of the 1995 Act.  Authority was given to impound the vehicle, which was seized in the exercise of the powers conferred by Regulation 3 of the 2001 Regulations.

(vi)                The Traffic Examiner contacted the Appellant and informed him that the vehicle had been impounded.

(vii)              On 13 June 2013 the Traffic Examiner interviewed Mohammed Saleem under caution.  He said that the Appellant still owned the vehicle but that he had expressed an interest in buying it.  He denied giving the Appellant the piece of paper found on the windscreen.  He said that he and the Appellant shared an office and had joint use of the office equipment.  He suggested that the Appellant must have obtained the number OK1121014 directly from the OTC.

(viii)             On 21 June 2013 the Traffic Examiner interviewed the Appellant under caution.  He confirmed that the goods being carried in the vehicle were his property and that they were being carried in the course of his trade or business.  He confirmed that he was aware that his operator’s licence had been revoked, having received the decision letter from the OTC.  He said that he knew that the vehicle was being used on his behalf.  He was asked about the piece of paper on the windscreen.  He admitted that he knew that the number belonged to Mohammed Saleem but denied putting the piece of paper on the windscreen.  He said that he was not at work on the day in question.  When asked how he had obtained the number for Mohammed Saleem’s application he replied ‘No comment’.  He admitted that all the events on 11 June 2013 were his fault.

(ix)                Following the impounding of the vehicle the appropriate advertisement was placed in the London Gazette and the Appellant, amongst others, was given formal notice of the impounding.  The formal notice alerted the Appellant to his right to apply for the return of the vehicle.

(x)                 On 15 June 2013 the Appellant submitted an application for the return of the vehicle.  In his application he asserted that he was the owner of the vehicle, he requested that the application should be considered at a hearing but he left the grounds on which he claimed the return of the vehicle blank.  Under the heading ‘Details of the Application’ he asked that the Traffic Commissioner accept his deepest apologies for the misunderstanding leading to the impounding of the vehicle.  He said that it would never happen again and stressed the importance of having the vehicle released as quickly as possible because his business was suffering and he had employees who did not want to go on benefits.

(xi)                On 3 July 2013 a hearing took place to enable the Traffic Commissioner to consider the Appellant’s application for the return of the vehicle.  The Appellant was present, supported by Hassan Khan.  The Traffic Examiner was also present. 

(xii)               Having confirmed the circumstances of the impounding with the Traffic Examiner the Traffic Commissioner pointed out to the Appellant that he had not ticked the ground on which he sought the return of the vehicle.  The Appellant replied that it was his driver’s mistake and that it would not happen again.  He was invited to look at the relevant page of the application and the Traffic Commissioner went through the grounds on which a vehicle can be returned to its owner.  It was agreed, after an intervention by Mr Khan, that the most appropriate ground was ‘(c)’ namely that the Appellant did not know that the vehicle was being used in contravention of s. 2 of the 1995 Act.

(xiii)             The Traffic Commissioner went on to ask the Appellant to explain why he was saying that he did not know that the vehicle was being used in contravention of s. 2 of the 1995 Act. The Appellant replied that the driver was supposed to borrow Mr Saleem’s vehicle.  The Traffic Commissioner pointed out that Mr Saleem did not have a vehicle or an operator’s licence.  The Appellant replied that the driver was supposed to take a small vehicle.  The Traffic Commissioner referred the Appellant to an answer in the interview where he appeared to accept that he was aware that the vehicle was being used on 11 June 2013.  The Appellant replied that it was his mistake but then a little later said that his driver, by mistake, had failed to use the small van which he was supposed to use.

(xiv)             The Traffic Commissioner then turned to the question of whether or not the vehicle had been used on any other occasion  He warned the Appellant that it would be possible to check his answer against the evidence available to VOSA.  The Appellant replied that the vehicle had been used on 10 June because his supplier had not delivered and the Appellant had sent his vehicle to collect the delivery.  The Appellant accepted that he knew on that occasion that the vehicle was being used.  He added that he had no option but to use the vehicle in contravention of s. 2 of the 1995 Act.  At this point the Traffic Examiner interjected to indicate that he had a record of the vehicle’s movements because he had downloaded information from its tachograph.  Once he had accessed the information it became clear that in the 28 days before 11 June 2013 the vehicle had been used on 13 occasions including 10 June 2013 and that on some of those occasions the Appellant was the driver.  The Appellant was asked to explain why the vehicle was used on these occasions without an operator’s licence.  He replied: “No comment”.

(xv)              When asked whether there were any other points that he wanted to make the Appellant asked to be given a chance and he promised that it would never happen again.  Mr Khan then invited the Traffic Commissioner to consider retuning the vehicle so that it could be kept in the yard as a store.

(xvi)             The Traffic Commissioner retired briefly and then returned to give an oral decision.  He found that the Appellant had actual knowledge of the fact that the vehicle was being used in contravention of s. 2 of the 1995 Act.  He reached that conclusion on the basis that the Appellant had admitted that he was aware that his operator’s licence had been revoked when he allowed the vehicle to be used to carry goods in connection with the business.  He found that that conclusion was confirmed by the driver of the vehicle who said in interview that it was the Appellant who had instructed him to take the vehicle out.  He also relied on the Appellant’s admission in the course of his evidence that he had used the vehicle on 10 June 2013 in order to collect meat, which his supplier had been unable to deliver.  Finally the Traffic Commissioner concluded that on the other occasions on which the vehicle was driven, in the 28 days before 11 June 2013 the pattern of driving was clearly indicative of commercial use.  Having determined that VOSA were entitled to impound the vehicle the Traffic Commissioner refused the Appellant’s application for its return on the ground that the Appellant had failed to show that he did not know that it was being used in contravention of s. 2 of the 1995 Act.

(xvii)            On 5 July 2013 the OTC sent a decision letter to the Appellant.  The substance of the Traffic Commissioner’s oral decision was set out in numbered paragraph 2.

(xviii)          On 31 July 2013 the Appellant filed a Notice of Appeal against this decision.  In the grounds of appeal the Appellant accepted (i) that his operator’s licence had been revoked, (ii) that applications to stay that decision had been refused by the Traffic Commissioner and by the Tribunal and (iii) that, as a result the Appellant was aware that he had no authority to operate the vehicle.  The grounds of appeal went on to state that it was understood, (a) that Mr Saleem had provided the piece of paper recovered from the windscreen of the vehicle, (b) that Mr Saleem had led the Appellant to believe that he had an operator’s licence, (c) that the Appellant had entered into an arrangement with Mr Saleem under which his vehicle was hired to Mr Saleem’s company and his work was to be carried out by that company, pending the outcome of the Appellant’s appeal against the revocation of his operator’s licence. On that basis it was submitted that the Appellant did not know of the use in contravention either on 11 June 2013 or on any of the earlier occasions on which the vehicle was used because he believed that the vehicle was being operated under a valid licence.

3.           At the hearing of the appeal the Appellant attended and was represented by Laura Hadzik.  VOSA were represented by Stephen Thomas.  Both provided us, in advance, with helpful skeleton arguments, for which we are grateful.

4.           On behalf of the Appellant Ms Hadzik repeated the explanation set out in the grounds of appeal and submitted that on that basis the Appellant could establish that he did not know of the use in contravention of s. 2 of the 1995 Act, either on 11 June 2013 or on any of the other occasions on which the vehicle had been used in the period before 11 June 2013.  She accepted that this explanation had not been put before the Traffic Commissioner.  She invited the Tribunal to bear in mind that English is not the Appellant’s first language with the result that he may have had difficulty in explaining the position as fully as he should have done.

5.           On behalf of VOSA Mr Thomas pointed out that the Appellant had been in business for several years and that he should be taken to know that a piece of paper with what appears to be an operator’s licence number is not sufficient to demonstrate the existence of a valid operator’ licence, because what is required is a valid disc.  Mr Thomas went on to submit that the explanation now relied on by the Appellant never featured in the evidence before the Traffic Commissioner, or indeed at any earlier opportunity, for example the interview.  He submitted that in view of the admissions made by the Appellant to the Traffic Commissioner and the discrepancies between the different accounts which the Appellant had given the decision reached by the Traffic Commissioner was correct.

6.           The Tribunal’s approach to deciding an appeal must be governed by the guidance given by the Court of Appeal in the case of: Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  Amongst other points the Court of Appeal made it clear, first, that the Appellant ‘assumes the burden’ of showing that the decision appealed from is wrong and second, that in order to succeed the Appellant must show not merely that there are grounds for preferring a different view but that there are objective grounds upon which the Tribunal ought to conclude that the different view is the right one.  Put another way it is not enough that the Tribunal might prefer a different view; the Appellant must show that the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view.  This represents a high hurdle for an Appellant to clear.

7.           We are quite satisfied that the Appellant in the present case has failed to show that the Tribunal is required to come to a different conclusion to that reached by the Traffic Commissioner.  As Ms Hadzik had to accept there was no evidence before the Traffic Commissioner to support the case now being made by the Appellant.  Instead the evidence before the Traffic Commissioner was very clear.  The Appellant knew that his licence had been revoked.  He knew that the applications to stay that decision had been refused.  He was initially less than frank about the extent to which the vehicle had been used in the 28 days before it was impounded but when the full extent of its usage became clear it also became apparent that the Appellant had driven the vehicle on a small number of occasions, including the night before it was impounded.  In our view it is difficult to imagine a clearer case of actual knowledge that the vehicle was being used in contravention of s. 2 of the 1995 Act.

8.           In our judgment the decision of the Traffic Commissioner was plainly right, with the result that the appeal is dismissed with immediate effect.

 

 

 

 

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

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

28 October 2013