Neutral Citation Number: [2014] UKUT 190 (AAC) Appeal No: T/2014/03

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF FIONA A HARRINGTON,

DEPUTY TRAFFIC COMMISSIONER for the WEST OF ENGLAND TRAFFIC AREA,

DATED 12 DECEMBER 2013

 

Before:

Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

Mr G Inch, Member of the Upper Tribunal.

Mr M Farmer, Member of the Upper Tribunal.

 

 

Appellant:

SARAH BOYES

 

 

Respondent

DRIVER AND VEHICLE STANDARDS AGENCY (DVSA)

 

Attendance:

For the Appellant: Mrs S Boyes, in person.

For the Respondent: Ms F Hine, Solicitor.

 

 

Appeal heard at: Field House, Breams Buildings, London

Date of hearing: 16 April 2014

Date of decision: 28 April 2014

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed.

 

 

Subject matter:

Impounding. Requirement upon applicant to prove ownership of impounded vehicle.

 

Cases referred to:

Regina (Jones) v First-tier Tribunal (Social Entitlement Chamber) and Another – The Times 31/5/2013

Sarah Boyes [2013] UKUT 285 (AAC)

Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695

Alan Knight Transport B.V. and Alan Michael Knight [2012] UKUT 453 (AAC)

 

 

REASONS FOR DECISION:

 

1)    This was an appeal from the decision of the Deputy Traffic Commissioner for the West of England Traffic Area made on 12 December 2013 when she refused to order the return of vehicle registered number WX54WYB to Mrs Boyes under the provisions of the Goods Vehicles (Enforcement Powers) Regulations 2001, as amended by the Goods Vehicles (Enforcement Powers) (Amendment) Regulations 2009 (“the Regulations”).

 

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

(i)    On 17 June 2013, this tribunal dismissed an appeal by Sarah Boyes against orders for the revocation of her standard national goods vehicles operator’s licence, and for her disqualification from holding an operator’s licence for a period of two years.

(ii)   On 19 August 2013 vehicle registration number WX54WYB was subject to a VOSA roadside compliance check on the A380. The vehicle was displaying a goods vehicle operator’s licence disc issued in relation to the revoked operators licence previously held by Mrs Boyes. The vehicle, however, was specified on a different operator’s licence, namely Maze Logistics Solutions Ltd – the vehicle having been added on 9 August 2013.

(iii)  On 12 September 2013, the Traffic Commissioner’s office received an application, made under Regulation 10 of the Regulations, for the return of the vehicle. The application form states that: “only the owner of the vehicle may apply for its return”. Mrs Boyes put her name down on the form as the sole owner of the impounded vehicle.

(iv) The hearing of Mrs Boyes’ application took place before the Deputy Traffic Commissioner on 15 November 2013. Mrs Boyes was represented by a solicitor, as was VOSA. The Deputy Traffic Commissioner decided to consider the question of ownership first, and reminded herself that the burden of proof was upon the applicant. In her written decision dated 12 December 2013 the Deputy Traffic Commissioner decided that Mrs Boyes had not satisfied her, on the balance of probabilities, that she was the owner of the impounded vehicle. Having made this determination, the Deputy Traffic Commissioner did not consider Mrs Boyes’ application further.

(v)  The evidence in relation to ownership is as follows. In April 2004 a limited company, “Boyes Transport Ltd”, bought the vehicle. The written evidence of sale is a ‘Confirmation of Order’ document that shows the purchaser to be the limited company. It appears that, as a director of that company, Mr Boyes signed the order confirmation on 27 April 2004. On 27 July 2010, Boyes Transport Ltd was struck off the Companies House register, and was dissolved. Mrs Boyes had been a director of the limited company between January 2004 and July 2009. A second director was also in place, namely Mr Martin Freeman. He also resigned in July 2009.

(vi) Mrs Boyes told the Deputy Traffic Commissioner that, when Boyes Transport Ltd ceased trading, the ownership of the vehicle was transferred into the ownership of “Boyes Transport” and she says that this is a trading name that she uses, as a sole trader. There is, however, no formal transfer document, and Mrs Boyes’ solicitor says in a letter dated 15 November 2013 that no money was paid for the vehicle. The papers contain the DVLA Registration Certificate showing that Boyes Transport Ltd acquired the vehicle in 2004, but also showing that the current registered keeper is “Boyes Transport”.

(vii)A letter dated 20 November 2013 from Mr Freeman states:

“Re: WX54WYB - As the former Company Secretary of Boyes Transport Ltd, I can confirm that Mrs Sarah Boyes purchased the above registered vehicle whilst trading as Boyes Transport Ltd in the year ending 30 September 2005. Prior to the dissolution of the company WX54WYB, amongst others, was re-registered in February 2010 to Mrs Boyes and remains her asset to this date. This vehicle is not subject to any finance nor any interest from any other party.”

(viii)       Assuming transfer of ownership from ‘Boyes Transport Ltd’ to ‘Boyes Transport’ is established on balance, the documentation and evidence before the Deputy Traffic Commissioner gave rise to the suggestion that ‘Boyes Transport’ was, in fact, a trading name used by a partnership rather than by a sole trader. An AXA Insurance document dated 11/8/2012 is exhibited showing the policy holders to be “S.M. & S.J. Boyes trading as Boyes Transport”; a Hire Purchase agreement for two tractor units dated March 2013 is exhibited that shows the purchasers to be “Stephen and Sarah Boyes t/a Boyes Transport”; and an active NatWest bank account is held in the name of “Stephen Harold Boyes and Sarah Boyes - Boyes Transport” (a statement is exhibited from August 2013).

(ix) The Deputy Traffic Commissioner considered that the weight of Mr Freeman’s evidence was limited as it was not obtained until after the hearing, she had not had an opportunity of seeing and listening to him in person, and his statement was inconsistent with Companies House records, as he was actually a director. In addition, the vehicle was not re-registered to Mrs Sarah Boyes as he states, it was re-registered to ‘Boyes Transport’. The vehicle was not purchased during the year ending 30/9/2005, and if the date of re-registration was February 2010, then it was some months after Mrs Boyes and Mr Freeman had resigned as directors of the company.

(x)  There was no financial or other paper trail to show the transfer of legal ownership of the vehicle from the limited company to Sarah Boyes as an individual. There was also no financial or other paper trail to demonstrate the transfer of legal ownership from the limited company to a business using the trading name “Boyes Transport” and, even if this had been established, there were evidential indicators pointing to this being a business carried on by a partnership comprising more than one person. The Deputy Traffic Commissioner concluded that she was not satisfied that Mrs Boyes had demonstrated, on balance, that she was the sole lawful owner of the vehicle at the time of its impounding.

 

3)    At the hearing of this appeal, the Appellant appeared in person. Mrs Boyes also submitted a statement from herself that assumed that she had established lawful ownership of the vehicle, and questioned the legitimacy of the impounding. She also submitted a statement from the driver of the vehicle at the time when it was impounded. The DVSA was represented by Ms Hine, who also submitted written submissions.

 

4)    The appellant complained that, had the vehicle not been impounded (and, she claimed, wrongly impounded) she would not have been required to prove ownership of the vehicle. The Appellant asked the tribunal to carefully examine the circumstances surrounding the impounding itself, which is something that the Deputy Traffic Commissioner had not done - since she had found against Mrs Boyes on the question of ownership.

 

5)    The tribunal invited Mrs Boyes to make submissions in relation to the Deputy Traffic Commissioner’s judgment that Mrs Boyes had not established that she enjoyed sole lawful ownership of the vehicle at the time when it was detained. However, Mrs Boyes was unable to shed any further light on the question of ownership beyond that set out in the papers and in her evidence to the Deputy Traffic Commissioner.

 

6)    In Alan Knight Transport B.V. and Alan Michael Knight [2012] UKUT 453 (AAC) the tribunal held that the only person entitled to apply (under Regulation 10 of the Regulations) for the return of an impounded HGV is the owner. If there is any doubt as to whether or not the person applying for the return of the vehicle is in fact the owner of the vehicle the issue must be resolved first because the Traffic Commissioner has no jurisdiction to order the return of the vehicle to anyone else. In the circumstances of the present case, “owner” means in relation to the detained vehicle, the person who can show to the satisfaction of an authorised person that he or she was, at the time of its detention, the lawful owner (whether or not he or she was the person in whose name it was registered).

 

7)    In the earlier appeal of Sarah Boyes [2013] UKUT 285 (AAC) the tribunal confirmed its approach to appeals from decisions of Traffic Commissioners:

 

Since the hearing, the tribunal has become aware of the judgement of the Supreme Court in Regina (Jones) v First-tier Tribunal (Social Entitlement Chamber) and Another – The Times 31/5/2013. In this case, the Supreme Court found that an appellate body should not venture too readily into findings of fact made by specialist first-instance decision makers. …

 The Supreme Court held that the First-tier Tribunal was a specialist tribunal and had made a rational finding of fact that was open to it, even if others may reasonably take a different view - and it was not open to review by the Upper Tribunal (which had respected the First-tier Tribunal’s finding) or by the Court of Appeal.

 

We do not think it necessary to invite representations from Mrs Boyes as to the effect of this judgement as it simply reinforces that of the Court of Appeal’s own decision in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695. Here, the judgment was to the effect that, even where an appellate tribunal has full jurisdiction over law and fact, as we do, there is a distinction to be drawn between the case where the appellate tribunal might take a different view from that of the specialist first-instance decision-maker, and the case where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view from the Traffic Commissioner (our emphasis). Only in the latter case would it be appropriate to interfere.

 

8)    We share the Deputy Traffic Commissioner’s anxiety that there is no documentary evidence to show what happened to the vehicle after it was purchased by the limited company in 2004. If the vehicle was of significant value, any unpaid creditors of the limited company, and HM Revenue and Customs, would have a legitimate interest in knowing how the asset was disposed of, to whom, and for what consideration. Business disposals have a number of accounting and tax implications, as do substantial gifts to individuals. We see no reason why, in these circumstances, the Deputy Traffic Commissioner should have accepted that, just because Mrs Boyes had been a director of the limited company when the vehicle was bought by the company, she became the lawful owner of its assets after it was wound up, especially as the winding-up occurred some months after Mrs Boyes had resigned as a director. Such automatic acquisition of corporate assets is not a process known to law, and does not follow from the known facts and available evidence.

 

9)    We also find no error in the Deputy Traffic Commissioner’s analysis regarding “Boyes Transport”. There is evidential ambiguity as to who uses this trading name and that ambiguity is highly pertinent. The need to establish ownership in impounding cases goes beyond the establishment of jurisdiction, or the identification of the person (or entity) to whom the vehicle might be returned. Two of the grounds for return of the vehicle to the owner, as set out in Regulation 4(3), relate to the knowledge of the owner at the time when the vehicle was being used, or to steps taken by the owner prior to it being used. Thus, in relation to these grounds, if the owner is a partnership rather than a sole individual, the collective knowledge of the partnership (rather than of one individual member of the partnership), or any steps taken by or on behalf of the partnership as a whole, will be the relevant considerations.

 

10) Turning to Mrs Boyes’ complaint that, had the vehicle not been impounded, she would not have been called upon to prove her ownership of the vehicle, we think this case highlights an important point. People or trading entities that purchase, acquire, sell or lease goods vehicles will be well aware of the operator licensing regime, and of the powers of the DVSA in relation to certain goods vehicles that are used on the roads in circumstances requiring the authority of an operator’s licence. In the event that such a vehicle is impounded, establishing lawful ownership is a basic ‘condition precedent’ before any person or entity can make an application to the Traffic Commissioner for its return. It therefore behoves any owner of any such valuable asset to obtain and retain appropriate probative documentation in order to show by whom, how and when ownership of the vehicle was acquired.

 

11) This appeal against the Deputy Traffic Commissioner’s conclusion that Mrs Boyes had not established lawful sole ownership fails. The Deputy Traffic Commissioner’s approach cannot be impugned. She, rightly, considered the question of ownership first, placing the onus of proof upon the person claiming to be the sole lawful owner. The findings and conclusions reached are consistent with the evidence and, indeed, the lack of evidence. The Deputy Traffic Commissioner gave Mrs Boyes every opportunity to prove her case – even permitting a further 10 days after the hearing for further documentary evidence to be submitted. In all the circumstances, we find that neither law nor reason require us to interfere with the Deputy Traffic Commissioner’s determination. We agree that, after the Deputy Traffic Commissioner had reached this determination, she was under no obligation to proceed further. Accordingly, it would be inappropriate for the tribunal to embark upon its own examination of the facts surrounding the impounding.

 

12) The appeal is dismissed.

 

Judge Mark Hinchliffe, DCP

28 April 2014