Neutral Citation Number: [2015] UKUT 26 (AAC) Appeal No.  T/2014/69

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Richard Turfitt TRAFFIC COMMISSIONER for the East of England

Dated 30 September 2014

 

 

 

Before: Kenneth Mullan Judge of the Upper Tribunal

Mr S. James Member of the Upper Tribunal

Mr M. Farmer Member of the Upper Tribunal

 

 

Appellant: David Anthony Clewett

 

 

 

 

Attendances:

 

For the Appellant: Mr David Clewett, in person

 

 

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

Date of hearing: 18 November 2014

Date of decision: 19 January 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED with immediate effect.

 

 

SUBJECT MATTER:-  Impounding

 

 

CASES REFERRED TO:- :- NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI; Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695; T/2012/17 NCF (Leicester) Ltd

 

 

 

REASONS FOR DECISION

 

Background

 

1.         This is an appeal from the decision of the Traffic Commissioner for the East of England dated 30 September 2014.

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

(i)            On 2 September 2014 vehicle X434 MKP, a Volvo FH 3 + 3 articulated combination, was intercepted by the Driver and Vehicle Standards Agency (DVSA) on the A14 at Thrapston and directed to a suitable lay-by for the purpose of a compliance check. It was being driven by the appellant who stated that he was the owner of the subject vehicle. He also stated that his use of the vehicle was not connected with a trade or business. The vehicle was displaying a Restricted Operator Licence disc for OF 1046387 in the name of D&S Materials Ltd. The disc was displayed behind a piece of blue film cut to the same size as the disc. Enquiries showed that this licence had been revoked on 26 March 2011. The vehicle was found to have been taxed as a private vehicle at the Biggleswade Post Office in November 2013. The trailer had no Ministry or manufacturer’s plate and was not displaying a valid MOT. The trailer was loaded with grain. The vehicle was seized following DVSA impounding procedures.

(ii)           Under cover of notification dated 4 September 2014, DVSA confirmed that the relevant notice would appear in the London Gazette. As a result, the Office of the Traffic Commissioner received an application completed by the appellant and dated 8 September 2014, within the prescribed period permitting such an application.

(iii)          The application form indicated that the appellant did not require a hearing but the Traffic Commissioner determined, nonetheless, that a hearing was required in order to make a fully informed decision. The hearing took place on 26 September 2014. The appellant was present and DVSA was represented by a Traffic Examiner.

(iv)         At the outset of the hearing, the Traffic Commissioner sought to explain the process for the hearing and to confirm the grounds upon which the appellant sought return of the vehicle. The Traffic Commissioner noted that in the application form, the appellant relied on two grounds, as follows:

(a)  That he did not know that the vehicle was being used in contravention of section 2 of the Goods Vehicles (Licensing of Operators) Act 1995 (‘the 1995 Act’); and

(b)  that though knowing at the time the vehicle was detained that it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner had taken steps with a view to preventing any further such use.

(v)          The Traffic Commissioner noted that at the hearing it was quickly established that the appellant did not intend to state that he knew the vehicle was being used in contravention of section 2. He stated that he was unaware that the goods vehicle licence had been revoked. During the course of the hearing, it emerged that the appellant's case was put on the basis that the vehicle was not being used in contravention of section 2 and that, on the day on which it was seized, he was using it as a private vehicle. The appellant referred in evidence to the breakdown of his previous relationship and to issues relating to custody, made allegations of fraudulent activity against his former partner and inferred that she was to blame for correspondence being sent to the Central Licensing Office and HMRC.

(vi)         The Traffic Commissioner, at paragraph 7 of his written decision, noted the detailed documentary evidence which he had reviewed in reaching his decision. He also referred to the transcript of the hearing and the oral evidence which had been given as part of that hearing. The transcript of the hearing is in the bundle of documents which is before us.

The Traffic Commissioner’s decision

3.         The Traffic Commissioner made a number of findings based on his assessment of the evidence which was available to him. Firstly, the Traffic Commissioner noted that the appellant accepted the evidence of the Traffic Examiner as a fair representation and did not seek to challenge its contents. Accordingly the Traffic Commissioner accepted that the vehicle was not in livery when stopped and found to be pulling a trailer loaded with grain. The appellant was driving and denied use of the vehicle in connection with his business or trade. The appellant stated that he was on the way to have the trailer tested at a site in Ridgemont so that he could sell it as he was no longer operating. The grain had been borrowed for that purpose. When it was put to him that he was off route he stated that he was dis-orientated due to his ongoing family issues. As was noted above, there was an operator’s licence disc displayed in the windscreen, but the licence to which it refers had been revoked in 2011, and the disc had been altered by the use of a blue film.

4.         Secondly, the Traffic Commissioner noted that in conversations with the Traffic Examiner, the appellant suggested that his former partner had re-registered the vehicle in the name of another company to prevent him from selling it. When the Traffic Examiner asked how the vehicle had been taxed at Biggleswade Post Office without the required documentation, the appellant stated that the tax disc had been issued without sight of the required documentation. When asked by the Traffic Examiner why the operator’s licence disc was still being displayed the appellant replied that he did not realise that it had been revoked. The Traffic Commissioner noted that it was on that basis that the Traffic Examiner had reasonable grounds to suspect that the vehicle had been used unlawfully and that the impounding procedures were, therefore, commenced.

5.         Thirdly, the Traffic Commissioner noted that the vehicle was shown to be registered to a ‘DC Haulage’. It was previously registered to ‘D&S Materials Ltd’. The Traffic Commissioner noted that the appellant sought to rely on the document which had been supplied by him and which purported to be an invoice selling the relevant vehicle to him. When it had been put to him that the invoice post-dated the application form in which he had stated that he was the owner of the relevant vehicle, the appellant indicated that he was confused and that the invoice should have been dated 22 August 2014 rather than 22 September 2014. The appellant indicated that he had paid £6000 in cash, money which he had saved up at home, and that he had paid this to his ex-partner.

6.         On an assessment of the evidence thus far, the Traffic Commissioner determined that the appellant had failed to satisfy him to the civil standard of proof that he was the owner of the relevant vehicle. The Traffic Commissioner noted that the relevant vehicle was registered to a limited company, that the appellant was unable to produce the original V5C/2, that the invoice purported to come from a trading name and that he was unable to produce any other form of corroboration. The Traffic Commissioner was satisfied on the basis of the oral evidence which had been given that the appellant had been involved in the creation of the invoice referred to above. The Traffic Commissioner found that it was more likely that the invoice had been created as a result of the correspondence sent from the Office of the Traffic Commissioner, alerting the appellant to the requirement to satisfy the Traffic Commissioner that he was the owner of the relevant vehicle. The Traffic Commissioner found the evidence of the appellant that he had decided to purchase the relevant vehicle from his ex-partner to be inconsistent with his earlier description of the relationship which he had with his ex-partner and the allegations of fraud which he had made against her. Further, he could not conceive of a situation where the appellant's ex-partner would have sold the vehicle and supplied the V5C/2 without some form of receipt. The Traffic Commissioner noted that the evidence which had been produced failed to satisfy the claims which had been made by the appellant. He also noted that the appellant could offer no satisfactory explanation as to why he had informed the Traffic Examiner that he had never heard from DC Haulage but now sought to claim that he had purchased the vehicle from that company.

7.         In addition to the findings noted above, the Traffic Commissioner, in his decision, also considered the remaining grounds of the application for the return of the detained vehicle. As was noted that, the principal ground was that although at the time the vehicle was detained, it was being, or had been, used in contravention of section 2 of the 1995 Act, the owner did not know that it was being, or had been, so used. The Traffic Commissioner noted the evidence of the appellant in which he had stated that as far as he was aware the operator’s licence was still current. The appellant had stated that he had left the address which he had used for correspondence 3 to 4 years previously and left everything behind. He left the vehicle and stopped trading. He moved in with his mother and had his post redirected but also referred to the relevant post box being broken into. The Traffic Commissioner noted that there was no reference to the applicant ever having contacted the office of the Traffic Commissioner regarding this change.

8.         The Traffic Commissioner noted that the appellant had now applied for a new licence with the same address. This stated intention was to deliver waste organic material to power stations. The Traffic Commissioner determined that he was entitled to infer that the appellant had knowledge of operator licensing prior to 2 September 2014. The Traffic Commissioner found the appellant's explanation for the blue film across the disc to be wholly unbelievable. The Traffic Commissioner determined that he had no doubt that this was done in order to give the impression that the relevant vehicle was authorised to operate under a standard operator’s licence for hire and reward. As a former operator the appellant would have been well aware of the difference between an orange and blue disc and the relevant implications. The Traffic Commissioner found his claim to have taxed the vehicle at Biggleswade Post Office without documentation indicating ownership to be so unlikely as to be untrue.

9.         The Traffic Commissioner noted the appellant's evidence that the trailer in question had been standing for approximately 6 months. He wanted to take it to MOT before selling it. The appellant had stated that the trailer was empty when he had come across it. He arranged for the load which came from a farm, owned by Mr Chapman. The appellant had stated that the vehicle had not been used before September 2014 except to move his caravan. The Traffic Commissioner compared the appellant's evidence with that of Mr Chapman who had provided a statement which was before him. Mr Chapman was a director of Chapman Farms (Ellington) Ltd. The primary function of the business was the supply of grain. All vehicles that collected produce were required to submit evidence of the previous load and delivery point and that the vehicle and trailer had been satisfactorily cleaned so as to avoid cross contamination. In response to enquiries by the Traffic Examiner, Mr Chapman confirmed that the relevant vehicle was used to collect a load of grain from the company's premises and that the driver supplied all of the required documentation. It was then loaded with a full load of wheat consigned on behalf of Atlas Farms to be delivered to Corby. Mr Chapman provided a copy of the consignment note and the loading book which the appellant confirmed he had signed.

10.      One of the other pieces of documentary evidence which the Traffic Commissioner had before him was a statement from a Clive George Sansom. During the course of the hearing the appellant claimed no knowledge of the matters which had been set out in Mr Sansom's statement and denied creating the invoices. He was unable to explain the reference to him undertaking work. When he was asked about the evidence that the load was to be delivered in Corby, the appellant claimed that this was the nearest place for him to unload the trailer. The appellant insisted that the only load he had been involved in carrying was intended to be taken from Ellington to Corby and that there was no hire or reward involved so the vehicle was not being operated.

11.      In response to enquiries by the Traffic Examiner, Mr Sansom confirmed that he had known the appellant for some time, initially as a driver then as a self-employed haulier, trading as 'DC Haulage'. Mr Sansom supplied invoices which he stated had been generated by DC Haulage for work undertaken on his behalf for various weeks between May and August 2014. Each invoice referred to haulage and referred to the appellant's current address. They also referred to a mobile telephone number which was sequential to that which was disclosed by the appellant in his notice of application. Mr Sansom stated that he had subcontracted to DC Haulage over the previous four months and at the completion of each piece of work he was handed an invoice by the appellant. Prior to commencing the work Mr Sansom asked the appellant to bring his vehicle for a brief inspection during which Mr Sansom noted what appeared to be a blue operator’s licence disc in the top of the windscreen. He, therefore, believed the appellant to be a bona fide operator. He confirmed that the appellant was subcontracted to deliver a load earlier on 2 September 2014. Mr Sansom stated that he was contacted by the appellant to ask if there were any more loads for him to deliver and he was allocated the load from Chapman's Farms. Following the impounding, that load had to be subcontracted to another haulier.

12.      In summary, and at paragraph 16 of his decision, the Traffic Commissioner found the evidence of the appellant to be contradictory and, in parts, to be so unbelievable as to call his credibility into question.

13.      Finally, the Traffic Commissioner reminded himself of the legal tests, based on the relevant jurisprudence, which had to be applied in relation to (i) the issue of proving ownership and (ii) the question of knowledge. In his written decision, the Traffic Commissioner has set out the relevant legal principles at paragraphs 10 and 17 of his decision. In paragraph 17, the Traffic Commissioner has determined that in addressing the question whether the appellant had satisfied him that he probably did not know that the relevant vehicle was being or had been used in contravention of section 2 of the 1995 Act, he was satisfied on the evidence that there was sufficient evidence of actual knowledge so that the appellant had failed to satisfy him that either the vehicle was not being used in contravention of the legislation at the time it was detained or that the appellant did not know that it was being used in contravention of the legislation.

14.      On 30 September 2014 the Traffic Commissioner made a decision to the following effect:

‘On a finding that the Applicant has failed to satisfy me to the civil standard of proof:

(i)            that at the time the vehicle was detained the Applicant was the owner of the vehicle; or

(ii)           that, although at the time the vehicle was detained it was being, or had been, used in contravention of section 2 of the Goods Vehicles (Licensing of Operators) Act 1995, the owner did not know that was being, or had been, so used,

the application for the release of vehicle X 434 MKP, is refused.

 

The appeal to the Upper Tribunal

15.      The appellant was notified of the decision of 30 September 2014 by way of correspondence dated 30 September 2014.

16.      On 3 October 2014 written correspondence was received in the office of the Traffic Commissioner from the appellant. In this correspondence, the appellant made an application to the Traffic Commissioner for suspension of the decision on the return of the vehicle to him on the basis that he was appealing the decision which had been made. On 3 October 2014 correspondence was forwarded from the office of the Traffic Commissioner to the appellant in which it was indicated that the Driver and Vehicle Standards Agency had been notified of the appellant's intention to appeal against the decision of the Traffic Commissioner. The appellant was informed that following receipt of the appeal notification from the Upper Tribunal, all actions to dispose of the relevant vehicle would be held in abeyance pending the appeal decision.

17.      On 6 October 2014 an appeal to the Upper Tribunal was received in the Tribunals Service.

18.      The appellant has set out the following Grounds of Appeal:

‘I wish to appeal the decision of the Traffic Commissioner (Richard Turfitt) on the ownership of the vehicle (X434 MKP) that it belongs to me since 22/8/14 as stated on the V5 and also by invoice as is shown to Traffic Commissioner.’

19.      As was noted above, the appellant, Mr David Clewett attended the oral hearing of the appeal. During the course of the oral hearing, the appellant emphasised that the basis of his appeal centred on ownership of the relevant vehicle. He challenged the conclusions of the Traffic Commissioner on the issue of ownership. He stressed that the evidence which had been made available confirmed that he was the owner of the vehicle. In connection with the issues of the operator’s licence, the use to which the vehicle was being put, and the evidence contained in the statements from Mr Chapman and Mr Sansom, the appellant continued to challenge the assessment of that evidence by the Traffic Commissioner and the findings arrived at by the Traffic Commissioner following that assessment.  

 

Our analysis

20.      We have no hesitation in upholding the decisions of the Traffic Commissioner.

 

21.      In NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, the Upper Tribunal said the following, at paragraph 8 of its decision, on the proper approach on appeal to the Upper Tribunal:

‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act.  Leave to appeal is not required.  At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law.  However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again.  Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place.  For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695.  Two other points emerge from these paragraphs.  First, the Appellant assumes the burden of showing that the decision under appeal is wrong.  Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”.  The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’

22.      The Upper Tribunal In NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI was considering an appeal to the Upper Tribunal against a decision of the Head of the Traffic Regulation Unit under the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010. There is no doubt, however, that the principles set out by the Upper Tribunal in paragraph 8, are derived from parallel appeals, such as the one in the instant case, where the appeal is against a decision of a Traffic Commissioner under the Goods vehicles (Licensing of Operators) Act 1995 and Regulations made under that Act – see paragraph 4 of NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI.

23.      We have not been satisfied that on the basis of the submissions which have been made by the appellant that it could be said that the decision of the Traffic Commissioner in the instant case was ‘plainly wrong’.

24.      We have undertaken a detailed analysis of the Traffic Commissioner’s assessment of the relevant evidence and his findings based on that assessment. We are satisfied that the Traffic Commissioner undertook a rigorous and rational assessment of all of the evidence before him. He gave a sufficient explanation of his assessment of the evidence, explaining why he took the particular view of the evidence which he did. Any conflict in the evidence before the Traffic Commissioner has been clearly resolved and explained. The Traffic Commissioner made sufficient findings, relevant to his decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the Traffic Commissioner’s findings are irrational, perverse or immaterial. All issues raised by the application, either expressly or apparent from the evidence were fully examined by the Traffic Commissioner.

25.      The Traffic Commissioner’s application of the applicable legal rules and principles was wholly accurate and cannot be faulted.

26.      Read as a whole, the Traffic Commissioner’s decision provides a detailed explanation of the basis on which he arrived at his conclusions on the issues before it. 

27.      The grounds which the appellant seeks to advance are parallel to those which were before the Traffic Commissioner. The appellant seeks to make further submission on factual issues which have already been determined in a wholly satisfactory manner. It is axiomatic that an appeal to the Upper Tribunal should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.  

28.      For the reasons which we have set out above, the appeal is dismissed with immediate effect.

 

 

 

Kenneth Mullan, Judge of the Upper Tribunal,

19 January 2015