Neutral Citation Number: [2015] UKUT 500 (AAC)

Appeal No.  T/2015/30

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

ROAD TRANSPORT APPEALS

 

ON APPEAL from the DECISION of Marcia Davis DEPUTY TRAFFIC COMMISSIONER for the East of England

Dated 14 April 2015

 

 

 

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

Appellant:

JULIE SMITH

 

 

Respondent:

DRIVER and VEHICLE STANDARDS AGENCY (DVSA)

 

 

Attendances:

For the Appellant: The Appellant did not appear and was not represented.

For the Respondent: Jason Stevens of Hunt and Coombs, Solicitors

 

 

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

Date of hearing: 16 July 2015

Date of decision: 13 August 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

SUBJECT MATTER:- Impounding, (ownership).

 

 

CASES REFERRED TO:- T/2014/03 Sarah Boyes [2014] UKUT 190 (AAC)

 

 

 

REASONS FOR DECISION

 

 

Background

1.         This is an appeal from the decision of the Deputy Traffic Commissioner for the East of England to dismiss the Appellant’s application for the return of an impounded vehicle.

Facts

2.        The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision.  It is summarised in the remainder of this section.

3.        On 8 May 2013, following a Public Inquiry, the goods vehicle operator’s licence held by Ian John Smith, (“Mr Smith”), the husband of the Appellant, was revoked and he was disqualified from holding or obtaining an operator’s licence for a period of 3 years.

4.        On 18 June 2013 Paul Hydes, a Senior Traffic Examiner employed by the Respondent, wrote to Mr Smith.  The letter stated that it was alleged that on 11 June 2013 he had used a loaded goods vehicle without holding the relevant heavy goods vehicle operator’s licence in contravention of s. 2 of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].  The letter went on to warn Mr Smith that where an authorised person has reason to believe that a vehicle is being used on a road in contravention of s. 2 of the 1995 Act such a person may detain and immobilise the vehicle and its contents indefinitely.

5.        On 10 February 2015 a DAF tractor unit, registration number RK03 EOR, (“the vehicle”), was stopped by Police Officers, including PC Appleton. After the vehicle was stopped members of the Respondent’s staff were informed.  At the time the vehicle was stopped it was being driven by Mr Smith, it was displaying an operator’s licence disc in the name of John Fulcher t/a LA Transport, it bore the livery of Dixon Brothers on the cab and it was towing a trailer loaded with carrots.

6.        Immediately after the vehicle was stopped Mr Smith was cautioned by PC Appleton, who then asked to whom the vehicle belonged.  Mr Smith replied: “It belongs to Mr Fulcher and I am using it to transport animal feed for my cattle”.  He added that he was using it because Mr Fulcher had no current work.  He said that he insured it and that it was registered in the name of his wife.

7.        At the scene Mr Smith was asked by Senior Traffic  Examiner Hydes who the lorry and the load belonged to.  He replied that the trailer and the load were both his.  He was asked for his tachograph chart and replied that he was not using the tachograph because he was driving for less than 4 hours.  He said that he was using the vehicle and trailer to collect a load for his own use as a farmer.

8.        At 15:44 on 10^th February 2015 Mr Smith was told that the vehicle was going to be impounded because there was reason to believe that it was being operated by him without a valid operator’s licence.  He was cautioned.  He replied that he would not say any more and moved away from the vehicle.

9.        A decision was taken to remove the vehicle from the place at which it had been stopped.  PC Sharp told Mr Smith that he would be moving the vehicle.  At the material time PC Sharp was the holder of a Class 1 driving licence and therefore entitled to drive the vehicle. Mr Smith asked where the vehicle would be going.  PC Sharp asked why he needed to know and Mr Smith replied: “It’s my lorry I have a right to know”.  PC Sharp pointed out that he had previously said that it belonged to Mr Fulcher.

10.      At 16:19 on 10^th February 2015 PC Sharp began to drive the vehicle away.  At this point Mr Smith jumped between the cab and the trailer in an attempt to prevent it being removed.  PC Sharp stopped the vehicle and physically removed Mr Smith.  PC Sharp asked him what he was doing.  Mr Smith replied: “It’s my lorry I have a right to know where it is going.  I want to go with it”.  PC Sharp repeated that a moment ago he had said that it belonged to Mr Fulcher adding that in that case it had nothing to do with him.

11.      While Mr Smith was detained by other officers he said: “You have no right to take it, it’s my vehicle I just wanted to go with it”.

12.      The vehicle was driven to premises at which it could be kept pending its removal to secure storage.  All personal belongings were removed from the vehicle.  Amongst the property found in the vehicle were tachograph charts for 8 and 9 February 2015, with the name of Ian Smith in the centre-field and a standard national operator’s licence in the name of John Fulcher.

13.      Inquiries made on 11 February 2015 showed that there were at least two premises at which Mr Smith left trailers, where they would be filled with waste vegetable material.  Once full Mr Smith would move the trailers so that the contents could be fed to his cattle.  Those in charge at each of these premises said that they only dealt with Mr Smith and that they had never heard of Mr Fulcher.

14.      On 12 February 2015 notice of the impounding was given to the Traffic Commissioner and others, including the Appellant.  On 16 February 2015 notice of the impounding was published in the London Gazette.

15.      On 25 February 2015 the Appellant submitted an application for the return of the vehicle.  She claimed that she was the owner of the vehicle and that she did not know that it was being or had been used in contravention of s. 2 of the 1995 Act.  In response to the invitation on the application form to state her case for the return of the vehicle she said that as owner she believed that she had everything she needed for the vehicle to be used legally.

16.      On 4 March 2015 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant stating that the Traffic Commissioner required evidence to be submitted to his office confirming that she was the owner of the vehicle.  The letter pointed out that the Registration document is not, it itself, evidence of ownership.

17.      On 9 March 2015 the Appellant made a Statutory Declaration concerning her ownership of the vehicle.  She said that on 4 June 2015 she attended an auction at Porters Farm near Diss with her husband and that he was the successful bidder for the vehicle.  She said that she paid for the vehicle using a debit card in her husband’s name adding that she was an authorised user of the account to be debited.  She said that that was why the sales invoice, exhibited to the Statutory Declaration, was in her husband’s name.  She went on to explain that she had allowed her husband to use money that she had inherited for his own purposes and that, as a result, it was agreed that the vehicle was to be her property and was to be registered in her name.  She added that she was making the Statutory Declaration to assert her ownership of the vehicle because the Registration Certificate is not, on its own, proof of ownership.

18.      On 17 March 2015 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant to inform her that the Traffic Commissioner had decided to hold a hearing to determine her application.  The Appellant was informed that the Public Inquiry would take place on 31 March 2015.

Hearing

19.      The hearing took place before the Deputy Traffic Commissioner on 31 March 2015.  The Appellant was present, represented by a Solicitor, Mr Chapple.  Mr Smith was not present.  The Respondent was represented by a Solicitor, Mr Stevens, and two Traffic Examiners and a Vehicle Examiner were present to give evidence on behalf of the Respondent.

20.      The Deputy Traffic Commissioner began by establishing that there were no issues as to the validity of the Notices required in an impounding case.  She also established that there were no additional documents to be added to her brief.  She explained that unlike the inquisitorial nature of a Public Inquiry an impounding hearing was an adversarial process, meaning that her role was limited to listening to the evidence presented on both sides.

21.      Traffic Examiner Fordham gave evidence on behalf of the Respondent.  He said that on 10 February 2015 he attended the place where the vehicle had been stopped.  He confirmed that he had heard the conversation summarised at paragraphs 7 and 8 above.  He added that inquiries had already been made of Mr Fulcher who had said that the vehicle belonged to Mr Smith, was insured by Mr Smith but was registered in the name of Mrs Smith and that the vehicle was used by Mr Smith for his own work.  TE Fordham said that as a result of what Mr Fulcher had said it appeared that Mr Fulcher was not, in fact, the operator of the vehicle and that he had lent his operator’s licence disc to Mr Smith in circumstances in which Mr Smith required his own operator’s licence.  TE Fordham went on to confirm the contents of paragraph 13 above.  He expressed the view that the result of the inquiries made by DVSA personnel was that it was Mr Smith who was the owner of the vehicle.

22.      In cross examination he said that Mr Fulcher, following advice from his Solicitor, had refused to be interviewed and had not provided any form of written statement.  He accepted that the vehicle was registered in the name of the Appellant and that he had never spoken to her because it appeared from the inquiries the Respondent had made that she was only the registered keeper.

23.      Vehicle Examiner Salter accepted that he was not within earshot when Mr Smith was detained and was therefore unable to confirm the remarks set out at paragraphs 9, 10 and 11 above.  He said that from his inquiries he believed that Mr Smith owned the vehicle even though he knew that it was registered in the name of the Appellant.

24.      Mr Stevens then referred to the remaining evidence put forward on behalf of the Respondent, which was in the form of written statements.  The material parts have been summarised above.

25.      The Appellant gave evidence in support of her application.  She confirmed the circumstances in which the vehicle was acquired, which have been summarised at paragraph 17 above.  She added that she had had a discussion with her husband before going to the auction as to how to pay for the vehicle.  She said that she had inherited some money from her grandfather and that in the period between her grandfather’s death and the date of the auction she had lent money to her husband, the amount being about the same as the estimated value of the vehicle.  As a result she said that it was agreed between them that if they obtained the vehicle they would use it: “as my financial security for the money” she was owed by her husband.  She added that she and her husband maintained separate finances.  She maintained that she was the owner of the vehicle.  She explained that one of the advantages of the vehicle was that it had the ability to tip trailers whereas when her husband had loads delivered by other hauliers they were unable to tip feed out of their trailers.

26.      The Appellant agreed that the vehicle was insured in the name of her husband.  She said that was because she could not drive it and if it was stolen: “you’d want some kind of insurance on it”.  She denied that she was aware that it was being used illegally and in contravention of s. 2 of the 1995 Act.

27.      In cross-examination the Appellant accepted that it was her husband’s view of the type of lorry required which was the strongest influence in deciding to bid for the vehicle.  She repeated that she had loaned money which she had inherited and that she and her husband decided that: “the best way to get my financial security was for me to own this lorry and then I’d eventually sell the lorry and get my money back on it”.

Deputy Traffic Commissioner’s Decision and Reasons

28.      The Deputy Traffic Commissioner gave a written decision dated 14 April 2015.  She began by setting out the background and the evidence at the hearing, which we have summarised above.

29.      The Deputy Traffic Commissioner drew attention to the fact that it is only the owner of an impounded vehicle who has the right to apply for it to be returned.  She went on to state that if there is any doubt as to whether or not the person applying for the return of an impounded vehicle is in fact the owner that issue should be resolved first, before considering the merits of the ground on which the application is made.  She explained that this issue has to be resolved first to avoid an order for the return of a vehicle to someone who has not established that they own it.  Having regard to all these matters the Deputy Traffic Commissioner decided that she ought to determine the issue of ownership first.  She proceeded on the basis that it was for the Appellant to prove, on the balance of probability that she was the owner of the vehicle.

30.      The Deputy Traffic Commissioner accepted that the vehicle was registered in the name of the Appellant but found, on the undisputed material before her, that a UK Registration Certificate is not proof of ownership.  She set out the case that the Appellant had made in the Statutory Declaration, (see paragraph 17 above).  She went on: “The language used in paragraph 3 makes no reference to a loan of money and the obligation or expectation that the money would be repaid.  Whilst this might have been Mrs Smith’s intention, I have not been provided with evidence of the amount of the initial inheritance, details of the inheritance, nor a statement from Mr Smith confirming that money was loaned to him with the clear expectation of repayment and the vehicle was to act as repayment”.

31.      The Deputy Traffic Commissioner then turned to what Mr Smith had been heard to say immediately before and after being told that the vehicle was to be impounded.  She pointed out that when he declared that the vehicle was his his outbursts were spontaneous and his actions were impetuous and impulsive.  The Deputy Traffic Commissioner concluded in relation to this part of the evidence: “These actions and the declaration that Mr Smith owned the lorry I consider to be very believable and to which I attach considerable weight”.

32.      The Deputy Traffic Commissioner then set out a number of matters which, in her view, had either not been addressed or had not been addressed in a credible or convincing way in the Appellant’s evidence.  First, she pointed to the absence of any financial paper trail proving the amounts lent to Mr Smith or the dates on which the money was said to have been lent.  Second, there were no details of the arrangements for repayment, if any, made at the time that the money was lent.  Third, the Appellant’s case that becoming owner of the vehicle would the best way to give her financial security, because she could sell the vehicle in order to get her money back was difficult to accept given that a lorry is a depreciating asset, no current valuation had been provided and the Appellant was unable to provide details of the mileage covered since the vehicle was bought.  Fourth, no bank account details were provided either for the Appellant or for Mr Smith.  Fifth, there was no financial paper trail for the inheritance.  Sixth, there was no satisfactory explanation as to why she used her husband’s debit card and pin number in order to complete the purchase of the vehicle.  Seventh, there was no explanation as to why the cash, which must have been in her husband’s account to fund the purchase of the vehicle had not been returned to her in repayment of the loan.

33.      The Deputy Traffic Commissioner was unconvinced by the Appellant’s statement that the vehicle would retain its value because it was being kept serviced and roadworthy.  She found the fact that the vehicle was insured in the sole name of Mr Smith to be very significant.  In addition she found that the Appellant’s limited involvement, the fact that Mr Smith chose the vehicle, that he bid for it and that his debit card was used to pay for it and that the paperwork for the purchase was in his name were also very significant.

34.      The Deputy Traffic Commissioner quoted a passage from paragraph 10 of the decision in appeal T/2014/03 Sarah Boyes [2014] UKUT 190 (AAC) which ends with these words: “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”.  The Deputy Traffic Commissioner pointed out that in the present case the documentary evidence, with the exception of the Registration Certificate was all in the name of Mr Smith.

35.      Taking all these matters into account the Deputy Traffic Commissioner concluded that that Appellant had failed to prove, on the balance of probability, that she was the owner of the vehicle.  As a result the application was dismissed without consideration of the merits or otherwise of the ground on which return was sought.

Grounds of Appeal

36.      The Appellant filed a Notice of Appeal on 7 May 2015.  She set out five grounds of appeal several of which related to the ground on which she sought the return of the vehicle.  We will consider the individual grounds under the heading ‘Discussion’.

 

Appeal Hearing

37.      The Appellant did not attend the hearing of the appeal, nor was she represented.  She had informed the Tribunal several days before the date of the hearing that due to childcare problems she would not be able to attend.  The Tribunal decided to hear and determine the appeal in her absence.  In doing so we have considered all the material contained in the appeal file with a view to assessing the grounds of appeal raised and also deciding whether there are any other matters which might assist the Appellant who is now acting in person.

Discussion

38.      We are satisfied that the Deputy Traffic Commissioner was correct when she decided that this was a case in which ownership ought to be decided first.  We are also satisfied that she correctly directed herself that it was for the Appellant to show, on the balance of probability, that she was the owner of the vehicle.  Having concluded that the Appellant had failed to prove ownership we are also satisfied that the Deputy Traffic Commissioner was entitled to decline to make any further findings.

39.      The first ground of appeal is that the Appellant did not know that the vehicle was being or had been used in contravention of s. 2 of the 1995 Act.  The Appellant went on to explain why she made that submission.  We can deal with this ground of appeal quite briefly because it was unnecessary for the Deputy Traffic Commissioner to make any finding on the question of lack of knowledge of use in contravention of s. 2 for the simple reason that the Appellant failed to show that she owned the vehicle.  Unless and until the Appellant showed that she was the owner of the vehicle the issue raised by this ground of appeal simply did not arise.

40.      The second ground of appeal challenges the finding that the vehicle was a depreciating asset.  The argument for the Appellant being that the vehicle had depreciated to the point were it would not lose any more value.  There are two reasons for rejecting this ground of appeal.  The first is that there was no evidence, as the Deputy Traffic Commissioner correctly pointed out, as to the value of the vehicle or as to whether or not it would depreciate further.  The second is that all vehicles can suffer serious mechanical failure or damage in an accident.  There will be cases when it is simply uneconomic to repair such a vehicle.  In that situation its value will reduce to whatever it will fetch for scrap.  If follows, in our view, that the Deputy Traffic Commissioner was entitled to be sceptical about the argument that the vehicle was a form of security for the money said to have been loaned to Mr Smith.

41.      The third ground of appeal seeks to explain why the money used to purchase the vehicle remained in Mr Smith’s account rather than being transferred to Mrs Smith in repayment of the loan.  In our view the explanation given in this ground of appeal in no way detracts from the point with the Deputy Traffic Commissioner was making.  Her view seems to have been that the clearest way to show that the vehicle belonged to the Appellant would have been to transfer the money from Mr Smith’s account to her own account, thus (a) repaying the loan and (b) providing the Appellant with the funds to buy the vehicle in her own name.  In our view nothing advanced in support of the third ground of appeal undermines the force of this point.

42.      The fourth ground of appeal asserts that it was unfair for the Deputy Traffic Commissioner to rely on evidence from statements made by the witnesses present at the time of the impounding when Mr Smith had written to the OTC to challenge some of the things recorded in those statements.  In assessing this point it is important to remember two things.  First, it was open to the Appellant, who was legally represented at the hearing before the Deputy Traffic Commissioner, to require the attendance of witnesses for cross-examination.  It will be clear from our summary of the hearing that some witnesses did attend and were cross-examined while others did not.  It appears that the statements of those who did not attend were read with the agreement of both sides.  These included the statements of some witnesses who had recorded significant remarks made by Mr Smith. There is no explanation as to why some witnesses attended while the statements of others were read.  Second, it was open to the Appellant to call Mr Smith to give evidence in support of her case but she did not do so.  The Deputy Traffic Commissioner was required to weigh up and assess all the evidence put before her, including witness statements that were read out.  It seems to us that this is precisely what she did.  In our view the Deputy Traffic Commissioner was entitled to reach the conclusions that she did, even though some of those conclusions may have been founded in whole or in part on written statements, which were read at the Public Inquiry.  We are not persuaded that her approach to this part of the evidence has been shown to be plainly wrong.

43.      The fifth ground of appeal returns to the question of the way in which the vehicle was being operated at the time that it was impounded.  This relates to the ground on which the Appellant sought the return of the vehicle.  We have already explained, (in paragraph 39 above), that the question of whether the Appellant could prove that she did not know that the vehicle was being or had been used in contravention of s. 2 of the 1995 Act simply did not arise in this case because the Appellant failed to satisfy the DTC that she was the owner of the vehicle, ownership being a pre-condition, which must be met before the grounds for return can be considered.

Conclusion

44.      We have seen nothing in the grounds of appeal or in the appeal file that persuades us that the Deputy Traffic Commissioner was plainly wrong to conclude that the Appellant had failed to prove that she was the owner of the vehicle.  On the contrary we were impressed by the care that the Deputy Traffic Commissioner took not merely to set out her findings but also to demonstrate how those findings were justified by the evidence she accepted.  This was a well-reasoned and convincing decision, which we have no hesitation in upholding.

45.      For these reasons the appeal is dismissed.

 

 

 

Michael Brodrick

 

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

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

13 August 2015