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Neutral Citation Number: [2010] UKUT 366 (AAC) Appeal No: T/2010/44

IN THE UPPER TRIBUNALADMINISTRATIVE APPEALS CHAMBER(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF BEVERLEY BELL,TRAFFIC COMMISSIONER for the NORTH WESTERN TRAFFIC AREADATED 14 MAY 2010

Before:

Judge Mark Hinchliffe,Deputy Chamber President; Health, Education & Social Care Chamber

Patricia SteelMember of the Upper Tribunal

John RobinsonMember of the Upper Tribunal

Appellant:

Anthony J Long t/a AJ Long Services

Attendance:

For the Appellant: Mr A. J. Long, represented by Mr C. Harris, Transport Consultant

Appeal heard at: Victory House on 23 September 2010

Date of decision: 5 October 2010

DECISION OF THE UPPER TRIBUNAL :

The appeal is dismissed

Subject Matter:

Impounding

Cases referred to:

None

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REASONS FOR DECISION:

1) This was an appeal from the decision of the Traffic Commissioner for the NorthWestern Traffic Area, made on 14 May 2010, when she determined that animpounded vehicle, BX04YXD should not be returned to its owner, Mr Long.

2) The factual background to this appeal appears from the documents, the transcriptand the Traffic Commissioners decision, and is as follows:

(i) On 9/12 /2009 the Traffic Commissioner revoked an operators licence held by GCIInternational Ltd, of Oldham. She found that the operator, along with others, hadallowed its operators licence to be used by others for the sole purpose of facilitatingthe continued operation of commercial vehicles by people who had had licencesrefused or revoked or who had been disqualified from holding a operators licence. TheTraffic Commissioner found that officers of the company, including one Nadeem Iqbal,either knew or should have known that the use of GCI Internationals licence in thisway was illegal.

(ii) The Appellant, Mr Long, is the owner of a Volvo 3 x 3 axle articulated combination,vehicle registration number BX04YXD. On 16/12/09 the vehicle was directed into aVOSA check site in Greater Manchester. The driver of the vehicle was Mr J Clintworth.He said that he was being paid by Mr Long. No goods vehicle operator licence discwas displayed and Mr Clintworth could not name the operator. All he could say wasthat he thought that the vehicle was operated from Rochdale. The vehicle wastransporting a 40 foot shipping container carrying medical equipment from Liverpool

docks to a company called Arizant in Wakefield.(iii) Mr Clintworth was asked for his tachograph records for the previous few days.

Journeys on 9/12/09, 10/12/09, 11/12/09, 12/12/09, 14,12/09, 15/12/09 and 16/12/09-the day of the impounding - all commenced from Kirkby. The Inland Transport Order,produced to VOSA officers, named AJ Long Services, of Knowsley Industrial Park,Kirkby, as the haulier. Since Mr Long did not have an operators licence (and GCIInternational Ltd had had its licence revoked the week before) the vehicle wasimpounded.

(iv) A Traffic Examiner, Mr Henry, spoke to Mr Long on the telephone. Mr Long admittedthat the vehicle belonged to him but claimed that he had hired the vehicle to GCIInternational Ltd, and they had an operators licence and they were the operator. Hesaid he was unaware that their operators licence had been revoked. Mr Long hassubsequently confirmed that the trailer and the shipping container also belonged tohim, that the original contract for the transportation of the goods was made with AJLong Services, and that AJ Long Services were being paid for the job.

(v) On 29/12/09, Mr Harris (Mr Longs representative) wrote to VOSA seeking the return of the vehicle. Mr Harris said that the equipment was being operated by GCI InternationalLtd under a rental agreement with AJ Long Services and, although BX04YXD was notactually specified on the (revoked) operators licence of GCI International Ltd, it hadrecently been taken by them in order to replace another vehicle supplied by Mr Long

that had broken down earlier that week. VOSA declined to return the vehicle.

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(vi) On 21/1/2010, a Volvo 3 x 3 axle vehicle, PN06CVV was stopped by a uniformedpolice officer on the M6 northbound carriageway. The vehicle, which was not in factspecified on an operators licence, was displaying what turned out to be a forgedoperators licence disc from Northern Ireland. Mr Long was the driver of the vehicle andhe told the Traffic Examiner in attendance that he was driving the vehicle on his own

behalf, and that he traded as Container Service Logistics of Kirkby, Liverpool. Headmitted that he did not have an operators licence and that he had put the disc in thewindow. He denied that he had made the forged disc. In due course it transpired thatMr Long was not in fact the owner of the vehicle, he was the lessee under anunregulated lease agreement dated 6/8/08. The owners were Close Asset Finance,who applied for the return of the vehicle. VOSA declined to return the vehicle.

(vii) In due course applications were brought in relation to both impoundings and, becauseof the links involving Mr Long, and because much turned on the reliability andcredibility of Mr Longs evidence, the Traffic Commissioner decided to hold bothhearings together, although she made separate (and different) determinations in

respect of the two vehicles. The hearings began on 12/3/2010. Mr Long told the TrafficCommissioner that he rented vehicles to GCI. He said We have like we rentvehicles out and we have a fleet forwarding company

(viii) At one point the Traffic Commissioner asked Mr Long about Mr Clintworth, the driver of BX04YXD:

TC: Now, he said when he was interviewed that he was paid by you. What do you say tome about that, Mr Long.Mr Long: He was paid by GCI. He was not paid by me.TC: But he told VOSA that he was paid by you. Why would he make that up?Mr Long: I cant answer that Maam.

TC: Well, do you know John Clintworth?Mr Long: I know of him.TC: You know of him?Mr Long: Driving at CGI.TC: So who employed him?Mr Long: GCI.

(ix) At the conclusion of the hearing, the Traffic Commissioner reserved her decision.Subsequently, however, she learned that Mr Long had appeared before Deputy TrafficCommissioner Evans at a driver conduct hearing on 12/10/09. At this hearing, Mr Longsaid that he had been disqualified from driving for some 4 years but had successfullyapplied to have the disqualification lifted on 1/12/08. The Deputy Traffic Commissioner then asked:

DTC: What have you been doing since then?Mr Long: Just a bit of warehousing work, some stackers you know, just bits and pieceswherever I can, bits and pieces and that.

(x) The Traffic Commissioner felt that this evidence was inconsistent with Mr Longs claimbefore her to be engaged in vehicle logistics, and to be leasing or buying vehicles, andthen sub-hiring them to a licensed operator, and then hiring them back again under thatother companys operators licence in order to undertake haulage on behalf of AJ LongServices; or to own and run a company called Container Service Logistics. The TrafficCommissioner reconvened the hearing and put these inconsistencies to Mr Long, who

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said that the Deputy Traffic Commissioner had asked him what he was doing personally:

Mr Long: He was asking what I was doing and, obviously, what I was doing, I was earningmoney. I was driving stackers in the warehouse unloading containers.TC: Well it was hardly the whole truth.

(xi) The Traffic Commissioner was asked to rely on a Without Driver Vehicle HireAgreement, dated 25/8/09 between AJ Long Services and GCI International Ltd, and astatement from Mr Nadeem Iqbal of GCI, in which he stated, in relation to Mr Clintworth(the driver of BX04YXD):

We had agreed to hire the driver Mr John Clintworth from AJ Long Services for a coupleof weeks in the run up to Christmas. We had not had an opportunity to meet the driver but we were assured by Mr Long that he was properly qualified and experienced.

(xii) The Traffic Commissioner issued her decision on 14 May 2010. She returned vehiclePN06CVV to Close Asset Finance but refused to return BX04YXD to Mr Long. Shefound that Mr Long was the true operator of BX04YXD and that any link with GCIInternational Ltd was a sham. In these circumstances, the claim that Mr Long did notknow that the operators licence of GCI had been revoked was irrelevant. Mr Long wasthe operator. He knew that he was the operator. He knew that he did not have anoperators licence, and he knew that he should have had one hence the illegal andsham pretence to hire the vehicle to GCI and then hire it back with their driver.

(xiii) The Traffic Commissioner rejected as untrue the evidence given by Mr Long to DeputyTraffic Commissioner Evans. Before her, the Traffic Commissioner said that Mr Longsanswers were dishonest, calculated to deceive and not substantiated by independentevidence. Thus, insofar as key aspects of Mr Longs case depended upon hiscredibility, and the reliability and honesty of his evidence, she did not believe him.

(xiv) In her narrative of the evidence, the Traffic Commissioner correctly referred to theforged disc as being in the windscreen of PN06CVV, which Mr Long had been driving.At two places in her findings and determination, however, the Traffic Commissioner,wrongly, referred to the disc as having been in BX04YXD, which Mr Long owned.

3) At the hearing of this appeal, the Appellants were represented by Mr Harris whosubmitted a skeleton argument for which we were grateful. The first point madewas that the Traffic Commissioner erred in law by basing her assessment of theAppellants credibility and state of mind on the facts surrounding another impounding event which took place just over a month later. The facts relating to the

two impoundings were different and the Traffic Commissioner should not havelinked one with the other.

4) We reject this submission. The link between the two impoundings was obvious and,in both cases, it readily appeared as if in reality Mr Long was operating the vehicleshimself. The applicable impounding regulations were made by the Secretary of State under the Goods Vehicles (Licensing of Operators) Act 1995, and the TrafficCommissioner has power under the Act to hear related or linked matters together if it is just and convenient to do so. We therefore see no reason why this power should not extend to impounding hearings and so long as each case receivesindividual consideration we find nothing objectionable in the Traffic Commissioner taking this approach. Indeed, it would have been artificial and inappropriate to try tomaintain a false separation between these two cases. The Traffic Commissioner

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was able to reach separate and different conclusions in relation to each application.This demonstrates that she did give each case individual and separateconsideration.

5) The next point, however, raises a linked issue namely the slips made by the

Traffic Commissioner when she incorrectly attributed the false disc to the vehiclethat Mr Long owned rather than, as she should have done, to the vehicle that hewas driving. However, we are satisfied that the Traffic Commissioner was notlabouring from beginning to end under a false apprehension. Her initial narrative of the facts was accurate, and there was no hint of confusion at the hearing itself.They were no more than slips and, in our view, the Traffic Commissioners views asto credibility are amply justified whichever vehicle the disc was in.

6) It was submitted that any variation in the Appellants evidence in relation to hisbusiness activities is not relevant. We disagree. In an impounding hearing basedupon Regulation 10(4)(c) of the Goods Vehicles (Enforcement Powers) Regulations2001, as amended, the burden of proof is upon the applicant. The nature of whatthe Appellants business is and is not lies at the heart of the case. Mr Longsought to suggest that he did have a business, but that it did not extend tooperating HGVs for the commercial carriage of goods. To persuade the TrafficCommissioner of this, despite appearances to the contrary, required consistent andcredible evidence from Mr Long, preferably supported by the consistent,corroborative and credible evidence from others. We considered that these featureswere entirely lacking from the evidence adduced by Mr Long. The TrafficCommissioner was not plainly wrong to disbelieve him.

7) The tribunal were particularly disturbed by the inconsistent and contradictoryevidence presented in relation to the driver. As is well known, a helpful indicator of who might be the operator of a vehicle is to be found in the question of who controlsthe driver, who directs his activities and who pays him.

8) At the hearing before us, Mr Long said that he did pay Mr Clintworth, but then billedGCI for the amount. His role was like an agent putting forward Mr Clintworth to aclient and charging the client for Mr Clintworths services. However, despiteproducing a Without Driver agreement with GCI (which we regard as evidentiallyworthless) no documentation was produced to support the claim of billing GCI for the driver - a claim which, in any event, was totally inconsistent with what Mr Long

told the Traffic Commissioner.

9) It is regrettable that this impounding case became as complicated and drawn out asit did, with the papers and transcripts exceeding 500 pages. The vehicle BX04YXDwas owned and insured by Mr Long, was driven by a man who said he was paid byMr Long and who could not name any other operator. This driver was (according toGCI) supplied by Mr Long and they had not met him. The vehicle had never beenspecified on GCIs licence and GCI was, in any event, a company that hadsystematically allowed unsuitable persons to use its operators licence illegally.Although Mr Long, in contrast, told the Traffic Commissioner that GCI paid Mr Clintworth, and he only knew of him, this was not the account given by the driver

himself. The journey was for the benefit of Mr Long, and Mr Longs business wasnamed as the haulier on the Inland Transport Order. That Mr Long was the true

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operator appears to us to be as clear as day, and that Mr Longs evidence wasunreliable and contrived, from beginning to end, is equally clear.

10) Of course, the more complicated a case is permitted to become, the easier it is tomake a slip. Although we can see the point in dealing with the two impounding

hearings together, we think the Traffic Commissioner thereafter made her job moredifficult than was necessary, and the hearings strayed from the strictly relevant.Having said that, we are satisfied that her material conclusions were based on acorrect application of the law to facts reasonably found on the relevant evidence,and the appeal is, therefore, dismissed.

Judge Mark Hinchliffe, DCP5 October 2010