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[2010] UKUT 366 (AAC)

Neutral Citation Number: [2010] UKUT 366 (AAC)


Appeal No: T/2010/44

IN THE UPPER TRIBUNAL


ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF BEVERLEY BELL,


TRAFFIC COMMISSIONER for the NORTH WESTERN TRAFFIC AREA
DATED 14 MAY 2010

Before:

Judge Mark Hinchliffe,


Deputy Chamber President; Health, Education & Social Care Chamber
Patricia Steel
Member of the Upper Tribunal
John Robinson
Member 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
[2010] UKUT 366 (AAC)

REASONS FOR DECISION:


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

2) The factual background to this appeal appears from the documents, the transcript
and the Traffic Commissioner’s decision, and is as follows:
(i) On 9/12 /2009 the Traffic Commissioner revoked an operator’s licence held by GCI
International Ltd, of Oldham. She found that the operator, along with others, had
allowed its operator’s licence to be used by others for the sole purpose of facilitating
the continued operation of commercial vehicles by people who had had licences
refused or revoked or who had been disqualified from holding a operator’s licence. The
Traffic Commissioner found that officers of the company, including one Nadeem Iqbal,
either knew or should have known that the use of GCI International’s licence in this
way 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 a
VOSA 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 disc
was displayed and Mr Clintworth could not name the operator. All he could say was
that he thought that the vehicle was operated from Rochdale. The vehicle was
transporting 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 operator’s licence (and GCI
International Ltd had had its licence revoked the week before) the vehicle was
impounded.
(iv) A Traffic Examiner, Mr Henry, spoke to Mr Long on the telephone. Mr Long admitted
that the vehicle belonged to him but claimed that he had hired the vehicle to GCI
International Ltd, and they had an operator’s licence and they were the operator. He
said he was unaware that their operator’s licence had been revoked. Mr Long has
subsequently confirmed that the trailer and the shipping container also belonged to
him, that the original contract for the transportation of the goods was made with AJ
Long Services, and that AJ Long Services were being paid for the job.
(v) On 29/12/09, Mr Harris (Mr Long’s representative) wrote to VOSA seeking the return of
the vehicle. Mr Harris said that the equipment was being operated by GCI International
Ltd under a rental agreement with AJ Long Services and, although BX04YXD was not
actually specified on the (revoked) operator’s licence of GCI International Ltd, it had
recently 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.
[2010] UKUT 366 (AAC)

(vi) On 21/1/2010, a Volvo 3 x 3 axle vehicle, PN06CVV was stopped by a uniformed


police officer on the M6 northbound carriageway. The vehicle, which was not in fact
specified on an operator’s licence, was displaying what turned out to be a forged
operator’s licence disc from Northern Ireland. Mr Long was the driver of the vehicle and
he 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. He
admitted that he did not have an operator’s licence and that he had put the disc in the
window. He denied that he had made the forged disc. In due course it transpired that
Mr Long was not in fact the owner of the vehicle, he was the lessee under an
unregulated 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, because
of the links involving Mr Long, and because much turned on the reliability and
credibility of Mr Long’s evidence, the Traffic Commissioner decided to hold both
hearings 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 Traffic
Commissioner that he rented vehicles to GCI. He said “We have like … we rent
vehicles 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 to
me 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 can’t answer that Ma’am.
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 Traffic
Commissioner Evans at a driver conduct hearing on 12/10/09. At this hearing, Mr Long
said that he had been disqualified from driving for some 4 years but had successfully
applied 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 pieces
wherever I can, bits and pieces and that.
(x) The Traffic Commissioner felt that this evidence was inconsistent with Mr Long’s claim
before her to be engaged in vehicle logistics, and to be leasing or buying vehicles, and
then sub-hiring them to a licensed operator, and then hiring them back again under that
other company’s operator’s licence in order to undertake haulage on behalf of AJ Long
Services; or to own and run a company called Container Service Logistics. The Traffic
Commissioner reconvened the hearing and put these inconsistencies to Mr Long, who
[2010] UKUT 366 (AAC)

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 earning
money. 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 Hire
Agreement”, dated 25/8/09 between AJ Long Services and GCI International Ltd, and a
statement 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 couple
of 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 vehicle
PN06CVV to Close Asset Finance but refused to return BX04YXD to Mr Long. She
found that Mr Long was the true operator of BX04YXD and that any link with GCI
International Ltd was a sham. In these circumstances, the claim that Mr Long did not
know that the operator’s licence of GCI had been revoked was irrelevant. Mr Long was
the operator. He knew that he was the operator. He knew that he did not have an
operator’s licence, and he knew that he should have had one – hence the illegal and
sham 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 Deputy
Traffic Commissioner Evans. Before her, the Traffic Commissioner said that Mr Long’s
answers were dishonest, calculated to deceive and not substantiated by independent
evidence. Thus, insofar as key aspects of Mr Long’s case depended upon his
credibility, 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 the
forged 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 who
submitted a skeleton argument for which we were grateful. The first point made
was that the Traffic Commissioner erred in law by basing her assessment of the
Appellant’s 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 have
linked 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 vehicles
himself. The applicable impounding regulations were made by the Secretary of
State under the Goods Vehicles (Licensing of Operators) Act 1995, and the Traffic
Commissioner 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 receives
individual consideration –we find nothing objectionable in the Traffic Commissioner
taking this approach. Indeed, it would have been artificial and inappropriate to try to
maintain a false separation between these two cases. The Traffic Commissioner
[2010] UKUT 366 (AAC)

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

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 vehicle
that Mr Long owned rather than, as she should have done, to the vehicle that he
was driving. However, we are satisfied that the Traffic Commissioner was not
labouring 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 Commissioner’s views as
to credibility are amply justified whichever vehicle the disc was in.

6) It was submitted that any variation in the Appellant’s evidence in relation to his
business activities is not relevant. We disagree. In an impounding hearing based
upon Regulation 10(4)(c) of the Goods Vehicles (Enforcement Powers) Regulations
2001, as amended, the burden of proof is upon the applicant. The nature of what
the Appellant’s business is – and is not – lies at the heart of the case. Mr Long
sought to suggest that he did have a business, but that it did not extend to
operating HGVs for the commercial carriage of goods. To persuade the Traffic
Commissioner of this, despite appearances to the contrary, required consistent and
credible evidence from Mr Long, preferably supported by the consistent,
corroborative and credible evidence from others. We considered that these features
were entirely lacking from the evidence adduced by Mr Long. The Traffic
Commissioner was not plainly wrong to disbelieve him.

7) The tribunal were particularly disturbed by the inconsistent and contradictory


evidence 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 controls
the 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 billed
GCI for the amount. His role was like an agent – putting forward Mr Clintworth to a
client and charging the client for Mr Clintworth’s services. However, despite
producing a “Without Driver” agreement with GCI (which we regard as evidentially
worthless) 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 as
it did, with the papers and transcripts exceeding 500 pages. The vehicle BX04YXD
was owned and insured by Mr Long, was driven by a man who said he was paid by
Mr Long and who could not name any other operator. This driver was (according to
GCI) supplied by Mr Long and they had not met him. The vehicle had never been
specified on GCI’s licence and GCI was, in any event, a company that had
systematically allowed unsuitable persons to use its operator’s 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 Long’s business was
named as the haulier on the Inland Transport Order. That Mr Long was the true
[2010] UKUT 366 (AAC)

operator appears to us to be as clear as day, and that Mr Long’s evidence was


unreliable 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 to
make 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 more
difficult than was necessary, and the hearings strayed from the strictly relevant.
Having said that, we are satisfied that her material conclusions were based on a
correct application of the law to facts reasonably found on the relevant evidence,
and the appeal is, therefore, dismissed.

Judge Mark Hinchliffe, DCP


5 October 2010