Neutral Citation Number: [2013] UKUT 322 (AAC)

Appeal No.  T/2013/15

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Sarah Bell TRAFFIC COMMISSIONER for the Western Traffic Area

Dated 24 January 2013

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

Appellant:

COMMERCIAL TRADINGS LIMITED

 

 

 

 

Attendances:

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

 

 

Heard at: Field House, 15 Breams Buildings, London, EC4A 1DZ.

Date of hearing: 4 June 2013

Date of decision: 2 July 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

SUBJECT MATTER:-   Impounding

 

 

CASES REFERRED TO:- None

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the Western Traffic Area to refuse the Appellant’s application for the return of an impounded vehicle.

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

(i)                   On 19 January 2012 a MAN M8 heavy goods vehicle, registration number RO2 OHX, (“the vehicle”), was stopped on the A46 at the Tormarton check site.  The vehicle was carrying a boiler and was on a journey from London to Lydney.  It was not displaying an Operator’s Licence disc.

(ii)                 Inquiries showed that, as from 24 February 2011, the vehicle was registered to Commercial Trading Limited of Bilport Lane, Wednesbury.  The driver of the vehicle gave his name as Keith David Haines.  At the scene he said that he was working for Commercial Trading of Bilport Lane, Wednesbury.  Later when interviewed he stated that he was working on behalf of Christopher Hill as the owner of a company called CNH Logistics Ltd.

(iii)                Further inquiries revealed that Christopher Hill was a director of CNH Logistics Ltd and company Secretary of Commercial Tradings Ltd.  On 28 April 2008 an application by CNH Logistics, for an operator’s licence, was refused.  Christopher Hill accepted that he was aware of the requirements in relation to operator’s licensing.  He referred to the fact that his application had been refused.

(iv)                As a result of the inquiries made following the stopping of the vehicle Amy Comer, an authorised person, had reason to believe that it was being or had been used on a road in contravention of s. 2 of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].  The vehicle was therefore impounded.

(v)                 On 28 January 2012 Christopher Hill submitted an application for the return of the vehicle, (“the first application”).  The application form states that only the owner of an impounded vehicle can apply for its return.  The form then offers a choice depending on whether the vehicle is owned by an individual, on the one hand, or by a partnership, company or unincorporated body on the other.  Christopher Hill provided his personal details in the box intended for making a claim to personal ownership but, in addition, he gave the name of CNH Logistics in the box for a claim by a partnership, company or unincorporated body, adding his own name as ‘owner’ of the company.  The claim for the return of the vehicle was made on the basis that although it was known at the time that the vehicle was detained that it was being used in contravention of s. 2 of the 1995 Act steps had been taken with a view to preventing that use and steps had been taken with a view to preventing any future such use.

(vi)                The details provided in support of the claim were that the vehicle was being used to transport a boiler, which was required to be moved within a specified period after it was purchased.  On 23 February 2012 Christopher Hill responded to a request for more detail.  He explained that he had bought the boiler as a matter of urgency due to cold weather conditions.  He said that a term of the contract required that the boiler was collected within 48 hours.  He said that he had been unable to find a company which was able to move the boiler within that time limit and therefore used his own transport.  He gave an assurance that he had done so as a ‘last resort’.

(vii)              On 4 April 2012 Christopher Hill was informed that the Traffic Commissioner had decided to hold a hearing in order to determine whether or not there were valid grounds for the return of the vehicle.  The letter gave the date of the hearing as 10 May 2012 and it explained where it would take place.

(viii)             On 17 April 2012 Christopher Hill was interviewed under caution.  He explained that the company CNH Logistics Ltd had been dissolved about three years earlier and that he was now a sole trader using the name CNH Logistics.  He accepted that he was operating the vehicle on 19 January 2012 and that he did not hold an operator’s licence.  He explained that Commercial Trading Ltd was his father’s company and that he was using the vehicle without his father’s permission, because he had to move the boiler within 24 hours.

(ix)                On 10 May 2012 the first application came before the Traffic Commissioner.  Christopher Hill did not attend nor did he make any application for an adjournment.  Steps were taken to ascertain that Christopher Hill was aware of the hearing and having established that he was the Traffic Commissioner decided to proceed in his absence.  She rejected the application on two grounds.  The first was that Christopher Hill had failed to prove that he was the owner of the vehicle.  She referred to the fact that when interviewed under caution Christopher Hill had said that the vehicle was owned by his father’s company, Commercial Trading Ltd, and that he was using it without permission.  The second was that she concluded that the use of the vehicle was a matter of ‘commercial necessity’ and that there was no genuine system in place to prevent future use in contravention of s. 2 of the 1995 Act.

(x)                 On 3 June 2012 a further application for the return of the vehicle was submitted by Andrew Hill, (the father of Christopher Hill), (“the second application”).  The name of the owner was stated to be “Commercial Trading” and the contact name given was Andrew Hill, who described himself as “owner”.  The ground on which the return of the vehicle was claimed was that the owner did not know that it was being or had been used in contravention of s. 2 of the 1995 Act.

(xi)                The details of the application were provided in a statement attached to the application.  The statement began: “I Mr Andrew Hill owner of the vehicle RO02 OHX Man lorry”.  It went on to explain that on 18 January 2012 Andrew Hill was in the custody of Staffordshire Police, (he was subsequently acquitted of all charges), and that he did not know that his son had used the vehicle until about a week after the event.  He added that he usually immobilized the vehicle and locked it in a compound but that due to his arrest he was unable to do so.

(xii)               On 18 December 2012 the Appellant was informed that the application for the return of the vehicle would be considered at a hearing on 7 January 2013.

(xiii)             In advance of the hearing information was obtained in relation to a number of companies. 

(xiv)             Commercial Tradings Ltd was incorporated on 14 March 2008, with a Registered Office at 25 Bilport Lane, Wednesbury, West Midlands.  The nature of the business was stated to be: “Freight transport by road”.  Christopher Hill was appointed Secretary on 14 March 2008 and Andrew Hill was appointed sole Director on the same date.  The company was described as ‘dormant’ and accounts were overdue.

(xv)              CNH Logistics Ltd was incorporated on 24 September 2007, with Andrew Hill as Secretary and Christopher Hill as the sole Director.  It was dissolved on 14 July 2009.

(xvi)             The hearing took place before the Traffic Commissioner on 7 January 2013.  After explaining how the hearing would be conducted the Traffic Commissioner reminded Andrew Hill that it was for him to satisfy her that the application was being made by the owner of the vehicle and that the owner did not know of the use in contravention of s. 2 of the 1995 Act.  She then directed Andrew Hill’s attention to the application in order to clarify who he said was the owner of the vehicle.  Andrew Hill replied that he was present as a director of “Commercial Trading Ltd” and that he was not claiming to own the vehicle in a personal capacity.  The Traffic Commissioner then established that the only documentary evidence which Andrew Hill had brought, with a view to proving ownership, was the logbook for the vehicle.  She pointed out that the logbook was not proof of ownership.

(xvii)            The Traffic Commissioner then heard evidence from Miss Comer, on behalf of VOSA.  The effect of her evidence has been summarised above.  It was not challenged by Andrew Hill and, having heard it, the Traffic Commissioner indicated that she was satisfied that VOSA was entitled to impound the vehicle.

(xviii)          Andrew Hill then gave evidence.  He was asked about the purchase of the vehicle.  He said that he had bought it, acting for the Limited Company, some two years earlier or perhaps longer.  When it was pointed out that there had been a change of registered keeper in February 2011 he said that it would have been round about then.  He said that it was bought from another company, but he could not remember the name.  He added that the transaction took place on Ebay and that he thought that the vehicle cost ‘five grand’, paid by cheque, which he thought had passed through the company bank account.  When asked whether this was usual for a transaction on Ebay he said that he had telephoned the seller.  He said that he had bought the vehicle for use in connection with his steel business.

(xix)             The Traffic Commissioner then asked whether Commercial Tradings Ltd had anything to do with the steel business.  Andrew Hill replied that it did and he suggested that it was referred to as ‘CTL’.  He was asked about his son’s role in the business and replied that he hadnothing to do with the business and had never had anything to do with the business.  When asked why his son was named as Company Secretary he replied that: “we just had to put somebody down as a named Company Secretary”.

(xx)               In relation to the vehicle Andrew Hill said that it was kept at Unit 25 and that the keys were usually left in it because it was locked behind a shutter at night.  He went to explain that the shutter was opened with a keypad and that he thought that Christopher Hill knew the code for the keypad.  He accepted that his son knew that the keys were left in the vehicle.  He was referred to the details of the second application, where he had said that he usually immobilised the vehicle and locked it in a compound.  After a number of exchanges Andrew Hill accepted that he had rather over-stated the position in the application.  He was asked about the fact that the tachograph recorded that the vehicle left Unit 25 at 03.25.  He said that he knew nothing about it and denied that there had been any discussion about his son using the vehicle.

(xxi)             At the end of the hearing the Traffic Commissioner directed that the Appellant should have 7 days to lodge additional evidence of ownership and that a written decision would follow within 14 days thereafter.

(xxii)            In response to this direction the Appellant provided the Traffic Commissioner with a copy of an invoice, dated 28 September 2010, from J&B Ltd, Braydon Lane Garage at Cricklade.  The invoice was addressed to Commercial Trading Co. Ltd, Unit 25 Sandown Industrial Park, Mill Road, Esher.  It recorded the sale of a MAN Truck registration number RO02 OHX for a total, including VAT of £5,000.80.  In addition the Appellant provide a copy of a bank statement for an account in the name of Commercial Tradings Ltd, 25 Bilport Lane, Wednesbury, showing a payment, by cheque number 000128 of £5,000.00 on 1 October 2010.

(xxiii)           Further company searches revealed that a company called Commercial Trading Company Ltd was incorporated on 16 April 1982, with a registered office at 188 Royal College Street, London.  The nature of its business was given as “other transportation support activities”.  One of the Directors gave an address of Unit D6, Sandown Industrial Park, Mill Road, Esher.

(xxiv)          Those searches also revealed that J&B Ltd was incorporated on 18 February 2003, with a registered office at 9 Ladyroyd, Silkstone Common, Barnsley.  The nature of its business was stated to be “other professional, scientific and technical activities not elsewhere classified”.  The addresses given by the Directors were all in the areas of Barnsley or Sheffield.

(xxv)            The Traffic Commissioner gave a written decision dated 24 January 2013.  She set out the background, which we have summarised above and then turned to the question of the ownership of the vehicle.  She referred to the fact that she had asked Andrew Hill to clarify who was claiming to be the owner of the vehicle and that she had amended the claim form in the light of his answer.

(xxvi)          The Traffic Commissioner went on to state that the logbook, which recorded the registered keeper of a vehicle, was not, on its own, evidence of ownership, though it might contribute to proof of ownership when combined with other material.  She pointed out that in the case of the vehicle the registered keeper was shown to be Commercial Trading Ltd, in other words the company apparently based near Esher, not the company of which the Appellant is a Director.  She went on to consider the invoice and the bank statement submitted by the Appellant and set out a number of discrepancies between the two.  First, the invoice was for £5,000.80 whereas the payment was for £5,000.00 exactly.  Second, the invoice came from J&B Ltd at Cricklade, near Swindon, whereas the company search showed that the registered office of J&B Ltd and the addresses of the Directors were all in the area of Barnsley or Sheffield.  Third, the nature of J&B Ltd’s business was not consistent with Andrew Hill’s evidence that the vehicle was bought from a dealer.  Fourth, there was a registered company with the name of Commercial Trading Company Ltd, (the name on the invoice) which clearly had no connection with the Appellant.  Having considered these discrepancies the Traffic Commissioner concluded that the Appellant had failed to provide cogent evidence that it was the owner of the vehicle. She relied, in particular on these facts: (i) that the invoice was addressed to a company which existed, at an address linked to that company, save for a slightly different unit number, (ii) that the Appellant had no connection to the company to which the invoice was addressed and (iii) that there was a discrepancy between the amount on the invoice and the amount of the payment, albeit of 80 pence.

(xxvii)         The Traffic Commissioner went on to consider the ground for return and the details given in support of that ground.  She rejected Andrew Hill’s evidence that he knew nothing about the use of the vehicle on the occasion in question.  She concluded that either the journey had already been arranged by the time that Andrew Hill was arrested or that it was implicit that it could be arranged if necessary.  One of the matters which influenced the Traffic Commissioner in her assessment of Andrew Hill’s evidence was the discrepancy between Andrew Hill’s evidence and what he had said in the detail of the claim.  Another matter concerned the state of the documents put forward to prove ownership.  The Traffic Commissioner concluded that the Appellant had failed to prove lack of knowledge of use in contravention of s. 2 of the 1995 Act.

(xxviii)        Accordingly the Traffic Commissioner concluded that the application failed (a) because the Appellant had not proved ownership of the vehicle and (b) because it had not proved lack of knowledge.

(xxix)           On 10 February 2013 the Appellant filed a Notice of Appeal.  In the grounds of appeal filed on behalf of the Appellant Andrew Hill said that he had made further inquiries about the invoice since receiving the Traffic Commissioner’s decision.  He said that the explanation which he received was that the log book had been made out and sent before the invoice was drawn up. He said that he was told that when the invoice was made out the person responsible incorrectly remembered the name ‘Commercial Trading Ltd’.  When that name was ‘Googled’ it produced the address in Esher, hence the fact that that address appeared on the invoice.  Andrew Hill attached a further copy of the invoice, to the Notice of Appeal, which was addressed to his company.  He also attached an invoice, dated 31 August 2010, addressed to J & B Bulk Haulage Ltd at the address in Cricklade, which was said to record the purchase of the vehicle by that company.  Andrew Hill repeated the point that he could not have known of the use in contravention because he was in custody at the time.

3.           The appeal was listed for hearing at 10.30 a.m. on 4 June 2013.  It was reached at about 11.15 a.m.  Before proceeding further the Tribunal Clerk was requested to check whether the Appellant was in the building and to ask whether the Tribunal staff had received any message from the Appellant either explaining his absence or requesting an adjournment.  The Tribunal Clerk informed us that the Appellant was not present and that no message had been received from him.  In those circumstances we decided to hear and determine the matter in the absence of the Appellant.

4.           We considered all the matters set out in the appeal file in order to decide whether the decision of the Traffic Commissioner was plainly wrong.  We also considered the way in which the hearing was conducted.

5.           At an early stage in the hearing and again during the evidence of Andrew Hill the Traffic Commissioner sought to clarify who was said to be the owner of the vehicle.  Having done so the Traffic Commissioner amended the claim so that it made it clear that it was the Appellant company which claimed to be the owner of the vehicle.  We have considered whether or not this was the correct way in which to proceed.  We are satisfied that it was. 

6.           Regulation 10(1) of the Goods Vehicles (Enforcement of Powers) Regulations 2001, (“the 2001 Regulations”) provides that it is “the owner of a vehicle detained in accordance with Regulation 3” who is given the right to apply for the return of the vehicle.  The fact that the right to apply for the return of a detained vehicle is confined to the owner is hardly surprising given that the result of a successful application is an order under Regulation 14 of the 2001 Regulations for the return of the vehicle to the owner.  The requirement for the claimant to satisfy the Traffic Commissioner, on the balance of probability, that he, she or it is the owner of the detained vehicle is an essential step in avoiding an order for the return of a vehicle to someone who later turns out not to be the owner.  While it is a rare event in the experience of the members of the Tribunal the present appeal demonstrates the possibility of a second application being made in relation to the same vehicle, arising out of the same impounding.

7.           The expression “owner” is defined in Regulation 2.  For the purposes of the present appeal it means “the person who can show to the satisfaction of the Traffic Commissioner that he was at the time of its detention the lawful owner (whether or not he was the person in whose name it was so registered)”.

8.           In our experience it is not unusual for applications for the return of detained vehicles to be completed in a way, which leaves the identity of the person claiming ownership uncertain.  Indeed the present appeal provides two examples.  In our view identifying the person who is claiming to be the owner is so important that unless the position is clearly set out in the claim the Traffic Commissioner is entitled to take steps to seek clarification.  It seems to us that the better course is to seek clarification at the outset, though it may be that the issue will only emerge in the course of the evidence.  Once the position becomes clear it seems to us that it is sensible to amend the application so that it clearly states who is claiming to own the impounded vehicle.  In our view the steps taken by the Traffic Commissioner to clarify who was claiming to own the vehicle cannot be faulted.

9.           The next question was whether the Traffic Commissioner was correct in allowing Andrew Hill a further seven days in which to provide documentary proof of ownership of the vehicle.  If his oral evidence was correct it strongly suggested that documentary proof would be available to confirm what he said.  In those circumstances we are satisfied that the Traffic Commissioner was correct to allow some time for the documents to be produced.  In our view any other course would not have been in the interests of justice because it would have deprived the Traffic Commissioner of potentially decisive evidence.  Given the requirement to determine applications for the return of impounded vehicles speedily it seems to us that the period of seven days, which the Traffic Commissioner allowed, achieved the right balance between allowing enough time for the documents to be produced, without contributing to unnecessary delay.

10.        In the grounds of appeal Andrew Hill has sought to explain one of the discrepancies, which persuaded the Traffic Commissioner that the claim to ownership had not been established.  Leaving aside the question of whether it would be appropriate to admit fresh evidence we are not persuaded that this explanation assists the Appellant.  The suggestion that the invoice was sent to the wrong company raises more questions than it answers.  For example: (i) what did the company in Esher do when it received a claim for payment for a vehicle, which it had not bought, (assuming that this was the case)?  (ii) If the invoice was sent to the wrong address what prompted the Appellant to pay £5,000?

11.        We are quite satisfied that the Traffic Commissioner gave compelling reasons for concluding that the Appellant had failed to show, on the balance of probability, that it was the owner of the vehicle.  Those reasons are not undermined by the matters raised in the grounds of appeal.  Significantly Andrew Hill did not provide the Traffic Commissioner, (or the Tribunal), with any documentary evidence of the person or company to whom the cheque for £5,000 was paid, nor did he explain the discrepancy in the amount.  In our judgment the reasons given by the Traffic Commissioner remain compelling and her conclusion that the Appellant has failed to prove ownership must stand.

12.        While that finding is sufficient to dispose of the appeal we would simply add that, in our view, the Traffic Commissioner was entitled to conclude that the Appellant had failed to prove lack of knowledge of use in contravention of s. 2 of the 1995 Act.  She had the advantage of seeing and hearing Andrew Hill and she has given good reasons for rejecting his evidence.

13.        For these reasons the appeal is dismissed.

 

 

 

 

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

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

2 July 2013