Neutral Citation Number: [2012] UKUT 404 (AAC)                              Appeal No: T/2012/33

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF JOHN BAKER,
DEPUTY TRAFFIC COMMISSIONER for the
SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA, 
DATED 14 MAY 2012

Before:
Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
David Yeomans, Member of the Upper Tribunal.
Stuart James, Member of the Upper Tribunal.

Appellant:
R.B. HIRE LIMITED

Attendance:
For the Appellant: 	Mr Barry Bermingham

Appeal heard at: 	Victory House, Kingsway, London
Date of hearing: 	17 October 2012
Date of decision: 	7 November 2012

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be dismissed

Subject matter:	
Impounding

Cases referred to:
None

REASONS FOR DECISION:

1)	This was an appeal from the decision of the Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area made on 14 May 2012 when he refused the appellant’s application for the return of impounded vehicle EO02BNE under the Goods Vehicles (Enforcement Powers) Regulations 2001.

2)	The factual background to this appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision and is as follows:
(i)	The Appellant is not the holder of an operators licence. 
(ii)	At approximately 21:50 hours on Tuesday, 13 March 2012 a Traffic Examiner was on duty in Kent when she observed vehicle registration EO02BNE, towing a semi trailer, entering the checkpoint under the guidance of an Enforcement Support Officer. The driver gave his name as Jeffrey Michael Nethercott and he said that Cyclone Freight employed him. The vehicle was displaying a blue operator’s licence disc in the name of John Byrne trading as Stag Freight.
(iii)	It transpired that the operator licence disc was no longer valid, the licence having been revoked in August 2011. The Traffic Examiner asked Mr Nethercott for more information and Mr Nethercott spoke to Mr Barry Bermingham who asserted the appellant’s ownership of the vehicle by sending a copy of the V5 logbook by fax. The V5 logbook showed that R.B. Hire Ltd had the same address as Stag Freight.
(iv)	A decision was made to detain the vehicle pending further enquiries, at which point Mr Bermingham sent a text message to Mr Nethercott providing an address for Cyclone Freight. It then became apparent that Cyclone Freight did not have an operator’s licence.
(v)	 Mr Bermingham was told that until a licensed operator had been determined for the vehicle it would remain immobilised. Mr Bermingham, at this time, made no mention of any belief on his part that the vehicle would only be used for off-road activity not requiring an operator’s licence.
(vi)	Further checks by VOSA examiners showed that R.B. Hire Ltd had been contacted previously, in November 2011, and had been invited to apply for an operator’s licence due to previous vehicles owned by them being encountered by VOSA and not displaying a valid operator’s licence.
(vii)	Mr Nethercott was interviewed in the early hours of the morning of 14 March 2012. He said that he had started his journey in Calais and that he was bringing back a load of beer. He said “Barry” of Cyclone Freight employed him and he said that “Barry” gave him his instructions.
(viii)	On 24 March 2012 Mr Bermingham made an application to the Traffic Commissioner requesting the return of his vehicle on the grounds that he did not know that it would be used or had been used in contravention of section 2 of the Goods Vehicles (Licensing of Operators) Act 1995.
(ix)	Mr Bermingham also wrote to the Traffic Commissioner to explain that Mr Nethercott had approached him seeking a short-term rental of the vehicle and that Mr Nethercott had assured him that the vehicle would not be used on a public road and would only be used as a shunter in a private yard. Mr Nethercott had only wanted the vehicle for one month until he purchased a different vehicle for himself. Mr Bermingham admitted that he had bought the vehicle from Stag Freight but said that he did not know anything about the operator’s licence disc that Mr Nethercott ‘must have found’ in the vehicle. Mr Bermingham attached an “Agreement for hire a vehicle” which had at the very top an additional paragraph: 
“This agreement made between Mr Jeffrey Nethercott and R.B. Hire Ltd on the vehicle hire of a Renault Premium registration EO02BNE and the vehicle is to be used for shunting purposes on a short-term let only… Dated 3 March 2012”. 
(x)	The agreement document, however, is a hire purchase agreement as is clear from the paragraphs confirming that “the owner has the right to sell the vehicle at the time the property is to pass”. The document also refers to the vehicle “described in the schedule hereto”, but there is no schedule. The time frame for the hire is also open ended with provision made for fortnightly payments after the first month.
(xi)	A public inquiry to consider the application took place on 4 May 2012, Mr Bermingham attended but Mr Nethercott did not attend. Mr Bermingham told the Deputy Traffic Commissioner that he had brought the vehicle from John Byrne and he could only assume that the Stag Freight operator licence disc had been in the vehicle “for a few years”.
(xii)	The Traffic Examiner told the Deputy Traffic Commissioner that Mr Nethercott, when interviewed, had clarified that the “Barry” he referred to was the same man that he had spoken to on the telephone, namely Mr Bermingham. Mr Nethercott had not said anything about hiring the vehicle for shunting only and the Traffic Examiner also said that when he spoke to Mr Bermingham to obtain documentation, he told Mr Bermingham that VOSA not only needed a V5 logbook to determine who owned a vehicle but also, if it was on hire, a rental agreement. However, no rental agreement was produced to VOSA at that time.
(xiii)	The Deputy Traffic Commissioner reserved his decision. In the written decision the Deputy Traffic Commissioner concluded that Mr Bermingham had failed to satisfy him, on balance, that the ground for return of the vehicle was made out. In summary, the Deputy Traffic Commissioner’s reasons were:
•	Mr Nethercott told VOSA at the time that he took his instructions from “Barry”, namely Mr Bermingham;
•	Mr Nethercott made no mention of only hiring the vehicle for shunting only.
•	When Mr Bermingham was contacted on the phone at the time of the impounding he made no mention of the suggestion that Mr Nethercott should not have been on the roads at all and made no mention of the existence of any hire agreement restricting activities to “shunting only”.
•	The disc displayed in the vehicle related to an operator’s licence that had been revoked and the operator had the same business address as R.B. Hire Ltd. The suggestion that Mr Nethercott must have found the Stag Freight operator licence disc after it had been left in the vehicle “for a few years” was not credible;
•	R. B. Hire Ltd had previously been invited by VOSA to apply for an operator’s licence due to previous vehicles owned by them being encountered and not displaying valid operator’s licenses, and this would have put the company on “even more alert” to ensure that unlawful use did not occur.
(xiv)	After the Deputy Traffic Commissioner had drafted his decision and completed his reasons (but before it was sent to the parties) two further documents were sent by Mr Bermingham to the Traffic Commissioner’s office. The first document was a statement from Mr Bermingham in which he said that, when he hired the vehicle to Mr Nethercott, he had spoken to a person called Richard from Cyclone Freight who had assured him that Mr Nethercott would only shunt vehicles in the yard. The second document was an email from an unknown person at Cyclone Freight stating that, at the time the vehicle was impounded, Mr Nethercott “was currently working for me” and that Mr Nethercott had assured the author of the email that an operator’s licence disc was currently in the post.
(xv)	The Deputy Traffic Commissioner noted the inconsistency between, on the one hand, the suggestion from Cyclone Freight that Mr Nethercott’s use of the vehicle did not need an operator’s licence and, on the other hand, the suggestion that someone from Cyclone Freight had relied upon Mr Nethercott claiming that he was about to receive an operator’s licence. The Deputy Traffic Commissioner said that, far from casting doubt on his decision, the additional documents made him sure that the original decision was correct and that the evidence put forward by Mr Bermingham could not be relied upon.

3)	At the hearing of this appeal, the Appellant was represented by Mr Bermingham who maintained that, so far as he had been made aware, Mr Nethercott only wanted to use the vehicle off-road as a shunter. The grounds of appeal and the representations made to us at the hearing amounted to a re-statement of the appellant’s claim, which the Deputy Traffic Commissioner had rejected.

4)	In answer to questions from the tribunal, Mr Bermingham could not explain why the vehicle hire agreement had not been faxed through at the time of the V5 document, why (prior to the impounding) the agreement contained at the top an added statement that “the vehicle is to be used for shunting purposes on a short-term let only” or why the agreement itself was entirely inappropriate for the claimed agreement between the company and Mr Nethercott, and had no schedule – which is where one would expect to find details of the vehicle and any limitations on its use. Mr Bermingham could not explain, either, Mr Nethercott’s comments at the time, particularly his assertion that he took instructions from Mr Bermingham, and the failure of anyone at the time the vehicle was impounded to explain any mutual understanding that the vehicle would be limited to off-road use.

5)	The tribunal found Mr Bermingham to be an unpersuasive witness and nothing he said to us demonstrated that the Deputy Traffic Commissioner had been wrong, let alone plainly wrong, to reach the conclusions that he reached for the reasons that he gave.

6)	We can well understand why the Deputy Traffic Commissioner suspected that the hire agreement had been put together after the impounding, in order to lend support to Mr Bermingham’s claim not to have known that Mr Nethercott would use the vehicle on the public roads. We think the Deputy Traffic Commissioner was right to attach weight to the fact that the operator’s licence disc, on display in the vehicle with the clear intention of creating the impression that it was licensed, came from Stag Freight, an operator with a link to the appellant and Mr Bermingham, and with no link to Mr Nethercott. It was, as the Deputy Traffic Commissioner suggested, too much of a coincidence that Mr Nethercott would be lucky enough to find the disc in the vehicle by chance if he had decided, contrary to all expectations and agreements, to go onto the public roads. We think that the Deputy Traffic Commissioner was right to look at what Mr Nethercott said at the time of the impounding and, indeed, what Mr Bermingham did not say at the time.  We agree with the Deputy Traffic Commissioner that it was more likely than not that Mr Nethercott was acting under Mr Bermingham’ instructions, as he (Mr Nethercott) had said.

7)	We also agree that there is an inconsistency in the two supplementary documents produced by Mr Bermingham, one to the effect that the vehicle would only be used in circumstances that did not need an operator’s licence and the other to the effect that Mr Nethercott had said that he had applied for an operator’s licence and it was in the post.

8)	In all the circumstances we find no reason to interfere with the Deputy Traffic Commissioner’s decision that, we think, properly analysed the evidence and reached a conclusion that was the only reasonable conclusion that could be reached on the facts and the evidence. The appeal is dismissed

Judge Mark Hinchliffe, DCP
7 November 2012