PG电子

IN THE WEST MIDLANDS TRAFFIC AREA

PUBLIC INQUIRY, BIRMINGHAM, 20 MARCH 2024

OPERATOR: MOVING CIRCLE LTD, LICENCE OD2049142

DECISION OF THE TRAFFIC COMMISSIONER

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The operator did not attend the public inquiry listed for 1400 hours today. I was satisfied that the calling in letter dated 14 February 2024 was sent to the last correspondence address given to the Office of the Traffic Commissioner by the operator. It was more likely than not that this letter was delivered to the operator in the post. In reliance upon the Upper Tribunal appeal case of Philip Drake [2023] UKUT 98 (AAC) I was further satisfied that there had been good service of that letter and as a result the operator had been properly notified of the public inquiry today.

I waited for the operator until 1430 hours. At that point no-one had attended. There was no request to postpone or adjourn the hearing before me. There was sufficient evidence in the public inquiry bundle paginated to page C12 for a fair decision to be made from the papers alone. I was satisfied that there was no persuasive reason for me to adjourn the hearing today on my own volition because a fair decision could be made in the absence of the operator.

The operator had previously applied to surrender this operator鈥檚 licence. That request had been refused and for the avoidance of any doubt was further refused by me today.

The operator had decided, for whatever reason, not to co-operate with the public inquiry process because it had not submitted any financial evidence as requested in the calling in letter and it had not sent to the DVSA any of the documents requested in the Case Management Directions.

The burden of proof was upon the DVSA and/or Office of the Traffic Commissioner to prove any allegations made. The standard of proof was the civil law standard; the balance of probabilities. In other words what was more likely than not to have occurred.

The evidence of the DVSA in the MIVR undertaken on 20 June 2022 was credible and highly persuasive and I accepted it as such. The findings in the MIVR were not challenged in the written response to it by the operator. Instead, assurances as to future compliance were made.

The evidence of the DVSA in the Desk Based Assessment (鈥淒BA鈥�) undertaken on 30 November 2023 was credible and highly persuasive and I accepted it as such. The DVSA findings in the DBA have not been challenged by the operator.

All of the allegations made by the DVSA in the MIVR and in the DBA are found to be proven because they are more likely than not to have accurately reflected what was happening at the time from the evidence available. I repeat all of the proven allegations made by the DVSA and adopt them all as my own findings of fact for the purposes of reaching my decision.

The MIVR showed a serious failure in compliance with the general undertakings on the operator鈥檚 licence due to poor management control of the transport operation by the sole director Mr Gareth Sanders, now known as James Bourne after changing his name by deed poll.

The DBA again showed serious failures in compliance with the general undertakings on the operator鈥檚 licence due to poor management control of the transport operation by the sole director. In other words, despite the assurances given after the MIVR, 17 months later at the time of DBA the operator was still demonstrating very poor maintenance related compliance.

By failing to provide the up to date evidence to DVSA requested in the Case Management Directions the operator has not taken the opportunity to demonstrate (a) what it had done since the date of the DBA to restore and ensure maintenance related compliance and (b) to demonstrate how compliant it is now because the DVSA has not been able to prepare a supplementary report for the hearing today in the absence of any up to date evidence.

That means the only evidence before me as to the operator鈥檚 compliance with the general undertakings on the operator鈥檚 licence that relate to maintenance is that contained in the MIVR and DBA.

It is therefore clear to me that the following general undertakings recorded on the operator鈥檚 licence have been breached and no evidence is before me to show that they are still not being breached as the operator failed to comply with the Case Management Directions:

1. The laws relating to the driving and operation of vehicles used under this licence are observed [breached]; and
2. Vehicles and trailers, including hired vehicles and trailers, are kept in a fit and serviceable condition [breached]; and
3. Drivers promptly report any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that defects are recorded in writing [breached]; and
4. Records are kept (for at least 15 months) of all driver reports that record defects, and all safety inspection, routine maintenance and vehicle repair reports, and that these are made available upon request [emphasis added and undertaking clearly breached].

The request for documents, as emphasised above, is exactly what happened in the Case Management Directions.

Since the operator did not attend the public inquiry, and in light of there being no compliance with the request made for documents in the calling in letter and in the Case Management Directions, I have struggled to see where I can give the operator any meaningful credit other than the operator did co-operate with the DVSA in its MIVR and DBA. For that I give some credit (evidential weight).

Assessing the operator as at today the negatives (all of the proven allegations made by the DVSA) carry far more weight than the positives and the balance tips in favour of the negatives. Looking at Statutory Document 10 issued by the Senior Traffic Commissioner for Great Britain, and in particular Annex D, this case falls into the 鈥淪erious鈥� category for consideration of regulatory action and at the top of that scale.

I have asked myself the question posed by the Upper Tribunal in the appeal case of Priority Freight but from the acts and omissions of the sole director I have answered that in the negative; I do not trust this operator to be compliant in the future. Despite the limited credit that I can give to this operator I am satisfied that it is proportionate to determine that the operator is now unfit to hold an operator鈥檚 licence. It is therefore revoked under section 26(1)(h) of the Act.

Repeating all of the proven DVSA allegations, and after applying the limited credit that I have given to this operator, I have determined that it is proportionate to revoke the operator鈥檚 licence under my discretionary powers pursuant to sections 26(1)(e), (f) and (h) of the Act.

For the avoidance of any doubt this case was far too serious for a suspension or curtailment of the operator鈥檚 licence to be the proportionate regulatory action from the evidence (and lack of evidence) before me. Neither course of action would have reflected the gravity of this operator鈥檚 behaviour, the failure to honour the assurances made after the MIVR and the failure to comply with the request for evidence made in the calling in letter and Case Management Directions. A suspension or curtailment would send entirely the wrong message out to well informed compliant operators who might be tempted, if this licence was not revoked, to think along the lines of 鈥淲hat is the point in spending all of this time and money to remain compliant when there will be no serious consequence to my business if I am caught being seriously non-compliant.鈥� It would only take a few people to start acting in that manner to put the integrity of this jurisdiction into question.

Any operation of a vehicle over 3.5 tonnes after that time and date is a criminal offence and I will direct the DVSA to impound any vehicle(s) so operated and to consider prosecution in the Courts. The operator now has actual knowledge of those powers.

The system will now be marked that any application for an operator鈥檚 licence, made by or involving directly (or indirectly) this company or Mr James Bourne (nee Gareth Sanders) will be held in abeyance and will not be processed any further until this case and my decision have been put before a Traffic Commissioner.

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Mr M Dorrington
Traffic Commissioner
20 March 2024