Neutral Citation Number: [2015] UKUT 289 (AAC) Appeal No.  T/2014/77

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Beverley Bell, Senior Traffic Commissioner for the

North West of England Traffic Area dated 28 October 2014

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

 

Appellants:

 

 

LEEDALE LIMITED

 

 

Attendances:

For the Appellants: James Backhouse of Backhouse Jones Solicitors

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 21 April 2015

Date of decision:   28 May  2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that these appeal be DISMISSED with effect from 23.59 on 18 June 2015

 

 

SUBJECT MATTER:-  Previous public inquiry; adverse maintenance and drivers hours investigations; good repute and revocation; allegation of bias made against the Senior Traffic Commissioner; failure to conduct adequate balancing exercise.

 

 

 

CASES REFERRED TO:-  Re S-W (children) (2015) EWCA Civ 27; E A Scaffolding and Systems Limited & Secretary of State (2004/426); Porter v Magill (2001 UKHL 67); Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695; Bryan Haulage (No.2) 2002/217; Priority Freight 2009/225; Aspey Trucks Limited T/2010/49

 

 

REASONS FOR DECISION

 

 

1.            This is an appeal from the decision of the Senior Traffic Commissioner for the North West of England Traffic Area (“STC”) made on 28 October 2014 when she revoked the standard national operator’s licence of Leedale Limited (“the company”) under sections 26 and 27 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) and found that Garry Ashton (Mr Ashton) had lost his good repute as Transport Manager and disqualified him under section 27 of the Act until he had re-taken the CPC examination.  There is no appeal in respect of Mr Ashton.  The issue of whether the company should be disqualified was adjourned and is now to be determined by the STC upon the conclusion of this appeal.

 

2.            The factual background to the appeal appears from the documents, the transcript and the STC’s written decision and is as follows.  The company was granted a standard national operator’s licence in October 1994 authorising 44 vehicles and 10 trailers.  The company was engaged in construction work, utilities, recycling and road sweeping.  It’s shareholder, main director and Transport Manager was Lee Walkup.

 

3.            In 2010, two maintenance investigations took place which were marked as “unsatisfactory” as a result of an ineffective driver defect reporting system, stretched safety inspection intervals, three “S” marked prohibitions, a poor prohibition history and a poor MOT history.  As a result, the company was called to a public inquiry in May 2011.  The STC heard evidence from Lee Walkup and concluded that Mr Walkup chose to argue with her “at every opportunity” during the public inquiry hearing and that despite his protestations, she was not satisfied that he took responsibility for his own failings and that as a director and Transport Manager he had failed to a significant degree.  The STC found the following aggravating features:

 

·         A letter written by Maxine Richards to VOSA following the first maintenance investigation was “downright misleading”. 

·         A letter signed by Mr Walkup after the second maintenance investigation made a number of assurances to VOSA which were not acted upon.

·         An RHA Audit commissioned in June 2010 made 38 recommendations which were not implemented or acted upon.

 

As a result of the company’s previous compliant history, the STC offered to take an exceptional course with the company if Mr Walkup resigned as Transport Manager, which he did.  She indicated that she would accept the nomination of Paul Lester (the Finance and Operations Director) if he were to obtain a CPC and a period of grace was granted for him to do so. The STC curtailed the fleet from 44 vehicles to 33 vehicles and issued a formal final warning that if the company was to be called to a future public inquiry within five years “it will be a potential revocation case”.  The STC ordered a further maintenance investigation which took place in March 2012 and which was marked “satisfactory”.

 

4.            In July 2012, Traffic Examiner (“TE”) Love inspected vehicle L60 EED at a check site.  Whilst it was displaying an operator’s licence disc issued to the company, the vehicle had been removed from the licence in November 2011.  Tachographs for the vehicle and the driver defect book showed that the vehicle had been operated most days from 24 May 2012.  TE Love attended the operating centre in July 2014 and interviewed Mr Lester.  He could not explain why the vehicle had been removed from the licence.  A s.99ZA letter requesting tachographs for all vehicles for the two week period 1 July to 14 July 2012 was served by TE Love.  Analysis of the data subsequently produced showed that data for 15 vehicles and 8 drivers had not been produced.  Mr Lester was interviewed again (in the presence of Alison Kemp from AIM Commercials Services Ltd, the tachograph analysis company used by Leedale Limited).  Mr Lester could not explain why the relevant drivers’ hours records had not been produced and Ms Kemp stated that she could not say whether AIM was checking for drivers not using their driver’s cards during analysis of the data.

 

5.            On 31 January 2013, Garry Ashton was nominated as the Transport Manager for the company.

 

6.            As a result of TE Love’s investigation, the company was prosecuted and on 30 April 2013, the company pleaded guilty to one count of failing to produce tachograph records upon request and three counts of failing to use a tachograph record or card and was fined £250 on each count and ordered to pay £326 costs.  Previous convictions and fines in January 2013 were set aside as a result of a statutory declaration being sworn to the effect that the company had not received the summons’.  These convictions were the subject of a letter sent to the OTC by the company solicitors on 4 September 2013.  It explained that a former Transport Manager was in charge at the time of the offences and that the “current director .. was not aware of the details of the offences until they received the summons following the reinstitution of proceedings ... We also understand that the company has arranged for an external company to review their tachograph charts on a monthly basis to ensure compliance”.  In her written determination, the STC found that this letter was misleading as the company had been employing AIM at the time the offences took place.

 

7.            On 15 May 2013, Vehicle Examiner (“VE”) Smith conducted an announced maintenance investigation as a result of the issuing of an “S” marked PG9 to one of the company’s vehicles on 21 March 2013.  Garry Ashton told VE Smith that he had only recently become Transport Manager and that he had not had enough time to complete his own audit of the company’s systems.  VE Smith inspected eight vehicles and two trailers and all were satisfactory save that three advisory notices were issued.  However, the outcome of the investigation was unsatisfactory for the following reasons:

·         Prior to the appointment of Mr Ashton, the company had been without a Transport Manager for six months.  This had not been notified to the Office of the Traffic Commissioner (“OTC”) and no period of grace had been requested.

·         The maintenance of the vehicles was being undertaken in-house although two vehicles had been placed on contract maintenance.  The change had not been notified to the OTC.  There were only two full time garage employees to maintain 38 vehicles and 9 trailers.  This caused VE Smith concerns particularly in view of the number and type of PG9’s which had been issued.

·         Various preventative maintenance inspection (“PMI”) records were not signed off as “fit for service”.

·         The six week PMI intervals had been exceeded by as much as 29 weeks (other examples were 26 weeks, 24 weeks, 21 weeks, 19 weeks, 18 weeks).  The stretching of intervals occurred when there was no nominated Transport Manager.  This was a concern because Mr Walkup held a CPC certificate.

·         There were  no PMI records for L60EED or for two trailers.

·         Since the previous public inquiry in May 2011 a further seven immediate and eight delayed PG9’s had been issued with one being “S” marked.

 

4.            In response to the PG13F&G issued by VE Smith, an undated and unsigned letter informed VOSA that all vehicles were being maintained in-house although with the delivery of sixteen new vehicles by the end of 2013, it had been agreed with Keltruck Limited that it would be responsible for the maintenance of the new Scanias (a maintenance contract dated 26 March 2013 had previously been forwarded to the OTC).  One of the three fitters employed by the company had left at the end of March and the new recruit had then suffered an injury.  The company was not back to its full complement of three fitters and it was envisaged that the fitters workload would be reduced as the new vehicles were delivered.  The fitter who had left had been responsible for running the garage and record keeping in the absence of a Transport Manager.  The appointment of Mr Ashton should rectify the shortfalls in the records.  The company suspected that the missing records for one vehicle and two trailers was as a result of the paperwork being transferred to the new owners when the vehicles had been disposed of.  As a result of the “S” marked PG9, all vehicles were put over a pit on a weekly basis for an underside check with records being kept.

 

5.            Despite this response, VE Smith concluded that he had concerns about the company’s willingness or ability to comply with its statements of intent in relation to maintenance.

 

6.            On 7 June 2013, HRVS Limited became an additional maintenance provider.

 

7.            On 28 June 2013, TE Moore commenced a drivers’  hours and records investigation.  He spoke with Mr Ashton and requested a selection of vehicle records. Mr Ashton was unable to access any digital tachograph records as he was unfamiliar with the system being used (Tisweb).  He confirmed the use of AIM for independent tachograph analysis and they subsequently forwarded records for two vehicles for the period 1 April to 31 May 2013.  Analysis of those records showed that two drivers had failed to use their digital driver’s cards on each occasion they had driven for the company.  Mr Ashton was interviewed in August 2013.  He stated that the two drivers had been dismissed.  The company had given “very little training” to drivers and he was presently putting the drivers through their driver CPC modules.  The first related to drivers’ hours.  All of the drivers referred to Mr Ashton if necessary and he explained the rules.  He was intending to develop an internal training course once he had got “the boat in order”.  Disciplinary procedures were in place and when agency drivers were used, they would be met by Mr Ashton who would do a walk round check of a vehicle with them and they were then placed with an experienced driver for a time.  He could not explain the missing mileage discovered by TE Moore although he thought that some of it might be explained by a fitter taking a vehicle out for a road test following a gearbox repair.  A memo had been sent to all agency drivers informing them that they would not be paid unless they had downloaded their drivers’ cards.  Mr Ashton was now aware of how to operate the Tisweb system and digital tachographs were downloaded every day or when practical with AIM providing weekly reports.  When he had been first appointed, Mr Ashton had concentrated on fleet maintenance.  He stated “I asked about other systems and was told everything was being done.  I thought everything was in order.  Since then I’ve established everything is not as I like it and I’m now setting systems up .. It’s like an onion; every time I strip one layer off there is more to work at; but I’m working at it”.  The conclusion of TE Moore was that the company was not complying with its statements of intent with regards to undertakings about drivers’ hours and records.

 

8.            On 7 November 2013, VE Smith submitted a supplemental public inquiry brief as a result of eleven further PG9’s having been issued to the company’s vehicles between 21 May 2013 and 28 October 2013 (eight immediate with two “S” marked and four delayed).  Two of the vehicles were towed away from check sites because of their dangerous condition and three vehicles had been prohibited for multiple wheel nuts being loose.  Two drivers had been issued with fixed penalties.  VE Smith had been advised that one of the company’s vehicles had lost a wheel whilst in service on a public road with the police in attendance.  He could not confirm the position.  He enclosed photographs of some of the defects found.  VE Smith concluded “it is clear from the prohibition notices issued that there are shortcomings in the maintenance system leading to concern over the ability of the operator to maintain their vehicles in a fit and roadworthy condition”.  He considered that the company was not complying with its statement of intent regarding maintenance. 

 

9.            On 29 November 2013, VE Smith submitted a further public inquiry brief as a result of a fatality at the company’s operating centre.  On 26 November 2013 a road sweeper was being filled with diesel by its driver when a tipper lorry SF06 NVM reversed into the rear of the road sweeper, crushing its driver.  SF06 NVM was issued with an immediate PG9 for a brake not working on axle 2 and two delayed items for brake imbalances on axles 3 and 4.  The road sweeper was issued with a delayed PG9 for a brake imbalance, a fractured suspension leaf and an oil leak from the hydraulic system.  The defects on the vehicles did not contribute to the accident.  Mr Ashton stated that SF06 NVM had been in the workshop the previous day for work to two slack adjusters and a fitter must have wound the brakes off to change the slack adjusters and had then failed to finish the job (it transpired that the fitter was Mr Ashton).  The vehicle had then been reloaded for the following morning.  The PMI records for the two vehicles were not completed in full or at the correct intervals.  The driver defect reports for SF06 NVM reported the vehicle pulling to the right between 7 November and 12 November 2013 with no record on the sheets that the vehicle had either been inspected or repaired.  The sweeper had similar regular reports (pulling to the left) without evidence of inspection or repair.  VE Smith’s concerns remained the same.

 

10.         On 4 December 2013, the company and Mr Ashton were sent call up letters for a hearing to take place on 10 January 2014.  All matters were in issue.  The date of the hearing was subsequently adjourned to 4 February 2014 because Mr Walkup had a pre-booked holiday.  In the interim, two further prohibitions were issued on 10 and 21 December 2013.

 

11.         On 4 February 2013, the company was represented by Oliver Jarvis of Counsel and Mr Roberts, solicitor of R. Nelson LLP.  In attendance were Mr Walkup, Mr Ashton, Keith Sims, director of HRVS Limited and Andrew Richards, employed as a trainee Transport Manager by the company.   Mr Jarvis indicated at the outset that all of the VOSA evidence was accepted and agreed.  The company provided a bundle of documents to the STC which she acknowledged in her written determination “appear to show that the operator is taking all reasonable steps to ensure operator licence compliance”.

 

12.         Lee Walkup gave evidence.  He dealt with the nomination of Transport Managers (with the assistance of the STC’s clerk).  Following the period of grace granted by the STC following the first public inquiry, Michael Salmon had been nominated (two months after the period of grace had expired).  He resigned on 31 July 2012 and then a further period of grace was granted until 31 January 2013 to allow Mr Lester to take his CPC examination.  However, he left the company in October 2012 and no steps were taken to nominate a Transport Manager until Garry Ashton was nominated on 31 January 2013.  In March 2013,  the company entered into a contract with Keltruck Limited following a decision to restructure the fleet by replacing the old lorries, particularly the tippers, with new vehicles.  The new Scanias came with repair and maintenance contracts with Keltruck.  Then, when VE Smith’s maintenance investigation was marked “unsatisfactory”, the maintenance contract with HRVS was entered into which coincided with the purchase of new MAN tippers which also came with repair and maintenance contracts, thus relieving the strain on the company’s workshop.  Of the unsatisfactory maintenance inspection reports, Mr Walkup stated “we have to accept and hold our hands up completely for ... the failings on ... those two inspections ... Both Garry and I are constantly working together to improve the systems and improve every aspect of the .. maintenance and operations of the company”.  They had improved the driver defect check instructions and he accepted that it had taken place six months after the problems having first been identified by VE Smith.  Following the fatality in November 2012, Mr Walkup decided to outsource the repair and maintenance of all of the company’s vehicles which were not on contract elsewhere to HRVS Limited (18 vehicles in total) and a wall forward planner was created with the help of Keith Sims (who had been very helpful) and Keltruck.  The appointment process for drivers had been improved and the company had devised it’s own defect notebook for the drivers and had purchased an infrared machine so that drivers could check the temperature of their brakes.  Mr Walkup referred to a quotation for two new inspection pits as those being used within the company’s workshop were not “perfect”.  Keith Sims had undertaken tool box talks which had taken place over two or three weekends with office staff attending as well as drivers.  Mr Walkup produced an invoice for the cost of operator CPC training.  His approach was not to remove “poor old Garry” from his role but to train three members of the office staff so they could “deal with the drivers” and their problems.  It was anticipated that all three employees would have passed their CPC examinations by the end of 2014.

 

13.         Mr Walkup went through the document bundle and directed the STC’s attention to a company structure diagram showing 59 employees with five employed in the workshop.  He went through a schedule of vehicles showing the dates when new vehicles had been acquired and were to be acquired along with the dates when older vehicles were removed from the fleet. Mr Walkup produced evidence of a database which could be consulted by himself and Mr Ashton to ascertain which vehicles had been inspected in the previous four to six weeks.  As a result of VE Smith’s supplementary public inquiry brief dated 29 November 2013, the driver defect check system had changed so that a manager was responsible for collecting the defect reports which then had to be signed by a second person from the office and passed through to Mr Ashton and then to the workshop.  A company handbook which had been produced by Oliver Walkup (Mr Walkup’s son) was provided to each driver who signed for it and a copy was kept in each vehicle.  Mr Walkup described the company as having made mistakes which had been addressed and that with the help of HRVS, mistakes would not happen in the future.

 

14.         Mr Walkup was then asked questions by the STC.  He had been aware of VE Smith’s unsatisfactory maintenance investigation in May 2013 and that this had been triggered by an “S” marked PG9.  However, Mr Walkup had been unwell and in hospital for three to four weeks in April 2013 and mistakes had been made. Mr Ashton had failed in some respects but Mr Walkup accepted that he was personally to blame.  When Mr Ashton had joined the company it was “pretty hectic and .. chaotic” and the industry was going through a difficult period.  Mr Ashton’s mandate was to improve the day to day operations.  Mr Walkup went through the company structure of the company with reference to the document he had produced.  He named six managers in addition to himself.  He was asked to explain why Mr Ashton’s name did not appear anywhere within the diagram and stated that this was because he worked in a different office to the others.  He accepted that Mr Ashton’s name should appear within the management structure and stated that Mr Ashton in fact reported to the seven managers he had named.  Mr Ashton spoke directly to Mr Walkup about the PMI’s.  He accepted that the documents produced for the public inquiry looked like they had been produced “at the last minute” but that was not the case.  The company had always had procedures in place but they had been fine tuned. 

 

15.         As for Mr Ashton, he had an office in the workshop so that he could oversee the work of the fitters and that was where the PMI records were kept.  He also had a desk in the general office.  There were four fitters employed by the company (as opposed to five as previously stated) and they concentrated on the repair and maintenance of the road sweepers and the minor repairs of the vehicles which did not require the input of HRVS or Keltruck.  The fitters also maintained the plant in the recycling yard operated by the company, including several excavators.  Prior to the fatality, four to six fitters were responsible for the repair and maintenance of 21 vehicles along with the road sweepers.  Mr Walkup accepted that Mr Sims was not the answer to everything.  The STC then asked to see evidence of the driver defect reporting system and Mr Ashton produced some sheets which he had designed himself.  The system had only been in operation for two weeks and he had not produced the records for the previous three months.

 

16.         Mr Walkup was asked why Mr Ashton was unable to access the Tisweb system when TE Moore had visited the operating centre in June 2013.  Mr Walkup did not know.  He had been aware that a Traffic Examiner had attended the operating centre but had not been shown TE Moore’s report and had been unaware of its contents until he had read the call up letter.  At the time of the visit, Mr Walkup had asked Christian Stone (Transport Manager without a CPC qualification) and had been told that there were no problems.  Mr Walkup asked Mr Stone to double check.  The visit did not cause Mr Walkup any concerns because he was aware that AIM undertook the tachograph analysis.  He could not explain why he did not ask Mr Ashton about the visit.  He was unaware that the company had been prosecuted for tachograph record offences prior to TE Moore attending.  He accepted that he had let everybody down and that he was “at best negligent and at worse reckless .. but I do have quite a bit of value to the business in many ways”.  The STC pointed out that he received “a lot of monetary value, you can go on .. fancy holidays”.  The STC reminded Mr Walkup that the public inquiry hearing had been adjourned so that he could travel business class to Dubai for a holiday.  Mr Walkup took exception to the phrase “fancy  holidays” and considered the issue to be irrelevant and “prejudicing the whole discussion”.  The STC reminded him that the point she was making was that there was a “great deal of value to your business ..” to which Mr Walkup responded: “.. I think the last time I met you .. I was very much to blame for .. a lot of the situation and I think blames .. a very harsh word.  .. I’m running a business with 65 people and I do my very best.  I think to .. bring up into the discussion me flying business class to Dubai is .. not .. appropriate and I find it offensive .. I have to be honest and say it as I see it. ... I feel like I’m being victimised constantly and there’s .. absolutely nothing at any stage in any of the discussions I have with you that .. gives me any .. sense of self-esteem.  ... you make me feel like I’m that small ..” After further discussion, Mr Walkup accepted that he had a business that had a “huge worth” employing a number of people and that two months before TE Moore’s visit, the company had entered guilty pleas to tachograph offences.  He had nevertheless relied upon Mr Stone for assurances about TE Moore’s visit.  He had not asked Mr Ashton about the visit, however he had thought that Mr Ashton would tell him if there were any problems.  Mr Walkup stated that the company was working “harder than ever” to make sure the company did better and he hoped for an opportunity to prove the point.

 

17.         Keith Sims then gave evidence.  It was Andrew Richards who had asked him to help the company and Mr Sims had felt sympathetic towards it as a result of the fatality.  He undertook some driver training upon issues such as roadworthiness over four weekends.  His audience included office staff as well as the drivers.  He thought that they all found his talks to be useful.  At that stage, HRVS undertook annual pre-MOT inspections to increase the first time pass rate.  They were also assisting with PMIs but, contrary to the evidence of Mr Walkup, HRVS was not responsible for repairing defects identified during the inspections and did not sign off the PMI sheets.  They would however undertake repairs if the company did not have time to undertake them.  HRVS also undertook quality control checks of the vehicles in the mornings and would notify the company of their findings and would educate the drivers where necessary.

 

18.         Garry Ashton was then called by the STC.  He informed the STC that as an external Transport Manager he was working forty to sixty hours a week.  When he was appointed in January 2013, there were issues with maintenance and maintenance records and the issuing of PG9’s.  The garage was so stretched that he ended up helping out whenever he could.  As a result of VE Smith’s first visit and his findings of stretched PMI intervals, Mr Ashton instituted a 5 week PMI regime to give the garage some leeway.  He could not understand why the company’s vehicles were being issued with so many PG9’s.  They were mainly for problems with steering, brakes and loose wheels.  He bought a torque wrench and tried to educate the drivers on wheel nut checks.  He displayed notices about the checks and put the same notices in with the drivers wages and circulated them as memos.  He purchased wheel nut indicators for all vehicles. 

 

19.         As a result of his work in the garage his work on drivers’ hours and records compliance suffered.  The tachograph system was not good when he joined the company.  Analogue tachograph charts were kept in boxes.  He bought files and stored them in order.  There were now only 3 vehicles left with analogue tachograph heads and they would be replaced in the near future.  In the beginning, he was receiving reports from AIM but without access to Tisweb, he was unable to explain the infringements to the drivers when they signed the reports.  He had since purchased a data downloader and drivers could come to him with their tachograph issues.  He had determined that 2013 would be the year for tachograph education and 2014 for disciplining.   Mr Ashton was now on top of the maintenance problems and he did not need to help out in the garage.  He was able to concentrate on his Transport Manager duties and had access to both the MAN and Scania systems operated by the maintenance providers.  He informed the STC that prior to joining the company, Mr Ashton had been Transport Manager for Thorne Poultry for seven years and then for Vion Food Group.  He had been in transport for thirty years and had not had any previous compliance issues.  He was committed to make the company compliant.

 

20.         When asked further about drivers’ hours, Mr Ashton stated that prior to June 2013, drivers were downloading their card data every week and Dave Allard would download the vehicle data every five weeks.  As he was then receiving the AIM reports, but at that date, Mr Ashton did not think that he needed to access Tisweb himself because the AIM reports included working time directive information.  He agreed that he should have been familiar with Tisweb prior to June 2013 but he was concentrating on the PG9 issues.  When TE Moore revisited in August 2013, Mr Ashton told Christian Stone (who he described as the Production Manager and also a Transport Manager without a CPC because he controlled transport in its planning stages) about the visit.  He told Mr Stone because Mr Ashton was led to believe that he should report all matters to Mr Stone in the first instance.  He recognised that TE Moore’s findings were serious because of the previous public inquiry.  He accepted that he chose not to tell Mr Walkup about the visit and the outcome because he did not appreciate that TE Moore was undertaking an investigation at the time.  He thought that it was an informal visit and even when he returned in August 2013, he again thought that as he was not interviewed under caution, TE Moore would be back when “more people were around”.  He told Mr Stone that the drivers’ hours procedures were a shambles and it needed sorting.  

 

21.         Mr Ashton stated that Mr Walkup knew that the company had a real problem with maintenance and that the fitters were struggling.  They recruited seven fitters and six left within twelve months.  They did not like the long hours.  Mr Ashton did not think that in the first few months of his employment, he was in a position to say “contract out” the maintenance to Mr Walkup.  They did then have discussions in the first few months about getting rid of the old vehicles and he did suggest repair and maintenance contracts being a better option.  He wanted all vehicles to be on such contracts.  Following VE Smith’s visit, whilst Mr Walkup was aware that it had taken place, they did not sit down together to discuss matters.  Mr Ashton had reduced PMI intervals and started to recruit more fitters.  He had tried to introduce intermediate inspections but that did not work because the pits tended to be in use in the mornings.  Mr Ashton stated that at the time of VE Smith’s visit, it was very difficult for two to three fitters to inspect and maintain 38 vehicles, 9 trailers and the road sweepers.  As for the fatality, Mr Ashton could not say why the driver had taken the vehicle from the garage.  It may have been in order to re-fuel the vehicle for its next job or the pit was needed.  He might have been asked to move it.  The STC then asked Mr Simms to comment upon the practice of moving vehicles when work was being carried out upon them.  Mr Sims confirmed that the written safety procedure of HRVS was that no vehicle was moved in their workshop save by the fitter who was working on it.  The STC then asked Mr Ashton about the procedure that was followed when vehicles were returned to the company’s garage having been inspected by HRVS but had not been repaired and signed off as roadworthy.  Mr Ashton said that HRVS was “next door” to the operating centre.  Mr Sims then  confirmed that HRVS was only inspecting the vehicles which were not under contract and providing a list of defects to the company for its fitters to rectify in its own garage and that the distance between the two premises was about 100 metres.  HRVS signed a disclaimer when vehicles were removed from their premises by the company, confirming that the vehicle was unroadworthy.  Mr Ashton described this system as being a new one and that he was ashamed, having realised that the vehicles should not have been allowed on the road. 

 

22.         It then became apparent that the STC had insufficient time to conclude the hearing and in any event, Mr Ashton had failed to produce the maintenance records.  He offered his resignation as Transport Manager.  The STC advised him about legal representation and upon the company giving an undertaking that no vehicle would travel on a road with an un-rectified defect, the hearing was adjourned to 13 February 2014.

 

23.         In the period leading up to the adjourned hearing, the STC received further documentation.  Mr Sims wrote to her stating that HRVS had been instructed by Mr Ashton to reduce the PMI intervals for vehicles not under contract to 4 weeks and that no vehicle was to leave HRVS with an un-rectified defect unless by recovery vehicle.  The company had also ordered four new vehicles to replace older vehicles in the fleet.  Mr Walkup also wrote to the STC.  He informed her of a management re-structure which placed Mr Ashton immediately beneath Mr Walkup and above the various transport departments.  He confirmed that HRVS and Keltruck now undertook all aspects of repair and maintenance on the vehicles.  Mr Ashton had faced major difficulties in the past but he had Mr Walkup’s full support and he was working with him and wanted to produce results.  The tipper lorry fleet was the problem and now fourteen of the nineteen vehicles were less than a year old and all of the new vehicles were on contract which reduced the strain on the garage.  A further four new vehicles were expected in March or April.  This had required a “huge investment”.  The company had joined the Freight Transport Association (“FTA”) and the company was considering monthly FTA audits.  Mr Walkup repeated the improvements made to the company’s systems and advised that the driver defect reporting system had changed since the previous hearing with a three part defect book having been introduced.  Early morning random checks on drivers were taking place to make sure that they were checking their vehicles.  Every three weeks, the most experienced tipper driver undertook a full inspection of all of the vehicles and the FTA was to provide staff training.  The company was also considering acquiring the FTA Walk Round App.  He produced a shopping list of items they were considering acquiring from the FTA.  Mr Walkup advised that the company had contributed £25m to HMRC and he wanted the company to become a “shining example to you ... and VOSA to use as a company who changed”.

 

24.         At the hearing of 13 February 2014, Mr Walkup, Mr Ashton and Mr Richards attended on behalf of the company.  Mr Jarvis now represented Mr Ashton as well as the company.  VE Smith attended on behalf of VOSA.   Mr Jarvis indicated that the company was “extremely grateful” for the opportunity provided by the adjournment to act upon comments made during the previous hearing. 

 

25.         Mr Walkup then gave evidence and adopted the letter he had sent to the STC which he hoped, demonstrated a real desire to change the company’s systems.  In answer to the STC’s questions, Mr Walkup stated that the company had joined the FTA as a result of advice given to the company by HRVS.  He had found the FTA to be very helpful. Whilst he had stated in his letter that Mr Ashton had faced “major difficulties” in his role as Transport Manager, it was he, Mr Walkup who had caused the problems.  He had apologised and he was working with Mr Ashton.  As for his evidence at the previous hearing that HRVS was undertaking all of the repair work identified during the PMIs, he had said this because he had not been aware that it was his own fitters who were repairing the vehicles, despite his visits to the workshop and his constant questions to the fitters about why vehicles were in the workshop.  The system whereby HRVS undertook all of the PMI’s was introduced in December 2013 and after each PMI there would be a discussion as to who would undertake the repairs.  Everything had changed “since last week”.  When at the last hearing, Mr Sims had said that HRVS did not repair the vehicles following PMIs, he had “misinterpreted”  the arrangement. 

 

26.         Gary Ashton was then called by Mr Jarvis.  He repeated much of the evidence he had given at the previous hearing.  He was asked about driver training and he confirmed that eight out of thirty three drivers had yet to complete the CPC course and that training would continue along with some additional FTA driver training.  The two drivers who had been responsible for driving without a card (as identified by TE Moore) had been dismissed and Mr Ashton was now happy using the Tisweb system.  A new system had been devised whereby all transport departments completed a vehicle allocation sheet so that any unintentional driving without a card was easily identifiable and as a result of his office being in the workshop, Mr Ashton was able to chase any driver who had failed to download their card. 

 

27.         As for maintenance, he produced an assessment of all PG9’s issued to the company’s vehicles and confirmed that he had addressed all of the issues identified. In fact, on the day of previous hearing, three of the company’s vehicles were inspected during roadside encounters and apart from one advisory notice, all of the vehicles had been cleared.  He confirmed that within two months of the hearing, all of the company’s vehicles would be less than one year old. All drivers had been issued with a thermal gun to check brake temperatures.  As for the role of HRVS, Mr Ashton stated that initially, HRVS were conducting the PMIs and the company was undertaking some of the repairs.  Since the previous hearing, HRVS undertook all of the repair work with the company providing the parts. 

 

28.         In answer to the STC’s questions, Mr Ashton accepted that prior to the previous hearing, 95% of the repair work on the company’s vehicles was being undertaken by the company and not HRVS.  The STC then asked Mr Walkup whether he agreed.  He said it depended on the period of time being discussed.  The STC reminded Mr Walkup that Mr Ashton had been talking about the period up to 4 February 2014.  Mr Walkup responded: “You talk to me in a completely different tone as you do anyone else.  Is there .. a reason for that?”  The STC replied: “Yes, it is because I have difficulty with your credibility quite frankly”  to which Mr Walkup replied “Okay, thanks, well at least I know”.  Mr Walkup then repeated that it had been his understanding that after the fatality in November 2013, all vehicles not under contract were to be inspected and repaired by HRVS.  As a result of the issue arising about vehicles being driven between HRVS and the operating centre when defects had not been rectified, the procedures had been changed.  He had thought it was acceptable for vehicles to travel on an industrial estate when not declared roadworthy.  He accepted he was wrong.  He continued: “Whatever I say to .. you, madam, I’m .. losing, aren’t I? I think the best thing is to say nothing. .. you have a particular downer on me and I don’t know why”.  The STC pointed out that it was her responsibility to test the evidence and Mr Walkup continued “I appreciate that, but I would like to be spoken to in the same way as everybody else.  When you’re looking at me you’re glaring at me.  When we’re speaking you talk to me in a different tone.  I don’t think it’s reasonable ..”  The STC then offered Mr Walkup an opportunity to speak to Mr Jarvis as it appeared that Mr Walkup was asserting that he was not having a fair hearing and he wanted another TC to conduct the hearing.  Mr Walkup refused the STC’s offer and said “I’m quite happy”.  The STC responded “Well, let’s see how we go”.

 

29.         Mr Jarvis then called Andrew Richards, who had been employed by the company since 1990 and who hoped to sit the operator CPC examinations at the end of February.  He stated that prior to November 2013, the company was inspecting and repairing those vehicles not under contract, although HRVS would undertake some large repairs for them.  After November 2013, HRVS undertook all of the inspections and a decision was taken as to who did which repairs.  Since the adjourned public inquiry hearing, HRVS undertook all inspections and repairs.

 

30.         VE Smith then gave evidence having had an opportunity of going through the maintenance records.  He selected the records of five of the older vehicles as the new vehicles were being maintained by HRVS under contract.   He had  “quite a few concerns”.  PMI intervals had been stretched with one being stretched to nine or ten weeks.  Various drivers had “constantly” reported defects which had not been marked as rectified.  He gave an example of vehicle L20 EED: on 19 October 2013, the driver had reported in his driver defect report “foot brake insufficient and handbrake not working”. The report had been annotated “Re-Lined”.  There then followed an in house PMI after the vehicle had travelled 120kms with the two “serious” defects unrectified.  Then for the same vehicle, the last driver defect report was dated 3 January 2014 with mileage of 436,338.  The vehicle was then encountered on the roadside on 4 February 2014 with a mileage reading of 483,752, a difference of 47,414 kms in one month.

 

31.         He also referred to vehicle L60 EED which had in house PMI on 18 October 2013 with a mileage recording of 415,285.  The next PMI which was also in house was on 20 November 2013 when the mileage recorded was 432,767.  The vehicle was then inspected by HRVS on 31 December 2013 and the mileage was recorded as 420,668 and then again on 24 January 2014 when the mileage was 422,406.  VE Smith was further concerned by the tyre tread readings recorded by the company’s workshop which increased from 8ml to 10ml when the legal limit was 1ml.  It would have been unusual to change a tyre when the tread was 8ml.  Between the two inspections, the inner tyres on the driver wheel had not worn at all.  VE Smith expressed similar concerns in respect of the records for other vehicles.  He noted that between 10 December and 16 December 2013, a driver of one vehicle reported that the reversing camera and reversing bleep were not working.  This was after the fatality when the reversing vehicle was found to have its reversing camera disconnected.  It was found lying in the passenger foot well and the wire was “lost” in the dashboard.  A driver had also reported an ABS Light and a steering wobble several times in respect of the same vehicle.  There was a note about mud being in the wheels and a further note that the wheels had been changed around but the faults continued.  The driver of vehicle M3 LDP had made “no end of driver defects for “fifth wheel needs adjusting” with nothing done”. 

 

32.         VE Smith stated that when at the operating centre, he had been made to feel awkward by Christian Stone whom he described him as “hostile”.  VE Smith said that he had met Mr Walkup once and that he was “alright”.  Mr Walkup then interrupted VE Smith to state that VE Smith had ignored him when at the operating centre and the fact that VE Smith had stated that he had met Mr Walkup only once, when on Mr Walkup’s account he had met him twice meant that “it casts doubt over any facts you’ve produced, doesn’t it”.  VE Smith accepted that he may have met Mr Walkup twice and went on to say that Mr Ashton had always been very helpful.

 

33.         In cross examination, VE Smith stated that it was difficult to say whether the problems he had identified would continue now that HRVS was “on board” as the continuing problem was with the driver defect reports.  If the company sent everything identified to HRVS that would be fine but there was the issue of the company being able to make the vehicle available for HRVS to work on.  The issue of the driver defect reporting system had been raised before by VE Smith.  He accepted that the rather peculiar recordings relating to tyre depth could be the result of wheels being changed but there were no corresponding records of wheel changes or re-torquing.  As for the fifth wheel problem he had identified, that was being reported between 6 August and 25 September 2013.  There was a purchase order dated 25 September but this was over a month after the problem was first raised.

 

34.         VE Smith stated that he did not feel that he could do justice to the maintenance records in the limited period he had been given. 

 

35.         The STC then asked Mr Jarvis whether she could accept the authenticity of the records.  Mr Jarvis accepted that mileages had been wrongly recorded but that did not equate with dishonesty or fabrication of the records.  The STC asked whether VE Smith had concerns about the authenticity of the documents and he said “a little bit .. because they are very clean, and the other thing that I raised a little bit was that the in-house inspections don’t appear to find many defects but six weeks down the line the vehicle goes to HRVS and has a  long list and on previous inspections there’s no defects present”.  VE Smith indicated that he would like an opportunity to look at the records in more detail.  Mr Jarvis indicated that both Mr Ashton and Mr Walkup were anxious to know the outcome of the hearing but if an adjournment were to take place, the company would wish for a date in September 2014 so that it could get its house in order as “there are massive changes taking place”.  The STC having acknowledged that it was unusual to have three hearings in respect of one public inquiry, adjourned to 27 February 2014.  That date was later re-fixed for 28 March 2014 and then as a result of a request for a further adjournment for counsel’s convenience to April 2014, a new hearing date of 7 July 2014 was fixed.

 

36.         On 14 April 2014, Mr Walkup wrote to the STC to inform her of the new steps taken by the company which continued to have a “dramatic effect” and which he was sure would alleviate the STC’s concerns. The company had replaced twelve old vehicles with twelve new ones and they were expecting a further three new tipper lorries in June 2014.  The company now had an MOT pass rate of 100% and roadside encounters with the DVSA had been clear.  Mr Walkup produced evidence of an employee employment documentation check list and copies of invoices for morning spot checks conducted by HRVS.  Driver CPC training continued and Oliver Walkup and Christian Stone had obtained the FTA certificate in operator licence awareness.  Kelly Williams was booked to attend the same course (and did so on 13 May 2014).  Sean McDonagh and Oliver Walkup were scheduled to sit the Transport Manager CPC examinations in June and September 2014 respectively.  Mr Walkup enclosed samples of FTA stationary provided to every driver and employee, FTA based driver leaflets and an up to date management structure.  The FTA was booked to undertake a full vehicle maintenance and systems audit on 6 May 2014.  This was later submitted and all procedures and arrangements were marked “satisfactory” save for the section relating to maintenance records.  It appeared that 32% of the maintenance records were either missing or inspections had not taken place or inspection intervals had been stretched.  For example, eight PMI records appeared to be missing for vehicle L30 EED.  It was recommended that all records were to be compiled “to fully support the programme”.

 

37.         On 21 May 2014, Christian Stone emailed the clerk to the STC to inform him that vehicle L30 EED had been checked during a roadside encounter on that day and had been clear of defects.

 

38.          On 4 June 2014, there was an application for an adjournment of the hearing of 3 July 2014 as a result of the unavailability of Mr Jarvis.  The application was refused with the comment “Mrs Bell states that she “has tried to accommodate Mr Jarvis on several occasions, and he can’t be at two places at once.  He never seems to be available.  The traffic commissioner will proceed with as proposed”. 

 

39.         By a public inquiry brief dated 25 June 2014, VE Smith informed the STC of the outcome of his further investigations arising out of a further maintenance investigation on 24 February 2014.  He had concerns with the internally created inspection records because they were “very clean” with few defects recorded on them when compared to the driver defect reports.  Further, when an external maintenance contractor inspected the vehicles, those PMIs did record a long list of defects compared to the company’s PMI records.  VE Smith was concerned with the tyre depth recordings on the internal inspections which recorded little tyre wear despite vehicles being used virtually every day.  These were to be compared with the tyre depths recorded on inspections undertaken by external maintenance providers.  Some of the internal PMI sheets had dates and mileage readings altered and the latter did not match the vehicles’ tachograph data.  Inspection intervals had not been adhered to and some of the new vehicles did not appear to have a first use inspection.  Whilst there was some evidence of a wheel re-torque procedure, it did not appear to have been consistently used.  VE Smith listed his findings in respect of the records of thirty five vehicles and six trailers and these included repeated driver defect reports without evidence of rectification; missing driver defect reports and incorrect mileage recordings.  VE Smith concluded that as a result of the issues he had found, he had concerns about the authenticity of the company’s records.  VE Smith was concerned about the company’s ability to “ever reach a satisfactory level of compliance with the operator licensing regulations.  The same issues have been raised for quite some time and there appears to be very little improvement in any system they use.  The operator has introduced a lot of new vehicles on fleet, but still lacks a robust driver defect system, with vehicles being operated for long periods of time with defects in place and the work not being signed off as rectified”.

 

40.         On 2 July 2014, TE Pickering-Ford submitted a public inquiry brief to the STC concerning a drivers’ hours and records investigation that she  had undertaken following service of a s.99ZA letter upon the company on 26 February 2014.  The letter requested the production of tachograph records for the period 1 August 2013 to 31 January 2014.  TE Pickering-Ford’s investigation revealed that in respect of four vehicles, there had been twelve instances of drivers driving without a driver’s card inserted.  The total amount of mileage not recorded was 4,195kms.  TE Pickering-Ford noted that in 2012, Mr Lester had been cautioned and interviewed on behalf of the company and the company was subsequently prosecuted for failing to produce tachographs and for using vehicles when drivers had not inserted their digital driver’s card.  TE Pickering-Ford concluded that the practice was continuing. 

 

41.         On 3 July 2014, the adjourned public inquiry hearing was reconvened.  Mr Jarvis of counsel and Mr Roberts represented both the company and Mr Ashton.  Mr Ashton and Mr Richards were in attendance on behalf of the company.  Mr Walkup was convalescing following an operation and in view of the late service of TE Pickering-Ford’s public inquiry brief, a decision had been made that he need not attend.  Senior VE Drabble and TE Pickering-Ford attended on behalf of the DVSA.  The STC was informed that no criminal proceedings would result from TE Pickering-Ford’s investigation although neither Mr Ashton nor Mr Walkup had been interviewed about her findings.  The reason for the delay in TE Pickering-Ford concluding her investigation was that there had been a lot of changes at the DVSA Derby office and that had impacted on efficiency.  It was agreed that Mr Ashton could be interviewed immediately after the hearing and Mr Walkup during the following week.  Mr Jarvis wished the STC to know immediately that whilst the public inquiry was all about trust, Mr Walkup and Mr Ashton “vehemently” resisted any suggestion of dishonesty on their part in relation to the maintenance records.  The hearing was adjourned to 28 July 2014.

 

42.         Mr Ashton was then interviewed.  He told TE Pickering-Ford that most of the work carried out by the company was during day light hours.  AIM continued to analyse the tachograph records.  The company downloaded data onto Tisweb and the tachographs were collected every week and sent off to AIM.  Mr Ashton produced an Infringement Matrix dated 21 April 2014.  He interviewed all drivers about infringements identified by AIM who also checked for working time directive infringements.  The company downloaded the vehicle unit data at the end of each month and he would then check for drivers driving without a card.  Mr Ashton produced a manual printout for Nathan Hurt dated 9 September 2013.  This had not been produced to TE Pickering-Ford in response to the s.99ZA letter.  Mr Ashton did not know that he should have produced this type of documentation and apologised.  Mr Ashton stated that the missing mileage was the result of agency drivers working at night and then failing to download their card.  If Mr Ashton had been present when they had finished work he would have known of their failings.  He did not know which agency was used and could not give the names of the drivers although he supposed the company would have copies of their driving licences.  He was asked “Surely if the correct procedures were in place you would have known that the vehicle was being driven with no card?”  Mr Ashton responded “The agencies were notified, no download no payment.  We don’t use agencies anymore.  It’s very rare”.  TE Pickering-Ford queried Mr Ashton’s account bearing in mind his assertion that most of the company’s work was carried out during the day.  Mr Ashton responded that on occasions, night time road work was undertaken to minimise disruption.  He repeated that he thought that the drivers responsible were agency drivers as the company’s own drivers would not have needed to drive without a card.  Mr Ashton admitted that in addition to his duties at the company, he was also acting as Transport Manager for KC Jones Express Limited.

 

43.         Mr Walkup was interviewed on 17 July 2014.  He told TE Pickering-Ford that AIM dealt with tachograph analysis and that Mr Ashton was responsible for overseeing that analysis.  As far as Mr Walkup was aware, AIM provided a full report highlighting any issues that needed addressing.  He did not see the reports although he would expect any serious problems to be brought to his attention.  Mr Ashton had not highlighted any problems.  The responsibility was with AIM from a professional point of view to ensure all analysis was undertaken and that any infringements or advice was given and acted upon.  The outsourcing of the analysis alleviated the need for in-house management of drivers’ hours although it was up to Mr Ashton to deal with it.  The company had an open and honest culture and Mr Walkup hoped that if someone had made a mistake they would feel able to talk about it.  Mr Walkup had no reason to believe that AIM was not doing its job properly although the FTA was now going to audit AIM and provide quarterly reports.  The analysis of tachograph information did not include a comparison with the driver defect reports or time sheets but AIM did analyse for incidents of drivers driving without a card.  He had seen infringement reports showing this and disciplinary action had been taken against the drivers for driving without a card.  In fact, several drivers had been dealt with for driving without a card since August 2013 and there had been several incidents when disciplinary hearings had taken place.  Mr Walkup then stated that he was not aware that 4,195kms was missing from drivers’ cards.  He was asked “You’ve just told me that you’ve disciplined several drivers during this period for driving with no card inserted” to which Mr Walkup replied “Yes I actually said I’ve disciplined drivers for various tachograph issues.  I don’t think you specified driving with no card inserted”.  Mr Walkup was asked whether he would like to revise his previous answer about the action taken in respect of drivers driving without a card and he replied “The answer to the question is I personally was not aware of any drivers driving without the digicard inserted as I have previously stated”.  When challenged about his account of having received reports from AIM identifying driving with no card, Mr Walkup stated “The questions you’re asking are vague in some respects and specific in other respects so to clarify, I since AIM have been employed by Leedale have seen reports on various occasions over many months and years and I have been involved in the disciplinary aspect of any findings.  As far as the questions you’ve asked for the 3^rd time I am not aware as no infringements have been brought to my attention by AIM or Garry Ashton over the period you’re referring to”.  Mr Walkup was asked what preparation he had done for the interview and replied “I don’t think it’s necessary to answer that to be honest”.  He did not know why the manual printout concerning Nathan Hurt’s driving on 9 September 2013 had not been produced in response to the s.99ZA letter and he confirmed that he was aware that Mr Ashton was the Transport Manager for KC Jones Express Limited.

 

44.         In her revised public inquiry brief dated 24 July 2014, TE Pickering-Ford queried how much time Mr Ashton was committing to his role as Transport Manager within the company bearing in mind his other commitments with another operator.  She again concluded that whilst the company had been previously prosecuted for offences of using vehicles when drivers were failing to insert their digital tachograph cards, the practice was on-going and as a result, it was considered that the company was not complying with its statement of intent with regard to drivers’ hours and records. 

 

45.         By a letter from Clyde & Co dated 28 July 2014 addressed to Mr Roberts (the company’s solicitor) and forwarded to the STC, she was informed that arising out of the fatal accident on 26 November 2013, the company had been required to carry out the following:

 

·         A documented risk assessment for traffic and pedestrian movements on the site.

·         The drafting of an action plan identifying prioritised measures to be implements to further control the risks to pedestrians from manoeuvring heavy goods vehicles.

·         Liaison with the local council regarding planning permission to install additional lighting on the site.

·         Installation of reversing cameras to all vehicles.

·         Preparation of a drivers’ handbook setting out the site rules.

 

46.         In preparation for the adjourned hearing on 28 July 2014, the company submitted a bundle of documents.  Included was a letter from Mr Sims of HRVS dated 27 June 2014 in which he confirmed that HRVS was responsible for all PMIs and repairs of the company’s vehicles save for the road sweepers and that HRVS was undertaking periodic spot checks on the driver defect reporting system with any shortcomings reported back to the company.  Only two vehicles now required replacement.  There was also documentary evidence to show that analogue tachograph heads were to be replaced with digital recording equipment in two vehicles and a letter from Alison Kemp of AIM dated 25 July 2014 confirmed the arrangement that the company had with AIM.  Ms Kemp further confirmed that Mr Ashton was familiar with the Tisweb system and she noted that there had been a great improvement in the systems to ensure compliance with the rules on record keeping since Mr Ashton had become Transport Manager.  AIM had been fully supportive with regard to all of the new procedures and would continue to assist where necessary.

 

47.         At the resumed hearing of 27 July 2014, Mr Jarvis and Mr Roberts continued to represent the company and Mr Ashton.  Mr Walkup was present along with Mr Ashton.  VE Smith and TE Pickering-Ford attended on behalf of the DVSA.  The STC was informed that Oliver Walkup and Christian Stone had recently been appointed directors of the company.  Mr Walkup remained as a director.  She was also shown the Transport Manager CPC qualification of Sean McDonagh.

 

48.         VE Smith then adopted his report and was cross examined by Mr Jarvis.  He had looked at the company’s maintenance records up to January 2014.  In January 2014, he had been concerned about the nature and number of PG9’s and the company’s ability to maintain vehicles.  He appreciated that the vehicles undertook tipper work but the defects recorded did not relate to that type of work.  For example, items included transmission defects and brakes.  The last PG9 had been on 21 January 2014 for an anti-lock warning light and there had been ten roadside encounters since then with no further PG9’s issued.  He accepted that this was a change as was the improved MOT history.  He had advised the company to keep a manual record of when wheels were removed along with a record of re-torquing procedures including the time and mileage.  Mr Jarvis produced Mr Ashton’s diary which contained entries of the type VE Smith had mentioned.

 

49.         In answer to the STC’s questions, VE Smith confirmed that he had cross referenced the PMI sheets with the tachograph printouts in order to check the reliability of the recorded mileage on the PMI sheets.  He was satisfied that the driver defect reports were authentic.  He accepted that his concerns about the authenticity of the PMI sheets amounted to a serious allegation.  But it was no more than “a concern”.  The tyre wear issue was surprising but he could not say whether the recordings were the result of someone not being bothered about the accuracy of the recordings or whether it was something more but what he could say was that a driver had complained about low tyre treads, this was not mentioned in the next PMI and then an outside maintenance provider had inspected the vehicle and had recorded dramatic wear to the tyres.   He drew the STC’s attention to two in-house PMI sheets for vehicle LD08 ALE which was a flat bed lorry which are known for tyres scrubbing on axle number three. Between the two PMIs the tyre depths were virtually the same. 

 

50.         In response to further questions put by Mr Jarvis, VE Smith accepted that there was a “very tiny possibility” that whoever was responsible for recording tyre depths was not doing it properly but the Transport Manager should be picking this up.  It was possible that a non-calibrated tyre depth gauge had been used but that would not result in readings being “that far out”.  The readings could not be explained by the weight of the load.  It was possible that the tyres had been changed and not recorded but that was an issue discussed in 2013.  He was shown two PMI sheets completed by HRVS which appeared to show that the tyre depth had increased between inspections and VE Smith accepted that HRVS were not dishonest. VE Smith referred to two further PMI sheets, the first completed by the company with no defects and the second by HRVS showing a significant difference in tyre depths and defects.  VE Smith accepted that the tyre depths shown were all legal but that was not the issue.  The lack of tyre wear raised the question of whether someone had sat in an office and made the PMI sheets up.  The sheets were clean, there were the discrepancies in the mileage and defects which had been reported by drivers were not shown on the records.  He pointed to the repeated reports of a defective fifth wheel as an example. 

 

51.         TE Pickering-Ford then adopted her report which was accepted by the company.  She confirmed that Mr Ashton had been nominated on the operator’s licence of KC Jones Express Limited (with four vehicles in possession) “a few weeks ago” because the previous Transport Manager had lost his good repute.  The nomination had been accepted by a Deputy Traffic Commissioner.

 

52.         Garry Ashton then gave evidence.  He confirmed that HRVS and Keltruck were conducting all PMI s and all of the repair work apart from “cosmetics”.  HRVS and Mr Ashton also performed spot checks on the driver defect reporting system.  He produced the Infringement Matrix which he had downloaded from the internet and had shown TE Pickering-Ford in his interview and he explained that he awarded points and “strikes”.  Six strikes resulted in disciplinary action.  He had a target of zero infringements.  He had started the system in May 2014 and it had been explained to the drivers.  As for the PMI records which had caused VE Smith concerns, Mr Ashton had spoken to HRVS and Keltruck and they had confirmed that they inspected vehicles and then entered the results onto a computer in an office or completed the PMI sheets by hand later on.  He had looked at all of the company’s PMI records going back to 2010 and all of them were clean because none of the company’s fitters completed PMI sheets whilst undertaking inspections.  Rather, they washed up and then completed the sheet afterwards.  Mr Ashton denied that any of the maintenance records completed by the company had been falsified either by himself or by a fitter. 

 

53.         Mr Ashton then turned to the driver defect reports.  The company had produced a new three page defect book so that there was a permanent record of all defects and each book was registered to a vehicle.  The STC asked about the requirement on each form to enter the brake temperatures for the vehicle.  Mr Ashton explained that it was not an exact science but brake temperatures indicated whether a brake was not working (resulting in a cold temperature) or whether there was a brake bind issue (hot temperature).  The STC indicated that she had never heard of brake temperatures being recorded on a driver defect report and asked VE Smith to assist.  He responded “I’m struggling a little bit, madam, because I’ve never had an Operator do that before”.  He confirmed that laser type guns could be used to compare axle temperatures to ascertain that they were reasonably level.  But the only way to ascertain whether a brake was working was to put it over a pit.  Mr Ashton confirmed that this check was not undertaken in the mornings but when the drivers returned to the operating centre.  The check helped the company a lot.  Some defect reports with tyre temperatures were then considered for one vehicle and the STC commented that she was more concerned with four driver defect reports about a broken fuel cap which had not been signed off as rectified.  The STC continued “And yet you are fannying around with blinking brake temperatures on your vehicles, waste of time I would venture to suggest, but what is much more interesting is the fact that there are four days of the diesel cap and nobody has bothered to write on to say its only the broken key” (the explanation put forward by Mr Ashton).  The STC suggested that the company stopped checking brake temperatures. 

 

54.         Mr Ashton then produced a book recording spot checks of the driver defect system and then dealt with the issue of tyre depths on the company’s PMI records.  He attributed the inconsistencies to a “slapdash” approach by the fitters or a tyre depth gauge which was not calibrated.  HRVS and Keltruck had the same problem. 

 

55.         Mr Jarvis asked Mr Ashton about TE Pickering-Ford’s findings.  Mr Jarvis confirmed that Mr Ashton’s explanation in interview was that the responsibility lay with agency drivers.  Mr Ashton added that AIM was supposed to be looking after tachograph analysis but did not do so as well as could be expected.  At the beginning, Mr Ashton was busy with the maintenance issues but the position had now changed since he was able to use the Tisweb system and download the data himself.  A driver driving without a card would now be picked up within four weeks.  More in-house analysis was to take place and AIM would be checking that.  It would be more of a group effort.  Drivers’ cards were downloaded on Fridays and sent off to AIM on Mondays once Mr Ashton had checked that all drivers had complied.  AIM collected the analogue charts on Tuesdays and dropped off the reports at the same time.  Mr Ashton produced printouts for each vehicle and would then discuss the infringements.  The FTA was assisting with setting up new procedures.

 

56.         Mr Ashton could not explain to the STC why he had not written to all of the drivers about his new “strikes” system but would do so when he returned to his office.  He had been concentrating on driver CPC training.  The problem was that drivers who had completed their CPC training were being poached by other companies, requiring the company to employ new drivers who needed to be trained.  He had six or seven drivers who had not yet completed the training.  Mr Ashton stated that he started work with the company in March 2013.  The STC challenged him about that, referring to his previous evidence that he had been employed since January or February.  In any event, he only became aware of the previous prosecution of the company for records offences in May 2013 and he had felt trapped.  He did not feel that he could walk away.  The company was receiving prohibitions and it was his job to sort it out.  He decided that maintenance was more important than drivers’ hours and AIM was being paid to analyse the data.  He had assumed that they were also analysing continuity of mileage although he did not ask whether they were.  His job was “all too much”.  He did not want to work twelve or thirteen hour days and travel for a further two hours a day.  He did it out of a sense of duty.  He complained that “everybody blames me” and it was not fair. 

 

57.         TE Pickering-Ford then interceded and stated that TE Love’s report set out that in September 2012, the company had been told that AIM  had neither been instructed or paid to check for drivers’ driving without a card.  She could not say whether the position had now changed.  Mr Ashton stated that he had only started to really get to grips with drivers’ hours and records about December 2013.  He confirmed his account in interview that the drivers who had failed to use their drivers’ cards as identified by TE Pickering-Ford, had been agency drivers and that as a result of Mr Ashton not working at night, he had not picked up their failings.  Upon further questioning by the STC, Mr Ashton then changed his evidence.  The drivers were in fact company drivers and he had mistakenly assumed that they were agency drivers when he was interviewed.  One of the drivers was the victim of the fatal accident in November 2013 and the other two had left.   Mr Ashton had no idea why the drivers had not used their cards and he had not mentioned them when interviewed because until the investigation had taken place, he was unaware that there was a problem.  The STC asked why Mr Ashton had waited until this point in the public inquiry to inform her that he had been wrong in identifying agency drivers as the culprits.  His response was that he had not realised that it was something that was going to be discussed.  TE Pickering-Ford then pointed out that the issue of who the drivers were was irrelevant as the missing mileage should have been spotted when the vehicle data was downloaded.  Mr Ashton said that at the time, he had been relying upon AIM and that he did not do so now.  Since May 2014 he had been compiling his own analogue mileage Excel spreadsheet to look for any missing mileage and he kept separate files for each driver and each vehicle.  He had already spotted two miles of mileage missing whilst a vehicle was with HRVS for inspection. 

 

58.         The STC then looked at the maintenance file for vehicle LD58 ALE.  An in-house PMI on 24 July 2013 had no defects recorded on it.  The following PMI had only one defect recorded and in October 2013, there was one defect relating to a loose mud flap.  The next PMI was conducted by HRVS on 11 January 2014 and had 18 defects itemised.  Mr Ashton explained that the vehicle was a transport wagon which did not get used much.  He did not think that it was normal to have PMI sheets which were defect free or virtually defect free but it depended on the fitter doing the PMI correctly and Mr Ashton was not a qualified fitter.  He was taken to another vehicle LE58 ALE with the same pattern of PMIs.  He was relying on the fitters to do their job.  The STC was reminded that the PMI sheets she was looking at pre-dated the new system whereby HRVS and Keltruck undertook all of the inspections and repairs.  An undertaking was offered on behalf of the company that the new system would continue. 

 

59.         The STC took Mr Ashton to other records of vehicle SM06 MTW with a reference to “mirror arms taped up” when such a defect did not feature in the driver defect reports.  There were repeated reports of a slow puncture and tyres near limit from 31 March 2013 with each report annotated with “to be investigated” until the tyres were replaced either on 16 or 17 April 2013.  Mr Ashton understood why the STC was “bothered” by the records.  He was “extremely bothered”.  He continued to change tyres and undertake minor repairs to the vehicles.  Mr Ashton then admitted that when the STC had been told that HRVS undertook all rectification work in respect of all defects identified during their PMIs, that was a “slight play on words”.  HRVS were in fact undertaking road related defects which might attract prohibitions.  Mr Ashton insisted that he had always said that HRVS were repairing “road related defects”.  Mr Ashton was asked about the absence of a hazard switch sticker as highlighted on one PMI record.  The PMI had been annotated with “report to customer” and somebody had written “You can have one of them, okay”.  Mr Ashton denied that it was he who had written that remark. He thought that Ali “the top fitter” would have written it. Other records were considered which demonstrated that vehicles were still leaving HRVS with multiple defects for the company’s workshop to rectify without evidence that rectification had taken place.  Mr Ashton could not say whether the workshop was undertaking some repairs in order to save money.  He thought it was to keep the fitters busy.  It was Ali’s responsibility to monitor what was taking place and it would seem that he did not write everything down.  Mr Ashton thought the vehicles were in “fantastic” condition. 

 

60.         Mr Walkup then gave evidence.  He said that as far as he was aware, all of the in-house maintenance records were authentic.  He had not had any conversations with Mr Lester in 2013 as a result of the tachograph convictions save in respect of the sentencing outcome.  Neither did he speak to AIM about them.  He was led to believe by Mr Lester and Mr Salmon (the nominated Transport Manager at the time) that as AIM was involved, there should not be any problems.  Mr Walkup thought that AIM was providing a complete analysis of the data.  In future, the FTA would initially conduct three monthly audits of the systems moving to six monthly audits.  Staff training continued to ensure that they had a better understanding of the legal requirements of operator licensing and to enable them to support Mr Ashton. 

 

61.         In response to questions put by the STC, Mr Walkup stated that whilst it was the case that Mr Ashton had been working in the workshop for a couple of weeks in 2013, Mr Walkup had not been aware of that at the time as he was not always in the office and he employed seventy people.  He would not necessarily have regular conversations or liaise with the Transport Manager.  He employed others to do that.  He named Christian Stone, Kelly Williams and Oliver, his son.  He understood the importance of operator licence compliance and the importance of keeping the STC “happy” but that will “never happen, will it?”  When asked to explain what he meant, Mr Walkup continued “I just get the impression that it will never happen because I don’t think .. I personally feel there’s a .. real ...”.  The STC interrupted Mr Walkup with the enquiry “Is this where you are going to accuse me to being prejudiced?” Mr Walkup responded “No, there’s just a dislike towards my company whether it’s by you, Mr Smith, or anybody else.  There’s a dislike towards my company and that’s my honest answer to the question.  I don’t think .. is it really fair question to ask me how I run my business?”  The STC indicated that it was “Absolutely a fair question”.  Mr Walkup responded “Right.  Ask me the direct question and I’ll give you the direct answer”.  The STC then explained that the public expected their regulators to be robust.  She went on “If they are not the implications are an unacceptable risk to road safety and fair competition, yes?”  Mr Walkup agreed.  The STC continued “.. If operators do not do things properly there is the potential (a) to kill people and seriously injure them on the roads or (b) allow unfair competition against all those other operators that are paying for the cost of compliance and that is why we exist, understood?”.  Mr Walkup answered in the affirmative.  The STC stated that public inquiries were not supposed to be a “walk in the park” or an informal meeting.  Mr Walkup agreed.  The STC continued “.. I treat all operators the same when they come in  here.  I deliberately give them a hard time ..” to which Mr Walkup interjected “yeah, I’m .. sure you do”.  The STC explained that it was only by giving operators a “hard time” could she ascertain the reasons for their failings and whether she could trust them and that is when they started to give her a “warm rosy glow .. and that is when I change from being as I am now to smiley and wearing pink fluffy slippers ..”.  Mr Walkup acknowledged that he had never seem the STC like that and she indicated that “this is the very point, because until you make me have that feeling I will continue to question and prod .. Now it does not mean .. that I am prejudiced against you, it means I am doing my job and I am looking .. for something that I can hang this on and go “actually, yes, this is really good, I can put this in a positive balance”.  Now we may get to that this afternoon, I very much hope we do, but please do not think that I am prejudiced”.  The STC went onto give an account of a recent case where she had recused herself because she had given an operator “a really hard time” in a previous public inquiry.  She continued “If you feel that I am prejudiced and that I am not giving you a fair hearing I am quite capable of starting this all over again before a different Traffic Commissioner”.  Mr Walkup accepted that the STC had said that before.  The STC continued “to be fair and if you want to have a different Traffic Commissioner deal with you case you can have a different Traffic Commissioner .. The disadvantage is we are so far down the line that that would come at a whole load of expense.  I want to be fair, but I also, Mr Walkup, would love it if you could give me something that gave me have that warm rosy glow so give it to me”.  Mr Walkup responded “I am very disappointed .. that you’re saying that  .. from the last time we came to see you in January I think the communication in terms of all the information I and my staff send through to you, whether it’s certificates, whether it’s courses, whether it’s what we’re doing, why we’re doing it, that’s been a complete sea change”. 

 

62.         Mr Jarvis then offered to help Mr Walkup list all of the changes that had had taken place: no prohibitions since January 2014; a new driver’s handbook; new systems.  Mr Walkup stated that it was he who was “driving all these systems through” and he did not think that a person needed to be physically in the office in this day and age.  He and Mr Ashton had a good relationship and a good understanding of what they were trying to achieve.  At the end of every hearing, he asks “what can we do?”.  He referred to the bundles of documents which were evidence of the systems in place.  He accepted that it had been shown during the course of the hearing that some of the systems in relation to maintenance may not be working properly but he thought that it was a question of “fine tuning”.  There had been a “massive misunderstanding”.  Mr Walkup asked why the STC was shaking her head and she indicated it was because she did not think that it was fine tuning.  Mr Walkup repeated that he thought that there had been a misunderstanding between the STC and Mr Ashton about the driver defect system.  The company’s commitment was to be an exemplary company.  The STC queried how there could be a misunderstanding in respect of who repaired the vehicles when the maintenance contracts made it clear that HRVS and Keltruck would carry out all PMIs and repairs.  Mr Walkup considered that insofar as the STC considered that HRVS and Keltruck repaired all defects, there was a misunderstanding. 

 

63.         Mr Jarvis continued to take Mr Walkup through the list of changes which included toolbox training, spots checks of the driver defect reporting system, a new defect book, staff training, a change of fleet and outsourcing of maintenance. 

 

64.         The STC asked Mr Walkup to return to the original question.  Did he agree that when Mr Ashton began with the company he had to react to the situation with maintenance and carry out repair work himself in order to assist the fitters in getting the fleet “up to speed”?  Mr Walkup disagreed.  He was asked about his own role in the company.  Sometimes he would be at the operating centre for an entire week.  At other times, he would not be there because his role was to run jobs and meet customers.  As for failing to appreciate that AIM were not checking for continuity of mileage even after the company was convicted of offences, Mr Walkup accepted that they had made mistakes and had apologised for them.  AIM had assured Mr Lester in 2013, that the same errors would not be made in the future.  He accepted that as director of the company it was his responsibility to ensure that drivers’ hours and records and maintenance records were all in order and that was why they had changed the management structure of the company with two new directors and an additional CPC holder with two others hopefully qualifying in the near future.  He denied that he was the “brains” of the company although he owned it and was the “boss” but he would never “get out of the door” if everything was run past him.  He accepted that he was “possibly” argumentative.  He continued “I’m upset, I’m afraid, I’m passionate about my business and I’m upset .. that I’m here for the fourth time ..”.  The STC apologised for that.  Mr Walkup concluded “Well let me say something to you.  I’m retiring soon, so that’ll please you, won’t it?  How’s that? You’ve done me in, you know .. like Garry .. you’ve worn Garry .. into the ground and you’ve worn me into the ground because I can do without it.  I’ve had health issues the last couple of years and I’m retiring ..”  The STC announced a comfort break.

 

65.         After a short adjournment, Mr Walkup apologised if he had been rude or aggressive.  He was passionate about the company and he was conscious of the position of his employees.  Mr Walkup had been through a very stressful time, particularly as a result of the fatality.  The company was doing the right thing and he did not want to sit in a public inquiry ever again.  The STC then acknowledged that she and Mr Walkup “rub each other up a little bit the wrong way sometimes”.  She wanted to be fair but she was just trying to “get a handle on what you are doing as the director of the company to ensure compliance”.  She was worried that all the steps the company had taken were too late in the day and that they should have been taken in 2011.  The issue was whether she could trust Mr Walkup not only in the immediate future but in the longer term.  She had been required to “poke under the surface” to see if the changes were genuine or an attempt to hood wink her.  Mr Walkup responded by stating that the industry had been in the doldrums for five or six years and when Mr Ashton was taken on, the decision was made to renew the fleet to address the maintenance problems.  It took a lot of people doing the right things properly for it all to come together and work. It was hard for Mr Walkup because he was the “face” of the company who went out and got the work and ran the operations.  It had taken him three years to recruit the right team.  He accepted that at the date of the first hearing (4 February 2014) the company was “doing a lot of things very badly”.  Mr Walkup was probably guilty of trusting people too much.  He had been in the industry for twenty five years and whilst he may have been a bit of a taskmaster, he had mellowed.  It was his aim to get through the transitional period and get to a position where the STC could trust him.  He did want to step back now that he had the right people to run the business.  He felt that he had let himself down and those who he employed.  There was “poor old Garry sitting there like I’m  not sure if he’s gonna throw the towel in again and he’s making me feel bad ... but he wants to see it through”.  He thought that Mr Ashton was the type of person who always tried to do everything himself rather than ask for help.

 

66.         In his closing submissions, Mr Jarvis highlighted that since the curtailment of the operator’s licence in 2011, the company had complied with its terms.  It was conceded that changes were slow in coming but that since January 2014, there had been “massive” changes.  Mr Ashton and the company had been educated by the public inquiry process and the documentation supported that.  There had been a fundamental change in the outsourcing of maintenance and HRVS would undertake all repairs from that day.  The finances were available to pay for maintenance and tachograph analysis along with a new fleet.  What was needed was the gel to make it all work properly.  He repeated the changes identified by Mr Walkup in his evidence (see paragraph 63 above) and the conversion of analogue tachographs to digital.  The FTA audit demonstrated that systems were in place and no inference should be drawn from VE Smith’s report that the PMI records prepared by the company were the result of dishonesty.  There is no evidence of a culture of dishonesty within the company and no financial motivation to permit drivers to drive without cards.  The actions of the company since January 2014 were such that the company could be trusted in the future and should not be put out of business.  As for good repute, both Mr Walkup and Mr Ashton had had the advantage of a number of adjournments in order to show that the systems had been improved.  The maintenance failings were at their worst shambolic but that had not been the result of an attempt on the company’s part to gain a commercial advantage or an attempt to save money.  The company had demonstrated a willingness to take advice and act upon it promptly.  The bundles of documents demonstrated that repute had not been lost.  Mr Jarvis referred to the STC’s Statutory Guidance on maintenance and conceded that at the beginning of the public inquiry process, the category of seriousness was severe to moderate.  As a result of the opportunities the company had been given as a result of the adjournments, it was difficult to place the company even into the moderate category.  As for regulatory action, Mr Jarvis suggested a curtailment for a short period, although even the loss of one vehicle would be difficult.  There had been a huge amount of investment as a result of the acquisition of a new fleet and that had to be paid back.  Mr Walkup confirmed that the company could remain in business if the fleet was reduced to twenty five vehicles.  The STC conceded that suspension of the licence was not a realistic option for her to consider.  It was confirmed that the company employed about fifty nine people although the numbers varied as a result of the seasonal work the company undertook, such as skips.  Finally, the STC expressed the hope that Mr Walkup felt “slightly more relaxed than you did at the beginning about my approach and that you understand that I am not treating you any differently from any other operator”.  Mr Walkup accepted that “I’m as much to blame for that as anything ..”.  The STC then reserved her decision, indicating that it was unlikely that she would be able to publish it until the beginning of September 2014.

 

67.         On 1 August 2014, Mr Walkup wrote to the STC enclosing the company’s latest audited accounts.  Mr Walkup apologised “if I became upset during the public inquiry, I am extremely passionate about the business as a whole and I recognise that people’s livelihoods are at stake if regulatory action is taken ..”.  Since 28 July 2014, Mr Walkup had taken steps to ensure that HRVS and Keltruck  undertook all maintenance of the vehicles and the company had returned to the FTA formatted driver defect reporting sheets.  Mr Walkup had also ensured that AIM was checking for “missing hours” and he was contemplating the installation of DLD software.  The company was already using Masternaut tracking devices.  Mr Walkup had also decided that the fleet was too big for Mr Ashton to manage on his own, particularly as he was nominated on another licence and so Mr McDonagh was to be nominated as a second Transport Manager.  He had the advantage of being an internal Transport Manager.  Once Oliver Walkup had passed the CPC examinations, it was hoped that he would also be nominated as a Transport Manager as it was considered that a suitably qualified director was essential.  Kelly Williams was also sitting the examinations Mr Walkup urged the STC to postpone any regulatory action so that the company could prove that it was serious about ensuring compliance in the future.  To that end, the company was prepared to offer any undertaking the STC considered appropriate including the following:

·         HRVS and Keltruck carry out all defect repairs.

·         FTA to audit the company’s systems every six months, or more frequently if considered appropriate.

·         Upgrade all tachograph units including the introduction of DLD systems so that the driver and vehicle data automatically downloaded to the operating centre and AIM.

As the STC had indicated uncertainty as to whether she could trust Mr Walkup in the future, he was prepared to retire as director and work as an employee within the company with responsibility for business generation.  He had spent the previous 18 months building a personnel structure which could run the company compliantly and as a result, Mr Walkup could now step back.  Mr Walkup welcomed an opportunity to plead his case with the STC during the course of a visit by the STC to the operating centre so that he could demonstrate that the company was ultra compliant.  Both Christian Stone and Oliver Walkup were now fully aware of licence obligations and they had also signed the letter. 

 

68.         Enclosed with Mr Walkup’s letter was another from Mr Sims confirming that he had now been instructed to repair all defects found during PMIs.  He had advised the company to adopt the FTA driver defect reporting book immediately with robust defect reporting and a prohibition on any vehicle being used with an unrectified reported defect.  He required that all new drivers be inducted into the process prior to taking control of a vehicle.

 

69.         On 1 September 2014, Mr Walkup sent an email to the OTC informing the STC that he had decided to replace Mr Ashton with Mr McDonagh and a hand over had already taken place (with the paperwork submitted to the OTC).  Oliver Walkup would join Mr McDonagh as Transport Manager once he had passed the CPC examination.  Mr Walkup had also decided to use Transport Data Interchange instead of AIM for tachograph analysis and he had appointed Kelly Williams as Tachograph Compliance Manager as a further quality control.  The company had also employed “a new person” as Compliance Manager.  He was an ex-VOSA employee and he would work closely with the Transport Manager.  A letter of thanks from Alistair Peoples, Chief Executive of VOSA dated 1 September 2013, addressed to “Stephen” set out the recipient’s good work as an employee of VOSA.  Mr Walkup also hoped to arrange site meetings with TE Pickering-Ford and VE Smith for a review of systems and procedures. 

 

70.         On 8 September 2014, Ms Kemp of AIM wrote to the OTC to inform the STC that their contract with the company had been terminated on 29 August 2014 and on 23 September 2014, Kelly Williams emailed the OTC enclosing a sample of the new tachograph analysis data provided by Transport Data Interchange which the company was much happier with as the format was easier for the staff and drivers to understand.  The samples provided recorded zero infringements.  The STC indicated in her decision that this was a positive factor she had taken into account in her balancing exercise.

 

71.         On 26 September 2014, Nigel Mills MP wrote in support of the company and on 6 October 2014, Kelly Williams sent an email to the OTC to notify the STC of a site visit conducted by TE Pickering-Ford.  On 27 October 2014, Mr McDonagh sent an email to the OTC attaching an FTA maintenance audit conducted on 3 October 2014.  The report was marked as satisfactory apart from some minor non-conformities.  The STC noted in her decision that a satisfactory outcome was to be expected now that HRVS was dealing with maintenance and repairs.  Nevertheless, it was a positive factor she took into account when coming to her decision.

 

72.         In her written decision dated 28 October 2014, the STC identified the correct tests to be applied to the case (Bryan Haulage (No2) 2002/217 and Priority Freight T2009/225).  She noted that she had recited much of the evidence of Lee Walkup, Garry Ashton, VE Smith and TE Pickering-Ford because it illustrated the company’s approach to compliance.  Under the heading “Negative findings of fact with regard to the operator and the transport manager”, the STC noted that it had been acknowledged by Mr Jarvis that this was a serious case aggravated by the previous public inquiry in 2011 in which the company had been given a chance to demonstrate compliance.  The satisfactory maintenance investigation in March 2012 demonstrated that the company could “get it right”.  In January 2013, the company had sustained convictions for failing to produce drivers’ hours records despite the previous public inquiry and the FTA audit in 2011 which contained 38 recommendations which had not been acted upon.  The STC found breaches of s.26(1)(f), s.26(1)(c)(i) and (ii). 

 

73.         As a result of VE Smith’s unsatisfactory maintenance investigation in May 2013, the STC found that there had been a failure to comply with s.26(1)(e) and (f).  In June 2013, TE Moore’s investigation revealed a failure to comply with s.26(1)(f).  Between May 2013 and October 2013, the company’s vehicles had been issued with eleven further prohibitions, two of which were “S” marked and as a result there had been a failure to comply with s.26(1)(e), s.26(1)(f) and s.26(1)(c)(iii).  The issuing of two fixed penalty notices in October 2013 demonstrated a failure to comply with s.26(1)(c)(a). 

 

74.         The STC found that Mr Ashton was unable to carry out his duties as a Transport Manager as a result of the difficulties he faced when he joined the company, despite working long hours and becoming heavily involved in vehicle maintenance.  As a result, the STC was not satisfied that he had effectively and continuously managed the transport activities of the company.  He failed to tell Mr Walkup that he was unable to cope and as a result, deliberately hid his failings from the director.  The fact that Mr Ashton was carrying out maintenance on the vehicles in order to prevent the issuing of further prohibitions was an example of the company’s failure to have systems in place to keep vehicles fit and serviceable (s.26(1)(f)).  The removal of vehicle SF06 NUH from the workshop on 26 November 2013, when his own work was on-going on two slack adjusters was a further demonstration of the company’s failings as were the repeated driver reports of defects in relation to the vehicle pulling to the right without action being taken.  Following the fatal accident,  VE Smith issued a prohibition for brake defects. 

 

75.         As for the in-house maintenance records, the STC was satisfied that the records identified by VE Smith in his report of 25 June 2014 demonstrated that the records were “not genuine and cannot be relied upon”.  The STC relied upon the discrepancies between tyre tread depths and mileages and the “considerable variation” between the work recorded on the in-house PMI sheets and those recorded by Keltruck and HRVS.  She drew back from finding that the records had been deliberately manufactured in order to deceive her at public inquiry.  As a result of her conclusion that the records were not genuine, she was satisfied that the company had failed to keep proper maintenance records for the previous 15 months and s.26(1)(f) applied. 

 

76.         Turning to drivers’ hours records, the STC found that as a result of the company’s failure to produce records to TE Love in September 2012 and its failure to ensure that proper records were kept between August and January 2014 (as found by TE Pickering-Ford), the company had failed to comply with s.26(1)(f).  The position was aggravated by the fact that the company had, on four occasions, failed in this regard.  The STC was satisfied that it was an ongoing practice and as a result the FTA audits could not be relied upon.  The satisfactory results were in stark contrast with the findings of VE Smith and TE Pickering-Ford.  The STC had not been shown any “hard documentary evidence” that the drivers were now compliant and the evidence was in conflict.  On the one hand, she had been told by Mr Ashton and Mr Walkup that the problem of missing mileage arose from the use of agency drivers, such practice having ceased.  On the other hand, she had been told that there were many examples of warnings on the drivers’ files for failing to keep proper records.  Despite the conflict in evidence and despite the previous convictions, the company chose not to produce such documentary evidence, despite able representation by counsel and solicitor.  The STC rejected the company’s assertion that it was not aware that tachograph matters would be considered at the hearing on 28 July 2014.

 

77.         The STC then turned to her assessment of Mr Walkup.  She had concluded that he could not be relied upon as his evidence was “subject to constant change”.  His oral evidence, his written representations and his answers to TE Pickering-Ford in interview were all persuasive evidence of his approach.  The STC had had the opportunity of assessing Mr Walkup once in 2011 and twice in these present regulatory proceedings.  He had been persuasive in 2011 and she had given him the benefit of the doubt.  Her approach to him in these proceedings had been robust and equally, Mr Walkup presented as a robust individual who had no concern in making his views known and “in seeking to have his own way”.  He could also be intimidating in his approach when challenged.  Whilst robustness was an essential competence in the harsh world of the commercial vehicle industry, intimidation was not.  Mr Walkup was difficult and defensive and was extremely confrontational when challenged about matters he did not want to deal with.  He made a “great deal of assurances and .. he produces a lot of documents and he does that for the sole purpose of making it look as if he is ensuring operator licence compliance”.  The STC found that when Mr Walkup’s assurances were stripped away and when the documents were looked at carefully, they did not stand up to careful scrutiny.  The documents were disingenuous as had Mr Walkup been in 2010 (we assume this should read 2011) and before the STC in 2014.  He remained argumentative with the STC as evidenced by his response to the STC’s reference to Mr Walkup’s holiday in Dubai which resulted in an allegation that the STC was biased.

 

78.         The STC made the following positive findings of fact: there was a satisfactory maintenance investigation in March 2012; by the conclusion of the public inquiry, HRVS were conducting the PMIs and the subsequent repair work; there were improvements in the use of the Tisweb system by the Transport Manager and his assistant; the tachographs were being analysed by an independent tachograph company and the provider had changed; drivers had received tool box talks from HRVS, there was a new drivers’ handbook and a new drivers’ defect report book; Kelly Williams had attended the FTA operator licence awareness course and she intended to take her Transport Manager CPC qualifications; Oliver Walkup, who the STC had never met, was awaiting his results of the Transport Manager CPC examination; the company had invested significantly in new vehicles; Mr Walkup had given the STC a number of assurances that he now understood the seriousness of the company’s position and that he would comply with licence requirements; Oliver Walkup and Christian Stone had been appointed as directors along with Mr Walkup; Mr Walkup was prepared to stand down as a director and pass on his director duties to his son and Mr Stone; a satisfactory maintenance audit had been conducted by  the FTA on 3 October 2014. 

 

79.         The STC noted that in many cases the positive factors alone would weigh heavily in the positive balance and would be enough to swing the balance away from revocation or strong regulatory action (paragraph 109).  Mr Jarvis had submitted that moderate to serious action should be the starting point in view of the long history of non-compliance and the improvements made in compliance which were continuing.  Whilst the STC acknowledged that the evidence from the FTA and Transport Data Exchange did demonstrate that improvements were continuing, the STC categorised the company’s previous non-compliance as deliberate and determined that its acts and omissions had compromised road safety and/or had resulted in the company gaining a commercial advantage.  She concluded that as a result and in the light of her findings in relation to s.26 of the Act, she would be failing in her duty if she did not take regulatory action and that as a result of the breaches being serious and continuing and when taking account of her findings in relation to s.27 she considered that the only appropriate order was one of revocation. 

 

80.         Turning then to s.27 of the Act,  in addition to the above findings, the STC found that Mr Walkup was the “brains” of the company and that he was in effect, the company.  If he were to step down as a director, he would nevertheless exercise total control over the company.  The licensing regime depended on trust  and in considering the company’s past conduct, it was “crystal clear” that it was only “now” that Mr Walkup accepted the seriousness of the position that he and his company found themselves in.  If this were the first public inquiry and if the failings were not so serious and for such a prolonged period of time and if the company had started to put things right earlier and if Mr Walkup was not so disingenuous, the STC might have been persuaded to a different conclusion.  The STC concluded that when undertaking the required balancing exercise, she was not satisfied that the company would comply with operator licensing regime in the future, despite the company’s current position.  The steps taken were not carried out to properly and systematically ensure compliance but were nothing more than an eleventh hour “knee jerk reaction” to prevent strong regulatory action being taken.  The STC concluded that if she did not take such action, road safety and fair competition would be unduly jeopardised.  The STC reminded herself of that part of her 2011 decision which read: “This is an operator who needs to face up to its own responsibilities and to take proper action and to keep operator licence compliance at the top of the agenda and if it does not it will come back to public inquiry because I am issuing a formal final warning with regard to potential loss of repute if this operator appears before me or a fellow traffic commissioner in ... the next 5 years”.  The STC concluded that Mr Walkup had failed to heed that warning and had failed to take advantage of that opportunity.  There was a culture of non-compliance generated by Mr Walkup and his recent actions and assurances would not stand the test of time.  The company and Mr Walkup had lost their good repute and the STC had no hesitation in finding that the company ought to be put out of business, In coming to that conclusion, she referred to Aspey Trucks Limited T2010/49.  The STC acknowledged that her decision would result in either the closure or the sale of the company and that jobs may be lost.  She was however satisfied that her orders were proportionate as compliant operators would be able to compete fairly for the work that the company would lose and as a result road safety and fair competition would no longer be jeopardised. 

 

81.         The STC directed that the licence be revoked under s.26 and s.27 with effect from 23.59 12 December 2014.  However, in view of the long delay between the final public inquiry hearing and the publication of her decision, the STC granted a stay once a notice of appeal was lodged.  She indicated in her decision that she was minded to disqualify the company for a period of three years and invited verbal or written representations within twenty one days.  As a result of this appeal, no final decision has been taken on the matter.

 

82.         Finally, as a result of the STC’s findings in relation to Mr Ashton (paragraph 74 above) she found that he had lost his good repute. In view of the “difficult position” he had found himself in, the appropriate and proportionate direction was that the inevitable period of disqualification would remain in place until Mr Ashton had re-qualified as a Transport Manager. 

 

83.         At the hearing of this appeal, James Backhouse appeared on behalf of the company.  The grounds of appeal submitted on 24 November 2014 were in a narrative form extending to eighteen paragraphs without the grounds of appeal being either in-numerated or clearly identified.  Whilst it is appreciated that it can often be difficult for a representative who did not represent the operator during the public inquiry to properly provide sufficient detail to support any particular ground of appeal prior to receipt of the appeal bundles, the Tribunal nevertheless expects properly in-numerated and clearly identified grounds of appeal.  In this case (as with the appeal of T/2014/76 Transfreeze Limited & William and Jamie Morrit which was heard by the Tribunal on the same day as this present appeal) it was not until receipt of Mr Backhouse’s Skeleton Argument served the day before the hearing, that the grounds of appeal were properly and sufficiently identified. The need for clearly identified grounds of appeal is of the utmost importance when, as in this case, the main ground of appeal as identified in the Skeleton Argument is “Lack of objectivity/Bias”.  For the avoidance of doubt we do not consider a description of the STC having a “personal dislike” of the director of the company or an assertion that the STC’s approach to the case was “clouded with antipathy” is sufficient.  An allegation of bias or perception of bias should be unequivocally identified and in the clearest possible terms.  Mr Backhouse apologised for failing to appreciate that when such allegations were to be made against a TC, that in the first instance, an affidavit was required from the person alleging bias so that the TC could respond to it, that other affidavit evidence may then be obtained if necessary and the Treasury Solicitor’s Department given an opportunity to apply for permission for the Secretary State of Transport to be added as a party to the appeal (as set out in the decision of 2004/426 EA Scaffolding Limited which was provided to Mr Backhouse and see T/2014/72 Ian Russell Nicolas t/a Wigan Container Services and The Secretary of State for Transport).  When this point was first raised by the Tribunal in Transfreeze Limited, Mr Backhouse submitted that the appropriate course of action for the Tribunal to take was first of all to determine whether on the papers before us, the allegation was tenable and only if it was, then the hearing should be adjourned for the above procedure to be followed.  We agreed to adopt that approach.

 

84.         Mr Backhouse referred the Tribunal to the Court of Appeal decision Re S-W (Children) (2015) EWCA Civ 27 paragraphs 20, 43-49 which repeats the fundamental principles that justice must be seen to be done and that a judge must not approach a case with a closed mind.  He then referred the Tribunal to that part of the transcript of the hearing of 4 February 2014 where the STC raised the issue of the value of the company to Mr Walkup, his reaction to the phrase “fancy holidays”,  his assertion that the issue was “prejudicing the whole discussion” and his feeling that he was being “victimised constantly” (paragraph 16 above).  Mr Backhouse submitted that this was the first occasion that Mr Walkup raised the issue of bias as a legitimate issue which the STC failed to properly deal with.  She should have offered to recuse herself.  We disagree.  The STC was making the legitimate point that as the sole director and shareholder of the company, it represented value to him.  His response was that it was he who provided value to the business.  It was in those circumstances that the issue of his holiday was raised.  Whilst the use of the word “fancy” was inappropriate, the point being made was a valid one and was neither irrelevant or inappropriate.  Mr Walkup’s words clearly demonstrated that he did not believe that either his company or himself should be the subject of intrusive regulatory investigation and his reaction was wholly out of proportion to the STC’s questioning on a legitimate issue. Further, not only was Mr Walkup and the company represented by Mr Jarvis but his solicitor was also in attendance.  Neither representative felt it appropriate to make any comment, to ask for a break to take instructions or to make submissions that the STC should recuse herself.  A simple assertion that a TC is biased is not sufficient to result in an offer of recusal, otherwise, any operator could avoid or shorten a difficult hearing by making an allegation of bias.

 

85.         The next allegation of bias concerned the hearing of 13 February 2014 during which the STC accepted that she talked to Mr Walkup in a “completely different tone” compared to other witnesses because she had difficulty with Mr Walkup’s credibility (paragraph 28 above).  Mr Walkup also accused the STC of glaring at him and it was at that stage that the STC offered to give Mr Jarvis an opportunity to speak to Mr Walkup to discuss whether he should ask the STC to recuse herself.  Mr Backhouse was critical of the STC for failing to do more once Mr Walkup  had declined her offer. Mr Backhouse was not suggesting that the STC’s failure was unfair but that she should have said “I must understand what you are saying” in order to determine whether she should recuse herself.  Again we disagree.  The STC’s frank acknowledgment amounted to no more than a healthy scepticism about Mr Walkup’s evidence which is hardly surprising bearing in mind the regulatory record of his company from 2010 to that date and the evidence he had given about maintenance arrangements.  On 4 February 2014, Mr Walkup had told the STC that all of the inspection and repair work on the company’s vehicles had been outsourced to HRVS.  His evidence was then materially undermined by the evidence that Mr Ashton gave on 13 February 2014 to the effect that up to 4 February 2013, 95% of the repair work was in fact undertaken by the company and this was in accordance with the evidence that Mr Sims had given on 4 February 2013.  It would have been extraordinary if the conflict in evidence had not raised question marks about the credibility of Mr Walkup.  In any event, we are further satisfied that the STC need not have taken matters any further.  Mr Walkup and the company were legally represented.  The opportunity was given to make an application.  It was rejected by Mr Walkup.  He cannot now argue that the STC’s conduct was unfair.

 

86.         Mr Backhouse also referred to an exchange between the STC and Mr Walkup on 13 February 2014 when he was giving evidence and the STC interrupted because Mr Jarvis was speaking quietly to Mr Ashton.  The STC pointed out that the background noise was a distraction to Mr Walkup as he gave evidence.  When Mr Jarvis had indicated that his conversation with Mr Ashton had concluded, the STC asked Mr Walkup to go over what he had said about the maintenance arrangements, which Mr Walkup did.  He concluded “I can only tell you the truth, the arrangement was such ..” at which point, the STC interrupted stating “go on, no, I am listening.  The arrangement was such ..”.  Mr Walkup continued “like I’ve said on two occasions previously, the agreement was they did the inspections and it was discussed as to who would do the repairs”.  The STC then pointed out that Mr Sims evidence was in conflict with that of Mr Walkup who went on “Mr Sims letter says that now, doesn’t it”.  The STC went on “I am interested .. Yes, everything has changed since last week” to which Mr Walkup agreed.  Mr Backhouse stated that it was Mr Walkup’s case that the STC gave the appearance of not listening during this exchange and was shaking her head and glaring at him.  As a result, his answer petered out when first repeating his evidence, hence the STC’s reassurance that she was interested and listening although her summary of the evidence was incorrect.   We note that the STC’s summary of the evidence was not incorrect.  She was summarising the letter of Mr Sims sent to her on 7 February 2014 and Mr Walkup agreed with that summary.  Whilst we do not have the benefit of the STC’s account as to what was taking place during this exchange, the point remains that when Mr Walkup was given a further opportunity to apply for the STC to recuse herself, he did not take it. 

 

87.          Mr Backhouse referred to two other instances when the STC prompted Mr Walkup with “I’m listening” whilst he gave evidence which gave the impression that she was doing something other than listening to him.  We are satisfied that this sort of comment when taken out of context cannot assist an Appellant in establishing bias.  The STC could have been looking for documents which were relevant to the issues raised in the evidence she was hearing and we note that she often made the same comment to other witnesses as they gave their evidence.  We have had the benefit of seeing her extensive notes taken during the hearings.  The fact that the STC gives an assurance that she is listening demonstrates that she is live to the issue of perception and wishes to address it.

 

88.         Mr Backhouse then turned to the hearing on 28 July 2014 when Mr Walkup objected to being asked about how he ran the company and asserted that there was a “dislike towards my company whether it’s by you, Mr Smith or anybody else” (paragraph 61 above).  The STC offered to recuse herself again.  Mr Backhouse is critical of the STC because she made the offer and then effectively withdrew it by referring to time and expense.  She had accepted that she had given Mr Walkup a hard time but that this was the approach she took to all operators.  Mr Backhouse’s experience that this was not the case but the point was that by this stage it was Mr Walkup’s perception that he was not being given a fair hearing.  Mr Backhouse accepted that the STC’s explanation of her role and the reasons for her robust approach were words of reassurance but she treated the DVSA witnesses differently.  At this stage, Mr Jarvis should have asked for a break so that the issue of recusal could be discussed with Mr Walkup.  As a result of all that had taken place, the issue of recusal was not dealt with and the STC failed to apply the Porter v Magill test of whether a fair minded and informed observer would have thought, and whether his conclusion would have been that there was a real possibility of bias.  Mr Backhouse would not go so far as to suggest that the STC was not trying to be fair and he accepted that she was being.  She did not deal with the issue properly.  It was not the STC’s fault that the legal representatives of the company did not ask for time to speak to Mr Walkup so that the issue could be explored with him. 

 

89.         Mr Backhouse then gave examples of comments made by the STC which he described as sarcastic, unfair and belittling.  Mr Backhouse accepted that there was no individual comment which stood out as an obvious example of lack of objectivity.  It was the accumulation of comments which gave rise to the issue.  We comment on each of Mr Backhouse’s examples in turn:

 

·         She used the word “love” when asking Mr Ashton a question and at another stage, when he asked whether he could clarify a point, the STC’s response was “I would love you to”.  Mr Backhouse submitted that the use of the word “love” was sarcastic and impolite.  We are satisfied that the use of the word “love” is inappropriate but we are not satisfied that the response “I would love you to” was sarcastic or impolite or was intended to be.  Mr Ashton volunteered clarification at a point when Mr Walkup was giving evidence and the STC was grateful for it.

·         Her refusal to adjourn the public inquiry for six months at the conclusion of the hearing on 13 February 2014 was pre-emptive with an inference that the company would benefit and that there would be road safety implications arising out of such a long adjournment.  We are satisfied that it was entirely appropriate to refuse a six month adjournment in a case where road safety was potentially an issue and when long, drawn out proceedings should be avoided.  In reality, as a result of other reasons, the company was given a longer opportunity to demonstrate compliance.  We do not consider that the STC dealt with the company’s application inappropriately.

·         During the course of Mr Jarvis’ closing submissions, the STC asserted that the long and multiple adjournments were “mostly” at the request of the company which apart from the first adjournment resulting from Mr Walkup’s holiday, was not the case.  Admittedly, delays had been caused by the unavailability of Mr Jarvis but they could not be characterised as being at the operator’s request.  We are not satisfied that this point has any merit.  Much of the delay resulted from the unavailability of Mr Jarvis who was representing the company and presumably the company wished to continue to retain Mr Jarvis as their representative.  To that extent, the STC’s comment was correct. 

·         She made the giving of evidence an “ordeal”.  She conceded that she was putting pressure on the witnesses by stating at several points that Mr Ashton was “beleaguered”.  The STC was robust and straightforward in her approach to the witnesses.  She did describe Mr Ashton in the term described and rightly so.  His response to her questions was often inadequate, he repeatedly failed to produce maintenance and drivers’ hours records and he was in an impossible position within the company.  Mr Walkup on a number of occasions described him as “Poor old Garry” when describing his role within the company.  The STC did nothing more than approach the evidence in a robust fashion and her description of Mr Ashton cannot assist the company in this appeal.

·         The STC deliberately undermined the witness whilst they gave their evidence.  An example was her comments about the heat sensing guns.  We are satisfied that the transcripts do not give rise to any impression that the STC was deliberately undermining the evidence she heard and there is no evidence that she did anything other than discharge her functions as a regulator during an inquisitorial process in a robust way.  Her approach to the heat sensing guns was informed by VE Smith who clearly did not place much value on the use of such equipment.  The STC was entitled to receive and rely upon guidance from a vehicle inspector, although it may be that such guidance was not entirely accurate.  However, we are satisfied that the use of the words “fannying around” and “blinking” are inappropriate for use in a judicial forum by a senior regulator (or indeed any regulator). 

 

90.         We are satisfied that the allegations of bias or the perception of bias whether taken individually or together are untenable in this case and as a result, an adjournment was not required for the service of affidavit evidence.  Public inquiries are hearings conducted by statutory regulators whose functions are to ensure road safety, fair competition and compliance.  The hearings are by necessity inquisitorial and one of the functions of TCs is to probe and test the evidence put forward by an operator.  The approach of TC’s must be robust in those circumstances and they often have to deal with operators (like Mr Walkup) who are themselves robust and who object to any form of intrusive scrutiny of their operations and react accordingly.  There may be other operators or witnesses who have no or little previous experience or understanding of the public inquiry process, who may feel that they are the object of robust, unfair and intrusive scrutiny when that is not the case.  A complaint that an operator or witness has been the victim of robust questioning on matters which are in fact relevant or at the heart of the issues despite the operator’s view to the contrary is not sufficient to form the basis of an allegation that a TC has been biased or appears to have been biased against them.  Something more needs to be established than a robust approach. 

 

91.         As we have previously noted in the appeal of Transfreeze Limited  there is no doubt that the STC uses language which is always straightforward and sometimes inappropriate for use in a regulatory or judicial forum.  It may be that she uses such language in a misconceived or misguided attempt to appear to be approaching the issues in a hearing in a “down to earth” fashion which she perceives to be appropriate for the senior regulator of the commercial road transport industry.  Whatever her reasoning, her language and phraseology can give rise to complaints that she is trivialising the issues and the evidence. We do not consider that the phraseology used by the STC in this case undermines her decision or the process by which she came to it, or indeed gives any perception of bias.

 

92.         Whilst we accept that it is not the Tribunal’s usual practice to determine issues of bias without following the procedure set out in EA Scaffolding, the fact that on two occasions, a legally represented director of a company was asked whether he wished to apply for the STC to recuse herself and did not then take that opportunity causes the Tribunal to be satisfied that in this instance, the procedure need not be followed.  In failing to make such an application, Mr Walkup effectively waived any rights he may have had to make such an application.  He is an assertive and robust individual.  That is obvious from his presentation in the public inquiry hearings and his dealings with TE Pickering-Ford in interview.  We do not accept that there would have been any difficulty in Mr Walkup instructing his legal representatives to make the relevant application whether during the hearings themselves or in writing between hearings or at the conclusion of the public inquiry or indeed in Mr Walkup being given legal advice about doing so.  In the circumstances, the main ground of appeal of the company fails.

 

93.         Mr Backhouse’s next point related to the inquiry process itself.  First of all, it was incumbent upon the STC to issue a further call up letter once she had determined that it was proper for VE Smith to undertake further investigations into the in-house maintenance records because of his concerns that they were not authentic.  This is a statutory requirement and it was unfair not to do so irrespective of the fact that the company was legally represented.  Mr Backhouse described Mr Jarvis and Mr Roberts as “inexperienced and not informed with the jurisdiction” and that had a bearing upon whether the STC should have issued a further call up letter.  We disagree.  The company was well aware of the issues raised by VE Smith during the second hearing concerning the maintenance records and the company, Mr Walkup,  Mr Ashton and their legal representatives were all too aware of the purpose of his third investigation.  This Tribunal has previously stated in 2001/72 AR Brooks that providing the position is clear in relation to new evidence, there is no need for a further call up letter when further matters come to light.  The company was provided with VE Smith’s third report in good time and they were in a position to deal with it during the fourth hearing.

 

94.         Mr Backhouse also made a general complaint about the “unstructured nature” of the hearings with the STC asking questions of witnesses as they were taken through their evidence and requesting assistance from other witnesses when this was taking place.  Whilst Mr Backhouse accepted that TCs are entitled to interrupt for the purposes of clarification, the STC overstepped the mark by introducing evidence from other sources.  We disagree.  Public inquiries are often relatively unstructured hearings and it often assists a TC who is conducting an inquisitorial inquiry to ask for the assistances of other witnesses on an issue that has arisen during evidence.  The structure of the hearings was not undermined by the STC’s approach to the evidence or to her conduct whilst the witnesses gave evidence.

 

95.         Mr Backhouse finally turned to the STC’s balancing exercise.  He accepted that as at February 2014 “the company was not in a happy shape” and Mr Walkup accepted that.  Mr Backhouse described the company’s procedures as “piecemeal”.  However, the STC’s balancing exercise failed.  The acquisition of nineteen new vehicles which started in March 2013, the use of FTA auditing, the training of the staff, the outsourcing of maintenance which started in December 2013, the improvement of the MOT and PG9 rates, the addition of two new directors by the end of the public inquiry were comprehensive improvements which went to the heart of the operation and which should have resulted at the very least in the licence continuing with a further review in six months.  The improvements could not be categorised as Mr Walkup’s “knee jerk reaction” to prevent strong regulatory action.  The STC’s decision was “all about” Mr Walkup. 

 

96.         The Tribunal’s starting point in relation to this issue is to note that the STC did fail to set out in her decision, all of the positive steps and features of the company’s operation by the time she had published her decision.  She failed to mention, that quite apart from Kelly Williams having attended the operator licence awareness course, Oliver Walkup and Christian Stone had as well.  She failed to mention that Mr Ashton had been replaced as Transport Manager by Mr McDonagh (who had not appeared before her during the course of the public inquiry and so the STC had not had the opportunity of making any assessment of him) and that an ex-employee of VOSA had been appointed as Compliance Manager (although the surname of this employee had not been provided by Mr Walkup and the STC had not had the opportunity of hearing from him).  She also failed to mention the much improved MOT and PG9 rates.  We also consider that the STC failed to place sufficient emphasis on the acquisition of a new fleet of nineteen vehicles at considerable expense, the figure appearing in the appeal bundle.  To that extent, the STC’s balancing exercise was not complete.  In the circumstances, the Tribunal will now undertake its own balancing exercise.

 

97.         The STC did observe that in many cases, the positive steps taken by the company would have been sufficient to avoid serious regulatory action and that is indeed so.  The issues in this case were two fold.  The first was the reasons for the long standing and persistent breaches of s.26 of the Act and whether they justified revocation and second, whether the company could be trusted to be compliant in the future.  Mr Backhouse was correct when he described this case as being “all about” Mr Walkup.  He was the driving force and “brains” behind the company.  He held a CPC certificate, had been the Transport Manager for the company until he was required to resign by the STC and therefore, he must have been alive to the standards expected of compliant operators and he would have been left with no doubt about his obligations as the sole director and shareholder of the company following the public inquiry in May 2011.  The STC spelt them out to him.  Whilst one satisfactory maintenance investigation was undertaken in 2012, the evidence was that shortly thereafter, maintenance and drivers’ hours systems were failing to a significant degree.  Mr Walkup was or should have been aware of TE Love’s findings in July 2012, TE Moore’s findings in the summer of 2013 and the failure of his company to instruct AIM to look for missing mileage by the time that TE Pickering-Ford undertook her investigation in January 2014. TE Pickering-Ford and the STC were materially misled as to how the missing mileage came about, repeated assertions having been made that the omissions were due to the use of agency drivers.  Mr Walkup either abdicated responsibility for ensuring compliance with the rules on drivers’ hours and records or he failed to ensure compliance even when the company was under investigation and close scrutiny.  His answers when interviewed by TE Pickering-Ford demonstrated that he was a man who was capable of saying anything to extricate himself from a difficult position and that he was further capable of changing his account when it suited him or when “caught out”. 

 

98.         By May 2013, the company’s vehicles had attracted eighteen prohibitions (two “S” marked) since the public inquiry in May 2011 and most if not all of the failings identified in that public inquiry were identified as on-going by VE Smith.  Whilst it is clear that the fleet was in the process of being replaced at this time, maintenance of the vehicles not in contract was grossly inadequate and remained so up to the first hearing of the second public inquiry in February 2014 despite HRVS undertaking the PMIs from about December 2013 (as a result of the fatality in November 2013).  The STC’s finding that the PMI sheets completed by the company’s fitters were not authentic was not challenged in this appeal.  Mr Walkup’s evidence about the changes to maintenance systems and in particular that all repairs were being undertaken by HRVS in February 2014 was in stark conflict with the evidence of Mr Ashton and Mr Sims and was untrue.  His assertion in evidence that he was not aware of the true position was unbelievable and even by the third hearing, HRVS were not undertaking all repairs.  Again, he had either abdicated all responsibility for maintenance or he was aware of the full picture and did little, apart from the appointment of Mr Ashton who recommended replacement of the fleet, to address the problem.  It is clear that he failed to provide the appropriate support for Mr Ashton and as a result, he was unable to discharge his duties as Transport Manager. 

 

99.         The conclusion that the long standing failings of the company were driven by commercial advantage and that deliberate decisions were taken in relation to maintenance which jeopardised road safety is irresistible.  The alternative is that Mr Walkup had no regard for the obligations imposed upon him as the sole director and shareholder of the company by the regulatory regime.  He was more interested in building up the company.  The vast majority of the steps taken to ensure compliance were undertaken between the first and fourth hearing with others taken even after the public inquiry had concluded.  The STC determination that the company’s reaction to regulatory scrutiny was a “knee jerk reaction” by Mr Walkup cannot be criticised.  Indeed, we agree.  She further found that Mr Walkup is not a man who can be trusted to comply with operator obligations in the future and again, we agree.  He had given assurances to the STC in May 2011 and he had failed to honour them.  There was nothing before the STC to suggest that his attitude would change apart from his own word. 

 

100.      The balancing exercise that was required to be undertaken at the conclusion of the fourth hearing (and taking into account the further steps taken in September and October 2014) had to include the adverse findings which were inevitable in respect of Mr Walkup.  Whilst Mr Walkup had indicated a willingness to stand down as a director and remain with the company as an employee responsible for generating work, the irresistible conclusion is that he would continue to control and direct the company.  Reliance is placed upon the fact that two new directors had been appointed.  It is of significance, that despite their appointments between the third and fourth hearings, the two most important individuals within the company (after Mr Walkup) failed to attend the final hearing of the public inquiry in order to inform the STC how they would ensure that the company remained compliant and that if necessary, Mr Walkup would be kept at arm’s length.  As a result, the STC was denied the opportunity of making any assessment of the two directors and we cannot see how, in those circumstances, any TC could find that the company could be trusted to be compliant in the future despite the very positive steps that had been taken by the company to address its fundamental failings, including replacement of the fleet. Revocation was inevitable along with loss of repute by Mr Walkup and the company and we are satisfied that neither the law or the facts of this case impel us to come to a different view to that of the STC as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

 

101.      The appeals are dismissed with effect from 23.59 on 18 June 2015.

 

102.      The issue of disqualification remains outstanding.  We envisage that an oral hearing will take place so as to allow Christian Stone and Oliver Walkup to attend in their capacity as directors along with Mr McDonagh and the newly appointed compliance manager, in order to put the company’s case forward in relation to future compliance and their ability to run the company without any input from Mr Walkup.  If they can persuade the STC in that regard and in the light of the very positive steps taken by the company since February 2014, then it may be that the company could avoid disqualification, may be in a position to regain its good repute and could be successful in an application for a new licence in the very near future. 

 

103.      Postscript: we were concerned by the length of time that it took for the STC to publish her decision as a result of pressure of work.  As the STC has observed, reasons for decisions should be issued within twenty eight days.  That deadline should be complied with by all Traffic Commissioners as long delays will have the effect of undermining the integrity of the regulatory process.  Equally, I must apologise for the delay in publishing this decision which has been caused by a period of leave on grounds of ill health. 

 

 

 

[image removed]

 

Her Honour Judge J Beech

 28 May 2015