Decision

Decision for Dominics Haulage Ltd (OD2011032) & Nikki Vee – Former Transport Manager

Published 27 August 2024

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

2. Public Inquiry held on 18 July 2024 at Birmingham

2.1 Operator: Dominics Haulage Ltd (OD2011032) & Nikki Vee – Former Transport Manager

3. THIS CASE

The operator and now former transport manager were investigated by the DVSA for using a suspected unauthorised operating centre and for being a front for a revoked operator, WED Logistics Ltd. It was also alleged that the operator and transport manager had failed to co-operate with the DVSA.

In addition a Loss of Transport Manager (“LoTM”) letter was issued to the operator after the transport manager, Mr Nikki Vee, removed himself as the transport manager from the licence on 12 June 2024. No response was received to that LoTM letter before the deadline within the same or at all.

4. SERVICE OF DOCUMENTS

Calling in letters were sent to the operator and to the transport manager from the Office of the Traffic Commissioner using the last correspondence addresses (postal and email) given to the Office of the Traffic Commissioner by the operator and transport manager. Following the Upper Tribunal appeal decision of Philip Drake [2023] UKUT 98 (AAC) I was satisfied that it was more likely than not that the correspondence sent to the operator and to the transport manager was delivered and that it was more likely than not that both the operator and the transport manager were put on notice of the public inquiry scheduled for today, 18 July 2024, at 10.30am. As a result I was satisfied that the operator and transport manager were properly served with their respective correspondence.

5. PUBLIC INQUIRY 18 JULY 2024

No one attended the public inquiry. In addition to the above finding of good service of the calling in letter the director of the operator had been in email correspondence with the caseworker in this case and was clearly aware of the hearing today.

I noted that the transport manager had removed themself, using the online portal, as the transport manager on 12 June, and would have seen from that online service portal correspondence (including emails) sent to them. Notwithstanding the finding I have made in paragraph 7 above it is even more clear to me that the transport manager knew of the hearing today as the original calling in letter was dated 22 April 2024.

I waited until 11.30am. At that point in time no one had attended and there had been no call, email or other means of communication from anyone to ask for the case to be adjourned.

I considered adjourning the case on my own volition but decided that there was no persuasive reason for me to do so as the operator and transport manager had failed to engage with the public inquiry process and because there was sufficient evidence in the public inquiry bundle to reach my decisions in the absence of the operator and/or the transport manager. It was in the interests of justice to proceed in their absence and to reach a decision today just from the papers before me.

6. BURDEN AND STANDARD OF PROOF

The burden of proof is upon the DVSA and/or the Office of the Traffic Commissioner to prove any allegations made against the operator and/or transport manager. The standard of proof is the civil law standard, the balance of probabilities. In other words what is more likely than not to be correct.

7. FINDINGS OF FACT

All of my findings of fact have been made after applying the correct burden and standard of proof to the evidence that is before me.

The operator had failed to comply with the calling in letter and attached case management directions as it had not supplied any of the evidence requested at any time.

The operator was not of appropriate financial standing as it had failed to send in any financial evidence that it had available to it the sum of at least £17,000 as an average balance over the past 3 complete months.

The DVSA evidence contained in the pubic inquiry statement of Traffic Enforcement Manager Henharen was evidence based, credible, cogent and persuasive. I have accepted it as such.

This evidence was not challenged, or not materially challenged, by the operator and/or transport manager

The DVSA evidence of Traffic Examiner Barwell dated 08/02/2024 and 21/5/2024 was evidence based, credible, cogent and persuasive. I have accepted it as such.

This evidence was not challenged, or not materially challenged, by the operator and/or transport manager.

All of the allegations made by Traffic Enforcement Manager Henharen are found to be proven.

All of the allegations made by Traffic Examiner Barwell are found to be proven.

I repeat all of those allegations and I adopt them all as my findings of fact in this case. The principle findings of fact that I have made from the proven DVSA allegations are:

(a) That an unauthorised operating centre was being used by this operator. That is a criminal offence under section 7 of the Act (an absolute offence where knowledge is not needed to have been proved for the offence to be proven), it is also a breach of s.26(1)(a) of the Act and it is a breach of the general undertaking on this operators licence which states that “An unauthorised operating centre will not be used in any traffic area” (see page 34 of the bundle, second to top sentence). There is no excuses for this taking place as this transport manager is deemed to know that an unauthorised operating centre cannot be used and the operator cannot plead ignorance to the undertaking that was agreed when the licence was applied for. Indeed, note 6 at the end of all operator licences warns the operator about the use of an unauthorised operating centre.

(b) I further find that the offence under section 7 of the Act was committed on many occasions by the use of the unauthorised operating centre.

(c) The Operator was acting as a front for revoked licence holder WED Logistics Ltd by lending its operator’s licence to that legal entity. By doing so it was allowing a veneer of legitimacy to be present for a clearly unlawful operation. This cuts to the very heart of the operator licensing system; trust. It is also an offence under section 38(1)(b) of the Act which I find to be proven. When a transport manager and/or operator allow, cause or permit this to happen (which I further find has happened here) such conduct cannot escape a robust regulatory consequence.

(d) Both the operator and transport manager failed to co-operate with the DVSA investigation by failing to respond to official correspondence from the DSVA that requested evidence. They further failed to co-operate with the DSVA by its failure to send any evidence to the DVSA as per the Case Management Directions attached to the calling in letter. Failing to co-operate with the DVSA is unacceptable in this regulated industry. Doing so is a matter that goes to the issue of good repute.

(e) Both the operator and transport manager failed to co-operate with my office and, as a result, the public inquiry process by failing to respond to the Case Management Directions that related to maintenance related documents. Failure to co-operate with the Regulator, or their staff, is unacceptable in this regulated industry. Doing so is a matter that goes to the issue of good repute.

(f) The above failings are also a breach of the following general undertaking on the operator’s licence; “Records are kept (for at least 15 months) of all driver reports that record defects, and all safety inspections, routine maintenance and vehicle repair reports, and that these are made available on request.” Emphasis added. See page 33 for this undertaking that was given when the operator’s licence was applied for. The failure to provide the evidence requested in the Case Management Directions is the breach of that undertaking.

(g) The operator is not professionally competent. Its transport manager removed himself from the operator’s licence on 12 June 2024. A LoTM letter was issued to the operator on 14 June 2024 by post and by email. As at today no period of grace had been requested, there was a public inquiry (the one today) that the operator has failed to attend and professional competence has not been restored.

(h) By the above findings of fact there have clearly been material changes to this operator’s licence since it was granted.

There are no meaningful positives that I can give credit to the operator or to the transport manager. Given the severity of the findings that I have made, and with a complete lack of any, or any meaningful, evidence in response to the DVSA investigations and public inquiry process the operator and transport manager have missed out on the clear opportunities to both explain themselves and to offer mitigation/positives that I could take into account.

8. BALANCING EXERCISE

Assessing the operator as it appears before me today it is clear that the negatives tip the balance in only one direction; that I must consider taking regulatory action. The same is true of the former transport manager.

9. STATUTORY DOCUMENT NUMBER 10, ANNEX 4 CONSIDERATION

I repeat all of my findings in this case. I repeat that there is no meaningful credit that I can give to the operator. In assessing this operator in accordance with Statutory Document 10 issued by the Senior Traffic Commissioner for Great Britain I determine that this case falls squarely into the “Severe” category for consideration of regulatory action. The lending of the operator’s licence to a revoked operator so they could continue to operate with the veneer of legitimacy is the very worst type of conduct an operator can engage in. Such proven conduct alone cuts so deep to the issue of trust that in and of itself it is enough for such an entry point for consideration of regulatory action to be made. Added to that the other proven findings, and lack of any meaningful credit, I am certain that this case falls squarely into the “Severe” entry point for regulatory action.

10. DECISIONS

Having repeated all of my findings I have asked myself the Priority Freight question which I answer in the negative; I do not trust this operator to be compliant in the future. I have then asked myself the Bryan Haulage question. I determine that it is proportionate to answer that in the affirmative because the acts and omissions of this operator (director and/or transport manager) are such that the operator deserves to be put out of business. The operator is no longer of good repute. The operator’s licence must be revoked under section 27(1)(a) of the Act.

The operator is not of appropriate financial standing. It must be revoked under section 27(1)(a) of the Act.

The operator is not professionally competent. It is both proportionate and now a mandatory requirement that the operator’s licence is revoked under section 27(1)(a) of the Act.

All of my findings have occurred on the watch of the now former transport manager. They fell far short of being “effective” in their statutory role to ensure the transport operation was run in a compliant manner on a day-to-day basis. It is inconceivable that any effective transport manager would not have known what was happening at an unauthorised operating centre and/ or that the operator’s licence was being loaned to a revoked operator. Repeating all of my findings I am more than satisfied that this transport manager lost their good repute as a transport manager a long time ago and that it had not been restored by the date of the public inquiry.

It is a mandatory requirement that when a transport manager loses their good repute as a transport manager they must be disqualified as a transport manager. Here it is proportionate to disqualify Nikki Vee as a transport manager for 24 months with immediate effect under paragraph 16(2) in Schedule 3 of the Act. That disqualification will end at 2359 hours on 17 July 2026.

Since Mr Vee failed to attend today and failed to submit any written representations I am unable to think of any suitable rehabilitation measure for him.

Since the operator’s former transport manager lost their good repute, and since that loss of good repute occurred before Mr Vee resigned as a transport manager, I also revoke this operator’s licence under section 27(1)(b) of the Act.

Under my discretionary powers it is also proportionate to revoke the operator’s licence under sections 26(1)(a) and (h) of the Act.

All orders of revocation are with immediate effect.

11. DISQUALIFICATION

This, upon the proven facts, is a bad case.

I have considered the Transport Tribunal (as it was before the Upper Tribunal) appeal case of 2006/27 Fenlon where it was held that:

‘trust is one of the foundation stones of operator licensing. Traffic, commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operator believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.”

I have considered the appeal cases on the subject of disqualification including 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage.

I repeat all of my findings and the proven allegations from the DVSA. This is a case where disqualification is not only proportionate but it is also necessary to ensure a clear message is sent out to the industry and public at large given the fundamental breaches of trust that have occurred in this case. It is also required to ensure that there is a suitable deterrent to other well-informed operators who might otherwise be tempted to think along the lines of “What is the point of spending all of this money, time and effort in being compliant when there will be very little action taken if I am caught being seriously non-compliant?” It would only take a few operators to start thinking like that before the purpose of this jurisdiction was questioned and the public would suffer.

The proportionate regulatory action is for this operator to be disqualified with immediate effect from holding or obtaining any type of operator’s licence in any traffic area, or being a majority shareholder in a company that applies for or holds and type of operator’s licence including being a majority shareholder of subsidiary company to a company that holds or applies for any type of operator’s licence in any traffic area. This order is made under sections 28(1), (3) and (4) of the Act. The period of disqualification is for 24 months and will end at 2359 hours on 17 July 2026.

The director, Mr Antony Hignell, is disqualified with immediate effect from holding or obtaining any type of operator’s licence in any traffic area in any form of entity (sole trader or partner in a partnership), or being a director or majority shareholder in a company that applies for or holds any type of operator’s licence including being a majority shareholder of subsidiary company to a company that holds or applies for any type of operator’s licence in any traffic area. This order is made under sections 28(1), (3) and (4) of the Act. The period of disqualification is for 24 months and will end at 2359 hours on 17 July 2026.

The operator is unequivocally warned that operating any regulated vehicle from today is an offence which I would ask the DVSA to prosecute in the criminal courts and doing so also empowers the DVSA to impound any vehicle(s) so operated when there was no valid operator’s licence in force. Mr Hignell now has actual knowledge of the power of DVSA to impound.

Traffic Commissioner
Mr M Dorrington

18 July 2024.