Decision for JD Fay Plant Services Limited (OK2061408)
Written decision of the Traffic Commissioner for the South West and Metropolitan area for JD Fay Plant Services Limited and Thomas Hardiman
In the South Eastern & Metropolitan Traffic Area
OK2061408 JD FAY PLANT SERVICES LIMITED (1)
Thomas Hardiman (2)
GOODS VEHICLE (LICENSING OF OPERATORS ACT) 1995
GOODS VEHICLES (LICENSING OF OPERATORS) REGULATIONS 1995
Traffic Commissioner’s Written Decision
Public Inquiry 28th November 2024
Decision
Pursuant to adverse findings under Section 26(1)(a), (e), (f) and (h) of the Goods Vehicle Licencing of Operators Act 1995, licence OK2061408 J D Fay Plant Services Limited is revoked with immediate effect.
JD Fay Plant Services Limited and its sole director Joseph Fay (date of birth Feb 2000) are disqualified from holding or obtaining an operator’s licence or from being engaged in the management, administration or control of any entity that holds or obtains such a licence for an indeterminate period with immediate effect as provided for by Section 28 (1), (4) and (5) of the 1995 Act.
Mr Thomas Hardiman’s good repute remains intact.
Reasons
Approach
There is clear and consistent case law from the Upper Tribunal that a Traffic Commissioner is entitled to treat the conduct of the Sole Director effectively as the conduct of the Limited Company and repute or fitness is determined accordingly. Such an approach has received approval from the appellate tribunal on a number of occasions, such as 2013/008 Vision Travel International Limited and T2013/61 Alan Michael Knight.
Operators, Transport Managers and those advising them hold deemed knowledge of the advice and Guidance in the public domain, as per the Upper Tribunal in 2012/030 MGM Haulage & Recycling Limited.
Background
The full history is set out in the call-in in letter and case summary and is a matter of record. I do not repeat it here save where material to my findings and conclusions. The next step in the chronology is the hearing listed for 17th October 2024. In Mr Fay’s absence I suspended the licence and gave my reasons. A copy of that decision is attached marked ‘Annex A’.
Hearing
My decision on 17 October 2024 put Mr Fay on notice that on the next occasion (28/11/24) additional matters would also be explored. For completeness OK2055541 DBM Haulage Limited knew from attendance at its own Public Inquiry on 16 May 2024 that loss of transport operations was imminent. Finally, Mr Fay was required to submit all extant documentation by 14th November 2024. Apart from an email to confirm his attendance, nothing further was received from Mr Fay until after business hours on 27th November 2024. Due to my own work priorities, this was not seen by me until after the Hearing was opened but viewed during the course of the Inquiry. Mr Fay had not copied in Mr Hardiman, who was present via Microsoft Teams, as a witness. The said letter makes some serious allegations in relation to Mr Hardiman. In light of the very late submission and my inability to test the content with Mr Fay, I directed at the hearing that in my final decision the letter would be given very limited weight.
In said the letter Mr Fay refers to illnesses as part of the reason why he has not attended or engaged. Again, no medical evidence to corroborate these statements as per STC Statutory Document No. 9 (Case Management) has been produced. Bearing in mind the alleged severe nature, it is more likely than not that such medical evidence was available to Mr Fay to support the truth of what he said. I determined that it was appropriate to proceed to conclude the Hearing. Noting Mr Fay’s last second request to surrender the licence, I declined to do so. As already notified to Mr Fay, if he failed to attend then the case would proceed in his absence with the possibility of revocation and even disqualification. It follows that the refusal of the late surrender request should come as no surprise to Mr Fay.
Evidence
Mr Hardiman has attended both Hearings firstly as a qualified Transport Manager and then a witness. As a result of the representations he has sent in, he was subsequently dealt with without having to attend a further Hearing in terms of his good repute. However, he did attend on 28 November 2024 at my request as a witness to assist me in understanding what Mr Fay had and had not done since 1st August 2023. An email he had sent through shortly before the final Hearing was not uploaded for me to read in advance but the OTC email trail shows that the contents were sent to Mr Fay on 25th November 2024. Therefore, Mr Fay had them available when he wrote to OTC on the afternoon of 27 November 2024.
Mr Hardiman had nothing to amend in terms of what he had previously submitted. Mr Hardiman confirmed that he had not undertaken work for JD Fay after the Hearing on 1st August 2023 and that is supported by his documentary evidence.
In terms of the Operating Centre, Mr Fay’s letter of 27th November 2024 makes certain denials. I balance this with the photographs and evidence from Mr Hardiman. I prefer the evidence of Mr Hardiman as I have been able to observe him and assess him as a witness. Mr Hardiman is credible and during both Hearings has given truthful answers even when they may not have been helpful to his own position.
Regarding the vehicle added on 17th June 2024, Mr Fay suggests that this was done by Mr Hardiman either inadvertently or on purpose, but he knows nothing about the vehicle. I do not find that statement credible for several reasons:
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Even on Mr Fays own evidence, the falling out with Mr Hardiman dates back to 2023 and Mr Hardiman has no good reason to use an access thereafter that does not involve his own email address. It was irrelevant to the county court case.
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The close operating centre locations between JD Fay and DBM Haulage Limited.
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The email address for JD Fay on VOL is licence martin.supple@jdfay.co.uk. If Mr Hardiman was going to undertake some nefarious approach then it is unlikely that he would leave his own name attached to it.
Martin Supple shared a username and password with Mr Hardiman for JD Fay for access. This is a breach of the terms and conditions for VOL use by JD Fay as usernames and passwords must not be shared. This is clearly set out on all applications for access. During the Hearing Mr Hardiman told me that Martin Supple (who has the title Plant and Transport Manager on his email) - see page 163) is like an operations director but also seems to have a long-standing business relationship with Mr Fay which might be more akin to a de-facto director. Mr Hardiman confirmed that this is the same “Mr Supple” who represented JD Fay at the County Court Hearing.
Disappointingly, Mr Fay has failed to use the additional time afforded by the previous adjournment to re-engage with this process, including failing to attend on 28 November 2024. I see no good reason why he did not send any of the evidence by the deadline of 14th November 2024 as it was all clearly available to him at the time. By way of example, the chronology produced is clearly the one that was submitted to the County Court proceedings which concluded in September 2024.
In the said letter, Mr Fay admits that the operator is unlikely to meet the requirements of financial resources for a Restricted licence. Further the narrative in his letter strongly indicates that this has been the case for some considerable time. Any material changes of circumstances including financial are required to be notified to OTC within 28 days and not at the last second before a Public Inquiry. Mr Fay has failed to produce evidence of financial resources as required in the calling-in letter dated as long ago as 11 September 2024. He has failed to co-operate to a significant degree.
Consideration and Findings
Cumulatively a licence was previously revoked, it attended a Preliminary Hearing to get this licence and what’s happened since means Mr Fay’s credibility is lost. Taking all the circumstances in to account the most likely explanation for him failing to produce anything meaningful or attend a hearing is that there is something to hide. By way of example, there is no evidence produced in relation to the work said to have been done, the subsequent disposal of the smaller vehicle but the bank statements might have demonstrated one way or the other whether ‘in scope’ vehicles were operated.
In the circumstances I make the following adverse findings: -
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Unlawful use of an Operating Centre – Section 26 1 (a) of the 1995 Act.
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Obtaining an Operator’s licence through a false declaration at Preliminary Hearing 1st August 2023 – failing to engage expert assistance post Hearing – section 26 1 (b) and (h) the 1995 Act.
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A false statement to obtain an operator’s licence in that there is no evidence it complied with any of the licence conditions and undertakings since grant – Section 26(1)(e) of the 1995 Act.
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The operator lied to DVSA regarding its operating centre and vehicle use for the Desk Based Assessment – Section 26(1)(b), (f) and (h) of the 1995 Act.
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The operator has engaged in “fronting” and/or Licence lending for DMB Haulage Limited and/or others – Section 26(1)(b) and (h) of the 1995 Act.
Individually and cumulatively these findings evidence a gross breach of trust. Mr Fay gave assurance to the Deputy Traffic Commissioner on 1st August 2023 which the current reality demonstrates he had no intention of keeping. The evidence demonstrates that Mr Fay is a danger to road safety and fair competition. Any ongoing access to operator licensing risks the integrity of the regime for which the system exists, namely a safe, fair and level playing field for all operators. Immediate revocation is the only proportionate outcome in this case where the facts speak for themselves. Accordingly, I have reached the decision set out in paragraph 1 above.
Disqualification
Whilst disqualification does not require additional features, an operator is entitled to understand why if disqualification does follow. Mr Fay has driven a coach and horses through a parliament-led, long standing and highly regarded approach to keeping the commercial vehicle industry safe and working to a high standard. Mr Fay was previously given a chance to demonstrate that any doubt there was as to his knowledge and integrity would be resolved. Unfortunately, what we have instead is strong evidence that Mr Fay’s only focus is his own self-interest. In my judgement this case does require disqualification intervention to afford the industry and other road users the regime’s intended protections. I have chosen an indeterminate period as Mr Fay has not presented himself for questioning and thus it makes it impossible to form an assessment as to whether any specific period of time is of merit. Accordingly, I have reached the decision set out in paragraph 2 above.
Thomas Hardiman
The call in letter stated: “The Traffic Commissioner notes that you are currently listed as a full-time transport manager on OK2038016 Transport Trading Limited and previously nominated full time in the same capacity on other Licences. Your VOL transport manager record indicates that you have never declared any other employment. At the same time, OTC have noted that you are a director of Cult Solutions Limited (a transport management consultancy), (Active – Proposal to Strike off due to overdue accounts) and your LinkedIn profile suggests this is an ongoing role. A TM1 form requires declaration of all regular employment and being a director of any limited company is an ongoing role. VOL also demonstrates that you may be the VOL Self Service user for JD Fay Plant Hire Limited OK2061408 and made at least two changes to that Licence this year using self-service, indicating current consultancy services as recently as 16 October 2024. A false declaration on a TM1 is a serious matter.”
Mr Hardiman has been co-operative throughout the Public Inquiry process, both as a party and as a witness. By 28th October 2024 Mr Hardiman provided suitable assurance that he will not fall into error again re (i) failing to declare consultancy services; (ii) VOL access sharing; and (ii) using a limited company for payment for external transport manager roles. Accordingly, I reached the decision set out in paragraph 3 above.
Miss Sarah Bell
Traffic Commissioner for Great Britain
6 January 2025