Case No. UKUT-00272-(AAC)

held a valid licence (whether or not authorising the use of the vehicle);(b) at the time the vehicle was detained, the vehicle was not being, and had not been, used in contravention of section 1 of the 2010 Act;(c) although at the time the vehicle was detained it was being, or had been, used in contravention of section 1 of the 2010 Act, the owner did not know that it was being, or had been, so used; or(d) although knowing at the time the vehicle was detained that it was being, or had been, used in contravention of section 1 of the 2010 Act, the owner—(i) had taken steps with a view to preventing that use; and(ii) has taken steps with a view to preventing any further such use.15. The Head of the TRU had three issues to determine in making his decision. The first was the identity of the lawful owner of the vehicle as only that person/entity was entitled to have the vehicle returned to them under Regulation 4 of the Enforcement Regulations 2012. Thereafter, he had to consider whether any of the grounds under Regulation 4 were satisfied to permit the return of the detained vehicle. The role of the Upper Tribunal in this appeal was to determine whether the Head of the TRU had made a decision which was “plainly wrong” and if so, to allow the appeal. Ownership of the Vehicle16. At the appeal hearing, the appellant repeated the argument he made to the Head of the TRU, that he/his company was the owner of the vehicle and therefore had authority in law to secure its return. In presenting this argument, the invoice purportedly indicating that the vehicle had been purchased by “Andrew Murphy” for £6,822 from Brian McKeever Transport, was highlighted (page 18). The invoice was undated, but Mr Murphy confirmed at the hearing that the vehicle had been purchased in January 2021 with the money having been exchanged by bank transfer on the day of purchase. He also highlighted the V5C document which stated that the registered keeper of the vehicle was “Andrew Murphy Transport” (page 12 of the appeal bundle) and it was covered under a fleet insurance policy issued on 5 February 2021 (page 22/23 of the appeal bundle). He had provided in evidence, an email from himself to the DVA dated 15 September 2021, seeking an MOT test date for the vehicle (page 20 of the appeal bundle) and confirmed orally that he knew there was no valid MOT on the vehicle on the date it was detained (16 September 2021). All of these documents and points, he argued, was evidence of his company’s ownership of the vehicle, which in turn gave him authority to have it returned to him under Regulation 4 of the Enforcement Regulations 2012.17. The Respondent argued that the burden of proving ownership rests on the appellant, which was agreed. It was also agreed that the application was for return of the vehicle only and not for return of the trailer. It was submitted on behalf of the Respondent that there was no proof that the bank transfer had taken place, no proof of the Appellant’s accountants having recorded the spend on the vehicle, and that an undated invoice was not sufficient to evidence ownership. 18.The term “owner” is defined in Regulation 2 as follows:“2.Interpretation“owner” means, in relation to a vehicle or trailer which has been detained in accordance with regulation 3—(a) in the case of a vehicle which at the time of its detention was not hired from a vehicle-hire firm under a hiring agreement but was registered under the Vehicle Excise and Registration Act 1994(3), the person who can show to the satisfaction of an authorised person that at the time of its detention that person was the lawful owner (whether or not that person was the person in whose name the vehicle was registered);(b) in the case of a vehicle or trailer which at the time of its detention was hired from a vehicle-hire firm under a hiring agreement, the vehicle-hire firm; or(c) in the case of any other vehicle or trailer, the person who can show to the satisfaction of an authorised person that at the time of its detention that person was the lawful owner;19. In Clayton Car Sales Ltd 2012/053 it was confirmed that only an owner can apply for return of a detained vehicle. Since this is the case, the Head of the TRU is entitled to determine the issue of ownership first, and to clarify any ambiguity over who is claiming to be the owner. Such clarity is important to ensure that the vehicle is returned to the correct person/entity and therefore the owner of a goods vehicle will be well advised to obtain and retain detailed and precise documentary evidence to demonstrate how, when and by whom ownership was acquired (T/2014/03 Sarah Boyes, paragraphs 6-11). In this case, the question for the Head of the TRU was to determine whether the owner was Andrew Murphy as a personal entity or Andrew Murphy Transport Ltd as a company. The Department for Infrastructure’s Practice Guidance Document No 5 which is not legally binding, but which provides useful guidance, deals with the importance of establishing the relevant legal entity. Paragraphs 3-5 of the Guidance state:“Legal entities3.It is important that the Department is satisfied as to the legal status of an applicant or operator. By way of example, the Upper Tribunal has stressed that in the eyes of the law a sole trader and a limited company are quite different legal people or legal entities. It is the legal entity which operates the vehicles which must hold an operator’s licence [2012/008 Brian Richards t/a B Richards]. A company or other corporate body has a distinct legal personality from its members (shareholders), officers or directors. In other cases, it may be necessary to determine the individual(s) responsible for the undertaking, for example the partners in a partnership, where restrictions might apply2 2 Regulation 27 of The Goods Vehicle (Licensing of Operators) Regulations (Northern Ireland) 2012 states that a ‘firm’ (partnership) shall be treated as separate to an individual partner or the relationship with another corporate body3 3 Regulation 28 of The Goods Vehicle (Licensing of Operators) Regulations (Northern Ireland) 2012. Regulation 4 of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012 makes it a condition of a standard licence for operators to inform the Department within 28 days of any change in the name or legal form of the undertaking and the address of establishment.Individuals - Sole Traders 4.This, as the name suggests, is an individual trading on their own account. Whilst the individual may use a trading name, for legal purposes the correct entity is the individual. Companies 5.A company has a legal personality distinct as from its members (shareholders), owners, directors or officers. The company can therefore hold an operator’s licence in its own name. The licensing legislation refers to a company. In the Companies Act 2006 the term company is usually defined as a body under that legislation but it can, in limited circumstances, include other bodies and overseas companies. Further guidance is available via Companies House.20. The Head of the TRU determined that the applicant was Mr Andrew Murphy as an individual, but the arguments were presented in the name of the company, Andrew Murphy Transport Ltd. He was mindful of the fact that a sole director often does not distinguish him or herself from their company bearing the same name, but concluded that the applicant, Mr Andrew Murphy was not the owner of the vehicle.21. The Upper Tribunal agrees with this conclusion. Notably, while the V5C document is not evidence of ownership per se, it is evidence of the entity that pays to keep it and maintain it, but that entity was documented as “Andrew Murphy Transport” which is different from either “Andrew Murphy” or “Andrew Murphy Transport Ltd”. Equally, the invoice is in the name of “Andrew Murphy” but the lack of date on the invoice undermines its credibility as an authentic invoice received at the date of sale of the vehicle. Although evidence of a fleet insurance policy was produced to the Head of the TRU, the vehicle does not feature on it and the Schedule which provides for the list of vehicles covered under the policy, was omitted from evidence. The vehicle was being driven by someone entirely separate from the company, with no documentation to demonstrate that he was driving it on behalf of another person, such as the owner. We agree with the Head of the TRU that the vehicle is, on the balance of probabilities, registered to an entity within Mr Murphy’s control but there are too many questions arising from the imprecise and inconsistent paperwork presented on behalf of Mr Murphy. We find therefore that the decision of the Head of the TRU is not “plainly wrong”; we are in agreement with his conclusion that the then applicant for return of the vehicle had not satisfied him on the balance of probabilities that either he or his company was the lawful “owner” of the vehicle.Ground 1: Regulation 4(3)(a) of the Enforcement Regulations 201222. The Appellant argued that Regulation 4(3)(a) of the Enforcement Regulations 2012 applied i.e., that “at the time the vehicle was detained, the person using the vehicle held a valid licence (whether or not authorising the use of the vehicle)”. The question for the Head of the TRU was therefore: who was the user of the vehicle?23.The Appellant argued that the user of the vehicle was the appellant company, Andrew Murphy Transport Ltd, who held a valid licence ON2000119 (page 34-35 of the appeal bundle). They argued that the driver of the vehicle, Mr Gormley, was the agent of the company, employed to undertake the role of driving the vehicle to transport the goods under the delivery contract. Although the vehicle was not on the licence at the time of detention, it was submitted that the licence was still valid hence this ground was made out.24. The Respondent referred the Tribunal to the evidence unveiled in the DVA’s investigations, arguing that Mr Gormley was the user of the vehicle. A statement from Ms Derry of Derry’s Ltd Freight Forwarder (page 57 of the appeal bundle), suggested that they had been given the details of the job to transport the goods from Manchester to Ireland, they had put the job on an online portal, and Mr Caolan Gormley had accepted the job. The vehicle had been booked on the P&O Freight route on 15 September 2021 under the account of CDG Transport Ltd (page 84 of the appeal bundle), a company under the control of Mr Gormley. The Respondent reminded the Tribunal that it was for the Appellant to prove that it was the user of the vehicle. It was submitted that in the absence of evidence of repayment to Mr Gormley for making the ferry booking, evidence to confirm that the contract for shipment of goods was in the name of the Appellant, evidence of the employment/agency arrangement between Mr Gormley and Mr Murphy, then the user was more likely to be the driver, Mr Gormley, and therefore this ground for return of the vehicle was not made out. 25. The Head of the TRU, Mr Mullan concluded “on the basis of probability, that the user of the vehicle in question, at the point of detention, was Caolan Gormley or CDG Transport Ltd, and not Andrew Murphy Transport Ltd. Neither Caolan Gormley nor CDG Transport Ltd held a valid licence at the time of detention and as such the application for return on the grounds that the user had a valid operator’s licence is refused” (para 30, page 128). He based this decision on the fact that he had seen “no material evidence from the applicant [Andrew Murphy] to support their assertion that Mr Gormley was an employed relief driver… [He is] therefore not satisfied that he was, and [he] wouldn’t expect a relief driver to source work, engage with the freight forwarder or make the ferry bookings in the name of his own company” (para 29, page 128). With these conclusions we entirely agree. All the accepted evidence points to the fact that Mr Gormley accepted the work personally and arranged the travel so that he would be personally reimbursed for the job. It is our view that the Head of the TRU was not “plainly wrong” to conclude as he did in respect of ground 1 hence the appeal in respect of this ground is dismissed.