[2023] UKUT 184 (AAC)

This is an appeal from the decision of the Deputy Traffic Commissioner for the East of England (“DTC”) dated 28^th July 2022 when he refused to return impounded vehicle 57 BK V2 to the Appellant (“JPT””) under regulation 4(3)(c) of the Goods Vehicles (Enforcement Powers) Regulations 2001 (as amended) (“the Regulations”).

The background to this appeal can be found in the appeal bundle and the DTC’s written decision dated 28^th July 2022 and is as follows. JPT is a Dutch haulage company which undertakes cabotage work in the UK, delivering flowers and plants. On 26^th May 2022, vehicle 57 BK V2 (“the vehicle”) coupled to a trailer loaded with empty auction flower boxes and pallets (confirmed by the CMR note produced by the driver) was stopped at the port of Harwich, Essex. Traffic Examiner (“TE”) Hunt spoke to the driver, Brian Mobbs who stated that he had been employed by JPT for “over 20 years”. He confirmed the contents of the trailer. He was unable to produce the CMR notes for his incoming journey or for any of those then undertaken before he was stopped on 26^th May 2022 as JPT instructed its drivers to return the notes with the trailers. Mr Mobbs was not aware that it was a legal requirement that the CMR notes must remain with the vehicle whilst in this country.

With the help of the Tachoscan system, Mr Mobbs, accepted that illegal cabotage had probably taken place and gave a brief summary of his journeys when interviewed under caution:

The basis upon which TE Hunt made her assessment of illegal cabotage is conveniently set out in paragraph 2 of the DTC’s decision:

“Under post-Brexit cabotage rules, the number of cabotage journeys (ie movements carrying goods within the UK) an EU-based vehicle can perform after its incoming international journey is limited to two, after which the vehicle must depart the UK within seven days of tipping the inbound international load. This limit was temporarily relaxed between October 2021 and 30 April 2022 to help tackle driver shortages. But on 26 May 2022 the cabotage limit was again in force.”.

As TE Hunt observed in her Impounding Report, the cabotage rules “allow for a vehicle to enter the UK with a load, that can be delivered to multiple destinations. The same vehicle is then permitted to collect and deliver two loads in the UK at which point, the vehicle can then only collect a load for an outbound journey. All of this must take place within 7 days from offloading the original inbound load …”

During the impounding process, Mr Mobbs spoke to Steve Perry, JPT’s Operations Manager based in the UK. Mr Perry then spoke to TE Hunt and expressed the view that the cabotage rules had been followed and referred to the temporary relaxation of the cabotage rules allowing 14 days with unlimited journeys. TE Hunt explained that the temporary relaxation had ceased on 30^th April 2022. Mr Perry averred that he kept up to date with the legislation and that he had not been so advised. He was shown the relevant page on the Gov.uk website and he accepted the position. The vehicle was impounded.

By an application dated 14^th June 2022, JPT applied for the return of the vehicle under regulation 4(3)(c) of the regulations:

The hearing of JPT’s application took place on 15^th July 2022. Mr Dunne, solicitor, represented JPT and Steve Perry attended. TE Hunt attended by video link on behalf of the DVSA; Mr Sasse of Counsel was instructed by the DVSA.

At the outset, the TC accepted that JPT was the owner of the vehicle and it was conceded on behalf of JPT that illegal cabotage had taken place although there was an issue as to whether five or six trailers had been utilised during the relevant period. The DTC however indicated that as illegality had been conceded, he was not concerned with the exact number of illegal journeys that had taken place.

Mr Perry then gave evidence. He had held the position of Operations Manager for JPT for eight and a half years. He lived in the UK and travelled to Holland on a monthly basis. He averred that the JPT transported on average, 6,000 trailers to the UK a year. The company had invested about €200,000 on telematics and electronic CMR systems. The company trained the drivers and the driver trainer, who had a very good educational background, also dealt with tachograph infringements and insurance claims.

Mr Perry volunteered that the first time that it had been suggested by the DVSA that the company had been in breach of the cabotage rules was prior to 2019 but no action was taken at that stage. Then in April 2019, the company was fined £300 for being in breach of the rules, which at that stage, permitted three domestic journeys in seven days (his evidence must refer to a stop in August 2019). He averred that this infringement was relayed to the planning team in Holland who were told that they must adhere to the rules. He told the TC that there were two export planners in the office in Holland who worked very closely together. One plans and the other creates the export documents which then go to the Brexit Department. There were three departments involved in the process, but it was primarily planning and at the end of the season, that department was essentially Jan Dood. The other planner was Jacob Groot who created the export documents.

Mr Perry’s explanation for how illegal cabotage took place on this occasion was that it was the end of the season and the planning team were worn out. Jan Dood took leave on Friday and returned on the Wednesday. Jacob Groot then had an extended weekend commencing Wednesday. As a result, there was no internal handover or talks between them on the Wednesday when Jan Dood returned to work. Mr Perry had spoken to Mr Dood following the incident. He was under the impression that Mr Mobbs had shipped to the UK on the Monday and that he could carry on working for the rest of the week. It was a lack of communication and human error. Both planners had been reprimanded by John Pronk personally and warned that another incident of this nature would result in them being fired. Mr Pronk was very angry as he had lost a vehicle.

Mr Perry agreed with Mr Mobbs that he had been driving for JPT for twenty years. Mr Mobbs understood the cabotage rules and all drivers were instructed in the three-in-seven rule, which on the company’s version is an incoming trailer, two further trailers transported internally and a fourth returning to Holland with the vehicle and driver. Mr Mobbs would have been aware that he was driving in breach of the rules. Mr Perry produced documentation that had not been filed with the Office of the Traffic Commissioner (“OTC”) which he asserted demonstrated that there were only two illegal cabotage journeys undertaken by Mr Mobbs. It does not appear that this documentation was shared with the DTC and/or Mr Sasse and does not appear in the appeal bundle. It could not be shared with TE Hunt as she was appearing remotely.

Mr Mobbs status was then explored. Mr Perry averred that as a result of the IR35 ruling of 2021, JPT drivers were now employed through a UK company and their salaries paid through that company. Neither John Pronk nor Mr Perry knew that Mr Mobbs was going to undertake illegal cabotage and such conduct would not be sanctioned. The new electronic systems introduced in March 2022 would give the company more knowledge of what was going on in the UK and the drivers had been told that they must report to the planning team if they think that “something’s happening”.

In cross examination, Mr Perry confirmed that on his account, there would not be any circumstances in which a vehicle would be in the UK for more than seven days. He denied that the vehicle being driven by Mr Mobbs was in the UK for eight days but then accepted that this was the case and that this should have been picked up by the planners as they should have been checking that the journeys were lawful as they had been trained to do. The April/August 2019 offence resulted in an illegal cabotage warning letter being sent by the DVSA on 14^th October 2019. Mr Perry was not aware that there had been two further DVSA stops as a result of illegal cabotage in 2020 despite them having been referred to in the hearing bundle. He had not been able to investigate those incidents and then he changed his evidence and averred that he could not recall whether he had investigated them or not. He presumed that they had been investigated. He accepted that the bundle contained evidence of illegal cabotage having been undertaken by the vehicle and Mr Mobbs between 2^nd and 16^th May 2022 (fourteen days) as well was between 19^th and 26^th May 2022. He had not investigated the earlier journeys because he was concentrating on preparing for the hearing and had only received the bundle a week before the hearing. There was no documentation evidencing disciplinary action being taken against Mr Mobbs as all disciplinary action was verbal. Mr Perry observed that Mr Mobbs had been fully trained by JPT and he knew that he could question the duties he was given by the planners who he was in touch with on a daily basis. Mr Perry had only spoken to Mr Mobbs to verbally warn him about this incident during the week of the hearing (so just under thirteen months after the impounding). He accepted that there were no records of training for either the planners or Mr Mobbs although Mr Mobbs did have a driver CPC and cabotage was “an understanding within the business”. From now on, there will be a documented procedure which Mr Perry will draw up to highlight the full implications of these infringements and to ensure that it does not happen again. This had not been done before because it was believed that the 2019 fine was a one-off. He averred that the two stops in 2020 had not resulted in any action being taken by JPT because of COVID. He would have been aware of these stops and he would now investigate them again. He accepted that when he spoke to TE Hunt, he thought that JPT vehicles were still operating under the exemption that had finished three weeks earlier. So, the law had changed but the company was still operating its own version of the three-in-seven rule, although on this occasion, it was not. Mr Perry had not had any training in international transport and cabotage although he looked through the updates of the “RHN” (probably misheard by the transcriber and should be the RHA) and the FTA and he looked at the regulations on gov.co.uk. His training was self-managed.

As for the CMR documentation, the reason why the drivers were instructed to return the documentation with/in the trailers was because a new electronic system had been introduced in March which was then implemented over the following eight months. If Mr Mobbs had known (which he did not), he could have opened up an App on his tablet where all previous journeys and signed electronic CMRs could be found. Mr Mobbs had only been trained on the system in Holland “this week”. Mr Perry admitted that the company had not put everything in place as it should have done. He admitted that there was an issue with training. Since February 2022, the company had been looking to open a UK operation and apply for an operator’s licence to have everything “just tight” (although that may be a transcribing error and should read “just right”). The company planned to import twelve vehicles and register them in the UK. He accepted that the failures that led to the impounding were failures at a supervisory level, a planning level and at driver level.