[2024] UKUT 133 (AAC)

On 9 January 2023, a DVSA traffic examiner observed an Iveco two-axle flatbed lorry, registration BL12 AEM (hereafter “the vehicle”), enter a roadside checkpoint. The examiner observed that the vehicle displayed no operator’s licence disc. The examiner’s subsequent written statement said:

“The Driver indicated that he was employed by Scaff-Co Ltd, Unit 17 Thorpe Hill Farm, Wakefield WF3 3BX and that the vehicle was being used by this entity and he was acting on his employers behalf.

…I noted that there was no operator licence disc displayed in the vehicle and when questioned about this [the driver] was unsure if the operator held such a licence. I made enquiries using the search application but could find no operator licence issued to Scaff Co Ltd. I informed the driver of this who telephoned his employer and spoke with a person named John Dolan. Mr Dolan stated he would send the operator licence details across.”

During the driver’s formal interview with the examiner, he said that the vehicle’s owner was ‘Scaff Co’.

The examiner’s statement went on to record that Scaff Co (Scaffolding Company) Ltd applied for a restricted operator’s licence on 27 October 2021 but withdrew the application on 18 May 2022. On 24 May 2022, the DVSA had written to Scaff Co (Scaffolding Company) Ltd in the following terms:

“…I must warn you that where an authorised person (DVSA examiner) has reason to believe that a vehicle is being used on a road in contravention of Section 2 of the Goods Vehicle (Licensing of Operators) Act 1995 the examiner may detain and immobilise the vehicle and its contents indefinitely…”

The letter of 24 May 2022 was sent to Scaff-Co (Scaffolding Company) Ltd at Unit 17, Thorpe Hill Farm. That was the same address given by the driver to the DVSA examiner on 9 January 2023.

CIE records for the vehicle specified “SCAFF CO” as responsible for the vehicle.

On 9 January 2023, the DVSA detained and impounded the vehicle. On 10 January 2023, the DVSA wrote to Scaff Co Ltd, as owner of the vehicle, at the address provided by the driver to inform it that the vehicle had been detained. The letter also referred to a statutory notice to be published in the London Gazette that any claim for return of the vehicle had to be made to the Office of the Transport Commissioner (OTC) on or before 3 February 2023 failing which the DVSA would be entitled to dispose of the vehicle.

On 13 January 2013, a notice was published in the London Gazette which stated that any person having a claim to the vehicle was required to establish their claim, by writing to a specified address, on or before 3 February 2023.

On 10 February 2023, the OTC informed the DVSA in writing that no application had been made for return of the vehicle and that the Traffic Commissioner authorised disposal of the vehicle.

On 13 February 2013, a Robert Knowles contacted the DVSA claiming to be a director of Scaff Co Ltd although this was not confirmed by Companies House records. Mr Knowles said that he had not received the DVSA’s notification letter and “the company are not at the address the letter was sent to”. The case papers do not explain how Mr Knowles came to learn that the vehicle had been impounded. On that same date, Mr Lee Rush informed the DVSA that Mr Knowles had authority to act and provided what he said was the correct company correspondence address. The DVSA official informed Mr Knowles:

“I have copied the Office of the Traffic Commissioner in so they can advise you if you are able to submit a late appeal for return of the vehicle.”

On 22 February 2023, Mr Knowles submitted an application for return of the vehicle. The application stated that the vehicle was owned by Scaff-Co Scaffolding Company Leeds the “director/owner” of which was Mr Lee Rush. The application requested a hearing before the Traffic Commissioner and was made on the ground that “I did not know that [the vehicle] was being, or had been, used in contravention of section 2 of the 1995 Act”. The application went on:

“I was under the impression that we could move our own goods without a operator licence because it’s not for hire or reward. We was not charging people for transport or a haulage contractor…I just made a genuine mistake about the transport rules…

I am replying late through no fault off has [sic] DVSA has made a genuine mistake also and sent the letters to a company with a similar name which has been closed down has [sic] the owner passed away and the address is not our company.”

On 23 February 2023, the Traffic Commissioner refused to grant an extension of time for applying for return of the vehicle, giving the following reasons for doing so:

“The driver of the vehicle at the time of the impounding gave the operator’s name and address as Scaff-Co Ltd of Unit 17 Thorpe Hill Farm, Wakefield.

The notice to the owner required by Regulation 9 was then sent to that address.

The claimant that has subsequently been identified is “Scaff-Co Scaffolding Company Leeds”. That company has confirmed it used Unit 17 as its operating centre. The claimant company said it left that address some time ago. There is no such entity registered with Companies House but the director Lee Rush is the director of two companies named Scaff-Co (Scaffolding Company) Ltd and Scaff-Co Scaffolding Contractors Ltd.

I do not consider the initial notification can be said to have been sent to the “wrong address”.

Regulation 22 requires the notice to be sent to the “proper address” of the owner. “Proper” address is not further defined but I consider that should be the address that the DVSA understand to be the address of the owner at the time of sending. In this case that was the owner as named by the driver with the address he provided. Regulation 22 only requires service on the registered address of a company if no alternative address for service has been provided.

The entity named by the driver has subsequently transpired to be incorrect. There is no such entity on the Companies House register. There are several companies named with a variation of “ScaffCo” including the two companies named above. It would be unreasonable to have expected DVSA to have speculated which of those companies (If any) was the owner.

I consider the DVSA acted reasonably on the information it had available to it when sending the notice to the entity and address as provided by the driver. I consider that it has complied with the requirement of Regulation 9. That includes complying with the safeguard of a public notification in the Gazette.

I have also taken into account the claimant’s conduct since the impounding. The claimant confirms that it was aware of the impounding almost immediately. It expected a letter to be sent to it so no action was taken at that point.

The claimant was clearly aware of the formal position by 13 February 2023 but did not submit its claim for a further 9 days. There is no explanation for that further delay and the opportunity has not been taken to provide any supporting evidence for its claim.

I consider the claim is defective as the claimant’s name is given on the GV500 as Scaff-Co Scaffolding Company Leeds. No such entity is registered at Companies House and the clamant has failed to answer the express question in the form about the type of entity. Elsewhere in the form, the claimant is named as “Scaff-Co”.

As a final point, I note that most of the correspondence in this matter has been sent by a Robert Knowles who does not appear to be a statutory director. Mr Rush’s involvement has been limited to signing the GV500 form.

…I have a discretion to accept applications out of time if I consider that would be fair and just.

I have also considered the approach of the Transport Tribunal in EXCEL A-RATE BUSINESS SERVICES Ltd 2005/471. The position of the claimant in that case can be distinguished from this claimant as the former was not aware of the impounding until some time after the event. The Tribunal observed:

“They had no obvious means of discovering that the trailer had been impounded unless the leasee told them or they happened to see the notice in the London Gazette. It seems to us that it is only realistic to expect an owner to search the London Gazette once he or she is aware that a vehicle has been impounded…”

In this case, the claimant was aware of the impounding almost immediately. I consider it is realistic therefore to have expected it to have searched the Gazette for notification, even if the letter had not been received.

The Transport Tribunal in Excel A-Rate suggested two questions should be asked when considering an out of time application:

(a)

the explanation for the delay? and

(b)

the merits of the application.

The Tribunal added:

“A convincing explanation for the delay could justify receipt of a late application even if the merits did not appear to be strong. Where the merits do appear to be strong that factor alone may justify receiving a late application. The general rule should be to endeavour to decide these applications on their merits and not on pure technicalities.”

I do not consider that a convincing explanation has been put forward for the delay in this case. I do not accept the explanation for not presenting the case within 21 days for the reasons given above. In any event, the claimant has not provided any explanation for the further delay in submitting the application from 13 February 2023.

I also do not consider the merits of this application to be strong. There appears to be considerable confusion as to the precise identity of the entity that was operating the vehicle. It seems the driver had not been clearly instructed on who he was working for and even Mr Rush himself appears to be unclear on the identity of the entity which is making this claim.

For those reasons, I do not consider it is disproportionate to refuse to apply my discretion to accept the application out of time.”