[2024] UKUT 226 (AAC)

2 Obligation to hold operator’s licence.

Subject to subsection (2) and sections 3A and 4, no person shall use a goods vehicle on a road for the carriage of goods—

except under a licence issued under this Act; and in this Act such a licence is referred to as an “operator’s licence”.

For the purposes of this Act, the driver of a vehicle, if it belongs to him or is in his possession under an agreement for hire, hire-purchase or loan, and in any other case the person whose servant or agent the driver is, shall be deemed to be the person using the vehicle; and references to using a vehicle shall be construed accordingly.

Under these provisions, the driver is deemed to be the user of the vehicles where he/she owns or hires the vehicle, and in any other case, the user is the person for whom the driver is “servant” or “agent”.

The concept of “user”, and particularly the word “servant”, in relation to sections 2 and 58 of the Act, was interpreted in the Court of Appeal judgement in Interlink Express Parcels v Night Trunkers Ltd [2001] EWCA CIV 360. Interlink Express Parcels (“Interlink”) provided a UK wide parcel delivery service with one main depot and various franchisees at numerous sub-depots around the country. The Interlink goods vehicles collected parcels from each sub-depot, took them to the main depot where they were sorted, and then took them onwards to the nearest sub-depot to the delivery point, before being delivered to the final destination. Interlink had an operator’s licence with specified vehicles to transport the parcels. It used its own drivers in the vehicles, for the most part, but also used drivers supplied by Night Trunkers (and other agencies) where necessary. The allegation in this case was that the contract between the parties was void because the person from whom the driver was servant (said to be Night Trunkers) was not the person who held the operator’s licence (Interlink). The case highlights that defining the “user” is not a straightforward matter, and the relationship of “servant” in the context of the s.2(1) provisions, allows for control between parties to be complex, with the non-licence holding entity being able to instruct drivers day to day while the licence holding entity held, in essence, a residual power to control the operation overall. It was held that the paramount test to determine the “user” of the vehicles was that of “control over the relevant activity” and “issues as to payment of wages, engagement, dismissal and discipline, while relevant, were subsidiary to that” (see paragraphs 54 and 60 of Night Trunkers).

The DTC found that the user of the vehicles on Mr Bett’s licence was the Appellant, therefore also finding that the Appellant was unlawfully using vehicles beyond that authorised under his own licence. Mr Backhouse submits that the DTC reached a conclusion that was plainly wrong in this regard, as he did not apply the principles in the case of Night Trunkers.

The evidence before the DTC, which was not disputed at the appeal hearing, was that the Appellant was effectively financing the arrangement between he and Mr Bett. He was paying the drivers, fuelling the vehicles and paying for maintenance. The vehicles on Mr Bett’s licence were registered to the Appellant’s business and they were generally parked at the Appellant’s operating centre. The Appellant became transport manager for Mr Bett later in the arrangement. These are the typical activities of an operator in control of an operation. The evidence did not give any indication of what Mr Bett’s involvement was in the arrangement. At the appeal, it was said that Mr Bett’s poor health had further complicated the arrangement between he and the Appellant, which means that he would have struggled to effectively control the operation in any event. It is agreed that no reference was made to the case of Night Trunkers in the DTC’s decision but even had he done so, we considered that on the evidence before him, the DTC would have reached the same conclusion. The panel concluded that the DTC was entitled, on the evidence before him, to find that the Appellant was the unlawful user of the vehicles on Mr Bett’s licence in contravention of s.2 of the Act, and was therefore using more vehicles than he was authorised to under his own licence, in contravention of s.6 of the Act.