S&D Haulage Limited

This is an appeal from the decision of the Deputy Traffic Commissioner for the East of England (“DTC”) dated 10^th August 2021 when he refused the Appellant’s application for a standard international operator’s licence under s.13(2)(b) and Schedule 3 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”).

The background to this appeal can be found in the appeal bundle and the written decision and has been helpfully summarised by the DTC in this way:

The public Inquiry took place on 4^th August 2021. Alina Caseriu (“Mrs Caseriu”) attended along with her husband, Ionut Caseriu (“Mr Caseriu”). Whilst Mr Hudescu (the nominated transport manager and Mrs Caseriu’s brother) had confirmed that he would be attending the hearing in person, he in fact flew to Romania the day before the hearing and an urgent application was granted to hear his evidence over a video link.

Mr Hudescu told the DTC that he was the sole director of LGW Trans Limited which held an operating licence authorising four vehicles, with three in possession. The operating centre was in the same yard as Trans-Chriss Limited which was also the proposed operating centre of the Appellant company. He replaced Mr Caseriu as the nominated transport manager on the Appellant’s licence application because he has more time to devote to the role of transport manager for the Appellant company.

Mrs Caseriu informed the DTC that she was employed in Mr Caseriu’s business which mainly undertakes Amazon for work along with some sub-contracting for Tesco and Sainsbury. Over time she had gained knowledge about commercial vehicle operations; she had helped her husband with the maintenance records and she had watched him download the digital cards and she had done her own research. At that time, Trans-Chriss Ltd was operating ten vehicles and employed fifteen drivers. Four of the vehicles were no longer new enough for Amazon and could not be used on the Amazon contract. It was decided that those vehicles should be used on other work and that four new vehicles would be rented via Amazon. Mr and Mrs Caseriu had discussed their options and it was her suggestion that rather than make an application to extend the vehicle authorisation on the Trans-Chriss licence from ten to fifteen, that Mrs Caseriu should apply for her own licence. She averred that Amazon did not like using large transport operations. During one of the monthly operator audits that Amazon undertakes, Mr Caseriu had asked about opportunities which might be available for Mrs Caseriu. The Amazon representative/Business Coach confirmed that there were business opportunities for females who wished to start their own businesses (something Amazon was keen to promote). She would be granted a contract with different rules to that applicable to Trans-Chriss Limited. She advised that Amazon are in control of all aspects of the operation contracted by them even down to paying for the fuel. The only aspect of the business they did not control was the hire of the drivers. Mrs Caseriu insisted that the establishment of her business and the application for a licence, being approximately one month after Mr Caseriu had been contacted by the DVSA to notify him of an investigation, was an unfortunate coincidence. Her application had been delayed because of the difficulties in opening a business account with HSBC. She accepted that she would work with her husband and described the three companies as a “big family”. She told the DTC that she was a trained Forestry Engineer and that her husband had worked hard to maintain the family.

Mr Caseriu informed the DTC that a DVSA investigation had begun because his company had encountered difficulties with drivers. One driver did not check his tachographs and then seven drivers left at the same time and returned to Romania. Mr Caseriu was forced to reduce his contracts by half in order to keep going. Moreover, he had had a long association with Gold Star Transport, a container company. The rates were low and then as a result of the pandemic, the rates were cut further forcing Mr Caseriu and Mr Hudescu to turn to Amazon. The contracts were not the best but high standards were maintained. They require operators to use brand new vehicles and no vehicles more than five years old. The vehicles are rented under financial arrangements negotiated on their behalf by Amazon with truck suppliers and pays £80 per month towards the hire charges for each vehicle which is displaying the Amazon livery. He had told Amazon that he did not want to operate more than ten vehicles but had said that his wife would like a business. He agreed with the evidence of his wife.

The DTC’s findings and decision were set out as follows:

“12.

.. I am aware that it is likely the operator will be called to public inquiry, and it is possible the outcome could impact on the repute of Mr Caseriu as director and transport manager. It is also the case the (sic) Mr Caseriu and his wife would have been aware that an investigation was underway when this application was made. The operating centre for Trans Chriss Limited and the nominated operating centre is the same as is the number of vehicles authorised and requested. Mr Caseriu was originally nominated as the transport manager on this application, and he was replaced by his brother-in-law. Trans Chriss Limited have deposited £20000 in the accounts for S&D Haulage Limited as an interest free loan. The remaining funds have been deposited in the name of Mrs Caseriu although no evidence was produced to demonstrate that she had a source of funds separate from her husband. Mrs Caseriu emphasised that her motivation for applying for a licence was a result of encouragement from Amazon and yet she also said that she would be using four vehicles initially which were not suitable for that work. She also said that Amazon wanted operators with a smaller number of vehicles and yet she had applied for the same number as those authorised under her husband’s company’s licence.

13.

Having taken all these factors into account I find that it is more likely than not that Mr Caseriu will be central to the operation of this licence if it is granted. His financial interest and those of his family will be tied into the business and at this stage there is a question mark over his repute, and this will only be resolved once the outcome of the DVSA investigation and whatever follows is known.

14.

For these reasons I do not find that the statutory requirement for the applicant to satisfy me that repute to hold a licence is made out and I refuse the application accordingly. Once the result of the investigation into Trans Chriss Limited is known it may be that a renewed application will be appropriate depending of the outcome (sic) of that case.”.

On 28^th October 2021, Mrs Caseriu sent an email to the OTC asking that the DTC review his decision. By a letter dated 1^st November 2021, the DTC responded advising her that it was not possible for him to review his decision; she still had the option (albeit out of time) to pursue an appeal or to resubmit her application, the situation having changed in the case of Trans-Chriss Limited (the public inquiry having taken place) and that was likely to be relevant to her application and finally, that if she did make another application, she may wish to consider the number of authorised vehicles applied for bearing in mind her relative inexperience of operator licensing.

Mrs Caseriu chose to pursue an appeal.

At the hearing of this appeal, Mrs Caseriu attended without representation. Her husband and brother did not attend. Her grounds of appeal were in a narrative form; in essence, they amounted to a repeat of the evidence that she had given at the public inquiry. She amplified as follows:

We have set out Mrs Caseriu’s oral submissions to the Tribunal in full even though they include evidence which was not put before the DTC during the public inquiry but which was available at the time and could have been put before him. We have done so, so that Mrs Caseriu will be satisfied that we have listened to what she had to say. However, we must review the DTC’s decision only upon the basis of the evidence before him at the time.

The DTC was plainly right (as Mrs Caseriu accepts) to be concerned by the links to Trans-Chriss Limited, a company which had been informed in August 2020 that a DVSA investigation was to take place, which was a month before the Appellant company was incorporated and an application for an operator’s licence made. Moreover, the reliance upon a significant capital sum transferred from Trans-Chriss Limited to the Appellant company in order to meet the financial standing requirements, the nomination of Mr Caseriu initially as transport manager, the sharing of an operating centre and the request for an authorisation of ten vehicles which mirrored the authorisation recorded on the licence of Trans-Chriss Limited all raised reasonable doubts about this application being independent of Mr Caseriu and his company which further raised significant concerns that this application was being made as a safety net in the event that the operator’s licence of Trans-Chriss Limited was revoked or other substantial regulatory action taken for example, a reduction in authorisation. In other words, that it was likely to be used as a “front”. The concerns and doubts which existed when the call up letter was sent out were only reinforced during the course of the public inquiry. We have no hesitation in finding that the DTC’s decision was plainly right.

To conclude, all grounds of appeal are rejected as we are not satisfied that there was procedural unfairness in this case or that the TC’s decision was plainly wrong in any respect and neither the facts nor the law applicable in this case should impel the Tribunal to allow this appeal as per the test in Bradley Fold Travel & Peter Wright v Secretary of State for Transport (2010) EWCA Civ.695. The appeal is dismissed.