0.1 THE JURISDICTION OF THE TRAFFIC COMMISSIONERS FOR GREAT BRITAIN

Heard at: The Public Inquiry Room, Office of the Traffic Commissioner for Wales, 3 Llys Cadwyn,
Pontypridd, CF37 4TH.

0.2 On 21 May 2021

Before

0.3 DEPUTY TRAFFIC COMMISSIONER MR M DORRINGTON

0.4 In the cases of:

  1. Davey Travel Limited OG1044801
  2. Davey Travel Limited PG1053686
  3. Mr Michael Davey, transport manager
  4. SPD Storage Ltd OG2035012

Representation:

For Davey Travel Limited
and Mr M Davey : Mr A Owen, Solicitor
For SPD Storage Ltd: Mr M Davies, Solicitor

1. Background

To begin with it is important for any reader to understand the very similar names that occur in these linked cases. I will, where I can, make it as clear as possible as to who is who to minimise any confusion.

Davies Logistics Ltd held a goods vehicle operator licence under reference OG1007844. This operator appeared at a public inquiry on 25 November 2019 the outcome of which was that the operator’s licence for Davies Logistics Ltd was revoked with effect from 10 June 2020. There was no order of disqualification. The sole director was Mr Islwyn Mark Davies.

Davey Travel Ltd was granted its goods vehicle operator’s licence on 26 May 2005 and its passenger service operator’s licence on 16 December 2005. The sole director of this company is Mr Michael Davey. He is also the sole transport manager on both operator licences.

SPD Storage Ltd made an application for an operator’s licence on 10 July 2020. Mrs Sophie Davies is the sole director. Her husband is Mr Islwyn Mark Davies, the sole director of Davies Logistics Ltd.

As a result of a routine stop by the Driver and Vehicle Standards Agency (“DVSA”) of vehicle registration CE69AOC on 17 January 2021 a formal investigation by the DVSA was instigated which revealed suspicious behaviour and links to Davies Logistics Ltd that had had its operator licence revoked on 10 June 2020. As a result of that investigation a decision was made to call the applicant, SPD Storage Ltd, and the operator Davey Travel Ltd (and its transport manager) to a conjoined public inquiry.

2. The public inquiry on 21 May 2021

Present at the public inquiry were:

SPD Storage Ltd: Mrs Sophie Davies (director)
Mr Stephen Thomas (proposed transport manager)
Mr M Davies (solicitor).

Davey Travel Ltd: Mr Michael Davey (director and transport manager)
Mr Neil Thomas (consultant)
Mr A Owen (solicitor)

DVSA: Mr A Thomas (traffic examiner)

In addition to the papers in the public inquiry bundle I had also been provided, in advance of the hearing, with additional evidence from SPD Storage Ltd and Davey Travel Ltd and submissions made on behalf of both entities for which I was grateful.

I heard from traffic examiner Thomas whose public inquiry statement was taken as read and then he was questioned first by Mr Owen (solicitor) and then by Mr M Davies (solicitor) and finally by myself. Thereafter I asked traffic examiner Thomas to remain so that he could be recalled at any time should he be required later in the hearing.

I then heard from Mr Davey who adopted his witness statement and was then asked supplemental questions by Mr Owen (solicitor) before being questioned by Mr Davies (solicitor). I then questioned Mr Davey for the first time before, on my own volition, adjourning the hearing for a short period of time so that Mr Owen could take instructions on a very significant piece of evidence. After the short adjournment Mr Owen addressed me and asked his client a few more questions before I questioned Mr Davey further.

Mr Owen did not call Mr Thomas (consultant) and I then heard from Mrs Sophie Davies, director of SPD Storage Ltd, who adopted the contents of her solicitor’s letter at pages 45 onwards in the public inquiry bundle before she explained her background and the reasons for the application made by SPD Storage Ltd and her involvement with Davies Logistics Ltd and any links that there may have been/remained. She was then questioned by Mr Owen and myself.

Finally, I recalled traffic examiner Thomas before I heard from both solicitors in closing submissions. My decision was then reserved.

3. Findings of fact, decisions and reasons.

I have carefully considered all of the evidence before me. Where an issue was not agreed/accepted I made my own finding upon it from the evidence that I considered to be relevant to the issue at hand. In doing so I applied the civil burden of proof (the balance of probabilities).

Concerning SPD Storage Ltd

The chronology in the application before me, and the unescapable link to Mr Islwyn Davies, were outwardly suspicious but the persuasive evidence in this case satisfied me that the links were superficial, were not an attempt by Mr Islwyn Davies to obtain an operator’s licence through his wife Sophie Davies and her application on behalf of SPD Storage Ltd was her entirely her own and would remain as such. The applicant bore the burden of proof to satisfy me that the provisions of section 13 of the Act were met and I was so satisfied on the balance of probabilities. There is no more that needs to be said. The application is granted as applied for as a result.

Concerning Davey Travel Ltd

Mr Michael Davey was the heart and mind of Davey Travel Ltd. He was the sole director and the sole transport manager on both operator licences held by this company.

Mr M Davey has been an operator for a very long time. Before this investigation he had not had any enforcement action at all.

Mr M Davey is, from my observation of him and interaction with him, an intelligent and articulate man.

Mr M Davey, as a long standing and experienced operator of goods vehicles, cannot claim ignorance/lack of knowledge regarding compliance with the transport operation. In any event the Upper Tribunal made it clear in the appeal case of 2012/030 MGM Haulage and Recycling Ltd that operators are deemed to know the advice and guidance that is in the public domain and as a result they cannot say they did not know. Here the statutory documents issued by the Senior Traffic Commissioner have been in the public domain for over 10 years.

At about the same time that the operator’s licence held by Davies Logistics Ltd was revoked in June 2020 Mr Michael Davey was approached by Mr Islwyn Davies to assist with the transport business for Davies Logistics Ltd.

The arrangement was not formalised in writing. It was for Davey Travel Ltd to supply transport services to Davies Logistics Ltd in return for a monthly fee. Mr Michael Davey agreed to this (this is all what he told me) but it aroused enough suspicion with him that he initially tried to contact the Central Licensing Office (“CLO”) at the Office of the Traffic Commissioner by telephone on several occasions for advice. Given the limited staff working there due to the Covid-19 restrictions he did not get a response and no follow up (by correspondence for example) was made to that lack of telephone response.

I told Mr M Davey in the hearing that the CLO and the Office of the Traffic Commissioner would not have given him any advice regarding the legality/compliance of any business relationship he had entered into with Davies Logistics Ltd. It is not for the staff in the CLO or at the Office of the Traffic Commissioner to give advice to operators, especially on something as significant as this, in the same way that staff in HMRC will not give advice to people concerning their tax affairs.

Mr M Davey did not seek, or take, any legal advice from a solicitor until after vehicle CE69AOC was stopped on 17 January 2021. At that point in time the following was the state of affairs as demonstrated by the evidence I had read and heard in the public inquiry:

(a) The vehicle was displaying an operator’s licence disc for Davey Travel Ltd

(b) But vehicle CE69AOC had been removed from the list of vehicles specified to this operator’s operator licence on 06 October 2020. That was an error which Mr Davey had told traffic examiner Thomas. He told me the same in his statement and in oral evidence. I found it was always the intent that this vehicle was specified on the operator’s licence held by Davey Travel Ltd. The intent was clearly demonstrated by the operator licence disc for Davey Travel Ltd being displayed in the window of this vehicle at all material time.

(c) Prior to CE69AOC being specified on the Davey Travel Ltd operator’s licence it was specified on the Davies Logistics Ltd operator’s licence.

(d) The driver of vehicle CE69AOC was employed by Davies Logistics Ltd.

(e) The driver of vehicle CE69AOC was being paid by Davies Logistics Ltd.

(f) The fuel card for CE69AOC was in the name of Davies Logistics Ltd.

(g) The vehicle was being taxed by Davies Logistics Ltd.

(h) The vehicle insurance was paid for by Davies Logistics Ltd.

(i) The vehicle had been regularly parked overnight at the operating centre previously specified on the operator’s licence for Davies Logistics Ltd.

(j) The vehicle loads (and work as a result) was being scheduled by Davies Logistics Ltd.
(k) The maintenance contract with the main line dealers was in the name of Davies Logistics Ltd.

(l) No preventative maintenance inspection sheets were ever given to or held by Davey Travel Ltd (and they would have had “Davies Logistics Ltd” as the operator’s name upon them since the maintenance was undertaking as part of the vehicle lease agreement and that lease was in the name of “Davies Logistics Ltd”).

(m) The vehicle unit (the internal device that records all vehicle movements so that drivers hours compliance can be checked against the drivers digital tachograph data to see, for example, if a vehicle was being moved when a digital tachograph card was not inserted) was still locked into the Davies Logistics Ltd company card.

(n) As a result Mr M Davey could not have had first hand knowledge as to compliance with drivers hours rules because he could not access the vehicle unit.

So putting it another way; Mr M Davey (and as a result Davey Travel Ltd) were clearly not the operator of vehicle CE69AOC but Davey Travel Ltd was being used in a financial business arrangement with Davies Logistics Ltd to give what was happening an air of legitimacy by the use of its operator’s licence when the operator was clearly Davies Logistics Ltd.

It was accepted that there was no contract or written business arrangement between Davey Travel Ltd and Davies Logistics Ltd. Mr M Davey gave evidence on several occasions in the public inquiry that each month Davey Travel Ltd would be paid by Davies Logistics Ltd for the supply of transport services. To demonstrate this, documents were introduced into the public inquiry by Mr M Davey but they were plainly false documents. These documents are the purported “invoices” that appear at tab 9 (pages 81 to 86) in the bundle provided by Davey Travel Ltd.

Why are the “invoices” false documents? I have reached that finding because Davies Logistics Ltd is invoicing Davey Travel Ltd in each and every one of them with a bank account, to which the money due in each “invoice” is to be paid, that Mr M Davey accepted was not a bank account he or Davey Travel Ltd held. The invoices are the wrong way around; it should have been Davey Travel Ltd invoicing Davies Logistics Ltd because Davey Travel was meant to be supplying Davies Logistics Ltd with transport services because Davies Logistics Ltd had no operator’s licence.

It was at this point in the public inquiry that I stood the hearing down for a short period of time to allow Mr Owen time to take instructions.

Thereafter Mr Davey maintained that Davey Travel Ltd were being paid monthly by Davies Logistics Ltd but the arrangement was actually one where the money would be offset against the value of a semi-trailer (he used the word “semi-trailer” in the hearing) that was owned by Davies Logistics Ltd but which Mr M Davey wanted.

I did not accept that explanation because:

(a) It still did not explain why Davies Logistics Ltd were invoicing Davey Travel Ltd (as per the “invoices” at pages 81 to 86 of the bundle supplied by Davey Travel Ltd and which totalled £12,294.43 excluding VAT); and

(b) The apparent “invoice” for the semi-trailer dated 16 February 2021 (page 80 of the Davey Travel Ltd bundle) is for a round sum being £28,000.00 excluding VAT that is not consistent with a price that took into account 6 (six) months of transport services being offset against it because if that were the case it is not at all likely, on balance, that there would be exactly £28,000.00 left to pay; and

(c) There is no mention at all on this “invoice” of any money being off-set against the total price which is what I would expect to see for accounting purposes if that was what was actually happening.

I have also noted, when writing this written decision, the highly suspicious invoice numbers; for example on page 84 of the Davey Travel Ltd bundle is an “invoice” dated 02 September 2020 with invoice number “W900” but at page 83 is the “invoice” dated 08 October 2020 but that bears invoice number “W901”. So the sequence in invoices issued by Davies Logistics Ltd has only gone up by one number in a 6 (six) week period and no other invoices have been issued to anyone else? That is not accepted as being likely on balance particularly as I was told in the public inquiry how Davies Logistics Ltd was in business as a fully functioning company throughout 2020 until the present.

But that is not the end of this issue. The “invoice” at page 85 is dated 05 August 2020 but this bears invoice number W902 [emphasis added]. How can that be correct when it is for a period of time significantly before the invoices for September (invoice number W900) and October 2020 (invoice number W901)? I find, on balance, that it cannot be correct and this highly suspicious invoice numbering only strengthens my finding that the “invoices” produced into evidence by Davey Travel Ltd are false documents.

I turn finally to page 73 of the bundle provided by Davey Travel Ltd. This document shows that on 10 February 2021 “Davey Logistics Ltd” was incorporated. Mr Michael Davey is the sole director of that company.

In isolation that may in itself be accepted as being nothing suspicious but when looked at holistically, from all of the evidence before me (and the findings I have made from that evidence) I reject Mr M Davey’s assertion that it was just a better name for a goods vehicle transport service than Davey Travel Ltd and I find that it was done to add another layer of legitimacy to the business arrangement with Davies Logistics Ltd that had already been in place for the previous 6 (six) months; the names are virtually identical (Davies Logistics Ltd /Davey Logistics Ltd) and I further find it is beyond coincidence in this case that the word “Logistics” was used when looked at through the prism of my findings thus far. There are many other just as good words that could have been used (“Transport” and “Haulage” are but two examples that instantly came to mind) but at the same time would not have created the strong impression of being directly connected with Davies Logistics Ltd.

Pulling everything together I further find that:

(a) As an experienced operator and transport manager Mr M Davey would have known, or ought to have known, that the arrangement with Davies Logistics Ltd was clearly wrong (unlawful) and if there was any doubt he should have promptly sought legal advice but he made the choice not do that until after vehicle CE69AOC was stopped which was either a deliberate act or a reckless act (he knew there was a risk, hence the calls to the CLO, but went ahead and took that risk anyway by not seeking legal advice).

(b) But for the stop of vehicle CE69AOC on 17 January 2021 Mr M Davey and Davey Travel Ltd would have carried on allowing Davies Logistics Ltd to operate using the Davey Travel Ltd operator’s licence.

(c) Doing all of this for the 6 (six) months before vehicle CE69AOC was stopped is not a “blip” or a temporary event it is a significant length of time and as per paragraph 33(b) above was something that would have continued into the foreseeable future.

(d) This type of activity is commonly called “fronting” (an operator deliberately/recklessly allowing its operator licence to be used by another entity that does not hold an operator’s licence to operate its vehicles and trailers) and doing it is extremely serious misconduct.

Davey Travel Ltd was unable to provide any maintenance documents for vehicle CE69AOC (for the reasons already given) to show it had been properly maintained (driver defect reporting sheets, PMI sheets, roller road brake test results etc). I accept an audit report was prepared by NRT Consultancy but this told me nothing about compliance for vehicle CE69AOC for the period from June 2020 until 17 January 2021 (and I add that this audit is very limited in detail and it does not say what documents were used in its formation nor does it say over what reference period of time those documents covered).

The relevance of the lack of any maintenance documents being held by/in the name of Davey Travel Ltd is also this; how could Mr M Davey, with all of his experience as an operator/transport manager, ever think that such an arrangement could be compliant/lawful? On the balance of probabilities I find that he could not have thought it was compliant/lawful.

Davey Travel Ltd did not provide any tangible evidence to show compliance with driver’s hours rules and regulations for vehicle CE69AOC. Mr M Davey told me he was provided with a spreadsheet from Davies Logistics Ltd but he did not check the drivers tachograph card data himself. That was undertaken by Davies Logistics Ltd who did all of the analysis (and who had access to the vehicle unit). Again, I asked myself how could Mr M Davey, with all of his experience as an operator/transport manager, ever think that such an arrangement could be compliant/lawful? On the balance of probabilities I find that he could not have thought it was compliant/lawful.

The statutory transport manager Mr Michael Davey deliberately/recklessly allowed (either by his positive acts or by his omission(s) to act) the operator licence for Davey Travel Ltd to be used by Davies Logistics Ltd. He totally failed to exercise “continuous and effective management” of the transport operation for a significant length of time. As per the Upper Tribunal appeal case of MGM Haulage and Recycling Ltd (cited earlier) there can be no excuses and that is even more the case for an experienced transport manager such as Mr M Davey.

As the sole director Mr M Davey deliberately/recklessly (by his positive acts and/or his omission(s) to act) and for pecuniary gain allowed the operator licence held by Davey Travel Limited to be used by Davies Logistics Ltd. He knew, or ought to have known, that Davey Travel Ltd was not the operator of vehicle CE69 AOC at any point in time right up until that vehicle was stopped on 17 January 2021. This was a clear case of “fronting”.

As the sole director Mr M Davey deliberately/recklessly put before me documents (the “invoices” I have dealt with in detail previously in this written decision) that were clearly false and which were, as I found, created to give a veneer of legitimacy to the relationship between Davey Travel Ltd and Davies Logistics Ltd. If those documents are not false (which I do not accept) then what Mr M Davey told me in oral evidence was false when he said that Davey Travel Ltd was paid by Davies Logistics Ltd. Either that was the case and the “invoices” were false or the “invoices” were correct and what Mr M Davey told me in oral evidence was false. Both versions cannot be right. One version is an entirely false account.

Giving any false evidence in a public inquiry is exceptionally serious misconduct. It cannot be excused, especially when Mr M Davey has been represented throughout by an experienced road transport law solicitor.

The conditions on the operator’s licence were breached because Davey Travel Ltd did not, within 28 days, inform the Traffic Commissioner of an event that was likely to effect the good repute / professional competence of the operator.

There were material changes since the licence had been granted that had not been notified to the Traffic Commissioner.

Mr M Davey, as a director, had totally failed to demonstrate effective management control of the transport business for Davey Travel Ltd to ensure compliance as demonstrated by the fronting arrangement undertaken between Davey Travel Ltd and Davies Logistics Ltd.

There were some positives. Mr M Davey fully co-operated with the DVSA investigation, he took legal advice after that investigation began and admitted many (but certainly not all) of his misconduct in his statement and in oral evidence, he had ceased the relationship with Davies Logistics Ltd immediately after the stop of vehicle CE69AOC, he had instructed a consultancy to audit his transport operations, he had gone on a transport manager CPC refresher course (but this is balanced against the fact he told me that this was the first time he had done that since becoming a transport manager), he and Davey Travel Ltd had had a clean compliance record previously and he was deeply sorry and embarrassed for what had happened.

I gave the operator as much credit as I could for all of those positive features. I then balanced them against the negative features in this case. Having done so the negatives still significantly outweighed the positives as at the date of the public inquiry. Regulatory action was proportionate.

I then considered Statutory Document number 10 issued by the Senior Traffic Commissioner for Great Britain, and in particular Annex 10 therein. That list is not an exhaustive list. There were the following negatives and positives:

Negatives from Annex 10

(i) Deliberate/reckless act(s) by the operator leading to road safety risk or unfair commercial advantage [no, or no effective, control over maintenance and/or drivers hours compliance for vehicle CE69 AOC]; and

(ii) Persistent offending [the “fronting” for a six month period]; and

(iii) Ineffective management control and appropriate systems and procedures; and

(iv) Ineffective analysis procedures in place to detect falsification, drivers hours (EC & GB) and/or working time directive infringements [with no first hand access to the vehicle unit, because this was locked to the card held by Davies Logistics Ltd, Davey Travel Ltd could not properly check any analysis of drivers hours or working time compliance]

(v) Deliberate/reckless act to allow the operator licence held by Davey Travel Ltd to be used by Davies Logistics Ltd (“fronting”) [this is in addition to the list given in Annex 10]

(vi) Deliberately/recklessly introducing false documents or false oral testimony into the public inquiry [this is in addition to the list given in Annex 10]

Positives from Annex 10

(i) Sufficient and effective changes made (tangible evidence) to ensure compliance.

(ii) Operator cooperated with the enforcement investigation.

(iii) No road safety critical defects or “S” marked prohibitions

(iv) Low prohibition rate.

Again, giving the operator as much credit as I can for all of the positives, I still assess the entry point for regulatory action to be in the “severe to serious” category but at the top end of that range. The principal reason for that is because allowing (deliberately/recklessly) an operator licence to be used as a front for another operator (who held no operator’s licence) and introducing false documents or false oral testimony into a public inquiry carries a very significant amount of weight given the public interest and industry interest factor that must be applied to that type of conduct.

The whole operator licensing system relies upon trust. The appeal case of 2006/27 Fenlon makes it clear that ‘trust is one of the foundation stones of operator licensing. Traffic, commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operator believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer.’

Viewing Davey Travel Ltd through the prism of my findings I have asked myself the question posed in the appeal case of Priority Freight; do I trust this operator to be compliant in the near future? For what happened in the public inquiry (false documents or false testimony put before me by Mr M Davey), regardless of all the promises of future compliance I heard, I answer that in the negative. I simply do not trust the heart and mind of this operator, Mr M Davey. He had shown extremely serious misconduct before he was caught and then that extremely serious misconduct was projected into the forum of the public inquiry. I do not trust him.

I have then asked myself the question posed in the appeal case of Bryan Haulage (number 2); is the conduct of this operator such that they ought to be put out of business? I have again given the maximum amount of credit that I can give to the operator but for the same reasons that I have answered the Priority Freight question in the negative I find it is proportionate to answer the Bryan Haulage question in the affirmative. I add that allowing (whether deliberately or recklessly) the operator’s licence to be used for 6 (six) months by Davies Logistics Ltd was enough on its own in this case to answer the Bryan Haulage question in the affirmative because, repeating the appeal case of Fenlon (cited and quoted above) that type of conduct goes to the very heart of the relationship of trust and, if it was not dealt with robustly, would lead compliant operator’s to think about why they took such care and attention (and money) to be compliant when there were no real consequences to being caught doing what Davey Travel Ltd did. It would only take a few compliant operators to start doing that for the whole jurisdiction of the Traffic Commissioners to be put at risk.

I further add that the putting false documents or false oral testimony before me in the public inquiry was enough on its own, even after giving the operator as much credit as I can, for me to find that it was proportionate to answer the Bryan Haulage question in the affirmative. I repeat what was said in Fenlon above which explains why; it totally undermined my trust with Mr Davey and also because no one in the road transport industry must be allowed to think that undertaking behaviour such as that in a formal hearing before the regulator will be allowed to happen without severe regulatory repercussions.

In light of all of my findings looked at collectively, even after giving the operator as much credit as I can, I find it is entirely proportionate to answer the Bryan Haulage question in the affirmative.

The operator as a result of the acts/omissions of Mr M Davey has lost its good repute. The operator’s licence must be revoked as a result.

Mr M Davey, good repute as transport manager.

I repeat all of my findings in this case (both the positives and the negatives) and bring them all to bear when considering the good repute of Mr M Davey as the transport manager of Davey Travel Ltd.

Looking at Mr M Davey as a transport manager through the prism of those findings it is about as bad as it can get for someone who has a statutory duty to ensure “continuous and effective management of the transport undertaking.” Despite all he has said and done, and giving all the positives in this case as much credit as I could give, it is still fanciful to even think that he could retain his good repute as a transport manager. He has not. It is forfeit and that finding is entirely proportionate to the facts of this case.

Mr M Davey must be disqualified as a transport manager.

Davey Travel Ltd – professional competence.

This operator no longer has a transport manager because its transport manager has lost its good repute. As a result it is no longer professionally competent. It is a mandatory requirement for this operator to be professionally competent. The operator’s licence must be revoked because the operator is not professionally competent.

Discretionary powers

Again, repeating all of the findings that I have made already, I determine that it is proportionate to find that the operator licence held by Davey Travel Ltd is revoked under my discretionary powers pursuant to sections 26(1)(b) and (h) of the Act.

Orders of revocation

All orders of revocation take effect from 2345 hours on 02 September 2021. That is to allow Davey Travel Ltd to wind down, in an orderly way, its transport operation.

Order of disqualification for Mr M Davey as transport manager

There is no period of grace in place (none was requested as an alternative in submissions made by Mr Owen, solicitor) and to allow for the winding down of the operator’s licence before it is revoked, and to regularise the legality of that, I will place the disqualification of Mr M Davey as a transport manager to 02 September 2021.

Mr M Davey is disqualified as a transport manager from 2345 hours on 02 September 2021 for a period of 12 months until 01 September 2022. I have picked a 12 month period to take into account the credit that has been given and also Mr Davey’s age. Had he been a young man the entry point would have been at least 3 (three) years.

He is disqualified under paragraph 16(2) under schedule 3 of the Act because he has lost his good repute as a transport manager.

I can think of no rehabilitation measure because his conduct has cut to the core of the issue of trust. No training course or apology will, on the face of it, repair that damage. How Mr Davey goes about repairing that damage is a matter for him now but he must understand that just because the order of disqualification is only for 12 months that does not automatically mean his good repute is restored after that time. It is not. He must make a formal application to the Traffic Commissioner and set out, with reasons, why his good repute as a transport manager, should be restored. Whether that application is granted or not will be down to the determination of the Traffic Commissioner considering any such application.

Disqualification – Davey Travel Ltd.

l have considered whether disqualification is required as per the guidance in the Upper Tribunal appeal case of 2018/072 St Mickalos Company Ltd & M Timinis and 2010/29 David Finch Haulage. This is the first Public Inquiry for this operator but there can be no allowance for the false documents or false oral evidence placed before the regulator at the public inquiry. As the Upper Tribunal has recently identified in 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. That is very much a message that needs to be made clear in this case.

I have given the operator as much credit as I can in this case which is reflected in the length of disqualification. The operator is disqualified from holding or obtaining any type of goods vehicle operator’s licence in any traffic area from 2345 hours on 02 September 2021 until 2345 on 01 September 2022 under section 28(1) and 28(3) and 28(4) of the Act. This is a lenient outcome.

Disqualification – Mr Michael Davey.

I repeat that Mr M Davey, director, was the sole heart and mind of Davey Travel Ltd.

I repeat paragraph 64 above.

This is a bad case where right up to and including the public inquiry Mr M Davey undertook conduct that fundamentally undermined the issue of trust and the jurisdiction of the Traffic Commissioners.

There is no place in the operator licensing system for people who do that.

I have given Mr Davey as much credit as I can give to him which is reflected in the length of disqualification that I have imposed and also takes account of his age. Were he a young man then the period of disqualification would have been significantly longer.

Mr Michael Davey is disqualified from holding any type of operator’s licence (whether that be as a sole trader or as a partner in a partnership of any kind) in any traffic area from 2345 hours on 02 September 2021 until 2345 hours on 01 September 2022. He is further disqualified from 2345 hours on 02 September 2021 until 01 September 2022 from being a director (or a person with a controlling interest) in a limited company that holds or obtains any type of operator’s licence in any traffic area and his is disqualified as a director (or a person with a controlling interest) of a company that is a subsidiary company to a company that holds or obtains any type of operator’s licence in any traffic area. This order of disqualification is made under sections 28(1), (3) and (4) of the Act.

Davey Travel Ltd – PG1053686

I have already found, with my reasons, that Davey Travel Ltd is no longer of good repute.

The sole director of this operator is Mr Michael Davey. He has now been disqualified (and I have already given my reasons for that) from being, inter alia, a director in any company that holds an operator’s licence. That is because he has lost his good repute.

The sole transport manager specified on operator licence PG1053686 is Mr Michael Davey. He is already being disqualified from being a transport manager because he has lost his good repute as a transport manager. I have already given my reasons for that.

Mr Michael Davey is the heart and mind of Davey Travel and as a result operator licence PG1053686.

The operator’s licence, reference PG1053686, must be revoked because (a) Davey Travel Limited (the legal entity that holds this operator licence) is no longer of good repute and (b) because PG1053686 is no longer professionally competent because its sole transport manager has lost his good repute as a transport manager and (c) the sole director, Mr M Davey, is disqualified from being a director because he has lost his good repute.

The standard international public service vehicle operator’s licence authorising 20 (twenty) vehicles is revoked with effect from 2345 hours on 02 September 2021 under sections 17(1)(a) [no longer of good repute], 17(1)(b) and section 14ZA(3)(a) [transport manager no longer of good repute], 17(3)(e) [material changes since the licence was granted] of the Public Passenger Vehicles Act 1981 (as amended).

I make no order of disqualification in relation to Davey Travel Ltd holding or obtaining a new public service vehicle operator’s licence because I heard that Mr M Davey’s daughter is now actively involved and as a result would seem to be in line for succession if/when Mr M Davey retires. I will not let Mr M Davey be involved any longer for the reasons I have already given but I would be prepared to allow Davey Travel Ltd to hold a public service vehicle operator’s licence if Mr M Davey was not involved (as per the conditions of his disqualification).

It therefore remains open in the next 3 (three) months for there to be a change in directorship and shareholding (and Mr Owen has done this before for transport clients I am told) to allow Davey Travel Ltd to apply for a new public service vehicle operator’s licence with a new director(s), new shareholder(s) and a new transport manager.

If there is clear blue water between that application and Mr M Davey (and if that application is duly made and shows, with independent tangible evidence in support, that Davey Travel Ltd is and can be compliant) then I see no reason why a modest (up to 5 (five) vehicle authority) application could not be granted from the papers alone without the need for a hearing.

It will not, I hope, have passed everyone’s notice that my written decisions have allowed not only the operation of public service vehicles to continue whilst there is a need to undertake school contracts before the summer holiday but is also gives time for a new application to be made, processed and determined by the Traffic Commissioner.

Unequivocal warning

I have been lenient. Any breach of my decisions by Davey Travel Ltd and/or Mr M Davey will result in Police action, the push for criminal prosecution(s) (because any breach of an order of disqualification can be prosecuted) and the hardest of all regulatory action possible.

3.1 POSTSCRIPT – THIS REQUIRES URGENT ATTENTION BY THE SOLICITOR REPRESENTING DAVEY TRAVEL LTD

I had just finished the final draft of this written decision when I received today, from my clerk, a copy of a letter from the solicitors representing Davey Travel Ltd and Mr M Davey. That letter, for the first time, informed me that instead of Mr Davey being the sole director for Davey Travel Ltd there was actually a second director, his wife.

I have checked on Companies House and this shows that Mrs L J Davey was appointed as a director on 23 March 2017 and that she remains a director.

I have then checked the most recent licence checklist which all operators must complete every 5 years to have their operator’s licence renewed. The most recent licence checklist is dated 23 March 2020 and is manually signed by Mr Michael Davey. On this licence checklist form there is only one director recorded; Mr Michael Davey. The declaration at the end of the form says:

“Licence Number: OG1044801
Please sign the following declaration:

I declare that all the information in this checklist (amended, where necessary, by me) is correct.

I also re-affirm my compliance with all the conditions and undertakings recorded on my licence and have read these and confirm that they are correct.”

Operators are trusted to properly read, check, correct and amend this form. The Office of the Traffic Commissioner takes it on trust that the information that is declared is correct and accurate because it has neither the time nor the resources to check each and every operator.

On the face of it the most recent licence checklist signed by Mr Michael Davey on 23 March 2020 was false because it did not record Mrs L J Davey as a director when it should have done.

As a result the Office of the Traffic Commissioner, until the letter was received from the solicitor for Davey Travel Ltd, had not been made aware that there was a second director.

I have checked Companies House again. Mr Michael Davey is recorded as having the controlling shareholding in Davey Travel Ltd owning over 75% of the shares and having ownership of over 75% of the voting rights.

That means, for the purposes of this written decision, that Mr M Davey was (as I already found) at all material times the heart and mind of the transport operation because he could not be outvoted or overturned in any decision he made.

Therefore, all references in this written decision to him being the sole director are to be replaced with Mr Davey being the controlling shareholder and controlling director and references to “sole director” are to be read as such.

The new information about the directorship does not in any material way affect any of the decisions that I have made. However, I must now consider disqualification of Mrs L J Davey, director.

It cannot be said that she and the operator were not put on notice of the risk of disqualification as the relevant section of the call up letter states at the bottom of page 9 of the public inquiry bundle:

“If the traffic commissioner revokes a licence, they may also disqualify the company or any of its directors [emphasis added] for a specific period or indefinitely from holding or obtaining another operator’s licence and from being a director of any company which holds such a licence.”

Therefore, I am proposing to disqualify Mrs L J Davey as a director in exactly the same terms as I have disqualified Mr Michael Davey and for the same reasons I have already given because as a matter of law she shares joint and several liability with Mr Michael Davey as a director. If Mrs L J Davey is not willing to accept this course of action on a voluntary basis then she must say so in writing by requesting a public inquiry. Any such correspondence to request a hearing must be received at the Office of the Traffic Commissioner for Wales on or before 16 June 2021. For the avoidance of any doubt a request for a public inquiry will not re-open the issues I have already determined as findings of fact, the hearing will just be listed to decide whether I disqualify Mrs L J Davey as a director or whether I do not.

In relation to Mr A Owen, the solicitor who represented Davey Travel Ltd and Mr Michael Davey; he is formally directed to write to me on headed paper addressed to the Office of the Traffic Commissioner in Wales to fully explain why it has only come to light after the public inquiry that there was a second director and why checks were not made before the public inquiry to ensure that the directorship recorded against the operator’s licence was correct and that I was addressed properly as a result in the hearing. That letter is to be received no later than 16 June 2021.

Signed:

Deputy Traffic Commissioner M Dorrington

(Signed electronically)

02 June 2021.