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Brands Hatch Event

Posted by Jonny on Mar 18, 2017 in Latest News

Brands Hatch – March 2nd 2017 – Operator Licensing Workshop

We had a somewhat surreal experience presenting on all aspects of Operator Licensing for HGV and PSV operators against a backdrop of this famous race track. And yes racing was going on at the same time. Occasionally a V6 (Skyline) howl and a V8 (TVR) growl intruded on the speaking slots but we didn’t mind a bit! Fantastic day!

“Good morning Jared, Deborah & John,….A brief note to thank you for the excellent workshop that you held at Brands Hatch yesterday….The programme was comprehensive enough to cover all the aspects of operator licensing for passenger and goods operation without getting bogged down unnecessarily with minutiae. I also enjoyed the session on litigation at the end.”

 

 
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Financial Standing requirements for 2017

Posted by Jonny on Dec 6, 2016 in Latest News

From 1st January 2017, financial standing requirements for standard national and international licence holders will rise by a staggering 18%.

 

This follows the annual assessment of the exchange rate between the pound and euro on the first working day of October, by the department for transport. Under EU legislation the current rate is set at €9,000 for the first vehicle and €5,000 for each additional vehicle. Therefore vehicle one will require £7850, and £4350 for each subsequent vehicle. It is a vast increase and the result of a fluctuating pound in the wake of the vote to leave the EU.

 

Struggling with the increase in financial standing?

 

In light of the changes, the Office of the Traffic Commissioner has stated that they will consider offering a period of grace of up to 6 months (but no longer) to struggling operators. This is purely for the purpose of meeting the financial standing levels on a permanent basis. Failure to do so could lead to regulatory action.

To apply for a period of grace, it must be requested in writing to the Traffic Commissioner and offer tangible evidence that financial standing will be met when the period of grace ends.

Senior Traffic Commissioner, Beverley Bell, said: “The financial standing requirement is mandatory so we have to apply the rates to all operators and licence applicants. However, we recognise that some businesses will feel the impact of the increase more immediately.

 “We have advised staff dealing with applications and regulatory hearings to be mindful of the impact of the increase when dealing with operators and giving advice on alternative ways of satisfying the new rates,” she added.

The rates for restricted O-licence holders will remain at the current levels set at £3,100 for the first vehicle and £1,700 for each subsequent vehicle nominated on the licence.

Financial standing can be evidenced using:

  • Bank  Accounts
  • Credit Cards
  • Overdraft Facilities
  • Factoring Agreements

Alternatively, operators have the option to reduce the authorisation on their licence in line with available finance. This can be done by completing a variation application (available from the Traffic Commissioners website).

 

If still unable to satisfy the requirement, call us and we will help you to explore alternative options available to you to demonstrate finance.

For a free consultation, call Nick Woodhead on 01829 773 108.

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Road Transport – Operator Licensing and entities

Posted by Jonny on Oct 30, 2016 in Latest News
John Dyne

John Dyne,  Director

If you are operating HGVs then you need an operator licence and to get a licence you have to fill in an application form called a GV79. For many established operators this is an application that was probably made many years ago. But what needs to be remembered is that the application contains a number of undertakings and a declaration that the statements made in the application are true. These undertakings are promises and are the same for both restricted and standard operators. These are promises the operator makes to the Traffic Commissioner and if they are broken then it undermines trust and confidence in the operator and can lead to sanctions such as suspension or curtailment of the licence or even revocation.

The operator licence is a valuable asset without which the haulage business cannot exist and profits cannot be made whether you are using vehicles to deliver your own goods or goods on behalf of others. It must never be a case of “obtain the licence then file and forget”. It pays to periodically  review the licence to ensure all the details are up to date and to consider taking legal advice if in any doubt.

One of the promises made in the application is that the traffic commissioner will be notified within 28 days of any changes to the business including changes to a Limited Company status or partnership such as changes in the named directors or partners.

A common issue is that of change in entity. That is when the legal person or entity that originally applied for the licence alters at some point in the future. To explain:  if a licence is granted to Mr Smith who is a sole trade it is Mr Smith who holds the licence and has authority to operate the heavy goods vehicles. If Mr Smith takes on a partner and becomes Smith & Co then the business operating the vehicles is no longer Mr Smith’s sole trade but the new Partnership. Equally if Mr Smith incorporates the business and trades as a company then the business operating the vehicles is no longer Mr Smith but the company. In each case after the change the licence is held by the wrong entity. The original licence holder (i.e. Mr Smith as a sole trader)  is no longer operating the vehicles but is in essence lending his licence to another entity (i.e. the partnership or company) which is illegal. This means, in my given examples that neither the partnership nor the company are authorised to operate the vehicles and a criminal offence is committed each and every time the vehicles are used on the road. Of course these are clear cut examples – sometimes the overall picture is a little fuzzy and in such cases you should seek advice as to whether or not you need to take action.

The solution to this problem (when it genuinely arises) is actually very simple. The partnership or the company must apply for a new licence in their own right. The counsel of perfection would be for this application to be made well in advance of the proposed changes but in most cases the entity issue I have described only comes to light well after the entity change has taken place. Some operators may feel inclined to let sleeping dogs lie or not to rock the boat but that is the wrong call. The right thing to do is to put in an application in the name of the new entity and in most cases the Office of the Traffic Commissioner will simply process the application under what is termed the Schedule 4 procedure. Although pending issue of the new licence the new entity may be trading without the authority of a licence the Traffic Commissioners are not likely to take any action because they will recognise this was an oversight and steps have been taken to rectify the situation. This entity issue is more common than you might think but it is something you should check or be aware of should the way in which the business is structured change in any way.

Other changes that need to be reported include where you change your maintenance arrangements or your operating centre. In the case of maintenance arrangements, it is just a case of updating the Office of the Traffic Commissioner and for example providing details of the new maintenance contractor and a copy of the new maintenance agreement. In the case of a change in Operating Centre or addition of a new Operating Centre to your licence this will require an application on form GV81.

If you are affected by any of the issues raised in this publication then please do not hesitate to contact us in complete confidence.

 
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Interviews under caution – Police and Criminal Evidence Act

Posted by Jonny on Oct 29, 2016 in Latest News, Latest News
John Dyne

John Dyne, Director

 

Interviews under Caution

We have encountered numerous occasions where people have attended interviews under caution without their Solicitor. For the most part they assumed they could handle the interview because they were innocent and had nothing to fear or perhaps being accompanied by a Solicitor implied they had need of legal representation because they had something to hide. Either that or they did not understand the significance of the interview or the potential consequences. After all the letter of request can seem rather innocuous and almost friendly – an invitation to a voluntary interview “to give your side of the story”.

But what exactly is the regulator hoping to achieve though the interview? The interview should not be used as a fishing expedition. This is not the purpose of an interview under caution and suspects have the right not to self-incriminate themselves. Ensuring the suspects’ rights are protected is the primary reason a suspect should always be legally represented at interviews under caution.

Remember when the regulators – that is the Police, Health & Safety Executive, Tradings Standards, Environment Agency, Natural Resources Wales or DVSA request an interview it is because they are thinking of bringing criminal proceedings against you or your company. Sentences for many road transport and most  environmental and Health & Safety Offences offences carry unlimited fines and environmental offences a custodial sentence of up to 5 years. A single conviction can potentially lead to revocation of your operator licence or environmental permit. As an  operator of HGVs or PCVs you have to report health & safety, road transport or environmental convictions to the Office of the Traffic Commissioner. In all cases the message is simply this – see an experienced regulatory Solicitor and if you decide to attend the interview take that Solicitor to the interview with you.

You may be familiar with the words of a caution from crime based television drama but what exactly do those words mean?

“You do not have to say anything.” The person under investigation has the right to remain silent and is entitled to give no comment answers to questions put in interview. However, an adverse inference may be drawn from the refusal to attend an interview or to offer no comment to the questions put at interview because it will be said in reality you had no answer that would stand scrutiny so you stayed away/ relied on your right to silence.

“But it may harm your defence if you do not mention when questioned something which you later rely on in court.” If you rely on anything later at trial that you might reasonably have mentioned earlier at interview an adverse inference could be drawn – that is, you are now making the whole thing up and your defence is fabricated.

“Anything you do say may be given in evidence.” Anything said during an interview can be used in evidence at any subsequent trial.

Alternatively, you can provide a prepared written statement. This statement can be drafted with the help of your Solicitor and can be useful and convenient means of managing and controlling the evidence given at interview and perhaps avoid answering any direct questions without any adverse inferences being drawn.

There is a potential risk of arrest if an individual declines to accept the invitation to attend a voluntary interview. Didn’t it somewhere mention the interview was voluntary?! All offences are potentially arrestable but the lawfulness of an arrest by a police constable for an offence is dependent on the constable having reasonable grounds for believing it is necessary to arrest the person. This may arise when it is thought that unless the suspect is arrested they will not attend the voluntary interview. In my experience of regulatory work in Transport, Health & Safety and Environmental cases the use of the power of arrest or threat of arrest is still comparatively rare and then arrest has only arisen after a threat (of arrest) was first made. Arrest or attempts to arrest have occurred even when a prepared statement had already been provided and even after giving written explanations and an open offer to cooperate with the investigation. It is highly important for any organisation relying on a permit or licence for their business to consider how a refusal to answer questions may look to their regulator (e.g. the Traffic Commissioner or any reviewing panel).

So how should you handle the interview? Give no comment answers? Answer all the questions put to you? Provide a prepared statement – with or without further comment to questions? Go it alone? Instruct a Solicitor?

My advice is never go it alone but instruct a Solicitor with knowledge of all the legal issues at large. The approach to then take at the interview simply depends on the circumstances. All cases are very fact specific. There are no hard and fast rules. A well managed interview needs careful planning, preparation and an early request for pre-interview disclosure. An experienced regulatory solicitor can help you prepare for the interview and if you are a company help decide who best to attend the interview. Remember anything you say can be used against you so a company faced with a choice should always consider who best to represent it. The potential outcomes of a criminal investigation can be catastrophic. Time spent in preparation for interview with an experienced regulatory solicitor is never wasted.  Time spent in preparation may enable you to provide an explanation sufficient to dissuade the regulator from prosecuting you or your company – with the regulator taking no further action. From a commercial perspective this would obviously be an attractive outcome as defending prosecutions can be costly, stressful and very time consuming and nowadays there is limited ability to recover costs even if you win your case.

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Tougher penalties for motorists caught using mobile phones

Posted by Jonny on Sep 26, 2016 in Latest News

Motorists caught using a handheld phone are currently given three penalty points and a minimum fine of £100, but this is set to be increased to six points and £200 under new Government plans.

The new rules could also see more experienced drivers going to court if they offend twice, and facing possible fines of up to £1,000 and at least a six-month driving ban.

This move which will start in early 2017 will see the Government crack down harder on motorists than originally planned.

A consultation document published in January this year had proposed tougher penalties for HGV drivers than general motorists, with the latter receiving four penalty points compared with HGV drivers’ six penalty points.

However, concern at the rising use of mobile phones whilst driving, particularly among younger drivers and male drivers, and the rise in fatal driving accidents involving mobile phone use, has seen the Government opt for punitive sanctions across the board.

 

Department for Transport (DfT) figures show that a driver impaired or distracted by their phone was a contributory factor in 492 accidents in Britain in 2014, including 21 that were fatal and 84 classed as serious.

Announcing the tougher penalties, Transport Secretary Chris Grayling said that using mobile phones while driving must become as unacceptable in society as drink or drug driving.

 

crash_scene

 

The image above was released by Leicestershire Police this week to highlight the potential outcome of mobile phone usage whilst behind the wheel. The crash took place on 24th November 2014. It occurred after Christy George, 38, lost control of her car hitting an HGV, which in turn crossed the central reservation killing a motorist and severely injuring several others. The loss of control was due to mobile phone use whilst driving. She has since been sentenced to 5 years in prison.

For advice on transport law issues, contact Jared Dunbar on 01829 773 105.

 

Content believed to be correct at time of writing 26.09.16

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DVSA release 2015 figures for roadside encounters

Posted by Jonny on Sep 15, 2016 in Latest News

New figures released by the Office of the Traffic Commissioner (“OTC”) show that almost a third of all DVSA roadside encounters with HGV’s and trailers last year were issued with a prohibition for a mechanical defect.

Prohibition figures released by the OTC show that 31% of the 51,079 truck and trailer checks carried out last year resulted in a PG9 being given to the operator.

Of the 15,815 prohibitions issued between 01 January 2014 and 31 December 2015, 7,384 (46.7%) were immediate prohibitions.  Immediate Prohibitions are handed out for the most serious mechanical problems and often require the truck to be immobilised. The number of delayed prohibitions issued totalled 8,431 (53.3%).

The highest prohibition rate, as a percentage of vehicles stopped, was achieved by London’s Industrial HGV Task Force, an enforcement initiative carried out by the DVSA, Metropolitan Police and City of London Police. It issued 1,221 mechanical prohibitions on 2,345 checks (52%); 52.5% of trucks and 47.3% of trailers stopped by the Task Force had a defect of some sort.

Checks in the Hertfordshire, Essex and Bedfordshire region achieved the lowest prohibition rate. Just 653 (24.5%) of the 2,658 checks uncovered a mechanical defect. Just under a quarter (23.4%) of the HGVs examined were given a PG9 in this region, whilst 26.9% of trailers were defective.

The DVSA’s Cumbria, Lancashire and Tyne and Tees enforcement office checked the highest number of trucks and trailers for roadworthiness issues – 6,993 checks (4,703 HGVs and 2,290 trailers). It also handed out the greatest number of prohibitions to trucks (920), 690 of which were immediate. Checks in the region achieved the highest number of immediate prohibitions for trailers: 513 were handed out, compared to 407 delayed prohibitions.

Central London was the worst area for immediate prohibitions given to trucks: 806 of the 1,122 prohibitions issued to HGVs last year were immediate, compared to 316 delayed prohibitions.

Road transport solicitor, Jared Dunbar, commented ‘it is interesting to note the differences in regions with regards to compliance.  It has been known for some time that the authorities are trying to crack down on compliance in London for some time, particularly with regards to the construction industry as they are notoriously non compliant. 

We see a large amount of scaffolders who do not view their journey to site as part of their working day.  All to many of them seem to think the Operator Licensing rules only really apply to ‘proper hauliers’.  This is why so many of them find themselves called to Public Inquiry for non-compliance.

What all scaffolders should do is treat the road safety compliance in the same responsible manner that they treat their other health and safety compliance.  We often find it is simply a lack of knowledge within the company which is the problem rather than any deliberate attempt to circumvent the regime.

My advice to all scaffolders is to seek advice now on compliance and don’t wait from the knock on the door from the DVSA”

 

For advice on transport law issues, contact Jared Dunbar on 01829 773 105

 

Content believed to be correct at time of writing 08.09.16

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Transport Manager Refresher Training: have you done yours?

Posted by Jonny on Aug 12, 2016 in Latest News

Nick Denton, the Traffic Commissioner for London and the South East, has criticised a lack of knowledge and professionalism among transport managers called by him to public inquiry.

Whilst drivers are required to undertake refresher training, there is no such requirement for Traffic Commissioners. Nick Denton states that many transport managers “have not bothered to attend training since they qualified 20 or 30 years ago.”

This lack of knowledge of current legislation and best practice resulted in failures of legal compliance and lead to the summons to Public Inquiry. The Traffic Commissioner contrasted this attitude with that of those transport managers that he met at training events run by industry bodies, who appeared: “bright, dynamic, and keen to develop themselves professionally by undergoing regular training.”

Mr Denton said that a good transport manager would “take their continuous professional development seriously. But too many cannot be bothered, taking pride in being ‘old school’ (too often just a synonym for useless).”

He concluded with a word of warning for the employers of such individuals: “If you are an operator with one of these transport managers, please get them trained urgently, get someone else, or just surrender your licence to me now.”

 
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Senior Traffic Commissioner announces redeployment of Traffic Commissioners

Posted by Jonny on Aug 12, 2016 in Latest News

Senior Traffic Commissioner announces redeployment of Traffic Commissioners

 

The Office of the Traffic Commissioner has announced that the existing Traffic Commissioner are being moved round, following the appointment of Nick Jones as the first, full time Traffic Commissioner for Wales.

Traffic commissioners Sarah Bell, Nick Denton and Kevin Rooney will be redeployed from 31 October 2016. At the same time, Nick Jones will vacate his role as Traffic Commissioner for the West Midlands.

• Mr Jones will become the Traffic Commissioner for Wales.
• Mr Denton will become the Traffic Commissioner for the West Midlands.
• Miss Bell will become the Traffic Commissioner for London and the South East of England.
• Mr Rooney will become the Traffic Commissioner for the West of England.
• Mr Rooney will retain his role as Traffic Commissioner for the North East of England in the interim.

The changes officially take effect from 31 October but transitional steps will take place in October. Senior Traffic Commissioner Beverley Bell said:

“I congratulate my colleague, Mr Jones, on his appointment as the first, full time Traffic Commissioner for Wales. His commitment to proper regulation in the country is well established and I know his knowledge and expertise will be vital in setting up a full time service for operators and the travelling public.

“I am also confident that the redeployment of my fellow commissioners Mr Denton, Miss Bell and Mr Rooney will ensure these three diverse regions continue to be regulated efficiently, effectively and proportionately.”

For advice on transport law issues, contact Jared Dunbar on 01829 773 105

Content believed to be correct at time of writing 12.08.16

 
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Sale of goods act – Your rights if have bought or sold goods

Posted by Jonny on Oct 22, 2015 in Latest News

Businesses are free to enter into contracts on whatever terms they wish. However, if a contract relates to the sale of goods e.g. a lorry, then it will almost certainly be subject to implied statutory provisions (the protection offer is lesser than if the contract were with a consumer).

The principal piece of legislation is the Sale of Goods Act 1979 and it offers quite some protection if you find yourself unhappy, out-of-pocket, or both.

The purpose of the legislation is to imply terms into any and all contracts for the sale of goods. These are as follows:

Title – The general rule is that a seller must have good title to any good(s) that he (or she) sells. Title is simply a way of indicating ‘ownership’. If someone does not have good title to some goods then he almost certainly has no right to sell it. For example, a seller will not have the right to sell stolen goods and the buyer will not be able to obtain ‘good title’. The likely outcome of this all too familiar situation is that the buyer would likely have to return the goods. This is certainly the case if you have bought a stolen vehicle or plant or machinery.

It is a similar situation where a seller is trying to sell a vehicle (or plant) that is under a hire purchase (HP) contract. The HP contract will usually not allow the seller to sell the vehicle while finance is still outstanding because it is the finance company that actually owns the vehicle i.e. they have title to the vehicle.

It is not a defence to say that a seller did not know that the goods were stolen and a full refund would still have to be paid.

Description – Something offered for sale must conform to the description given to it. For example, a Scania R320 advertised as being a 2007 model cannot be part of 2003 model welded to a 2007 model. Similarly a R500 cannot be a re-badged R320. In essence, if a buyer relies on any description given by the seller, the goods must correspond with the description. It is no defence to rely on information provided in the registration documents.

Quality – Goods must be of a satisfactory quality. This only applicable to sellers who are acting in the course of a business but does apply to new and used goods. In order to be seen as of satisfactory quality, regard must be had for:

• fitness for all the purposes for which goods of the kind in question are commonly supplied;
• appearance and finish;
• freedom from minor defects;
• safety; and
• durability.

These points will be weighed against any deviation from any description given, price paid and all other relevant considerations.

There is no remedy if a buyer finds fair wear and tear, misuse or accidental damages, or change their mind and decide against keeping the goods.

If defects or special uses or requirements are specifically brought to the buyer’s attention, or where a reasonable inspection would have discovered any issues or defects, then a buyer cannot rely on this provision. In this case, someone who has not been able to inspect their new (used) Iveco Eurostar could be in a better position than someone who did inspect it, albeit still in possession of a potentially defective vehicle.

Fitness for purpose – Similarly to the above, if the buyer makes it known, either expressly (by writing or conversation) or impliedly, prior to purchase any specific purpose for which the goods are required, then the gods will have to be specifically fit for that purpose. For example, if a specialist haulier of powders purchases a tractor unit that is required to have facility for a tipper and a blower and expressly makes this known to the seller then the vehicle must conform. In this case, the buyer might impliedly make it known to the seller perhaps by showing the seller their other vehicles or because it is rather obvious.

Remedies

The usual options are to reject the goods and claim a full refund or, if this is not desirable or possible, then to claim damages based on the cost of repair or the difference in value (as it is vs how it should have been). However, it is important that any faults are not accepted by the buyer either expressly or impliedly e.g. by continued use without complaint.

Dyne Solicitors have a great track record in recovering considerable damages for our clients who were not happy with the plant or vehicles they were sold. Our specialist litigation department and deep transport knowledge put you in safe and capable hands from the outset. Call us or request a call back to discuss your issue further.

 
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New Criminal Court Charges

Posted by Jonny on Jun 3, 2015 in Latest News

Since 13 April 2015, a criminal court levy has been imposed on most cases where a defendant has either pleaded guilty or been found guilty after trial.

 

These costs are in addition to your fine, the prosecution costs and the victim surcharge levy. The charges are not mean tested and will be imposed regardless of the circumstances of your case.

 

The main charges are as follows:

 

Magistrates’ Court

Summary only guilty plea     £150

Either-way guilty plea             £180

Summary trial                        £520

Either way trial                        £1000

 

Crown Court

Guilty plea                               £900

Trial                                       £1200

 

 

What will this mean?

Well it seems the whole system is designed to stop people defending themselves. In addition to this levy, companies are not entitled to recover their costs when they are found innocent and more fixed penalties are issued now so people pay these rather than going to Court.

 

However, operators and drivers should consider carefully what to do regarding offences. It is all too tempting to plead guilty to keep your costs down, even when you are innocent of the alleged offence.

 

However, both operators and drivers need to consider the regulatory action which could result from the conviction. In other words, for an operator it could lead to a Public Inquiry and for a driver it could lead to Driver Disciplinary Hearing. Both could result in disciplinary action being taken on the respective licences of the company or driver, which could include either suspension or loss of the licence.

 

What should operators do?

Operators should ensure they have legal expenses insurance in place so that their solicitor’s costs can be covered whether they win or not.

 

On being issued with a summons, the first step an operator should do is check to see whether they have legal expenses in place.

 

 

 

For advice on transport law, contact Jared Dunbar at Dyne Solicitors on 01829 773 100.

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