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8/8/2019 Avondale Written Decision

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TRAFFIC COMMISSIONER FOR SCOTLAND

GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

AVONDALE EUROPEAN LTD - APPLICATION OM1094624

PUBLIC INQUIRY HELD AT EDINBURGH ON 2 SEPTEMBER AND CONTINUED TO 25 OCTOBER 2010

DECISION OF THE TRAFFIC COMMISSIONER

BACKGROUND

1. Avondale European Ltd (hereinafter "Avondale") of 27 Naismith Court, Stonehouse, Larkhall, applied for astandard international goods vehicle operator licence to operate 5 vehicles and 5 trailers from Norfolkline, MiddletonAvenue, Strutherhill Industrial Estate, Larkhall. The main trade or business was given as European refrigeratedtransport. The sole Director is Mr David Thomas Telfer. At question 7(a) of the application form (regarding previouslicences) the applicant declared licence OM1043346 in name of Avondale European Ltd which was revoked, withdisqualification for 12 months from 9 December 2008.

2. Mr Telfer nominated himself as Transport Manager and indicated himself to be a full time driver with Euresco BV,

Anthony Fokkerweg 1413, 1422 AG Uithoorn, Holland. Parking permission was given by Mr Pat Clinton, TransportManager of Norfolkline (letter of 15 March 2010). Details of maintenance providers were given with some of themaintenance contracts bearing vehicle registration numbers. Bank statements were produced and also a bankfacility.

3. In view of the previous revocation and disqualification, I directed that this application be called to Public Inquiry.

4. The Public Inquiry was held at Edinburgh on 2 September 2010. Mr David Telfer was present and represented byMr N Kelly, Solicitor, Glasgow. The usual Public Inquiry brief was available. Evidence was given by Mr Telfer andfollowing questioning from me the applicant's agent requested an adjournment which I was content to grant. ThePublic Inquiry reconvened at Edinburgh on 25 October 2010, with Messrs Kelly and Telfer present.

5. In the intervening period I received a report from VOSA's Intelligence Officer for Scotland, who had observed thefirst day of the Inquiry and who wished to take issue with a statement made by Mr Telfer that he had no problemswith VOSA in the operation of his Dutch registered vehicles and that they were compliant. Attached to the Officer's

report were copies of 10 prohibitions issued to the applicant's Dutch registered vehicles. That report and copies of theprohibitions were put into an addendum and copied to the applicant for the adjourned date.

5. The applicant, then the holder of a standard international goods vehicle operator licence for 4 vehicles and 5trailers, appeared at Public Inquiry in 2008 following which I revoked the licence and disqualified the operator andDirector, Mr David Telfer, for 12 months. My written decision, dated 9 December 2008, was in the Public Inquiry brieffor this current case and is held repeated herein "brevitatis causa" (lawyers' words for as if fully written out in thisdecision). It must be referred to for i ts terms for an understanding to the background of the current case - and inparticular paragraphs 21 and following which set out the considerations within my decision. It was a serious drivers'hours case. I record that the operator's stance was that revocation would be hard and would mean selling up, thatanything other than loss of the margin would put him out of business. I decided that it was proportionate to put theoperator of the haulage business given the deliberate breaches of the licence undertakings in relation to drivers'hours and tachographs.

6. The Public Inquiry brief for the instant case also gave notice that information had come to my Office's attention

alleging that Mr Telfer and Avondale had not ceased operating on revocation but had flagged out to Holland anddetails were given. This included the details of vehicle registration numbers and that drivers were based in Scotlandand the work generated at Norfolkline.

7. In an application case, the applicant has to satisfy the Traffic Commissioner as to its repute, professionalcompetence, financial standing and arrangements to meet the licence undertakings. Thus, I had to explore with MrTelfer the apparent flagging out to Holland of which I knew nothing at the last Public Inquiry and what he ( for allpractical purposes Avondale is Mr Telfer) had been doing since I last saw him.

8. No convictions had been declared on the application form and this misleading aspect was also part of the case.That is question 15 on the application had been answered as No.

MR TELFER'S EVIDENCE

9. The vehicles specified on the Avondale European Ltd operator licence were flagged out and registered in Hollandand he continued as a haulage contractor from there doing international work to Scotland. He did this for financialreasons being aware that he would have his licence revoked. His Solicitor at the time had thought there was a 50:50


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chance that he would lose his licence and because he had the vehicles tied up with finance and the drivers tomaintain, he found it very difficult just to shut the doors and walk away. Thus, he was hedging his bets. Asked by hisagent if with regard to the cabotage rules he was undertaken domestic UK/GB work, he said no that they were notdoing any. The question was repeated to him by his agent and he stated that he was not undertaking cabotage workwithin Scotland, or within GB. The work he is doing is for Meseun, Hunter Transport and Norfolkline, all of whomexport loads with fish. They then bring loads back from various companies in and around Bri ttany, Northern France,Dover and thus back into the UK. Some is unloaded in the south of England and they bring loads back up to centralScotland again.

10. His vehicles have been stopped by VOSA, including one which had been stopped he thought five times in thespace of a month. They also get stopped by the French authorities. Nothing has arisen as a consequence of thevehicles being stopped. He said that he wanted to be back into the fold, in the UK for if the export market goes quietthen he would have 2 or 3 trucks sitting doing nothing which would not be viable. He had decided to apply for hislicence again once the revocation was up.

11. He had answered no to the question on convictions in the form, yet there were convictions relating to 10 March2008 but these were discussed at the Public Inquiry of 2008.

12. It was put to him that a letter within the Public Inquiry brief suggested that he was given an unfair advantage bybeing a flagged out haulier, which he denied as flagging out was more expensive with all the complications. Therewas an advantage several years ago but none now. Insurance is more expensive. Having the vehicle MOT'd andregistered is more expensive and all of the administration more so.

13. He accepted that he flagged out under the Euresco name.

14. He was asked about the statement "Mr Telfer merely flagged out to Holland under the name Euresco BV andEsco? BV " both from the same address which he said was incorrect. However, the reference to Euresco BV wascorrect. He is operating vehicles which are right hand drive previously registered in the UK and purchased in the UK,with all the drivers UK men paid from a UK bank account and invoiced and paid to a UK bank, with work fromNorfolkline. Maintenance is also at Scottish repair facilities and the trailers are UK registered and MOT'd at Scottishsites.

15. He was asked about the statement that in most cases the vehicles carry out journeys that are not possiblycomplying with daily driving limits and that the speed limiters are altered to gain an unfair advantage and hedisagreed with those statements. He disagreed that there was an adjustment to allow the winding back of odometerreadings. He also denied that there was pulling of the fuse. He denied there being two drivers using magnets on thegearbox. He denied unfair competition. His position was that he would conduct himself compliantly with the criteria

required to operate within the law.

16. Vehicle registration numbers BXGD71, BVHL78, BVTX13, BVHX49 are all his vehicles. Trai lers C264912,C265159, C113197, C103919 are all his. Three other trailers have been disposed of before being C116269,C172123 and C159710. Thus, he has four trailers. With regard to the l icence undertakings concerning tachographshe was considering putting a contract with someone to analyse the digi cards and the tachographs and he wasthinking himself of going on a CPC refresher course. The drivers need to go on their own CPC courses. He would beprepared to disclose the analysis by a third party contractor to the Traffic Commissioner. He would give anundertaking for that. He would give an undertaking and assurance of compliance. When I asked what theconsequences of the licence not being granted would be, he responded difficult, very difficult. If not granted a licencethen he would probably have to soldier on as they are which is extremely difficult. He said that they had taken loadsof steps with the drivers being asked to keep their previous CMRs, to keep their tunnel tickets, ferry crossing ticketsto show VOSA they can be compliant, and photocopy tachographs so that they can show the French there is nomissing mileage. There is no one else behind his company, just him.

17. He had not mentioned at the previous Public Inquiry that he was flagging out to Holland. He had de-specified twovehicles as his lawyer had not thought the case was going to be favourable. That is why he had flagged them out. Hedid not think the de-specification would happen before the Inquiry.

18. He is involved in Euresco which is like a Dutch forwarding company that is they do all the administration of thetrucks, test them, insure them and he pays them a management fee. He does not own or have a shareholding inEuresco neither does he have a Dutch operator licence. He claimed that Euresco BV were operating his vehicles atthe moment as the trucks were registered to them, insured by them and under their licence. He pays his drivers andemploys his drivers and owns the trucks and trailers. So Euresco just give him discs. His partner Cara Wilson has a10% share in the company and is company secretary. She does not have any ownership of Euresco or any otherhaulage company. The tachographs are sent back to Holland and kept there with Euresco. He is on unreasonablygoods terms with Euresco though there can be debates about charging. He pays a management fee to Euresco andpays insurance and is invoiced by Euresco.

19. I put it to him in my questions that he gained an advantage through being flagged out and he replied that it was

advantage over being disqualified. He admitted that. I put it to him that the arrangements with Euresco were tocircumvent my orders and he said yes. I put it that my orders did not stop him in his tracks and he said no they hadnot.


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20. Effectively, all the time since the revocation he had been operating as a haulier and the bank statements gavesome evidence of that and he agreed. He was operating using Euresco's licence. He had not gone and set up aDutch company or taken an off the shelf Dutch company and set up as a Dutch haulier.

21. The vehicles go to Holland once a week or once a fortnight fairly regularly. They bring a lot of frozen produce outof Holland and back to central Scotland. The only connection with Holland is the management arrangement and thatthe vehicles are registered there and have to go back there for their MOTs and to be taken to a test station if there

are checks. Euresco gets word of that.

22. He said that vehicles were going back and that he was being honest about this. He brought no evidence to showor demonstrate this. It was just his word.He had received legal advice from a Dutch lawyer that the arrangements in Holland with Euresco were legal. He hadnot brought that evidence to the Inquiry.

23. Following my questioning of Mr Telfer there was an adjournment to allow his agent to get better information forme, including information about the legality of his Dutch operation.

ADJOURNED INQUIRY

24. Subsequent to the first day of the Inquiry, I received a report from VOSA's intelligence Officer, Mr Loftus,narrating that he had attended the first day of the Public Inquiry and had heard Mr Telfer's evidence. Mr Telfer had

said that whilst operating the Dutch registered vehicles he had no problems with VOSA and that they were compliantat the moment.

25. Mr Loftus had been into VOSA's systems and found evidence of prohibitions issued to four of the Dutch vehicles.Copies of the prohibitions were attached to his report. His report and the prohibitions were put into an addendumwhich was sent to the applicant indicating that I would consider these at the reconvened Inquiry.

26. The Inquiry reconvened at Edinburgh on 25 October. Mr Telfer was present and again represented by Mr Kelly.Mr Loftus was present for VOSA. Mr Kelly lodged information from Euro Tunnel Freight Services and from BrittanyFerries, a digi printout relative to a prohibition on 27 August 2010, photocopy of an oil leak and an extract fromVOSA's categorisation of defects. He also cited Article 3 of Council Directive 96/26/ EC.

27. Mr Loftus' report was taken as read into the record. He was cross examined by Mr Kelly and also answeredquestions from me. I took the opportunity of asking him what he knew about Dutch operator licensing and he saidthat he had asked the question of the Inspectie Vekeer Waterstaat (IVW) and had asked them if an operator could

add the vehicles of an other to another licence holder. He got an email back from Jelke Jacobi who told him that inHolland you could not add your vehicle to another operator's licence and if you did a fine amounting to severalthousand Euros.

28. Mr Telfer's drivers used Community Authorisations in name of Euresco BV issued to Euresco BV so it should beEuresco BV who is the operator of the vehicles. In Mr Loftus' opinion, Mr Telfer was the operator and not Euresco.The prohibitions name Euresco as the drivers were producing community authorisations in name of Euresco butthese were the vehicles that Mr Telfer was operating.

29. A copy of the email from Jelke Jacobi to Mr Loftus redacted due to there being other information in it of noconcern to this Inquiry, was produced at the Inquiry. To the question from Mr Loftus "Is it possible for Dutch operatorsto lend or allow someone else to use there operators licence or a community authorisation or add vehicles to theirown licence that are being operated by others? What are the penalties in Holland for doing this if it is not legal"(verbatim). The reply was "It is not possible for Duth or foreign operators to lend or allow someone else to use theiroperators licence of community authorisation or add vehicles to their own licence that are being operated by other!!!

The penalty: IVW describes a protocol about the casus to Justice and the Court. Normally, penalties are aboutthousands off Euro's. IVW describes the casus and send this to the Niwo (The Dutch Organisation for licence ofcommunity authorisation). The Niwo is able to determine the licence of community authorisation" (verbatim).

30. As a preliminary matter at the start of the resumed Inquiry, Mr Kelly confirmed that part of the reason for theadjournment was so that he could get evidence of the advice that was given to Mr Telfer about operating in Holland.He had spoken to Mr Patrick Bobeck, a lawyer in the Netherlands, who was about to go on paternity leave but whocould tell him that Euresco was compliant with Dutch law. He advised Mr Bobeck that he was looking for somethingfrom him that could be given to me. Mr Bobeck said he would consider the matter and get back to him. Nothing hascome. Thus, he was not of help. Mr Bobeck was the Dutch solicitor who advised Mr Telfer and Mr Bobeck also actsfor Euresco.

MR LOFTUS' EVIDENCE ABOUT PROHIBITIONS

31. I list the prohibitions narrated in Mr Loftus' report.

BVHL78


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15/11/2008 - to driver Duncan Muir for failing to produce charts/digi card.15/11//2008 - prohibition for headlamp inoperative and for driver's viewimpaired by dream catcher.15/6/2010 - prohibition to driver George Anderson for failing to enterperiods of time. Driver parked up for 9 hours rest and fixedpenalty of 120.15/6/2010 - delayed prohibition for fuel leaking from bottom of fueltank.

BVHX49

13/3/2010 - prohibition to driver Mr McMurray for failing to producecharts/digital card/print-out.

BXGD71

21/8/2010 - prohibition to driver Mr Homer for insufficient weekly restand parked up for 45 hours and fixed penalty of 200.27/8/2010 - prohibition for defective tachograph.27/8/2010 - prohibition to driver Homer for insufficient daily rest in24 hour period (band 0-15 mins).

BVTX13

23/8/2009 - prohibition for two items - worn tyre and anti lock brakewarning light, sequence for trailer.9/10/2009 - tachograph prohibition.6/11/2009 - delayed, brake air reservoir insecure, rear air tank.2/7/2010 - tachograph not sealed.2/7/2010 - delayed for oil leak and brake disc fractured.10/7/2010 - 3 delayed items - oil leak, anti-lock brake warning lightSequence for trailer (x 2).Driver Ian McSeveney fixed penalty of 200 for failing to comply with a prohibition.

32. Mr Loftus was cross examined on various of these.

MR TELFER'S FURTHER EVIDENCE

33. Mr Telfer said that he had taken advice from a Dutch lawyer whose name he could not quite remember as he gottwo Dutch lawyers mixed up but one was Mr Bobeck and they were advisers to Euresco BV. The owner of Eurescowas Mr de Kruijun. He had met them at de Kruijun's office when he went out there to see him. The lawyers did notgive him advice in so many terms, it was just coincidence that the day he was there, that they were there so he metthem briefly. He could not remember the exact words but the gist of it was that it was legitimate. Neither of thelawyers had contradicted anything said. He was not advised to get independent legal advice. He was very satisfiedthat what he would be doing in the Netherlands was compliant. The Community Authorisations were in the name ofEuresco and he was in control of his own drivers and considered that to be compliant. It was put to him that at theprevious day he had said that he was compliant yet his vehicles had attracted prohibitions. His response was for thenumber of times his vehicles had been stopped there wil l always be something that comes out. His vehicles are onmaintenance contracts. They are being stopped on a very regular basis for example, BVHX49 was stopped five timesin six weeks. He did not mean to infer when he said that he was being compliant that he had not had anyprohibitions.

34. He then commented on some of the prohibitions.

35. He produced copy emails showing that BVHX49 for the period July to October had been out of the country byway of Brittany Ferries and BXGD71 had been out of the country using Euro Tunnel. He just picked these at random.Five lorries had been over on Brittany Ferries. They also used ferries between Poole and Cherbourg and Plymouthand Roscoff. They were doing very little cabotage.

36. There had been a change since the first day of the Public Inquiry in that they are still doing European work andbringing back loads from the South of England to central Scotland and then returning to Europe but he had to reducehis fleet and pay off one full time driver. Norfolkline, from whom he gets his Scottish work, are putting all Dutchregistered trucks out of their gate and will not supply them with work from the end of this month. This only applies tothe Dutch registered vehicles. For example, there were 3 Polish and Slovenian vehicles there at the weekend andthis rule will not apply to them.

37. He is operating 4 vehicles under the Euresco authorisation. This decision by Norfolkline had increased his stresslevels. That was why this application was all the more important to him. He would give assurances of compliance tothe Traffic Commissioner. He has started to put drivers on to courses and he and his future wife, Ms Cara Wilson, are


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going to Warrington to the tacho distribution centre for training on 11 November. Mr Peter Ross at Scania is trying toget drivers on to a Newbridge course.

38. He learned of Mr de Kruijun through other hauliers who had flagged out. His friend, Mr Colin Muir of Colin MuirTransport, also told him about him in July or August 2008. He had these discussions because he thought he mightlose his own licence. He arranged to fly to Holland to meet Mr de Kruijun. He could not say exactly when he had hisfirst meeting with Mr de Kruijun but it would probably be about August 2008 and the meeting was to see if he could

flag out vehicles which is what happened. He pays a maintenance fee for which Mr de Kruijun supplies theauthorisations and the trucks are registered to Mr de Kruijun's company. What is in it for Mr de Kruijun is themanagement fee which is calculated by the number of trucks operating and is paid on a monthly basis. 300 Euros arepaid for the first truck, 150 euros for each truck thereafter. Mr de Kruijun supplies the insurance which is extremelyexpensive in Holland and is not included in the 300 Euro payment. He also arranges to have the vehicle tested inHolland. In return for the management fee, Mr Telfer gets the authorisations and advises if there are any problems.The Netherlands do not have discs. The Community Authorisations allow him to run his vehicles. I asked him if it didnot strike him as being a bit odd that he did not have to be a Dutch operator and he said that he could have set up aDutch bank account. He intended to continue in Holland until he got a UK licence again. At the end of October whenthe Norfolkline work dries up, he is hoping to get more European work elsewhere and to go onto forwarding, includingfrom the South of England to see where loads could go from the UK to the continent. He does not operate out ofHolland because he lives in Scotland. He could become a Dutch haulier as the lads who work for them are willing togo away. If he does not get a Scottish operator licence that would be a big worry and his trucks would have to goaway for longer periods. He would operate under Euresco and go further a field to Spain, Portugal and Germanyoperating again under his Dutch authorisation. He would need to speak to Mr de Kruijun about the long term. He lastspoke to Mr de Kruijun about 10 days ago but did not speak to him about the legality of operating. He had left that to

Mr Kelly.

39. He agreed that getting prohibitions was not compliant operating but that when you are operating vehicles thereare things that are outwith your control. He felt that some of the prohibitions issued to him were not val id in theopinion of some of those who serviced and maintained the vehicles.

40. The operation of the vehicles is under his control and he is responsible for where they go, though there were stillthe two vehicles with Norfolkline until the end of the month. These are scheduled by Norfolkline who decide wherethey go and it is Norfolkline who give the vehicles their work. He pays all the drivers.

41. He accepted that a Traffic Commissioner's orders should have an affect and that affect should in his response bepunishment. The practical affects of the revocation and disquali fication of him and Avondale were a severe financialpenalty in that he had to flag the trucks out to Holland which was very expensive He considered that he had beenopen, upfront and honest at the Public Inquiry and in the application and he wanted his UK licence. He had nowdecided that things have to be done properly though he thought that any vehicle with the mileage covered by his

vehicles would get prohibitions. What he did was specialised work and a lot of hauliers do not want to do what hedoes. Norfolkline are exceedingly busy and some hauliers who work for them do not last as the drivers do not want towork at weekends. For the guys that work for him it is a way of life.

CLOSING SUBMISSIONS

42. It was submitted that this application should be granted. The period of disqualification is at an end and there hadnot been disqualification in perpetuity. It was not the case that a disqualified person cannot hold an operator licenceagain. It cannot be that a person who holds or has held an operator licence in another member State cannot get anoperator licence. Good repute and the state of mind of the applicant is important. It was accepted that there wereadverse matters being the history, prohibitions and the VOSA addendum, the conviction for drink driving which wasnot declared in the application but which was known to the Traffic Commissioner at the previous Public Inquiry. Theapplicant had not sought the device of another legal entity and had done it upfront in his own company name and hisown name as Director.

43. Many of the prohibitions were matters in the normal course of operating, for example, headlamp aim and dreamcatchers and Mr Telfer gave an account of all of these. Some of the prohibitions were for matters that he thoughtwere remedied by his contractors. He accepted that as operator he has a duty to make sure that drivers know aboutthe drivers' hours rules and how to comply. The vehicle with the ABS faults had been checked again and again andno evidence could be produced of that as there is no invoice when faults are not found. The evidence of the tachoseals on the face of it appeared serious but Mr Loftus' evidence of speaking with Traffic Examiner Sweetin was that itwas the plate behind the tachograph head. There was no evidence of wires or devices.

44. If the licence was to be granted, the same maintenance providers and maintenance frequency would apply. Hewas able to comply with record keeping as well.

45. Article 3 at paragraph 2 referred to good repute remaining unsatisfied until rehabilitation or any other measurehaving an equivalent effect has taken place, pursuant to the existing national provisions.

46. The question was how to evidence rehabilitation. He had shown compliance, positive action and personalassurances. He has taken action to go on a training course and to train drivers. He had shown samples of ferrycrossings and movements to and from Great Britain and the financial standing information had been in the form of


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trading bank accounts so that it was shown that the applicant was trading, the vehicles were being stopped frequentlyand there was no evidence of breach of cabotage rules. There was no adverse VOSA report although it wasappreciated that it was difficult to investigate breach of cabotage.

47. The matters for credit include that the applicant wants to be a Scottish operator and to be compliant. I was askedto consider giving him an interim licence to see if he could be complaint and it was put forward that I had done this inanother case (that case was cited to me by Mr Kelly). If the l icence is not granted, Mr Telfer would have to re-

examine everything and would have to get legal advice on what would be possible within Europe. The difficulty forhim is that he has been let down by advice he has received in the past. Flagging out is not illegal, so he has notacted illegally. He received advice at the time that what he was doing was compliant with Dutch law. It was thought atthe end of day one that it was likely they would get written advice that it was so. Mr Telfer wants to be upfront. He didnot try to slip under the radar with a phoenix operation. The case should be distinguished by another case heard byme which was that of Lavelle (OM1088028) where I had refused an application by someone who was operatingunder a Dutch licence. Mr Kel ly quoted paragraph 61 of that decision. His submission was that the cases should bedistinguished and that Avondale and Mr Telfer do have repute. Mr Telfer signed the application form, giving theundertakings and giving assurances that he would be compliant and the only way I would know that would be way ofgrant. The consequences of not granting would be very severe. He no longer will have the Norfolkline contract. Thedisqualification has ended and cannot be for ever.

CONSIDERATION OF THE EVIDENCE AND MY DECISION

48. Avondale/Mr Telfer operated goods vehicles in Scotland going abroad with loads from Norfolk line at Larkhall for

many years but unfortunately Mr Telfer did not heed the licence undertakings in relation to drivers hours andtachographs and associated record keeping and there were convictions for a driver driving without insurance andwhilst disqualified. Mr Telfer himself had a drink driving disqualification. There was much adverse evidence and it issummarised in my written decision of 9 December 2008 which gives the context to this current application. Thus I amdealing with an application from a company and its director/transport manager and there is this hinterland of non-compliance involving a range of matters.

49. Mr Telfer excuses his answer to the question relating to convictions (he answered No to question 15) as that thematter of his convictions had been dealt with in the 2008 Public Inquiry and so were known to me. He says theyslipped his mind. I find that disingenuous. But most of all it does not excuse or explain a false answer. I could take hispoint if he had annotated against the answer something along the lines of "No other than the two convictionsdiscussed at the Public Inquiry in 2008" and that would have alerted any caseworker processing this application as tothe existence of the convictions and would have allowed that caseworker in submissions to remind me of theconvictions.

50. In 2008 I was led to believe that a revocation would put him out of business and I found that a proportionate andnecessary outcome to the case. Indeed I wrote in respect of the period of disqualification that "the period I will imposeis 12 months from today. This period reflects that the operator de facto has not been operating for some months nowand must have recognised his fate." Thus I was in ignorance of Mr Telfer's game plan which he had formulated andwhich he had implemented by July/August 2008 to flag out to Holland. Thus the vehicles specified on the Scottishlicence were de-specified and re-registered in the Netherlands. He did this because he considered that he was goingto have his licence revoked.

51. I find that Mr Telfer flagged out his haulage operation to the Netherlands to defeat my orders for revocation anddisqualification and to continue his Avondale haulage business.

52. I find that he operated at least 4 vehicles and 7 trailers and that he did so for hire and reward and taking loadsfrom Scotland to the continent and that as at the second date of the Public Inquiry he was continuing to do so.

53. He was operating under the shelter of Community Authorisations provided to him by Euresco BV and that these

Community Authorisations were presented to enforcement officers such as VOSA in Great Britain to make thoseofficers believe that the vehicles and trailers were being operated by a legal person who had a goods vehicleoperator licence. Neither Mr Telfer nor Avondale ever applied for a goods vehicle operator licence in the Netherlandsand it follows that none was granted.

54. By Mr Telfer's own account to avoid my orders he contacted a man he names as Mr de Kruijn in the Netherlandswho owned Euresco BV and came to an arrangement whereby Mr de Kruijn's company would supply him withCommunity Authorisations for his vehicles and in return Mr Telfer/Avondale would pay a management fee and theadditional outlays of insurance premiums and MOT testing fees. The vehicles and trailers were owned and providedby Avondale, were serviced in Scotland, were driven by drivers who lived in Scotland, were paid in Scotland with allpaperwork done in Scotland, with contracts for at least two vehicles on full time work and under the control ofNorfolkline at Larkhall. The vehicles only went to Holland if a load had to go there or for annual MOT or re-testing.

55. Mr Telfer did not take his own legal advice nor did he get any written legal advice on these arrangements. Hesays he met a lawyer a Mr Bobeck and another un-named lawyer when at Mr de Kruijn's premises. These men were

Mr de Kruijn's lawyers. Mr Kelly has spoken to Mr Bobeck but nothing has come from him. I do not believe that theselawyers acted in any way to give legal advice to Mr Telfer or Avondale that he would be entitled to rely on. Even byMr Telfer's account it was a passing encounter and not the type of session a lawyer would require of a new client


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seeking legal advice. Mr Telfer needed some documentation to get his drivers past the enforcement authorities. Mrde Kruijn/Euresco sold him that. It all happened very quickly and easily. It was so very, very convenient. But it wasnot lawful.

56. The first day of this Inquiry was my first learning of the deal between Mr Telfer and Euresco. Prior to that I wasignorant of the arrangements and of whether Mr Telfer had any ownership of Euresco or had applied for a Dutchlicence in name of Euresco or indeed in name of the other company mentioned within the Inquiry papers - Essco BV.

On hearing Mr Telfer's description of the arrangement with Euresco I became very edgy for it did not seem to be tobe an arrangement whereby Avondale could be said to have a Netherlands operator licence. It was all too easy; alltoo lacking in any official scrutiny or permission including any scrutiny of identify of the operator/licence holder - andas Mr Kelly h ighlighted by his reference to Article 3 "Undertakings wishing to engage in the occupation of roadtransport operator shall be of ...good repute; ...financial standing;..professional competence..." In modern timesgoods vehicle operating is guided by these European requirements yet nothing Mr Telfer had done in flying fromScotland to the Netherlands had required any checking by authority of these requirements. At the adjourned hearingMr Telfer could not produce any evidence of legal operating out of the Netherlands. VOSA's Intelligence Officerproduced the e mailed advice from the Netherlands which bore out that the authorities in the Netherlands do notpermit an operator to allow another person to use its Community Authorisations.

57. Mr Telfer has known that neither he nor Avondale had an operator licence in the Netherlands. I do not considerhim to be the victim of a scam by others - I consider that he found a person who could deliver for him the paperworkwhich would keep him on the road and his vehicles and he himself earning from continuing in road haulage. He didnot probe the legality of that arrangement. It is an arrangement which has served him well but which was moreexpensive than now suits him, hence his desire to have a licence in Great Britain and in particular Scotland where he

lives. His motivation in all of this was to get round my orders and to continue to make money from operating goodsvehicles. There is a scam in relation to the use of these Community Authorisations but it is one in which the victimsare the enforcement authorities within Europe and the public whom they serve.

58. At the first day of the Inquiry Mr Telfer told me that his vehicles did go abroad and that he was not in breach ofthe cabotage rules. There was no proof available and one reason for the adjournment for me to be given such. Thusat the second day sample Ferry crossing and Eurotunnel documents were produced showing that his vehicles werecrossing to the continent. There was also his oral evidence of having contracts from Norfolkl ine for the continentalrefrigeration work. I am able to believe that his vehicles and trailers were engaged in continental work and leavingGreat Britain. Beyond that I can go no further in any finding relative to cabotage.

59. During evidence in chief Mr Telfer was asked if anything was arising as a consequence of his vehicles beingstopped by VOSA and said nothing so far. Mr Loftus who was sitting as an observer at the Inquiry heard this andmade his own inquiries which he collated into the Addendum which was considered on the second day. This revealedthat 10 prohibitions had been issued to four vehicles, for a range of matters including some drivers hours prohibitions.

These prohibitions were considered in some detail with Mr Telfer giving his perspective of them. I agree with him thatsome of these were not very serious and were easy to remedy eg drivers having dream catchers, and I have notedthat none were S marked. For the purposes of this application case I do not feel the need to consider each prohibitionin turn and take a view. What I do take a view of is Mr Telfer's attempt to make me think that his vehicles were gettinga clear run from VOSA ie stopped a lot but no consequences. His answer was misleading at best. He should havesaid yes we have had 10 prohibitions but none S marked, and all attended to swiftly or whatevermitigation/explanation was correct to give a Traffic Commissioner having to weigh such evidence.

60. On the positive I was asked to take into account that there had been open-ness on the part of MrTelfer/Avondale. Different names had not been used to get the licence. This was not an attempt at a "phoenix" andthe bank statements in Avondale's name clearly showed trading as a road haulier and had been disclosed. Thusthere had been transparency. I record that I regard this aspect as one of the few matters in Mr Telfer 's favour ie thathe did not hide behind another corporate veil or other person.

61. I was asked to accept Mr Telfer's assurances that he would be compliant in future and that he would meet the

licence undertakings; that he and his fiance Ms Cara Wilson would be going on courses; that tachographs would beanalysed and he would be willing to undertake that my Office received details of the analysis; that drivers would goon courses. There was no vouching of any of this. I was asked to take his assurances. I was also asked to grant aninterim licence to allow Mr Telfer the opportunity to prove himself. Mr Kelly alluded to my having done that in anothercase which puzzled me as I could not bring to mind any other case comparable to the instant one in which I had usedsuch a regulatory device. The case he reminded me was of such different facts and circumstances and withqualitative differences that I do not consider that my decision in that other case has any bearing on the facts in thiscurrent case.

62. This is an application case and the onus is on the applicant company and its Director to satisfy me in terms ofsection 13 of the Goods Vehicles (Licensing of Operators) Act 1995. Financial standing is satisfied. I could besatisfied in relation to the undertakings relative to roadworthiness of the vehicles.

63. Mr Kelly correctly stated that I was not dealing with a person who had an indefinite disqualification. Here I pauseto remind myself of one feature of my 2008 decision. In that decision I expressly restricted the period of

disqualification to 12 months as I believed that the operator had taken heed already of the seriousness of hissituation and had ceased operating. Thus I gave him credit for respecting my jurisdiction and stopping his operation.


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This serves to explain in part why what might be viewed as a lenient disqualification was imposed. That leniency willalso have been influenced by the demeanour of the operator at the Inquiry.

64. In this application case I am in a very different position. I am dealing with a person who far from respecting myjurisdiction and orders acted to ensure that other than by a tightening of financial margins (I am accepting that itmight have been a tad more expensive to operate through the Euresco arrangement) nothing changed for him. Hisvehicles and trailers stayed on the road and he kept driving them, with the contracts from Norfolkl ine as a stable

source of income. He has not been problem free in his operation given the 10 prohibitions but does appear to havehad the sense to put his operation in much better order than was found in 2008. However given that he is not a UKoperator a full assessment of compliance eludes me. So any positive statement about apparent compliance comeswith a very heavy caveat as to what can really be known about this operatio

65. In this case I have to balance the positive and negative and neutral evidence and see if i t can take me to adecision where I can be satisfied as to repute. I have narrated the evidence highlighting that which is positive,negative or neutral. The weight of the negative far outweighs the positive. The latter is scarce, coming down to i tappearing that the vehicles have been well maintained (as in fact happened under the revoked licence, there was noreal suggestion of material problems with roadworthiness) and that Mr Telfer applied for this licence openly asAvondale. There is evidence of the vehicles leaving the country so the likelihood is that this may not be a seriousbreach of cabotage case. All else is negative coming down as it does to a continuing course of behaviour ofoperating without a goods vehicle operator licence and in respect of 2009 doing so whilst disqualified from applyingfor or holding such in Great Britain.

66. In operating as he has done, Mr Telfer has offended fair competition. Compliant operators spend time and moneyon ensuring compliance. They can lose work to the non-compliant and I do wonder why it is that someone like MrTelfer can get into trouble with VOSA and me yet seamlessly retain contracts with Norfolkl ine. Why I wonder don'tcompliant operators get all that business? I leave that as rhetorical. What is not rhetorical is the importance I place onensuring that fair competition has its place in this regulated environment. Revocation and disqualification of the non-compliant are a means of helping re-balance fairness. Avoidance of such orders strikes at fair competition.

67. In the recent Upper Tribunal case of Aspey Trucks Ltd T2010/49 the Tribunal described Traffic Commissioners asthe gatekeepers to the industry and in relation to repute referred to the "reasonable opinions of other interested, rightthinking people, be they members of the public or law abiding participants in the industry." I have to decide whetherAvondale and Mr David Telfer get back through the gate and into the industry as persons of repute. What perceptionwould there be if I allowed a revoked and disqualified operator who even before my orders were expressed hadflagged out to Holland and had operated under Euresco Community Authorisations doing work hitherto done by it asa Scottish haulier, to come back into the fold? I do not think I would be well perceived if I did that. I think it would beviewed as outrageous by those who operate properly.

68. For completeness I reject the suggestion that I should grant an interim licence and allow the applicant to proveitself/himself. There is no obligation or reasonable expectation of an interim licence in an application case such asthis. There is the significant hinterland of non-compliance. Indeed given that in the next paragraph I will record that Icannot find repute in this case, it would go against the Act to grant an interim.

69. I cannot find that either Avondale or its director Mr David Telfer has the repute which is a pre-requisite to thegranting of a goods vehicle operator licence. It follows that Mr David Telfer does not have the repute necessary tosatisfy professional competence. I have no alternative but to REFUSE this application which I now do.

SUMMARY OF MY DECISION

70. The application by Avondale European Ltd for a standard international goods vehicle operator licence isREFUSED on grounds of lack of repute and professional competence.

Joan N Aitken SSCTraffic Commissioner for Scotland29 October 2010