Interlink Express Parcels Ltd v Night Trunkers Ltd & Anor

For the purposes of the Goods Vehicles (Licensing of Operators) Act 1995, section 58(2) uses “servant” to attribute responsibility for actual vehicle use and related criminal offences. It includes a borrowed or temporary deemed servant for whom the putative employer would be vicariously liable under the control principle. The decisive inquiry is the right to control how the vehicle is operated, not who pays, engages or disciplines the driver. Actual exercise of control is unnecessary. On the facts, the operator had that right, so the agency issue did not need determination.

Interlink used its own licensed goods vehicles to provide a parcel trunking service. Night Trunkers supplied drivers under an agreement dated 1 May 1998, while Night Trunkers recruited, paid and disciplined them. Ferris J, on a preliminary issue, declared the agreement void, unenforceable and of no effect because its performance required contravention of section 2 of the Goods Vehicles (Licensing of Operators) Act 1995. The appeal concerned whether the drivers were deemed to be Interlink’s servants under section 58(2), or alternatively its agents, for identifying the statutory user.

1. Appeal allowed unanimously. The Court declared that Night Trunkers’ drivers were Interlink’s servants for the purposes of section 58(2) of the Goods Vehicles (Licensing of Operators) Act 1995 while operating Interlink’s vehicles under the agreement.
2. Section 58(2) principally identifies the person to whom responsibility, including criminal liability under sections 2 and 3, attaches for the actual use of a vehicle. It does not identify the user for tachograph rules, employment protection, drivers’ hours or drivers’ qualifications.
3. Arden LJ held that “servant” should be construed in its statutory context using tort-law concepts. It includes a temporary or borrowed servant for whom the putative employer would be vicariously liable under the control principle in Mersey Docks and Harbour Board v Coggins & Griffith [1947] AC 1. A contractual transfer of employment, or the driver’s consent to such a transfer, is unnecessary. Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 and Ready Mixed Concrete (East Midlands) Ltd v Yorkshire Traffic Area Licensing Authority [1970] 1 AER 890 supported that approach.
4. For temporary deemed employment, the paramount inquiry is the right to control the employee’s method of work, including how the vehicle is operated. Actual exercise of control is unnecessary. Payment, engagement, dismissal, discipline and allocation of drivers are relevant but subsidiary. Interlink supplied the vehicles, gave operational instructions, controlled routes, specified qualifications and training, monitored vehicles and could trigger disciplinary action. Those matters established the requisite right of control despite Night Trunkers’ continuing employment functions.
5. The alternative agency issue did not arise. Arden LJ expressed no final view, although she provisionally considered the relevant proposition in Sykes v Millington [1953] 1 QB 770 correct in context. The Court did not determine the effect of any breach of the 1995 Act on the agreement. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 360, the appeal was allowed and a declaration was made that the drivers were Interlink’s servants for the purposes of section 58(2) of the Goods Vehicles (Licensing of Operators) Act 1995.
2. High Court of Justice, Chancery Division: Ferris J ordered on 3 May 2000 that the agreement was void, unenforceable and of no effect because it could not be performed without Night Trunkers contravening section 2 of the 1995 Act.