John Pronk Transport BV v Driver and Vehicle Standards Agency

On an application for the return of an impounded goods vehicle, the owner bears the burden of satisfying the Traffic Commissioner that it probably did not know that the vehicle was being used in contravention of section 2 of the Goods Vehicles (Licensing of Operators) Act 1995. If the evidence does not establish that lack of knowledge, the application may be refused without deciding whether the owner had actual, imputed or constructive knowledge. An appellate tribunal should not interfere unless the lower decision was plainly wrong. A flawed alternative finding about actual knowledge does not undermine a sound primary conclusion based on the failure to prove lack of knowledge.

John Pronk Transport BV, a Dutch haulage company, appealed against the Deputy Traffic Commissioner’s refusal to return an impounded vehicle under regulation 4(3)(c) of the Goods Vehicles (Enforcement Powers) Regulations 2001. The vehicle had been used for illegal cabotage. The Deputy Traffic Commissioner concluded that the company had failed to show that it did not know of the unlawful use and also found that the driver’s knowledge could be imputed to the company.

On appeal, the company challenged the adequacy of the reasons, the treatment of the driver as its agent or employee, and sought clarification about the treatment of empty flower containers carried on return journeys. The clarification issue was academic because it had not arisen before the Deputy Traffic Commissioner and was unsupported by evidence.

1. Appeal dismissed. The Tribunal was not satisfied that the Deputy Traffic Commissioner’s decision was plainly wrong.
2. Regulation 4(3)(c) required the claimant to satisfy the decision-maker that it probably did not know that the vehicle was being, or had been, used in contravention of section 2 of the Goods Vehicles (Licensing of Operators) Act 1995. The burden remained on the claimant throughout. Without evidence capable of showing lack of knowledge, there was no need to analyse whether the claimant had actual, imputed or constructive knowledge.
3. The Deputy Traffic Commissioner had adequate reasons for rejecting the company’s explanation that a late handover and human error caused the illegal cabotage. The timing of the unlawful journeys preceded the alleged handover, and the company produced none of the documentary evidence which might have demonstrated effective systems, training or supervision.
4. The further finding that the driver’s knowledge could be imputed to the company was unnecessary to the decision. Nevertheless, the Tribunal considered that the evidence supported the conclusion that he was a de facto employee under the company’s continuous and effective control. His payment through another company did not determine his true status. The Tribunal also considered that, in the circumstances, the Deputy Traffic Commissioner was not plainly wrong in imputing the driver’s knowledge to the company. The reasoning concerning other categories of knowledge was flawed, but it could not undermine the primary conclusion.
5. The request for clarification concerning incoming international journeys, empty containers and ownership was academic and unsupported by evidence. It was not the purpose of the appellate jurisdiction to provide such clarification.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed on 27 July 2023.
• Deputy Traffic Commissioner for the East of England: application for return of the impounded vehicle refused on 28 July 2022.