• Home
• Used vehicles
• Product news
• Dealer news
• Compliance
• Buying advice
• Archive

Learning the Hard Way

ASALUTARY lesson was learnt by Mr. C. W. Raikes-May. managing director of Elkstone Quarries, Ltd., of Swindon, when he appeared before the acting Western Licensing Authority, Mr. C. J. Macdonald, recently, to apply for a B hiring allowance to operate 20 tippers to carry his company's goods within 100 miles of Swindon.

The company were due to appear before Mr. S. W. Nelson, the Licensing Authority, to make an identical application last May, but a few days before the application was due to be heard their solicitor met a tragic death and as a result, the applicants were not present in time for the hearing of their case and the application Was refused.

They made a fresh application and, with no legal representation; Mr. RaikesMay appeared in the Cheltenham court to make the second application. The opposition was formidable. He was faced with 15 listed objections from independent operators, plus British Railways, all objectors being represented by advocates seasoned in road transport matters, Itwas 'obvious from the beginning of the cast that Mr. RaikesMay was not familiar with licensing court proceddre.. After formal questions about his company, put by Mr. Macdonald, he was asked to produce certified figures. This he could not do. Instead, he referred the Authority to bulky tiles containing invoices:and other documents. Asked 'if he had a itatemerit Signed by a chartered accountant showing the amount of business done, Mr. Raikes-May said, "But surely 1 am the person able to answer all your questions. I am a director and shareholder."

Asked to proceed with his application, he said that his company wanted to hire owner drivers as and When required. When told by the Authority that that was what he was already doing,he replied, " The point is that you cannot always get these vehicles when you want them."

Vague Dates Asked, then, to produce evidence to prove non-availability of vehicles, Mr. Raikes-May was only able to give vague dates and make general statements. But his troubles were only just beginning. He was closely cross-examined by Mr. 1. R. D. Jenkins for the independent objectors, who immediately questioned him about B hiring, with all its implications. 1 quote below an extract from the cross-examination:

Mr. Jenkins: You want to hire owner drivers under a B licence hiring allowance. That means that the owner driver is not going to be your servant?

Answer: Yes.

Q.: The vehicle is going to he the property of the owner driver?

A.: Yes.

Q.: Well, I may be wrong about this hut I suggest to you that that is illegal?

A.: But surety not if it is sanctioned by the Ministry of Transport.

1326

It was then explained why the Licensing Authority could not sanction anything that was not permitted by the law— vehicles were usually hired without drivers. Mr. Raikes-May reiterated that he wanted, really. to.hire owner drivers. There were some 20 or so vehicles in and around Swindon issued with short term B licences and every time a special job came up they had to apply to the Authority for short term licences to do the work.

Said Mr. Macdonald, "You want to embrace the lot. You want to put an umbrella over them and say, 'These are mine.'"

Then Mr. Jenkins suggested that Elkstone did not really want a hiring allowance at all; B licences were the• thing. Mr. Raikes-May replied "Yes, to work as and when required for me."

Mr. Jenkins then went on to suggest that the answer was really that Elkstone should be supporting applications made by the tipper operators now running under, short term licence, that his company wished to employ.

Not Put Off But Mr. Raikes-May could not be put off. He, ironically, said that if any of them came into the court they " did not stand a lot of chance." It was not for any specific owner driver that the hiring allowance was wanted. He ended his cross-examination: " I am here to see whether the Licensing Authority will sanction it or not."

Of course, with no certified figures and no supporting witnesses the case virtually ended there. Submissions of no case to answer were successfully made by the objectors. Mr. Jenkins further pointed out section 164 (I) of the Act:— " Subject to the provisions of this Part of this Act, no person shall use a goods vehicle on a road for the carriage of goods . . . (a) for hire or reward; or (h) for or in connection with any trade or business carried on by him, except under a licence granted under this Part of this Act."

The above subsection is the kernel of the matter but the sting in the tail, so far as Elkstone's application was con cerned, is sub-section (3) of the section:-

" For the purposes of this part of of this Act, the driver of a vehicle, if it belongs to him or is inhis possession under an agreement for hire, hirepurchase or loan, and in any other case the person whose agent or servant the driver is, shall he deemed to he the person using aw vehicle."

If the operators concerned are owner drivers, they would be operating under the umbrella of Elkstone Quarries and, in those circumstances, they could not possibly be doing the work legally.

Conversely, if the view was taken that the drivers were self-employed and wished to work for Elkstone Quarries, then no grant could be made to Elkstone. The operators themselves would would have to apply for licences.

Nowhere in the Act is there provision for a Licensing Authority to grant a hiring licence, in such general and loose terms as that applied for. Though he refused the application, Mr. Macdonald served out some sound advice to Mr. Raikes-May. He told him to take note of the pamphlets available to prospective applicants and, if necessary, to seek help from the Licensing Authority's office.

He continued, "The fundamental basis of any application Must be: 1. What is the quantum of material to be carried? 2. Who does it belong to? 3. Does it require a hire and reward licence? 4. How has it been carried in the past?

If you want to go in for a system of hiring, then you have to recognize that you will have to be the employer of the driver—paying National insurance, P.A.Y.E., and so on."

Mr. Raikes-May came out of the court at Cheltenham a very enlightened min, though without the facilities he hoped to obtain. A further application is to go in to the Western Authority soon, the precise nature of which will be decided after the company have taken legal advice. Whether it will be heavily opposed by tipper operators in the area may depend, I understand, on a meeting that is to take place between the parties.

If the case comes before the Western Authority himself, then evidence of need will have to be good, objectors or no, because Mr. Nelson, a week before the Elkstone case was heard, stated (he was dealing with an application from a Bristol haulier) that he was not satisfied that there was a need for any more tipping vehicles in his area.

The moral to all this is. seek legal advice and. if possible. legal representation.

That Saving Clause

AST week's issue of The 1-0 Commercial Motor contained a report of a "strike" of owner-driver hauliers working under contract for the Kingsbury Concrete, Ltd., at their Ranskill works in Nottinghamshire. The trouble was over their dissatisfaction at the rates paid by the company which, they contended, were uneconomical at about 8d. per ton below the average for the district.

The men concerned had individually signed contracts with the company, on the strength of which they obtained contract A licences to do the work.

It is common knowledge that if one of the contracting parties does not fulfil his part of an undertaking given in an agreement, he stands in breach and the other party can seek legal remedy. On the face of it, it would seem that the hauliers concerned in this dispute, by refusing to place their vehicles at the disposal of the company, could find themselves in trouble —possibly in the civil court.

I am told, however, that there is a clause in the agreements between the hauliers and the company that payment for work shall be "as mutually agreed from time to time between the parties," or words to that effect. If that is so, then the position is very different, and negotiation—collectively or individually—is the only answer.

Some of the hauliers concerned come within the jurisdiction of the Yorkshire Licensing Authority, Major F. S. Eastwood, who at the end of June, almost as if he anticipated trouble of the kind, published a specimen-type contract that. in future, he would require before granting a contract A licence to anybody. Major Eastwood's "contract "contains a clause that does mention—it is clause t hree--tha t "The Hirer guarantees, subject to fluctuation of demand for his products and subject to the vehicle being kept in good running order, a minimum monthly payment of £......"

I notice that during July and August. contract A licences were granted to several hauliers authorizing them to carry goods for the Kingsbury Concrete. Ltd. I presume that none of these hauliers are involved in the stoppage!

Continuation Application

AN interesting little decision was delivered recently by Mr. D. I. R. Muir, the Metropolitan Licensing Authority. He had heard an application by Alfred Bell, Ltd., the

Newcastle contractors, who were

applying for three A licensed vehicles

to operate from their London base.

The company had made an application earlier in the year when Mr. Muir granted two vehicles—half the number applied for —stating that he was really uncertain as to the quantum.

Bells immediately put in another application, this time for three vehicles, which they considered to be the balance of the first application, plus an additional vehicle, because of the heavy figures they were able to produce.

When the opposition (the British Transport Commission) heard that, apart from the applicant's own company witness, they proposed to call no supporting evidence, but intended to rely on figures, they became a little apprehensive. Mr. Timmons. on their behalf, submitted that this could not be a "continuation " application. The matter should be treated as a new application for three vehicles and should be dealt with on its merits—in other words, the applicants had to prove need. If they were dis-. satisfied with the decision in the previous application, they should have appealed against it. In his decision, Mr: Muir told Mr. Timmons that his criticisms should have been directed towards him (Mr. Muir) rather than towards the applicants. It might have been better to have adjourned the previous application. Bells could have brought a witness; but he was not prepared to say that their application must flounder because they had not done that.

The applicants, he said. had rightly construed his decision as an invitation to supplement the evidence given before. "I shall grant two, rather than three, vehicles, to emphasize the fact that I regard this Inquiry as an extension of the proceedings rather than a new hearing."—very neat. Mr. Muir.

Consequential Penalties

ALTHOUGH not strictly a licensing matter, the recent prosecu

tions against Siddle C. Cook, Ltd., of Conseil, which I reported from Knaresborough. Yorkshire, last week, could well have their sequel in the licensing court.

The cases—the issues have been efore the court on two occasions—involve vehicles claimed, at one time, to be tractors and trailers (which, as such. required attendants), but when the magistrates announced last April that they could not find that the vehicles were tractors and trailers, the Northern Licensing Authority, Mr. J. A. T. Hanlon. acting outside his traffic area, himself prosecuted the company before the same magistrates for overloading articulated vehicles—the first time this has ever been done, I understand.

Judgment has not yet been announced, and the matter, therefore, is sub judice, and to comment on the facts of the case would be most improper at this stage. There is, however, a little "reading between the lines" to be done.

Mr. Hanlon has yet to give his decision in an application by Cooks, who, as long ago as March, applied to transfer special A trailers to their ordinary A licence. He is presumably waiting for the outcome of the prosecutions before giving his decision, and perhaps—as in the Dent revocation case—if the company "go down" at Knaresborough, they will either have their application refused, or they will be served with notices asking them to show cause why their licences should not be revoked or suspended.

Trailer Weights

TRACTORS, trailers and adieu'. listed units have figured in the news quite a lot during the past month or so. The latest booklet— volume 31, part 9—of reported Traffic Cases details some nine cases that have been dealt with by the Transport Tribunal. Among the nine is the appeal of the B.T.C. against McKelvie and Co. (B.M. and P.). Ltd. This concerned an application in respect of seven special A licensed trailers which McKelvie wished to have placed on A licence. In common with many other operators, they had replaced the original trailers with heavier ones. They claimed at a public inquiry that the original special A licence specified the types of trailer and registration numbers only, and did not mention any weights. They were, therefore, entitled to rely upon figures. in support of the application, in respect of the heavier trailers they had been operating. The objectors argued that traffic carried on the heavier trailers ought not to be taken into account, but the Scottish Licensing Authority rejected this contention and granted the application.

Here (said the Tribunal in their judgment) we have to deal with a precise point of the law. "The point of law is a perfectly simple one. When a licence includes a trailer without any reference to the unladen weight. is it wrong for the licensee to use a trailer heavier than one he was using when the licence was granted?" They (the Tribunal) asked themselves what a licence in that form authorized the licensee to do and what vehicle was he authorized to use. They ruled that, provided the operator was only using the vehicle authorized under the licence, he could not possibly be doing anything wrong by using trailers of greater weight.

At the same time, on almost the same day as the Tribunal were giving the McKelvie decision. Mr. T. H. Campbell Wardlaw, in making an application in Newcastle upon Tyne. before the Deputy Northern Licensing Authority, Mr. G. W. Duncan, was urging the same argument in an application by Siddle C. Cook, Ltd.. to transfer two special A trailers on to an A licence.

Substantial Opposition The opposition to this application, and

to Mr. Wardlaw's arguments on the subject, was substantial. The objectors argued that the original trailer weights could only be granted. Mr. Duncan refused the application.

The special A licences of Cook's still had some weeks to run at that time and, hearing in the meantime of the Tribunal's decision in McKelvie, Mr. Cook continued to operate heavier trailers—in fact, he fabricated a veritable " giant" for this purpose—and applied again to transfer heavier trailers on to his A licence.

As mentioned previously in this column under the heading. "Consequential Penalties," the application came before Mr. Hanlon. who has adjourned his decision until the result of the Knaresborough prosecutions are known.

Up to this time, Mr. Wardlaw. for various clients, had always had to argue that trailers of any size could be substituted for those specified in special A licences where no weights are shown on the application form. He first argued the point at Bishop Auckland as long ago as November, 1959, in an application by J. and C. Elliott (Bishop Auckland), Ltd., who wanted to have licensed one lowloader trailer of an unspecified weight.

However. Mr. flanlon ordered, in the

court, that the weight of the trailer should be inserted, and directed that particulars of trailer weights must, in future, be specified in his area. But solicitors are always acting under the instructions of their clients, and when H. L. Walker, Ltd., of Thornaby-onTees, applied to the Northern Authority at Stockton to vary an A licence by the addition of an articulated unit which, at that time, was specified in a special A licence, Mr. Wardlaw had to face an argument, put up by Mr. Alfred Darley. for FL L. Walker, that the McKelvie appeal decision allowed Walkers to substitute a longer and heavier unit than originally granted to them under special A licence. But in this case the circumstances were slightly different. There was a weight shown on the special A licence, which had been placed there by the Licensing Authority.

The Tribunal, in their summary of conclusions reached after hearing H. L. Walker's appeal, spoke out strongly against the practice of insisting on trailer weights being put on application forms. They said: "The Licensing Authority cannot cut down the rights given by the Act to the holder of a special A licence. He (the applicant) is entitled to use a specified number of trailers and there is no limitation on the weight of any one trailer "—a very rewarding pronouncement to Mr. Wardlaw who, ironically. was in this instance against Walkers.

I should point out that the Tribunal would give no judgment in the Walker appeal because the licence, the subject of the appeal, had expired and another one subsequently granted; the appeal became one against a decision which no longer had effect, and no order made by the Tribunal could have any effect. The Tribunal, however, because a point of law of general importance was raised. stated their opinion on that point of law.

Road and Building Materials Battle

A S clearly illustrated by the pre vious paragraphs, solicitors are under an obligation to carry out their clients' instructions (after all, they are paid to do so by their clients) and it is not uncommon to find an advocate, in one case, placing before die bench a particular point of view for his client and, then, in the succeeding case, to be arguing against that very point on behalf of another client. It is accepted practice in every court in the Kingdom. The Commercial Motor recently

carried a report of a rather sharp exchange between the Northern Licensing Authority, Mr. Hanlon, and Mr.

Campbell Wardlaw during a public inquiry held in Newcastle. The back ground to the matter is interesting.

In the middle of July a Northern area haulier was prosecuted at Consett, Co. Durham, for carrying goods other than those specified in his licence. The vehicle was restricted to the carriage of. among n30 other commodities which are not relevant, " building materials." Apparently it was discovered to be carrying various items of steel and steelwork for the Consett Iron Co., and the licence holder was accordingly prosecuted.

The charges were dismissed by Consett magistrates after Mr. Wardlaw, on behalf of his client the defendant, had submitted that the prosecution were unable ts.) prove that the commodities being carried on the vehicle were not building materials.

A few days later at a public inquiry, during two applications made by Mr. Wardlaw on behalf of his clients, Mr. Hanlon referred to the Conseil prosecution.

The first application was by Scott and, Dixon, of Felton, who were requiring a B licence to carry, among other things. "road and building materials." The reason for the application was to enable Mrs. Dixon to continue a small business that had previously been carried on by her late husband.

Excluded from Licence

At the conclusion of Mrs. Dixon's evidence, Mr. Hanlon said to her: "Mao *m, do you know that this week a haulier with road and building materials specified on a B licence was charged with carrying defective plate. steel plate, etc.. and was aequitted because your solicitor said that it had not been proved that these things were not building materials? So I cannot grant you the licence for road and building materials until you have proved, by producing evidence, or witnesses to show what that means. I am afraid I shall have to exclude that from your licence."

Mr. Hanlon went on to say that he would not grant "road and building materials" until he was satisfied what it meant. If the contention of the defence in the Consett court was correct, "anybody could carry anything." It made a ridicule of the licensing system. The application was granted by Mr. Hanlon, excluding "road and building materials."

Later on in the same inquiry W. Richardson (Forest Hall). Ltd., applied to vary a licence by adding two vehicles to carry among other things, "road and building materials."

Same Line Mr. Hanlon adopted the same line with the applicant's witness. He said: "You see. your solicitor, who appears for you today, said the traffic examiner was unable to prove that steel plate, etc.. and manganese slag, were not building materials."

He continued: "So if I grant you this, it means you can actually carry anything you like—steel scrap. steel plate, flanges— anything you like, and call it building materials." After explaining that he had to have proof of what the building materials were, he said that he could not grant a licence for road and building materials. " If I did, it means you could join the queue at the Consett Iron Co. tomorrow." he added.

It was at this point that Mr. Wardlaw interrupted and told Mr. Hanlon that in Mr. Wardlaw's opinion his remarks were highly improper. Mr. Hanlon told Mr. Wardlaw that he could not address him in such terms, and then instructed the court shorthand writer not to record certain remarks that were "irrelevant to the proceedings."

At this stage, Mr. Wardlaw refused to take any further part in the matter and Mr. Hanlon, after asking certain further questions about road and building materials, delivered a fairly long decision, at the end of which he refused the application.

Meaning Challenged In his decision, Mr. Hanlon said: "Since 1933, road and building materials have been accepted as having a general meaning. It appears that this is likely to be challenged in the future, as a result of a case which occurred in the Northern area. It is my duty to apply my knowledge to what goes on. I have a respons:bility for enforcement through the section which is provided for that purpose, and for the prosecution of people who do not abide by the conditions of licences."

Mr. Hanlon then gave a brief n'sume of the case before the Consett justices, and concluded: "ft would be quite impossible for me to administer the law, Sc) far as conditions are concerned which involve road and building materials. In the circumstances, therefore, it is necessary for me to ask anybody who says affirmatively, 'I want to carry road and building materials' to prove what it amounts to."

In concluding, Mr. Hanlon said: " Whilst I do not pass any comment on what the justices have done in another place, it is my duty to find out what people want to do; to get declarations from them; and to act on the evidence. I shall have to act on the evidence in the future. That is all I say."

L.A.'s Responsibility Not only has Mr. Hanlon a responsibility for enforcing the law in his area, he has also to see that his courts are carried on in a dignified and proper manner. To do this, he obviously has the final say in the conduct of the application. The proceedings are public and provision is made for verbatim notes to be taken in order to provide a permanent record in case of an appeal. It is unusual to order the shorthand writer to stop recording the proceedings. To consider. in a licence application, arguments which have been made previously in a different context might be considered as open to question.

Mr. Hanlon's decision not to grant road and building materials without specific evidence will, unless he relents, have to stand—unless and until the question is put to the test before the Transport Tribunal. In the meantime, he has virtually invited every operator, whose licence bears the condition "road and building materials." to carry steel plates. etc.