Successful Appeal To the Upper Tribunal Against Cabotage Breach Vehicle Seizure
The Appellant in this case, an international finance house specialising in financing Large Goods Vehicles, were the owners of a vehicle leased to an international haulage operator based out of Ireland. In late-2019 the vehicle was seized by DVSA for breach of Cabotage regulations and in due course a Public Inquiry was convened to hear the application for its return. Our client, being the owner, was the only person entitled to seek the return; they instructed Simon Clarke to represent them before the Traffic Commissioner.
Unfortunately the Traffic Commissioner refused the application for the return of the vehicle, so our client appealed that decision to the Upper Tribunal. Again Simon Clarke represented the appellants. He successfully argued that the Traffic Commissioner was wrong to conclude that the appellants had failed to make proper enquiries of the lessee so that they had imputed knowledge that the lessee was using the vehicle in breach of the Cabotage regulations. Rather, the Traffic Commissioner had “….erred in law or was plainly wrong” in finding that the enquiries made by the finance house were inadequate; the “….TC’s finding that the appellant had wilfully shut its eyes to the obvious is unsustainable.”
This is an important decision on Ground C of the regulation (Reg.4 of the Goods Vehicle (Enforcement Powers) Regulations 2001) dealing with the return of seized vehicles. Ground C provides that a vehicle can be returned to its owner only if they “…did not know that it was being, or had been, used in contravention of section 2 of the 1995 Act.” This Ground is available to the owners of leased or hired vehicles and usually applies where the vehicle is seized for breach of the Cabotage regulations. An owner is required to show not only that he did not know of the unlawful use to which the vehicle was being put, but also that he made proper and effective checks before leasing or hiring the vehicle to the operator, that the operator was a lawful, reputable and compliant operation. These checks are essential for an owner because an owner will be found to have “imputed” knowledge of the unlawful use if he has “…wilfully shut his eyes to the obvious” or has “….wilfully and recklessly failed to make such enquiries as an honest and reasonable person would make”. And “imputed” unlawful knowledge means no return!
Smith Bowyer Clarke’s Vehicle Seizure team, led by Simon Clarke, has a strong track record in obtaining the return of seized vehicles. If you need urgent advice contact us immediately by using the enquiry on our home page or by telephoning our 24-hours number
Case DetailsCase Name: Successful Appeal To the Upper Tribunal Against Cabotage Breach Vehicle Seizure
Case Date: January 2021
Case Type (info): Upper Tribunal