In the world of moving goods by road, following the rules is super important. But it's not always easy to know what's what in the legal world. That's why we sat down with Richard Wadkin, a top-notch lawyer who knows all about transport laws. He's been doing this for ages! He's here to tell us about the ins and outs of making sure everything's legal when it comes to moving stuff on the road. Let's dive in and hear what he has to say!
Introduction and Background:
Question 1:
How did your background lead you to specialise in transport law, and how long have you been practising in this field?
Answer:
I worked as a partner at Shulmans LLP solicitors in Leeds for 36 years.
I started prosecuting for what became VOSA and is now the Driver and Vehicle Standards Agency (DVSA). That gave me exposure to the world of transport law and the detailed law which applies to different aspects of it. The need for detail, as well as the court work which it involved, was something that I found really interesting, and it led me to a lot of high-profile work, including one case which went to the highest court in the country, the House of Lords (now the Supreme Court).
I moved away from prosecution work some years ago and have continued to use the knowledge I gained to advise and represent operators and drivers in the Magistrates' and Crown Courts, public inquiries, and driver conduct hearings before the Traffic Commissioner, as well as in the Administrative Appeals Chamber of the Upper Tribunal (on appeals from decisions of Traffic Commissioners).
I now work with a specialist road transport practice, Pellys Transport & Regulatory Law, which has an outstanding reputation for carrying out this sort of work. This has allowed me to work exclusively in this area of law.
General Insights into Transport Law:
Question 2:
What are the common legal issues in the road haulage industry, and how do regulatory changes usually affect HGV operators?
Answer:
Work in this area is always interesting in the variety of issues and challenges it throws up.
My day-to-day work includes advising operators on public inquiries they have been called to and preparing the documentation required for the hearing and the detailed submissions that I like to send to the Traffic Commissioner beforehand so that they can start to understand the issues from the operator's point of view. Undertaking the preparation work early always helps secure the best outcome possible.
I also often advise clients who are required to submit tachograph data to the Driver and Vehicle Standards Agency (DVSA) or are called to interviews under caution with the Driver and Vehicle Standards Agency (DVSA), police or Health & Safety Executive or where clients are required to meet with a DVSA officer to complete a Traffic Examiner Visit Report, a Maintenance Investigation Report or to submit responses to a Desk Based Assessment Questionnaire.
More recently, there has been a spate of enquiries about the penalties imposed by the Border Force for the carriage into the UK of clandestine entrants (illegal immigrants) (even if this is unknown to the operator and driver) for which the penalties are now very high (up to £10,000 per person carried for the operator and the same for the driver, with the operator being responsible for both if the driver does not pay). Preventing this from happening in the first place and getting everything in place to lead to reductions in the penalties if it does happen is really important.
Recently, I also secured the return of two trailers for a vehicle hire company that had been seized by Border Force from my client's customer and the return of a vehicle that had been impounded by the Driver and Vehicle Standards Agency (DVSA).
Specific Legal Challenges:
Question 3:
Could you share a challenging case you've worked on, its resolution, and common legal advice you provide to HGV operators regarding operator licence compliance?
Answer:
A client received a letter from the TC's office indicating that the TC proposed to revoke its operator's licence due to concerns that it was using it to operate vehicles for another business.
The operation of vehicles authorised under an operator's licence is crucial to the business, without which it would cease trading. Retaining its operator's licence was vital to the operator remaining in business.
Detailed instructions were taken, which led to a response, including a request that the issues of concern be considered at a public inquiry. This led to a Driver and Vehicle Standards Agency (DVSA) enquiry, all tachograph and timesheet information being sent to the DVSA, and advice was given about whether the client should submit to the interview under caution requested by the DVSA. This was declined.
The DVSA officer still wanted to meet with the drivers concerned, so I arranged for a transport consultant to attend those meetings and take detailed notes. All of this led not to a public inquiry but to the operator being called to a Preliminary Hearing for the TC to consider whether to call a full public inquiry.
Very often, as was the case here, preparation for a Preliminary Hearing should be as detailed as the preparation required for a public inquiry.
All matters were aired at the hearing, and the TC was satisfied with the explanations he received. He decided not to call the client to a public inquiry.
Preparing for all matters as they arose included assistance from transport consultants to enhance the client's processes for managing drivers' hours compliance and maintenance arrangements. Therefore, the client significantly benefited from the process, coming out with more robust systems and greater confidence in its compliance moving forward.
My general advice to operators regarding compliance is encapsulated in the phrase: "whilst compliance costs, non-compliance costs more".
Maintaining good systems and compliance with the requirements and responsibilities of an operator holding an operator's licence can prevent the disruption and risks to the licence and the operator's business that an investigation and subsequent public inquiry might hold.
I would add to this that if issues do arise, whether by way of an investigation, a Desk Based Assessment or a public inquiry, the sooner that specialist legal advice is received and acted upon, the better the ultimate outcome is likely to be. The longer the time that is available between advice being received and the public inquiry, the more work can be done to improve the position and the better the prospects for a good result. This is the 'golden period' of time. Don't miss that opportunity!
Advice and Best Practices:
Question 4:
What best practices do you recommend for ensuring compliance with transport laws, and what steps should HGV operators take if they encounter legal issues?
Answer:
All of the issues that operators are required to cover to be compliant with their licence responsibilities and the legalities of running vehicles on the roads are important. Failing to comply can put the licence at risk.
Different issues can arise in different circumstances, but common points which do arise relate to safety inspections (or 'preventive maintenance inspections') not being carried out within the frequency set by the operator, the inspection being incomplete, defects being found on inspection which should have been picked up by drivers on their daily walk round checks (so this calls into question the effectiveness of the daily walk round checks), meaningless, or no, brake tests being conducted (for example roller brake tests should be conducted with the vehicle in a laden condition and operators should understand how to interpret brake tests and act upon them) and the lack of adequate systems for checking tyres and re-torquing wheels after removal.
Prevention is always better than cure. Getting proper systems in place and operating them fully and effectively will prevent issues arising in the first place. However, if issues do arise, getting advice on dealing with them at an early stage is important.
For example, a roadside prohibition or fixed penalty notice might appear to be a relatively minor issue, but dealing with it proactively (which might involve challenging it) may well influence the Driver and Vehicle Standards Agency (DVSA) in how they choose to investigate it and how effectively it is addressed if the case eventually comes to a public inquiry.
Personal Experience and Opinions:
Question 5:
What recent significant changes in transport law have you observed, and what aspect of your work do you find most rewarding?
Answer:
In many ways, it is less about the changes to the law and more about the way the law is interpreted, which creates the biggest challenge to keep up to date. In this area of work, how Traffic Commissioners interpret the law and pursue particular topical issues and how decisions of the Upper Tribunal affect the interpretation of the law significantly impact how operators are expected to manage their compliance.
Recently, particular issues have arisen regarding the use of agency drivers and the systems which operators are expected to have in place to ensure compliance with a number of relevant pieces of legislation. There has also been an emphasis on checking on systems to prevent and deal with bridge strikes, whether the correct type of licence is held (whether a restricted or a standard national or international licence is needed for the particular activity being undertaken) and whether an operator can keep more vehicles than it has authorisation to operate.
Keeping up with these developments and evolving legal interpretations makes this area of law really interesting from the lawyer's point of view.
Looking Forward:
Question 6:
What upcoming legal changes should HGV operators be aware of, and what advice would you offer to new solicitors entering the field of transport law?
Answer:
Topical issues always hit the headlines from time to time, and this will continue as matters are considered at hearings before TCs and the Upper Tribunal.
The law regarding penalties for carrying illegal immigrants, however innocently, has been tightened and is likely to continue to be the focus of further scrutiny in view of the political prominence such issues receive.
Otherwise, employment laws relating to the engagement of agency workers remain a significant issue, and TCs are on the lookout for such matters.
As to advice for solicitors looking to work in transport law, I would say that it is one of the few areas of legal practice that actually involves deep consideration of legislation and case law on a day-to-day basis. There are still only a relatively few specialist practitioners in this area, and a positive outcome can be critical to the continuation of a client's business.
Closing Remarks:
Question 7:
Do you happen to have any other information you'd like to share with our readers, and how can HGV operators and others in the industry contact you for legal advice?
Answer:
What really drives the work I do is understanding the commercial context in which a client operates. The specific issues that have arisen and led to the need for legal advice are the reasons I get involved at all. Finding solutions that work for the client and its business and adding commercial value provides the main source of professional fulfilment.
Thank you for the opportunity to share these thoughts with you. I am happy to discuss any issue on an initial 'no obligations' basis and can be contacted at richardwadkin@pellystransport.co.uk or on 07770 938411.
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