Called to a public inquiry? How best to consider taking road transport legal advice
It is not just crooked, careless or complacent truck operators that find themselves on the wrong side of the law. Even diligent and well-managed businesses occasionally trip up and need legal advice to deal with infringements, whether committed on the road or in their depots.
A wheel-loss incident out of the blue could bring an operator’s world crashing down. A DVSA inspection may result in a call to a public inquiry (PI) to deal with shortcomings in record-keeping or the maintenance regime, and could result in a firm’s O-licence being suspended, curtailed or revoked.
The venue could be a magistrate’s court, or even a crown court for overloading or falsification of tachograph records, for example. Operators who have been convicted in court must inform the traffic commissioner (TC), which in turn could lead to a PI to assess their fitness to continue to operate.
Do I really need a lawyer?
Should truck operators ever choose to go it alone? If appearing in a magistrates or crown court, operators who chose to represent themselves are running a particularly high risk since magistrates, high court judges and jury members may have meagre knowledge of the transport industry. A professional representative with transport knowledge may enlighten them, perhaps helping them to gauge the true safety implications of a particular offence.
At a PI the operator can assume that the TC has a good understanding of the industry. This may encourage a haulier to forego the services of lawyer and instead make a sincere personal presentation, perhaps owning up to a minor misdemeanour and explaining steps taken to prevent a recurrence.
The issues that bring operators to a PI often fall into one of two categories:
- Minor misdemeanours stemming from a lack of knowledge, such as a compliance system that lags behind current best practice standards.
- Lack of a documented audit trail, where the operator has compliance systems in place but is not documenting those systems.
A road transport solicitor can redress any such shortcomings ahead of the PI. But an operator that is prepared to admit any mistakes and put them right ahead the hearing may be able to represent itself.
Whatever an operator decides to do, it should never fail to respond if summoned to a hearing. Once called to a PI the operator must make every effort to attend or inform the Office of the Traffic Commissioner any reasons why the date is unsuitable. Simply not turning up is a bad idea and failure to attend can result in the business having its O-licence revoked.
Finding a road transport lawyer
If an operator has reached the point of accepting that it needs legal advice, the next question is where to find it. Does the director call the family lawyer who handled the house purchase and drafted their will, or should it turn to a lawyer who works regularly with transport firms and is familiar with the industry?
There can be little doubt that specialist advice will give the operator a better chance of understanding the options and the potential penalties. A transport lawyer is unlikely to be more expensive than any other lawyer and may save time and cost by a quick understanding of the issues.
Another option is to use a transport consultant who may have both practical industry knowledge and experience of PI, even though he or she lacks formal legal qualifications. However, former senior traffic commissioner Beverley Bell once said that TCs may refuse to hear “representatives other than counsel or solicitors on some occasions.”
Although it is does not advertise its existence, there is an Association of Road Transport Lawyers (http://solicitors.lawsociety.org.uk/office/460490/association-of-road-transport-lawyers) with members throughout the country. Many law firms advertise in the trade press and both the RHA and FTA have panels of reputable firms.
Care should be taken if trawling the internet for a lawyer. Barristers – who specialise in courtroom advocacy – may be found via the Bar Council (http://www.directaccessportal.co.uk/) , and its always useful to consider getting an opinion on the selected lawyer from a trade association.
Road transport law specialists are likely to be well known to their local TC and may have a greater understanding of how a TC likes a case to be presented.
An operator may ask a lawyer for references from past clients, but these can be provided only with the agreement of those clients. Barristers, however, are in a different position and may providing references may breach the Bar’s confidentiality rules.
What can a haulier expect to pay for a lawyer?
There are variations in the way that law firms charge for their services but all should provide an initial estimate on request.
Some lawyers, like Rothera Sharp, offer a free initial discussion to assess the nature of the proceedings before discussing costs. Others may offer their services on a retainer or charge an hourly rate.
Backhouse Jones Solicitors offers its legal services 24 hours a day for a fixed fee per vehicle per day, allowing subscribed operators to call upon it whenever they require advice.
Hourly rates usually depend on the experience of the lawyer and the geographical area in which they work. Transport lawyers told CM that rates can vary from £130/hr plus VAT for an assistant solicitor to £300/hr for a senior partner. The middle ground appears to be around £200/hr plus VAT and travelling expenses.
Other options that help spread the pain include insurance against legal costs, which may form part of a public liability insurance policy. The RHA offers RHA LawPlan, a legal protection scheme open to its members. FTA’s insurance includes a legal expenses plan, again for members only.
Operators may like to adopt a preventative approach. Most law firms offer a regulatory health check, ensuring that systems, procedures and record keeping meet compliance standards. Apart from helping it avoid trouble in the first place, this proactive approach is evidence that it takes its legal responsibilities seriously and may count in your favour in a PI or court.
Barristers can alsodeal directly with clients – traditionally their work came through solicitors.
The timescale for settling legal bills should be clarified at the outset. Some operate a monthly invoice system; others will agree to scheduled repayments; many require payment, or part payment, in advance.
If an operator disagrees or is dissatisfied with its lawyer
Lawyers and barristers provide advice and it is up to the client whether to take it or not. But what if a firm accepts the lawyer’s advice, issues instructions and come away from the PI or court case disappointed both with the result and the performance of its representative?
Initially it should complain to the senior managers of the law firm – if that fails to produce a result, it should contact the Solicitors Regulation Authority (https://www.sra.org.uk/home/home.page) , which can also help with the past history of a lawyer before it engages them.
For a complaint about a barrister contact the Bar Council. Another option is the Legal Ombudsman (http://www.legalombudsman.org.uk/) , a service that is free to consumers.
Appealing a decision
Operators can appeal a PI ruling to the Upper Tribunal Administrative Appeals Chamber (Transport) (https://www.gov.uk/courts-tribunals/upper-tribunal-administrative-appeals-chamber) . Appeals must be made within 28 days of the TC’s written decision.
Appeals must be in writing and demonstrate that the decision:
- Was wrong or that the TC misdirected themselves about the law or the evidence.
- Took into account matters which should not have been taken into account or failed to take account of matters which should have been considered.
- Offended the rules of natural justice in the conduct of proceedings by showing bias, refusing the right to be heard, or failing to make clear what was alleged against the applicant/licence holder.
A further appeal to the Court of Appeal (or the Court of Session in Scotland) can go ahead with the permission of the Upper Tribunal. If the Upper Tribunal refuses, the Court of Appeal may grant permission if the operator can show that the Tribunal was wrong in law.
Information on how to appeal against a decision in a magistrates or crown court can be found on gov.uk. (https://www.gov.uk/appeal-against-sentence-conviction)
Legal aid and Citizens' advice centre
Small operators and those with tight budgets should explore what legal advice they can obtain freely. Legal Aid (https://www.gov.uk/legal-aid) can be claimed for help in both civil and criminal cases. Aid is income related but could prove helpful in the event of a bankruptcy.
The Citizens Advice service (https://www.citizensadvice.org.uk/) is another potential source of help and guidance, even if not claiming to be expert in specialist areas like road transport. It offers free, independent and confidential legal and financial advice via a drop-in service provided by voluntary advisers across a range of disciplines.
The view from the Traffic Commissioner's bench
Senior traffic commissioner Richard Turfitt has issued operators practical advice to operators on how they should prepare for a PI. This is contained in the Senior Traffic Commissioner’s statutory guidance and statutory directions https://www.gov.uk/government/collections/senior-traffic-commissioners-statutory-guidance-and-statutory-directions.
This guidance covers core topics such as good repute and fitness; finance; transport managers; operating centres; legal entities; vocational driver conduct and impounding. There are 15 guidance documents in total.
One of the guidance documents, Case Management, sets out the behaviour expected at a PI. It makes clear that TCs are entitled to expect the sole trader, directors or partners to attend in person to represent their licence and answer to the issues that have been identified.
This same document provides advice on representation at a PI, either by counsel, a solicitor or a transport consultant. Case Management sets out how TCs will expect transport consultants to display a degree of competence and openness with the tribunal. They may refuse to hear representatives other than counsel or solicitors on some occasions and will make this clear in individual cases.
The statutory documents stress that engagement with TCs is essential to establishing and maintaining a positive relationship, even when regulatory matters are under consideration. Failing to attend an inquiry without explanation will normally lead to the case being heard in the operator’s absence.
Operators have an opportunity to take remedial action and TCs will take a positive view of a business that has improved procedures in the time before they appear at a PI.