A 'bad case of serious shortcomings' at Viviago says traffic commissioner Simon Evans

Container haulier Viviago and its director have been disqualified from operating for 18 months after a raft of compliance issues were uncovered following a final warning.

The Simonswood, Lancashire-based company appeared before traffic commissioner (TC) Simon Evans (pictured) after an FTA audit of its maintenance systems revealed 39 recommendations, 15 of which were essential and urgent.

In addition, DVSA reports of roadside encounters showed a number of S-marked prohibitions, drivers’ hours infringements and the conviction of one driver for drink-driving.

Viviago had appeared at a previous public inquiry (PI) in 2017 after employing a disqualified director, Stephen Evans.

At that PI the TC was satisfied that director Samantha Hughes and transport manager Steven Logan were unaware of Evans’ history and so the company escaped with a formal and final warning.

However, the recent compliance and maintenance issues meant that Hughes and Logan reappeared at a Golborne PI in November 2018.

Hughes told the TC that the company had struggled with paperwork when Logan was absent from the business with illness and that matters arising during this time were down to her “bad management” as she was providing transport manager cover.

She denied prior knowledge of unlawful AdBlue cheat devices being fitted to fleet vehicles and said she was horrified by the significant volumes of prohibitions that had arisen.

She also claimed that the company was doing better than the audit suggested.

Logan also claimed ignorance of the AdBlue devices but admitted he had not monitored the company’s OCRS position and that he had allowed the driver with a drink driving conviction to continue driving for the firm because he was “only just over the limit” and he “liked him”.

However, TC Evans found Hughes’ evidence “considerably self-serving, tending to offer excuses and a passing of the blame to others”. He found Logan’s evidence “credible but on occasion demonstrating a lack of up-to-date knowledge and a poor exercise of judgment, especially where drivers were concerned”.

He added: “This is a bad case. The seriousness of the shortcomings set out and the fact that they range across many areas of activity – a fleet with AdBlue cheat devices fitted to two of its vehicles; the inadequate maintenance arrangements; serious prohibitions; administration shortcomings; a failure to give accurate information to the DVSA; and the commission of offences by drivers – is seriously concerning.”

He ruled that the operator’s repute had been lost, that the company’s licence be revoked and that both Viviago and Hughes be disqualified.

“I record that in the circumstances the repute of its transport manager Steven Logan is not lost but is tarnished by the findings made,” he added. “A formal warning as to his future conduct is recorded.”

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Price fixing by truck cartel claim goes ahead

The RHA’s proposed collective claim for compensation over price-fixing by a cartel of truck manufacturers is well placed to get the green light to proceed from the Competition Appeal Tribunal (CAT), according to Steven Meyerhoff, a director at legal firm Backhouse Jones which is working with the RHA on its claim.

There are two proposed collective claims before the CAT, the RHA’s and UK Trucks Claim (UKTC), backed by legal firm Weightmans. A third collective claim mooted by solicitors Edwin Coe failed to materialise although Commercialmotor.com understands an action has been issued in the High Court by Edwin Coe.

In or out?

The RHA’s claim, which now has 7,000 operators running more than 100,000 trucks signed up, is an ‘opt-in’ claim where claimants have to sign up to the class action to be eligible for any compensation awarded by the CAT. UKTC is seeking an ‘opt-out’ or alternatively, opt-in – an opt-out action, if permitted by the CAT would automatically include any operators falling within UKTC’s class definition, that is, anyone who acquired  a new truck of 6 tonnes or more between 1997 and 2011.

“Past experience has shown that opt-out collective proceedings are difficult to bring even in mass consumer cases for which the opt-out regime was arguably designed,” said Meyerhoff.

The RHA claim covers new and used truck purchases and it is expected that compensation will average at least around £6,000 per vehicle.

Some large truck buyers including Royal Mail, Ryder and Dawsongroup opted to pursue their own claim for damages in the High Court, but these claims are now being heard by the same judge, Justice Peter Roth, leading the three-strong tribunal looking at the truck cartel cases.

Respond to objections

Following an initial case management conference in December last year, truck manufacturers are preparing their objections to the proposed claims by the RHA and UKTC and then both the RHA and UKTC will have a chance to respond to the objections. “The manufacturers, not named by either applicant, have indicated their intention to object to the respective applications,” said Meyerhoff. “So in our case, Volvo and Daimler are objectors with MAN, IVECO and DAF being proposed defendants. In the UKTC case, Volvo, MAN and DAF are objectors with IVECO and Daimler named as proposed defendants. Both ourselves and UKTC should have received all responses and objections by 12 April and we will need to respond by 3 May.”

A preliminary hearing to decide whether either one or both claims will go forward will take place on 3 to 7 June this year. As the hearing before the CAT approaches, there is still a chance for truck operators to join the RHA’s claim. The RHA expects to hear later this year whether or not the CAT agrees the collective claim should proceed. 

“The CAT has expressed a desire to see a prompt resolution for the cartel case rather than having it drag on for years, though the truck makers will have a right of appeal against any judgement,” said Meyerhof.

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