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Impounding decision upheld by judge

  • 25 March 2014
  • By Roger Brown

Upper Tribunal judge Mark Hinchliffe has dismissed an appeal from Paul Baird for the return of an impounded truck, describing the approach, legal analysis, factual findings and ultimate conclusion of the traffic commissioner as “sound” .

In a decision following a January appeal hearing in Edinburgh, upper tribunal judge Mark Hinchliffe upheld the decision made by Joan Aitken, TC for Scotland, in September 2013 when she refused an application by Baird for the return of the HGV.

In July 2013 Vosa examiners stopped the truck, which was carrying wine, at a roadside check on the A867. After speaking to the driver, they discovered that its registered keeper was Renfrew-based Scotia Trucking Services, but that it did not have a valid O-licence and had no valid MoT.

The boss of Scotia was Ian Baird, also known as John Jr, who had taken over the running of the firm after his father John Baird died in 2012. However the owner of the vehicle was his brother Paul Baird, who had not held an O-licence since the demise of another company Bairds Express Freight, and who now undertakes caravan repairs and vehicle renovations, sharing the same premises as his brother in a unit on the Meadowside Industrial Estate.

At the public inquiry, Paul Baird told the TC that his brother had taken the vehicle without his knowledge or consent while he had been on holiday. Paul Baird said his brother had insured it through Scotia Trucking Services, removed the keys from his office and instructed the driver to use the vehicle to transport a load from Renfrew to Milnathort.

Baird explained he did not involve the police when he learned that his vehicle had been used without his consent, but he had taken legal advice about seeking the return of the vehicle.
On appeal Baird asked the tribunal to consider the same facts as those looked at by the TC.

However, Judge Hinchliffe accepted the TC’s findings that there had been a “pooling of resources” involving the brothers, and that Paul Baird had shared a yard used by Scotia Trucking Services, shared a key safe with his brother, and permitted his vehicle to be taxed by Scotia Trucking Services.

The judge concluded: “Our view is that the evidential basis for the TC’s findings and conclusions is abundantly clear and properly set out in her written decision. “We consider the TC’s approach, legal analysis, factual findings and ultimate conclusion to be sound. In the circumstances, therefore, the appeal is dismissed.”

Last November, in a written decision following another PI, TC Aitken rejected an O-licence application from Ian Baird for two vehicles and two trailers at Scotia Trucking Services and disqualified him from being a transport manager indefinitely.

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Article source: http://www.commercialmotor.com:80/latest-news/impounding-decision-upheld-by-judge