Vehicle and Operator Services Agency v F & S Gibbs Transport Services Ltd [2006] EWHC 1109 (Admin)

Case No CO/3072/2006

[2006] EWHC 1109 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 8th May 2006

Strand

London WC2

B E F O R E:

LORD JUSTICE KEENE

MR JUSTICE JACK

Between

VEHICLE AND OPERATOR SERVICES AGENCYAppellant

-v-

Between

F & S GIBBS TRANSPORT SERVICES LIMITEDRespondent

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MR TIMOTHY NESBITT (instructed by Messrs Barry Culshaw Solicitors, Warsash SO31 9AD) appeared for Appellant

MR MARK SULLIVAN (instructed by Messrs Moore & Blatch, Southampton SO15 2AH) appeared for Respondent

J U D G M E N T

LORD JUSTICE KEENE:

[1]This case raises a short but not unimportant point of law about the meaning of section 41B(2) of the Road Traffic Act 1988, which, putting it shortly, provides a defence to a charge of using on a road a goods vehicle which is overweight.

[2]The offence itself is created by section 41B(1). By that provision it is an offence, amongst other things, to use on a road a goods vehicle which does not comply with a requirement as to weight of the Construction and Use Regulations 1986. Section 41B(2) then provides that in any proceedings for such an offence:

"... it shall be a defence to prove ... (a) that at the time when the vehicle was being used on the road — (i) it was proceeding to a weighbridge which was the nearest available one to the place where the loading of the vehicle was completed for the purpose of being weighed ..."

[3]The issue in short is whether the phrase "nearest available one" means the nearest weighbridge known to the driver of the vehicle or the nearest one as a matter of objective fact, whether or not the driver knew of it.

[4]The appeal comes by way of a case stated by the East Wiltshire Justices sitting at Salisbury. They found that on 1st December 2004 a Mr Waters, employed by the respondent company, was driving on that company's behalf a three axle vehicle and trailer unit on the A303 road at Wylye in Wiltshire. He was stopped by an employee of the appellant, which is an agency for the Department of Transport, and was directed to a weighbridge nearby. The trailer was there found to be nearly 4,000 kilograms overweight, an overload of 17.3%. The case goes on to state:

"The vehicle was carrying grain which had been loaded at a farm in Mere, Wiltshire and Mr Waters was driving it to Southampton docks. The vehicle and trailer unit had not been weighed when it was loaded; there was no weighing facility at that farm. Mr Waters had visited the farm on previous occasions but it is not part of the regular routine of the respondent's business."

[5]The justices accepted that Mr Waters intended to travel some 22 miles to the premises of Wiltshire Grain at Shrewton in Wiltshire, where he intended to check the weight and to make any necessary adjustments. The Bench also found that there was a nearer weighbridge to Mere, the place where the vehicle had been loaded. This was at Keysley Farm, about five or six miles from Mere, and it was signposted on the carriageway of the A303. It was situated up a metalled road from the A303, had been available for at least 18 months and was well known to the local police. The facts as found also included the following:

"Mr Waters and the respondent company have used the Wiltshire Grain facility for a number of years. Mr Waters did not know about the weighbridge at Keysley Farm, he accepted that he might have seen the sign to Keysley Farm but he did not notice the indication that there was a weighbridge available at that farm. ... The respondents were not aware of the Keysley Farm facility. The Respondent company did not provide Mr Waters with a list of weighbridges at which to check weight and Mr Waters did not ask anybody at the place where he loaded as to where the nearest weighbridge was situated."

[6]After hearing argument and having been referred to a number of authorities, the justices concluded at paragraph 6 of the case as follows:

"We were of the opinion that 1) The facts found by us would be sufficient to prove the case against the respondents unless they could prove on the balance of probabilities that the driver was proceeding to the nearest weighbridge for the purpose of weighing the vehicle and trailer. 2) The terms of the statutory defence in section 41B(2) of the Road Traffic Act 1988 only require the vehicle to be proceeding to the nearest weighbridge known to the driver."

Consequently they dismissed the information.

[7]The question posed for this court is, in essence, whether they were right to conclude that the words "nearest available" weighbridge mean the nearest available weighbridge of which the driver is aware, or simply the nearest actually available weighbridge regardless of his knowledge.

[8]The appellant submits that the subsection is referring to the nearest actually available weighbridge, no more no less. On behalf of the appellant Mr Nesbitt submits that if Parliament had intended to mean the nearest one known to the driver, the subsection would have said so. It is argued that the justices' decision in effect adds words to the statute that are not there.

[9]Moreover, reliance is placed on the purpose behind the legislation about overloaded goods vehicles. Mr Nesbitt draws our attention to the decision of this court in Lovett v Payne [1980] RTR 103, a decision on the predecessor of the current provision, namely section 40(6)(a) of the Road Traffic Act 1972, which was in identical terms. There the issue was whether "nearest available" meant as the crow flies or measured by road as a vehicle could travel. The court held that it meant the latter, it being said by Eveleigh LJ that it was "the nearest place which the lorry can go to [to] be weighed" (page 109D).

[10]In the course of his judgment, Eveleigh LJ also said this, upon which Mr Nesbitt relies: "The purpose of the Road Traffic Act 1972 and the regulations made thereunder with which we are concerned is quite clear. It is to ensure that a vehicle is not driven on the road in an unsafe condition. It follows that, if the Act is to exclude the presence or use on the road of a vehicle which is unsafe or potentially unsafe, the legislature will be concerned to ensure that that use is for the shortest possible distance and it is with that object of the Act in mind that one reads this regulation." (page 109A-B)

[11]It is submitted that the weight limits exist for the protection of the public. That protection, however, would be greatly diminished if the justices' approach were to be adopted. A driver could almost always say that he was on his way to the nearest available weighbridge which he knew about, and demonstrating in court that he was wrong about that and was not telling the truth would never be easy. Convictions for overloading offences would become very difficult to secure, and the protection which the Act seeks to provide the public with, and indeed the protection of the road system, would be substantially undermined. Indeed it is argued that the justices' interpretation would encourage hauliers not to know about the nearest weighbridge, or to make enquiries about the nearest available weighbridge. The burden, argues Mr Nesbitt, should be on hauliers to inform themselves and their drivers as to the location of the nearest weighbridge if they wish to available themselves of this statutory defence.

[12]For the respondent Mr Sullivan emphasises the word "available" in the statutory phrase. Consequently, it is not just a question of simple proximity of a weighbridge to the loading point. The weighbridge, for example, may not even be open at the relevant time. In this connection Mr Sullivan, like his opponent, relies on the decision in Lovett v Payne. He refers to the judgment therein of Woolf J (as he then was), who suggested that the test should be applied "in a practicable and sensible sense". Thus, said Woolf J, if a weighbridge was only the nearest via a road which was not suitable or practicable for the lorry, then it would not be the nearest (see page 110). That approach, argues Mr Sullivan, supports the justices' decision in the present case. If a driver does not know of a weighbridge, it is not in any sensible way available to him.

[13]Reference is also made on behalf of the respondent to the words of Ackner LJ in Halliday v Burl [1983] RTR 21, where it was said that: "The evidence fell far short of disclosing a situation where no reasonably minded haulier would instruct his drivers to use the Charringtons weighbridge." (page 25)

[14]Mr Sullivan seeks to employ this concept of the reasonably minded haulier. Again, it is said that that case supports the practicable and sensible approach which one finds in Lovett. The courts, says Mr Sullivan, have not interpreted the statutory provision literally, nor should they, since if a driver is behaving responsibly he should have a defence and he is behaving responsibly if he is proceeding to the nearest weighbridge of which he is aware. It is accepted that hauliers should take steps to see that drivers do know which is the nearest available weighbridge, but here, emphasises Mr Sullivan, the justices found that the driver did not know. That is a fact with which the court has to deal.

[15]Mr Sullivan recognises some difficulties in a practical sense in his argument, since it could provide a defence to a driver who did not know of a weighbridge anywhere within a very long distance of the starting point where the vehicle was loaded. Having recognised that, Mr Sullivan at one point in his argument suggested that there might be circumstances where the justices could regard the lack of knowledge as being unreasonable. Nonetheless, he says that was not the situation here.

[16]Beginning with that last point made on behalf of the respondent, I am bound to say that this court is not being asked to rule on whether there is any test of reasonableness to be applied in this connection. That is not the issue before this court. The justices were not asked to apply a test of reasonableness, but a test of knowledge on the part of the driver. That is the issue in the case stated with which we have to deal.

[17]On that issue I can appreciate the force of some of the respondent's arguments, and indeed initially I was attracted by them. The interpretation of statutory phrases such as "nearest available weighbridge" is never easy. The authorities show that to qualify as such the weighbridge must actually be available, so that if it was one which the goods vehicle could not in practice use (for example because the nearest weighbridge was too small for the vehicle in question or was out of action at the relevant time), the defendant could justify going towards the nearest one that he could use. Moreover, the courts, as is well known, have at times imported a mens rea requirement into statutory offences where the statute was silent on that aspect.

[18]However, two considerations in the present case have ultimately persuaded me that the justices here were wrong in their approach. The first is that if Parliament had intended such an approach, it would have been simplicity itself to have included the necessary words. It did not do so. The word "available" is therefore to be construed as meaning actually available as a matter of objective fact, not as "which the driver knows is available". That would be to add words to the statute.

[19]Secondly, and of greater importance in my assessment, I find the point made by Mr Nesbitt about the difficulties of enforcement if the justices' approach were to be adopted particularly persuasive. It would often be very difficult for the appellant to challenge the assertion by the driver that he was unaware of the weighbridge which was in fact the nearest. The present case illustrates that. The driver, Mr Waters, was not loading at the farm in Mere for the first time. The case indicates that he had visited it on "previous occasions". Yet the justices accepted that he did not know of the weighbridge at Keysley Farm, even though it was also signposted from the A303. There is a real danger that the efficacy of the weight restrictions would be greatly diminished if a defendant could escape conviction on the basis that he or his driver did not know of the weighbridge which was in fact the nearest. The protection of the public, which is the purpose of these legislative provisions, would suffer as a result.

[20]This does not place too heavy a burden, nor an impracticable obligation, on hauliers. They can ascertain where the nearest weighbridge is in advance and supply their drivers with the necessary information. That is not difficult. Here the respondent did not do so. If the employer fails to take such steps its drivers can and should enquire of the police or trade organisation or the appellant agency where the nearest one is located. In these days of mobile telephones, that too is not difficult. It is important that those in the haulage industry take the necessary steps to ensure that their drivers are aware of such facts. If they do not, and the vehicle is being driven to a weighbridge which is not the nearest available one which they can use, then the section 41B(2) defence will not be available. It is their choice.

[21]I therefore would answer the question in the case as follows. The "nearest available" weighbridge, as meant by the subsection, is the nearest one available irrespective of the knowledge of the driver.

[22]For those reasons, I would allow this appeal and remit this matter with a direction to convict.

[23]MR JUSTICE JACK: I agree. The issue is as to the construction of the Act. The offence under section 41B(1) is an absolute offence, that is to say the prosecution do not have to prove that the defendant knew that his vehicle was overweight. It is enough that it was overweight. Subsection (2) then provides a defence which it is for the defendant to establish if he can, namely that he was proceeding to the nearest available weighbridge. In my judgment that does not mean to the weighbridge which he thinks is the nearest available weighbridge. It means the nearest available weighbridge in fact. If he takes a vehicle onto the road which may be overweight, he must travel to the nearest available weighbridge and check the weight. It is for him to find out where the nearest available weighbridge is if he wishes to avoid breaking the law and to be able to rely on the defence. All of this is consistent with the purpose of the section, which is to prevent overweight vehicles, and therefore potentially dangerous vehicles, being on the road.

[24]MR NESBITT: My Lords, there remains the question of costs. I would ask for the appellant's costs to be paid by the defendant to be taxed.

LORD JUSTICE KEENE: Can you resist that Mr Sullivan?

[26]MR SULLIVAN: I do not think I can, my Lord.

LORD JUSTICE KEENE: Very well. Do you want detailed assessment of those costs or do you have your costs --

[28]MR NESBITT: Yes please, my Lord. We ask for detailed assessment.

[29]There is one other matter which I should perhaps raise. I think I noticed that towards the end of my Lord's judgment at one point my Lord referred to respondent when I think my Lord meant appellant. It was in the context of a reference to the difficulties that the interpretation my learned friend was pressing upon the court would make for the --

LORD JUSTICE KEENE: I will check the transcript when I get it Mr Nesbitt. Thank you for drawing that to my attention. I will try and make sure that I spot where that occurred. Thank you.

[31]MR NESBITT: My Lords, I am asked by my instructing solicitors to confirm that the costs order should include the costs of the court below, which I think would ordinarily follow.

[32]MR SULLIVAN: My Lord, perhaps that would be a matter for the magistrates to deal with when it goes back to them.

LORD JUSTICE KEENE: Will it be open to them -- I suppose it would -- on the remitted matter?

[34]MR SULLIVAN: My Lord, I believe so. Obviously at the original hearing there was an order in favour of the defendant as far as costs were concerned.

MR JUSTICE JACK: We will have to set that aside.

LORD JUSTICE KEENE: Clearly.

MR JUSTICE JACK: Should we not then substitute the proper order?

[38]MR SULLIVAN: My Lords, it is not unheard of for the magistrates not to allow the full amount of costs. Particularly the costs of prosecution, they sometimes take the view that --

LORD JUSTICE KEENE: They quantify it normally, after all, do they not?

[40]MR SULLIVAN: Yes, my Lord.

LORD JUSTICE KEENE: Did they quantify it in this case when it was other way round?

[42]MR SULLIVAN: It would be on the basis of an assessment, a bill submitted by the defendant's solicitors. There was no figure derived actually at the hearing itself.

LORD JUSTICE KEENE: We are minded I think Mr Sullivan, unless you want to say anything further to me, to say the costs here and below.

[44]MR SULLIVAN: Very well. I have nothing further to say.

LORD JUSTICE KEENE: It will not of course deal with any further costs, that will be a matter for the magistrates to consider. But otherwise the costs here and below are to be paid by the respondent to the appellant.

[46]MR SULLIVAN: My Lord.