Vehicle & Operator Services Agency, R (on the application of) v Kayes [2012] EWHC 1498 (Admin)

Case No CO/8796/2011[2012] EWHC 1498 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 18 May 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF VEHICLE & OPERATOR SERVICES AGENCYClaimantv
Between
WILLIAM RAYMOND KAYESRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Patrick Sadd (instructed by VOSA) appeared for ClaimantThe Respondent appeared in person for in person
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal by way of case stated from the decision of the justices sitting as a Magistrate's Court at Exeter on 12 May 2011.[2]The respondent then faced four informations alleging first that he unlawfully used a goods vehicle on a road for carriage of goods for or in connection with any trade or business carried on by him when he was not the holder of the operator's licence authorising a vehicle contrary to the relevant section of the Goods Vehicles Licencing Operator's Act 1995; secondly that he used on the road a goods vehicle of a class required by regulations under section 49 of the Road Traffic Act 1988 to be submitted for a vehicle test and there was no test certificate in force; third, that he used the vehicle in which recording equipment was not used as provided by the relevant Community Recording requirements; and finally that he used on a road a mechanically propelled vehicle and a higher rate of duty was chargeable and had not been paid in respect of the licence under section 15 of the Vehicle Excise and Registration Act 1994.[3]The informations all arose from the stopping on 14 October 2010 of a lorry which was being driven by Mr Kayes and which had on it two refreshment kiosks -- I say on it, there was a trailer which had one and the other was on the lorry itself -- which he used for the purpose of his business, which was serving refreshments in shows or fairs, he attended as a member of the Showman's Guild.[4]He tells me -- and there is nothing in the evidence found by the magistrates which in any way contradicts him -- that the lorry in question was specifically designed for the carriage of his kiosks, and he recognises that he must, and he does, use it only for the purpose of going to or returning from a show or fair. Indeed, at the relevant time, that is what he was doing.[5]The vehicle in question is a three-axle, rigid Mercedes goods vehicle and on the flatbed was a catering trailer. It was drawing a two axle draw bar on which was a second catering trailer. He had a maximum gross permitted weight and train weight which exceeded that which was generally necessary to render it a goods vehicle requiring a particular licence and test certificate and so on. He did not display an operator licence identity disk and the tax disk showed it to be a showman's vehicle and the duty paid was £165 for 12 months.[6]He said at the time (I am taking the facts from the case stated) that he was traveling from a fair at Tavistock to his home in Salisbury. He, along with his wife as partner, was the keeper and user of the vehicle and he was using it in connection with his showman's business, which traded from his home under the name of Simmons' Amusements. Each trailer was kitted out with fixed catering equipment and other loose equipment, drink and food stuffs. There was a compartment behind the vehicle cab containing a generator, drinks and equipment. Various photographs have been taken which have been annexed to the case and which show what I hope has been adequately described.[7]The respondent asserted that he did not need a licence and test certificate that was otherwise required because he claimed the showman's exemption and the view taken was that the refreshment kiosk being carried did not fall within the exemption which applied to a showman. That being the view of the examiner and those considering the matter when it was reported, the informations were laid. What the appellant said at the time was:
"I am green to all this. I have had a lorry purposely built to move my showman's equipment about. That's all I could say. I thought I was doing everything by the book. I cast it as a showman's restricted vehicle. I can only use it for my use"
[8]He said in his evidence which was clearly accepted by the justices that he only ever attended fairs and shows. He sold burgers, Chinese food, candy floss and toffee apples from the catering trailers and he said that that was part of the entertainment of the shows. He was a member of the Showman's Guild and his family before him had done the same thing, not entirely the same thing in the sense of only catering, but they had been involved, as I understand it, with steam engines. It is clear that by the same thing that he meant that he was engaged in what can be broadly called showman's activities.[9]The issue therefore depends upon various definitions. The most important one for our purposes is contained in section 62 of the Vehicle Excise and Registration Act 1994. This defines a goods vehicle as meaning:
"A vehicle constructed or adapted for use and used for the conveyance of goods of burden of any description, whether in the course of trade or not."
There is no question, but that the vehicle in question, which essentially is a low loader with trailer, was and is a goods vehicle.[10]So one then has to see what is meant by a showman's goods vehicle because it is that definition that enables the exemption to be obtained under the 1994 Act. That is an exemption from the duty which has to be paid in respect of the licence. The expression "showman's goods vehicle" is defined as meaning a showman's vehicle which:(a) Is a goods vehicle, and(b) Is permanently fitted with a living van or some other special type of body or superstructure forming part of the equipment of the show of the person in whose name the vehicle is registered under this Act."[11]The first point to note is that it must be a showman's vehicle and that is given a separate definition as meaning a vehicle:-(a) Registered under this Act in the name of a person following the business of a travelling showman, and(b) Used solely by him for the purposes of his business and for no other purpose. So far as the respondent is concerned, he is registered under the Act, as I understand it, as a person following the business of a traveling showman.[12]Mr Sadd has submitted that that is questionable, in the sense that if he is right in respect of the catering kiosks, that they are not to be properly regarded as part of the equipment of a show, in the sense that that is an expression which is limited to what one might regard as rides or sideshows of one sort or another, then he would not be properly regarded as following the business of a traveling showman. He recognises that it may be that that expression is somewhat wider than is in his submission the more limited definition relating to the meaning of equipment of the show and for someone such as the respondent who is undoubtedly a member of the showman's guild and regards himself, as his family has done before him, as a traveling showman, that description is one which can properly be applied.[13]Be that as it may, perhaps it is immaterial because if I were to decide that the justices, as we shall see, were wrong in regarding him as being covered by the showman's goods vehicle definition, then it would not matter whether he is also to be regarded as not following the business of a traveling showman. Mr Sadd accepts that the crucial question for me is whether what he was doing and what he does for a living can properly be regarded as falling within the definition under (b) of showman's goods vehicle.[14]The justices decided that he did fall within that description. They also decided that he was not required to use the driver card, that is the tachograph, under the relevant articles of the Community Regulations because this was a specialised vehicle transporting circus and funfair equipment and although the wording is not quite the same, funfair equipment would be decided in the same way as equipment of the show. One comes back to the question of whether a refreshment kiosk can properly be regarded within the meaning of the different legislations as being equipment of the fair in question or the show in question.[15]Further, the justices found that it did not require to be tested as a goods vehicle under section 49 of the Road Traffic Act 1988. The relevant provisions relating to that are to be found in paragraph 4 of schedule 2 of the Goods Vehicle Plating and Testing Regulations 1988. The relevant exemption applies to a vehicle or trailer not constructed primarily to carry a load, but specially designed for the special purposes of engineering operations.[16]It is somewhat difficult to say the least to conclude that the vehicle in question was specially designed and constructed for the special purposes of engineering operations. I think Mr Kayes recognises that it clearly is not. The reason why, as I understand it, from what I have been told by Mr Sadd, that the justices decided as they did in relation to section 49 was because there is some agreement between the Showman's Guild and the licensing authority that if it is to be regarded as attracting the showman's exception, then as a matter of agreement between them they will accept it as falling within the exemption to the requirement in relation to a test certificate. If that was the reason, as I think it must have been, for the justices deciding as they did, then that decision is understandable in the light of their findings otherwise, but I am bound to say that I would very much doubt whether that would stand up to a legal challenge if such were brought because clearly it is very difficult to conceive that any showman's goods vehicle which would carry any sort of equipment for a show could be properly regarded as specially constructed for the purpose of engineering operations. However, I need do no more than to suggest that it would be sensible for that matter to be put on a proper legislative basis, maybe by some amendment to the relevant regulations, because I suspect the time may well come when someone challenges the agreement and I very much doubt whether it would survive any such challenge.[17]But that apart it is, I think, common ground that the acquittal or conviction of the offences charged depends essentially upon whether the kiosks in question and the manner in which they were being transported can be regarded as falling within section 62 and whether they were to be regarded as equipment of the fair or show at which they were to be used. There is some authority on these issues, but none is of the greatest assistance in deciding what the true answer to this is. It is clear from a decision of Sullivan J, given in the Divisional Court in Cleansing Service Route limited v Services Agency [2007] 15, that the approach that the court should take in construing the relevant provisions and the exceptions is to give them their ordinary and natural meaning. As he made clear, the regulation is required to protect public safety and therefore Parliament, as he put it, would decide the limits placed upon the exceptions with some care.[18]The point that is made is that if the ordinary natural meaning is to be given the context must be considered. The context is safety and it is aimed at the traveling to and from one show or another of the equipment that is needed for that show. The vehicle in question must be used only for that purpose and it is only in those circumstances that the exemptions can properly be said to apply.[19]Just to complete the justices' findings, what they say in paragraph 9 of the case is this:- "Our findings were based on the persuasive and particular evidence given by Mr Kayes in which we felt that it was self evident that he was a showman and as such, it was self-evident that his vehicle was a showman's goods vehicle within the meaning of the Act." With great respect to the justices, those reasons will not stand up to close scrutiny because the fact that Mr Kayes, was a showman does not of itself mean that that his vehicle was a showman's goods vehicle. It had to comply with the provisions of the Act or the regulations in question to enable that to be so.[20]I go back therefore to section 62. The first point argued by Mr Sadd initially was that this was not a vehicle permanently fitted with the kiosks. There was no question that it was not fitted with a living van, but permanently fitted must relate to its use on the road. It of course makes no sense otherwise because when the vehicle arrives at the fair, then the equipment is unloaded. Accordingly, as I say and I think Mr Sadd accepted this, since the Acts in question are concerned with the use of a vehicle on a road, it is clear that permanently fitted must be construed to mean permanently fitted when the vehicle is used on the road. That they were permanently fitted when this vehicle was used on the road was the evidence accepted by the justices and so it clearly meets that requirement. Indeed, Mr Kayes told me that he recognised that he could only use the vehicle for that purpose and if he used it for some other purpose, then he would be committing an offence. No doubt he has taken some advice from the Showman's Guild and he is in my judgment entirely right in that understanding.[21]One then comes to the question of the meaning of "special type of body or superstructure forming part of the equipment of the show of the person in whose name the vehicle was registered". There has been some argument as to what those words comprehend. As they stand, they are somewhat ambiguous. The question is whether the words, "Of the person in whose name vehicle is registered" under the Act governs the show or the equipment of the show. The answer again is, I think, relatively clear. They cannot refer just to the show because as is pointed out, the show may be run or organised by a particular individual or company, and the sideshows or the rides or whatever other matters could properly be regarded as equipment are provided by various individual showman. There may for example be one who operates dodgem cars and who will go to set up those cars in whatever show is on a particular date available and at which he gets a pitch. Clearly the vehicle will be registered in his name and not in the name of the person who is organising the show, so it seems to me that the only sensible construction is that the words "of the person in whose name the vehicle is registered under the Act" relate back to the equipment of the show. The equipment, if it is equipment, is in Mr Kayes' name.[22]So is this properly to be regarded as equipment? Equipment is a word which should bear its meaning again depending on the context. There are a number of authorities which have dealt with what would be regarded as equipment and as I said, that is a matter or may be a matter for context. If it was necessary to decide whether a lawyer's equipment included books and law reports, I suspect the answer would be yes, of course it does. It should be regarded as equipment because it is something that he needs as equipment for carrying out his business. The question here is whether refreshment kiosks can properly be regarded as equipment of the show.[23]Mr Sadd's case is that that must be limited to what I generally call the sideshows or rides and that catering facilities are not properly to be regarded as equipment of the show. It seems to me that using its ordinary language, a show needs and anyone attending it would expect it to have refreshment facilities. Mr Kayes makes the point that children want their candy floss and there is something in that. I think it is clearly an attraction to a show, that it is known that there are good refreshment facilities available at that show. It seems to me in those circumstances that it is not extending the meaning of language beyond that which is proper in taking the view that refreshment kiosks, such as Mr Kayes in his capacity as a member of the Showman's Guild operates at various sites, is properly to be regarded as equipment of the show. Provided he uses the lorry only for those purposes, it seems to me that he falls clearly within the necessary definition and exemption which is provided by section 62 of the 1994 Act.[24]Similarly, it is, as it seems to me, a specialised vehicle transporting funfair equipment. One has the same point that it is funfair equipment within a proper meaning of those words and it is a specialised vehicle in the sense that the evidence is and the evidence accepted by the justices, entitled them to find as a fact that the vehicle was one which was specialised in the sense that it had been specially designed by and constructed for Mr Kayes for the sole purpose of transporting his refreshment kiosks and therefore the justices were correct to take the view that the exemptions (apart from the engineering point) entitled them to acquit. The reasons they give do not justify the conclusions reached, but having gone into the matter in greater detail and having considered the relevant legislation, I am persuaded that the conclusion that they reached, albeit perhaps by the wrong route, was a conclusion which was correct.[25]I should perhaps add that I have been referred to previous authority, R v Department of Transport Ex Parte Lakeland Plastics (Windermere) limited[1983] 82, a decision of Stephen Brown J. That was a judicial review claim brought by Lakeland Plastics against a decision that showman's goods vehicle was not apt to include a traveling commercial exhibition and sales vehicle. They exhibited at various county shows to sell wares to users of domestic freezers.It is hardly surprising, I am bound to say, that the conclusion reached was that they were not entitled to the showman's exemption. The legislation is not quite the same as it is now, but essentially the relevant definition was the same because it meant under the relevant provisions then in force, which was the Vehicle Excise Act 1971:
"A showman's vehicle which is a goods vehicle and is permanently fitted with a living van or some other special type of body or superstructure forming a part of the equipment of the show for the person in whose name the vehicle is registered under this Act."
So it is pretty well the same definition.[26]As I say, for the reasons I have indicated, it seems to me that in the circumstances and on the findings of fact in relation to Mr Kayes' use of the vehicle and more particularly the vehicle itself, this in the circumstances can properly be regarded as a vehicle permanently fitted with a special type of body forming part of the equipment of the show, the special type of body being the kiosks in question.[27]I should add that if I had been in favour of the appellants, I would not have sent this matter back directing a conviction because the appellant has clearly acted entirely in good faith, doing what he believed to be correct, and it seems to me that it is not in the public interest and necessary for him to receive convictions. What is important is there will have been a ruling as to what the law is for the future.[28]I must deal with the questions raised by the justices.[29]The first question is posed on the basis that the kiosks were not permanently fitted. I have indicated in my judgment what in my view is the meaning in the context of permanently fitted, so the question on the premise that it is not a permanent fixture is not relevant. Accordingly it is unnecessary to answer that question as posed and I think the judgment makes clear what the position is.[30]They go on, the second part of the question is if a vehicle not a showman's goods vehicle as defined, does it require to be tested as a goods vehicle under section 49 of the Road Traffic Act 1988 and taxed as such under the Vehicle Excise and Regulation Act 1994. So far as the 1988 Act, section 49 is concerned, that is what I have referred to as the engineering point and the answer is that in my view it should require to be taxed as a matter of law, but as I understand it, as things stand at the moment, due to an agreement with the Showman's Guild, the licencing authority would not require it to be so taxed if it is a showman's vehicle. So again, that part of the question is not one I can really answer as posed. So far as the 1994 Act is concerned, I have decided that it was indeed a showman's goods vehicle and therefore it falls within that exemption.[31]I think the third part of the question is, is the driver of such a vehicle exempt from the need to use a kind of car with a tachygraph under Article 13, Paragraph J of the relevant regulation, the exemption relating to specialised vehicles transporting circus and funfair equipment. The answer is in the context of this case, the driver of the vehicle driven by the respondent was entitled to that exemption.[32]In the circumstances, this appeal is dismissed.[33]MR JUSTICE COLLINS: Mr Sadd you told me that a number of cases were dependent upon the findings or this decision. Mr Kayes, you are entitled to apply for costs.[34]MR KAYES: Just my fuel.

MR JUSTICE COLLINS: You are allowed to claim your traveling expenses.

[36]MR KAYES: That is all I --

MR JUSTICE COLLINS: Can you tell me how much they amount to?

[38]MR KAYES: So far, about £80 of fuelling in my vehicle.

MR JUSTICE COLLINS: You have come up from Devon?

[40]MR KAYES: No, Wiltshire. Salisbury.

MR JUSTICE COLLINS: What sort of vehicle?

[42]MR KAYES: It is a four wheel drive. I suppose it would cost me around about £80 to £90 to come and go.[43]MR JUSTICE COLLINS: £80 does not sound unreasonable, does it. I mean, £80.[44]MR KAYES: That will do. That is without the charge of coming into London.

MR JUSTICE COLLINS: As a litigant in person, I am rather limited in what I can --

[46]MR KAYES: -- £80.

MR JUSTICE COLLINS: £80 sounds perfectly reasonable and I make an order that they pay you £80 costs.

[48]MR KAYES: Lovely, thank you.[49]MR JUSTICE COLLINS: Mr Sadd, I do not know whether those instructing you would want to take this any further. As you appreciate, this being a criminal matter, it is only on the basis that if I were persuaded to certify. What I will do is to give you an opportunity to take instructions on that and come back to me in writing. I am here next week.[50]Mr Kayes, may I explain, there is a right of appeal from me, but it only goes to the Supreme Court and it cannot go to the Supreme Court unless I certify that there is a point of law of general public importance involved. That of course may depend upon the extent to which this is regarded as a problem beyond this case. I have given Mr Sadd the opportunity to think about that and to have up to 7 days to decide whether he wants to make that application. What he will do is to make it in writing and send you a copy. You have to right to say no, he should not or I should not, but what will happen is, as I say, it will go in writing. You will have 7 days from when you receive it to indicate to the court, that is to me, whether you oppose it or not and if you do oppose it, to say why, and then I will decide.[51]What I will do is even if I were persuaded to certify that there was a point of law of general public importance, I would not give leave to appeal to the Supreme Court. It would be a matter for them to decide whether to give leave.[52]Mr Sadd do you want to wait for the transcript or do you have a sufficiently detailed note?[53]MR SADD: I have taken quite a good note but my Lord --[54]MR JUSTICE COLLINS: It just occurs to me that time should run from when you get a copy of the transcript.[55]MR SADD: Might I ask that?[56]MR SADD: My Lord, does it assist you if I provide you with my email address? Is that how you like to do it?[57]MR JUSTICE COLLINS: Do that, if you would, for the associate. You can do it that way, if necessary. As I say, I understand that you will want to consider the matter, because I recognise that this is not an altogether straightforward case.[58]MR SADD: My Lord, may I just ask for one possible extension, which is would it be possible to extend it to 14 instead of 7 days? I say that because --

MR JUSTICE COLLINS: We are coming up to vacation, are we not?

[60]MR SADD: And there is the Jubilee bank holiday.[61]MR JUSTICE COLLINS: We have got all Jubilee break. Yes, all right. You can have the 14 days, but equally you will have the 7 days from when you receive it. It means a bit of a delay, but I will make my final decision on this no later than middle of June, about a month on. It does not directly affect you. I mean it does indirectly.[62]MR KAYES: That is only if they want to appeal.[63]MR JUSTICE COLLINS: Only if they want to appeal. They may decide not to.[64]MR SADD: My Lord, thank you very much.[65]MR JUSTICE COLLINS: They may decide the better answer is to ask Parliament to pass regulations which cover the matter for clearly.[66]MR KAYES: If they do so, I will abide by the law.

MR JUSTICE COLLINS: Of course, it is accepted that you will do so.

Cited in 1 later judgment