Choice for Fifth Zone Ltd


1. FIFTH ZONE LTD: OH2018829, OF2032937


2.1 22 SEPTEMBER 2021


Fifth Zone Ltd holds two normal worldwide items automobile operator’s licences. The licence within the West of England authorises the usage of 9 autos and 5 trailers from a website at Chipping Norton, OX7 4NP. The licence within the East of England additionally authorises the usage of 9 autos and 5 trailers, this time from a website in Brill, HP18 9UB. One automobile was in possession on every licence when my temporary was compiled.

There have been two antagonistic stories from DVSA. A Visitors Examiner visited on 11 Could 2021 following a driver having been discovered on the roadside to be routinely pulling his card (that’s, withdrawn his digital tachograph driver card and continued to drive with no card within the digital tachograph automobile unit head). The proof is that the motive force, Peter Timothy Chapman, had pulled his card on forty-nine events between 7 July 2020 and 21 January 2021. While I famous that the Visitors Examiner discovered the techniques to be “largely passable”, I took a unique view primarily based on the dimensions of falsifications that had appeared to go unchecked.

On 29 April 2021, a Automobile Examiner visited the working centre and located, fairly frankly, a dire state of affairs. One automobile had exceeded the 10-week inspection frequency by 101 days, being 171 days between inspections. Most inspections had been carried out by a “man with a van” with none affordable amenities. Three quick prohibitions had been issued for mechanical defects, one s-marked to focus on a failure in compliance techniques (it was a fractured exhaust such that the gases weren’t making it so far as the silencer). 4 load safety prohibitions had been issued.

These stories brought about me to name the operator to public inquiry.


Mr Neil Lyon and Mr Paul Cookson attended the general public inquiry represented by Carolyn Evans, solicitor. Compliance paperwork and written representations had been obtained upfront. Included inside these had been notification that the corporate had entered liquidation.

Proceedings had been recorded and a transcript could be made out there if required. I file right here solely the related components of the proof. In getting ready this determination, I’ve taken as reference my public inquiry bundle, the operator’s submissions and supporting paperwork, my notes and I’ve listened to the digital recording.

The operator’s bundle included a press release of affairs for the corporate displaying a minimal quantity owed to the Crown. In preparation for the listening to, I had accessed the Firms Home information on-line and located a press release of affairs which confirmed a distinctly totally different place. A duplicate was handed to the operator and Mr Lyon was given the chance to speak to his book-keeper in regards to the inconsistencies. Monetary standing was clearly not met.

5. Opening submissions

Ms Evans opened by setting out the operator’s place in short. Fifth Zone held two operator’s licences. The Western licence was dwell however the Japanese hadn’t been used just lately. Neil Lyon was sole director. There have been two DVSA investigations. Mr Lyon had supplied to DVSA detailed responses to these investigations.

Mr Cookson was appointed as transport supervisor on 10 Could 2021; he had additionally utilized to be transport supervisor of EME Buying and selling, a sister firm.

The corporate had misplaced its major buyer and entered liquidation in consequence. The principle collectors had been Aldermore and Bibby, the factoring brokers. The assertion of affairs supplied by the operator confirmed the debt to the Crown at REDACTED. A later, signed, assertion of affairs produced by my workplace included the PAYE debt which was somewhat extra substantial. Mr Lyon’s place was that the liquidators had not requested for the PAYE determine when the sooner doc was accomplished.

The end result of this inquiry may have an antagonistic impact on the sister firm. Mr Lyon meant to set out his case that his reputation was intact in order that EME Buying and selling Ltd may proceed.

Fifth Zone had been purchased as a going-concern enterprise. The sale included the operator’s licence and a small Royal Mail contract figuring out of Croydon, then Weybridge. Mr Lyon’ background is in multi-drop deliveries. Along with the Royal Mail work, he acquired some postcodes on the Fortec pallet community. That was solely delivering pallets so not worthwhile by itself. Mr Lyon secured additional work via Canon taking pallets into the Watford hub. When that Canon work was misplaced, the enterprise was once more not worthwhile.

The corporate utilized for a Western licence in December 2018 with an working centre in Abingdon. Nigel Rye was transport supervisor. The enterprise was delivering pallets for XPO. In Could 2020, the warehouse utilized by the corporate was flooded. While autos had been nonetheless saved there, there was nowhere to retailer the pallets. In June 2020, the corporate made an utility for a licence for an Japanese licence authorising a website in Brill. The operator solely traded there for 3 months when, regardless of earlier assurances on the contrary, the owner offered the location for improvement. Though automobile SM65HWB was specified on the Japanese licence till just lately, all work had transferred to Chipping Norton in September 2020.

Cashflow grew to become a difficulty in late 2020 and the operator moved to factoring. XPO didn’t like working via factoring corporations so the contract terminated. That triggered the insolvency.

6. The proof of Neil Lyon

I requested my first query to Mr Lyon about his response to the load safety difficulty. At web page 135 of my bundle was a warning letter to a driver Rafal Wiecaszek dated 1 April 2021. This shaped a part of Mr Lyon’s response to the Automobile Examiner’s report following his go to on 29 April. It was equipped with a response letter dated 21 Could 2021. It warned the motive force in relation to 2 load safety points, one on 23 March 2021 and one on 30 March 2021. I then took Mr Lyon to the prohibition paperwork at pages 52 and 53 of the bundle and famous that, while the motive force on 23 March was Mr Wiecaszek, the prohibition on 30 March was issued to a Mr Grigoras. I additional identified that the identical error had been made by the Automobile Examiner at web page 108, the place he had attributed two prohibitions to Mr Wiecaszek. I requested Mr Lyon why the warning letter had attributed the 2 prohibitions to the identical driver. Mr Lyon stated this was simply an error and he couldn’t bear in mind why he had made it. I put it to Mr Lyon that the letter had been fabricated after he had seen the Examiner’s report because it appeared unlikely that each he and the Examiner would independently make the identical mistake. Mr Lyon insisted it was a real mistake and the letter was real at its said date.

I put Mr Lyon on discover that this discontinuity of proof taken together with the discrepancy between the statements of affairs between the one he had submitted and the one at Firms Home, dated the identical day, meant that his credibility was strained. I’d count on to see proof to help future assertions.

Ms Evans took Mr Lyons to the 2 statements of affairs. The one submitted within the operator’s bundle confirmed a deficit to HMRC by way of VAT of REDACTED. The doc downloaded from Firms Home confirmed a bigger deficit to HMRC which included PAYE and was REDACTED. Each paperwork had been dated 1 September 2021. Mr Lyon instructed me that he had referred to as the book-keeper. The reason he had been given was that the model put into proof had been the one emailed to him early within the day. The book-keeper had gone again to the liquidators to inform them that the PAYE was lacking however they hadn’t requested for it at the moment. It was correct at the moment as a result of that was all that had been requested for. He didn’t know why he had not supplied the up-to-date model for the inquiry. He had not intentionally sought to hide the PAYE debt.

I put to Mr Lyon that he appeared to be dismissing somewhat evenly a severe inconsistency in his proof noting that the Assertion of Affairs submitted by him confirmed a complete deficiency of REDACTED while the signed model at Firms Home confirmed the deficiency at REDACTED. I requested why he supplied me with a Assertion of Affairs that confirmed a deficiency of REDACTED when the corporate owed nearer a REDACTED. Mr Lyon instructed me that it wouldn’t have been helpful to supply the unsuitable doc.

I requested how such a big PAYE debt had been accrued. Mr Lyon instructed me that he had struggled to pay it because the begin of lockdown. That they had arrange a cost take care of HMRC however couldn’t adjust to it. I requested Mr Lyon why his pallet operation had struggled throughout Covid when all different pallet networks had been enormously busy and his personal submissions had been that he had been too. He instructed me that the drivers had been poor, failing deliveries, drivers introduced again deliveries on a regular basis. It had been terribly tough. It had come to a head as a result of XPO wouldn’t take care of the factoring firm. XPO’s work wasn’t as worthwhile as that they had thought, the cost phrases of 90 days didn’t assist and so they (XPO) didn’t prefer it when the factoring corporations chased the money owed.

I advised that it was extra seemingly that the operator had didn’t ship its commitments to XPO and the invoices weren’t getting paid for that purpose. “That’s not the case” was the response. I requested for proof that XPO had severed the contract merely due to the usage of factoring. Mr Lyon instructed me that he didn’t have it right this moment however there have been e-mail chains saying that XPO wouldn’t take care of an organization that factored. They had been about 2 or 3 months outdated. He didn’t have entry to them in the mean time. He may make just a few calls and see what was out there. I took a brief break to permit that to occur.

After the break, Ms Evans instructed me that her directions had been that the ultimate determination from XPO was delivered on the phone. There was no e-mail. Mr Lyon’s place now was that the corporate had been unable to ship on its commitments to the franchise, pallets had more and more constructed up on the warehouse. It wasn’t that drivers had been poor; they merely didn’t have the assets to ship as contracted. Factoring had been the ultimate straw for XPO. A duplicate of the contract was being appeared for.

Turning to the Visitors Examiner’s report in relation to driver Chapman, Mr Lyon had been interviewed. He had equipped knowledge for the interval July 2020 to January 2021. He would have used about twenty-five drivers throughout that interval. All work was pallet supply, multi-drop. All drivers had been beneath the identical stress and solely Mr Chapman had offences. There have been 5 autos getting used on the time. He hadn’t been analysing the information quick sufficient. Driver playing cards had been downloaded month-to-month and automobile items at all times throughout the ninety day restrict however weren’t at all times being analysed. It was November when the problem was observed. Their HR advisers instructed Mr Lyon that Mr Chapman couldn’t be sacked because it was the primary time it had been identified to him so he was given a warning. Mr Lyon assumed that the offending would then cease however, when he subsequent analysed automobile unit knowledge in January, he realised that it hadn’t. Mr Chapman didn’t attend the disciplinary listening to and left employment. The previous transport supervisor Nigel Rye had a weak mom so didn’t attend the location. Mr Lyon did the downloading. Mr Lyon’s spouse was additionally weak in order that meant Mr Lyon solely attended the location when it was wanted. It was a really busy time for the enterprise. In hindsight, he would have analysed extra ceaselessly. Driver playing cards had been now downloaded weekly and automobile items on or near the primary of the month. Other than Mr Chapman, there have been solely 3 or 4 incidents of lacking mileage discovered by the Visitors Examiner.

Automobile Examiner Kevin Simms had carried out a upkeep investigation on 29 April on a pre-arranged go to (having beforehand attended unannounced when Mr Lyon wasn’t there). Mr Simms discovered that the PMI stories weren’t good. Mr Lyon instructed me that MV Commercials who owned the autos couldn’t get autos booked right into a workshop. Individuals who attended on website wouldn’t let him hold the unique PMI as he wasn’t the proprietor of the automobile. Comparable shortcomings had been discovered by a DVSA Examiner in January 2020. They had been simply within the strategy of addressing these shortcomings when Covid hit.

The identical shortcomings had been evident when Mr Simms attended. He had been arguing with the rent firm. The one brake assessments had been at MOT. Covid had obtained in the best way. Wheel nut and torque setting procedures had been in place. In between VE Simms making contact and the investigation, that they had modified their tyre firm and improved the tyre and wheel-torque log.

Each automobile had been inspected and brake-tested correctly by the point that Mr Simms attended. Since then, MV had agreed to make use of one other provider, ADR, who Mr Simms had stated had been good. However it had turned out that they didn’t full the PMI on the time and it was two or three weeks earlier than they obtained them again. Automobiles had been brake examined ever since. They purchased two of the autos from MV final October. By means of this 12 months, the opposite three had been off-hired. All went again by Could.

I referred to the compliance paperwork for a automobile LT19EFM and couldn’t discover any reference to brake efficiency for both Could or July. I handed the information to Mr Lyon and requested him to inform me what had been the tyre pressures and brake efficiency. Mr Lyon instructed me that was why they left ADR Autos, they weren’t doing what they had been meant to do. Mr Lyon instructed me he hadn’t meant to mislead me when he instructed me that the autos had been being brake examined.

I referred Mr Lyon to a PMI for SM65HWB which had nineteen defects recognized on a pre-MOT inspection. There was additionally an inconsistency between the brake figures on the printout and people on the sheet. Mr Lyon instructed me that was as a result of the technician had copied the figures from the unsuitable printout. I requested why it was submitted for inspection on 25 June and signed off as roadworthy two weeks later, on 7 July. Mr Lyon instructed me that they had it that lengthy to get it prepared for the MOT. The brake check had slipped via unladen however that had since been rectified. I famous that 21 months after the Automobile Examiner had raised the problem in December 2019, laden brake assessments had been nonetheless not being undertaken. Mr Lyon initially instructed me that the final two had laden brake assessments nevertheless it was then conceded that was not the case.

VE Simms famous that the damaged exhaust had been famous on 9 separate driver defect stories however none had been handed to him throughout his investigation. Mr Lyon instructed me that one would have been in there however he wouldn’t add all of them for a similar defect which was being handled. I famous this was a unique rationalization to that given to the Examiner which was that the defect stories had been clipped to timesheets. I requested how a automobile could possibly be despatched out within the situation wherein LN64FYV was encountered on 30 March 2021 with the exhaust fractured in two, annotated “pipe fractured, gases not reaching silencer field”. Mr Lyon was at a loss to elucidate.

7. The proof of Paul Cookson

Mr Cookson handed his transport supervisor CPC qualification in January 2016. He had labored for Bidfood. He had undertaken sooner or later’s refresher coaching the week earlier than the inquiry. He joined the corporate on 10 Could, inside two weeks of the upkeep investigation. His first precedence was altering the defect reporting system in order that the stories weren’t clipped to timesheets. He had delivered coaching to the drivers who had responded effectively.

He had recognized on a PMI sure defects that ought to have been noticed on a pre-shift test. That driver had been disciplined. Load securing had been fairly a difficulty. Lacking mileage had been extreme. An audit could be carried out for EME, a evaluation had been undertaken which gave some suggestions.

I famous the photographs (web page 54 and 55) of a load which had shifted and requested whether or not the drivers had protected techniques for working at top. There have been some. He had written to and agreed with the upkeep supplier for laden brake testing. It was non-negotiable.

8. Closing submissions

Ms Evans closed by confirming that important regulatory motion is likely to be vital however requested that not impression on Mr Lyon’s reputation. I ought to discover that the errors in relation to the warning letter and submitting the unsuitable Assertion of Affairs had been real. The false information had been one rogue driver which was accepted by the Visitors Examiner.


The corporate is in liquidation and doesn’t have monetary standing. Part 27(1)(a) is made out in relation to finance. The Japanese licence doesn’t have an working centre. Neither has entry to autos. Part 27(1)(a) is made out in relation to secure institution.

Neither licence has a transport supervisor specified however every has one nominated. That nomination has been on maintain pending the general public inquiry. Within the circumstances, it can’t be granted however it will be unreasonable to make an antagonistic discovering in relation to skilled competence when a nominee was put ahead a number of months in the past. Paul Cookson didn’t get the time wanted to make any important adjustments and fewer nonetheless time for these adjustments to turn into embedded. He struck me as a reliable particular person and nothing on this determination ought to delay his appointment as a transport supervisor elsewhere.

As Ms Evans rightly submits, the problem right here will not be the revocation of the licence which is obligatory on, a minimum of, two grounds. The problem right here is the reputation of Neil Lyon as a person, and that of the corporate, he being sole director. There are a selection of things which weigh within the stability.

Within the optimistic, this isn’t an operator that didn’t have any techniques in any respect. The Visitors Examiner scored the visitors administration techniques “largely passable”. While I discover that onerous to reconcile with the persistent driving and not using a card by one driver, I do weigh it within the optimistic in that techniques had been in place, if removed from totally efficient.

The Automobile Examiner discovered proof of a planning system for 2021 and that the operator was conscious to test for recollects. Optimistic feedback had been additionally made in relation to website and automobile safety with Mr Lyon apparently conscious of the necessity to minimise the terrorist threat arising doubtlessly arising from unsecured autos. Some motion was taken between the Examiner making his appointment and the go to itself to make sure that autos underwent an affordable inspection. Mr Cookson was put within the function of transport supervisor. Mr Lyon invested in skilled authorized help for the inquiry which is a transparent indication that he understands the significance of the problems.

However it isn’t all a rosy image. In November 2019, the operator obtained a prohibition for an insecure load. A DVSA investigation adopted the place the operator was given steering on learn how to safe hundreds sooner or later. That seems to have fallen on deaf ears with additional load safety prohibitions issued on 16 December 2020, 23 March 2021 and 30 March 2021. The hole in prohibitions between November 2019 and December 2020 have to be thought-about in opposition to the backdrop of DVSA conducting solely very restricted inspections through the numerous Covid lockdowns in 2020. This can be a pallet, multi-drop supply operation the place there’s a threat {that a} load which is secured at the beginning of the day is allowed to turn into insecure because the day progresses and a few pallets are eliminated. That seems to be the case on 30 March 2021 the place a pack of some type of board has been left utterly with none load securing. The shrink wrap seems to have failed and the fallen stack of boards is clearly seen within the bulge within the curtains, curtains designed to maintain the climate out, not the load in. For an operator operating solely 5 autos to obtain 4 load safety prohibitions in eighteen months over Covid is reflective of a severe lack of management and a palpable unwillingness to take DVSA recommendation.

The same image arises in relation to preventative upkeep inspections together with brake testing and the inadequacy of PMI checks being carried out in a yard with out correct inspection amenities. Recommendation was given on this by DVSA Automobile Examiner Harold Cooper on 26 November 2019. Because of the optimistic commitments made by the operator in response to his recommendation, VE Cooper advisable no additional motion. VE Cooper couldn’t have envisaged eighteen months later that each one the shortcomings he recognized and which the operator promised to rectify had been nonetheless in place for his colleague’s go to.

Neil Lyon blames this dire lack of motion on his automobile provider. It’s the operator’s job to handle the provider and this argument additional wanes after I absorb to account the truth that Mr Lyon instructed me he had purchased two autos in October 2020, six months earlier than the go to of Automobile Examiner Simms. He then blames the shortcomings on the shortage of workshop availability throughout Covid. I’ve to declare an curiosity. From 17 March 2020 onwards, till about July, I used to be social gathering to common, at instances greater than weekly, business discussions on learn how to keep the fleet with decreased workshop capability. Current at these discussions had been operator representatives, and representatives of franchised and impartial workshops. Particular steering was printed and maintained all through the pandemic interval and is obtainable to view on the Visitors Commissioner web page on Our web page was used as a result of an impartial regulator will not be topic to Whitehall scrutiny earlier than publishing recommendation and time was crucial. I confer with this not solely to level out that clear steering on the circumstances was out there to Mr Lyon had he appeared however to notice that the workshops instructed us, that’s TCs, DVSA and the Division for Transport, that, albeit very tough, amenities had been out there to keep up the fleet at higher than the relaxed stage of inspection we had printed. By autumn 2020, issues had been largely again to regular. Neil Lyon ought to not blame others with out first confirming the details and his duties.

The information I noticed nonetheless confirmed the identical deficiencies as these recognized by VE Cooper nearly two years in the past. In relation to the prohibition issued on 30 March 2021 for the fractured exhaust, Mr Lyon instructed me that the drivers clipped their defect stories to their timesheets and so they went via the workplace and had been filed. There’s additional proof within the operator’s response to the Automobile Examiner that the operator had been conscious of the defect for 13 days previous to the prohibition being issued however had not made agency preparations for restore till the prohibition was issued.

Neil Lyon instructed me that digital tachograph automobile items had been downloaded each 90 days however not analysed that usually. He instructed me that, in November 2020, he recognized a driver routinely pulling his card. He was suggested that he couldn’t dismiss the motive force on a primary offence – it was not the motive force’s fault in spite of everything that it had taken his employer 4 months to uncover the routine falsifications. However Mr Lyon then allowed the motive force to proceed with no heightened stage of checking.

Mr Lyon refers to 90 days because the authorized most for downloading. I’ll take this chance to elucidate why that isn’t actually what the regulation says. The ninety days is a backstop for any transport endeavor. What the regulation requires of an operator is to be present in Part 13C(2) of the Items Automobiles (Licensing of Operators) Act 1995 which states:

(2) There have to be passable preparations for securing that the next are complied with within the case of autos used beneath the licence—

  • Half 6 of the Transport Act 1968 (drivers’ hours);

(b) the relevant Group guidelines, throughout the that means of that Half.

“Passable preparations” will rely upon the character of the operation. For instance, for a builders retailers which is open 8 – 5 Monday to Friday and the place the drivers have a forty five minute lunch on the working centre every day, it might be acceptable to reap the benefits of the 90 day backstop. However the operator wants first to find out whether or not or not such preparations are passable in these circumstances. Within the circumstances of a high-pressure time-sensitive multi-drop operation, to conclude that 90 days is passable is reckless within the excessive, particularly when Mr Lyon instructed me that, within the focal interval, roughly twenty-five totally different drivers had been used. It was the deeply-flawed determination to undertake the 90-day backstop that allowed the sample of gross offending to develop. That the information was not even then promptly analysed and acted upon, after which preparations tightened when offending was recognized, shows a cavalier disregard for compliance.

So, Mr Lyon makes guarantees to DVSA Examiners that he doesn’t hold. He blames others for his personal deficiencies. He has patently didn’t make correct preparations to maintain autos match and serviceable. Part 26(1)(f) is made out in relation to drivers hours and upkeep. Part 26(1)(c) is made out via the copious prohibitions issued.

There’s something much more severe about Mr Lyon that I would like to contemplate now. He supplied a bundle of proof previous to the listening to. In that was a press release of affairs for the corporate dated – however not signed – 1 September 2021. It confirmed a deficit to HMRC of REDACTED and an total deficiency of REDACTED. Previous to the listening to, I downloaded the signed model from Firms Home. It confirmed a deficit to HMRC of REDACTED and total deficiency of REDACTED. Mr Lyon instructed me that he had merely forwarded the unsuitable model to his solicitor. In essentially the most optimistic mild, that was a reckless act that put faulty proof earlier than me. When set within the context of a person, in impact, providing up a licence for revocation while looking for to keep up a linked licence, it was deeply in Mr Lyon’s curiosity for me to contemplate that the failure was comparatively modest and there was no inappropriate Crown loss. I discover at finest Mr Lyon was delinquent in not checking his proof with the best of care however I additionally discover extra seemingly than not that it was a deliberate act to throw me off the monitor of a director who has left the taxpayer over a REDACTED worse off at a time when nationwide borrowing is at its highest stage post-wartime.

On the very begin of his proof, I took Mr Lyon to the warning letter he claimed to have issued to driver Wiecaszek on 1 April citing that driver’s involvement in two load safety prohibitions, on 23 and 30 March, simply two days earlier than the letter was written. Mr Wiecaszek was not concerned within the prohibition on 30 March. VE Simms did mis-assign it to him in his report of 29 April. For 2 separate people independently to make exactly the identical error is so extraordinarily unlikely that I discover that Mr Lyon fabricated the warning letter dated 1 April while creating his response to the Automobile Examiner. There are additional examples of Mr Lyon mendacity to me. He instructed me that XPO terminated the contract as a result of they didn’t just like the factoring firm chasing money owed. Solely after a break did he settle for, as I had already put to him and he had vehemently denied, that the rationale the contract was terminated was the corporate’s failure to honour the phrases and the factoring firm, chasing money owed that weren’t really due, was the ultimate straw. Individually, he instructed me that each one autos because the Automobile Examiner’s go to had obtained laden brake assessments. That they had not.

So I discover that Neil Lyon will say what he thinks he must say. Whether or not or not that’s true is a matter of inconvenience that doesn’t hassle him. Can I belief him to conform in future? I completely can not. I’ve no hesitation find his good reputation to be misplaced. Part 27(1) is additional made out.

The impact of disqualification was not explicitly put to Mr Lyon through the inquiry. I have no idea the impression which may have on the sister firm EME Buying and selling Ltd, for instance, whether or not it may well survive with out an in-house transport operation. I’ll name EME Buying and selling to a public inquiry to contemplate its good reputation and Mr Lyon individually to the identical inquiry to contemplate his disqualification.


Pursuant to every particular person discovering beneath Part 27(1)(a) of lack of good reputation, monetary standing and secure institution, and beneath every discovering beneath Sections 26(1)(c) and (f), the licences are revoked with quick impact.

EME Buying and selling Ltd is to be referred to as to a public inquiry to contemplate its good reputation, monetary standing, secure institution {and professional} competence.

Neil Lyon is named to a conjoined public inquiry to contemplate his disqualification.

Nothing on this determination needs to be thought-about as an antagonistic discovering in relation to Paul Cookson and future purposes involving him needn’t be referred for that purpose alone.

Any utility involving Nigel Rye is to be referred to a Visitors Commissioner.

Kevin Rooney

Visitors Commissioner

5 October 2021


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