The senior traffic commissioner for Great Britain has updated guidance which will assist lease and finance companies trying to recover impounded vehicles.

The traffic commissioners of Great Britain are responsible for licensing and regulating operators of heavy goods vehicles, buses and coaches, and the registration of local bus services. They also cover vehicles, such as limousines, that:

  • are used for hire or reward; and
  • which are adapted to carry more than eight passengers; or
  • if not so adapted are used in the course of a business for carrying passengers who are charged separate fares.

A traffic commissioner presides over a tribunal and they operate as a non-departmental public body, sponsored by the Department for Transport. They are set up regionally and cover the following regions:

  • North West
  • North East
  • West
  • East
  • South East
  • Wales and West Midlands
  • Scotland

Various regulations allow for the detention and disposal of vehicles, which are not being operated legally (for example, without an operator's licence). The regulations also provide the opportunity for you to apply (in a specified manner) to a traffic commissioner for the return of your vehicle. You will usually have a period of at least 21 days from the date of publication in the London Gazette, or separate notice to you, to make your application.

The commissioner will hold a hearing about your application. Please beware that it is an adversarial process and you are entitled to give evidence, to call witnesses, to cross examine witnesses and to address the traffic commissioner both on the evidence and generally. You will need to prepare carefully and ideally obtain legal advice.

The burden of satisfying the traffic commissioner that the vehicle should be returned is on you. You must establish that you had no knowledge of the contravention at the time when the vehicle had been used, whenever that was and whether such use was at the time of detention or on some earlier occasion.

What constitutes knowledge is beyond the scope of the length of this article but very briefly, and not exhaustively, the commissioner will consider 'Has the claimant satisfied me that he, she or it probably did not know that the vehicle was being or had been used in contravention of ...the Act?'. The law and guidance around this question is extensive, and each case is considered on its merits, but the likely success of your application could well hinge on your ability to handle this question.

Conclusion and Practical tips

We recommend that you prepare in advance for the possibility of having to attend a hearing before a traffic commissioner. Hearings are rigorous and detailed, and often involve barristers making detailed legal and factual arguments on your behalf. The guidance is helpful, but with each case turning on its facts, it is only a starting point.

Practically we recommend that you:

  • check the notices section of the London Gazette and the Edinburgh Gazette for your vehicles
  • consider your internal procedures for dealing with lease or finance customers who need an operator's licence to use your vehicle
  • take advice early on making the application for return and your evidence in support of you having 'no knowledge' that your customer was operating the vehicle without the required licence.