we are here to help

Call us 01204 371928 or 07436070340

Court Cases.

**************************************


COURT CASES










Neutral Citation Number: [2019] EWHC 365 (Admin)

Case No: CO/4549/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

21/02/2019

B e f o r e :

MR JUSTICE JULIAN KNOWLES

____________________

Between:

Thomas McNutt

Appellant

- and -

Transport for London

Respondent

____________________

Andrew Taylor (instructed by Michael Demidecki & Co) for the Appellant

David Patience (instructed by Transport for London) for the Respondent

Hearing dates: 13 February 2019

____________________

HTML VERSION OF JUDGMENT

____________________

Crown Copyright ©

The Honourable Mr Justice Julian Knowles:

Introduction

This is an appeal by way of case stated against the decision of Hendon Magistrates Court on 23 May 2018 to find the Appellant, Thomas McNutt, guilty of the offence contrary to s 165(7) of the Equality Act 2010 ('the EA 2010'). It raises an important point of statutory construction in relation to the duty pursuant to s 165(1)(a) and s 165(4)(b) of the EA 2010 on the driver of a taxi which has been hired by or for a disabled person in a wheelchair 'not to make any additional charge for doing so'. By s 165(7), it is a criminal offence to make such an additional charge.

It is convenient at this point to set out the relevant statutory provisions. Section 165 provides:

"(1) This section imposes duties on the driver of a designated taxi which has been hired—

(a) by or for a disabled person who is in a wheelchair, or

(b) by another person who wishes to be accompanied by a disabled person who is in a wheelchair.

(2) This section also imposes duties on the driver of a designated private hire vehicle, if a person within paragraph (a) or (b) of subsection (1) has indicated to the driver that the person wishes to travel in the vehicle.

(3) For the purposes of this section—

(a) a taxi or private hire vehicle is 'designated' if it appears on a list maintained under section 167;

(b) 'the passenger' means the disabled person concerned.

(4) The duties are -

(a) to carry the passenger while in the wheelchair;

(b) not to make any additional charge for doing so;

(c) if the passenger chooses to sit in a passenger seat, to carry the wheelchair;

(d) to take such steps as are necessary to ensure that the passenger is carried in safety and reasonable comfort;

(e) to give the passenger such mobility assistance as is reasonably required.

(5) Mobility assistance is assistance—

(a) to enable the passenger to get into or out of the vehicle;

(b) if the passenger wishes to remain in the wheelchair, to enable the passenger to get into and out of the vehicle while in the wheelchair;

(c) to load the passenger's luggage into or out of the vehicle;

(d) if the passenger does not wish to remain in the wheelchair, to load the wheelchair into or out of the vehicle.

(7) A driver of a designated taxi or designated private hire vehicle commits an offence by failing to comply with a duty imposed on the driver by this section.

(8) A person guilty of an offence under subsection (7) is liable on summary conviction to a fine not exceeding level 3 on the standard scale."

The list maintained under s 167 mentioned in s 165(3)(a) is the list of wheelchair accessible vehicles kept by the relevant taxi licensing authority.

A taxi is defined by s 173(1)(a) to be a vehicle which is licensed under s 37 of the Town Police Clauses Act 1847 or s 6 of the Metropolitan Public Carriage Act 1869 (the 1869 Act). In simple terms, it means a vehicle plying for hire.

The factual background

The facts as set out in the stated case can be summarised as follows.

On the morning of 4 October 2017, the complainant, Emma Vogelman, who is a wheelchair user, went to a taxi rank. She was with her assistant, Laura Creek. The Appellant was the first driver on the rank. They sought to board his taxi. Before he unlocked the wheelchair ramp, and before the two women had boarded, the Appellant activated the taximeter fitted to his taxi. Ms Vogelman and Ms Creek noticed that the taximeter had been activated and Ms Creek challenged the Appellant about it, the point being that Ms Vogelman would be charged for the time it took to get her and her wheelchair into the taxi. There was then an altercation between the Appellant and Ms Vogelman and Ms Creek. The upshot was that the two women boarded another taxi driven by Graham Anmer. Ms Vogelman confirmed in her evidence that no money changed hands between her and the Appellant and she never got into his taxi. When Mr Anmer attempted to leave the Appellant prevented him using his taxi as he wanted their details. The police were called. Mr Anmer eventually drove the two women to their destination.

In due course the Appellant was interviewed under caution by Transport for London (TfL) (which, by virtue of Chapter II of Part IV of the Greater London Authority Act 1999, is the statutory taxi regulator in London) and he was then summonsed for the offence contrary to s 165(7) read with s 165(4)(b).

The Appellant pleaded not guilty and stood trial at the magistrates' court on 23 May 2018. Ms Vogelman, Ms Creek and Mr Anmer all gave evidence for the prosecution. At the conclusion of the prosecution's case the Appellant submitted that there was no case for him to answer. It was contended that the offence contrary to s 165(7) of breaching the duty under s 165(4)(b) was not made out until the exact point in time when the charge was levied, in other words, when the driver demanded payment. This could only be at the end of the journey. Here, no journey had been taken and therefore there could be no offence.

Counsel for TFL argued that this was a contrived interpretation of the legislation. If followed it would have the impact of seriously undermining the effectiveness and integrity of important legislation designed to promote equality. Whatever charge would be levied would be determined by the meter and this had been switched on.

According to the case stated, the magistrates decided that that the process of making an additional charge started at the point in time when the Appellant started his taximeter and that clearly the final required payment would include that period during which Ms Vogelman was boarding the vehicle. This is the type of situation that s 165 was meant to prevent. Accordingly, they found that there was a case to answer.

The Appellant then gave evidence. He accepted that he had

switched on the meter before he had unlocked the ramp and before Ms Vogelman had boarded. The stated case observes that because the burden of the prosecution case was that the charging process commenced at the point in time when the Appellant had switched on the taximeter, and there was no dispute that had occurred, the extent of the disagreement between the Appellant and the prosecution witnesses was relatively peripheral. He also accepted that an altercation had ensued, but alleged that the two women had been more aggressive and provocative than he had been.

At the end of their deliberations the magistrates were of the view that the point in time when the making of the charge commenced was the point when the Appellant turned on his taximeter. Accordingly, they found the Appellant guilty. The stated case records their decision as follows (sic):

"Mr McNutt please stand. You are charged under the Equality Act 2010. s.165 of which states that a designated taxi driver should not make an additional charge for carrying a disabled person. By putting on your meter as you got out of your cab to unlock the ramp, it is apparent that it was your intention for the meter to keep running during the process of loading the wheelchair. This would lead to an additional charge to that which passenger without a disability would pay. It was your responsibility to keep up to date with changes in legislation and not being aware of changes to the law is not a defence. We therefore find you guilty beyond reasonable doubt."

The Appellant was conditionally discharged for twelve months, ordered to pay costs of £1000 and compensation of £75 each to Ms Vogelman and Ms Creek, and the victim surcharge of £20.

I was told at the hearing that this was the first prosecution by the Respondent for the offence under s 165(7) for breach of the duty in s 165(4)(b), although there have been prosecutions of taxi drivers for refusing to carry disabled passengers.

Questions posed

The questions posed in the stated case for the opinion of the High Court are as follows:

(1) Did the Appellant make an additional charge for carrying a wheelchair user, Emma Vogelman, on 4 October 2017 ?

(2) Did the magistrates err in law by convicting the Defendant of making an additional charge for carrying a wheelchair user, contrary to s 165(7) Equality Act 2010 ?

It is not in dispute that if the answer to the first question is 'yes' then the answer to the second question automatically follows and is 'no'.

The parties' submissions

It is not in dispute between the parties that demanding payment from a wheelchair user for the time it takes to board the taxi would amount to the making of an additional charge for the purposes of s 165(4)(b) and s 165(7) of the EA 2010. This is consistent with what is said in Button on Taxis: Licensing Law and Practice (4th Edn), [9.24]:

"It is important to consider the position of disabled and wheelchair bound passengers. The 'journey' does not commence until the passenger is securely seated, or the wheelchair has been correctly loaded and secured, the ramps have been properly stowed and the journey commences. If the meter commenced before the loading commences, and continues until the loading has finished, there is direct discrimination because the disabled passenger is being treated less favourably than an able-bodied passenger, contrary to s 13 of the Equality Act 2010."

This is said in relation to hackney carriages outside London, but in my judgment the same is true within London.

The main issue on this appeal is whether a 'charge' was made by the Appellant by the act of him switching on his taximeter before Ms Vogelman and Ms Creek had boarded, even though Ms Vogelman never entered his taxi, no money was demanded (either expressly or by implication) and they ended up travelling in a different taxi.

On behalf of the Appellant, Mr Taylor submits that the temporary activation of a taximeter without more does not result in the making of a 'charge' within the meaning of s 165(4)(b). He says that action alone is not sufficient to amount to a charge in circumstances where Ms Vogelman did not enter his cab, no monies changed hands, no price was quoted and no services rendered. He says there has to be a demand for the fare (either expressly or by implication) before the taxi driver 'makes a … charge' within s 165(4)(b).

Mr Taylor says that it was Mr Anmer and not his client who made the charge, because he quoted the final fare and received payment. Mr Taylor also says that a charge is not made until the end of the journey because then and only then can the payable amount be determined with certainty.

On behalf of the Respondent Mr Patience submits that the phrase 'make any additional charge' in s 165(4)(b) is not restricted to merely occurring at the point at which the metered fare (including an impermissible extra amount) is actually demanded at the end of the journey, but should be construed as covering both of the following situations:

a. when an indication is given by the driver at the point of hiring to a disabled person that they will be made liable to an additional charge;

b. where the taximeter is switched on before the disabled person and their wheelchair have been loaded, thereby creating a pecuniary obligation on the disabled passenger to pay the metered fare, the boarding process taking more time than it would for a non-disabled person, thereby resulting in an additional charge.

Mr Patience points to the Oxford English Dictionary definition of the word 'charge' as including 'to subject or make liable (a person, estate, etc) to a pecuniary obligation or liability' and says that this means that the word as used in s 165(4) covers the two posed scenarios. He said that to accept the Appellant's argument would mean that, for example, taxi drivers would be able to avoid carrying disabled passengers by giving an indication at the point of hiring that there would be a significant surcharge. That would discourage most disabled passengers from travelling with that driver. The driver would not, however, be liable for a breach of the duty in s 165(4)(b) because he would never reach the stage of demanding payment. The driver would then never have to carry a passenger in a wheelchair but would not be liable for the offence in s 165(7).

Mr Patience therefore says the two questions posed for this Court's opinion should be answered 'yes' and 'no' respectively.

Discussion

The researches of counsel have not uncovered any prior authority on the proper construction of s 165(4)(b). There is some brief statutory guidance which I will return to later. The issue before me is therefore a novel one. It is, as I have observed, a question of statutory construction.

The object of statutory interpretation is to discover the intention of the legislature as expressed in the instrument considering it as a whole and in its context, and acting on behalf of the people. As Viscount Simonds said in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436, 461:

"… words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy."

The search for legislative intention is not a search for the actual subjective intention of a particular group of politicians, but an objective search for the intention that must be imputed to the legislature by reference to the meaning of the words used and the context in which they are used. In R v Secretary of State for the Environment, Transport and the Regions, ex pate Spath Holme Ltd [2001] 2 AC 349 at 396-397 Lord Nicholls of Birkenhead said:

"Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the "intention of Parliament" is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning "cannot be what Parliament intended", they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning."

Also, as Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613:

"We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used."

The starting point is to note the precise language used in s 165(4)(b). The driver's duty is not 'to make any additional charge' as a result of being hired by or on behalf of a disabled person. In this phrase the word 'charge' is being used as a noun and not a verb. The online Oxford English Dictionary definition of 'charge' when used as a noun include 'a price asked for goods or services' and also 'a financial liability or commitment' (see https://en.oxforddictionaries.com/definition/charge).

The first of these meanings supports, to an extent, Mr Taylor' submission that the point in time when a driver makes an additional charge can only be at the end of the journey because it is then and only then that the precise fare can be ascertained, in other words, only is the price asked. On the other hand, the second definition supports Mr Patience's submission that in a taxi fitted with a taximeter the passenger's obligation is to pay whatever the meter shows at the end of journey, and so the moment the meter is switched on the passenger becomes financially liable for the fare, and it is thus at that point that the driver makes the charge.

In my judgment it is the second meaning which is to be ascribed to the word 'charge' as used in s 165(4)(b), and a taxi diver makes a charge when he switches his taximeter on, and if he does this for a disabled passenger before the passenger and her wheelchair have been loaded into the taxi, there will be an additional charge and thus an offence under s 165(7) even if, for whatever reason, the driver never actually demands the fare.

Section 165 has its basis in s 36 of the Disability Discrimination Act 1995 (as amended by the Local Transport Act 2008), which was in materially identical terms. Section 36 was introduced into the Disability Discrimination Bill at the Committee Stage in the House of Lords (see HL Deb 15 June 1995 vol 564 col 2037). Lord Mackay of Ardbrecknish, the Parliamentary Under-Secretary of State for Transport, introduced a number of amendments to the Bill concerning taxis and the requirement for them to be wheelchair accessible. In relation to what became s 36 he said:

"In Amendment No. 96, it is one thing to provide for taxis to be designed or adapted to be able to carry a passenger in a wheelchair but we need also to ensure that the drivers of those vehicles are then required to convey those passengers. The new clause, Amendment No. 96, sets out the duties which will apply to drivers of regulated taxis when they are hired by a disabled person. These duties not only extend to the carriage of disabled persons, but also to the manner in which those persons should be carried. Any driver who fails to comply with these duties will be guilty of an offence."

Given my view that the word 'charge' as used in s 165(4)(b) is capable of more than one meaning, ie, it is ambiguous, I consider this statement by the Minister to be admissible under Pepper v Hart [1993] AC 593 because it is clear and discloses the mischief which s 36 (and now s 165) was and is aimed at. That is the need to ensure that taxi drivers carry disabled passengers and to provide criminal penalties if they fail to do so or fail to comply with the other duties which the section imposes upon them in order that disabled people have access to taxi services on terms which are not disadvantageous by reason of their disabilities.

Against that background, it cannot have been Parliament's intention that the word 'charge' should be construed so that a taxi driver only becomes criminally liable for charging a disabled passenger more when he actually demands the additional fare at the conclusion of the journey. The example given by Mr Patience demonstrates why this is so. It would mean that an unscrupulous taxi driver would be able to avoid his duty to carry disabled passengers, and his duty to assist them if necessary, by quoting an inflated fare upon being flagged down, knowing that it will not be accepted and he will then be free to drive off in search of a non-disabled fare. Another example might be the dishonest driver who puts an additional charge on the meter hoping that the disabled customer does not spot it, but who does not demand the additional amount if the passenger does notice. If Mr Taylor's construction of s 165(4)(b) were correct, in neither scenario would the driver commit the offence under a 165(7) because he would not have actually demanded the additional amount, and (in the first scenario) he would be able to avoid his statutory duty without consequence. The second scenario would deprive disabled people of significant protection. These would be absurd results and wholly inconsistent with the stated purpose of the section. In my judgment they are not something which Parliament could have intended.

In my judgment there can be no doubt that no later than the time a taximeter is switched on at the point of hire, an actual financial liability or commitment is imposed on the passenger to pay the amount shown on the meter when the hiring is terminated, and it is therefore at that point that the charge is made for the purposes of s 165(4)(b). That is for the following reasons.

There are a number of pieces of legislation governing taxis. There are different statutory regimes for London and the rest of the country. The following paragraphs deal with the provisions relating to London; I will consider the position outside London at the end of this judgment.

The principal legal provisions relating to taximeters and fares in respect of hackney carriages within London (as taxis which ply for hire are often called in the legislation: see s 6 of the 1869 Act) are contained in Part VI of the London Cab Order 1934 (SI 1934/ 1346) (the LCO), made under s 9 of the 1869 Act. The LCO has been amended many times over the years and the power to make amendments now rests with TfL pursuant to s 253 and Sch 20, para 5(6)(a), of the Greater London Authority Act 1999.

Section 9 of the 1869 Act provides:

"9 Regulations as to hackney and stage carriages.

Transport for London may from time to time by London cab order make regulations for all or any of the following purposes; that is to say,

...

(3) For fixing the rates or fares, as well for time as distance, to be paid for hackney

carriages, and for securing the due publication of such fares:

(4) For forming, in the case of hackney carriages, a table of distances, as evidence for the purposes of any fare to be charged by distance, by the preparation of a book, map, or plan, or any combination of a book, map, or plan:

Subject to the following restrictions:

(4) Any power of Transport for London to fix by regulations made by London Cab Order under this section any rates or fares to be paid for hackney carriages is exercisable subject to and in accordance with any directions given to Transport

for London by the Mayor of London as to the basis on which those rates or fares are to be calculated."

In addition, s 1 of the London Cab and Stage Carriage Act 1907 (the 1907 Act) specifically provides for TfL to fix fares for cabs using taximeters in London. Section 1(1) provides as follows:

"1 Fares for taximeter cabs

(1) Transport for London shall have power by regulations made by London cab order under section nine of the Metropolitan Public Carriage Act, 1869, to fix the fares to be paid for the hire in London of cabs fitted with taximeters, either on the basis of time or distance or both, and so as to differ for different classes of cabs and under different circumstances."

Part VI of the LCO is entitled 'Regulations as to Taximeters and Fares for Motor Cabs'. The following provisions are relevant in this case:

a. All motor-cabs are required to be fitted with taximeters of a type approved by TfL ([35(1)] and set up in such a way that after the taximeter has been started the 'fare payable for the hiring, as prescribed by paragraph 40, is automatically recorded and displayed on the taximeter ([35(2)(a)]) and the total of 'any extra charges payable' is also displayed [35(2)(b)].

b. Such taximeters are required to sealed by persons authorised by TfL ([35(3)] and tampering with a seal is prohibited ([36]).

c. Plying for hire without a taximeter fitted or one which is unsealed or in respect of which the seal has been tampered with is prohibited ([37]).

d. The display on the taximeter must be illuminated so 'as to render the readings on the dial of the taximeter easily legible at all times of the day and night ([38]).

e. The taxi driver must 'start the taximeter no sooner than when the cab is hired or at such later time as the driver thinks fit' ([39(1)]) and must 'stop the taximeter no later than when the hiring is terminated or at such earlier time as the driver thinks fit' ([39(2)].

f. Paragraph 40 sets out rules relating to the maximum 'payable ' fares for the hiring for a journey of a motor cab. In particular, it provides that the maximum fare payable for a journey of a motor cab shall be the aggregate of:

(i) a hiring charge ([40(1)(a)]) (ie, the amount shown on the meter at the start of the journey and before it has commenced);

(ii) a sum arrived at by reference to the length and duration of the journey in accordance with the rates set out in [40(2)].

Paragraph 40(2) contains the rates chargeable according to formulae whose principal variables are time, speed and distance. The rates are amended from time to time by TfL pursuant to its power under s 1 of the 1907 Act. Paragraph 40(3) provides for a minimum fare, and [40(4)] specifies what additional sums may be charged (eg, for soiling the cab).

g. Paragraph 40A allows a cab driver to opt to charge a passenger an agreed fixed fare instead of using the taximcter. In such circumstances, [39] and [40] do not apply but Schedule E has effect instead. Paragraph 6(1) of Schedule E provides that where a cab is hired under the fixed fare arrangements, the driver of the motor cub shall not start the taximeter during the course of the passenger's journey except where' the passenger makes a request to be taken to a different destination (para. 6 (2)).

In light of these very detailed provisions specifying what fares may be charged by a driver of a London taxi fitted with a taximeter, in my judgment it is clear that a passenger is legally obliged to pay the metered fare, whatever that fare might be. That legal obligation has at least two strands to it. Firstly, it is an implied term of the contract struck between the taxidriver and the passenger at the point of hire. The taxi driver agrees to the take the passenger to their destination and the passenger agrees impliedly to pay the fare on the meter. It is always open to the taxidriver to vary the contract by accepting a lesser fare, ([40(1)] of the LCO making clear that the metered fare is the maximum fare, and see also R v Liverpool City Council ex parte Curzon Ltd [1993] Lexis Citation 2846), but absent such a variation the passenger is contractually bound to pay the metered fare. Second, a passenger who fails to pay the fare due according to the meter would likely commit one or more criminal offences. It is an offence contrary to s 41 of the London Hackney Carriage Act 1831 to 'refuse or omit to pay the driver of any hackney carriage the sum justly due to him for the hire of such hackney carriage'. The term 'justly due' is not further defined but must be the fare shown on the meter because that is what the LCO specifies the fare shall be (or a lesser sum if the driver agrees to that). There are further offences in s 1 of the London Cab Act 1896. It is an offence for a person to hire a cab when he knows or has reason to believe that he cannot pay the 'the lawful fare'. It is also an offence to fraudulently endeavour to avoid payment 'of a fare lawfully due'. For the same reasons, these expressions must refer to the fare shown on the meter, or a lesser fare if the driver agrees to that.

For these reasons, in my judgment the words 'make an additional charge' in s 165(4)(b) mean to impose an additional financial liability or commitment on a disabled wheelchair user as compared with an able bodied passenger, and such a liability or commitment is imposed no later than the point when a London taxi driver switches on his meter before such a person and their wheelchair have boarded the taxi.

Mr Taylor for the Appellant was able to point to s 11 of the Private Hire Vehicles (London) Act 1988, which defines a taximeter to be 'a device for calculating the fare to be charged', and he sought to draw support from it for his construction of 'charge' in s 165(4)(b). The short answer is that, as I have explained, the process of statutory construction involves examining the language in question in its proper context. The context in which charge is being used in s 165 is in the context of protecting disabled people from discrimination and enabling them to use taxis on no worse terms than able bodied people. That context is different from s 11.

What about the first of Mr Patience's scenarios at [22(a)] above, where the driver gives a fare indication at or before the point of hiring (perhaps in course of negotiating a fixed fee fare under [40A] of the LCO) ? In my judgment such an indication also amounts to a financial liability or commitment, and thus a charge within s 165(4)(b), albeit of a contingent kind. The reason is the one I have already given: to construe 'charge' as excluding inflated fare indications would enable drivers deliberately to discourage disabled passengers from travelling with them, and thus to avoid their duty under s 165 to carry such passengers, and thus defeat the whole purpose of that section.

The conclusions that I have reached accord with such material as exists on the scope of the obligation imposed on drivers by s 165(4)(b). The Department for Transport has issued statutory guidance to taxi licensing authorities pursuant to s 167(6) of the EA 2010 on the application of ss 165 – 167 ('Access for wheelchair users to Taxis and Private Hire Vehicles – Statutory Guidance'). Paragraph 4.7 provides:

"It is our view that the requirement not to charge a wheelchair user extra means that, in practice, a meter should not be left running whilst the driver performs duties required by the Act, or the passenger enters, leaves or secures their wheelchair within the passenger compartment. We recommend that licensing authority rules for drivers are updated to make clear when a meter can and cannot be left running."

TfL's own guidance for taxi drivers on 'Passengers and Accessibility' is in similar terms.

The conclusions I have reached are also consistent with the passage in Button on Taxis: Licensing Law and Practice (4th Edn), [9.24], that I quoted earlier in this judgment. Further, [18.10] of the same work states:

"The London Cab Order 1934, art 39, makes it clear that the meter must be set in motion as soon as the cab is hired, and not before and then stopped as soon the hiring is terminated, but art 39 allows the driver to start the meter later, or stop it earlier. Section 29 of the Equality Act 2010 makes it clear that a service-provider cannot discriminate against a disabled person, so it is important that he meter is not started until a wheelchair bound passenger is properly loaded and secured and is also stopped at the end of the journey, not when the unloading has been completed."

It follows that I would answer the first question posed by the justices 'yes' and the second question 'no'.

I have focussed in this judgment on London taxis fitted with taximeters because this appeal concerns such a vehicle. However, I hope it will be of assistance if I say something about private hire vehicles (PHVs) in London, and taxis and PHVs outside London, all of which are also subject to s 165.

Inside London, licensed private hire vehicles (PHVs) are prohibited from being fitted with taximeters by s 11 of the Private Hire Vehicles (London) Act 1998; cf. Transport for London v Uber [2015] EWHC 2918 (Admin). PHVs therefore have to use a different method of fare calculation which, according to TfL, is usually distance based. TfL itself does not regulate PHV fares, although it does require through its licensing regulations that a fare estimate be given in advance of the journey if a fixed fee has not been agreed.

Providing an inflated fare estimate to a disabled passenger would in my view infringe s 165(4)(a) even though there may be no liability on the passenger (who may refuse to accept the estimate). To amplify what I have already said about taxi drivers providing inflated fare estimates if, for example, a licensed private hire company had a poster in the window of its office to the effect that there was a £50 surcharge for a wheelchair user, then that would amount be a contingent additional charge caught by s 165(4)(b). If this were not so then private hire companies could avoid taking disabled passengers without consequence which, for the reasons I have already given, would be inconsistent with the entire purpose of s 165.

I turn to the position outside London. There, as I have said, taxis and PHVs are subject to a different statutory regime. The principal legislation is the Town Police Clauses Act 1847 (the 1847 Act) and the Local Government (Miscellaneous Provisions) Act 1976 (the 1976 Act). Neither of these requires hackney carriages to have taximeters, but most local authorities (who are the taxi licensing authorities for their area) do make it a requirement, either by means of byelaws made under s 68 of the 1847 Act, or as a condition attached to a hackney carriage proprietor's licence issued under s 47(1)(2) of the 1976 Act. In both cases the meter must be calibrated and sealed. Button, loc cit, summarises the general position as follows at [9.24]:

"Therefore, the meter must be used for all journeys within the district unless a fixed fare has been agreed in advance of the hiring. In those cases, the driver must ensure that the fare will not exceed the maximum that could be charged for that hiring and it is therefore clearly good practice to activate the meter. This protects the driver from any allegation of overcharging, whilst allowing the passenger to see what a 'bargain' they have successfully negotiated."

I see no basis for reaching a different conclusion in relation to hackney carriages outside London as compared with those in London. In both places the taximeter calculates the fare and there is an implied term in the contract between the driver and the passenger (or an express term, should there be written conditions of carriage – there are no such conditions for London hackney carriages) that the passenger will pay the fare shown on the meter. A financial liability or commitment is therefore created when the driver switches on the meter, precisely as it is in relation to a London hackney carriage and it is no later than this point that a 'a charge is made' for the purposes of s 165(4). This liability or commitment is reinforced by s 66 of the 1847 Act, which makes it an offence to refuse to pay the fare due. I reach the same conclusion as before where the driver gives an inflated fee estimate. That in my judgment is a contingent financial liability or commitment falling within s 165(4)(b).

In relation to PHVs outside London, unlike in London, these may lawfully be fitted with a taximeter. Section 71 of the 1976 Act provides that nothing in the Act shall require any PHV to be equipped with any form of taximeter but if it is then the taximeter must have been tested and approved. For the reasons already given, the use of a taximeter in a PHV creates a contractual obligation to pay the metered fare, and hence switching on the meter amounts to 'making a charge' because it creates a financial liability or commitment. This is reinforced by the criminal law: a failure to pay the fare would likely amount to the offence of making off without payment contrary to s 3 of the Theft Act 1978: see R v Aziz [1993] Crim LR 708. For PHVs outside London without a taximeter, the position is the same as for PHVs within London, and for the same reasons I conclude that providing a fare estimate or indication in advance of the journey is sufficient to amount to the making of a charge because it creates a contingent financial liability or commitment and that in my view is sufficient to engage s 165(4)(b).

Conclusion

For all of these reasons, I dismiss the appeal.


************************************************************


Neutral Citation Number: [2019] EWHC 200 (Admin)

Case No: CO/3959/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

07/02/2019

B e f o r e :

LORD JUSTICE FLAUX

-and-

MR JUSTICE HOLGATE

____________________

Between:

READING BOROUGH COUNCIL

Appellant

- and -

MUDASSAR ALI

Respondent

____________________

Charles Holland (instructed by Legal and Democratic Services, Reading Borough Council) for the Appellant

Philip Kolvin QC (instructed by WoodsWhur) for the Respondent

Hearing dates: 24 January 2019

____________________

HTML VERSION OF JUDGMENT APPROVED

____________________

Crown Copyright ©

Lord Justice Flaux:

Introduction and factual background

This is an appeal by way of case stated from the Decision of the Senior District Judge (Chief Magistrate) Emma Arbuthnot dated 10 July 2018 acquitting the respondent on two charges of plying for hire in a Ford Galaxy, registration number LR12 ORZ, without a licence to do so, contrary to section 45 of the Town Police Clauses Act 1847.

The respondent is an Uber driver, He, his vehicle and Uber are licensed by Transport for London to conduct private hire business pursuant to the "triple lock" system under the Private Hire Vehicles (London) Act 1998. Uber had been refused an operating licence by the appellant. However, if Uber, their vehicles and drivers were conducting a private hire business, they could lawfully operate in Reading with their private hire vehicle ("PHV") licences from Transport for London ("TfL"). What drivers were not permitted to do was ply for hire, which only licensed hackney carriages are permitted to do.

The relevant facts as found by the Chief Magistrate in her Decision are as follows. On the nights in question, some 60 Uber vehicles were in Reading. In the early hours of 21 January 2017, the respondent was parked in Kings Road in the centre of Reading waiting for a passenger to make a booking for his vehicle via the Uber smartphone App. Two of the appellant's Licensing Enforcement Officers who were registered as Uber passengers saw the outline of his vehicle on their App, approached the vehicle and interviewed the respondent. He said he was waiting for a booking through the Uber App. A similar series of events occurred just after midnight the following night when the same Officers interviewed the respondent again.

As the Chief Magistrate found, the respondent was parked lawfully. He was not waiting in a taxi stand, nor was he near a bus stop or stand. The car had no markings indicating it was for hire, but it had two small TfL roundels, one in the back window and one on the front windscreen, which were highly visible and which indicated it was licensed by TfL as a PHV. The car did not advertise a number to contact to hire it. The car was not available to anyone hailing it on the street but could only be hired via the Uber App. The respondent was not hooting or flashing his lights or otherwise drawing attention to his car. The respondent would not have taken any passengers other than via the App.

The App is available to anyone with a smartphone who downloads the App and registers with Uber. Any customer who used the App in Reading on the nights in question would have seen the outline of the respondent's vehicle on the map as one of a number in the area, although the App does not show any features which might identify a particular driver or a particular car.

A customer who has the App will open it and see a list of available vehicle types in the area. The customer requests the provision of a vehicle by entering a destination, for which he or she will get a fare estimate and, if he or she wants to proceed, will request a booking. A particular driver or car cannot be chosen. Rather, the nearest driver is informed of the request via the driver version of the App and then has ten seconds to press a key on his smartphone to accept the request. At that point the driver is not informed of the destination.

If the driver accepts the request, Uber as licensed PHV operator confirms and records the booking and allocates the trip to the driver. The driver and passenger are then given details of each other via the Uber app. The driver then goes to the pick-up location and meets the passenger. We were told by Mr Philip Kolvin QC, who appeared for the respondent, that the driver only learns the destination upon pick-up. The journey then proceeds.

The questions of law

The questions of law on which our opinion is sought in the case stated are as follows:

(1) As a matter of law did the display of the respondent's vehicle as the outline of a car on the smartphone Apps of potential passengers constitute an invitation to book the respondent's vehicle?

(2) As a matter of law did the display of the respondent's vehicle as the outline of a car on the smartphone Apps of potential passengers constitute an invitation to book an Uber vehicle in the vicinity, even if it were not the respondent's?

(3) If the answer to questions (1) or (2) is yes:

(a) Did the Chief Magistrate err in law in holding it to be relevant to whether the respondent was plying for hire, that his vehicle had no distinctive markings, was not at a stand and was not available on the street to pick up passengers in the traditional way? and/or

(b) Did the Chief Magistrate err in law in holding it to be a relevant consideration that the whole of the transaction between the passenger and the driver, and the passenger and the licensed operator, was conducted via a smartphone App, where the booking process starts, is recorded and the fare estimated?

(4) On the facts agreed and found by her, did she err in law in finding that the prosecution had not proved that the respondent was plying for hire?

The statutory framework and the relevant legal principles

The regulation of hackney carriages outside London is effected by the Town Police Clauses Act 1847. Section 37 requires all hackney carriages to be licensed. Section 38 defines a hackney carriage as "every wheeled carriage…used in standing or plying for hire in any street within the prescribed distance". The section then contains a deeming provision whereby every carriage standing on the street within the prescribed distance which has the requisite licence plate or what purports to be such a plate is deemed to be a hackney carriage for the purposes of the Act.

Further sections of the Act then set out the licensing regime for hackney carriages. Section 45 sets out the penalty for plying for hire without a licence:

"If the proprietor or part proprietor of any carriage, or any person so concerned as aforesaid, permits the same to be used as a hackney carriage plying for hire within the prescribed distance without having obtained a licence as aforesaid for such carriage, or during the time that such licence is suspended as hereinafter provided, or if any person be found driving, standing, or plying for hire with any carriage within the prescribed distance for which such licence as aforesaid has not been previously obtained, or without having the number of such carriage corresponding with the number of the licence openly displayed on such carriage, every such person so offending shall for every such offence be liable to a penalty not exceeding [level 4 on the standard scale]."

PHVs were not subject to licensing and regulation until the enactment of the Local Government (Miscellaneous Provisions) Act 1976, sections 48, 51 and 55 of which require a PHV vehicle, its driver and the PHV operator to be licensed. Section 46 of the Act is a similar provision to section 45 of the 1847 Act. It provides that knowing contravention of the requirements for such licences is an offence. The two licensing regimes for hackney carriages and PHVs are mutually exclusive, in the sense that section 80 of the 1976 Act defines "private hire vehicle" as a motor vehicle constructed or adapted to seat fewer than nine passengers other than a hackney carriage or public service vehicle. The section also provides that "hackney carriage" has the same meaning as in the 1847 Act. The section also defines "operate" as meaning "in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle".

The system of licensing of hackney carriages in London is effected by the Metropolitan Public Carriage Act 1869. Its provisions differ slightly from those of the 1847 Act but not in a manner material for present purposes. The provisions include the designation of ranks and the fixing of fares. The 1869 Act provides that it is an offence for any vehicle other than a hackney carriage to wait on a rank. Section 7 sets out the offence of unlawfully plying for hire in similar terms to section 45 of the 1847 Act. In turn, the system of licensing and regulation of PHVs in London is effected by the Private Hire Vehicles (London) Act 1998 which contains similar provisions to those of the 1976 Act applicable outside London.

The expression "plying for hire" is not defined in the 1847 Act or the 1869 Act and there has been a series of cases since the enactment of the statutes which have addressed the issue whether vehicles which were not licensed hackney carriages were nonetheless plying for hire and therefore an offence was being committed. The Chief Magistrate helpfully sets out the authorities and summarises their effect in [18] to [29] of her Decision. I do not propose to refer to all the authorities, but will only focus on those cases from which some principles relevant to the present case can be discerned. Many of the cases turn on their own particular facts.

Sales v Lake [1922] 1 KB 553 concerned a charabanc which had hackney carriage plates but was not licensed to ply for hire and which was used for excursions to Brighton. Tickets were sold and seats were booked by passengers. The charabanc then picked up those passengers in various public places. No-one who had not previously booked could obtain a seat. The Divisional Court upheld the decision of the magistrate acquitting the driver and company of unlawfully plying for hire. Lord Trevethin CJ at 557 said:

"In my judgment a carriage cannot accurately be said to ply for hire unless two conditions are satisfied. (1) There must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them, and (2) the owner or person in control who is engaged in or authorizes the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers."

Avory J, referring to the judgment of Montague Smith J in the earlier case of Allen v Tunbridge (1871) LR 6 CP 481 said: "As [the judge] said in [that] case "plying for hire" is very different from a customer going to a job-master to hire a carriage, and I think [counsel] was right in his argument in that case when he said "plying for hire" means soliciting custom without any previous contract."

Cogley v Sherwood [1959] 2 QB 311 concerned appellants who conducted a business at London Airport for hiring out cars with chauffeurs which could be hired out on the spot or booked in advance. The appellants had desks at both the then terminals and the service was well-advertised throughout the airport. The desks were clearly visible to arriving passengers. The cars were parked on a standing on the roadway at each terminal. At the central terminal the public did not have access to the roadway. The cars had the appearance of being private cars with no indication they were for hire. The appellants were convicted by the magistrates of unlawfully plying for hire contrary to section 7 of the 1869 Act. That conviction was overturned by the Divisional Court.

Lord Parker CJ considered at 324 that: "today, as a matter of common sense, I do not think that anyone would say that vehicles belonging to the many car hire concerns are plying for hire in the ordinary sense of the word". Having reviewed earlier authorities, including Allen v Tunbridge, the Lord Chief Justice said at 325-6:

"In the ordinary way, therefore, I should, apart from authority, have felt that it was of the essence of plying for hire that the vehicle in question should be on view, that the owner or driver should expressly or impliedly invite the public to use it, and that the member of the public should be able to use that vehicle if he wanted to. Looked at in that way, it would matter not that the driver said: 'Before you hire my vehicle, you must take a ticket at the office,' aliter, if he said: 'You cannot have my vehicle but if you go to the office you will be able to get a vehicle, not necessarily mine.'"

He then noted that some cases pointed in a different direction, but considered that it was unnecessary to go into them because, in all cases where it was held a carriage was plying for hire, it was in fact there and on view. He continued: "For myself I think that it is of the essence of plying for hire that the carriage should be exhibited". He considered that the cars were not exhibited in this sense. The only cars on view were at one terminal, "they did not appear to be for hire; they appeared to be ordinary private cars with private chauffeurs."

In his concurring judgment, Donovan J said at 329: "the term ['plying for hire'] does connote in my view some exhibition of the vehicle to potential hirers as a vehicle which may be hired."

Salmon J, also concurring, said at 331:

"But for authority, I should have thought that a vehicle plies for hire if the person in control of the vehicle exhibits the vehicle and makes a present open offer to the public, an offer which can be accepted, for example, by the member of the public stepping into the vehicle."

He considered that it was quite wrong to conclude that a car-hire service which was the modern equivalent of the job-master in 1869 was plying for hire. He said at 331-2: "I do not feel compelled by any authority to find that a vehicle plies for hire unless it is exhibited".

That case is thus clear authority for the proposition that it is of the essence of plying for hire that the vehicle in question is exhibited with an express or implied invitation to hire it. Nothing in Rose v Welbeck Motors [1962] 1 WLR 1010, on which Mr Charles Holland for the appellant placed particular emphasis, detracts from that proposition. In that case, the defendant's unlicensed minicab, a distinctive red Renault Dauphine with the inscription "Welbeck Motors, Minicabs" on its sides and a telephone number and radio aerial on the roof, was parked in a stand in Walthamstow where buses turned round. When a bus wanted to turn around, the driver of the car pulled out of the stand and parked about ten yards away. A licensed taxi driver called the police. When the police arrived and told the driver he was not allowed to be there to ply for hire, he disagreed with them saying he had been there 50 minutes and his control had told him he was allowed to be there.

Rather surprisingly, on those facts, the magistrates found there was no case to answer in relation to an offence under section 7 of the 1869 Act. That decision was reversed by the Divisional Court and the case was remitted to the magistrates with a direction that they should continue hearing the case. Lord Parker CJ again gave the lead judgment. He referred to and followed Cogley v Sherwood saying at 1014-5:

"Again, in Cogley's case this court held that it was essential before one could say that a vehicle was plying for hire, first, that it should be exhibited or be on view to the public, and secondly, that it should while on view expressly or impliedly solicit custom in the sense of inviting the public to use it. The fact that, if those conditions were proved, a ticket had to be obtained from an office or a booking made other than through the driver was immaterial. It is right to say that a further possible question, namely, what was to be the result if the obtaining of a ticket or a booking involved a vehicle other than that on view was left open. Reference, however, was made to Gilbert v. McKay [1944] 1 All ER 458 and in the argument to Foinett v. Clarke (1877) 41 JP 359, which cases suggest that, at any rate in certain circumstances, that fact would not of itself prevent a finding that the vehicle in question was plying for hire.

That the vehicle in the present case was on exhibition in the sense that it was on view to the public is undoubted. The real question, as it seems to me, is whether a prima facie case was made out that the vehicle in question was impliedly inviting the public to use it. Whether in any case such a prima facie case is made out must, of course, depend upon the exact circumstances, and I certainly do not intend anything I say in this judgment to apply to any facts other than those here. What are the facts here? One starts with the fact that this vehicle was of a distinctive appearance, regarding its colour, its inscriptions, its equipment in the form of radio communication, and its type. Secondly — and this is equally important — it was standing with the driver at the steering wheel for some fifty minutes in a public place on public view and at a place where buses turned round: in other words, at a place where many members of the public would be getting off the buses and where many members of the public would forgather to board the buses. Moreover, when requested to leave, the driver drove away only to return immediately almost to the same place."

The Lord Chief Justice then dealt with the argument on behalf of the defendant that the car was merely advertising the owners:

"It is perfectly true, of course, that the inscriptions were advertising the owners, Welbeck Motors, Ltd., and also saying, 'and if you ring up Welbeck 4440 you can have one of the vehicles that they hire known as a minicab.' In my judgment, however the inscriptions on and appearance of the vehicle coupled with the place where it was on view and its conduct during the relevant period were saying more than that. The vehicle was saying: 'Not only do I,' if I may personify the vehicle, 'recommend you to Welbeck Motors, Ltd., where you can hire a minicab, but further I am one of those minicabs and I am for hire.'"

Winn J agreed and dealt with a short point of his own, which was that there was no difference as matter of law:

"…whether the vehicle was to be taken to be saying: 'I am here available for you to step into and hire me as a cab,' or whether it must be taken to be saying: 'I am here available to be hired by you conditional upon my owner's approval and his ordering me to take you where you want to go.'

At the very lowest, the evidence in the present case discloses behaviour and appearance on the part of this vehicle which amounts to an invitation, 'Get in touch one way or another with my owner and see whether he is willing for you to take me as a vehicle which you are hiring.'"

It is unnecessary to refer to the more recent cases since they can all be analysed as examples of the application to the particular facts of the individual cases of the principle established by Cogley v Sherwood and Rose v Welbeck that to be plying for hire (a) the vehicle must be exhibited or on view and (b) while so exhibited it is expressly or by implication soliciting custom in the sense of inviting the public to use the vehicle without a prior contract.

The Chief Magistrate's Decision

Having referred to the various authorities, the Chief Magistrate noted at [34] that, on her findings, the respondent's car did not have a distinctive appearance. A member of the public seeing it might have guessed it was minicab because it was dark-coloured with darkened windows, but it had no outward signs such as telephone numbers. The TfL roundels were not so prominent that the vehicle was crying out "I am for hire" like the car in Rose v Welbeck. At [35] she said that the respondent was not parked near a hackney carriage stand and she accepted that, if he had been approached by passengers from the street, he would not have contacted Uber to make the booking for them.

She accepted at [40] that the respondent decided when and where to work. She noted that Uber describes the drivers as principals and Uber as their agent, but she did not find those agency concepts helpful in determining whether he was plying for hire in the context of the Uber App. She did not think it appropriate to consider when the contract to provide a service was made. At [41] she said that the fact that the car had no distinctive markings, was not at a stand and was not available to pick up passengers in the street, combined with the fact that the whole transaction was conducted via an App where the booking starts and is recorded and the fare estimated led her to conclude that the respondent was not plying for hire. At [43] she said that the App followed on from the job-master, then the telephone booking system and is the most up-to-date way of booking a minicab. She found the respondent not guilty on both charges.

The parties' submissions

The core submission advanced by Mr Holland on behalf of the appellant was that the exhibition of the vehicle's location on the Uber App was the equivalent to displaying a "for hire" sign on the vehicle. The suggestion that the map was merely showing the outline of the vehicle downplayed the significance of the App. The depiction of the vehicle indicated that there was a vehicle available for immediate hire which constituted an invitation to members of the public who had downloaded the App to use the vehicle immediately. This was plying for hire and the App simply used the internet to facilitate that plying for hire.

He submitted that traditional private car hire where bookings were made over the telephone was the equivalent of the job-master in the nineteenth century, with the invitation to use a minicab coming from the proprietor of the firm acting as a principal, accepting a pre-booking and contracting as principal at that point. By contrast, Uber was a laisser-faire system where the drivers were autonomous. The App was a trading platform to match drivers with customers.

The depiction of the vehicle on the App was exhibition of the vehicle in the same way as in cases such as Rose v Welbeck. It was merely an extension of the same concept by use of modern technology. In fact, exhibition of the vehicle on the App was far more effective and powerful in terms of soliciting potential customers than having the vehicle on physical view. Accordingly, there had been no prior contract made before the exhibition of the vehicle and solicitation of the potential customers and what had occurred was an unlawful plying for hire. If exhibition of the vehicle amounted to plying for hire, it made no difference that there was then a booking through the Uber App. That was the modern equivalent to taking a ticket from the office before getting in the cab which Lord Parker CJ said made no difference in Cogley v Sherwood in the passage cited at [17] above.

Mr Kolvin QC submitted on behalf of the respondent that the depiction of the vehicle on the App was for the benefit of the private hire customer who used the App, to show a potentially available vehicle, and was not plying for hire. The App did no more than show the location of various vehicles in the vicinity of the customer, who could only make a booking through the Uber App without being able to select a particular vehicle. The fact that an unidentified depiction of the respondent's vehicle appeared on the App was not express or implied solicitation of custom so as to amount to plying for hire. This was simply the use of modern technology to do what had been happening lawfully over the telephone for decades, when a customer rang a PHV business to ask for a car in, say, five minutes and the staff at the PHV operator informed the customer that there were a number of cars within five minutes of his pick-up point and one would be despatched.

Mr Kolvin QC submitted that neither the legislation nor the case law required the driver to vanish between jobs in order to avoid plying for hire, so the result in this case should not turn on where the respondent was. Nevertheless, he submitted that the respondent whilst parked in Reading waiting for a booking over the App was not soliciting custom or plying for hire. The Chief Magistrate had been quite right to contrast the waiting by this vehicle with that of the car in Rose v Welbeck. Here the waiting was of a completely different character. It was not waiting for a customer from the street to get into the car, but waiting for the purpose of a private hire booking which would come exclusively via the Uber App.

Discussion

In my judgment, there was no unlawful plying for hire in this case for a number of reasons. First, the mere depiction of the respondent's vehicle on the Uber App, without either the vehicle or the driver being specifically identified or the customer using the App being able to select that vehicle, is insufficient to establish exhibition of the vehicle in the sense in which that phrase is used by Lord Parker CJ in formulating the two stage test for plying for hire in Cogley v Sherwood and Rose v Welbeck. That requires not just exhibition of the vehicle but its exhibition expressly or implicitly soliciting custom, inviting members of the public to hire the vehicle.

It seems to me that depiction of the vehicle on the App does not involve any exhibition of that kind, but is for the assistance of the Uber customer using the App, who can see that there are vehicles in the vicinity of the type he or she wishes to hire. I agree with Mr Kolvin QC that the App is simply the use of modern technology to effect a similar transaction to those which have been carried out by PHV operators over the telephone for many years. If I ring a minicab firm and ask for a car to come to my house within five minutes and the operator says "I've got five cars round the corner from you. One of them will be with you in five minutes," there is nothing in that transaction which amounts to plying for hire. As a matter of principle, I do not consider that the position should be different because the use of internet technology avoids the need for the phone call.

Second, it does not seem to me that the position is different because, as between Uber and the driver, the latter is a principal and Uber is an agent. Whether this agency analysis is correct has not been finally decided. However, like the Chief Magistrate and contrary to Mr Holland's submissions, I do not consider that it has any bearing on the issue in this case. On the findings she made as to how the Uber App works, the customer has to confirm the booking after he or she is given the fare estimate and the driver in turn has to accept the booking before either of them knows the identity of the other and before the car actually comes to the pick-up point.

The parties did not make submissions as to whether there was a contract between the passenger and the driver and, if so, precisely when the contract is made, whether it is when the driver accepts the booking or when the driver comes to the pick-up point. The majority of the Court of Appeal in the recent case of Uber BV v Aslam [2018] EWCA Civ 2748 would have inclined to the view that if there was a contract between the passenger and the driver, it did not take effect until the driver learnt of the destination at the pick-up point, but they were content not to decide the point; see [76] to [79] of the judgment of Sir Terence Etherton MR and Bean LJ. They considered that there was a contract between the passenger and Uber at the moment of the acceptance of the passenger's request: see [80]-[81] of the judgment. Since that case had not been referred to at the hearing before us, we invited submissions on it from counsel after the conclusion of the hearing. Mr Holland took the opportunity to restate his oral submissions and make reference to some further authorities, but his essential point remained the same point about exhibition which I have rejected. Ultimately it seems to be common ground that the reasoning in that case is of no assistance in the present case. I agree.

Whatever the correct contractual analysis, in my judgment it has no impact on the question we have to decide. On any view, there is a pre-booking by the customer, which is recorded by Uber as PHV operator, before the specific vehicle which will perform the job is identified. This is all in accordance with the transaction being PHV business, not unlawful plying for hire. There was no soliciting by the respondent without some prior booking, as he only proceeded to the pick-up point after the customer had confirmed the booking and the respondent as driver had accepted the job. Whenever any contract was concluded, I have little doubt that this was not plying for hire, because on the facts found in this case, the customer could not use the respondent's car without making a prior booking through the App. As with the charabanc in Sales v Lake, the customer would make a booking to be picked up at a pre-arranged point. On the evidence in this case, all the Uber App did was to facilitate that booking.

This leads on to the third reason why this was not plying for hire, which is the character of the waiting. The respondent was waiting in his vehicle until a customer confirmed a booking on the Uber App and he accepted that booking. There was no question of his soliciting custom during the period of waiting. His vehicle did not advertise itself as available for hire nor did he do anything which would have suggested to the public that he was available for hire. Indeed, as the Chief Magistrate found, if a member of the public had approached the vehicle and sought a ride, the respondent would have refused to take such a passenger off the street without a prior booking through the Uber App.

The waiting here was of a completely different character to that in Rose v Welbeck. Unlike in that case, the respondent was not waiting to solicit custom from passing members of the public, but he was waiting for a private hire booking via the Uber App. Putting the example given by Lord Parker CJ in Cogley v Sherwood of what would not be plying for hire into the context of the Uber App, if approached in the street, the respondent would have been saying: 'You cannot have my vehicle, but if you register for the Uber App and make a booking on it, you will be able to get a vehicle, not necessarily mine.'

Conclusion

In all the circumstances, the appeal must be dismissed.

I would answer the questions posed by the case stated as follows:

(1) No, because the identity of the vehicle could not be seen from the App and the specific vehicle could not be booked;

(2) No, because on the facts found the App merely informed Uber customers who wished to book a private hire vehicle that there were such vehicles in the vicinity;

(3) (a) and (b) No, in any event;

(4) No.

Mr Justice Holgate

I agree.

***************************

Neutral Citation Number: [2019] EWHC 365 (Admin)

Case No: CO/4549/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

21/02/2019

B e f o r e :

MR JUSTICE JULIAN KNOWLES

____________________

Between:

Thomas McNutt

Appellant

- and -

Transport for London

Respondent

____________________

Andrew Taylor (instructed by Michael Demidecki & Co) for the Appellant

David Patience (instructed by Transport for London) for the Respondent

Hearing dates: 13 February 2019

____________________

HTML VERSION OF JUDGMENT

____________________

Crown Copyright ©

The Honourable Mr Justice Julian Knowles:

Introduction

This is an appeal by way of case stated against the decision of Hendon Magistrates Court on 23 May 2018 to find the Appellant, Thomas McNutt, guilty of the offence contrary to s 165(7) of the Equality Act 2010 ('the EA 2010'). It raises an important point of statutory construction in relation to the duty pursuant to s 165(1)(a) and s 165(4)(b) of the EA 2010 on the driver of a taxi which has been hired by or for a disabled person in a wheelchair 'not to make any additional charge for doing so'. By s 165(7), it is a criminal offence to make such an additional charge.

It is convenient at this point to set out the relevant statutory provisions. Section 165 provides:

"(1) This section imposes duties on the driver of a designated taxi which has been hired—

(a) by or for a disabled person who is in a wheelchair, or

(b) by another person who wishes to be accompanied by a disabled person who is in a wheelchair.

(2) This section also imposes duties on the driver of a designated private hire vehicle, if a person within paragraph (a) or (b) of subsection (1) has indicated to the driver that the person wishes to travel in the vehicle.

(3) For the purposes of this section—

(a) a taxi or private hire vehicle is 'designated' if it appears on a list maintained under section 167;

(b) 'the passenger' means the disabled person concerned.

(4) The duties are -

(a) to carry the passenger while in the wheelchair;

(b) not to make any additional charge for doing so;

(c) if the passenger chooses to sit in a passenger seat, to carry the wheelchair;

(d) to take such steps as are necessary to ensure that the passenger is carried in safety and reasonable comfort;

(e) to give the passenger such mobility assistance as is reasonably required.

(5) Mobility assistance is assistance—

(a) to enable the passenger to get into or out of the vehicle;

(b) if the passenger wishes to remain in the wheelchair, to enable the passenger to get into and out of the vehicle while in the wheelchair;

(c) to load the passenger's luggage into or out of the vehicle;

(d) if the passenger does not wish to remain in the wheelchair, to load the wheelchair into or out of the vehicle.

(7) A driver of a designated taxi or designated private hire vehicle commits an offence by failing to comply with a duty imposed on the driver by this section.

(8) A person guilty of an offence under subsection (7) is liable on summary conviction to a fine not exceeding level 3 on the standard scale."

The list maintained under s 167 mentioned in s 165(3)(a) is the list of wheelchair accessible vehicles kept by the relevant taxi licensing authority.

A taxi is defined by s 173(1)(a) to be a vehicle which is licensed under s 37 of the Town Police Clauses Act 1847 or s 6 of the Metropolitan Public Carriage Act 1869 (the 1869 Act). In simple terms, it means a vehicle plying for hire.

The factual background

The facts as set out in the stated case can be summarised as follows.

On the morning of 4 October 2017, the complainant, Emma Vogelman, who is a wheelchair user, went to a taxi rank. She was with her assistant, Laura Creek. The Appellant was the first driver on the rank. They sought to board his taxi. Before he unlocked the wheelchair ramp, and before the two women had boarded, the Appellant activated the taximeter fitted to his taxi. Ms Vogelman and Ms Creek noticed that the taximeter had been activated and Ms Creek challenged the Appellant about it, the point being that Ms Vogelman would be charged for the time it took to get her and her wheelchair into the taxi. There was then an altercation between the Appellant and Ms Vogelman and Ms Creek. The upshot was that the two women boarded another taxi driven by Graham Anmer. Ms Vogelman confirmed in her evidence that no money changed hands between her and the Appellant and she never got into his taxi. When Mr Anmer attempted to leave the Appellant prevented him using his taxi as he wanted their details. The police were called. Mr Anmer eventually drove the two women to their destination.

In due course the Appellant was interviewed under caution by Transport for London (TfL) (which, by virtue of Chapter II of Part IV of the Greater London Authority Act 1999, is the statutory taxi regulator in London) and he was then summonsed for the offence contrary to s 165(7) read with s 165(4)(b).

The Appellant pleaded not guilty and stood trial at the magistrates' court on 23 May 2018. Ms Vogelman, Ms Creek and Mr Anmer all gave evidence for the prosecution. At the conclusion of the prosecution's case the Appellant submitted that there was no case for him to answer. It was contended that the offence contrary to s 165(7) of breaching the duty under s 165(4)(b) was not made out until the exact point in time when the charge was levied, in other words, when the driver demanded payment. This could only be at the end of the journey. Here, no journey had been taken and therefore there could be no offence.

Counsel for TFL argued that this was a contrived interpretation of the legislation. If followed it would have the impact of seriously undermining the effectiveness and integrity of important legislation designed to promote equality. Whatever charge would be levied would be determined by the meter and this had been switched on.

According to the case stated, the magistrates decided that that the process of making an additional charge started at the point in time when the Appellant started his taximeter and that clearly the final required payment would include that period during which Ms Vogelman was boarding the vehicle. This is the type of situation that s 165 was meant to prevent. Accordingly, they found that there was a case to answer.

The Appellant then gave evidence. He accepted that he had

switched on the meter before he had unlocked the ramp and before Ms Vogelman had boarded. The stated case observes that because the burden of the prosecution case was that the charging process commenced at the point in time when the Appellant had switched on the taximeter, and there was no dispute that had occurred, the extent of the disagreement between the Appellant and the prosecution witnesses was relatively peripheral. He also accepted that an altercation had ensued, but alleged that the two women had been more aggressive and provocative than he had been.

At the end of their deliberations the magistrates were of the view that the point in time when the making of the charge commenced was the point when the Appellant turned on his taximeter. Accordingly, they found the Appellant guilty. The stated case records their decision as follows (sic):

"Mr McNutt please stand. You are charged under the Equality Act 2010. s.165 of which states that a designated taxi driver should not make an additional charge for carrying a disabled person. By putting on your meter as you got out of your cab to unlock the ramp, it is apparent that it was your intention for the meter to keep running during the process of loading the wheelchair. This would lead to an additional charge to that which passenger without a disability would pay. It was your responsibility to keep up to date with changes in legislation and not being aware of changes to the law is not a defence. We therefore find you guilty beyond reasonable doubt."

The Appellant was conditionally discharged for twelve months, ordered to pay costs of £1000 and compensation of £75 each to Ms Vogelman and Ms Creek, and the victim surcharge of £20.

I was told at the hearing that this was the first prosecution by the Respondent for the offence under s 165(7) for breach of the duty in s 165(4)(b), although there have been prosecutions of taxi drivers for refusing to carry disabled passengers.

Questions posed

The questions posed in the stated case for the opinion of the High Court are as follows:

(1) Did the Appellant make an additional charge for carrying a wheelchair user, Emma Vogelman, on 4 October 2017 ?

(2) Did the magistrates err in law by convicting the Defendant of making an additional charge for carrying a wheelchair user, contrary to s 165(7) Equality Act 2010 ?

It is not in dispute that if the answer to the first question is 'yes' then the answer to the second question automatically follows and is 'no'.

The parties' submissions

It is not in dispute between the parties that demanding payment from a wheelchair user for the time it takes to board the taxi would amount to the making of an additional charge for the purposes of s 165(4)(b) and s 165(7) of the EA 2010. This is consistent with what is said in Button on Taxis: Licensing Law and Practice (4th Edn), [9.24]:

"It is important to consider the position of disabled and wheelchair bound passengers. The 'journey' does not commence until the passenger is securely seated, or the wheelchair has been correctly loaded and secured, the ramps have been properly stowed and the journey commences. If the meter commenced before the loading commences, and continues until the loading has finished, there is direct discrimination because the disabled passenger is being treated less favourably than an able-bodied passenger, contrary to s 13 of the Equality Act 2010."

This is said in relation to hackney carriages outside London, but in my judgment the same is true within London.

The main issue on this appeal is whether a 'charge' was made by the Appellant by the act of him switching on his taximeter before Ms Vogelman and Ms Creek had boarded, even though Ms Vogelman never entered his taxi, no money was demanded (either expressly or by implication) and they ended up travelling in a different taxi.

On behalf of the Appellant, Mr Taylor submits that the temporary activation of a taximeter without more does not result in the making of a 'charge' within the meaning of s 165(4)(b). He says that action alone is not sufficient to amount to a charge in circumstances where Ms Vogelman did not enter his cab, no monies changed hands, no price was quoted and no services rendered. He says there has to be a demand for the fare (either expressly or by implication) before the taxi driver 'makes a … charge' within s 165(4)(b).

Mr Taylor says that it was Mr Anmer and not his client who made the charge, because he quoted the final fare and received payment. Mr Taylor also says that a charge is not made until the end of the journey because then and only then can the payable amount be determined with certainty.

On behalf of the Respondent Mr Patience submits that the phrase 'make any additional charge' in s 165(4)(b) is not restricted to merely occurring at the point at which the metered fare (including an impermissible extra amount) is actually demanded at the end of the journey, but should be construed as covering both of the following situations:

a. when an indication is given by the driver at the point of hiring to a disabled person that they will be made liable to an additional charge;

b. where the taximeter is switched on before the disabled person and their wheelchair have been loaded, thereby creating a pecuniary obligation on the disabled passenger to pay the metered fare, the boarding process taking more time than it would for a non-disabled person, thereby resulting in an additional charge.

Mr Patience points to the Oxford English Dictionary definition of the word 'charge' as including 'to subject or make liable (a person, estate, etc) to a pecuniary obligation or liability' and says that this means that the word as used in s 165(4) covers the two posed scenarios. He said that to accept the Appellant's argument would mean that, for example, taxi drivers would be able to avoid carrying disabled passengers by giving an indication at the point of hiring that there would be a significant surcharge. That would discourage most disabled passengers from travelling with that driver. The driver would not, however, be liable for a breach of the duty in s 165(4)(b) because he would never reach the stage of demanding payment. The driver would then never have to carry a passenger in a wheelchair but would not be liable for the offence in s 165(7).

Mr Patience therefore says the two questions posed for this Court's opinion should be answered 'yes' and 'no' respectively.

Discussion

The researches of counsel have not uncovered any prior authority on the proper construction of s 165(4)(b). There is some brief statutory guidance which I will return to later. The issue before me is therefore a novel one. It is, as I have observed, a question of statutory construction.

The object of statutory interpretation is to discover the intention of the legislature as expressed in the instrument considering it as a whole and in its context, and acting on behalf of the people. As Viscount Simonds said in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436, 461:

"… words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy."

The search for legislative intention is not a search for the actual subjective intention of a particular group of politicians, but an objective search for the intention that must be imputed to the legislature by reference to the meaning of the words used and the context in which they are used. In R v Secretary of State for the Environment, Transport and the Regions, ex pate Spath Holme Ltd [2001] 2 AC 349 at 396-397 Lord Nicholls of Birkenhead said:

"Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the "intention of Parliament" is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning "cannot be what Parliament intended", they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning."

Also, as Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613:

"We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used."

The starting point is to note the precise language used in s 165(4)(b). The driver's duty is not 'to make any additional charge' as a result of being hired by or on behalf of a disabled person. In this phrase the word 'charge' is being used as a noun and not a verb. The online Oxford English Dictionary definition of 'charge' when used as a noun include 'a price asked for goods or services' and also 'a financial liability or commitment' (see https://en.oxforddictionaries.com/definition/charge).

The first of these meanings supports, to an extent, Mr Taylor' submission that the point in time when a driver makes an additional charge can only be at the end of the journey because it is then and only then that the precise fare can be ascertained, in other words, only is the price asked. On the other hand, the second definition supports Mr Patience's submission that in a taxi fitted with a taximeter the passenger's obligation is to pay whatever the meter shows at the end of journey, and so the moment the meter is switched on the passenger becomes financially liable for the fare, and it is thus at that point that the driver makes the charge.

In my judgment it is the second meaning which is to be ascribed to the word 'charge' as used in s 165(4)(b), and a taxi diver makes a charge when he switches his taximeter on, and if he does this for a disabled passenger before the passenger and her wheelchair have been loaded into the taxi, there will be an additional charge and thus an offence under s 165(7) even if, for whatever reason, the driver never actually demands the fare.

Section 165 has its basis in s 36 of the Disability Discrimination Act 1995 (as amended by the Local Transport Act 2008), which was in materially identical terms. Section 36 was introduced into the Disability Discrimination Bill at the Committee Stage in the House of Lords (see HL Deb 15 June 1995 vol 564 col 2037). Lord Mackay of Ardbrecknish, the Parliamentary Under-Secretary of State for Transport, introduced a number of amendments to the Bill concerning taxis and the requirement for them to be wheelchair accessible. In relation to what became s 36 he said:

"In Amendment No. 96, it is one thing to provide for taxis to be designed or adapted to be able to carry a passenger in a wheelchair but we need also to ensure that the drivers of those vehicles are then required to convey those passengers. The new clause, Amendment No. 96, sets out the duties which will apply to drivers of regulated taxis when they are hired by a disabled person. These duties not only extend to the carriage of disabled persons, but also to the manner in which those persons should be carried. Any driver who fails to comply with these duties will be guilty of an offence."

Given my view that the word 'charge' as used in s 165(4)(b) is capable of more than one meaning, ie, it is ambiguous, I consider this statement by the Minister to be admissible under Pepper v Hart [1993] AC 593 because it is clear and discloses the mischief which s 36 (and now s 165) was and is aimed at. That is the need to ensure that taxi drivers carry disabled passengers and to provide criminal penalties if they fail to do so or fail to comply with the other duties which the section imposes upon them in order that disabled people have access to taxi services on terms which are not disadvantageous by reason of their disabilities.

Against that background, it cannot have been Parliament's intention that the word 'charge' should be construed so that a taxi driver only becomes criminally liable for charging a disabled passenger more when he actually demands the additional fare at the conclusion of the journey. The example given by Mr Patience demonstrates why this is so. It would mean that an unscrupulous taxi driver would be able to avoid his duty to carry disabled passengers, and his duty to assist them if necessary, by quoting an inflated fare upon being flagged down, knowing that it will not be accepted and he will then be free to drive off in search of a non-disabled fare. Another example might be the dishonest driver who puts an additional charge on the meter hoping that the disabled customer does not spot it, but who does not demand the additional amount if the passenger does notice. If Mr Taylor's construction of s 165(4)(b) were correct, in neither scenario would the driver commit the offence under a 165(7) because he would not have actually demanded the additional amount, and (in the first scenario) he would be able to avoid his statutory duty without consequence. The second scenario would deprive disabled people of significant protection. These would be absurd results and wholly inconsistent with the stated purpose of the section. In my judgment they are not something which Parliament could have intended.

In my judgment there can be no doubt that no later than the time a taximeter is switched on at the point of hire, an actual financial liability or commitment is imposed on the passenger to pay the amount shown on the meter when the hiring is terminated, and it is therefore at that point that the charge is made for the purposes of s 165(4)(b). That is for the following reasons.

There are a number of pieces of legislation governing taxis. There are different statutory regimes for London and the rest of the country. The following paragraphs deal with the provisions relating to London; I will consider the position outside London at the end of this judgment.

The principal legal provisions relating to taximeters and fares in respect of hackney carriages within London (as taxis which ply for hire are often called in the legislation: see s 6 of the 1869 Act) are contained in Part VI of the London Cab Order 1934 (SI 1934/ 1346) (the LCO), made under s 9 of the 1869 Act. The LCO has been amended many times over the years and the power to make amendments now rests with TfL pursuant to s 253 and Sch 20, para 5(6)(a), of the Greater London Authority Act 1999.

Section 9 of the 1869 Act provides:

"9 Regulations as to hackney and stage carriages.

Transport for London may from time to time by London cab order make regulations for all or any of the following purposes; that is to say,

...

(3) For fixing the rates or fares, as well for time as distance, to be paid for hackney

carriages, and for securing the due publication of such fares:

(4) For forming, in the case of hackney carriages, a table of distances, as evidence for the purposes of any fare to be charged by distance, by the preparation of a book, map, or plan, or any combination of a book, map, or plan:

Subject to the following restrictions:

(4) Any power of Transport for London to fix by regulations made by London Cab Order under this section any rates or fares to be paid for hackney carriages is exercisable subject to and in accordance with any directions given to Transport

for London by the Mayor of London as to the basis on which those rates or fares are to be calculated."

In addition, s 1 of the London Cab and Stage Carriage Act 1907 (the 1907 Act) specifically provides for TfL to fix fares for cabs using taximeters in London. Section 1(1) provides as follows:

"1 Fares for taximeter cabs

(1) Transport for London shall have power by regulations made by London cab order under section nine of the Metropolitan Public Carriage Act, 1869, to fix the fares to be paid for the hire in London of cabs fitted with taximeters, either on the basis of time or distance or both, and so as to differ for different classes of cabs and under different circumstances."

Part VI of the LCO is entitled 'Regulations as to Taximeters and Fares for Motor Cabs'. The following provisions are relevant in this case:

a. All motor-cabs are required to be fitted with taximeters of a type approved by TfL ([35(1)] and set up in such a way that after the taximeter has been started the 'fare payable for the hiring, as prescribed by paragraph 40, is automatically recorded and displayed on the taximeter ([35(2)(a)]) and the total of 'any extra charges payable' is also displayed [35(2)(b)].

b. Such taximeters are required to sealed by persons authorised by TfL ([35(3)] and tampering with a seal is prohibited ([36]).

c. Plying for hire without a taximeter fitted or one which is unsealed or in respect of which the seal has been tampered with is prohibited ([37]).

d. The display on the taximeter must be illuminated so 'as to render the readings on the dial of the taximeter easily legible at all times of the day and night ([38]).

e. The taxi driver must 'start the taximeter no sooner than when the cab is hired or at such later time as the driver thinks fit' ([39(1)]) and must 'stop the taximeter no later than when the hiring is terminated or at such earlier time as the driver thinks fit' ([39(2)].

f. Paragraph 40 sets out rules relating to the maximum 'payable ' fares for the hiring for a journey of a motor cab. In particular, it provides that the maximum fare payable for a journey of a motor cab shall be the aggregate of:

(i) a hiring charge ([40(1)(a)]) (ie, the amount shown on the meter at the start of the journey and before it has commenced);

(ii) a sum arrived at by reference to the length and duration of the journey in accordance with the rates set out in [40(2)].

Paragraph 40(2) contains the rates chargeable according to formulae whose principal variables are time, speed and distance. The rates are amended from time to time by TfL pursuant to its power under s 1 of the 1907 Act. Paragraph 40(3) provides for a minimum fare, and [40(4)] specifies what additional sums may be charged (eg, for soiling the cab).

g. Paragraph 40A allows a cab driver to opt to charge a passenger an agreed fixed fare instead of using the taximcter. In such circumstances, [39] and [40] do not apply but Schedule E has effect instead. Paragraph 6(1) of Schedule E provides that where a cab is hired under the fixed fare arrangements, the driver of the motor cub shall not start the taximeter during the course of the passenger's journey except where' the passenger makes a request to be taken to a different destination (para. 6 (2)).

In light of these very detailed provisions specifying what fares may be charged by a driver of a London taxi fitted with a taximeter, in my judgment it is clear that a passenger is legally obliged to pay the metered fare, whatever that fare might be. That legal obligation has at least two strands to it. Firstly, it is an implied term of the contract struck between the taxidriver and the passenger at the point of hire. The taxi driver agrees to the take the passenger to their destination and the passenger agrees impliedly to pay the fare on the meter. It is always open to the taxidriver to vary the contract by accepting a lesser fare, ([40(1)] of the LCO making clear that the metered fare is the maximum fare, and see also R v Liverpool City Council ex parte Curzon Ltd [1993] Lexis Citation 2846), but absent such a variation the passenger is contractually bound to pay the metered fare. Second, a passenger who fails to pay the fare due according to the meter would likely commit one or more criminal offences. It is an offence contrary to s 41 of the London Hackney Carriage Act 1831 to 'refuse or omit to pay the driver of any hackney carriage the sum justly due to him for the hire of such hackney carriage'. The term 'justly due' is not further defined but must be the fare shown on the meter because that is what the LCO specifies the fare shall be (or a lesser sum if the driver agrees to that). There are further offences in s 1 of the London Cab Act 1896. It is an offence for a person to hire a cab when he knows or has reason to believe that he cannot pay the 'the lawful fare'. It is also an offence to fraudulently endeavour to avoid payment 'of a fare lawfully due'. For the same reasons, these expressions must refer to the fare shown on the meter, or a lesser fare if the driver agrees to that.

For these reasons, in my judgment the words 'make an additional charge' in s 165(4)(b) mean to impose an additional financial liability or commitment on a disabled wheelchair user as compared with an able bodied passenger, and such a liability or commitment is imposed no later than the point when a London taxi driver switches on his meter before such a person and their wheelchair have boarded the taxi.

Mr Taylor for the Appellant was able to point to s 11 of the Private Hire Vehicles (London) Act 1988, which defines a taximeter to be 'a device for calculating the fare to be charged', and he sought to draw support from it for his construction of 'charge' in s 165(4)(b). The short answer is that, as I have explained, the process of statutory construction involves examining the language in question in its proper context. The context in which charge is being used in s 165 is in the context of protecting disabled people from discrimination and enabling them to use taxis on no worse terms than able bodied people. That context is different from s 11.

What about the first of Mr Patience's scenarios at [22(a)] above, where the driver gives a fare indication at or before the point of hiring (perhaps in course of negotiating a fixed fee fare under [40A] of the LCO) ? In my judgment such an indication also amounts to a financial liability or commitment, and thus a charge within s 165(4)(b), albeit of a contingent kind. The reason is the one I have already given: to construe 'charge' as excluding inflated fare indications would enable drivers deliberately to discourage disabled passengers from travelling with them, and thus to avoid their duty under s 165 to carry such passengers, and thus defeat the whole purpose of that section.

The conclusions that I have reached accord with such material as exists on the scope of the obligation imposed on drivers by s 165(4)(b). The Department for Transport has issued statutory guidance to taxi licensing authorities pursuant to s 167(6) of the EA 2010 on the application of ss 165 – 167 ('Access for wheelchair users to Taxis and Private Hire Vehicles – Statutory Guidance'). Paragraph 4.7 provides:

"It is our view that the requirement not to charge a wheelchair user extra means that, in practice, a meter should not be left running whilst the driver performs duties required by the Act, or the passenger enters, leaves or secures their wheelchair within the passenger compartment. We recommend that licensing authority rules for drivers are updated to make clear when a meter can and cannot be left running."

TfL's own guidance for taxi drivers on 'Passengers and Accessibility' is in similar terms.

The conclusions I have reached are also consistent with the passage in Button on Taxis: Licensing Law and Practice (4th Edn), [9.24], that I quoted earlier in this judgment. Further, [18.10] of the same work states:

"The London Cab Order 1934, art 39, makes it clear that the meter must be set in motion as soon as the cab is hired, and not before and then stopped as soon the hiring is terminated, but art 39 allows the driver to start the meter later, or stop it earlier. Section 29 of the Equality Act 2010 makes it clear that a service-provider cannot discriminate against a disabled person, so it is important that he meter is not started until a wheelchair bound passenger is properly loaded and secured and is also stopped at the end of the journey, not when the unloading has been completed."

It follows that I would answer the first question posed by the justices 'yes' and the second question 'no'.

I have focussed in this judgment on London taxis fitted with taximeters because this appeal concerns such a vehicle. However, I hope it will be of assistance if I say something about private hire vehicles (PHVs) in London, and taxis and PHVs outside London, all of which are also subject to s 165.

Inside London, licensed private hire vehicles (PHVs) are prohibited from being fitted with taximeters by s 11 of the Private Hire Vehicles (London) Act 1998; cf. Transport for London v Uber [2015] EWHC 2918 (Admin). PHVs therefore have to use a different method of fare calculation which, according to TfL, is usually distance based. TfL itself does not regulate PHV fares, although it does require through its licensing regulations that a fare estimate be given in advance of the journey if a fixed fee has not been agreed.

Providing an inflated fare estimate to a disabled passenger would in my view infringe s 165(4)(a) even though there may be no liability on the passenger (who may refuse to accept the estimate). To amplify what I have already said about taxi drivers providing inflated fare estimates if, for example, a licensed private hire company had a poster in the window of its office to the effect that there was a £50 surcharge for a wheelchair user, then that would amount be a contingent additional charge caught by s 165(4)(b). If this were not so then private hire companies could avoid taking disabled passengers without consequence which, for the reasons I have already given, would be inconsistent with the entire purpose of s 165.

I turn to the position outside London. There, as I have said, taxis and PHVs are subject to a different statutory regime. The principal legislation is the Town Police Clauses Act 1847 (the 1847 Act) and the Local Government (Miscellaneous Provisions) Act 1976 (the 1976 Act). Neither of these requires hackney carriages to have taximeters, but most local authorities (who are the taxi licensing authorities for their area) do make it a requirement, either by means of byelaws made under s 68 of the 1847 Act, or as a condition attached to a hackney carriage proprietor's licence issued under s 47(1)(2) of the 1976 Act. In both cases the meter must be calibrated and sealed. Button, loc cit, summarises the general position as follows at [9.24]:

"Therefore, the meter must be used for all journeys within the district unless a fixed fare has been agreed in advance of the hiring. In those cases, the driver must ensure that the fare will not exceed the maximum that could be charged for that hiring and it is therefore clearly good practice to activate the meter. This protects the driver from any allegation of overcharging, whilst allowing the passenger to see what a 'bargain' they have successfully negotiated."

I see no basis for reaching a different conclusion in relation to hackney carriages outside London as compared with those in London. In both places the taximeter calculates the fare and there is an implied term in the contract between the driver and the passenger (or an express term, should there be written conditions of carriage – there are no such conditions for London hackney carriages) that the passenger will pay the fare shown on the meter. A financial liability or commitment is therefore created when the driver switches on the meter, precisely as it is in relation to a London hackney carriage and it is no later than this point that a 'a charge is made' for the purposes of s 165(4). This liability or commitment is reinforced by s 66 of the 1847 Act, which makes it an offence to refuse to pay the fare due. I reach the same conclusion as before where the driver gives an inflated fee estimate. That in my judgment is a contingent financial liability or commitment falling within s 165(4)(b).

In relation to PHVs outside London, unlike in London, these may lawfully be fitted with a taximeter. Section 71 of the 1976 Act provides that nothing in the Act shall require any PHV to be equipped with any form of taximeter but if it is then the taximeter must have been tested and approved. For the reasons already given, the use of a taximeter in a PHV creates a contractual obligation to pay the metered fare, and hence switching on the meter amounts to 'making a charge' because it creates a financial liability or commitment. This is reinforced by the criminal law: a failure to pay the fare would likely amount to the offence of making off without payment contrary to s 3 of the Theft Act 1978: see R v Aziz [1993] Crim LR 708. For PHVs outside London without a taximeter, the position is the same as for PHVs within London, and for the same reasons I conclude that providing a fare estimate or indication in advance of the journey is sufficient to amount to the making of a charge because it creates a contingent financial liability or commitment and that in my view is sufficient to engage s 165(4)(b).

Conclusion

For all of these reasons, I dismiss the appeal.

*****************************

High Court ruling in Equality Act case and meaning of “charging”

https://www.taxidefencebarristers.co.uk ... -charging/

By Stephen McCaffrey

Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.

The High Court has confirmed that switching your taximeter on before you assist a disabled person – even if you do not actually charge them – is an office under the Equality Act 2010.

The Circumstances

London Black Cab driver Thomas McNutt was found guilty of an offence under section 165 of the Equality Act 2010 when he switched on his taximeter before assisting the complainant, Emma Vogelman, with loading her wheelchair. Mr McNutt was found guilty despite not actually charging the complainant any money, in fact he did not end up taking Ms Vogelman.

The case stated

Mr McNutt sought an appeal by way of case stated. The questions before Mr Justice Julian Knowles were:

1.Did Mr McNutt make an additional charge for carrying a wheelchair user, Emma Vogelman, on 4 October 2017?

2.Did the magistrates err in law by convicting him of making an additional charge for carrying a wheelchair user, contrary to s 165(7) Equality Act 2010?

The main issue on the appeal is whether a ‘charge’ was made by Mr McNutt by the act of him switching on his taximeter before Ms Vogelman had boarded, even though she never entered his taxi, no money was demanded (either expressly or by implication) and they ended up travelling in a different taxi.

Mr McNutt argued that the temporary activation of a taximeter without more does not result in the making of a ‘charge’ within the meaning of s 165. He argued that action alone is not sufficient to amount to a charge in circumstances where Ms Vogelman did not enter his cab, no monies changed hands, no price was quoted and no services rendered. He says there has to be a demand for the fare (either expressly or by implication) before the taxi driver ‘makes a … charge’ within s 165(4)(b).

Mr McNutt also argued that a charge is not made until the end of the journey because then and only then can the payable amount be determined with certainty.

Transport for London, respondents in the case, argued that the phrase ‘make any additional charge’ in s 165 is not restricted to merely occurring at the point at which the metered fare (including an impermissible extra amount) is actually demanded at the end of the journey, but should also include:

1.when an indication is given by the driver at the point of hiring that they will be made liable to an additional charge and;

2.where the taximeter is switched on before the disabled person and their wheelchair have been loaded, thereby creating a pecuniary obligation on the disabled passenger to pay the metered fare, the boarding process taking more time than it would for a non-disabled person, thereby resulting in an additional charge.

TfL argued that if Mr McNutt’s argument is correct, most taxi drivers would be able to avoid carrying disabled passengers by giving an indication at the point of hiring that there would be a significant surcharge. That would discourage most disabled passengers from travelling with that driver.

The judgement

Mr Justice Julian Knowles dismissed Mr McNutt’s appeal ruling that “…in my judgment the words ‘make an additional charge’ in s 165(4)(b) mean to impose an additional financial liability or commitment on a disabled wheelchair user as compared with an able bodied passenger, and such a liability or commitment is imposed no later than the point when a London taxi driver switches on his meter before such a person and their wheelchair have boarded the taxi.”

In relation to TfL’s argument that, by giving an indication at the point of hiring, this would put disabled people off, Knowles J said: “In my judgment such an indication also amounts to a financial liability or commitment, and thus a charge within s 165(4)(b), albeit of a contingent kind.”

Implications

Whilst this case related to a TfL licensed Black Cab driver, Knowles J noted that “I have focussed in this judgment on London taxis fitted with taximeters because this appeal concerns such a vehicle. However, I hope it will be of assistance if I say something about private hire vehicles (PHVs) in London, and taxis and PHVs outside London, all of which are also subject to s 165… I see no basis for reaching a different conclusion in relation to hackney carriages outside London as compared with those in London.

“Providing an inflated fare estimate to a disabled passenger would in my view infringe s 165(4)(a) even though there may be no liability on the passenger (who may refuse to accept the estimate). To amplify what I have already said about taxi drivers providing inflated fare estimates if, for example, a licensed private hire company had a poster in the window of its office to the effect that there was a £50 surcharge for a wheelchair user, then that would amount be a contingent additional charge caught by s 165(4)(b). If this were not so then private hire companies could avoid taking disabled passengers without consequence which, for the reasons I have already given, would be inconsistent with the entire purpose of s 165.”

.....................................................

High Court ruling in Equality Act case and meaning of “charging”

https://www.taxidefencebarristers.co.uk ... -charging/

By Stephen McCaffrey

Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.

The High Court has confirmed that switching your taximeter on before you assist a disabled person – even if you do not actually charge them – is an office under the Equality Act 2010.

The Circumstances

London Black Cab driver Thomas McNutt was found guilty of an offence under section 165 of the Equality Act 2010 when he switched on his taximeter before assisting the complainant, Emma Vogelman, with loading her wheelchair. Mr McNutt was found guilty despite not actually charging the complainant any money, in fact he did not end up taking Ms Vogelman.

The case stated

Mr McNutt sought an appeal by way of case stated. The questions before Mr Justice Julian Knowles were:

1.Did Mr McNutt make an additional charge for carrying a wheelchair user, Emma Vogelman, on 4 October 2017?

2.Did the magistrates err in law by convicting him of making an additional charge for carrying a wheelchair user, contrary to s 165(7) Equality Act 2010?

The main issue on the appeal is whether a ‘charge’ was made by Mr McNutt by the act of him switching on his taximeter before Ms Vogelman had boarded, even though she never entered his taxi, no money was demanded (either expressly or by implication) and they ended up travelling in a different taxi.

Mr McNutt argued that the temporary activation of a taximeter without more does not result in the making of a ‘charge’ within the meaning of s 165. He argued that action alone is not sufficient to amount to a charge in circumstances where Ms Vogelman did not enter his cab, no monies changed hands, no price was quoted and no services rendered. He says there has to be a demand for the fare (either expressly or by implication) before the taxi driver ‘makes a … charge’ within s 165(4)(b).

Mr McNutt also argued that a charge is not made until the end of the journey because then and only then can the payable amount be determined with certainty.

Transport for London, respondents in the case, argued that the phrase ‘make any additional charge’ in s 165 is not restricted to merely occurring at the point at which the metered fare (including an impermissible extra amount) is actually demanded at the end of the journey, but should also include:

1.when an indication is given by the driver at the point of hiring that they will be made liable to an additional charge and;

2.where the taximeter is switched on before the disabled person and their wheelchair have been loaded, thereby creating a pecuniary obligation on the disabled passenger to pay the metered fare, the boarding process taking more time than it would for a non-disabled person, thereby resulting in an additional charge.

TfL argued that if Mr McNutt’s argument is correct, most taxi drivers would be able to avoid carrying disabled passengers by giving an indication at the point of hiring that there would be a significant surcharge. That would discourage most disabled passengers from travelling with that driver.

The judgement

Mr Justice Julian Knowles dismissed Mr McNutt’s appeal ruling that “…in my judgment the words ‘make an additional charge’ in s 165(4)(b) mean to impose an additional financial liability or commitment on a disabled wheelchair user as compared with an able bodied passenger, and such a liability or commitment is imposed no later than the point when a London taxi driver switches on his meter before such a person and their wheelchair have boarded the taxi.”

In relation to TfL’s argument that, by giving an indication at the point of hiring, this would put disabled people off, Knowles J said: “In my judgment such an indication also amounts to a financial liability or commitment, and thus a charge within s 165(4)(b), albeit of a contingent kind.”

Implications

Whilst this case related to a TfL licensed Black Cab driver, Knowles J noted that “I have focussed in this judgment on London taxis fitted with taximeters because this appeal concerns such a vehicle. However, I hope it will be of assistance if I say something about private hire vehicles (PHVs) in London, and taxis and PHVs outside London, all of which are also subject to s 165… I see no basis for reaching a different conclusion in relation to hackney carriages outside London as compared with those in London.

“Providing an inflated fare estimate to a disabled passenger would in my view infringe s 165(4)(a) even though there may be no liability on the passenger (who may refuse to accept the estimate). To amplify what I have already said about taxi drivers providing inflated fare estimates if, for example, a licensed private hire company had a poster in the window of its office to the effect that there was a £50 surcharge for a wheelchair user, then that would amount be a contingent additional charge caught by s 165(4)(b). If this were not so then private hire companies could avoid taking disabled passengers without consequence which, for the reasons I have already given, would be inconsistent with the entire purpose of s 165.”

*********************************************************

The original hearing is below.

Neutral Citation Number: [2012] EWHC 1903 (Admin)

Case No: CO 10424/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

11/07/2012

B e f o r e :

MR JUSTICE BURTON

____________________

Between:

EVENTECH LTD

Claimant

- and -

THE PARKING ADJUDICATOR

-and –

LONDON BOROUGH OF CAMDEN

TRANSPORT FOR LONDON

Defendant

Interested Parties

____________________

Ms Marie Demetriou QC and Ms Kelyn Bacon (instructed by Maitland Walker LLP) for the Claimant

Mr Martin Chamberlain and Ms Sarah Love (instructed by Transport for London) for the Second Interested Party

Hearing dates: 19, 20 and 21 June 2012

____________________

HTML VERSION OF JUDGMENT

____________________

Crown Copyright ©

Mr Justice Burton :

The Claimant company, Eventech Ltd, is an associated company of Addison Lee plc ("Addison Lee") which operates a fleet of private hire vehicles ("PHVs") – colloquially known as minicabs – in Greater London, and is the registered keeper of all Addison Lee's PHVs, which are leased out by Addison Lee to self-employed drivers.

Addison Lee is the operator, licensed by Transport for London ("TfL") pursuant to the Private Hire Vehicles (London) Act 1998 ("the 1998 Act"), of some 2900 minicabs, the largest fleet of PHVs in Greater London.

TfL is a statutory body created by the Greater London Authority Act 1999 ("the 1999 Act"). It has the function, by ss141 and 154 of the 1999 Act, of promoting and encouraging safe, integrated, efficient and economic transport facilities and services to, from and within London. Its duties include securing the provision of public passenger transport services (including bus services) to, from or within Greater London. TfL is also by s121A(1A) of the Road Traffic Regulation Act 1984 ("the 1984 Act") the traffic authority for every Greater London Authority ("GLA") road and, as such, has responsibility for the designation of bus lanes on those roads. The GLA roads account for 5% of London's roads, but for 38% of its bus lanes, being situated in those parts of central and inner London where congestion is heaviest and where buses (carrying 5.8 million passengers every weekday) are most likely to be affected by traffic congestion. TfL is also responsible, pursuant to ss253 and 254 (and Schedules 20 and 21) of the 1999 Act, for all licensing and monitoring activities in relation to minicabs and to hackney carriages. The latter is the historical and statutory term (derived, it seems, from the London village of Hackney, famed for its horses and horse-drawn carriages) for what are now commonly known as taxis or 'black cabs'.

The issue in this case arises between the Claimant, for whom Marie Demetriou QC has appeared with Kelyn Bacon, and TfL as Second Interested Party, represented by Martin Chamberlain and Sarah Love. It consists of a challenge by the Claimant to the policy of TfL and London boroughs whereby, whereas black cabs are permitted to drive in most London bus lanes, minicabs are permitted to drive in none during their hours of operation, save to pick up or set down pre-booked passengers ("the Bus Lane Policy"). Such policy is claimed by the Claimant to offend against the European Union (EU) right of freedom to provide services (Article 56 of the Treaty on the Functioning of the European Union as consolidated ("TFEU")) and of freedom of establishment (Article 49 TFEU) and/or the EU general principle of equal treatment, to be Wednesbury unreasonable at common law and/or to amount to favourable treatment of black cabs as against minicabs, such as to constitute unlawful State Aid, contrary to Article 107 TFEU.

The challenge arises out of two penalty charge notices ("PCNs"), issued on 13 and 20 October 2010, against the Claimant, in respect of the use of a PHV owned by the Claimant in the Southampton Row bus lane, issued by the London Borough of Camden, which was taken to appeal by the Claimant before the Parking Adjudicator. Before the Parking Adjudicator, the Claimant challenged the validity (on the above basis) of Article 3 of the Camden Bus Lanes (No 1) Traffic Order 2008 ("the Camden Order"). The Parking Adjudicator concluded that he did not have jurisdiction to disapply Article 3, and was not required to determine a potential conflict of domestic and EU law, but was only permitted to enforce the Order, and handed down his Decision dismissing the appeal on 16 August 2011. This application was issued by the Claimant on 16 December 2011, and permission to apply for judicial review was granted by Mr Michael Kent QC, sitting as a deputy judge, on 2 March 2012.

Neither the Parking Adjudicator (joined as Defendant) nor the London Borough of Camden (First Interested Party) has taken any part in these proceedings, which have been defended by TfL as Second Interested Party. It is common ground between the parties before me, and rightly so, that the Parking Adjudicator erred in his approach, and that, as an emanation of the State, such a tribunal should have considered the Claimant's arguments as to the validity of the Camden Order under both EU and domestic law. Accordingly, to that extent, it is in any event the case that the decision of the Defendant Parking Adjudicator cannot stand, and that this Court is obliged to consider the validity of the Camden Order in these proceedings. The parties have agreed that any submissions on remedy be held over until after the Court has determined the issues as to validity.

A traffic authority responsible for a particular road has the power to restrict traffic on that road, or part of it, to certain types of vehicles, and thus to designate bus lanes, under s6 of the 1984 Act, and under that section the Camden Order was adopted, which designated a number of bus lanes, including the Southampton Row bus lane. Article 3(1) of the Camden Order prescribes as follows:

"No person shall cause a vehicle to be in a bus lane in any length of road specified in an item in Column (2) of the table in the schedule to this order during the time specified in that item in Column (3) of that item unless that vehicle was proceeding in the direction specified in Column (4) of that item and is of a type specified in Column (5) of that item."

The Schedule to the Camden Order specifies that the Southampton Row bus lane is available to a vehicle that is a bus, a Dial-a-Ride bus, a pedal cycle or a "taxi". Article 2 of the Order specifies that the word taxi has the meaning given in the Traffic Signs Regulations and General Directions 2002 ("the 2002 Regulations").

It is therefore to those Regulations that one must look for a definition of the taxi thus permitted to use the Bus Lane, and that is contained in Regulation 4 of the 2002 Regulations, so far as England and Wales is concerned by subclause (a), as:

"A vehicle licensed under –

(i) s37 of the Town Police Clauses Act 1847; or

(ii) Section 6 of the Metropolitan Public Carriage Act 1869 ["the 1869 Act"]; or under any similar enactment. "

Those sections referred to hackney carriages that are licensed to ply for hire. Black cabs are licensed under the provisions set out in the London Cab Order 1934 ("the London Cab Order"), adopted pursuant to the 1869 Act, which provides, in s8(2), that no hackney carriage "may ply for hire" within the Metropolitan Police District and the City of London unless under the charge of a driver licensed under s8, now by TfL. Thus, only a black cab, licensed under the London Cab Order, is permitted to "ply for hire" in London. There is no statutory definition of those words, but at common law it is interpreted (see Sales v Lakes and others [1922] 1 KB 553 at 557-558 per Lord Trevithin CJ), as meaning soliciting or waiting for passengers without a prior booking. Thus, although black cabs can be pre-booked (and according to a 2009 survey 8% of black cab journeys are indeed pre-booked), only black cabs can be hailed from the road or wait in taxi ranks for a pick-up.

Minicabs are thus not taxis for the purpose of the 2002 Regulations. They are licensed separately under the 1998 Act, are not permitted to ply for hire in London and may only take passengers who have pre-booked through the operating centre specified in the relevant licence.

There are approximately 23,000 black cabs licensed by TfL. The licensing regime, contained primarily in the 1869 Act and the London Cab Order, requires compliance by the registered keeper of a black cab with detailed standards set out in the London Cab Order and prescribed by the Conditions of Fitness 2007 (as amended). There are approximately 50,000 minicabs and 60,000 individual drivers licensed by TfL, primarily pursuant to the 1998 Act.

It is important at this stage to set out the material differences between mini-cabs and black cabs. A Law Commission Consultation Paper issued earlier this year (No 203) described the "two-tier licensing system" justified by "the very different characteristics" of the pre-booked market and the market for hailing and picking up at ranks:

i) As set out in paragraph 9 above, only black cabs can 'ply for hire' without pre-booking.

ii) Black cabs are subject to "compellability", dating from the London Hackney Carriage Acts 1831 and 1853, which requires that where a black cab at a rank or in the street accepts a passenger, the taxi must take the passenger anywhere that he wishes to go, within a prescribed distance or up to a prescribed journey time. There is no such 'cab rank' obligation on a minicab.

iii) Black cabs are instantly recognised by reason of their shape and size and the illuminated TAXI sign. This is because they must comply with the Conditions of Fitness ("CoF"), which contain a number of standards (including the requirement for the illuminated sign). Currently only two vehicle makes comply with the CoF. Minicabs can be of any colour and any design: there are some 700 different makes and models of vehicles presently licensed.

iv) The fares of black cabs are strictly regulated and can only be charged by reference to a taxi meter. Minicabs are free to charge their own fares and are not metered. According to Mr Griffin, the founder and chairman of Addison Lee, Addison Lee's fares are on average 35% cheaper than black cabs: the fare to be paid is quoted when the minicab is booked, irrespective of the duration of the journey, while black cab fares will of course vary depending upon the length of time that the journey takes.

v) Black cabs are required to be adapted for wheelchair access. There are no accessibility requirements for minicabs.

vi) Before being licensed, black cab drivers must undertake the "Knowledge of London" examination process, which can take two to four years to prepare for ("the Knowledge"). Minicab drivers must before licensing undertake a topographical test, which generally takes a day. Addison Lee voluntarily imposes more extensive training on their drivers, by a short attendance at their driver training school. Black cab drivers must pass the Driving Standards Agency Advanced Driving Assessment: there is no similar requirement for minicab drivers.

It is common ground that bus lanes are of considerable importance. The Claimant accepts, in paragraph 89 of its skeleton argument, that it does not in any way challenge TfL's claim as to the importance of bus lanes to London's transport system and the resulting improvement in journey times and reliability of service for bus passengers. TfL's Bus Lane Policy has been in place since before its own creation in 2000, and the TfL Public Carriage Office Taxi and Bus Lanes Policy (2007) records that the policy is to "allow for taxis in all bus lanes unless their inclusion would cause significant delay to buses or would materially worsen the safety of road users including pedestrians, and taking account of the effects on safety of excluding taxis from the bus lane". This latter aspect relates to the fact that taxis (black cabs) can be hailed by pedestrians from the pavement – according to the 2009 survey referred to in paragraph 9 above, 52% of taxi journeys result from passengers hailing them in the street.

An exception has thus been made to the reservation of bus lanes to buses, to include black cabs. That is where the line has been drawn (in respect of four-wheeled vehicles) by TfL. The Claimant asserts that the exception should be extended to include minicabs, and that a policy which does not do so falls to be challenged on the grounds set out in paragraph 4 above.

Evidence has been given by Mr Griffin, on behalf of the Claimant, and by Mr Ben Plowden, the Director of Planning, Surface Transport, employed by TfL. A report, dated 14 May 2012, for the purposes of this hearing, has been prepared for TfL by the Transport Modelling Consultancy SKM Colin Buchanan ("the SKM Report"). Although the Claimant has submitted a review of that report by the Transport Consultancy Waterman Boreham, which makes certain criticisms of the modelling and methodology in the SKM Report, Ms Demetriou has taken the sensible advocate's course of putting her submissions for the Claimant primarily on the basis of TfL's own report, i.e. accepting its contents for the purposes of such submissions. Since TfL expressly only relied upon the SKM Report to give a 'partial insight at best', the bulk of the Report, and in any event the Claimant's critique of it and TfL's response, contained at some length in Counsels' skeleton arguments, did not, in the event, feature in the hearing.

The Claimant's Case

The case for the Claimant is that the rule that minicabs cannot drive in London bus lanes is a restriction, and one which has the effect that their (fixed fare) journeys are likely to take longer in congested areas than those of black cabs. Such a restriction, imposed by Regulation, cannot be challenged at English common law unless it is Wednesbury unreasonable, but can be challenged if it comes within the ambit, and falls foul, of an applicable European rule or requirement, which will apply – put broadly – if there is a European or intra-Union trade element. Thus if a national of one Member State has restrictions imposed upon him in another Member State – even though they are the same restrictions as are imposed on the national of that other Member State (it is not necessary for the restriction to discriminate on grounds of nationality) – then he can complain of that restriction, even though a national of the home state who is equally restricted cannot complain. Hence a restriction on (for example) a grocery in Shropshire which cannot otherwise be complained of can be challenged where that restriction is alleged to have a relevant impact upon nationals of another Member State. That is the primary nature of the complaint by the Claimant, in respect of the restrictions imposed by TfL and other London boroughs on driving in London bus lanes.

The Claimant's case is put:

i) by reliance upon Article 56 TFEU, which provides:

"Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended."

and/or

ii) by reliance upon Article 49 TFEU:

"Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited …

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings … under the conditions laid down for its own nationals by the law of the country where such establishment is effected."

iii) if necessary – if for example Article 56 does not apply (see paragraphs 25 to 28 below) –by reference to the European law principle of Equal Treatment, whereby, in areas otherwise within the scope of EU law, comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified.

In each such case, if it applies, TfL can, the onus being upon it, justify the restriction upon grounds permitted by European law (primarily upon grounds other than economic) taking into account considerations of proportionality.

iv) if necessary, on the basis that the restriction is not Wednesbury reasonable at common law – obviously here the Claimant carries the burden of rebutting justification, in the sense that it must show that no reasonable body could have regarded the justification as sufficient.

v) finally, by reference to Article 107 TFEU which provides:

"1. Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or production of certain goods shall, insofar as it affects trade between Member States, be incompatible with the internal market."

It is common ground that the disadvantage to the Claimant of not driving in the bus lane is capable of amounting to an economic advantage to its competitor, granted through State resources and/or imputable to the State. The Claimant will need to show that the measure is liable to distort competition and affect trade between Member States, and that it is favouring certain undertakings in a way that is not justifiable by the nature or the general scheme of the Bus Lane Policy imposed by the Regulations (known as the "Selectivity requirement"). If State Aid is established, then it can only be justified and rendered lawful by notification to, and approval by, the European Commission.

Article 56: The Issues

The facts relied upon by the Claimant are contained in the evidence of Mr Griffin. He explains that a substantial part of the Claimant's business consists of the provision of services to persons established in other Member States. Over 100 companies established in other Member States hold corporate accounts with the Claimant, and many UK corporate account holders use the Claimant for employees or visitors arriving from other Member States, and the Claimant provides services to numerous passengers from other Member States who travel to London for business or pleasure. He says that the Claimant's ability to expand this part of its business and offer more services to persons established in other Member States is hampered by its inability to use London bus lanes. The Claimant's case is that the journey times are lengthened by virtue of such inability, thus rendering the service less attractive to customers. Black cabs can travel in bus lanes and, while the majority of black cabs is picked up by hailing on the streets or on ranks, 8% of black cab journeys are pre-booked (see paragraph 9 above). Advertisements for black cabs expressly publicise the fact that (for example) "only licensed London taxicabs can use London's bus lanes to avoid traffic" and "our fully licensed taxis are the only vehicles that can use the fast bus lanes in London, which help you to get to your destination fast and on time".

Mr Griffin explains that, in seeking to expand the provision of minicab services to nationals of other Member States, Addison Lee has developed relationships with PHV operators in other Member States. In particular, the Claimant has reciprocal arrangements with two companies in Paris for the supply both of private hire cars and of minicabs to the customers of those companies upon their arrival in London. The CEO of one of those companies, Cardel Limousine SARL (which supplies car hire and taxi services in the Paris region), has supplied a statement to the effect that many of his customers are regular visitors to London and are aware that black cabs are able to get round London more quickly because they are able to use the bus lanes, and that "clients are often unhappy with the prospect of sitting in traffic while black cabs speed past in the bus lanes". Mr Maachi's evidence is that he believes that the number of bookings his company makes with the Claimant would "increase threefold" if the Claimant were able to use the bus lanes. There is also a supportive letter from an English company.

Thus the Claimant asserts that there is a restriction upon its freedom to supply minicab services to European potential customers or partners, and that there is a restriction on the freedom of those potential customers to use such minicab services in London.

TfL is sceptical about the evidence of Mr Maachi, which originally was contained in a letter commencing "I am happy to confirm that we are unable to pass all of our work to Addison Lee in London as many of our customers are unhappy with the prospect of sitting in traffic while taxis speed past in the bus lanes", and was only produced as a witness statement during the course of the hearing. They also suggest that the evidence of Mr Griffin exaggerates the difficulties, in particular his statement that "a journey from Kings Cross to Paddington can be up to 30 minutes quicker if the bus lanes are used".

So far as the law is concerned, an actionable restriction on the freedom to provide services:

i) does not have to be discriminatory on grounds of nationality.

ii) applies to restrictions on the provision of services by a national of the home State to nationals of another Member State, as well as to restrictions on the receipt of services by the latter.

iii) can be complained of by an undertaking against the Member State in which it is established.

As to (i) above, see Kraus v Land Baden-Württemberg [1993] ECR I-1663 at para 32 ("even though [the measure] is applicable without discrimination on grounds of nationality", Konsumentombudsmannen v Gourmet International Products AB [2001] ECR I-1795 at para 39 ("even if [the measure] is non-discriminatory") and Commission v Netherlands [2004] ECR I-9761 at para 15 ("even though [the measure] is applicable without discrimination on grounds of nationality"): and as to (ii) and (iii) above see Ciola v Land Vorarlberg [1999] ECR I-2517 at para 11, Gourmet International at para 37 and Carpenter v SSHD [2002] ECR I-6279 at para 30.

It is common ground that there is no de minimis exception when a restriction upon one of the protected freedoms is established. However, there has been considerable dispute between the parties as to what it takes to establish such a restriction, and it revolves around the following interlinking areas:

i) TfL submits that the alleged restriction must not be (and is here) too "uncertain and indirect", a phrase drawn from paragraph 72 of the judgment of the European Court in European Commission v Spain [2010] ECR I-5267, where a link was held to be insufficient between provisions for the cost of hospital treatment in Spain and tourism. This issue – effectively one of remoteness – did not, however, as the Claimant points out, stand in the way of success for Mrs Carpenter in the case cited above, where the European Court concluded that removal by the UK of an overstaying Philippine national married to a UK businessman was a restriction upon his business of supplying advertisements (inter alia) to purchasers in other Member States, because it deprived him of child care. Ms Demetriou submits that here there is a much closer link, on the evidence put forward by the Claimant, between the exclusion of the Claimant from bus lanes and the attractiveness of the Claimant's services to European customers.

ii) Mr Chamberlain, for TfL, points to the words used by the Court in Ciola at paragraph 11 ("the freedom for recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions") and in Regione Sardegna [2010] 2 CMLR 8 (159) at para 25 ("the freedom of the persons for whom the services are intended, including tourists, to go to another Member State, where the provider is, in order to enjoy the services there"). He submits that the potential customers from Europe do not come to England in order to enjoy or receive the services of a minicab driver. They come to London, and may or may not use the taxis/minicabs while they are here.

iii) The issue is really joined on the definition of "restriction" (an issue which arises with regard to both Article 56 and Article 49). Mr Chamberlain relies upon those words in Ciola ("without being obstructed by restrictions") and on the words of the Court in HM Customs and Excise v Schindler [1994] ECR I-1039 at para 43 ("legislation … liable to prohibit or otherwise impede the activities of a provider of services") and in Gourmet at para 39 referring to "a measure [which] had a particular effect on the cross-border supply of advertising space". Ms Demetriou however submits that these are words simply catering to the particular measures in issue in those cases, and she relies on the much broader formulation of the Court in Kraus at para 32 ("the Kraus rubric"), which has been regularly cited and followed, relating to a measure which "even though it is applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by Community nationals … of fundamental freedoms guaranteed by the Treaty": in the finding of the Court in Commission v Italy [2009] ECR I-3491 (in paragraphs 60-70) both formulations are expressed, the Kraus rubric but also (at 64) the statement that "the concept of restriction covers measures … which affect access to the market for undertakings from other Member States and thereby hinder intra-Community trade":

Mr Chamberlain submits that, if it be right that the provisions of Article 56 are engaged, in the light of the evidence of Mr Griffin, then (and I cite his skeleton):

"35. … Article 56 would (presumably) apply to any domestic regulation that impacts on any company, provided that some of its customers are nationals of other Member States who happen to be visiting the UK.

36. This is not the law."

He refers to the passage in Barnard: The Substantive Law of the EU: The Four Freedoms (3rd Ed) at 357-361 where she sets out what Mr Chamberlain describes as the "three categories of situation" in which Article 56 may apply, and submits that this case falls within none of those categories. Ms Demetriou submits that the categories are not intended to be exhaustive.

Mr Chamberlain however made the following further submission, not trailed in his skeleton argument, that Article 56 does not apply at all to the provision of minicab/taxi services. He points to Article 58 which provides, at subparagraph (1), that: "freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport".

If there were any doubt as to the meaning of Article 58(1), it is removed by the decision of the European Court in Yellow Cab Verkehrsbetrieb GmbH v Landeshauptmann von Wien [2011] 2 CMLR 23 (577), which makes clear (at paragraph 29) that "it is to be stressed that free movement of services in the transport sector is not governed by art.56 TFEU, which concerns freedom to provide services in general, but by a specific provision, namely art. 58(1) TFEU", such that in that case (relating to bus services) no claim could be pursued under Article 56, although the complaint was upheld by reference to Article 49.

Article 58(1) refers to Title VI TRANSPORT, of which the first provision is Article 90, stating that "The objective of the Treaties shall, in matters governed by this Title, be pursued within the framework of a common transport policy". Article 91 provides that "for the purpose of implementing Article 90, and taking in to account the distinctive features of transport, the European Parliament and the Council shall act in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and Committee of the Regions, lay down" (by reference to the subparagraphs (a) to (d) which follow) identified common rules, common conditions, measures and other appropriate provisions. A number of Directives have been brought into force pursuant to Article 91, relating to (for example) heavy goods vehicles, but there is no Directive relating to taxi services, and since Article 100 (the last article in the Title) states that "the provisions of this Title shall apply to transport by rail, road and inland waterways", Mr Chamberlain submits that the "common transport policy" to be created by Title VI simply does not address private vehicles: in any event, the claim by reference to Article 56 must therefore fail.

Ms Demetriou, while accepting that Article 58 has the effect contended for, submits that there cannot have been intended to be a lacuna relating to taxi and other similar services – what, she asks, if there were a Regulation passed in the United Kingdom which, for example, provided that non-nationals were to be charged taxi fares at a higher rate than UK residents? She points out that Regione Sardegna was a case in which the provision of private transportation services was treated as the provision of services - although the Article 58 point was not seemingly taken. She submits that Article 91 imposes a mandatory duty on the European Parliament and the Council to make provisions relating to transport, and if they have failed to do so then, if Article 56 does not apply, at the least the European law principle of Equal Treatment (referred to in paragraph 17(iii) above) applies to fill what would otherwise be a void.

Article 49: The Issues

Different facts are relied upon by the Claimant to seek to bring itself within the ambit of Article 49. Its case is that Addison Lee engages self-employed minicab drivers, some of whom come from other Member States. The Claimant does not keep a record of the number of such drivers, but from TfL's own records of all PHV drivers in London it can be concluded that approximately 9% of them originate from other Member States, and Mr Griffin concludes that that is also the likely proportion of the Claimant's own such drivers.

Thus it is submitted that there are, or may be, other such would-be minicab drivers in other Member States who may wish to come to the UK as self-employed minicab drivers, and who are deterred by, or, at any rate, find unattractive, the fact that they would not be able to drive in bus lanes, the consequence being, as Mr Griffin has stated in his first witness statement, that, if a journey through the congested parts of London is delayed by the minicab driver being unable to use the bus lanes, he is likely to make, and thus earn from, fewer journeys in a day. The Claimant produced, in the course of the hearing, in the light of criticisms by TfL in its skeleton as to the absence of any evidence, statements from three witnesses: two originated from Poland, one coming to the UK in July 1995 and becoming a minicab driver in 2008, and the other coming to the UK in June 2003 and becoming a minicab driver in 2005, and the other from Bulgaria, coming to the UK in 1995 and becoming a minicab driver in 1997 – none of them coming to this country for the purpose of establishing themselves as minicab driver, but all starting work as such once they were already here. They all now work for the Claimant and all of them say: "the fact that I am unable to use the bus lanes makes being a PHV driver less attractive than it otherwise would be".

TfL points out that:

i) none of the three were put off. It should be added that all of them started to be minicab drivers after some years in the UK: the driver from Bulgaria may have started before the Bus Lane Policy was introduced (see paragraph 13 above).

ii) on the basis of the Claimant's own evidence, 15% of those attending its training sessions in order to become new minicab drivers derive from other Member States (i.e. considerably over the present 9% figure).

The hint of a case of indirect discrimination on grounds of nationality is made by the suggestion of the Claimant, although made without any evidence in support, that, because of the need of a would-be black cab driver to take the Knowledge, which is likely to be more difficult for those from other Member States, there is a disincentive from becoming a black cab driver, and hence those from other Member States are driven to be minicab drivers (excluded from the bus lanes). However:

i) This is not pleaded, and hence not evidenced, and no evidence has been adduced on behalf of TfL to counter such a suggestion, as it plainly would have been.

ii) The need to take the Knowledge to become a black cab driver does not make it more difficult, or less attractive, to be a minicab driver.

The second paragraph of Article 49, as set out in paragraph 17(ii) above, provides that freedom of establishment includes the right to take up and pursue activities as self-employed persons and to set up undertakings under the conditions laid down for its own nationals by the law of the country where such establishment is effected. The Claimant's case is that there is a restriction on that freedom, albeit one which is equally applicable to those setting up as minicab drivers who are nationals of the home State: being a minicab driver in London is less attractive, as there is competition with that minority of black cab drivers who can be pre-booked and are able to use the bus lanes.

There is again a dispute between the parties as to the nature of the restriction which must be established. The Claimant refers to the words of the European Court at paragraph 32 of Kraus (the Kraus rubric) and of the Court in Gebhard v Consiglio dell' Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165 at para 37, referring to "national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty", and again to Apothekerkammer des Saarlandes [2009] ECR I-4171 at para 22 to the preclusion of "any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Community nationals of the freedom of establishment that is guaranteed by the Treaty".

Mr. Chamberlain refers, in his skeleton, to Commission v Spain [2011] 2 CMLR 50 (1294), where the measures complained of "affect access to the market for undertakings from other Member States, and thereby hinder intra-Community trade" (at para 64); the measures in question affected access to the market in establishing a system under which undertakings had to be obtain a licence to undertake the economic activity in question. In this case, submitted Mr. Chamberlain, although minicab drivers have to have a licence to operate, the Claimant is not complaining about any aspect of the PHV licensing regime, but about a feature of traffic regulations which applies equally to all PHV drivers and which "realistically has no effect whatsoever on the decision whether to establish oneself as a PHV driver in London". In each of Deutsche Shell v Finanzamt [2008] ECR I-1129 (at paras 28-29) and Commission v Italy [2011] 3 CMLR 1(1) (at paras 45-46 and 49-54), after reciting the Kraus rubric, what the Court then, in each case, addresses is undertakings being "deterred" and "access to the market being affected" or "adversely affected".

However, Ms. Demetriou points out that:

i) as Barnard makes clear, at 301, Article 49 does not only refer to access to self-employment, but also to the exercise of the occupation or profession, and, at 302, she refers to Konstantinidis v Stadt Altensteig [1993] ECR I-1191, where a Greek national, working in Germany as a self-employed masseur, was required to enter his name on the Register with an incorrect transcription of his Greek name into Roman characters, which (at paragraph 15) "causes a Greek national such a degree of inconvenience as in fact to interfere with his freedom to exercise the right of establishment": although, in that case, it would appear that there was a considerable element of indirect discrimination on the grounds of nationality (see paragraphs 12-13 of the judgment).

ii) Ms Demetriou submits that the emphasis in the decided cases referred to above on limitations on access or deterrence has been because that was the context of the facts upon which the court was deciding the case. Hence, in Commission v Spain, the case to which Mr Chamberlain referred in his skeleton, whereas the impugned measure was found to be one which did "affect access to the market … and thereby hinder intra-Community trade" (para 64), the Court nevertheless reached the conclusion that:

"70. Consequently, the contested legislation, taken as a whole, has the affect of hindering or rendering less attractive the exercise by economic operators from other Member States of their activities on the territory of … Catalonia, through a permanent establishment and thus affecting their establishment in the Spanish market."

Equal Treatment

There is no dispute that this principle (set out in paragraph 17(iii) above) is one of the general rules of European law, but there is dispute as to its precise ambit.

It applies when a national authority seeks to derogate from one of the freedom of movement provisions (ERT [1991] ECR 1-2925 esp. at 41-43), but that would in any event be the case where the freedom of movement provisions themselves are (as they were in that case) engaged. It is also common ground that, even if no specific Treaty provision is engaged, the principle can apply to a national measure where it falls within the scope of EU law. Thus, in Phil Collins [1993] ECR I-5147, the Court held that German rules on the protection of copyright were within the scope of Community law, such rights having been long regarded (paragraphs 22-27) as, by their nature, such as to affect trade in goods and services, and thus to fall within the scope of application of the Treaty. The suggestion by Laws J (as he then was) in First City Trading Ltd [1997] 1 CMLR 250, that there might be a difference in the application of the principle dependent upon whether there was or was not an applicable provision of the Treaty was doubted by Richards J (as he then was) in British Pig Industry Support Group (27 July 2000, QB at paras 63-65), and is certainly not embraced by Lawrence Collins LJ in Partridge Farms Ltd v Secretary of State for the Environment [2009] EWCA (Civ) 284 at para 61. Ms Demetriou relied upon the fact that in Herbert Karner Industrie Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025 the Court concluded that the particular freedom of movement provision did not apply because of a specific exception (para 43 of the judgment), but nevertheless concluded (at paragraph 48) that "according to settled case law, fundamental rights form an integral part of the general principles of law, the observance of which the Court ensures".

I have little doubt in the circumstances that, if Article 56 does not apply, but only because of the effect of Article 58, then the 'void' would be filled by reference to the principle of Equal Treatment: it is odd that this was not stated in Yellow Cab (referred to in paragraph 25 above), but that is no doubt because it did not need to be argued, since Article 49 was available.

Mr. Chamberlain submits that, if the Equal Treatment principle is engaged, the test for justification is clearly spelt out in the authorities. In Société Arcelor Atlantique et Lorraine [2008] ECR 1-9895 at paras 46-47, the Court concluded that the principle of Equal Treatment would not be infringed if the different treatment were justified and "a difference in treatment is justified if it is based on an objective and reasonable criterion … if the difference relates to a legally permitted aim pursued by the legislation and it is proportionate to the aim pursued by the treatment". In First City Trading, Laws J, in drawing the distinction with Wednesbury unreasonableness, stated at para 68 that:

"Within the diverse contexts in which the principle of equality may be called in question, there will no doubt always be a range of options factually open to the decision-maker. It is not the court's task to decide what it would have done had it been the decision-maker … In the nature of things it is highly unlikely that only one of the choices available to him will pass the test of objective justification: and the Court has no business to give effect to any preference for one possible measure over another when both lie within proper legal limits. In this sense, it may be said that the decision-maker indeed enjoys a margin of appreciation."

Justification

I turn to justification, and to the parties' respective cases. The seminal passage, in the context of the freedom of movement provisions, is contained in Gebhard at para 37. Four conditions must be fulfilled:

"They must be applied in a non-discriminatory manner;

they must be justified by imperative requirements in the general interest;

they must be suitable for securing the attainment of the objective which they pursue;

and they must not go beyond what is necessary in order to attain it." [The last condition effectively enshrining the principle of proportionality.]

It is clear that the categories of justification are not closed (see Alpine Investments BV v Minister van Financiën [1995] ECR I-1141 at para 44 and Analir v Administración General del Estado [2003] ECR I-1271 at para 27).

The issue between the parties, however, has been as to the 'intensity' or the 'strictness' with which the test of justification, in respect of which it is common ground the onus lies in this case upon TfL if there is found to be a restriction which otherwise infringes, must be applied.

The same test must in my judgment apply in respect of the freedom of movement provisions as by reference to the Equal Treatment principle: it would be odd to have differing 'levels of intensity' and Ms Demetriou did not argue for them.

In R (Countryside Alliance and Others) v Attorney-General [2008] 1 AC 719 at para 49, Lord Bingham set out paragraphs 28 to 31 of the judgment of the European Court in Omega Spielhallen-und-Automatenaufstellungs GmbH v Oberbürgersmeisterin der Bundesstadt Bonn [2004] ECR I-9609 prefacing his quotation by the words "The test of justification under Community law is a strict one and is subject to the overall control of the ECJ":

"30. … The concept of 'public policy' in the Community context, particularly as justification for a derogation from the fundamental principle of the freedom to provide services, must be interpreted strictly, so that its scope cannot be determined unilaterally by each member state without any control by the Community institutions … Thus, public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society …

31. The fact remains, however, that the specific circumstances which may justify recourse to the concept of public policy may vary from one country to another and from one era to another. The competent national authorities must therefore be allowed a margin of discretion within the limits imposed by the treaty."

Mr Chamberlain submits that the justification he is here putting forward is not one of public policy, and does not therefore qualify for the strictness (though still subject to the margin of discretion) there referred to. He relies on the words of the Court of Appeal in Mabanaft Ltd v Secretary of State for Energy [2009] EWCA (Civ) 224, per Arden LJ, dealing with a requirement under a 2006 Directive that Member States must ensure that fair and non-discriminatory conditions apply in relation to stock-holdings of crude oil and other products:

"32. However, in my judgment, the obligation imposed by the first sentence of art 3(2) confers freedom on the member states to choose the method by which they will comply with their obligations under the 2006 directive. It follows under Community law that the court must allow the Secretary of State a large measure of discretion in choosing an appropriate method. In reviewing the legality of the exercise of such discretion, the court must limit itself to examining whether the decision of the Secretary of State discloses a manifest error or constitutes the misuse of powers or there has been a clear disregard of the limits of his discretion. This is because under community law, where the decision maker in the member state is required to evaluate a complex economic situation – and the same would apply to a complex technical situation as here – the intensity of the review is low. The decision-maker will enjoy a large measure of discretion and the court will limit itself to asking [whether] the assessment is manifestly unreasonable. The court will not substitute its judgment for that of the decision-maker.

48. In any assessment of proportionality in a technical field, the court must allow a proper margin of discretion to the decision-maker, because of the complexity of the assessment he is called upon to make in this field."

Ms Demetriou, for her part, submits that this weighing up in relation to traffic conditions, if that is what is here involved, is not a complex economic or technical decision.

In Partridge Farms, Lawrence Collins LJ recorded, at paragraph 89, that "it was held by the judge, and is common ground on this appeal, that, like Community institutions, Member States have a broad margin of appreciation in terms of objective justification". Mr Chamberlain refers to two judgments of the Court, both since Omega:

i) Commission v Italy [2009] ECR I-519 ("Italian Trailers"), where the issue related to provisions with regard to pulling of trailers by certain vehicles including motorcycles:

"66. In the present case, the Italian Republic contends … that the circulation of a combination composed of a motorcycle and a trailer is a danger to road safety. Whilst it is true that it is for a Member State which invokes an imperative requirement as justification for the hindrance to the free movement of goods to demonstrate that its rules are appropriate and necessary to attain the legitimate objective being pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions.

67. Although it is possible, in the present case, to envisage that measures other than the prohibition laid down in … the Highway Code could guarantee a certain level of road safety … the fact remains that Member States cannot be denied the possibility of attaining an objective such as road safety by the introduction of general and simple rules which will be easily understood and applied by drivers and easily managed and supervised by the competent authorities."

ii) In Commission v Spain, referred to in paragraphs 35 and 36(ii) above, the Court stated, at paragraph 75, that:

"It should be recalled that, although it is for the Member State relying on an overriding reason in the public interest as justification for a restriction on freedom of movement to demonstrate that its legislation is appropriate and necessary to attain the legitimate objective pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions."

There was some discussion before me as to whether the party with the obligation to justify the restriction can rely on what is called "ex post facto justification", ie reasoning that was not put forward, or even considered, when the restriction was imposed. I do not consider that in fact this issue arises here, given what is said about the purpose of the Bus Lane Policy, but, even if it did, it is now clear that the test for the Court is objective justification, and that, particularly where the alleged restriction is ongoing and must be justified for the future as well as for the past, the Court has an obligation to consider all matters, even if it might place less weight upon an argument if it appeared to have been put forward belatedly, not for that reason, but because it might not carry the same credibility as if it had always been in mind. Such issues are canvassed in Belfast City Council v Misbehavin' Ltd [2007] 1 WLR 1420, per Lord Mance at 44-48, and in Seldon v Clarkson Wright & Jakes [2012] ICR 716 at paras 59-60, in particular at 59, where Baroness Hale expressly said: "the aim need not have been articulated or even realised at the time when the measure was first adopted: it can be an ex post facto rationalisation". Inevitably, more evidence, often including factual analyses and surveys, is put forward to seek to justify a provision once it is challenged. In this case, some evidence has been put forward by TfL as referred to in paragraph 15 above, but it is not relied on by them as anything other than very broad-brush, supportive of the case set out by Mr Plowden, and, as is clear from the Italian Trailers case (at paras 63 to 67), where there was no survey evidence at all, such is not necessary if the justification can speak for itself. In any event, insofar as the SKM Report is relied upon, and insofar as it sets out a new or supplementary case, in addition to the English authorities referred to there are the clear words of the European Court in Schönheit v Stadt Frankfurt am Main [2003] ECR I-12575 "a difference in treatment … may be justified, depending on the circumstances, by reasons other than those put forward when the measure introducing the differential treatment was adopted."

TfL makes the following case in justification of its Bus Lane Policy:

i) Congestion. The 5.8 million bus passengers every weekday amount to 2.3 billion a year: according to a 2011 study, the majority of visitors to London town centres on shopping trips use the bus. TfL seeks to balance the needs of all the different road users, and so far as bus passengers are concerned they measure, and seek to reduce, "Excess Wait Time". Mr Plowden states as follows in his first witness statement:

"41. TfL locates bus lanes where congestion would otherwise increase bus journey times and/or reduce reliability. This applies both to the overall decision where to concentrate bus lanes (in central and inner London, where congestion is most acute) and to the decision where to locate individual lanes (e.g. at particular junctions).

42. Bus lanes are also particularly useful because they offer protection to vulnerable road users, i.e. cyclists and motorcyclists … These categories of user are permitted to use the bus lanes during the hours of operation of the restrictions, offering them protected road space during the busiest and most congested times of the day.

43. Finally, bus lanes are widely supported in London. TfL's customer research report on bus priority from 2009, 'Attitudes to Bus Priority Schemes' … indicated that 83% of the public support bus priority schemes."

There is then an exception whereby black cabs are permitted to use the bus lanes, the rationale being explained in the TfL Public Carriage Office Taxis and Bus Lanes Policy Guidance:

"2. The Mayor has stated that TfL's general policy should be to allow taxis in all bus lanes except where specific safety or bus operational issues made this impractical.

3. This policy applies for the purposes of taxis driving in bus lanes as through-routes and entering bus lanes to pick up and set down. 'Pick up' and 'set down' mean that there is an intended passenger waiting at the kerbside or that an existing passenger wishes to be set down."

The 2009 survey of taxi cabs referred to in paragraphs 9 and 13 above records that 52% of journeys are picked up by being hailed in the street, 34% picked up from ranks and 8% are pre-booked.

According to the SKM Report, travel time increases for bus passengers during the morning peak hour (8.00-9.00 am) by a total of 266 person hours as a result of allowing taxis in the bus lanes, but by 431 person hours if minicabs are also included. The Report then uses a method conventional in transport planning, to attribute monetised values to journey times, and to calculate, by reference to estimated busloads and a standard calculation of loss per bus passenger per hour of £9.92, a lost benefit (disadvantage) to passengers of £671,000 in the Congestion Charging Zone and Inner Ring Road areas resulting from the use of bus lanes by black cabs, but a substantially increased loss of £1,140,000 if black cabs and minicabs are so permitted. Quite apart from these statistics, TfL submit that it is obvious that the disadvantage to bus passengers if both black cabs and minicabs are allowed in the bus lanes (73,000 additional vehicles) will amount to a "markedly greater disbenefit to bus passengers" than that caused by 23,000 black cabs alone. In any event, the SKM figures are, as Mr Plowden points out, average figures, and delays will be greater in some locations, certainly those most congested.

ii) The distinction between black cabs and minicabs. TfL emphasised the real difference between them. Black cabs alone can be hailed for pick-up on the streets. Thus there is the need for them to be more easily visible, in the lane nearest the pavement, and for there to be ease of access from the pavement when they are flagged down. Minicabs are not permitted to be hailed off the street. This, TfL submit, is not simply a question of safety of access, but of having the would-be passengers on the pavement and the taxis adjacent to pavements. TfL's policy documents make clear that the disabled are a priority for TfL, not just in relation to the fact that the black cabs are (while the minicabs are not) required to be adjusted for wheelchairs, but also in respect of accessibility from the pavement to a cruising black cab. TfL submits that, whereas there is thus a specific distinction to be made between black cabs and minicabs, if minicabs were allowed into bus lanes, there would then be no apparent or justifiable distinction between minicabs and other vehicles – chauffeured cars (in which the Claimant also deals), hire cars, Car Club vehicles, delivery vehicles, heavy goods vehicles and all private cars.

iii) Enforcement. TfL relies on the difficulty of enforcement if the less identifiable minicabs are allowed in the bus lanes. Whereas there are some identifying factors on a minicab sufficient for the police or cameras to pick them up, there is always the risk that other drivers will not be able to identify a minicab in a bus lane, and will assume that it is a private vehicle and – for example in areas where bus lanes have variable hours and not always sufficient notices identifying the hours – that the bus lane does not apply and they are free to follow the minicab into the bus lane.

iv) Compellability and maximum fares. TfL points out that black cabs, unlike minicabs, are subject to compellability (explained in paragraph 12(ii) above) and are limited by maximum fares. Minicabs do not have that disadvantage. Although they have fixed fares rather than metered fares, they can estimate those fares so as to make allowance for anticipated delays through congestion.

v) Environment. There was I think a misunderstanding about this. The reliance by TfL upon the environment was, it made clear, by reference to the existence and desirability of bus lanes themselves rather than to any suggestion, by reference to emissions or otherwise, that black cabs were in some way more favourable to the environment than minicabs.

The Claimant meets this case, upon which the onus lies on TfL, as follows:

i) Congestion. As set out in paragraph 15 above, little or no time was spent orally on any critique of the SKM Report. Rather Ms Demetriou's case was that the SKM figures do not show that there is any material addition by way of delay or expense to bus passengers by adding the 50,000 extra PHVs to the bus lanes. The increase in disadvantage to bus passengers is in percentage terms not much higher than 2% and on some calculations less than 1%. The Claimant submits that there should have been more persuasive statistics, whose absence was recognised in Familiapress v Heinrich Bauer Verlag [1997] ECR I-3689, although I refer to what I have said in paragraph 48 above and to Italian Trailers there referred to.

ii) Competition. The Claimant relies on the competition between minicabs and those (8% or so) black cabs who also pre-book.

iii) Disability. The Claimant points out that according to a 2002 report (Attitudes of Disabled People to Public Transport), 79% of wheelchair users "plan their journey in advance", which Mr Griffin interprets as pre-booking either a minicab or a black cab. He states that the number of wheelchair users seeking to hail a cab from a road which has a bus lane is likely to be very low, and comments accordingly that the relevance of the issue of disability for TfL's Bus Lane Policy is "vanishingly small".

iv) Distinction between black cabs and minicabs. Ms Demetriou, in her skeleton argument in paragraph 89, states as follows:

"It is important to note, at the outset, that the Claimant does not in any way challenge TfL's claims as to the importance of buses generally, and bus lanes specifically, to London's transport system. The improvement in journey time for bus passengers is the reason why bus lanes are there in the first place, and the reason why certain classes of vehicles are excluded from those lanes during certain hours of the day. The proposition that allowing more vehicles into bus lanes will to some extent slow down the traffic in those lanes (at least at certain times of the day) is an obvious one. What is far from obvious is why that proposition should justify an arbitrary selection of permitted vehicles by TfL, with the effect of causing blatant (and undisputed) discrimination between the two categories of transport operators that are (again it is not disputed) in direct competition."

v) Enforcement. Mr Griffin points out that, in addition to the rear sticker, which must be fixed on the outside of the glass on the bottom right-hand side of the rear windscreen, minicabs also have a sticker on the outside of the glass on the right-hand side of the front windscreen, and that this enables minicabs to be clearly distinguishable from private cars, certainly on police or traffic enforcement photographs.

vi) Compellability and maximum fares. Ms Demetriou points out that there is no evidence as to the burden caused to taxicabs by these obligations, nor any reason why providing black cabs with access to bus lanes is a necessary and proportionate response to any such burden.

So far as proportionality is concerned, the Claimant suggests other alternative courses which TfL could take:

i) If it is considered vital not to prejudice bus lanes, then that policy could lead to neither black cabs nor minicabs being permitted into the bus lanes, and thus the competitive advantage of those black cabs who are pre-booked would be eliminated.

ii) Black cabs could be permitted to enter bus lanes on the same basis as minicabs, i.e. to pick up and set down only.

iii) Bus lanes could be reserved for buses only during peak travel hours, permitting both black cabs and minicabs to use the bus lane at other times.

iv) Black cabs and minicabs could use bus lanes only when carrying passengers.

As to these, TfL answers as follows:

i) This would not have the public benefit of visibility of and access to black cabs, which is not necessary for minicabs.

ii) This suggestion, like the first, does not address the need for visibility of, and access to, cruising taxis.

iii) TfL responds that bus lanes are intended only to be operational during the hours when affording priority to buses is considered necessary.

iv) This suggestion is actually the reverse of the real purpose of allowing black cabs in the bus lanes, i.e. that the benefit for the public, and the advantage to their safety, is to have empty cabs, i.e. cabs for hire, in the bus lanes, and the suggestion would again not meet the visibility and access requirements referred to above.

Conclusions with regard to Articles 49, 56 and Equal Treatment

With regard to Article 56, I am satisfied that, for the reasons set out in paragraphs 25 to 27 above, Article 58 has the effect that Article 56 does not apply, and that the complaint relating to restriction on the freedom to provide services does not arise. I am however satisfied, given that this is a case in which, but for the provisions of Article 58, Article 56 would have applied, that, in accordance with what is set out in paragraph 28 above, the principle of Equal Treatment does apply, and I shall return to this below.

As to Article 49, the case must be looked at with common sense. I have noted the three belated statements from existing minicab drivers in the Claimant's fleet. None of them say that they were in any way affected, either in relation to coming to the UK to set up as minicab drivers (because none of them did), or in relation to their wanting to become minicab drivers, which they did some time after coming to the UK and which all have continued to be (in the case of one of them for the last 15 years). Notwithstanding those statements, I am satisfied that there is nothing which suggests that the fact that all minicab drivers (including those 91% who do not come from other Member States) have any difficulty with exercising their profession, or regard their occupation as rendered unattractive. There is no limitation upon their licence, no limitation upon their right to charge what fares they wish (taking into account travelling through congested areas otherwise than in bus lanes). I am wholly unpersuaded that this traffic restriction has any relevance at all to freedom of establishment. I conclude that this has simply been the attempt to mount a challenge to a London traffic regulation by turning it into a "Euro-point", and I am wholly unpersuaded by it.

I turn to Equal Treatment. The complaint is that in an area where a national rule falls within the scope of EU law, even if no specific Treaty rule has been engaged, comparable situations have been treated differently, i.e. minicabs have been treated differently from black cabs. In this regard I must turn to consider my conclusions as to justification – which in any event I would do, in case I have erred in my approach to the case under Article 49 (or indeed 56).

I am not considering the justification for the bus lanes themselves, or their environmental advantages, or the convenience of bus passengers, but the justification for the Bus Lane Policy, including the exception which includes within bus lanes black cabs and excludes minicabs.

I do not consider that such distinction is justified because – or as some kind of quid pro quo for the fact that – black cabs bear some public service obligations in relation to compellability etc.

Although there is some force in the point made by TfL with regard to enforcement or copycat following of minicabs into the bus lane, I conclude that that is a problem which could be resolved, if necessary by a new and stricter requirement for clearer identification of minicabs, so that they can be more easily differentiated by the public from private vehicles.

As to the statistics provided by the SKM Report, issues as to materiality can cut both ways – materiality as to the asserted additional disadvantage to bus passengers of additional vehicles in the bus lane, and materiality as to the asserted disadvantage to minicabs by their not being permitted into the bus lanes. But I do not decide the case by reference to any conclusion drawn, partial or rough and ready though they may be, from those statistics, or to the materiality of the disadvantage suffered by bus passengers, although I can see the force of TfL's point that there is bound to be additional disadvantage if 50,000 extra vehicles are allowed into the bus lane. I do, however, note particularly what Ms Demetriou herself says, in paragraph 89 of her skeleton, which I have set out in full at paragraph 51(iv) above, and the conclusion she invites the reader to draw is based upon the suggestion that what is sought to be justified is an "arbitrary selection of permitted vehicles by TfL". I am entirely satisfied that it is not arbitrary:

i) There is to my mind a clear distinction between the need of black cabs (and their passengers and the public) for them to be in the bus lanes, by way of visibility and availability of, and access to, black cabs for those hailing a cruising taxi. I do not reach this conclusion simply or mainly by reference to the disabled – though there are many people who are disabled, but are not in wheelchairs, and, even on the identification of disabled with wheelchair users and accepting Mr Griffin's premise set out in paragraph 51(iii) above, there would still be 21% of wheelchair users who may not pre-book. I am certainly not persuaded that the problem for the disabled of hailing a taxi which is not in a lane adjacent to the pavement is "vanishingly small". In any event, from the point of view of the public generally, I consider it makes entire good sense for black cabs to be travelling in bus lanes. Minicabs just do not have the need to use the bus lane, and black cabs do.

ii) The fact that 8% of black cab journeys are pre-booked and therefore in competition with minicabs does not seem to me to affect that conclusion. It would clearly not be possible to legislate that those black cabs could not use the bus lane when carrying a pre-booked passenger.

iii) It seems to me entirely clear that there is an objectively justifiable ground for distinction between black cabs and minicabs in relation to the use of the bus lane. If however the exception were to be extended to include minicabs, which do not have that same justification, then I cannot see any further stopping point, any further rational distinction between them and the other vehicles progressively listed in paragraph 50(ii) above. It would be the 'thin end of the wedge', but one of some importance because it would immediately jeopardise the priority for buses in the bus lanes.

I reach this conclusion by way of objective consideration. If I needed to consider the 'margin of appreciation' of TfL I would conclude that their Bus Lane Policy fell within it. For the avoidance of doubt:

i) I am content to adopt the same test as if I were addressing a restriction on freedom of movement, though I do not conclude that there is a difference between that and the test applicable in consideration of the general principle of equal treatment in EU Law (see paragraphs 40 to 48 above).

ii) I do not consider that there is either a question of public policy or a complex economic or technical question. The reasoning for the Bus Lane Policy, including its exception, is obvious and compelling.

As to the suggestion of other courses that could have been taken, I do not conclude (see paragraphs 40 and 48 above) that the availability of other solutions renders unjustifiable the conclusion to which TfL has come. But, in any event, I agree with the criticisms made by Mr Chamberlain, set out in paragraph 53 above: none of them are viable.

Therefore, addressing the requirements for justification, the four conditions in Gebhard, set out in paragraph 41 above, are plainly satisfied. Insofar as minicabs and black cabs have been treated differently, their situations are not comparable and, in any event, such treatment is objectively justified. Insofar as, contrary to my conclusions, there is a restriction falling within Articles 56 or 49, the restriction would be similarly justified.

Wednesbury Reasonableness

I was referred to the words of Stanley Burnton J (as he then was) in Middlebrook Mushrooms Ltd v The Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) which was an example of the application of the test of Wednesbury reasonableness to a case of alleged unreasonable treatment (of mushroom pickers). For the reasons set out above, I am entirely satisfied that the inclusion of black cabs but exclusion of minicabs was not Wednesbury unreasonable.

State Aid/Article 107: The Issues

The facts on which the claim under Article 107 is based are those set out in paragraphs 18 and 19 above, in respect of which, because of the clear effect of Article 58, I have not had to make any findings with regard to Article 56. By reference to them, Ms Demetriou submits that there is an effect on trade between Member States, because would-be European customers, who are coming to London, are, as Mr Maachi asserts, reluctant to take minicabs because of the fact that they cannot drive in bus lanes, such that they prefer to use the services of black cabs.

Derived from Article 107, set out in paragraph 17(v) above, there are the following requirements for State Aid in this context:

i) It confers an economic advantage.

ii) It must be granted by a Member State or through state resources.

iii) It must distort or threaten to distort competition by favouring certain undertakings.

iv) It must affect trade between Member States.

The live issues have revolved around (iii) and (iv).

The Claimant contends that there is favouring of black cabs, and that it distorts competition between minicabs and those black cabs who can pre-book (Radio Taxis) and that this affects trade between Member States.

With regard to (iv), TfL points to the words of Advocate-General Jacobs in GEMO SA [2003] ECR I-13769 at para 145 of his Opinion, where he referred to taxi services as being one of those economic sectors where aid might not affect trade between Member States; but Ms Demetriou understandably submits that such dictum cannot possibly be material where I actually have to decide that issue, and she differentiates two Commission decisions, that in case No. 543/2001, Ireland: Allowances for Hospitals and Case No. 377/2007, Bataviawerf as relating to obviously local matters (local hospitals and a local museum respectively). With regard to effect on trade between Member States, Mr Chamberlain relies on Remia BV v EC Commission [1987] 1 CMLR 1 (a case concerning what is now Article 101 TFEU) at 22, where the Court stated:

"… the Court would point out that, as it has consistently held, in order that an agreement between undertakings may affect trade between Member States it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact, that it may have an influence, direct or indirect … between Member States, such as might prejudice the realisation of the aim of a single market in all the Member States."

Mr Chamberlain submits that the European customers, to which Mr Griffin refers, travel to London in any event (it is not suggested they are deterred from coming) and what is suggested is that they may, once they have come, use different transport in London. Intra-state trade is unaffected.

With regard to (iii), this depends upon resolution of the dispute as to the "Selectivity requirement", referred to in paragraph 17(v) above, namely whether the measure is favouring black cabs in a way that is not justifiable by the nature or the general scheme of the Bus Lane Policy imposed pursuant to the Regulations.

Ms Demetriou relies upon paragraph 40 of the judgment of the Court in Heiser v Finanzamt Innsbruck [2005] ECR I-1627:

"[Article 107] requires it to be determined whether, under a particular statutory scheme, a State measure is such as to favour 'certain undertakings or the production of certain goods' in comparison with others which, in the light of the objective pursued by the system in question, are in a comparable legal and factual situation."

The Claimant contends that minicabs and black cabs are in a comparable legal and factual situation. As recited in Commission v Netherlands Case C-279/08 (8 September 2011) "it is for the Member State which has introduced such a differentiation … to show that it is actually justified by the nature and general scheme of the system in question." In that case, and in Portugal v Commission [2006] ECR I-7115, the onus was not satisfied.

Both parties rely on the recent decision of the European Court in British Aggregates Association v Commission Case T-210/02 RENV (7 March 2012), in which, at para 47, the Court addresses the need to consider whether a state measure is such as to favour certain undertakings "in comparison with other undertakings in a comparable legal and factual situation in the light of the objective pursued by the measure concerned". This effectively approves and repeats the simple statement of the Court in Adria-Wien Pipeline v Wieterstorfer & Pettauer Zementwerke [2001] ECR I-8365:

"According to the case-law of the Court, a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part does not fulfil that condition of selectivity."

In the event, the tax advantages given to the relevant producers were not held to be justified by the relevant statutory scheme.

Mr Chamberlain submits that the favouring of the black cabs, which alone are permitted to ply for hire, over the minicabs, which are not, is plainly justified as an important part of TfL's Bus Lane Policy and within its statutory function, referred to in paragraph 3 above, of "promoting and encouraging safe, integrated, efficient and economic transport facilities and services to, from and within London."

Conclusion as to Article 107

I am not satisfied that the Bus Lane Policy which permits black cabs and excludes minicabs within TfL's bus lanes, even though it may have an impact on competition between minicabs and those black cabs who can be pre-booked, affects trade between Member States. However, if I were wrong in that regard, I am satisfied that such measure does not offend against the Selectivity principle. It is exactly in accordance with the nature and general scheme of the Bus Lane Policy imposed pursuant to the Regulations to allow into the bus lanes those vehicles which can ply for hire and exclude those who cannot. I am satisfied that minicabs and black cabs are not in a comparable legal and factual situation in the light of the objective pursued by the measure concerned.

Result

For all these reasons the Claimant's application is dismissed.

XXXXXXXXXXXXXXXXXXXXXXXXXXXX

Then an preliminary opinion was requested from the EU's Advocate General. 

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 24 September 2014 (1)

Case C‑518/13

The Queen, on the application of Eventech Ltd

v

The Parking Adjudicator

(Request for a preliminary ruling from the Court of Appeal (England and Wales) (United Kingdom))

(State aid — Concept of ‘aid’ under Article 107(1) TFEU — Rules governing access to and use of public infrastructure — Authorisation granted to taxis but not to private hire vehicles to use the bus lanes in the Greater London Area — Transfer of State resources — Selectivity — Effect on trade between Member States)

1. The Court of Appeal (England and Wales) has asked the Court to clarify whether a contested London bus lane policy (‘the bus lane policy’) adopted by Transport for London (‘TfL’) comes within the concept of ‘aid’ under Article 107(1) TFEU. Under that policy, only black cabs (that is to say, London taxis) are allowed, during certain periods of the day, to use the lane reserved for public buses on public roads, to the exclusion of private hire vehicles (‘PHVs’).

2. This dispute comes in the wake of the technological advances made over the past few decades. In particular, the advent of satellite navigation systems and smartphones with specific applications designed for facilitating requests for transport have changed the way in which customers behave, blurring the lines between taxis and PHVs. The result is that taxis and PHVs are engaged in fierce competition with each other across Europe, and London is not the only city where conflicts have arisen. (2)

3. In point of fact, I do not find that the State aid rules are generally concerned with State measures such as the bus lane policy, provided that equal treatment is ensured in respect of comparable undertakings.

I – The national legal framework

A – Black cabs and PHVs

4. In London taxi services are provided by black cabs and PHVs. Both types of services are licensed by a body which is under the supervision of TfL. They are, however, licensed under different statutory provisions and are subject to different conditions.

5. Black cabs are licensed under the provisions set out in the London Cab Order 1934. That Order was made pursuant to the power in section 6 of the Metropolitan Public Carriage Act 1869 (‘the 1869 Act’), which provides in section 8(2) that ‘no hackney carriage shall ply for hire’ (emphasis added) in London unless under the charge of a driver licensed by TfL under section 8 of the 1869 Act. The effect of this is that only black cabs are permitted to collect passengers from the street despite the absence of a prior booking.

6. PHVs are licensed separately under the Private Hire Vehicles (London) Act 1998. They are not permitted to ‘ply for hire’ in London, but may take passengers that have pre-booked their services.

B – Traffic regulation powers and the bus lane policy

7. Under section 121A of the Road Traffic Regulation Act 1984 (‘the 1984 Act’), TfL is the traffic authority for certain roads in Greater London known as ‘GLA roads’, (3) whereas the traffic authorities responsible for almost all other roads in London and Greater London are the individual London boroughs.

8. Section 6 of the 1984 Act (as amended) confers on the traffic authority responsible for a particular road the power to restrict traffic on that road (or part of it) to certain types of vehicles. In exercise of its powers under section 6, TfL designated bus lanes along a number of GLA roads. In that connection, it adopted the bus lane policy.

9. Most London boroughs have adopted bus lane policies similar to that of TfL. An example is the Southampton Row bus lane operated by the London Borough of Camden (‘LBC’). PHVs are, however, permitted to enter the bus lanes for the purposes of picking up and setting down passengers.

C – Enforcement

10. Under section 4 of the London Local Authorities Act 1996, traffic authorities may issue a penalty charge notice (‘PCN’) in respect of a breach of an order made under section 6 of the 1984 Act.

11. Orders made under section 6 of the 1984 Act may also be enforced by the Police, as section 8(1) of the same act provides that it is a criminal offence to act in contravention of, or to fail to comply with, an order made under section 6. However, in practice, the majority of infringements of such orders are dealt with by the issue of PCNs by traffic authorities.

II – Facts, procedure and the questions referred

12. Eventech Ltd (‘Eventech’) is an associated company of Addison Lee plc (‘Addison Lee’), which is the operator of a fleet of PHVs in Greater London. Eventech is the registered keeper of all of Addison Lee’s PHVs, which are leased under contract by Addison Lee to self-employed drivers.

13. On 6 October 2010 and 13 October 2010 respectively, two of Addison Lee’s drivers drove their PHVs along the Southampton Row bus lane in central London. LBC subsequently served PCNs on Eventech in respect of those two uses of the Southampton Row bus lane. Eventech brought proceedings against those PCNs and the lawfulness of the bus lane policy before the Parking Adjudicator.

14. The Parking Adjudicator refused that challenge. Eventech subsequently applied for judicial review before the High Court of Justice, arguing that the bus lane policy infringed the applicable rules on freedom to provide services, freedom of establishment and State aid. By judgment of 13 July 2012, the High Court dismissed that application.

15. On 7 December 2012 Eventech obtained permission to appeal against the decision of the High Court, and the case was subsequently heard by the Court of Appeal. Entertaining doubts as to the proper interpretation of Article 107(1) TFEU, the Court of Appeal decided to stay the proceedings and to refer the following questions for a preliminary ruling:

‘(1) Does making a bus lane on a public road available to black cabs but not [PHVs], during the hours of operation of that bus lane, involve the use of “State resources” within the meaning of Article 107(1) TFEU, in the circumstances of the present case?

(2)(a) In determining whether making a bus lane on a public road available to black cabs but not [PHVs], during the hours of operation of that bus lane, is selective for the purposes of Article 107(1) TFEU, what is the relevant objective by reference to which the question whether black cabs and [PHVs] are in a comparable legal and factual situation should be assessed?

(2)(b) If it can be shown that the relevant objective, for the purposes of [Q]uestion 2(a), is at least in part to create a safe and efficient transport system, and that there are safety and/or efficiency considerations that justify allowing black cabs to drive in bus lanes and that do not apply in the same way to [PHVs], can it be said that the measure is not selective within the meaning of Article 107(1) TFEU?

(2)(c) In answering [Q]uestion 2(b), is it necessary to consider whether the Member State relying on that justification has demonstrated, in addition, that the favourable treatment of black cabs by comparison with [PHVs] is proportionate and does not go beyond what is necessary?

(3) Is making a bus lane on a public road available to black cabs but not to [PHVs], during the hours of operation of that bus lane, liable to affect trade between Member States for the purposes of Article 107(1) TFEU, in circumstances where the road in question is located in central London, and there is no bar to citizens from any Member State owning or driving either black cabs or [PHVs]?’

16. Written observations have been submitted by Eventech, TfL, the Polish Government, the Commission and the EFTA Surveillance Authority (‘ESA’). With the exception of the Polish Government, those parties also presented oral argument at the hearing on 3 July 2014.

III – Analysis

A – Preliminary observations

17. The Court of Appeal has put three questions for a preliminary ruling to the Court, all of which seek to obtain an interpretation of certain of the constitutive elements of the concept of ‘aid’ under Article 107(1) TFEU. Question 1 deals with the matter of a transfer of ‘State resources’. Question 2, in particular, concerns three different aspects of the assessment as to whether the bus lane policy favours ‘certain undertakings or the production of certain goods’, that is, whether that policy is selective. Lastly, Question 3 asks for an interpretation of the concept of an ‘effect on trade between Member States’ (‘an effect on inter-State trade’).

18. Interestingly, before the High Court of Justice, the State aid issues which were in dispute were (i) the requirement of selectivity; (ii) whether the bus lane policy ‘distorts or threatens to distort competition’ and (iii) whether the bus lane policy is liable to have an effect on inter-State trade. In other words, on the one hand, whereas it was common ground before the High Court of Justice that the bus lane policy involved a transfer of State resources, that matter is now in issue before the Court of Appeal, being the focus of Question 1. (4) On the other hand, it is no longer contested that the bus lane policy is liable to distort competition. Leaving those matters aside, it has not been disputed before either court that the bus lane policy does indeed confer an advantage upon black cabs and, accordingly, the referring court has not posed any question in that regard.

19. It follows from the applicable national rules that the competitive setting regarding the provision of local passenger transport services by vehicle is one where black cabs have a partial legal monopoly. They alone may ‘ply for hire’, that is to say, be picked up at a cab rank or be hailed from the street. However, both black cabs and PHVs may provide their services in respect of pre-booked journeys. As to the extent to which black cabs operate on the market for pre-bookings, according to evidence submitted to the High Court of Justice, a 2009 survey showed that 8 % of black cab journeys were pre-booked. (5)

B – Question 1: the transfer of State resources

20. By its first question, the referring court asks whether the bus lane policy gives rise to a transfer of State resources. What the Court must clarify, therefore, is whether the fact that the State grants a specific group of undertakings access to public infrastructure where there previously was none constitutes such a transfer.

21. Eventech argues that the bus lane policy gives rise to a transfer of State resources in three different ways, namely (i) the preferential access to a State asset for the use of which black cabs are not charged; (ii) the exemption of black cabs from the obligation to pay fines for using the bus lanes; and (iii) the increased expenditure for the maintenance of the bus lanes due to the added traffic from black cabs.

22. As for that last issue, public funds will have to be used to maintain the roads, including any possible bus lanes. The fact that the lane normally reserved for buses might undergo more wear and tear as a result of granting access to black cabs does not change this, as the other lanes will need correspondingly less maintenance. Therefore, I fail to see how the bus lane policy might give rise to an additional burden on the State in this regard.

23. In what follows, I will deal with the other two issues separately.

1. Access to the bus lanes free of charge

24. The bus lane policy gives black cabs the possibility of avoiding traffic and therefore of providing taxi services to a higher number of fare-paying passengers within the same amount of time at no added cost. Such an authorisation carries an economic value. (6) The question is therefore whether this amounts to forgoing State resources or, put differently, whether Member States have an obligation, under the State aid rules, to charge for the use of public infrastructure.

25. Although the Court’s case-law provides some guidance, the issue under consideration does not appear to have been resolved in previous cases.

26. On the one hand, the case-law according to which measures which, whilst not involving a formal transfer of State resources, nevertheless give rise to a potential forgoing of revenue, (7) does not seem transferable to situations involving access to public infrastructure, as that line of case-law relates essentially to favourable tax treatment. (8) In the same vein, the case-law applicable to State guarantees, which, leaving aside the premium, may entail an additional burden on the State as such guarantees may involve a transfer of State resources at some later point in time, (9) cannot be applied to the issue under consideration.

27. On the other hand, a different line of case-law appears to support the idea that regulatory intervention in the market which benefits one group over another but does not entail an actual or potential payment of State monies (or a loss of gain) does not necessarily involve a transfer of State resources. (10) It could also be inferred from a similar line of case-law that a financial burden on the State which is a simple consequence of a given statutory system and inherent to it, does not come within the concept of a transfer of ‘State resources’ either. (11)

28. However, neither line of case-law mentioned in the previous point deals with the question of access to public infrastructure.

29. On that basis, I am of the opinion that — generally speaking — the State aid rules do not specifically require that Member States demand payment for access to such infrastructure, but leave it to their discretion whether or not to grant access free of charge. (12) As an asset in the public domain intended to facilitate transport and mobility for end-users, such infrastructure by its very nature requires that rules be set for its use, including access to it — most evidently in relation to traffic control and maintaining order. That is a regulatory, rather than a commercial, matter of the kind that does not justify the application of the rules on competition set out in Chapter 1 of Title VII of the FEU Treaty, including those on State aid. (13) As the Polish Government points out, Member States may have enacted specific rules for the organisation of traffic. This does not mean that by regulating access to public infrastructure, a resource has been transferred (or indeed forgone).

30. If, for the sake of argument, the State aid rules were interpreted as generally requiring Member States to charge for access to public infrastructure or State-controlled resources, this might deter States from creating or opening up areas to which there has previously been no, or only limited access. Equally, it might deter undertakings from participating in that process. For example, in the matter under consideration, if black cabs were required to pay for access to bus lanes, that might deter certain of them from requesting access, which might result in access being given only to the economically most resourceful, thus defeating the purpose of the policy.

31. However, I should stress that the scenario described above in point 29 is the default scenario, which may vary according to the circumstances, and a number of caveats therefore apply. For one thing, specific EU legislation may lay down detailed rules in relation to a particular area. (14)

32. In addition, when regulating access to infrastructure, the State must evidently act in a genuinely regulatory capacity. That includes regulating comparable situations in the same way so that competition is not distorted. (15) Indeed, where infrastructure is made available to all users on an equal and non-discriminatory basis, that is an indication that no aid has been given to those users. (16) By contrast, if, for example, the State generally requests payment for access to public infrastructure (such as a toll fee for using a public motorway) or other resources in the public domain, but grants various undertakings access free of charge on a discretionary basis, revenue may well be forgone in respect of those undertakings. The NOx case is illustrative in that regard. (17) There, the Netherlands authorities had made certain emission allowances tradable only in respect of large undertakings with a total installed thermal capacity of more than 20 thermal megawatts, as a group, rather than to all emitting undertakings. The Court, finding first that distinction not to be justified by the object and general purpose of a scheme intended to reduce industrial pollution, held that those authorities had forgone resources, as no payment had been made in return for the emission allowances concerned.

33. Thus, when the State acts in a regulatory capacity, as described above, in respect of access to resources in the public domain, I essentially concur with the Commission and ESA that, provided it treats all comparable undertakings concerned in the same way by establishing the award criteria in advance in a transparent and non-discriminatory manner, the State may legitimately decide not to maximise the revenues which could otherwise have been achieved, without falling foul of the State aid rules.

34. As for the bus lane policy, nothing suggests that it has been adopted for any reason other than to promote a common regulatory aim. Therefore, and in light of the above considerations, I do not find it of relevance that in a number of places in London, the entire road is designated as a bus lane — including particularly busy roads. This is simply an inherent consequence of the way in which traffic is regulated.

35. Lastly, I acknowledge that, with the approach I have taken, whether State resources have been transferred is dependent on whether equal treatment has been ensured. Certainly, the link between, on the one hand, equal treatment and, on the other, a transfer of State resources seems to follow from the very nature of the resource in question, that is to say, public infrastructure. In that respect, whether TfL has respected the principle of equal treatment is an issue which is more closely related to the question whether the bus lane policy is selective than to the question whether State resources have been forgone. I will therefore address that issue separately in Question 2, not least because the issues raised in the main proceedings are ones of principle that merit individual attention, and it would clearly be desirable for State authorities and undertakings alike if the Court were also to provide guidance on all those issues.

36. Before doing so however, I will examine the exemption from penalties which black cabs enjoy.

2. The exemption of black cabs from penalties for using the bus lanes

37. As has already been mentioned, Eventech argues that exempting black cabs from penalties for using the bus lanes entails an additional burden for the public authorities. The logic behind this reasoning appears to be that the Court has, on occasion, held that the release from the obligation to pay fines involves a forgoing of revenue, in the same way as tax advantages and the like.

38. However, as a starting point at least, a release from the obligation to pay fines cannot always be equated to other ways in which the State might be deemed to have waived its right to revenue. Eventech’s argument that a Member State can be held accountable under the State aid rules for forgoing resources generated from fines seems to presuppose that States generally have an obligation to enact legislation imposing fines.

39. Moreover, fines and penalties — particularly so far as criminal penalties are concerned — are instruments which belong to the sphere of public policy and which have as their aim both deterrence and punishment. By contrast, taxes and levies primarily serve a budgetary aim, as the whole purpose of any tax system is to collect revenue to finance State expenditure. (18) Though both fines and taxes clearly entail a financial burden for those that they are aimed at, this does not mean that they are interchangeable. If a fine cannot be equated to a tax per se, nor can an exemption from having to pay a fine be equated as such to a tax advantage.

40. Similarly, a fine is not the same as a fee (whether fixed or variable), as fees are normally paid in return for the receipt of goods or services. In this respect, as the Polish Government rightly observes, a fine for exceeding the speed limit is not a fee for more intensive use of the road than is permitted.

41. The cases in which the Court has hitherto considered a release from the obligation to pay fines and penalties to involve a forgoing of resources are, in my view, self-explanatory inasmuch as they involve a simple mitigation of business costs.

42. Ecotrade (19) and Piaggio (20) both concerned the same Italian legislation. In those cases, the release from the obligation to pay fines and pecuniary penalties in the context of a special insolvency procedure (which included a set of advantageous measures such as a State guarantee) led the Court to declare that it could not be excluded that that procedure involved State aid. The fines and pecuniary penalties in question were imposed for failure to pay social security contributions, wherefore the special insolvency procedure mitigated the charges normally included in the budget of an undertaking.

43. Moreover, the NOx case, (21) on which Eventech relies, is radically different from the case under consideration. Nothing suggests that the authorisation given to black cabs to use the bus lanes is tradable or that fines for unlawful use of the bus lanes may be avoided. The order for reference quite clearly states that unauthorised use of the bus lanes is a criminal offence. (22) By contrast, in the NOx case, seeing as undertakings with potentially high emissions which had exceeded the applicable standard were tempted to speculate on an annual basis as to whether it would be more profitable for them to pay a penalty or to acquire emission allowances, the penalty at stake in that case — as in Ecotrade and Piaggio — also presented all the classic features of a business cost.

44. By contrast, the fine imposed for using the bus lanes unlawfully cannot be reduced to a mere business cost (even though some undertakings might treat it that way). The provisions under which fines are imposed are of general application, thus applying to undertakings and private individuals alike. Moreover, fines are a logical consequence of a regulatory activity concerned with access to public infrastructure: as previously stated, a regulatory activity of this type does not come per se within the scope of the State aid rules — provided that all comparable undertakings concerned are treated equally when the regulatory policy is applied.

45. In view of the foregoing, I also cannot agree with the argument that releasing black cabs from the obligation to pay a fine for using the bus lanes gives rise to a transfer of State resources.

3. Interim conclusion

46. On that basis, I propose that the Court should answer Question 1 to the effect that, on a proper construction of Article 107(1) TFEU, where State authorities make a bus lane on a public road available to black cabs but not to PHVs during the hours of operation of that bus lane, that does not involve a transfer of ‘State resources’, provided that all comparable undertakings are granted access on equal terms, which falls to be verified by the referring court.

47. Given my position with regard to Question 1, the actual answer to be given in the case before the referring court will depend on whether the bus lane policy is selective. This is the focus of Questions 2(a), (b) and (c).

C – Questions 2(a), (b) and (c): the selectivity of the bus lane policy under Article 107(1) TFEU

1. Introductory remarks

48. As alluded to in point 17 above, by its second question — divided into three parts — the referring court requests guidance on various aspects of the requirement of selectivity under Article 107(1) TFEU.

49. By Question 2(a), the referring court asks ‘what … the relevant objective [is] by reference to which the question whether [b]lack [c]abs and [PHVs] are in a comparable legal and factual situation should be assessed’. By Question 2(b), the Court of Appeal asks whether, if it can be shown for the purposes of Question 2(a) that the objective pursued is the creation of ‘a safe and efficient transport system’, that objective may justify the bus lane policy in the sense that it cannot be deemed to be selective for the purposes of Article 107(1) TFEU. Lastly, by Question 2(c), the referring court asks whether the Member State must show, in the course of the justification process, that the advantage conferred complies with the principle of proportionality.

50. It is worthy of note that, apart from referring to the submissions of the parties in the main proceedings, the order for reference does not state the underlying reasons that have led the referring court to formulate Questions 2(a), (b) and (c) in the manner that it has.

51. Given that ambiguity, a first — literal — way in which Question 2(a) might be understood is that the referring court simply wishes to know what the relevant objective is by reference to which black cabs and PHVs are to be compared.

52. However, if this interpretation were to be correct, it would be surprising that, by Question 2(b), the referring court itself mentions that the objective might be the creation of a safe and efficient transport system. Moreover, under Article 267 TFEU, it is for the national courts to set out the applicable national rules and, in that connection, to ascertain the objective which those rules pursue. It is not for the Court to suggest possible objectives which may lead to finding that a given State measure is not selective. (23)

53. Therefore, a second — and perhaps more interpretative — reading of Question 2(a) might be that the referring court in reality wishes to know whether selectivity is to be assessed solely on the basis of the market on which both black cabs and PHVs compete (that is to say, the market for pre-bookings), or whether it ought to include the ‘ply for hire’ market. This is arguably a decisive issue in the case under consideration, so I will answer Question 2(a) with that reading in mind.

54. By Questions 2(b) and (c) — which appear to be linked in the same way as Questions 2(a) and 2(b) — it seems to me that the referring court wishes to know whether safety and efficiency considerations may explain why only black cabs and not PHVs may use the bus lanes during certain hours (such as peak travel, or ‘rush’, hours) and, if so, whether measures adopted to that effect must comply with the principle of proportionality.

55. Bearing these considerations in mind, I will attempt to provide a coherent answer, addressing each of the issues raised by the referring court in turn.

2. Assessment

a) The relevant market(s) when comparing black cabs to PHVs

56. As an exception to the normal situation under the transport and traffic regime applicable within the Greater London Area, the bus lane policy allows black cabs to use the bus lanes during certain hours of the day, to the exclusion of PHVs.

57. In this respect, it is settled case-law that a State measure is selective if, under a particular statutory scheme (also known as ‘the reference framework’), that measure is such as to favour certain undertakings or the production of certain goods in comparison with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure in question. (24)

58. So, depending on whether black cabs and PHVs are in a comparable situation, the bus lane policy might give rise to selective treatment. (25) One way of determining this is to assess whether PHVs and black cabs may be substituted for each other. This, in turn, requires establishing on which relevant market(s) a comparison is to be based.

59. Black cabs and PHVs both compete on the market for pre-bookings, and it is common ground that competition is affected by the bus lane policy on that market. If that market were the only one relevant, they would clearly be comparable and, consequently, the bus lane policy would be selective.

60. However, one cannot simply extract a part of the business model of an undertaking and then limit the comparison with another undertaking to the segment thus extracted. Certainly that is true for the taxi business as well, certain specificities of which make it unjustified to limit the assessment of comparability to the market for pre-bookings alone.

61. In brief, taxis provide a service which supplements the existing methods of public transportation and which, in some ways, can arguably be assimilated to a universal public service. At a time when methods of communication were less developed, being able to hail a taxi from the street or to pick one up from a cab rank was an essential alternative to the other methods of transportation available. This is the reason why black cabs traditionally have a monopoly on ‘ply for hire’ journeys, and the same reason why taxis in many cities across Europe enjoy similar privileges, including the right to use bus lanes.

62. Moreover, as mentioned in point 19 above, according to the evidence submitted, a mere 8 % of black cab journeys are pre-booked. Accordingly, I am not persuaded that the pre-booked market is the only significant market on which black cabs operate. (26) In this connection, although it does not appear self-evident to me, it has not escaped my attention that the High Court in its judgment found that ‘[i]t would clearly not be possible to legislate that … black cabs could not use the bus lane when carrying a pre-booked passenger’. (27) With that in mind, there appears to be no justification for limiting the assessment to the market for pre-bookings alone.

63. At this juncture it is therefore necessary to consider Question 2(b) and accordingly also Question 2(c), namely whether, owing to safety and efficiency considerations, black cabs are not comparable to PHVs on those combined markets and whether, accordingly, allowing only black cabs and not PHVs, to use the bus lanes during certain hours is justified. I will turn to that issue now.

b) Are black cabs and PHVs comparable in light of the objective of creating a safe and efficient transport system?

64. It follows from the discussion above that the relevant markets to be taken into consideration for comparing black cabs and PHVs are the ‘ply for hire’ market and the market for pre-bookings.

65. Essentially, four main reasons have been put forward as to why black cabs and PHVs are not comparable on those combined markets.

66. First, unlike PHVs, black cabs have certain obligations with regard, inter alia, to customers whom they pick up in the street or at a taxi rank (‘compellability’). Those customers may include, for instance, persons with disabilities, for whom black cabs must therefore be accessible.

67. Second, black cabs must conform to certain standards (‘the Conditions of Fitness’), such as the shape and size of the vehicle and the taxi sign (currently only two models comply with the Conditions of Fitness), so as to be more easily visible to hailing customers.

68. Third, black cabs are subject to strict fare regulation. (28)

69. Last, in order to become a black cab driver, the licence requirements are generally stricter than to become a private hire driver and include a thorough topographical test of the geography of Greater London known as ‘the Knowledge’.

70. Given those factors, although I consider black cabs to be comparable to PHVs on the market for pre-bookings, they are not comparable in all respects. I can therefore accept, as a matter of principle, that, on the combined relevant markets, the objective consisting in the creation of a safe and efficient transport system may mean that black cabs are not comparable to PHVs.

71. However, black cabs unquestionably operate on a market which overlaps with PHVs and can thus use their competitive advantage over PHVs in respect of the pre-bookings segment. That being so, and as the referring court seems to suggest by Question 2(c), although the creation of a safe and efficient transport system may require distinguishing between certain groups of undertakings, there are also limits to what may be justified by that objective. I do not believe that the aim of maintaining a safe and efficient transport system requires the distortion of competition caused by the bus lane policy on the market for pre-bookings to be unrestricted.

72. In this connection, I would call to mind that it is the State that, by adopting a given measure, defines its objective(s). It is therefore up to the State to show that certain groups of seemingly comparable undertakings are not, in fact, comparable under a particular scheme, in view of the objectives of that measure. (29) I am of the opinion — contrary to the view expressed by the Polish Government — that, when it does so, the State must also show that a difference in treatment arising from the objective of the measure is consistent with the principle of proportionality in that it does not go beyond what is necessary to achieve the objective and that that objective could not be attained by less far-reaching measures. (30) Only a comprehensive review by the national courts in this regard is sufficient to prevent arbitrariness and to ensure that the State is mindful of its burden of proof in demonstrating that these requirements are fulfilled.

73. Thus, although I can accept that, as a matter of principle, a distinction can be made between black cabs and PHVs on grounds of efficiency and safety, in keeping with the principle of proportionality, it is also necessary to assess specifically whether the contested bus lane policy is suitable for achieving that objective and does not go beyond what is necessary in order to achieve it. That, however, is a matter to be determined by the referring court.

3. Interim conclusion

74. In light of the above, I propose that the Court answer Questions 2(a), (b) and (c) together to the effect that, in the circumstances under consideration, where State authorities make a bus lane on a public road available to taxis but not PHVs during the hours of operation of that bus lane, that does not amount to ‘favouring certain undertakings’ within the meaning of Article 107(1) TFEU, provided that those authorities demonstrate (i) that taxis and private hire vehicles are not legally and factually comparable, owing to objective considerations relating to the safety and efficiency of the transport system, and (ii) that such a measure is suitable for achieving that objective and does not go beyond what is necessary in order to achieve it. It is for the referring court to verify whether that is the case.

75. The effect of my proposed answer to Question 2 in the light of Question 1 is that, if TfL can show that black cabs and PHVs are not legally and factually comparable on grounds of safety and efficiency, allowing black cabs to use the bus lanes during certain hours of the day cannot in those circumstances be deemed to involve a transfer of State resources.

76. If that is the case, there can be no question of ‘aid’ for the purposes of Article 107(1) TFEU, as the requirements laid down in that provision are cumulative. (31) However, irrespective thereof, I will set out below my view on Question 3 as it, too, involves an issue of principle.

D – Question 3: the effect on trade between Member States

77. Lastly, the Court of Appeal asks whether the bus lane policy is liable to affect trade between Member States.

78. If black cabs and PHVs are not comparable because of safety and efficiency considerations, then Question 3 becomes rather nonsensical. There is in practice no restriction on the number of black cabs in London, (32) and it is open to all EU citizens to apply to become a licenced black cab driver. Given this, it would be questionable how a local measure of that kind might still be liable to affect inter-State trade.

79. Therefore, the premiss on which I base my answer is that black cabs and PHVs are comparable in all respects and, accordingly, that the bus lane policy confers a selective advantage on black cabs involving a transfer of State resources which is liable to distort competition.

80. Unlike Eventech, the Commission and ESA, I do not find that the judgment in Altmark (33) settles that matter. Though it is true that in Altmark the Court held, inter alia, that the requirement of an effect on inter-State trade does not depend on the local or regional character of the transport services supplied or on the scale of the field of activity concerned (34) (a view which has been upheld in subsequent case-law), (35) two important elements must be emphasised here.

81. First, the advantage in Altmark was conferred on a single undertaking in respect of a single bus transport concession contract, which took the form of a public subsidy. Naturally, that concession therefore reinforced the position of that recipient undertaking as compared to undertakings from other Member States which might have been interested in providing a similar service in the local area. (36) By contrast, in the present case, the advantage conferred by the bus lane policy — which does not involve a subsidy — has not been granted to a single or significantly limited number of transport undertakings. As stated in the order for reference, there is no bar to citizens from any Member State owning or driving a black cab, should they wish to benefit from the bus lane policy.

82. Second, in Altmark the Court, although emphasising in general terms the low threshold needed to meet the requirement of an effect on inter-State trade, at no point stated that this requirement was actually met as regards the advantage granted to the bus service provider at issue in that case. (37) The Court merely limited itself to saying that that possibility could not be excluded. That is also true of later case-law concerning local activities. (38) It is not for no reason that, by the language it typically uses in these types of cases, the Court usually errs on the side of caution. (39)

83. Moreover, when considering the requirement for an effect on inter-State trade, it is relevant to distinguish between goods and services as goods are intrinsically more exportable, with the risk that undertakings in other Member States will have less chance of exporting their products to the market in the Member State conferring the aid. (40) Services, on the other hand, are a more complex matter; particularly so far as transport services are concerned. If the service in question has any cross-border potential, then inter-State trade can be assumed to be affected. (41) With local services, such a cross-border potential does not always exist, in which case there cannot be any cross-border effect. Local taxi services are but one example where a cross-border potential is not evident. (42)

84. Nevertheless, it is an established fact in the main proceedings that the bus lane policy confers an advantage on black cabs. Such an advantage is, according to case-law, presumed to be liable to affect inter-State trade. (43) Despite it being wholly unclear how undertakings established in other Member States providing a similar service might be affected by the bus lane policy, the differences highlighted above may not be enough to justify a result other than that reached in Altmark, according to which even local advantages may be liable to affect inter-State trade. Following Altmark, at the least a potential effect on inter-State trade cannot be excluded.

85. In light of the foregoing, should the Court hold that the bus lane policy is liable to affect inter-State trade, I would have to point out that in such a case there would seem to be no threshold too low to meet the requirement of an effect on inter-State trade. For all intents and purposes, this would mean passing from a presumption of an effect on inter-State trade — which is rebuttable, as Commission practice shows (44) — to an irrebuttable presumption. Though irrebuttable presumptions have the advantage of bringing legal certainty, here it would certainly also have its drawbacks.

86. It is therefore not without cause that ESA has suggested that the Court should reconsider its approach to the requirement of an effect on inter-State trade as, in ESA’s view, that requirement is interpreted so broadly that hardly any measures escape it. According to ESA, the decisive point should be whether undertakings established in other Member States have less chance of providing their services in the market in the Member State where the advantage is conferred.

87. However, in my view it would be premature at this point to consider retreating from that line of case-law, which has been settled for more than 30 years, by restricting the requirement of an effect on inter-State trade in the manner suggested by ESA. Only if that requirement were to change from a simple presumption to an irrebuttable one might it be worth entertaining that idea. Obviously, that will depend entirely on how the Court decides to respond to Question 3.

88. Of course, the Court may simply choose to maintain the status quo by having recourse, in its answer, to the time-tested, cautiously worded formula according to which, despite its local character, it is not impossible that the bus lane policy might affect inter-State trade. This would, moreover, be consonant with the practice of the Court to leave it to the referring court to have the final say as to whether, in the circumstances of the main proceedings, inter-State trade is liable to be affected, taking due account of the guidance given by the Court. (45) In that respect, the referring court could naturally take into account those factors referred to in points 81 to 83 above, in particular those which distinguish the case under consideration from the judgment in Altmark.

89. Given my proposed answers to Questions 1 and 2(a), (b) and (c), that is the answer which I would also suggest that the Court give to Question 3, in the event that the other requirements for a finding of ‘aid’ under Article 107(1) TFEU are deemed to be met.

IV – Conclusion

90. In light of the foregoing, I propose that the Court respond to the questions referred by the Court of Appeal (England and Wales) (United Kingdom) as follows:

On a proper construction of Article 107(1) TFEU, where the authorities of a Member State make a bus lane on a public road available to taxis but not to private hire vehicles during the hours of operation of that bus lane:

– this does not involve a transfer of ‘State resources’, provided that access is granted on equal terms to all comparable undertakings; and

– this does not amount to ‘favouring certain undertakings’, provided that those authorities show (i) that taxis and private hire vehicles are not legally and factually comparable, owing to objective considerations relating to the safety and efficiency of the transport system, and (ii) that such a measure is suitable for achieving that objective and does not go beyond what is necessary in order to achieve it.

It is for the referring court to determine whether that is the case in the circumstances of the main proceedings. If that is not the case, the mere fact that the right to use the bus lanes is conferred in the context of a local traffic policy does not, in itself, exclude the possibility of trade between Member States being affected, which also falls to be determined by the referring court.

1 – Original language: English.

2 – See, inter alia, the Opinion of the French National Competition Authority (Autorité de la Concurrence) No 13-A-23 of 16 December 2013 regarding a draft decree on the pre-booking of chauffeured private hire vehicles; the interlocutory order of 5 February 2014 of the French Conseil d’État in Cases No 374524 and No 374554, SAS Allocab and Others; the judgment of 31 March 2014 of the tribunal de commerce de Bruxelles (Brussels Commercial Court) in Case A/14/01645, Taxi Radio Bruxellois and the decision of 16 September 2014 of the Landgericht Frankfurt (Frankfurt Regional Court) in Case 03 0 329/14, Taxi Deutschland.

3 – The referring court mentions that GLA roads extend to 580 km and are, very broadly speaking, the most important roads in Greater London.

4 – At the hearing, it was explained that the Court of Appeal decided, of its own motion, to raise the issue of the transfer of State resources and requested the view of the parties thereon.

5 – This information further indicates that 52 % of black cab journeys result from passengers hailing them from the street, and 34 % were picked up from cab ranks. What occurs in the case of the remaining 6 %, was not, however, disclosed; see the judgment of the High Court of Justice in Eventech Ltd v the Parking Adjudicator [2012] EWHC 1903 (Admin), paragraphs 9 and 50(i).

6 – See, to that effect, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraphs 118 and 119 and case-law cited.

7 – See Commission v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 72, and Vent De Colère and Others, C‑262/12, EU:C:2013:851, paragraph 19.

8 – See, to that effect, P, C‑6/12, EU:C:2013:525, paragraph 18.

9 – See, for instance, Bouygues and Bouygues Télécom v Commission, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraphs 106 and 107.

10 – See Kirsammer-Hack, C‑189/91, EU:C:1993:907, paragraphs 17 and 18; Viscido and Others, C‑52/97 to C‑54/97, EU:C:1998:209, paragraphs 14 and 15; and PreussenElektra, C‑379/98, EU:C:2001:160, paragraphs 61 and 62. See also Van Tiggele, 82/77, EU:C:1978:10, paragraphs 24 and 25.

11 – See Sloman Neptun, C‑72/91 and C‑73/91, EU:C:1993:97, paragraph 21, and Ecotrade, C‑200/97, EU:C:1998:579, paragraph 36.

12 – See, to that effect, the Opinion of Advocate General Mengozzi in Commission v Netherlands (‘NOx’), C‑279/08 P, EU:C:2010:799, point 84.

13 – See, to that effect, Selex Sistemi Integrati v Commission, C‑113/07 P, EU:C:2009:191, paragraph 70 and case-law cited. See also Netherlands v Commission, T‑231/06 and T‑237/06, EU:T:2010:525, paragraph 93.

14 – By way of example, Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15) and Decision No 128/1999/EC of the European Parliament and of the Council of 14 December 1998 on the coordinated introduction of a third generation mobile and wireless communications system (UMTS) in the Community (OJ 1999 L 17, p. 1) granted the Member States the discretion as to the choice of procedure for the award of UMTS licences, provided that the principles of free competition and equal treatment were respected.

15 – See, to that effect, Bouygues and Bouygues Télécom v Commission, T‑475/04, EU:T:2007:196, paragraph 110 (upheld on appeal, see Bouygues and Bouygues Télécom v Commission, EU:C:2009:223, in particular paragraphs 98 and 103).

16 – See, to that effect, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, T‑443/08 and T‑455/08, EU:T:2011:117, paragraph 109 (upheld on appeal in Mitteldeutsche Flughafen and Flughafen Leipzig v Commission, C‑288/11 P, EU:C:2012:821).

17 – Commission v Netherlands (NOx), C‑279/08 P, EU:C:2011:551.

18 – Commission notice on the application of the State aid rules to measures relating to direct business taxation, OJ 1998 C 384, p. 3, point 26.

19 – EU:C:1998:579, paragraphs 42 to 44.

20 – C‑295/97, EU:C:1999:313, paragraphs 41 and 42.

21 – EU:C:2011:551.

22 – TfL adds that ‘the fine imposed for illegally driving in bus lanes during their hours of operation would be incurred on every occasion that the vehicle in question enters a bus lane, which could be several times in one journey’ (emphasis added), that is to say, theoretically unlimited.

23 – See, by way of analogy, order of 7 March 2013 in Bertazzi and Others, C‑393/11, EU:C:2013:143, paragraph 54, and also, to that effect, P, EU:C:2013:525, paragraphs 20 and 21.

24 – Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke, C‑143/99, EU:C:2001:598, paragraph 41. See also Portugal v Commission (‘Azores’), C‑88/03, EU:C:2006:511, paragraph 54, and Commission v Government of Gibraltar and United Kingdom, EU:C:2011:732, paragraph 75.

25 – It is important to bear in mind that the case-law referred to in point 57 above only refers to ‘a legal and factual situation that is comparable’ (emphasis added) and not to a legal and factual situation that is similar, let alone identical.

26 – Without discussing the accuracy of this figure, in view of the constant evolution in technology, time will tell whether smartphones (and the various phone applications created by black cab and PHV operators) might definitively change this market structure.

27 – See paragraph 60(ii) of the High Court judgment cited in footnote 5 above.

28 – According to the Law Commission Paper No 347, ‘Taxi and Private Hire Services’, May 2014, point 9.21, available at URL http://www.lawcom.gov.uk, regarding fares, pre-booked journeys are regulated on the same basis as ‘ply for hire’ journeys.

29 – See, by way of analogy, Commission v Government of Gibraltar and United Kingdom, EU:C:2011:732, paragraph 146 and case-law cited.

30 – See, by way of analogy, Paint Graphos, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 75.

31 – See, inter alia, Vent De Colère and Others, EU:C:2013:851, paragraph 15.

32 – See section 16 of the Transport Act 1985, and the Law Commission Paper No 347, ‘Taxi and Private Hire Services’, May 2014, point 11.1, available at URL http://www.lawcom.gov.uk.

33 – Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415.

34 – Ibid., paragraphs 77 and 82.

35 – See, inter alia, Comitato “Venezia vuole vivere” and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 135.

36 – See, similarly, ACEA v Commission, T‑297/02, EU:T:2009:189, paragraph 91, and Case SA.34056 (2012/N) — United Kingdom, Cable Car for London, Decision of 27 June 2012, available at URL http://ec.europa.eu/competition/state_aid/cases/244896/244896_1341324_ 89_1.pdf, points 43 to 46 (summary publication in OJ 2012 C 220, p. 6).

37 – See Altmark (EU:C:2003:415, paragraph 77) where the Court simply stated that ‘… it is not impossible that a public subsidy granted to an undertaking which provides only local or regional transport services and does not provide any transport services outside its State of origin may none the less have an effect on trade between Member States’ (emphasis added).

38 – See, inter alia, Comitato “Venezia vuole vivere” and Others v Commission, EU:C:2011:368, paragraph 135.

39 – See similarly the Opinion of Advocate General Alber in Spain v Commission, C‑409/00, EU:C:2002:475, point 116.

40 – See, inter alia, Belgium v Commission, C‑75/97, EU:C:1999:311, paragraph 47 and case-law cited.

41 – See, inter alia, Xunta de Galicia, C‑71/04, EU:C:2005:493, paragraphs 47 and 48, concerning an aid scheme to shipbuilding and ship conversion to Galician shipyards whose customers where both domestic and foreign.

42 – See, on this point, the Opinion of Advocate General Jacobs in GEMO, C‑126/01, EU:C:2002:273, paragraph 145; the answer given by Commissioner Kinnock to Written Question E-3484/96, OJ 1996 C 186, p. 96; and Case N 733/2000 — Italy (Liguria), Regional action to upgrade the public taxi service, Decision of 25 April 2001, available at URL http://ec.europa.eu/competition/state_aid/cases/134182/134182_1154208_1_2.pdf (summary publication in OJ 2004 C 67, p. 11). However all those elements predate the ruling in Altmark, EU:C:2003:415.

43 – See Altmark, EU:C:2003:415, paragraph 78 and case-law cited. See also Philip Morris Holland v Commission, 730/79, EU:C:1980:209, paragraph 11.

44 – See, inter alia, Case N 258/2000 — Germany, Leisure Pool Dorsten, Decision of 21 December 2000, available at URL http://ec.europa.eu/competition/state_aid/cases/137009/137009_ 1153410_12_2.pdf (summary publication in OJ 2001 C 172, p. 16), and Case SA.36581 (2013/NN) — Greece, Construction of Archeological Museum Messara, Crete, Decision of 6 November 2013, available at URL http://ec.europa.eu/competition/state_aid/cases/250254/ 250254_1484489_76_2.pdf (summary publication in OJ 2013 C 353, p. 4).

45 – See Fallimento Traghetti del Mediterraneo, C‑140/09, EU:C:2010:335, paragraph 51.

© European Union

The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII

URL: http://www.bailii.org/eu/cases/EUECJ/2014/C51813_O.html

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

JUDGMENT OF THE COURT (Second Chamber)

14 January 2015 (*)

(Reference for a preliminary ruling — Competition — State aid — Article 107(1) TFEU — Practice of permitting London taxis to use bus lanes while prohibiting private hire vehicles from doing so — Concept of State aid — State resources — Economic advantage — Selective advantage — Effect on trade between Member States)

In Case C‑518/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom), made by decision of 24 September 2013, received at the Court on 26 September 2013, in the proceedings

The Queen, on the application of:

Eventech Ltd,

v

The Parking Adjudicator,

intervening parties:

London Borough of Camden,

Transport for London,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, K. Lenaerts, Vice-President of the Court and acting Judge of the Second Chamber, J.-C. Bonichot, A. Arabadjiev (Rapporteur) and J.L. da Cruz Vilaça, Judges,

Advocate General: N. Wahl,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 3 July 2014,

after considering the observations submitted on behalf of:

– Eventech Ltd, by K. Bacon, Barrister, instructed by J. Maitland-Walker, Solicitor,

– Transport for London, by C. Moore, acting as Agent, and by M. Chamberlain QC and S. Love, Barrister,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by L. Flynn and P.-J. Loewenthal, acting as Agents,

– the EFTA Surveillance Authority, by X. Lewis, C. Perrin and A. Steinarsdóttir, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 September 2014,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 107(1) TFEU.

2 The request has been made in proceedings between Eventech Ltd (‘Eventech’) and the Parking Adjudicator concerning the lawfulness of a policy implemented by Transport for London (‘TfL’) and by the majority of London Boroughs which consists in permitting London taxis (‘Black Cabs’) to use most London bus lanes during the hours when the bus lane restrictions are operational, while prohibiting private hire vehicles (‘minicabs’) from using those bus lanes, except for the purpose of picking up and setting down passengers who have pre-booked such a vehicle (‘the bus lanes policy’).

Legal context

Black Cabs and minicabs

3 In London, both Black Cabs and minicabs are vehicles which carry passengers for consideration. Both require licences issued by London Taxi and Private Hire, which is part of TfL. Those licences are issued under different statutory provisions and are subject to different conditions according to whether they are issued to Black Cabs or to minicabs.

4 A licence to operate Black Cabs is issued under the provisions set out in the London Cab Order 1934. That order was made pursuant to the power conferred by section 6 of the Metropolitan Carriage Act 1869, section 8(2) of which provides that a taxi is permitted to ‘ply for hire’ in London only when the driver holds a licence issued by TfL under section 8 of that Act.

5 It follows that only a taxi which is licensed in accordance with the London Cab Order is permitted to ‘ply for hire’ in London, a concept which is defined as soliciting or waiting for passengers without any pre-booking. According to the referring court, a survey carried out in 2009 indicates that 8% of the journeys made by Black Cabs are subject to pre-booking, 52% are due to a passenger hailing the taxi in the street and the majority of other journeys result from a passenger being picked up at a taxi rank. Eventech however disputes those figures and claims that approximately 60% of Black Cabs now use an application, called ‘Hailo’, which allows customers to book a taxi from their mobile phone.

6 A licence for minicabs is issued in accordance with the provisions of the Private Hire Vehicles (London) Act 1998. Minicabs are not permitted to ‘ply for hire’ in London and accordingly can pick up only people who have pre-booked their services. As regards people who have pre-booked, it is common ground that minicabs are in competition with Black Cabs.

7 Further, it is apparent from the file that, since the London Hackney Carriage Acts 1831 and 1853, Black Cabs are subject to the rule of ‘compellability’, which requires that where a taxi has agreed to pick up a passenger at a taxi rank or in the street, the taxi must take the passenger where he wishes to go, within a prescribed distance or up to a prescribed journey time. No such obligation is imposed on minicabs.

8 Black Cabs are instantly recognised by reason of their shape and size and the illuminated ‘Taxi’ sign, since they must comply with conditions of fitness which contain a number of standards with which currently only two vehicle makes comply. Minicabs, on the other hand, can be of any colour and any design, and consequently some 700 different makes and models of minicabs are currently licensed.

9 The fares of Black Cabs are strictly regulated and can be charged only by reference to a taxi meter. The drivers of minicabs are, for their part, free to set their own fares and minicabs do not have a meter, the fare to be paid being quoted when the minicab is booked, irrespective of the duration of the journey, whereas Black Cab fares vary depending upon that duration.

10 Black Cabs must be adapted for wheelchair access. There are no accessibility requirements for minicabs.

11 Before being licensed, Black Cab drivers must undertake an examination known as the ‘Knowledge of London’, which may require two to four years of preparation. Minicab drivers must before being licensed undertake a topographical test, which generally takes a day. Black Cab drivers must also take the Driving Standards Agency Advanced Driving Assessment, whereas there is no similar requirement for minicab drivers.

Traffic regulation powers and the bus lane policy

12 Section 121A of the Road Traffic Regulation Act 1984 (‘the 1984 Act’) designates which body is the traffic authority in respect of all public roads in England, Wales and Scotland. Subsection (1A) of that section designates TfL as the traffic authority for certain roads in Greater London known as ‘Greater London Authority (GLA) roads’. Those roads, subject to the Greater London Authority, extend to 580 km and are, generally speaking, the most important roads in Greater London. Under section 121A(2) of the 1984 Act, the traffic authorities responsible for almost all other roads in London and Greater London are the London Boroughs.

13 The power of a traffic authority responsible for a particular road to restrict traffic on that road (or part of it) to certain types of vehicles is conferred by section 6 of the 1984 Act, which in the version applicable to the main proceedings provides:

‘1. The traffic authority for a road in Greater London may make an order under this section for controlling or regulating vehicular and other traffic (including pedestrians). Provision may, in particular, be made:

(a) for any of the purposes, or with respect to any of the matters, mentioned in Schedule 1 to this Act, and

(b) for any other purposes which is a purpose mentioned in any of paragraphs (a) to (g) of section 1(1) of this Act.

2. In the case of a road for which the Secretary of State is the traffic authority, the power to make an order under this section is also exercisable, with his consent, by the local traffic authority.

3. Any order under this section may be made so as to apply:

(a) to the whole area of a local authority, or to particular parts of that area, or to particular places or streets or parts of streets in that area;

(b) throughout the day, or during particular periods;

(c) on special occasions only, or at special times only;

(d) to traffic of any class;

(e) subject to such exceptions as may be specified in the order or determined in a manner provided for by it.’

14 The purposes specified in Schedule 1 to the 1984 Act include, in paragraph 3 thereof, the objective of ‘regulating the relative position in the roadway of traffic of differing speeds or types’. The purposes mentioned in section 1(1) of that Act include ‘for avoiding danger to persons or other traffic using the road [in Greater London] or any other road or for preventing the likelihood of any such danger arising’ and ‘for facilitating the passage on the road or any other road of any class of traffic (including pedestrians)’.

15 Section 6 of the 1984 Act is thus the provision that enables bus lanes to be designated by the various London Boroughs and by TfL in respect of the roads for which they are the traffic authority.

16 In exercise of its powers under section 6 of the 1984 Act, TfL has designated bus lanes in a number of GLA roads. TfL has, in addition, adopted the bus lanes policy of permitting Black Cabs to use the bus lanes that are managed by TfL, but prohibiting licensed minicabs from using those bus lanes, during the hours when the bus lane restrictions are operational. Minicabs are, however, permitted to use the bus lanes for the purposes of picking up and setting down passengers. That policy has been applied since at least 2000.

17 In accordance with the bus lanes policy applied by TfL, most London Boroughs have also adopted a policy of allowing the bus lanes operated by them to be used by Black Cabs but not minicabs, while the restrictions are operational. This is, in particular, the case for the Southampton Row bus lane operated by the London Borough of Camden.

Penalties

18 The power of traffic authorities to issue penalty charge notices in respect of breaches of orders made under Section 6 of the 1984 Act is contained in section 4 of the London Local Authorities Act 1996, which provides:

‘1. Where-

(a) in relation to any GLA road or GLA side road, [TfL] …

on the basis of information provided by the use of a prescribed device, have reason to believe that a penalty charge is payable … with respect to a vehicle by the owner of the vehicle, ... [TfL] may serve a penalty charge notice on the person appearing to them to be the owner of the vehicle.

2. … [A] penalty charge is payable with respect to a vehicle, by the owner of the vehicle, if the person in charge of the vehicle acts in contravention of or fails to comply with an order under section 6 or 9 or regulations under section 12 of [the 1984 Act] in so far as provision is made thereby for the reservation of all or part of a carriageway of a road as a bus lane and the penalty charge shall be paid,

(a) where the contravention or failure is in respect of a GLA road or a GLA side road, to [TfL] …’

19 Orders made under section 6 of the 1984 Act may also be enforced by the Police, as section 8(1) of the 1984 Act provides that it is a criminal offence to act in contravention of, or to fail to comply with, an order made under that section. However, in practice, the vast majority of infringements of such orders are dealt with by civil enforcement procedures: in other words, by the issue of penalty charge notices by the traffic authorities.

The dispute in the main proceedings and the questions referred for a preliminary ruling

20 Eventech is a wholly-owned subsidiary of Addison Lee plc (‘Addison Lee’), which is the operator of a fleet of minicabs in Greater London. Eventech is the registered keeper of all Addison Lee’s minicabs, which are leased under contract by Addison Lee to self-employed drivers.

21 Eventech submits that, in the main proceedings, it produced evidence of several instances of advertising by Black Cab operators referring to the advantages of booking a taxi rather than a minicab, in that taxis can use the bus lanes in the peak periods. According to Eventech, that evidence is not disputed and it is for that reason that TfL does not dispute that its bus lanes policy confers on the operators of taxis an economic advantage imputable to the State.

22 TfL states that the Chairman of Addison Lee issued a notice to its drivers informing them that they were entitled to use the London bus lanes which Black Cabs are permitted to use and offering to indemnify them in respect of any fines or other liabilities incurred for doing so. TfL adds, in that regard, that an injunction to restrain a breach of the criminal law was obtained as an interim measure.

23 Eventech has stated that, in a period of 16 months, from the end of July 2011 to early December 2012, TfL and various London Boroughs imposed on it fines to an amount exceeding 180 000 Pounds Sterling (GBP), or approximately EUR 215 166, for having used London bus lanes.

24 In particular, the London Borough of Camden served two penalty charge notices on Eventech due to the fact that, on 6 and 13 October 2010 respectively, two drivers of Addison Lee minicabs had used the Southampton Row bus lane in central London. Eventech challenged those charges before the Parking Adjudicator. The action was dismissed by the latter’s decision of 16 August 2011.

25 The action brought by Eventech against that decision was dismissed by a judgment of 13 July 2012 of the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court). After Eventech obtained permission to bring an appeal against the judgment of the High Court, the case was examined by the Court of Appeal on 23 and 24 April 2013.

26 Eventech claims, inter alia, that the bus lanes policy constitutes un-notified State aid to the operators of Black Cabs, which is contrary to Article 108(3) TFEU and Article 107(1) TFEU.

27 In that regard, the referring court considers that it is common ground that the bus lane policy confers an economic advantage on Black Cabs, that the policy is attributable to the State, and that it is liable to distort competition between Black Cabs and minicabs, in that it allows the former to travel faster than minicabs on those roads covered by the policy, thereby giving them (in particular) a competitive advantage in attracting potential customers. However, the referring court considers that the other conditions inherent in the concept of State aid are not necessarily satisfied.

28 TfL submits that the economic advantage granted to Black Cabs by the bus lane policy is not granted through State resources, since it does not have any effect on such resources. Further, nor is the bus lane policy selective, as Black Cabs and minicabs are not in a comparable legal or factual situation in the light of the objective pursued by that policy. In any event, the differentiation caused by the policy is justified by the nature and general scheme of the system. Last, the bus lane policy is not liable to affect trade between Member States, since it is a local measure, applying solely to London.

29 Eventech contends, on the contrary, that there are two reasons why the economic advantage at issue is conferred through State resources: first, Black Cabs are provided with preferential access to a State asset and, second, the bus lanes policy exempts Black Cabs from liability to pay fines or other penalties for the use of those lanes. The policy is selective in that it confers an advantage on Black Cabs over their competitors, namely minicabs. Last, since the policy concerns a sector which is open to undertakings from any Member State, an effect on trade between Member States cannot be ruled out.

30 In those circumstances, the Court of Appeal (England & Wales) (Civil Division) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Does making a bus lane on a public road available to Black Cabs but not minicabs, during the hours of operation of that bus lane, involve the use of “State resources” within the meaning of Article 107(1) TFEU, in the circumstances of the present case?

2. (a) In determining whether making a bus lane on a public road available to Black Cabs but not minicabs, during the hours of operation of that bus lane, is selective for the purposes of Article 107(1) TFEU, what is the relevant objective by reference to which the question whether Black Cabs and minicabs are in a comparable legal and factual situation should be assessed?

(b) If it can be shown that the relevant objective, for the purposes of question 2(a), is at least in part to create a safe and efficient transport system, and that there are safety and/or efficiency considerations that justify allowing Black Cabs to drive in bus lanes and that do not apply in the same way to minicabs, can it be said that the measure is not selective within the meaning of Article 107(1) TFEU?

(c) In answering question 2(b), is it necessary to consider whether the Member State relying on that justification has demonstrated, in addition, that the favourable treatment of Black Cabs by comparison with minicabs is proportionate and does not go beyond what is necessary?

3. Is making a bus lane on a public road available to Black Cabs but not to minicabs, during the hours of operation of that bus lane, liable to affect trade between Member States for the purposes of Article 107(1) TFEU, in circumstances where the road in question is located in central London, and there is no bar to citizens from any Member State owning or driving either Black Cabs or minicabs?’

Consideration of the questions referred for a preliminary ruling

The first and second questions

31 By its first and second questions, which can be examined together, the referring court seeks, in essence, to ascertain whether the practice of permitting Black Cabs to use bus lanes on public roads during the hours when traffic restrictions with respect to those lanes are operational, in the interests of establishing a safe and efficient transport system, while prohibiting minicabs from using those lanes, except for picking up and setting down their pre-booked passengers, involves a commitment of State resources and confers on taxis a selective economic advantage for the purposes of Article 107(1) TFEU. The referring court also asks whether consideration need be given, in order to answer that question, to whether that measure is proportionate and does not go beyond what is necessary.

32 Article 107(1) TFEU provides that ‘[s]ave as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market’.

33 As regards the condition relating to the commitment of State resources, it must be recalled that the concept of aid embraces not only positive benefits, such as subsidies, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect (the judgment in Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 69 and case-law cited).

34 Consequently, for the purposes of determining the existence of State aid, it is necessary to establish a sufficiently direct link between, on the one hand, the advantage given to the beneficiary and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget (see, to that effect, the judgment in Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 109).

35 In this case, it is clear from the file before the Court that the referring court doubts the merits of the argument, put forward by Eventech before the referring court and repeated before the Court, that the bus lanes policy entails such budgetary burdens as a consequence of, on the one hand, the preferential access of Black Cabs to infrastructure belonging to the State, namely the London bus lanes, for the use of which those taxis are not charged and, on the other, the fact that those taxis are exempted from any liability to pay fines when they use those bus lanes.

36 As regards the second of the arguments mentioned in the preceding paragraph, which can be examined first, it must be stated at the outset that it is inherent in any legal system that conduct previously defined as being lawful and permitted does not expose individuals to penalties.

37 In the main proceedings, it is undisputed that the fact that Black Cabs can use the London bus lanes without being subject to fines is the result of those taxis being permitted, under the bus lanes policy, to use those bus lanes during the hours when the traffic restrictions are operational.

38 To the extent that Eventech bases its argument on the alleged similarity of the factual and legal circumstances of this case to those of the case which gave rise to the judgment in Commission v Netherlands (C‑279/08 P, EU:C:2011:551), it is clear that the circumstances of that case are distinguishable from those of the main proceedings.

39 In paragraph 106 of the judgment in Commission v Netherlands (EU:C:2011:551), the Court held that the measure at issue could entail an additional burden for the public authorities in the form of an exemption from the obligation to pay fines or other pecuniary penalties because the Kingdom of the Netherlands had given to the undertakings covered by the measure in question the possibility of buying emission allowances in order to avoid the payment of fines which, if such allowances had not been available, would have been payable because the undertaking concerned had exceeded the statutory limits on their emissions of nitrogen oxide.

40 However, in the main proceedings, it is undisputed that each unauthorised use of the bus lanes constitutes an offence punishable by a fine and that the competent public authorities have not put in place any means of evading payment of such fines. Further, it follows from the finding made in paragraph 37 of this judgment that the reason why Black Cabs can use those bus lanes without being subject to fines is not that the public authorities have made a decision not to collect fines which are payable, but that taxis are permitted to use those bus lanes.

41 Accordingly, the fact that Black Cabs are not obliged to pay fines because of their use of bus lanes does not involve additional burdens on the public authorities which might entail a commitment of State resources.

42 As regards the first argument relied on by Eventech, that there is preferential access to State-funded transport infrastructure for the use of which no payment is sought from Black Cabs, it is certainly true that, as stated by that company, the Court has held that the financing, by means of capital contributions made by the public authorities as a shareholder, to the construction of infrastructure which is to be commercially operated may involve the grant of State aid (see, to that effect, the judgment in Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission, C‑288/11 P, EU:C:2012:821, paragraphs 43 and 44).

43 However, in the main proceedings, first, it is undisputed that the traffic routes at issue, in general, and the bus lanes which are part of them, in particular, are not operated commercially by the public authorities. As was confirmed at the hearing before the Court, both by Eventech and by TfL, use of those routes and those lanes is free of charge.

44 It follows that the public authorities are not, under the bus lanes policy, forgoing revenue which they would have received in the absence of that policy.

45 Second, it must be noted that the measure at issue in the main proceedings concerns not the financing as such of the construction of bus lanes, but preferential access to them. It must be added that it is unequivocally stated in the file before the Court that the bus lanes were not constructed for the benefit of any specific undertaking or any particular category of undertakings, such as Black Cabs, or the suppliers of bus services, and were not allocated to them after their construction, but that they were constructed as part of the London road network and, primarily, with a view to facilitating public transportation by bus, irrespective of whether the organisation of that public service fell to either the public sector or the private sector.

46 In the light of the foregoing, the question raised by Eventech’s argument, as summarised in paragraph 35 of this judgment, is, as stated by the Advocate General in point 24 of his Opinion, whether, in circumstances such as those of the main proceedings, the competent public authorities are obliged, pursuant to Article 107(1) TFEU, to impose on users entitled to privileged access to public infrastructure a charge which corresponds to the economic value of that privilege.

47 It must however be stated that that question does not, as such, pertain to the criterion of commitment of State resources, but concerns whether the bus lanes policy, by which TfL pursues the objective laid down by the State legislation, namely to ensure a safe and efficient transport system, must be regarded as conferring on its beneficiaries an economic advantage, for the purposes of Article 107(1) TFEU, which falls within the scope of EU law on State aid and which has an economic value which must be paid for by those beneficiaries.

48 In that regard, as stated by the European Commission and the EFTA Surveillance Authority, it must be held that where the State, in order to pursue the realisation of an objective laid down by that State’s legislation, grants a right of privileged access to public infrastructure which is not operated commercially by the public authorities to users of that infrastructure, the State does not necessarily confer an economic advantage for the purposes of Article 107(1) TFEU.

49 Further, it must be stated that the identification of the objective pursued is, in principle, a matter within the prerogative of the competent national public authorities alone and they must have a degree of discretion both as regards whether it is necessary, in order to achieve the regulatory objective pursued, to forgo possible revenue and also as regards how the appropriate criteria for the granting of the right, which must be determined in advance in a transparent and non-discriminatory manner, are to be identified.

50 In the main proceedings, it is common ground that the right of privileged access is the right to use bus lanes; that that right has an economic value; that the right is granted by the competent traffic authority; that it is stated in the relevant road traffic legislation that the objective pursued by the legislation at issue is that of ensuring a safe and efficient transport system; that neither the road network concerned nor the bus lanes are operated commercially; that the criterion for granting that right is that of providing taxi services in London; that that criterion was established in advance and in a transparent manner and, last, that all the providers of such services are treated equally.

51 As regards whether there is a link between the realisation of the regulatory objective of ensuring a safe and efficient transport system and the decision to forgo, under the bus lanes policy, possible revenue, as rightly stated by the Advocate General in point 30 of his Opinion, it is conceivable that if a charge was imposed on Black Cabs corresponding to the economic value of their right of access to the bus lanes, that might jeopardise, at least in part, the realisation of that objective, since it might deter some Black Cabs from using the bus lanes.

52 Further, having regard to the characteristics of Black Cabs, as described in paragraphs 4 to 11 of this judgment, the competent national authorities could reasonably take the view that the access of those taxis to bus lanes is liable to enhance the efficiency of the London road transport system and that, consequently, the criterion for the granting of the right at issue, namely the provision of taxi services in London, is liable to achieve the realisation of the objective concerned.

53 In the light of the foregoing, it remains to be determined whether the criterion adopted by the competent authority for the granting of the right of access is applied to the economic operators concerned in a non-discriminatory manner. As stated however by the Advocate General in point 35 of his Opinion, that examination is subsumed, in essence, in the issue of whether the bus lanes policy confers on Black Cabs a selective economic advantage. Consequently, that issue will be dealt with in examining the existence of such an advantage.

54 In that regard, it must be recalled that Article 107(1) TFEU prohibits State aid ‘favouring certain undertakings or the production of certain goods’, that is to say, selective aid (the judgment in Mediaset v Commission, C‑403/10 P, EU:C:2011:533, paragraph 36).

55 It follows from the Court’s settled case-law that Article 107(1) TFEU requires an assessment of whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (the judgment in Mediaset v Commission, EU:C:2011:533, paragraph 36).

56 By its question 2(b), the referring court asks the Court, in essence, to assess, in order to determine whether there is any selectivity in the advantage granted, whether the measure at issue introduces distinctions between operators who are, in the light of the objective pursued, in a comparable factual and legal situation.

57 In that regard, it must be emphasised that the identification of the respective situations of Black Cabs and minicabs and the assessment of whether those situations may be comparable is an issue which falls within the jurisdiction of the referring court, which alone has available to it all the relevant matters of fact and law.

58 Nonetheless, on the basis of the material in the file before it, the Court can provide the referring court with guidance which may assist that court in the assessment which it must carry out.

59 In that regard, it must be stated, first, that the identification of the factual and legal situation of Black Cabs and minicabs cannot be confined to that prevailing in the market sector in which those two categories of conveyors of passengers are in direct competition, namely the pre-booking sector. It cannot seriously be doubted that all the journeys made by Black Cabs and minicabs are liable to affect the safety and efficiency of the transport system on all the road traffic routes in London.

60 Secondly, it must be taken into consideration that, by virtue of their legal status, only Black Cabs can ply for hire; they are subject to the rule of ‘compellability’; they must be recognisable and capable of conveying persons in wheelchairs, and their drivers must set the fares for their services by means of a taxi meter and have a particularly thorough knowledge of the city of London.

61 It follows that Black Cabs and minicabs are in factual and legal situations which are sufficiently distinct to permit the view that they are not comparable and that the bus lanes policy therefore does not confer a selective economic advantage on Black Cabs.

62 In those circumstances, there is no need to answer question 2(c).

63 In the light of all the foregoing, the answer to the first and second questions is that the practice of permitting, in order to establish a safe and efficient transport system, Black Cabs to use bus lanes on public roads during the hours when traffic restrictions relating to those lanes are operational, while prohibiting minicabs from using those lanes, except to pick up and set down passengers who have pre-booked such vehicles, does not appear, though it is for the referring court to determine, to be such as to involve a commitment of State resources or to confer on Black Cabs a selective economic advantage for the purpose of Article 107(1) TFEU.

The third question

64 By its third question, the referring court seeks, in essence, to ascertain whether the practice of authorising Black Cabs to use bus lanes on public roads during the hours when the traffic restrictions relating to those lanes are operational, while prohibiting minicabs from using those lanes, except in order to pick up and set down passengers who have pre-booked such vehicles, is such as to affect trade between Member States within the meaning of Article 107(1) TFEU.

65 In that regard, it should be borne in mind that, in accordance with the Court’s settled case-law, for the purpose of categorising a national measure as State aid, it is necessary, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (the judgment in Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 76 and case-law cited).

66 In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (see, to that effect, the judgment in Libert and Others, EU:C:2013:288, paragraph 77 and case-law cited).

67 In that regard, it is not necessary that the beneficiary undertakings are themselves involved in intra-Community trade. Where a Member State grants aid to undertakings, internal activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced (see, to that effect, the judgment in Libert and Others, EU:C:2013:288, paragraph 78 and case-law cited).

68 Further, according to the Court’s case-law, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (the judgment in Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 81).

69 Consequently, the condition that the aid must be capable of affecting trade between Member States does not depend on the local or regional character of the transport services supplied or on the scale of the field of activity concerned (the judgment in Altmark Trans and Regierungspräsidium Magdeburg, EU:C:2003:415, paragraph 82).

70 In the main proceedings, the view must be taken, in particular, that it is conceivable that the effect of the bus lanes policy is to render less attractive the provision of minicab services in London, with the result that the opportunities for undertakings established in other Member States to penetrate that market are thereby reduced, which it is for the referring court to determine.

71 It follows that the answer to the third question is that it is conceivable that the practice of permitting Black Cabs to use bus lanes on public roads during the hours when the traffic restrictions relating to those lanes are operational, while prohibiting minicabs from using those lanes, except in order to pick up or set down passengers who have pre-booked such vehicles, may be such as to affect trade between Member States within the meaning of Article 107(1) TFEU, which it is for the referring court to determine.

Costs

72 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1. The practice of permitting, in order to establish a safe and efficient transport system, Black Cabs to use bus lanes on public roads during the hours when the traffic restrictions relating to those lanes are operational, while prohibiting minicabs from using those lanes, except in order to pick up and set down passengers who have pre-booked such vehicles, does not appear, though it is for the referring court to determine, to be such as to involve a commitment of State resources or to confer on Black Cabs a selective economic advantage for the purpose of Article 107(1) TFEU.

2. It is conceivable that the practice of permitting Black Cabs to use bus lanes on public roads during the hours when the traffic restrictions relating to those lanes are operational, while prohibiting minicabs from using those lanes, except in order to pick up or set down passengers who have pre-booked such vehicles, may be such as to affect trade between Member States within the meaning of Article 107(1) TFEU, which it is for the referring court to determine.

[Signatures]

* Language of the case: English.

© European Union

The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.

*************************************************************


Plymouth City Council Act 1975

CHAPTER xx

ARRANGEMENT OF SECTIONS

Section

1. Short title.

2. Interpretation.

3. Vehicle, drivers' and operators' licences..

4. Licensing of hackney carriages.

5. Licensing of private hire vehicles.

6. Roof signs on private hire vehicles.

7. Transfer of hackney carriages and private hire vehicles.

8. Provisions as to proprietors.

9. Licensing of drivers of private hire vehicles.

10. Appeals in respect of drivers' licences.

11. Drivers' licences for hackney carriages and private hire

vehicles.

12. Issue of drivers' badges.

13. Licensing of operators of private hire vehicles.

14. Operators of private hire vehicles.

15. Power to require applicants to submit information.

16. Return of identification plate or disc on revocation or

expiry of licence, etc.

17. Qualifications for drivers of hackney carriages.

18. Suspension and revocation of vehicle licences.

19. Suspension and revocation of drivers' licences.

20. Suspension and revocation of operators' licences.

21. Stands for hackney carriages.

22. Prohibition of other vehicles on hackney carriage stands.

23. Fixing of fares for hackney carriages.

24. Fares for long journeys.

25. Hackney carriages used for private hire.

26. Fitness of hackney carriages and private hire vehicles.

27. Prolongation of journeys.

28. Fees for vehicle and operators' licences.

29. Taximeters.

30. Offences due to fault of other person.

31. Offences by bodies corporate.

32. Power of entry.

33. Obstruction of authorised officers.

Section

34. The appointed day.

35. Saving for certain vehicles.

36. Penalties.

37. Appeals.

38. Application of provisions of Act of 1936.

39. Authentication of licences.

40. Repeal of enactments.

41. Protection of members and officers of Council from

personal liability.

SCHEDULE—Repeals.

1975 CHAPTER xx

An Act to confer further powers on the Council of the city of Plymouth in relation to hackney carriages and private hire vehicles; and for other purposes.

[1st August 1975]

HEREAS—

(1) The city of Plymouth (hereinafter referred to as "the city") is under the management and local government of the Council of the city (hereinafter referred to as " the Council"):

(2) It is expedient to make further provision with reference to hackney carriages and private hire vehicles in the city, and that the powers of the Council in relation thereto should be enlarged and extended:

(3) It is expedient that the other provisions contained in this Act should be enacted:

(4) The objects of this Act cannot be attained without the authority of Parliament:

1972 c. 70.

(5) In relation to the promotion of the Bill for this Act the requirements of section 239 of the Local Government Act 1972 have been observed;

May it therefore please Your Majesty that it may be enacted and be it enacted, by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled and by the authority of the same, as follows:—

Short Title

1. This Act may be cited as the Plymouth City Council Act 1975.

Interpretation

2.—(1) In this Act, unless the subject or context otherwise requires—

1847 c. 89.

“the Act of 1847" means the provisions of the Town Police Clauses Act 1847 with respect to hackney carriages;

1915 c. lxix.

"the Act of 1915" means the Plymouth Corporation Act 1915;

1936 c. 49.

" the Act of 1936 " means the Public Health Act 1936;

1972 c.20

" the Act of 1972 " means the Road Traffic Act 1972;

“appointed day" has the meaning assigned to it by section 34 (The appointed day) of this Act;

“authorised officer" means any officer of the Council authorised in writing by the city solicitor and secretary for the purposes of this Act;

" the city " means the city of Plymouth;

“the city solicitor and secretary" means the city solicitor and secretary of the city and includes any person appointed by the Council to discharge temporarily the duties of that officer;

“contravene" includes fail to comply;

“the Council" means the Council of the city;

“daily fine " means a fine for each day during which an offence continues after conviction thereof;

“driver's badge" means, in relation to the driver of a hackney carriage, any badge issued by the Council under bye-laws made under section 68 of the Act of 1847 and, in relation to the driver of a private hire vehicle, any badge issued by the Council under section 12 (Issue of drivers' badges) of this Act;

"driver's licence " means, in relation to the driver of a hackney carriage, a licence under section 46 of the Act of 1847 and, in relation to the driver of a private hire vehicle, a licence under section 9 (Licensing of drivers of private hire vehicles) of this Act;

“hackney carriage" has the same meaning as in the Act of 1847 but does not include a public service vehicle;

“hackney carriage byelaws" means the byelaws for the time being in force in the city relating to hackney carriages;

1952 c. 55

“magistrates’ court" has the same meaning as in the Magistrates' Courts Act 1952;

"operate" means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle;

"operator's licence” means a licence under section 13 (Licensing of operators of private hire vehicles) of this Act;

"private hire vehicle" means a motor vehicle constructed or adapted to seat fewer than eight passengers, other than a hackney carriage or public service vehicle, which is provided for hire with the services of a driver for the purpose of carrying passengers;

“proprietor" includes a part-proprietor and, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, means the person in possession of the vehicle under that agreement;

1960 c.16

"public service vehicle" has the same meaning as in section 117 of the Road Traffic Act 1960;

"street" has the same meaning as in section 343 of the Act of 1936;

"taximeter" means any device, approved for the time being for the purpose by the Council, for calculating the fare to be charged in respect of any journey in a hackney carriage or private hire vehicle by reference to the distance travelled or time elapsed since the start of the journey, or a combination of both; and

"vehicle licence " means in relation to a hackney carriage a licence under sections 37 to 45 of the Act of 1847 and in relation to a private hire vehicle means a licence under section 5 (Licensing of private hire vehicles) of this Act.

(2) Except where the context otherwise requires, any reference in this Act to any enactment shall be construed as a reference to that enactment as applied, extended, amended or varied by, or by virtue of, any subsequent enactment including this Act.

Vehicle, drivers’ and operators’ licences.

3.—(1) As from the appointed day—

(a) no person being the proprietor of any vehicle, not being

a hackney carriage in respect of which a vehicle licence is in force, shall use or permit the same to be used in the city as a private hire vehicle without having for such vehicle a current licence under section 5 (Licensing of private hire vehicles) of this Act;

(b) no person shall in the city act as driver of any private

hire vehicle licensed in pursuance of this Act without having a current licence under section 9 (Licensing of drivers of private hire vehicles) of this Act;

(c) no person being the proprietor of a private hire vehicle

licensed under this Act shall employ as the driver thereof for the purpose of any hiring any person who does not have a current licence under the said section 9;

(d) no person shall in the city operate any vehicle as a

private hire vehicle without having a current licence under section 13 (Licensing of operators of private hire vehicles) of this Act;

(e) no person licensed under the said section 13 shall in the

city operate any vehicle as a private hire vehicle—

(i) in respect of which a current licence under the said section 5 is not in force; or

(ii) the driver of which does not have a current licence under the said section 9.

(2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.

Licensing of hackney carriages.

4.—(1) The Council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the Council may consider reasonably necessary.

(2) Without prejudice to the generality of the foregoing the Council may require any hackney carriage licensed by the Council under the Act of 1847 to be of such make, design or appearance or bear such distinguishing marks as shall clearly identify it as a hackney carriage.

Licensing of private hire vehicles.

5.—(1) Subject to the provisions of this Act, the Council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence:

Provided that the Council shall not grant such a licence unless they are satisfied—

(a) that the vehicle is—

(i) suitable in type, size and design for use as a private hire vehicle;

(ii) not of such make, design and appearance as to lead any person to believe that the vehicle is a hackney carriage;

(iii) in a suitable mechanical condition;

(iv) safe; and

(v) comfortable;

(b) that there is in force in relation to the use of the vehicle

a policy of insurance or such security as complies with the requirements of Part VI of the Act of 1972.

(2) The Council may attach to the grant of a licence under this

section such conditions as the Council may consider reasonably

necessary.

(3) In every vehicle licence granted under this section there shall

be specified—

(a) the name and address of—

(i) the applicant; and

(ii) every other person who is a proprietor of the private hire vehicle in respect of which the licence is granted, or who is concerned, either solely or in partnership with any other person, in the keeping, employing or letting on hire of the private hire vehicle;

(6) the number of the licence which shall correspond with the number to be painted or marked on the plate or disc to be exhibited on the private hire vehicle in accordance with subsection (6) of this section;

(c) the conditions attached to the grant of the licence; and

(d) such other particulars as the Council consider reasonably

necessary.

(4) Every licence granted under this section shall—

(a) be signed by an authorised officer;

(b) relate to not more than one private hire vehicle; and

(c) remain in force for such period not being longer than one

year as the Council may specify in the licence.

(5) Where the Council grant under this section a vehicle licence

in respect of a private hire vehicle they shall issue a plate or disc

identifying that vehicle as a private hire vehicle in respect of which

a vehicle licence has been granted.

(6) (a) Subject to the provisions of this Act, no person shall

use or permit to be used in the city as a private hire vehicle a

vehicle in respect of which a licence has been granted under this

section unless the plate or disc issued in accordance with sub¬

section (5) of this section is exhibited on the vehicle in such manner

as the Council shall prescribe by condition attached to the grant

of the licence.

(b) If any person without reasonable excuse contravenes the

provisions of this subsection he shall be guilty of an offence.

(7) Any person aggrieved by the refusal of the Council to

grant a vehicle licence under this section, or by any conditions

specified in such a licence, may appeal to a magistrates' court.

Roof signs on private hire vehicles.

6.—(1) No operator or proprietor of a private hire vehicle licensed under this Act shall cause or knowingly permit such private hire vehicle to have affixed thereto any roof sign of whatsoever design or nature illuminated or otherwise that would lead the public to suppose that the vehicle was a licensed hackney carriage.

(2) If any person contravenes the provisions of this section he shall be guilty of an offence and liable to a fine not exceeding one hundred pounds and to a daily fine not exceeding ten pounds.

Transfer of hackney carriages and private hire vehicles.

7.—(1) If the proprietor of a hackney carriage or of a private hire vehicle in respect of which a vehicle licence has been granted by the Council proposes to transfer the ownership and possession of the hackney carriage or private hire vehicle to a person other than the proprietor whose name is specified in the licence, he shall within fourteen days after such transfer give notice in writing thereof to the Council specifying the name and address of the person to whom the hackney carriage or private hire vehicle has been transferred.

(2) If a proprietor knowingly or without reasonable excuse fails to give notice to the Council as provided by subsection (1) of this section he shall be guilty of an offence.

Provisions as to proprietors.

8,—(1) Without prejudice to the provisions of section 26 (Fitness of hackney carriages and private hire vehicles) of this Act, the proprietor of any hackney carriage or of any private hire vehicle licensed by the Council shall present such hackney carriage or private hire vehicle for inspection by the Council within such period and at such place within the city as the Council may by notice reasonably require:

Provided that the Council shall not under the provisions of this subsection require a proprietor to present the same hackney carriage or private hire vehicle for inspection on more than four separate occasions during any one period of twelve months.

(2) The proprietor of any hackney carriage or private hire vehicle—

(a) licensed by the Council under the Act of 1847 or under this Act; or

in respect of which an application for a licence has been made to the Council under the Act of 1847 or under this Act; shall, within such period as the Council may by notice reasonably require, state in writing the address of every place where such hackney carriage or private hire vehicle is kept when not in use, and shall if the Council so require afford to the Council such facilities as may be reasonably necessary to enable the Council to cause such hackney carriage or private hire vehicle to be inspected there.

(3) Without prejudice to the provisions of section 25 of the Act of 1972, the proprietor of a hackney carriage or of a private hire vehicle licensed by the Council shall report to the Council as soon as reasonably practicable, and in any case within seventy-two hours of the occurrence thereof, any accident to such hackney carriage or private hire vehicle causing damage materially affecting the safety, performance or appearance of the hackney carriage or private hire vehicle or the comfort or convenience of persons carried therein.

(4) The proprietor of any hackney carriage or of any private hire vehicle licensed by the Council shall at the request of any authorised officer produce for inspection the vehicle licence for such hackney carriage or private hire vehicle and the certificate of the policy of insurance or security required by Part VI of the Act of 1972 in respect of such hackney carriage or private hire

vehicle.

(5) If any person knowingly or without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence.

Licensing of drivers of private hire vehicles.

9.—(1) Subject to the provisions of this Act, the Council shall, on the receipt of an application from any person for the grant to that person of a licence to drive private hire vehicles, grant to that person a driver's licence:

Provided that the Council shall not grant a licence—

(a) unless they are satisfied that the applicant is a fit and proper person to hold a driver's licence; or

(6) to any person who has not for at least twelve months been, and is not at the date of the application for a driver's licence, the holder of a licence granted under Part III of the Act of 1972 (not being a provisional licence) authorising him to drive a motor car.

(2) The Council may attach to the grant of a licence under this section such conditions as the Council may consider reasonably necessary.

Appeals in respect of drivers’ licences

10. Any person aggrieved by—

(1) the refusal of the Council to grant a driver's licence under

section 9 (Licensing of drivers of private hire vehicles) of this Act; or

(2) any conditions attached to the grant of a driver's licence;

may appeal to a magistrates' court.

Drivers’ licences for hackney carriages and private hire vehicles.

11.—(1) (a) Every licence granted by the Council under the provisions of this Act to any person to drive a private hire vehicle shall remain in force for three years from the date of such licence or for such lesser period as the Council may specify in such licence.

1875 c. 55. 1889 c. 14.

(b) Notwithstanding the provisions of the Public Health Act 1875 and the Town Police Clauses Act 1889, every licence granted by the Council under the provisions of the Act of 1847 to any person to drive a hackney carriage shall remain in force for three years from the date of such licence or for such lesser period as the Council may specify in such licence.

(2) Notwithstanding the provisions of the Act of 1847, the Council may demand and recover for the grant to any person of a licence to drive a hackney carriage, or a private hire vehicle, as the case may be, such a fee as the Council consider reasonable with a view to recovering the costs of issue and administration.

(3) The driver of any hackney carriage or of any private hire vehicle licensed by the Council shall at the request of any authorised officer or of any constable produce for inspection his driver's licence.

(4) If any person without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence.

Issue of drivers’ badges.

12.—(1) When granting a driver's licence under section 9 (Licensing of drivers of private hire vehicles) of this Act the Council shall issue a driver's badge in such a form as may from time to time be prescribed by the Council.

(2) (a) A driver shall at all times when acting in accordance with the driver's licence granted to him wear such badge in such position and manner as to be plainly and distinctly visible.

(b) If any person without reasonable excuse contravenes the provisions of this subsection, he shall be guilty of an offence.

Licensing of operators of private hire vehicles.

13.—(1) Subject to the provisions of this Act, the Council shall, on receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles, grant to that person an operator's licence:

Provided that the Council shall not grant a licence unless they are satisfied that the applicant is a fit and proper person to hold an operator's licence.

(2) Every licence granted under this section shall remain in force for such period not being longer than five years as the Council may specify in the licence.

(3) The Council may attach to the grant of a licence under this section such conditions as the Council may consider reasonably necessary.

(4) Any applicant aggrieved by the refusal of the Council to grant an operator's licence under this section, or by any conditions attached to the grant of such a licence, may appeal to a magistrates' court.

Operators of private hire vehicles.

14.—(1) For the purposes of this Act every contract for the hire of a private hire vehicle licensed under this Act shall be deemed to be made with the operator who accepted the booking for that vehicle whether or not he himself provided the vehicle.

(2) Every licensed operator of a private hire vehicle licensed under this Act shall keep a record in such form as the Council may, by condition attached to the grant of the licence, prescribe and shall enter therein, before the commencement of each journey, such particulars of every booking of a private hire vehicle invited or accepted by him, whether by accepting the same from the hirer or by undertaking it at the request of another operator, as the Council may by condition prescribe and shall produce such record on request to any authorised officer or to any constable for inspection.

(3) Every licensed operator of a private hire vehicle licensed under this Act shall keep such records as the Council may, by condition attached to the grant of the licence, prescribe of the particulars of any private hire vehicle operated by him and shall produce the same on request to any authorised officer or to any constable for inspection.

(4) The licensed operator of any private hire vehicle licensed under this Act shall produce his operator's licence on request to any authorised officer or any constable for inspection.

(5) If any person without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence.

Power to require applicants to submit information.

15.—(1) The Council may require any applicant for a licence under the Act of'1847 or under this Act to submit to the Council such information as they may reasonably consider necessary to enable them to determine whether the licence should be granted and whether conditions should be attached to any such licence.

(2) Without prejudice to the generality of the foregoing—

(a) the Council may require an applicant for a driver's

licence in respect of a hackney carriage or a private hire vehicle—

(i) to produce a certificate signed by a registered medical practitioner to the effect that he is physically fit to be the driver of a hackney carriage or a private hire vehicle; and

(ii) whether or not such a certificate has been produced, to submit to examination by a registered medical practitioner selected by the Council as to his physical fitness to be the driver of a hackney carriage or a private hire vehicle;

(b) the Council may require an applicant for an operator's

licence to submit to the Council such information as to—

(i) the name and address of the applicant;

(ii) the address or addresses whether within the city or not from which he intends to carry on business in connection with private hire vehicles licensed under this Act;

(iii) any trade or business activities he has carried on before making the application;

(iv) any previous application he has made for an operator's licence;

(v) the revocation or suspension of any operator's licence previously held by him;

(vi) any convictions recorded against the applicant;

as they may reasonably consider necessary to enable them to determine whether to grant such licence;

(c) in addition to the information specified in paragraph (6)

of this subsection, the Council may require an applicant for an operator's licence to submit to the Council—

(i) if the applicant is or has been a director or secretary of a company, information as to any con¬victions recorded against that company at any relevant time; any trade or business activities carried on by that company; any previous application made by that company for an operator's licence; and any revocation or suspension of an operator's licence previously held by that company;

(ii) if the applicant is a company, information as to any convictions recorded against a director or secretary of that company; any trade or business activities carried on by any such director or secretary; any previous application made by any such director or secretary for an operator's licence; and any revocation or suspension of an operator's licence previously held by such director or secretary;

'(iii) if the applicant proposes to operate the vehicle in partnership with any other person, information as to any convictions recorded against that person; any trade or business activities carried on by that person; any previous application made by that person

•for an operator's licence; and any revocation or

• suspension of an operator's licence previously held by him.

(3) If any person knowingly or recklessly makes a false state¬ment or omits any material particular in giving information under this section, he shall be guilty of an offence.

Return of identification plate or disc on revocation or expiry of licence, etc.

16.—(1) On—

(a) the revocation or expiry of a vehicle licence in relation to a hackney carriage or private hire vehicle; or

(b) the suspension of a licence under section 26 (Fitness of hackney carriages and private hire vehicles) of this Act;

the Council may by notice require the proprietor of that hackney carriage or private hire vehicle licensed by the Council to return to the Council within seven days after the service on him of that notice the plate or disc identifying that hackney carriage or private hire vehicle and required to be displayed by the Act of 1847 or by this Act.

(2) If any proprietor fails without reasonable excuse to comply with the terms of a notice under subsection (1) of this section—

(a) he shall be guilty of an offence and liable to a fine not exceeding one hundred pounds and to a daily fine not exceeding ten pounds; and

(b) any authorised officer or constable shall be entitled to remove and retain the said plate or disc from the said hackney carriage or private hire vehicle.

Qualifications for drivers of hackney carriages.

17.—(1) Notwithstanding anything in the Act of 1847 the Council shall not grant a licence to drive a hackney carriage—

(a) unless they are satisfied that the applicant is a fit and proper person to hold a driver's licence; or

(b) to any person who has not for at least twelve months been, and is not at the date of the application for a driver's licence, the holder of a licence granted under Part III of the Act of 1972 (not being a provisional licence) authorising him to drive a motor car.

(2) Any applicant aggrieved by the refusal of the Council to grant a driver's licence on the ground that-he is not a fit and proper person to hold such licence may appeal to a magistrates' court.

Suspension and revocation of vehicle licences.

18.—(1) Notwithstanding anything in the Act of 1847 or in this Act, the Council may suspend or revoke, or (on application therefor under section 40 of the Act of 1847 or section 5 (Licensing of private hire vehicles) of this Act, as the case may be) refuse to renew a vehicle licence on any of the following grounds:—

(a) that the hackney carriage or private hire vehicle is unfit for use as a hackney carriage or private hire vehicle;

(b) any offence under, or non-compliance with, the provisions of the Act of 1847 or of this Act by the operator or driver; or

(c) any other reasonable cause.

(2) Where the Council suspend, revoke or refuse to renew any licence under this section they shall give to the proprietor of the vehicle notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew such licence within fourteen days of such suspension, revocation or refusal.

(3) Any proprietor aggrieved by a decision of the Council under this section may appeal to a magistrates' court.

Suspension and revocation of drivers’ licences.

19.—(1) Notwithstanding anything in the Act of 1847 or in this Act, the Council may suspend or revoke, or (on application therefor under section 46 of the Act of 1847 or section 9 (Licensing of drivers of private hire vehicles) of this Act, as the case may be) refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on any of the following grounds:—

(a) that he has since the grant of the licence—

(i) been convicted of an offence involving dishonesty, indecency or violence; or

(ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Act; or

(b) any other reasonable cause.

(2) (a) Where the Council suspend, revoke or refuse to renew any licence under this section they shall give to the driver notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew such licence within fourteen days of such suspension, revocation or refusal and the driver shall on demand return to the Council the driver's badge issued to him in accordance with section 12 (Issue of drivers' badges) of this Act.

(b) If any person without reasonable excuse contravenes the provisions of this section he shall be guilty of an offence and liable to a fine not exceeding twenty pounds.

(3) Any driver aggrieved by a decision of the Council under this section may appeal to a magistrates' court.

Suspension and revocation of operators licences.

20.—(1) Notwithstanding anything in this Act the Council may suspend or revoke, or (on application therefor under section 13 (Licensing of operators of private hire vehicles) of this Act) refuse to renew, an operator's licence on any of the following grounds:—

(a) any offence under, or non-compliance with, the pro-

visions of this Act;

(b) any conduct on the part of the operator which appears

to the Council to render him unfit to hold an operator's licence;

(c) any material change since the licence was granted in any

of the circumstances of the operator on the basis of which the licence was granted; or

(d) any other reasonable cause.

(2) Where the Council suspend, revoke or refuse to renew any licence under this section they shall give to the operator notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew such licence within fourteen days of such suspension, revocation or refusal.

(3) Any operator aggrieved by a decision of the Council under this section may appeal to a magistrates' court.

Stands for hackney carriages.

21.—(1) For the purposes of their functions under the Act of 1847, the Council may from time to time appoint stands for hackney carriages for the whole or any part of a day in any' street in the city and, with the consent of the owner, on any land not forming part of a street and may from time to time vary the number of hackney carriages permitted to be at each stand.

(2) Before appointing any stand for hackney carriages or varying the number of hackney carriages to be at each stand in exercise of the powers of this section, the Council shall give notice to the chief officer of police for the city and shall also give public notice of the proposal by advertisement in at least one local newspaper circulating in the city and shall take into consideration any objections or representations in respect of such proposal which may be made to them in writing within twenty-eight days of the first publication of such notice.

(3) Nothing in this section shall empower the Council to

appoint any such stand—

(a) so as unreasonably to prevent access to any premises;

1960 c. 16. 1968 c. 73.

(b) so as to impede the use of any points authorised to be used in connection with a road service licence granted under section 134 of the Road Traffic Act I960, or permit granted under section 30 of the Transport Act 1968, as points for the taking up or setting Hown of passengers, or in such a position as to interfere unreasonably with access to any station or depot of any passenger road transport operators, except with the consent of those operators;

(c) on any highway except with the consent of the highway authority;

(d) in any station, station yard or approach of the British Railways Board except with the consent of that board;

(e) on any property of the British Transport Docks Board except with the consent of that board; or

(/) on any part of the estate of The Sutton Harbour Improvement Company except with the consent of that company;

and in deciding the position of stands the Council shall have regard to the position of any bus stops for the time being in use.

(4) Any hackney carriage byelaws made by the Council before the passing of this Act for fixing stands for hackney carriages shall cease to have effect, but any stands fixed by such byelaws or under section 179 of the Act of 1915 shall be deemed to have been appointed under this section.

(5) The power to appoint stands for hackney carriages under subsection (1) of this section shall include power to revoke such appointment and to alter any stand so appointed and the expressions " appointing " and " appoint " in subsections (2) and (3) of this section shall be construed accordingly.

Prohibition of other vehicles on hackney carriage stands.

22.—(1) No person shall cause or permit any vehicle other than a hackney carriage to wait on any stand for hackney carriages during any period for which that stand has been appointed, or is deemed to have been appointed, by the Council under the provisions of section 21 (Stands for hackney carriages) of this Act.

1967 c. 76.

(2) Notice of the prohibition in this section shall be indicated by such traffic signs as may be authorised for the purpose by the Secretary of State in pursuance of his powers under sections 54 and 55 of the Road Traffic Regulation Act 1967.

(3) If any person without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence.

(4) In any proceedings under this section against the driver of a public service vehicle it shall be a defence to show that, by reason of obstruction to traffic or for other compelling reason, he caused his vehicle to wait on a stand or part thereof and that he caused or permitted his vehicle so to wait only for so long as was reasonably necessary for the taking up or setting down of passengers.

Fixing of fares for hackney carriages.

23.—(1) The Council may fix the rates or fares within the city as well for time as distance, and all other charges in connection with the hire of a vehicle or with arrangements for the hire of a vehicle, to be paid in respect of the hire of hackney carriages by means of a table (hereafter in this section referred to as a " table of fares ") made or varied in accordance with the provisions of this section.

(2) (a) When the Council make or vary a table of fares they shall publish in at least one local newspaper circulating in the city a notice setting out the table of fares or the variation thereof and specifying the period, which shall not be less than fourteen days from the date of the first publication of the notice, within which and the manner in which objections to the table of fares or variation can be made.

(b) A copy of the notice referred to in paragraph (a) of this subsection shall for the period of fourteen days from the date of the first publication thereof be deposited at the office of the city solicitor and secretary and shall at all reasonable hours be open to public inspection without payment.

(3) If no objection to a table of fares or variation is duly made within the period specified in the notice referred to in subsection (2) of this section, or if all objections so made are withdrawn, the table of fares or variation shall come into operation on the date of the expiration of the period specified in the notice or the date of withdrawal of the objection or, if more than one, of the last

objection, whichever date is the later.

(4) If objection is duly made as aforesaid and is not withdrawn, the Council shall set a further date, not later than two months after the first specified date, on which the table of fares shall come into force with or without modification as decided by the Council after consideration of the objections.

(5) A table of fares made or varied under this section shall have effect for the purposes of the Act of 1847 as if it were included in hackney carriage byelaws made thereunder.

(6) On the coming into operation of a table of fares-or variation under this section, any hackney carriage byelaws fixing the rates and fares or any table of fares previously made under this section, as the case may be, shall cease to have effect.

1972 c. 70.

(7) Section 238 of the Local Government Act 1972 (except paragraphs (c) and (d) of that section) shall extend and apply to a table of fares made or varied under this section as it applies to byelaws made by the Council.

Fares for long journeys.

24.—(1) No person, being the driver of a hackney carriage licensed by the Council, and undertaking for any hirer a journey ending outside the city and in respect of which no fare was agreed before the hiring was effected, shall require for such journey a fare greater than that indicated on the taximeter with which the hackney carriage is equipped.

(2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.

Hackney carriages used for private hire.

25.—(1) No hackney carriage shall be used under a contract or purported contract for private hire except at the same rate of fares or charges as may be prescribed from time to time in a table of fares made or varied by the Council under section 23 (Fixing of fares for hackney carriages) of this Act, and, when any such hackney carriage is so used, the fare or charge shall be calculated from the point at which the hirer commences his journey.

(2) Any person who knowingly contravenes this section shall be guilty of an offence.

Fitness of hackney carriages and private hire vehicles.

26. Any authorised officer or any constable shall have power at all reasonable times to inspect, for the purpose of ascertaining its fitness, any hackney carriage or private hire vehicle, licensed by the Council, or any taximeter affixed to such a vehicle, and if he is not satisfied as to the fitness of the hackney carriage or private hire vehicle or as to the accuracy of its taximeter he may by notice in writing require the proprietor of the hackney carriage or private hire vehicle to make it or its taximeter available for further inspection at such reasonable time and place as may be specified in the notice and suspend the vehicle licence until such time as such authorised officer or constable is so satisfied:

Provided that, if the authorised officer or constable is not so satisfied before the expiration of a period of two months, the said licence shall, by virtue of this section, be deemed to have been revoked and subsections (2) and (3) of section 18 (Suspension and revocation of vehicle licences) of this Act shall apply with any necessary modifications.

Prolongation of journeys.

27.—(1) No person being the driver of a hackney carriage or of a private hire vehicle licensed by the Council shall without reasonable cause unnecessarily prolong, in distance or in time, the journey for which the hackney carriage or private hire vehicle has been hired.

(2) If any person contravenes the provisions of this section, he shall be guilty of an offence.

Fees for vehicle and operators’ licences.

28.—(1) Subject to the provisions of subsection (2) of this section, the Council may charge such fees for the grant of vehicle and operators' licences as may be resolved by the Council from time to time and as may be sufficient in the aggregate to cover in whole or in part—

(a) the reasonable cost of the carrying out by or on behalf of the Council of inspections of hackney carriages and private hire vehicles for the purpose of determining whether any such licence should be granted or renewed;

(b) the reasonable cost of providing hackney carriage stands;

and

(c) any reasonable administrative or other costs in connection

with the foregoing and with the control and supervision of hackney carriages and private hire vehicles.

(2) The fees chargeable under this section shall not exceed—

(a) for the grant of a vehicle licence in respect of a hackney

carriage, twenty-five pounds;

(b) for the grant of a vehicle licence in respect of a private

hire vehicle, twenty-five pounds; and

(c) for the grant of an operator's licence, twenty-five pounds

per annum;

or, in any such case, such other sum as the Council may, subject to the following provisions of this section, from time to time determine.

(3) (a) If the Council determine that the maximum fees specified in subsection (2) of this section should be varied they shall publish in at least one local newspaper circulating in the city a notice setting out the variation proposed and specifying the period, which shall not be less than fourteen days from the date of the first publication of the notice, within which and the manner

in which objections to the variation can be made.

(b) A copy of the notice referred to in paragraph (a) of this subsection shall for the period of fourteen days from the date of the first publication thereof be deposited at the office of the city solicitor and secretary and shall at all reasonable hours be open to public inspection without payment.

(4) If no objection to a variation is duly made within the period specified in the notice referred to in subsection (3) of this section, or if all objections so made are withdrawn, the variation shall come into operation on the date of the expiration of the period specified in the notice or the date of withdrawal of the objection or, if more than one, of the last objection, whichever date is the later.

(5) If objection is duly made as aforesaid and is not withdrawn, the Council shall set a further date, not later than two months after the first specified date, on which the variation shall come into force with or without modification as decided by the Council after consideration of the objections.

Taximeters.

29.—(1) As from the appointed day, no private hire vehicle equipped with any form of taximeter shall be used for hire in the city unless such taximeter has been tested and approved by or on behalf of the Council.

(2) Any person who without lawful excuse—

(a) tampers with any seal on any taximeter; or

(b) alters any taximeter with intent to mislead;

shall be guilty of an offence.

Offences due to fault of other person.

30. Where an offence by any person under this Act is due to the act or default of another person, then, whether proceedings are taken against the first-mentioned person or not, that other person may be charged with and convicted of that offence, and shall be liable on conviction to the same punishment as might have been imposed on the first-mentioned person if he had been convicted of the offence.

Offences by bodies corporate.

31.—(1) Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members the provisions of subsection (1) of this section shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Power of entry.

32.—(1) Any authorised officer or any constable may, after giving not less than forty-eight hours' notice to the owner or occupier of any premises and on production of his authority if required, enter the premises at any time between the hours of nine in the forenoon and six in the afternoon for the purpose of any inspection necessary for enforcing and carrying into effect any of the provisions of this Act.

(2) Any authorised officer or any constable to whom admission is refused may apply to a justice after giving to the owner or occupier of the premises reasonable notice of his intention to make the application, and the justice may by order under his hand require that person to admit the authorised officer or constable into the premises during the hours aforesaid.

(3) If the owner or occupier of the premises cannot be found the justice shall, on oath made before him of that fact, by order under his hand authorise any authorised officer or any constable to enter the premises during the hours aforesaid.

(4) Any such order made by a justice shall continue in force until the purposes for which admittance was required have been fulfilled or executed.

(5) Any person who refuses to obey an order of a justice under this section shall be guilty of an offence.

Obstruction of authorised officers.

33.—(1) Any person who—

(a) wilfully obstructs an authorised officer or constable acting in pursuance of this Act or the Act of 1847; or

(b) without reasonable excuse fails to comply with any requirement properly made to him by such officer or constable under this Act; or

(c) without reasonable cause fails to give such an officer or constable so acting any other assistance or information which he may reasonably require of such person for the purpose of the performance of his functions under this Act or the Act of 1847; shall be guilty of an offence.

(2) If any person, in giving any such information as is mentioned in the preceding subsection, makes any statement which he knows to be false, he shall be guilty of an offence.

The appointed day.

34.—(1) In this Act “appointed day” means such day as may' be fixed by resolution of the Council subject to and in accordance with the provisions of this section.

(2) Different days may be fixed under this section for the

purpose of different provisions of this Act.

(3) The Council shall cause to be published in a local news¬

paper circulating in the city notice—

(a) of the passing of any such resolution and of the day

fixed thereby; and

(b) of the general effect of the provisions of this Act coming

into operation as from that day;

and the day so fixed shall not be earlier than the expiration of one month from the date of publication of the said notice.

(4) Either—

(a) a copy of any such newspaper containing any such notice;

or

(b) a photostatic or other reproduction certified by the city

solicitor and secretary to be a true reproduction of a page, or part of a page, of any such newspaper bearing the date of its publication and containing any such notice;

shall be evidence of the publication of the notice and of the date of the publication.

(5) Where any provision of this Act coming into operation on a day fixed by resolution under this section requires the licensing of a person carrying on any business, or of any vehicle used by a person in connection with any business, it shall be lawful for any person who—

(a) immediately before that day was carrying on that

business; and

(b) had before that day duly applied for the licence required

by that provision;

to continue to carry on that business until he is informed of the decision with regard to his application and, if the decision is adverse, during such further time as is provided under section 37 (Appeals) of this Act.

Saving for certain vehicles.

35. Nothing in this Act shall—

(1) apply to a vehicle used for bringing passengers or goods within the city in pursuance of a contract for the hire of the vehicle made outside the city if the vehicle is not made available for hire within the city;

(2) apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of such vehicle by the week or for longer periods of hire;

(3) apply to a vehicle of a funeral director used wholly or mainly for the purpose of funerals;

(4) require the display of any plate, disc or notice in or on

any private hire vehicle licensed by the Council under this Act during such period that such vehicle is used for carrying passengers for hire or reward—•

(a) in connection with the business of a funeral director or owner of funeral vehicles if notice that it is so used has been given by the proprietor to the Council; or

(b) to, from or in connection with any wedding ceremony; or

(c) under a contract for the hire of such vehicle by the day or for longer periods of hire.

Penalties.

36. Any person who commits an offence against any of the provisions of this Act in respect of which no penalty is expressly provided shall be liable on summary conviction to a fine not exceeding one hundred pounds.

Appeals.

37.—(1) Sections 300 to 302 of the Act of 1936, which relate to appeals, shall have effect as if this Act were part of that Act.

(2) If any requirement, refusal or other decision of the Council against which a right of appeal is conferred by this Act—

(a) involves the execution of any work or the taking of any

action; or

(b) makes it unlawful for any person to carry on a business

which he was lawfully carrying on up to the time of the requirement, refusal or decision;

then, until the time for appealing has expired, or, when an appeal is lodged, until the appeal is disposed of or withdrawn or fails for want of prosecution—

(i) no proceedings shall be taken in respect of any failure to execute the work, or take the action; and

(ii) that person may carry on that business.

Application of provisions of Act of 1936.

38. Subsection (1) of section 283 and sections 286, 304 and 328 of the Act of 1936 shall have effect as if references therein to that Act included a reference to this Act.

Authentication of licences.

39. Notwithstanding anything in section 43 of the Act of 1847, any vehicle licence or driver's licence granted by the Council under that Act, or any licence granted by the Council under this Act, shall not be required to be under the common seal of the Council, but if not so sealed shall be signed by the city solicitor and secretary or by an authorised officer.

Repeal of enactments.

40. The enactments specified in the Schedule to this Act are hereby repealed to the extent mentioned in the third column of that schedule.

Protection of members and officers of| Council from personal liability.

1875 c. 55.

41. Section 265 of the Public Health Act 1875 shall apply to the Council as if any reference in that section to the said Act of 1875 included a reference to this Act and as if any reference in that section to a member of a local authority included a reference to a member of a committee of a local authority.

SCHEDULE

Repeals

Chapter Short Title Extent of Repeal

5 & 6 Geo. 5 c. lxix

13 & 14 Geo. 5 c. lxxvii The Plymouth Corporation Act 1915

The Plymouth Corporation Act 1923 Section 178 (Prescribed distance for hackney carriages

Section 179 (Corporation may appoint stands and number of carriages at each)

Section 140 (Inspection and certification of taximeters)

Section 141 (As to hackney carriages)

********************************************************************************************

This is not a court Idon't think

Licence suspensions: Punishment or public safety?

http://www.taxidefencebarristers.co.uk/ ... ic-safety/

There have recently been media reports of a licensed hackney carriage driver who have had their taxi driving licence suspended by Bolton Council following a case of “misconduct” by the driver.

It appears from the minutes of the Licensing and Environmental Regulation Committee that these suspensions were imposed as a punishment.

What does the law allow licensing authorities to do when considering a suspension for a taxi or private hire driver’s licence?

Misconduct in Bolton

According to the minutes of the committee, the first case involved a hackney carriage driver who was convicted of an offence under the Equality Act 2010 for overcharging a person in a wheelchair.

In this case the committee resolved: “That the licence to drive a hackney carriage vehicle be suspended for a period of five weeks on the basis that the Committee is not satisfied that the driver is a fit and proper person to hold a licence at this time.”

The Law

It is a well-known and established fact that a licensing authority can only licence a person who they are satisfied is a fit and proper. The “fit and proper” test exists to ensure the public are protected.

Licensing authorities used to use the power of suspension as an interim measure, for example, I cases where serious complaints and/or allegations have been made in relation to a licensed driver. In these circumstances, a licensing authority will suspend a licence until the outcome of an investigation has been reached.

This approach was ruled unlawful by Mr Justice Singh in the case of R (application of Singh) v Cardiff City Council [2012] EWCH 1852 (Admin). Mr Justice Singh said that the power to suspend a licence should be “a final determination on the fitness and propriety of the driver.”

This naturally raises the question of what a licensing authority can do. There will be instances where misconduct by a licensed driver is not sufficiently serious to warrant a full revocation. The only alternative – unless they chose to take no action – will be a suspension of the taxi/PH driver’s licence.

Mr Justice Singh suggested in his ruling that a suspension may be appropriate ” if misconduct has been established” if something “less than complete revocation” is appropriate and suspension “will constitute sufficient sanction in the interests of the public”

This therefore makes it possible for a licensing authority to use the power of a suspension as a punitive measure – but only under certain circumstances.

Bolton Council’s minutes stated: “There is therefore reasonable cause to suspend the hackney carriage licence as a warning and a deterrent.”

Punishment

There is an important legal difference between retributive punishment and utilitarian punishment. Utilitarian punishment seeks to punish offenders to discourage or deter future wrongdoing. Retributive punishment on the other hand seeks to punish offenders because they deserve to be punished (legally sanctioned retribution).

In the context of taxi/PH licensing, the power of suspension can only ever be imposed as a utilitarian punishment because licensing exists to protect the public.

Therefore if the conduct of a taxi/PH driver has not been that of a fit and proper person, but complete revocation is seen as a disproportionate response, it may be considered that a defined period of suspension will act to deter the driver from misconduct in the future and so render them once again fit and proper.

In practice there may often be a fine line between what constitutes a retributive or utilitarian punishment. Each case will have to be determined on its individual merits and in view of the evidence.

******************************************************************************************

Case No. CO/4743/2009

Neutral Citation Number: [2010] EWHC 3392 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Date: Monday, 29th November 2010

B e f o r e:

MR JUSTICE BURNETT

- - - - - - - - - - - - - - - - - - - - -

Between:

THE QUEEN ON THE APPLICATION OF MAKDA

Claimant

v

THE PARKING ADJUDICTOR

Defendant

- - - - - - - - - - - - - - - - - - - - -

Computer‑Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr C Morrison Appeared On Behalf Of The Claimant

Mr I Rogers (Instructed By Patas) Appeared On Behalf Of The Defendant

- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T

1. MR JUSTICE BURNETT: This is an application for judicial review of two decisions of parking adjudicators, each upheld on review within the parking adjudication system. The claimant, Mr Makda, is a licenced minicab driver who operates through an office in Frith Street, London W1. Licenced minicab drivers, unlike those licenced to drive Hackney carriages, may not tout for work but must pick up only pre‑booked fairs.

2. At about 9.17 in the evening of 25 June 2008 Mr Makda drove to Dean Street, London W1, in response to a booking that had been made at 9.03 by telephone to the office. The customer who had booked the journey was called Laura. She wished to be taken to Streatham Place SW2. Mr Makda pulled up close to the junction with Dean Street, where he had been told that the passenger would be waiting. He did not leave his car. She, however, did not show up. Having established that she was not there, Mr Makda very shortly thereafter drove off.

3. A CCTV camera operator watched the car in real time for a total of 1 minute 30 seconds. Mr Makda was stopped on double yellow lines. The operator issued a parking charge notice for £120 subject to a reduction if paid within 21 days.

4. An almost identical event occurred on 3 July 2008 at about 9.25. On that occasion the CCTV camera operator watched Mr Makda for about 1 minute 20 seconds. Again, Mr Makda was responding to a telephone booking made to his control office. That booking had been made about 3 minutes before hand and asked for a cab immediately in Dean Street. The destination was Kingsland High Road, E8. The passenger on this occasion was noted in the office as Noella Bible. Again, she did not show up and a parking charge notice was issued by the camera operator.

5. Parking restrictions in the City of Westminster are enforced by Civil Enforcement Powers, deriving from the Traffic Management Act 2004. Parking on a double yellow line used to be a criminal offence in Westminster, but this has not been the case for many years. The civil contravention is created by Article 5(1) of the City of Westminster Traffic Management Order 2002. It provides:

"No person shall cause or permit any vehicle to wait during the prescribed hours in any restricted street except subject to the provisions of the next paragraph for so long as may be necessary for the purposes of delivering or collected goods or loading or unloading a vehicle at premises adjacent to the street."

The exemptions relating to loading are then further refined within Article 5.

6. Article 12 provides the first of a number of further exemptions from parking restrictions. As material, it reads:

"Nothing in Article 5 of this order shall render it unlawful to cause or permit a vehicle to wait in any restricted street for so long as may be necessary for the purpose of enabling any person to board or alight from the vehicle or to load there on or unload there from his personal luggage."

7. The Civil Enforcement of Parking Contraventions (England) Representations and Appeal Regulations 2007 allow someone served with a penalty charge notice, or the owner of a vehicle concerned, to make representations to the local authority why he should not be liable to pay the charge. The grounds of such representations are set out in regulation 4(4). It is sufficient to record that one of those grounds is "that the alleged contravention did not occur."

8. A local authority is obliged to consider any representations made and respond to them. If the representations are not accepted, the reasons must be set out in a "Notice of Rejection" which is provided for by Regulation 6 of the 2007 Regulations.

9. Following the rejection of representations, the person concerned has a right of appeal under Regulation 7 to the Parking Adjudicator. The grounds of appeal are the same as those upon which representations could be made to the Local Authority. An adverse decision from the Parking Adjudicator may be reviewed by another parking adjudicator. The nature and extent of such a review jurisdiction is set out in paragraph 12 of schedule 1 to the 2007 Regulations.

10. The scope of that review power has not, it would seem, been the subject of detailed consideration, either by parking adjudicators themselves or in this court. As we shall see, Mr Makda was unsuccessful in his representations, his appeal and also on review.

11. The primary argument advanced by Mr Makda in these proceedings through his counsel, Mr Morrison, is that the exemption set out in Article 12 applied in the circumstances as described. In consequence, Mr Morrison submits that the adjudicators, both when considering the appeal and on review, were wrong to refuse to set aside the notice.

12. I should note that there was a subsidiary argument founded upon guidance issued by the Council, which suggests that camera operators cannot issue parking charge notices unless they observe a vehicle waiting for more than 2 minutes. That argument is not pressed in this application, not least because the guidance to which reference is made post‑dates the alleged contraventions with which I am concerned.

13. The sequence of events in respect of the first notice was as follows: the penalty charge notice itself was dated 2 July 2008. It was served by post. It stated that a camera operator was observing the vehicle in real time at 21.17 parked on double yellow lines in Dean Street. A rather grainy still appears on the notice. Mr Makda made representations to Westminster City Council, the essence of which were as follows:

"I am a minicab driver by trade. On the day in question I had a fare from Dean Street to Streatham Place SW2. I enclose the printout for the job, which was booked for 21.15 hours."

Westminster rejected the representations by letter dated 15 July 2008. The substance of that letter was as follows:

"I have considered all of the information you have provided but I am unable to cancel the PCN. This letter is therefore a formal notice of rejection to your representations. The PCN was issued because the vehicle was seen parked in a street when parking restrictions were in force. Yellow lines at the edge of the road mean that there are parking restrictions which apply to the entire road. The vehicle was observed by a CCTV operator, but no picking up/setting down activity was observed. The picking up/setting down exemption does not permit the vehicle to wait for passengers at any time. Whilst appreciating that you drive a minicab, I must, however, advise that there is no exemption for you to wait for passengers. The exemption means that passengers must be ready to board the vehicle upon its arrival. If passengers are not ready, the vehicle must move on to a legal parking space. The evidence you supplied shows a 2‑minute wait from the appearance time. This is not permitted. The PCN was therefore correctly issued."

14. The author of the letter indicates that his understanding of the exemption is that it allows for no waiting at all for a passenger to show up. The clear impression given by this letter is that no tolerance is allowed for a passenger who may not know the identity of the driver or a driver who may not know the identity of a passenger to establish contact.

15. Mr Makda's representations to Westminster in respect of the second penalty charge notice which is dated 11 July 2008 were, for practical purposes, in the same terms. So too was the response from Westminster City Council, except that there was of course no reference to the timing of the first incident. I should say that the print outs from both jobs which were produced in due course by Mr Makda to the adjudicator identify the passengers in the way that I have described.

16. Mr Makda appealed to the parking adjudicator in respect of both penalty charge notices. As regards the first, he wrote this to the adjudicator:

"I work as a minicab driver. On the day in question I had a fare booked for 21.15 and arrived at the appointed time to pick up my passenger. The normal practice is for me to arrive at the designated place at the appointed time and the pre‑booked passenger would come up to my window to confirm their name and destination. I cannot approach people to the street, as this would constitute touting. I agree with the council's view in their notice of rejection that the passenger should have been ready when I arrived. Unfortunately she was not there at the appointed time. There were some people at the car window, but none of them was the passenger that had booked the journey. As is sometimes the case, some passenger would book a fare and then decide not to travel or find and take a taxi without even calling my office to cancel. I absolutely refute the council's assertion that I was waiting for the passenger. I arrived at the booked time to pick up the passenger and it just happened that she was not there when I arrived."

The account that Mr Makda gave in respect of the second occasion on which he had been issued a penalty charge notice was similar, save that he gave no indication that people were at the window of the vehicle.

17. Both appeals were considered on paper by the same adjudicator, Edward Houghton. His reasons for rejecting the first appeal were these:

"the appellant's vehicle was waiting in a restricted street. This is unlawful unless some legal exemption applies, although there is an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle. This does not extend to waiting for the passenger to arrive, inconvenient though this may be for chauffeurs and private hire drivers. The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully."

As far as the second is concerned, he said this:

"It is not in dispute that as the DVD evidence shows, the vehicle was waiting in a restricted street indicated by double yellow lines. The appellant is a minicab driver and was waiting for a pre‑booked passenger who was not on time. However, although there was an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle, this does not extent to waiting for passengers to arrive, inconvenient though this may be for chauffeurs and private hire drivers. The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully."

Mr Houghton went on to indicate that the circumstances were such that the council might consider exercising discretion to cancel the penalty. That suggestion fell on deaf ears.

18. As I have already indicated, both decisions were reviewed. The review of the first noted that the vehicle was visible in the CCTV footage for something over a minute and 20 seconds with no sign of anyone getting into the car. The second review was dealt with rather differently. Unlike the adjudicator considering the first review, who engaged with the facts and circumstances of the alleged contravention, the second reviewing adjudicator considered that a review was not appropriate because in essence Mr Makda was simply seeking to challenge the factual finding.

19. Article 12 of the 2002 order allows a vehicle to wait:

"for so long as may be necessary for enabling any person to board or alight from the vehicle and to load thereon or unload there from his personal luggage."

This provision admits of no difficulty in interpretation in almost all circumstances in which private drivers, Hackney carriage drivers or minicab drivers stop to let someone out of the car. The governing factor is plainly how long it takes to get out of the car, to unload the various things that the passenger has with him and then, in the case of a Hackney carriage or minicab, to pay. Similarly, in most cases of picking up, the driver knows his intended passenger or in the case of a Hackney carriage, is flagged down to the side of the road. In those circumstances the reverse process occurs. There is unlikely to be any difficulty in considering the facts to decide whether the vehicle concerned was stopped for longer than was necessary for those activities to be completed.

20. Even in cases where the driver and passenger are unknown to each other but the passenger is at the pick up site, ready and waiting, contact is likely to be made very quickly indeed. The time taken to make such contact in those circumstances, would, in my judgment, be necessary for the purpose of enabling that person to board the vehicle. But what if a driver pulls up expecting to find a passenger waiting for him but the passenger fails to show up or, as is not uncommon, has made other arrangements?

21. In the skeleton argument lodged on behalf of Mr Makda by his solicitors, it was submitted that any waiting for a pre‑booked passenger is exempted by Article 12. It is fair to say that Mr Morrison has not supported that submission in oral argument. It is not a submission that I can accept. It over looks two important features found within Article 12, one of which is explicit and the other which is clearly implicit from its context.

22. The explicit feature within Article 12 is the concept of necessity. So, for example if a driver were early for a rendezvous it could hardly be said to be necessary to wait in a restricted area until the pick up time. Neither would it in general terms be necessary for a driver to wait for a passenger who was late. A fresh rendezvous could, in almost all modern circumstances, be arranged. If that were not possible, then, using language which is perhaps not entirely apt nowadays, the driver would have to go round the block.

23. The implicit feature is in my judgment that the exemption in Article 12 is concerned with a time which is proximate to the getting into or the getting out of the vehicle.

24. For those reasons I do not accept the bold submission found in the skeleton argument. I deal with it despite Mr Morrison's not supporting it, simply to make the position clear in the event that similar arguments are advanced in other cases.

25. Mr Morrison has advanced an alternative construction. It is essentially this: that Article 12 is concerned with allowing a vehicle to wait to facilitate the immediate pick up or drop off of passengers. That, as it seems to me, comes closer to identifying the true meaning of Article 12. It is unnecessary to rewrite the language of Article 12, which is not lacking in clarity. In the context of a driver picking up any passenger at a pre‑determined time and place, it is in my judgment necessary for the purpose of enabling that person to board the vehicle for the driver and passenger to make contact with each other; alternatively for the driver to conclude that the passenger is not there.

26. Whether the time spent on that exercise in any given case was necessary is a question of fact. That will depend upon the myriad circumstances which can apply on the ground at the time. The fact that the passenger fails to materialise does not, in my judgment, mean that the exemption can have no application. The time spent by the driver seeking out his passenger by looking for him from the vehicle or waiting for his passenger to identify the vehicle is capable of being time necessary for the purposes of enabling the person to board his vehicle.

27. The reasons given by the adjudicator in respect of these two notices and supported on review in the instance in which the facts were considered drew a distinction between waiting whilst passengers boarded and waiting for passengers to arrive. Mr Makda "absolutely refuted" that he was waiting for his passenger to arrive on either occasion in a general sense. Although he did not express himself with the clarity with which Mr Morrison has been able to develop arguments, the point that Mr Makda was seeking to make was that he pulled up for as long as was necessary to make contact with his passenger. Having failed to do so, within fairly short order he drove away. I have already noted that in the review decision in which the facts were considered, the absence of a passenger seen on the CCTV was a factor that was given considerable weight.

28. In the course of argument this morning I have had cause to observe that adjudicators have an extremely difficult task. They perform what seems to me to be an important yet very difficult judicial function. It is important because thousands of appeals are adjudicated upon each year in circumstances where many people who appeal parking tickets will have no other cause to become involved with the judicial system. Mr Rogers, who appears for the parking adjudicator this morning, indicated that overall about 80,000 appeals are made each year. The task is difficult because a very large number of those appeals are dealt with on paper. They are dealt with on short submissions made by drivers or vehicle owners. Those submissions are inevitably not informed by reference to the underlying statutory provisions or legal concepts in play. Adjudicators are therefore in one sense expected to be all seeing and all knowing.

29. In the circumstances that are revealed in the papers before me and which I have sought to summarise, the subtlety of the argument being advanced by Mr Makda does not appear to have been fully appreciated by the adjudicators concerned. That is not altogether surprising and should not be taken as any real criticism.

30. However, taking the reasoning in the round, it is clear that Mr Makda's evidence was not explicitly rejected. The impact of his evidence on the true interpretation of Article 12 was similarly not explored in the decisions to which I have referred. It does not appear that the underlying interpretation of Article 12 which was being applied by the adjudicators accorded with the meaning I have sought to give it in the course of this judgment. That being the case, in the course of both decision making processes there was an error of law.

31. The question was not asked whether the time during which Mr Makda's vehicle was seen to be stationary in Dean Street was necessary for the purposes of enabling his passenger to board the vehicle, albeit that on both occasions the passenger failed to show. Mr Rogers helpfully suggested in the course of argument that were I to conclude that there was an error of law in the course of the decision making process, the proper course of action would be to quash both decisions of the adjudicators on review, quash both of the underlying decisions of Mr Houghton in respect of the appeals brought by Mr Makda and issue a mandatory order that in the circumstances both appeals should be allowed on the matters being remitted to the adjudicator. In the circumstances, that is the order I shall make.

32. Mr Morrison, Mr Rogers, have I covered everything in the course of that judgment that needs to be covered?

33. MR MORRISON: Yes, my Lord.

34. MR ROGERS: In the appropriate relief it may be, since Westminster are not here and have not intended to participate at all in this judicial review, it may be appropriate to order further declaratory relief in terms of liability to pay the penalty charges. Would your Lordship be minded to do that?

35. MR JUSTICE BURNETT: If there is a mandatory order that Mr Houghton's decisions on appeal are quashed, that the matters are then remitted to him with an order that he allow the appeals, will that not sort it?

36. MR ROGERS: Yes, what would normally then happen is my Lord might be aware that if the adjudicator allows an appeal he normally has to consider what direction to say make, and standard direction when one allows an appeal is the penalty charge be cancelled.

37. MR JUSTICE BURNETT: You are quite right. The subtleties of the directions had slipped my mind. Could I invite you and Mr Morrison to draft an order and to email it to my Clerk, or the associate later today so that we can have a look at it and ensure we have covered all bases.

38. MR ROGERS: My Lord, yes.

39. MR JUSTICE BURNETT: The critical thing, Mr Rogers, is that as far as Mr Makda is concerned, today should be his last engagement in the process. What is to follow may involve Mr Houghton in a little bit of paperwork, but nothing more than that.

40. MR ROGERS: My Lord yes, I understand that.

41. MR JUSTICE BURNETT: Yes, all right. Thank you very much.

42. MR MORRISON: My Lord, I am instructed to apply for a limited costs order. I am very care aware and I am sure you are too that ordinarily course costs would not be awarded, however I am instructed that until we received the defendant's skeleton argument we understood that they opposed the application for judicial review based on a letter explaining their grounds for the decision, page 165 to 168 of the bundle.

43. MR JUSTICE BURNETT: These are the summary grounds.

44. MR MORRISON: Yes and they renewed that opposition in a further short letter at page 173. I would not suggest that we should get any costs in respect of this hearing and the preparation for it, but my instructing solicitors are keen to secure some form of costs order for the preparation of the skeleton argument, since they understood at that point that the application was opposed. It is a limited order we seek. I appreciate that this is a ‑‑

45. MR JUSTICE BURNETT: What are you asking for?

46. MR MORRISON: Unfortunately a cost schedule has not been prepared yet, so costs to be summarily assessed at a later date, the proportion of costs between the preparation of the skeleton argument up to the defendant's skeleton argument and the costs incurred after that, in a form of a recovery order.

47. MR JUSTICE BURNETT: All right.

48. MR MORRISON: Thank you.

49. MR JUSTICE BURNETT: Mr Rogers, has the position softened a little?

50. MR ROGERS: My Lord, I don't think it has. The page 163 ‑‑ it looks like the acknowledgement of the service may have ‑‑ it is said that the adjudicator, with the tribunal finding submission at 163, did use the words, unfortunately, "grounds for contesting", but when one reads the summary grounds, if one reads the summary grounds I don't believe there is any softening of the position at all. There is nothing in there that suggests that this is matter in which this decision was contested and nothing which would suggest that the Tribunal was departing from the normal position of the Tribunal being neutral. There is nothing in there contesting the substance of the points, indeed there is a letter written recently, there was recent correspondence suggesting that the claimant thought he was going to be applying for a costs order and the tribunal drew the claimant's solicitor's attention to the case of Davies v Birmingham Deputy Coroner, copies of which I have.

51. MR JUSTICE BURNETT: I am very familiar with it.

52. MR ROGERS: I appreciate your Lordship is very familiar with that. There is no reason to say this case falls outside the Davies guidelines. This is a case where the Tribunal has effectively played a neutral role throughout regardless of the slight differences in wording there.

53. MR JUSTICE BURNETT: I am just looking for the claim form. It is also a fair observation, is it not, that the original claim form did not quite raise the point with the clarity as has later emerged.

54. MR ROGERS: My Lord, yes.

55. MR JUSTICE BURNETT: It is very difficult to make a generalisation, but it looked as though the the matter was being challenged on factual grounds fairly substantially.

56. MR ROGERS: Yes, my Lord, and I did not draw up the summary grounds, but I notice that they stated effectively the claim raises no new point, it is essentially a challenge which the adjudicators and the reviewing adjudicator were ones they were entitled to come to on the evidence before them.

57. MR JUSTICE BURNETT: I am trying to remind myself whether the grounds mentioned Article 12 at all in terms.

58. MR ROGERS: It is certainly a case where the extent of the argument was really clear from the skeleton argument, which came later.

59. MR JUSTICE BURNETT: Yes, that is right.

60. MR MORRISON: They did not, my Lord, I am afraid the particular Article we relied upon was not available at the application for permission.

61. MR JUSTICE BURNETT: All right. There is an application made on behalf of Mr Makda by Mr Morrison for costs. This is a case which has, to put it mildly, evolved since it was first issued. The original claim form made no mention of the Article 12 point, which is what has occupied time this morning. The original claim seemed to be founded upon a suggestion that the adjudicator had come to a factual conclusion which was not truly open to him. The acknowledgement of service suggested, in fairly measured terms, that the application would be resisted on the basis that the findings and conclusions were open to the adjudicator. Much has happened since. Permission was originally refused on the papers, but allowed at the renewed oral application before Judge Thornton. He granted permission on the basis of what might loosely be called the guidance point, which has in fact not been pursued.

62. The real focus of this challenge became apparent when an extremely detailed skeleton argument was lodged and served by the claimant's solicitors, dated 19 April 2010. The arguments came into focus at that stage. The adjudicator, in compliance with the order made by Judge Thornton, responded to that skeleton argument. Mr Rogers settled that skeleton argument on 21 May 2010. The skeleton made it plain that the adjudicator was not taking up an adversarial position in these proceedings. In summary, the adjudicator was taking part to assist the court.

63. The nature of the arguments today have happily not engaged very detailed technical aspects of law relating to parking. Occasionally that does happen, and in those circumstances the attendance of the adjudicator can be vital to ensure that the court does not fall into error.

64. The principles in play in respect of the costs application of this sort are well known. They are conveniently set out in the decision of the Court of Appeal in Davies (No.2). that of course was a case which concerned a coroner, but the principles are no different. If a judicial respondent in judicial review proceedings attends to assist the court and does not take up an adversarial position then only exceptionally would be it right for the court to award costs against the judicial officer if the judicial review is successful.

65. In my judgment the parking adjudicator has remained on the right side of the line as far as Davies (No. 2) is concerned throughout these proceedings. Despite Mr Morrison's attractive submission, it is not a case in which it would be appropriate to order the adjudicator to pay the costs or any part of the claimant's costs.

Barrie's Comments:

The general rule of law is now confirmed that taxi drivers, minicab drivers and any other drivers are allowed to wait for a long as necessary on single or double yellow lines for the purpose of picking up a passenger and/or their luggage. In the case of black cabs which can be hailed by a passenger in the street it is easy to see what time is taken and in the normal course of events that pickup time is clearly necessary.

The question arises (and this was dealt with by the court): what is the necessary time for a a taxi driver or minicab driver to pickup a passenger when they receive a pre-booked cab fare. I have won many cases at the parking adjudicator arguing that there has to be a time period to pick up a passenger starts when the vehicle arrives, the driver looks for his passenger and the passenger comes from their premises, finds the cab and enters the vehicle. My view is that that is all part of the process of waiting for the purpose of picking up the passenger. I am pleased to say that the court confirmed my view.

Background

Nearly all councils have taken the rigorous view ( in my view totally incorrect and illogical) that when a taxi driver or minicab driver receives a pre-booked fare the driver cannot wait at all and that the passenger has to be at the kerb ready to get into the vehicle. Some parking adjudicators have agreed with the councils’ view, but many parking adjudicators have not agreed. Indeed one parking adjudicator said that it was preposterous to suggest that a driver arriving to pick up a passenger should act like a Formula One driver performing a pitstop with the passenger diving into the vehicle and the vehicle taking off.

The High Court has now clarified the law on this issue and has stated that councils are wrong to adopt the position they have taken so far.

The learning judge stated that when a driver arrives at the destination, the time taken looking for the passenger or waiting for the passenger to identify the vehicle are all a necessary part of the process of picking up the passenger - and accordingly any parking tickets issued in those circumstances must be cancelled.

The judge also decided that if a driver arrives at the destination to pick up the passenger but the passenger then cancels the journey this is still nevertheless part of the process of picking up the passenger and accordingly any parking tickets issued in such circumstances must be cancelled..

Barrie Segal’s Final Comment: This is a very important clarification of the law which demonstrates that councils have been unfairly penalising licensed taxi and minicabs.

******************************************************************************

Neutral Citation Number: [2016] EWHC 3597 (Admin)

CO/2713/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Manchester Civil and Family Justice Centre

1 Bridge Street West

Manchester

Greater Manchester

M60 9DJ

19th December 2016

B e f o r e :

LORD JUSTICE McCOMBE

MR JUSTICE KERR

____________________

Between:

OLDHAM BOROUGH COUNCIL Claimant

v

MOHAMMED SAJJAD Defendant

____________________

Digital Audio Transcript of the Stenograph Notes of

WordWave International Limited Trading as DTI

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

____________________

Mr Moss appeared on behalf of the Claimant

Mr Hussain appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT

____________________

Crown Copyright ©

LORD JUSTICE McCOMBE: This is an appeal by way of Case Stated by the Justices sitting at the Oldham Magistrates' Court, in respect of a decision made by them on 26th February 2016.

The appellant is the Oldham Borough Council and the respondent is Mr Mohammed Sajjad. The appellant has been represented before us by Mr Moss of counsel and the respondent by Mr Hussain. I, for my part, am most grateful to them for their submissions.

The appeal is brought by the appellant against the decision of the Justices that the respondent was not guilty of the offence of using a motor vehicle on a road without there being in force a valid policy of insurance, contrary to section 143 of the Road Traffic Act 1988.

The respondent was the driver of a vehicle with the benefit of a Hackney Carriage licence issued by the Rossendale Borough Council, entitling the vehicle to be plied for hire within that borough's local authority area but not elsewhere. The respondent was charged with two offences alleged to have been committed on 23rd January 2015. They were first, plying for hire in the Oldham area and (b) driving without insurance, contrary to section 143 of the 1988 Act. Section 143 of the Act provides as follows:

"Subject to the provisions of this Part of this Act—

(a) a person must not use a motor vehicle on a road [or other public place] unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act..."

Then subsection (2):

"If a person acts in contravention of subsection (1) above he is guilty of an offence."

On 10th January 2016 the respondent pleaded guilty to the "plying for hire" offence but maintained a plea of not guilty to an offence of using the vehicle without insurance. On 26th February 2016 the justices heard the matter and found the respondent not guilty of the offence of driving without insurance. The appellant borough council now appeals against that finding.

The facts appearing in the Stated Case, with the written submissions of the parties annexed are as follows. The evidence was in effect agreed. On 23rd January 2015 officers from the appellant's licensing section and officers at the Greater Manchester Police took part in an operation called "Operation Arizona", targeting Hackney Carriage drivers thought to be plying illegally for hire outside the area of the local authority which had granted them a Hackney Carriage driver's licence. At the time of the alleged offence the respondent was driving the Hackney Carriage vehicle, a Toyota Avensis, registration number FL56LAE which had been licenced by Rossendale Borough Council to ply for hire within that borough but not elsewhere. The respondent held a Hackney Carriage driver's licence issued by the same council with a similar restriction.

The respondent was driving in Oldham at approximately 22.55 hours when he picked up two police officers on Oldham Road in Grotton. In his statement one of the officers stated that he raised his hand into the air to flag down the respondent's taxi. The respondent stopped and the officer opened the front door and asked him if he had a booking and he replied "no". The officer then asked: "Are you free to take to us to..." and he gave an address to which the respondent replied "Yes". He then gestured to the officers to get into the taxi, he turned on his meter but did not contact anyone via his radio. The officers were dropped at the requested address which was a predetermined location. The respondent was identified and it was established that he held a Hackney Carriage drivers licence issued by Rossendale and that he worked for Premier Cars, a private hire operator licenced by Oldham. He had a call sign called "Driver 34".

An interview was arranged for a later date with an interpreter being summoned as the respondent had difficulties understanding the officer who had spoken to him on the night in question.

On 11th February 2015 the respondent was interviewed under caution with an interpreter. In the interview he stated that he had been licensed as a Hackney Carriage driver with Rossendale for just over 12 months. He confirmed that in Oldham he worked for Premier Cars. He understood that he could not pick up passengers off the streets in Oldham. He admitted to plying for hire unlawfully and that he had picked the officers by mistake after believing that they were his customers. He stated that he also understood his insurance did not cover plying for hire in Oldham. Of course that last opinion of his is not strictly relevant; the question for the court is whether there was in place a valid insurance.

The respondent had at the time a hire agreement with a Mr Amar F Hossain in respect of the Toyota with the registration number that I have quoted. It was common ground he was entitled to drive under the terms of Mr Hossain's insurance. It was an insurance policy commencing on 1st January 2015 and ending on 22nd December 2015 in which the date concerned fell.

The certificate of insurance stated the limitations as to use in the following terms:

"(a) Use for business purposes and social and domestic and pleasure purposes by any person who is entitled to drive the vehicle.

(b) Use for business purposes including the carriage of passengers for hire or reward under a public hire licence."

Before the justices the appellant borough council argued that the terms of the insurance policy were clear, the respondent was permitted to ply for hire under a public hire licence. The respondent did not hold a Hackney Carriage driver's licence with Oldham and the vehicle was not licensed to apply for hire in Oldham. He therefore could only lawfully ply for hire in Rossendale and not in Oldham. His plea to the offence of plying for hire was inevitable. The appellant contended therefore he was acting outside the terms of the insurance policy as the policy would not cover the activity of plying for hire outside the area of the local authority which issued the Hackney Carriage licence. Further, such plying for hire constituted a criminal offence - see the guilty plea to the other charge.

The respondent, for his part, submitted there were no exclusions or conditions contained in the certificate of insurance that required the insurer to have a current vehicle licence or a private hire driver's licence for a specific borough or district. Moreover, the certificate of insurance did not contain conditions requiring the insurer to comply with any rules and regulations of any particular licensing authority. The respondent argued that on the facts and details of the insurance certificate therefore he was insured. The activity covered by the insurance certificate was, quoting again the terms of the policy (b) "use for business purposes including the carriage of passengers for hire or reward under a public hire licence." That was the exact same activity in which the respondent was engaged.

In the court below the respondent relied particularly on the case of Adams v Dunne [1978] QB RTR 281. In that case a disqualified driver had obtained a cover note by way of a false representation to the insurance company and, therefore, the insurance contract was voidable by the insurance company on the grounds of misrepresentation. It was held in that case that the driver was insured because the insurance policy was not void but only voidable at the material time. The respondent contended in the present case that his circumstances and those of the defendant in Adams v Dunne were comparable. In Adams, although the defendant was restricted from driving by a court order and he had obtained the insurance policy fraudulently, he was still covered by the terms of the policy. The present case of course does not concern any question of misrepresentation to the insurance company.

On this material the magistrates in our present case formed a view that certificate of motor insurance did not state that a vehicle was not covered by insurance for hire or reward under a public hire licence outside Rossendale. Therefore the respondent at the material time was covered by a valid policy of insurance in respect of third party risks. Although the respondent was found to be plying for hire in an area outside that to which his Hackney Carriage vehicle licence was granted, his certificate of insurance was therefore valid and accordingly the offence had not been committed.

The magistrates were also referred to the case of Telford and Wrekin Borough Council v Ahmed and/Ors [2006] EWHC 1748 (Admin) in addition to the Adams v Dunne case to which I have already referred. I will return briefly to the case of Telford a little later.

In the Case Stated in the present matter, the magistrates asked the following question for the opinion of this court:

"Was the court right in finding from the submissions made that the certificate of insurance produced by the defendant was valid in the circumstances whereby the defendant admits that he was plying for hire in an area outside of that which the Hackney Carriage licence was granted?"

The arguments raised on appeal before us were to a degree those urged upon the justices but with a gloss which is not apparent from the papers that have been before us.

Mr Hussain, for the respondent, now submits that the restriction of the insured activity of using for business purposes including the carriage of passengers for hire or reward has been restricted by reference to an area. That restriction, accordingly offends section 148(2) of the 1988 Act. It is necessary to incorporate certain parts of the Act for the purposes of this judgment to which I will particularly refer. First to section 145, which provides as follows:

"(1) In order to comply with the requirements of this Part of this Act, a policy of insurance must satisfy the following conditions...

(3) Subject to subsection (4) below, the policy—

(a)must insure such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road [or other public place] in Great Britain..."

Section 148 of the Act then provides as follows:

"(1) Where a certificate of insurance ... has been delivered under section 147 of this Act to the person by whom a policy has been effected... so much of the policy or security as purports to restrict—...

(a)the insurance of the persons insured by the policy, or...

by reference to any of the matters mentioned in subsection (2) below shall, as respects such liabilities as are required to be covered by a policy under section 145 of this Act, be of no effect."

Then subsection (2):

"Those matters are—

(e) the time at which or the areas within which the vehicle is used."

Mr Hussain's submission is that the effect of these provisions is to render the restriction on the permitted activity of use for hire or reward, is to restrict it with a restriction prohibiting the time which or the areas within which the vehicle is to be used. Moreover, what the respondent did, although a criminal offence, was nonetheless covered by the policy.

Mr Moss submits that the policy does not cover the activity on which the respondent was engaged, namely plying for hire in Oldham. Section 148(2)(e) is therefore not offended. He points out to the fact the respondent was guilty of a criminal offence to which the plea of guilty to plying for hire bears eloquent testimony.

Mr Hussain's response is that many driving activities can constitute criminal offences, for example dangerous or careless driving and a multitude of other matters that one can imagine. However, without more, the driver is not rendered guilty of the further offence of driving without insurance in such cases.

The situation is perhaps exemplified by the Adams case upon which the respondents relied below. In that case the facts were these. The defendant concealed from the insurers the fact that he was disqualified but managed to obtain a cover note for use by him of a car. The insurers took no step to avoid the contract but it was clear they would not have granted cover had they known the defendant was disqualified. He was charged with the offence of using a motor vehicle on a road without insurance under the then 1972 Act. The justices were of the opinion the cover note remained in force as it had not been cancelled by the insurers and an appeal was dismissed by this court (Melford Stevenson J, Cantley J and Coombe-Johnson J). It was held the cover note was in respect of the very driving activity being conducted by the respondent and it remained in force because even though voidable the insurers had not sought to void it. Of course driving while disqualified was clearly a quite separate criminal offence but the driver's insurance was not rendered invalid by that fact alone.

In contrast, in the Telford and Wrekin case, to which I have referred above, which was heard by Latham LJ and myself, an appeal was brought against dismissal by the District Judge Magistrates' Courts of informations preferred against the respondents alleging offences under section 143 of the present Act. In addition each of the seven respondents faced a charge in respect of an alleged offence of plying for hire a Hackney Carriage for which a licence to ply for hire had not been obtained. All the respondents stood convicted of this latter offence. Each had a licence to carry passengers for reward provided that a prior booking had been made and motor insurance policy in respect of private hire work on prior booking. Note, there was no area restriction in that case. The respondent's insurance policies covered private hire in various forms but they excluded specifically public hire at all. The appeal was allowed and the case was remitted to Magistrates' Court with a direction to convict.

In my own judgment, with which Latham LJ kindly agreed, I said this:

"Whether a policy covers a particular risk and therefore whether there is in force a valid insurance covering that risk will usually be a matter of construction of the insurance policy in question, rather than a matter of evidence. That was certainly so in the present case. In my view, it is entirely clear that the limitations to the insurance in each of these cases demonstrated that the vehicle was not covered when being used on 'ply for hire' operations...

10. It may be true that the policy in each of these cases remained in force notwithstanding any breach of its terms by the relevant respondent until avoided by the insurer. However the fact remained that such policy, in its unavoided form, did not cover the risk in question. In Adams v Dunne the risk was covered, notwithstanding that the policy was voidable for misrepresentation by the insured; it had not in fact been avoided at the relevant time. That is not the issue in this case."

While I said in Telford that the risk would usually be a matter of construction of the insurance policy in question rather than a matter of evidence, that related to the meaning of the policy as to the risk covered. I was anxious to explain in the Telford decision that the view of the witness in that case, a Mr Kemp, as to whether or not the insurer was on risk could not dictate the true meaning of the policy. The question still remains, once one has found the nature of the risk covered as a matter of language of the insurance policy, to determine whether the activity being conducted on the occasion in question is within that covered risk. Certain Mr Moss's submissions to us this morning struck me as seeking to demonstrate consequences of a particular construction of the policy rather than the questions of construction of the policy and the Act as this court has to do.

In the present case, the question is whether the insurance on its true construction, and with reference to the Act and on the facts as found, covered the activity being conducted by this respondent. He was covered for business use including the carriage of passengers for hire or reward under a public hire licence. The vehicle had a public hire licence but not for the type of hire and the area in question on which the respondent had been engaged by his passengers on this occasion. However, in so far as the insurance policy sought to limit the insurance to activity in a particular area, thus if the restriction is rendered ineffective by the operation of section 148 then the policy is to be read, as it seems to me, as if that restriction was treated as deleted in blue pencil from its wording. As Kerr J pointed out in the course of argument, that seems to be the effect of the opening words of section 148(1) which say that "so much" of the policy as purports to restrict the insurance by reference to any of the matters mentioned should be of no effect. So one would therefore remove from the relevant condition the offending passage.

Until directed to the terms of section 148(2)(e) of the Act by Mr Hussain, I confess that I was inclined to think that this case was on all fours with Telford. However, having considered that section and Mr Hussain's submissions together in particular, with the judgment of Collins J in Singh v Solihull Borough Council [2007] EWHC (Admin) I consider that Mr Hussain's submission is correct. In that particular case the policy wording was as follows:

"limitations as to use:

'Social Domestic and Pleasure purposes and Use for the business of the policyholder including the carriage of passengers for hire or reward.""

Then there was an exclusion:

"Excluding use for racing, competitions, rallies or trials, public hire, commercial travelling or any purpose in connection with the motor trade."

The principal issue in that case was whether the effect of certain European Union Directives and the decision of the Court of Justice of the European Union in Ruiz Bernaldez meant that the offender in that case was at all times insured for third party risks notwithstanding contravention of the terms of his policy in the clear and explicit terms. Collins J held the Directive did not have that effect but went on to consider (obiter) the effect of the prohibition of certain conditions under section 148 of the Act - see in a particular paragraphs 29 and 30 of the judgment. He held at paragraph 29 among other things:

"Our domestic legislation prevents such policies from containing some exclusions of liability. Those provisions comply with what is required in particular in the Third Directive but go to a degree beyond that and it is in my judgment apparent that no offence under section 143 is committed in relation to a breach of one of those excluded conditions."

Again at paragraph 30:

"It follows that, so far as the prohibited conditions are concerned, there would be no offence committed of using a vehicle without the necessary insurance under section 143. But the existence of the prohibited conditions shows that there may well be other conditions which are not prohibited..."

The question therefore, as before, is as to the construction of this policy together with the impact of the Act upon it. Does the condition here purport to restrict the insurance by reference "... the areas within which the vehicle is used."

In my judgment, it does purport to restrict the otherwise permitted activity of "hire or reward", which is quite general, by reference to the area restriction in the licence. Under the Act that restriction is to my mind no effect. The policy is to be read for these purposes as if the restriction were not there. Accordingly, I consider that the justices were correct in the decision that they reached, although perhaps for reasons somewhat less full than the ones that have been argued before us.

For these reasons therefore I would answer the question posed by the justices in the affirmative and would dismiss the appeal.

MR JUSTICE KERR: I agree.

LORD JUSTICE McCOMBE: Are there any consequential matters, gentlemen?

MR MOSS: My Lord, a claim for costs in this case, a schedule been supplied. There has been some discussion between me and my learned friend although my Lord will see a figure, a grand total of £5,616 I was --

LORD JUSTICE McCOMBE: Hang on I do not think I have seen that. I will glance through that before you make any further comment (Pause). Yes?

MR MOSS: My Lords, discussions between my learned friend and I were concluded with the view that the may well be justification in the words set out in the schedule, and therefore consequently the claim is of the grand total of £5,000 including VAT.

LORD JUSTICE McCOMBE: £5,000 including VAT.

MR HUSSAIN: I do not resist that.

LORD JUSTICE McCOMBE: You do not resist that.

We will therefore dismiss the appeal with costs assessed at £5,000 including VAT.

MR MOSS: My Lords.

LORD JUSTICE McCOMBE: Gentlemen, as I said in my judgment, we are grateful for your submissions.

Perhaps I should hand back the document that was handed to us Mr Moss (Same Handed). Thank you.

Postscript

By way of postscript, we should add the following. After we had heard the oral argument in this case, we gave extempore judgments dismissing the appeal for the reasons given. Before the order was drawn, we received further written submissions from Mr Moss on behalf of the appellant. He wished to rely on further written argument which, he contended, ought to be considered by the court and ought to persuade us to reach a different conclusion. His argument was that the EU directives considered by Collins J in Singh v Solihull MBC should not impel the court to construe the legislation as contended by the respondent; private hire licences had been geographically limited by reference to local authority areas for well over a century, going back to the Town Police Clauses Act 1847. He invited us to construe the present legislation in the same manner, as not requiring restrictions in insurance policies defined by reference to local authority areas to be treated as of no effect.

Mr Hussain, for the respondent, did not object to us considering this additional material. We were prepared to do so. Mr Hussain argued in written submissions, as he had done at the hearing, that the domestic legislation is clear' that it plainly invalidates area-based restrictions in insurance policies, of the type at issue in this case; that there was no reason to construe the legislation in the unnatural manner proposed by the appellant; and that the law was not thereby rendered deficient; it adequately punished those who ply for hire outside the geographical area of their licence, since by doing so they commit a criminal offence (to which his client had pleaded guilty) irrespective of the insurance position. We agree. We did not find in Mr Moss's added submissions any good reason to alter our reasoning or the conclusion to which it leads. The appeal is dismissed.

*********************************************************************************

IN THE WESTMINSTER MAGISTRATES COURT

IN THE MATTER OF AN APPEAL UNDER THE PRIVATE HIRE VEHICLES (LONDON) ACT 1998

BEFORE THE SENIOR DISTRICT JUDGE (CHIEF MAGISTRATE) EMMA ARBUTHNOT

BETWEEN

UBER LONDON LIMITED (“ULL”)

Appellant

And

TRANSPORT FOR LONDON (“TfL”)

Respondent

JUDGMENT – 26TH JUNE 2018

Introduction

1. This is an appeal from TfL’s refusal to renew ULL’s licence. It is a de novo redetermination of ULL’s licence application. I must determine in the light of the evidence before me today whether the decision not to renew the licence is now wrong. I must also ask myself whether ULL is a fit and proper person to hold a Private Hire Vehicle Operator’s licence and of course I have had regard to the public interest as well as ULL’s.

2. ULL is represented by Tom De La Mare QC leading Ranjit Bhose QC and Hanif Mussa whilst TfL is represented by Martin Chamberlain QC leading Tim Johnston. Gerald Gouriet QC and Charles Holland have provided written submissions which were followed by a brief oral submission. They appear for the Licensed Taxi Drivers Association. They have also provided a short bundle of evidence. They are not parties to the appeal.

3. I have been provided with a core bundle which contains the parties’ skeleton arguments which I attach to this judgment and the principal statements from the witnesses called on behalf of the parties. I have also received a number of bundles which have been referred to in the evidence.

4. On behalf of ULL I heard from the two executive directors Tom Elvidge and Fred Jones and from Laurel Powers-Freeling the experienced non-executive Chairman of the board. Giving evidence on behalf of TfL was the impressive Ms Chapman the TfL Director of Licensing, Regulation and Charging.

5. The parties agree the law that I should apply and this is set out in their skeleton arguments. I have also been provided with an authorities bundle. I will not set out the agreed legal position. Suffice it to say the licensing regime for London is set out in the Private Hire Vehicles (London) Act 1998 (“the Act”). Tfl is empowered to issue licences to private hire vehicles, private hire drivers and private hire operators. Any licence can have conditions attached to it. The Operators’ Licence Regulations issued under the Act impose a set of obligations on the operators. Section 3(3) of the Act sets out that TfL shall grant an operator’s licence where it is satisfied that the applicant is a “fit and proper person” to hold such a licence.

6. TfL is required to exercise its powers to develop and implement safe, integrated, efficient yet economic transport facilities. The Mayor’s Transport Strategy included ensuring that London has a safe secure accessible private hire service enabling all Londoners including the disabled to travel independently and provide an attractive experience which would encourage great use of public transport. It is clear that passenger safety is TfL’s priority.

Background

7. ULL has been a private hire operator since 2012. It operates via an App that drivers and passengers, or riders, as they are termed in Uberspeak, download onto their mobile telephone. In five years the business has increased at an extraordinary rate. In 2012 there 300 drivers using the Uber app now there are 48,000 registered drivers. An executive director and general manager for Uber in the UK and Ireland Mr Elvidge describes a ‘snapshot’ 12 week period when just under 3.6 million riders used Uber.

8. Inevitably such a young business has suffered a number of growing pains which have not been helped by what seemed to be a rather gung-ho attitude of those running the business in the very recent past. The attitude of the previous managers of ULL appeared to me on the evidence to be that of grow the business come what may.

9. On 28th February 2017, ULL applied to renew its operator’s licence for five years. TfL raised a number of on-going issues in correspondence but granted a further four months in May 2017 whilst the letters went back and forth.

10. The issues and correspondence led TfL to question the wisdom of ULL being licenced at all. On 22nd September 2017, TfL wrote a letter to ULL (“the Decision letter”) saying that a decision had been made that ULL was not a fit and proper person to hold a Private Vehicle Hire Operator’s Licence and that therefore a new licence was not to be granted. This was based on factors which are set out in the two skeleton arguments which are attached and that I set out briefly below.

11. The Decision letter set out a summary of the reasons why ULL was not a fit and proper person. TfL’s complaints were as follows: ULL misled TfL in correspondence in 2014 as to the processes used to make bookings. ULL had available to it a software called “Greyball” which could be used to evade regulatory processes and ULL had shown a lack of corporate responsibility in relation to matters which had public safety implications.

12. On 13th October ULL wrote to say they were appealing the decision and the matter came to Westminster Magistrates’ Court. In October 2017, the appeal was based on ULL’s contention that it was a fit and proper person to hold a PHV licence. In January 2018 I was provided with a provisional list of issues for the appeal. This list made it clear that at that time ULL was not accepting a number of the justified complaints made by TfL. By the time we came to the on Monday 25th June 2018 the list of issues had narrowed greatly and the parties provided a list of agreed conditions that could be attached by this court to a licence if one was granted. ULL had changed a number of its working practices and its governance and TfL took a neutral stance as to whether the licence should be granted by the court. Helpfully TfL explored governance and other matters with the three ULL witnesses called.

13. Importantly by 25th June 2018 ULL was asking for a probationary licence only. The initial period it suggested was one of 18 months but in final submissions it came down to 15 months.

14. It is an important consideration for this court, that ULL accepts now that the Decision not to renew was fully justified, namely that in September 2017 it was not a fit and proper person within the meaning of the Act to hold the licence.

15. Nine months have passed, the changes set out in the skeleton arguments have taken place. The question for this court is whether ULL can be trusted when it says it has changed and whether it will maintain the changes when these proceedings drop away.

Reflections on the evidence

16. I have received substantial documentary evidence which covers the events before the September Decision letter and perhaps more importantly what has happened since. I heard evidence from the two executive directors of the Company, Mr Elvidge and Mr Jones. I also heard from the impressive non-executive Chairman of the Board, Ms Laurel Powers-Freeling. Without her evidence I would have had even more concerns about granting a licence. I was struck by the breadth of her experience including in regulated industries. She has the maturity required for the responsibility that she has accepted. The two other non-executive directors are also of a similar calibre.

17. Mr Elvidge joined ULL in September 2014. He was not involved when the company was describing its processes in one way in letters to TfL (letter dated 17th March 2017 from Ms Bertram at bundle 1 tab 9 page 83 and the other from 17th June 2014 from Mr de Kievit Legal Director in bundle 1 tab 16 page 396) and to Mr Justice Ouseley in the High Court to persuade them that it was the company which accepted the bookings rather than the driver. In the meanwhile Uber was saying to a court in Canada and then ULL to an employment tribunal in the United Kingdom, that it was the drivers who accepted the bookings.

18. Mr Elvidge accepted that what had been said then was false. TfL ask me to consider whether I should make a finding that it was deliberately false. ULL says that it was a failure to understand its own processes and that I should not make a finding which would not be relevant to the issues that are now before me. Having considered the argument it seems to be that it would be unfair on those carrying out the correspondence on behalf of ULL if I were to make any finding of dishonesty without hearing from the people concerned. It is sufficient to say that the correspondence gave a material false picture of the processes then used.

19. Mr Jones’ evidence in relation to how ULL was now approaching reporting allegations of serious criminal conduct to the police was encouraging. A review of past cases had been carried out and a number of cases now referred to the police. I agreed with Ms Chapman’s evidence that the seriousness of some of the complaints were very concerning and that whoever in ULL had reviewed these matters and not reported them orginally lacked common sense.

20. I had to bear in mind that he had launched a public attack on the decision to refuse to renew the licence by launching a petition aimed at the Mayor of London. It was of concern that instead of accepting the blame it tried to whip up a public outcry whilst in fact ULL had brought the refusal of the renewal on itself.

21. The way ULL mislead TfL in 2014 and the High Court and the way Mr Jones reacted to the TfL Decision letter were examples of the management behaviour of ULL leading up to and just after the Decision letter.

22. A more mature approach was then taken by the overall Chairman in the United States and in fairness to Mr Elvidge and Mr Jones they have been leading the negotiations with TfL in the last few months.

23. Laurel Powers-Freeling is the new Chairman of the board of ULL. She was an impressive witness with an impressive background. She has put her reputation on the line. Although engaged for just 50 days a year, the last few months had been more demanding of her and she had chaired regular meetings which discussed the licensing situation. She had noticed a change of culture in the company over the last few months. I was satisfied that under her Chairmanship, as long as she is kept informed of what is happening day-to-day in the business, that the changes that ULL has put in hand will be maintained.

24. So far as the Decision letter is concerned, there is now an acceptance that ULL misled TfL and the High Court. There is an apology from ULL. In terms of the second issue, the use of Greyball technology, at least one of the relevant employees who knew about this technology has left the company although I note others remain and perhaps of more significance, ULL has created a Compliance Protocol to . Governance which had been a problem has been focussed on with three non-executive directors appointed led by the impressive Ms Powers-Freeling. The leadership of the company has been changed to a limited extent.

25. The final concern in the Decision letter was ULL’s approach to corporate responsibility such as the failure to report criminal allegations made against drivers to the police. In the past ULL considered the privacy of the rider required that he or she report such an allegation to the police. Mr Jones gave evidence that after discussions with the Metropolitan Police and TfL ULL have a new system in place which supports the reporting of serious offences to the police. A scheme by which a medical certificate and an eye test could be administered by post and by telephone was wholly inappropriate and a way of checking for criminal records was criticised.

Matters that have arisen since the Decision

26. A data breach had occurred in 2016 in San Francisco but ULL only informed the regulator in 2017 of this breach. Initially ULL thought it related to the details of one driver but it became apparent later the same day that 2.5 million ULL accounts had been affected. It turned out that the parent company had thought it appropriate to pay the hackets $100,000. Ms Chapman was particularly concerned that the parent company knew about this for some time but had not chosen to tell ULL. She also was not satisfied by the ULL view that it was not going to tell its customers because the data loss was not very sensitive.

27. A second issue that has arisen since the Decision is Ripley. Ripley is a software tool which some Uber companies had used to remotely lock computers when regulators were visiting. Mr Elvidge explained that Ripley was not used in that way in the United Kingdom but he understood Ms Chapman’s concerns.

28. Ms Chapman was also concerned that she found out about some hacking of customer accounts from the BBC. Her concern was that it showed that ULL was still slow to communicate with the regulator.

Changes by ULL since the Decision

29. ULL points out the agreed list of conditions that the parties have set out which will be part of the licence if one is granted. This is evidence it says of its efforts to change its culture, processes and governance.

30. The proposed conditions cover corporate governance and intra-group relationships, they evidence the setting up of a Compliance Protocol which assists with communications between the Uber group and ULL. It allows for an independent assurance procedure, this condition was important to the regulator as it allows not just internal but external monitoring of compliance with its obligations as a licensed operator. ULL is to communicate any relevant changes to TfL. It is not to circumvent any of its obligations as a licensed operator. Data breaches are to be referred to the regulator and reported transparently. ULL will not use any tool to circumvent the regulators. The criminal reporting policy now in place will continue unless the police decide otherwise. ULL will check every year that their reporting policy remains fit for purpose. Every six months ULL will update TfL with information about the effectiveness of its complaints handling process. ULL will assess within 48 hours of receiving a safety related complaint about a driver whether he or she should be suspended and such a decision will be notified to TfL. As regards employees ULL will not employ those who have evaded enforcement. There is also a condition in relation to training for ride sharing.

31. ULL relies on governance changes since the Decision. There is a sub-committee of the Board which looks at licensed operations and compliance and a Licensed Operations Management Committee.

32. There are new non-executive directors on the board who outnumber the executive directors. An earlier director who was partly responsible at least for the 2014 correspondence has been removed from the board.

33. A new Compliance Protocol has been introduced globally so that information affecting ULL’s regulatory position in the United Kingdom will not be kept from it by the parent or any other companies in the group.

34. Ms Powers-Freeling and the other directors have regular meetings with others in the group.

35. The directors are trying to change the corporate culture. The then new Chief Executive of the parent company, Mr Khosrowshahi, met with the TfL’s Commissioner in October 2017 and apologised for ULL and Uber’s behaviour.

36. Ms Chapman raises the important question though, which is whether there is evidence that these changes are embedded in the way ULL conducts itself. Her attitude is perfectly understandable when all this change has happened so fast and much of ULL’s attitude to the regulator has had to be re-calibrated since January this year.

Cross-border hiring – the argument raised by the Licensed Taxi Drivers Association

37. The Association argues that cross-border hiring under the authority of a London PHV Operator’s Licence is unlawful yet it is being carried out by ULL. Mr Gouriet argues that that should be taken into account by this court when considering whether ULL is a fit and proper person within the meaning of the Act. He goes on to say that working in areas where the drivers do not have a local licence (or the trinity of licences) undermines local licensing arrangements and particularly so when the licensed vehicles work in areas where ULL has been refused an operators’ licence. He said the evidence showed that the invitation for bookings was happening outside London. Finally he contends that a condition not to work outside Greater London should be added to the licence.

38. Mr Gouriet’s submissions were short and to the point and they were opposed briefly by ULL and TfL. Mr Chamberlain for TfL said that the legislation requires for a trinity of licences to be granted by the same local authority one for the driver, one for the car and one for the operator. If that is complied with then there is authority which makes it clear that a PHV can send a car out of the controlled district when the journey does not pass through, start or finish in the controlled area. Mr De La Mare argued that there was no booking taking place outside London as the operators were in Aldgate Tower in the City of London. The app on the screen is no different to any other operator’s one and was perfectly lawful. Price surging had nothing to do with the regulatory model. As to imposing a condition that ULL stay in Greater London, Mr de la Mare said it would be ultra vires.

39. I do not find this argument is relevant to the matters I have to decide. I noted that TfL did not consider that what ULL was doing was unlawful and they did not rely on it when coming to their neutral view on whether ULL was a fit and proper person. I find that the legislation and the authorities referred to by Mr Chamberlain on the face of it allow for the PHV driver in a trinity of licences situation to leave or never enter or never cross the controlled district. Mr Chamberlain’s view was that legislation was required. I had some understanding of that view as the present arrangements did not seem to support a local area determining the numbers of PHVs operating in their area. A condition on ULL’s licence and not on other companies’ in the same situation would seem unfair.

40. I have considered the evidence and submissions in the case. I have given particular weight to the conditions that have been agreed between the parties. Taking into account the new governance arrangements, I find that whilst ULL was not a fit and proper person at the time of the Decision Letter and in the months that followed, it has provided evidence to this court that it is now a fit and proper person within the meaning of the Act. I grant a licence to ULL.

41. The length of the licence has been the subject of discussion. The rapid and very recent changes undergone by ULL lead me to conclude that a shorter period would enable TfL to test out the new arrangements. A 15 month licence will enable Ms Chapman and her team to check the results obtained by the independent assurance procedure set out in condition number 4 whilst ensuring the public are kept safe.

42. I grant a licence for a period of 15 months.

43. I order that the costs of Tfl are borne by ULL.

Senior District Judge (Chief Magistrate) Emma Arbuthnot

26th June 2018

UBER LONDON LIMITED V TRANSPORT FOR LONDON LIST OF AGREED CONDITIONS

In this list, references to the 1998 Act include the Private Hire Vehicles (London) Act 1998 and the Private Hire Vehicles (London) (Operators’ Licences) Regulations 2000 (the 2000 Regulations) made under it.

CORPORATE GOVERNANCE AND INTRA-GROUP RELATIONSHIPS

1. Board composition

ULL shall maintain a Board, comprising at least three independent directors who shall be in the majority (one of whom shall be the Chair) and at least two executive directors.

For the avoidance of doubt, this condition will not be treated as having been breached in circumstances where a director resigns or is otherwise no longer able to act as a director and ULL is in the process of recruiting a successor, provided the recruitment process takes no longer than 6 months.

2. Board/Sub-committee roles

Ultimate responsibility for ULL’s licensed operations under the 1998 Act shall lie with the Board. The Board is to be supported in the fulfilment of that responsibility by a sub-committee of the Board chaired by the Chair (or, in the absence of the Chair, another non-executive director). The sub-committee shall be supported by a management committee.

3. Compliance protocol

ULL shall maintain arrangements for:

a. ULL to be notified by Uber Technologies Inc. (UTI), and Uber BV or, Uber Britannia Limited (UBL) of matters that could be relevant to ULL’s obligations as a licensed operator under the 1998 Act wherever they may arise (including in respect of any other affiliated Uber Group company); and

b. UTI and Uber BV to support ULL in its compliance with its obligations as a licensed operator under the 1998 Act, and respect its autonomy in securing that compliance including in making notifications required by these conditions and the 1998 Act.

4. Independent assurance procedure

ULL shall maintain an independent assurance procedure designed to review and validate the effectiveness of its systems, policies, procedures and oversight mechanisms for promoting compliance with its obligations as a licensed operator in accordance with the 1998 Act as well as these conditions.

ULL shall provide TfL with details about all existing and new customer and/or driver safety and security initiatives, safety and security related products and services and the work of ULL’s Safety Team, and the independent assurance procedure shall also include a review of these safety and security initiatives, safety and security related products and services and the work of ULL’s Safety Team.

ULL shall provide the licensing authority with a copy of an independently-verified assurance procedure report produced every six (6) months from the date of any decision granting this Licence together with a summary of actions ULL proposes to take in response to that report.

TFL NOTIFICATION OBLIGATIONS AND ENFORCEMENT

5. Notification of significant/material changes

In addition to and without derogation from its obligations under regulation 9(13) of the 2000 Regulations, ULL shall give the licensing authority at least 28 days’ advance notice of any material change that it intends to make to its operating model, systems or processes, that may affect compliance with the 1998 Act, 2000 Regulations or other licence conditions, including but not limited to:

a. Any material proposed changes to the way in which ULL collects and holds passengers’ and drivers’ data;

b. Any material proposed changes concerning ULL’s booking systems and arrangements for making bookings;

c. Any material proposed changes relating to the safety and security of passengers and drivers.

Any notice provided must be full, detailed and transparent. Such notice shall include details of the risk assessments carried out and the impact on the safety of passengers and drivers.

ULL shall have regard to any reasoned response raised by TfL in respect of any such changes so notified.

In the event that ULL is unable to comply with the notice requirements in condition [X] because immediate or faster change is required in order to comply with a Court order or other legal obligation or to address an actual or potential emergency, ULL will give the greatest notice reasonably practicable.

6. Circumvention of obligations

ULL shall not circumvent any of its obligations as a licensed operator under the 1998 Act or circumvent or interfere with any arrangements made by the licensing authority in relation to these obligations, including such obligations or arrangements as apply to applicants for or holders of private hire vehicle driver licences or private hire vehicle licences. This concerns any part of the licensing process a driver or vehicle owner is required to undertake and includes but is not limited to obtaining Enhanced Criminal Record Certificates, medical declarations, topographical assessments, English language certificates, MOTs or any other requirements set by the licensing authority as prerequisites to obtaining a driver or vehicle owner licence.

7. Reporting of breaches to the licensing authority, law enforcement and regulatory authorities

ULL shall, to the extent permitted by law, provide a written report to any relevant regulatory and law enforcement authority in the United Kingdom, and to the extent permitted by law, to the licensing authority in any of the following circumstances:

a. All data breaches, material data losses or infringements of data protection law affecting the data of UK drivers and/or customers, whether those incidents occur in the United Kingdom or elsewhere;

b. The use or proposed use by ULL, UBL, Uber BV, UTI or any other affiliated Uber Group company (“an Uber Company”) in any jurisdiction where a Relevant Person is or has been employed or engaged by an Uber Company at the time of such use or proposed use of any software, tool or other mechanism (including Greyball and Ripley) (i) to interfere with or evade any regulatory enforcement action or (ii) for any improper purpose. For these purposes ‘proposed use’ means a use proposed or endorsed (whether implicitly or explicitly) by a Senior Manager or Director.

Following any report made concerning 7(a) or (b) above, ULL shall co-operate fully, openly and transparently with any investigation conducted by any regulatory or law enforcement authority and/or by the licensing authority.

In these Conditions, a "Relevant Person" is any person who during the term of this Licence is, or has been, employed or engaged by ULL as a Senior Manager and/or Director.

"Data breaches, material data losses or infringements of data protection law" means any such incident that:

(i) is, or

(ii) would, if UK law were to apply, be required by law to be notified to a regulator or law enforcement authority.

8. Transparency during investigations

ULL shall, to the extent permitted by law, provide written notification to the licensing authority of the outcome of:

a. all investigations, in the United Kingdom or elsewhere, concerning data breaches, data losses or infringements of data protection laws affecting the data of UK drivers and/or customers. This requirement to notify includes but is not limited to all investigations in which a Relevant Person has been implicated in, or found personally culpable for, such a data loss;

b. all investigations concerning any regulatory breaches or infringements of law by an Uber Company, to the extent that any Relevant Person has been implicated in such conduct or found to be personally culpable for such breach or infringement; and

c. the outcome of all investigations, in the United Kingdom or elsewhere, concerning the use by an Uber Company of any software, tool or other mechanism (including Greyball and Ripley) to interfere with or evade regulatory enforcement or any other improper purpose to the extent that any Relevant Person has been implicated in or found to be personally culpable for such use.

9. Evasion of enforcement

ULL shall not use any software, tool or any other mechanism to interfere with or evade any enforcement action by a regulatory or law enforcement authority, including the licensing authority.

10. Arrangements with MPS

ULL shall, unless the Metropolitan Police Service (MPS) lawfully requires or agrees otherwise, maintain substantively the current arrangements agreed by the MPS for

the reporting of passenger complaints alleging behaviour that may be criminal.

11. Criminal reporting policy

ULL shall consult the MPS at least every calendar year as to whether ULL's policy relating to criminal reporting remains fit for purpose. ULL shall notify the licensing authority of any updates to this policy that are agreed with the MPS and/or any other relevant police authorities, and complies with any guidance issued by the licensing authority.

12. Complaints handling

ULL shall provide an update to the licensing authority every six (6) months on the effectiveness of its complaints handling process. That report shall include up-to-date figures concerning the number of reports made to the police within each relevant period.

ULL shall, within 48 hours of receiving a safety related complaint concerning a ULL driver:

a. assess whether it is necessary to remove or suspend that driver account pending further inquiries; and

b. notify any such decision to remove or suspend the driver to the licensing authority, including specifying the details of the driver and the allegation.

13. Not employing people who have evaded enforcement

ULL shall take all reasonable steps to ensure that they do not employ or engage as a Senior Manager or Director any person who has been found (whether by Uber, its external advisers on their behalf, or regulators or law enforcement agencies) to have:

a. Promoted, approved or facilitated the possible or actual use of Greyball or Ripley, or any other technology, so as to avoid or evade regulation in any jurisdiction (whether in their internal communications or otherwise); or

b. Otherwise interfered with or evaded regulatory enforcement in the private hire and taxi sector, whether in the United Kingdom or in any other jurisdiction.

14. Ride sharing

ULL shall provide training to all drivers to ensure that any advanced bookings of private hire vehicles at separate fares are carried out safely.

********************************************************************************

Neutral Citation Number: [2018] EWHC 1274 (Admin)

Case No: CO/5176/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

30/05/2018

B e f o r e :

MR JUSTICE OUSELEY

____________________

Between:

LPHCA LIMITED t/a LICENSED PRIVATE CAR HIRE ASSOCIATION

Claimant

- and -

TRANSPORT FOR LONDON

Defendant

____________________

MR DAVID MATTHIAS QC (instructed by BLUE TRINITY LEGAL) for the Claimant

MR TIMOTHY STRAKER QC (instructed by TRANSPORT FOR LONDON) for the Defendant

Hearing date: 25 April 2018

____________________

HTML VERSION OF JUDGMENT APPROVED

____________________

Crown Copyright ©

MR JUSTICE OUSELEY :

Transport for London, TfL, is the Greater London licensing authority for hackney carriages, usually called taxis or black cabs, and their drivers, and for private hire cars, licensing their operators, drivers and vehicles. It charges fees for the application and grant of each of those five different forms of licence. TfL decided in August 2016 that it needed to employ 250 compliance officers for its compliance and enforcement work in relation to those licensable activities, making a total of 332 compliance officers, plus the existing 50 support staff. This increase in staff numbers had to be paid for out of the fees charged for the licences. At the same time, the existing fee structure for private hire operators' licences was to be re-examined. In April – June 2017, TfL carried out a consultation on those fee changes so far as they affected private hire operators. This was the only group of licensees significantly affected by the changes.

The Claimant, the Licensed Private Hire Car Association Ltd, is a national association of private hire car operators, with some 200 members. In London there are some 2400 such operators. It responded to the consultation, complaining about the lack of financial information made available, and objecting to the changes. On 18 September 2017, the Finance Committee of TfL decided to make changes to the fee structure for private hire operator licensing, with some amendments to those originally put forward in the consultation. That decision was given effect through the Private Hire Vehicles (London) (Operators' Licences) (Amendment) (No.2) Regulations 2017, the Regulations.

The Claimant challenges the decision and the Regulations on two bases: (1) the consultation process was unlawful because TfL failed to provide adequate information to permit of an informed response on the financial basis for the changes; whether the information was adequate or not rather depends, as the arguments evolved, on what the true scope of the consultation was; (2) the apportionment of additional costs to private hire operators, rather than more to taxis, and to private hire drivers and vehicles, was unlawful because it involved a cross-subsidy from private operators to other licensees; the issue was whether such a cross-subsidy in fact was created. It was not at issue but that a cross-subsidy would have been unlawful.

Permission was granted to argue those two points by Dingemans J at an oral hearing. He refused permission to argue other grounds of challenge to the consultation process such as inadequacy of time and inadequate consideration of the responses, and to the changes to the fee structure, notably bias and irrationality.

Legislative background

The main legislation is the Private Hire Vehicles (London) Act 1988. Ss 1,2 and 3 deal with the requirement to hold an operator's licence, and the application for such a licence. An operator's licence is required for inviting or accepting private hire bookings. An operating centre is required. The licence may be granted subject to prescribed conditions and to others which the licensing authority thinks fit. The operator must be a fit and proper person to hold such a licence; s3(3). S4 sets out the obligations on a private hire operator; chiefly, any vehicle provided by him for a private hire booking must be a vehicle in respect of which a London PHV licence is in force, and must be driven by someone who holds a London PHV driver's licence, or cab driver's licence. The other obligations, as Mr Matthias QC for the Claimant pointed out, are obligations which are fulfilled at the operating centre, rather than on the street: display of the operator's licence, keeping records of bookings with the required particulars,and records of the vehicles and drivers available to the operator. The drivers are usually self-employed, and are allotted jobs by operators for whom they work. Ss 8, 12 and 13 provide for the licences for private hire vehicles and private hire drivers. Licences can be suspended or revoked if, for example, the authority ceases to be satisfied that the operator is a fit and proper person to hold such a licence; s16.

There are therefore three forms of licence in the private vehicle hire licence system. For each form of licence, by s20, TfL "may by regulations provide for prescribed fees to be payable (a) by an applicant for a licence…;(b) by a person granted a licence…." S32 permits regulations to be made for the purpose of prescribing anything which is to be prescribed, and may make different provision for different cases. This language is different from that to be found in the Town Police Clauses Act 1847, as supplemented by the Local Government (Miscellaneous Provisions) Act 1976, governing licensing for hackney carriages and private hire vehicles outside Greater London. This refers to charging such fees as the licensing authority considers reasonable to recover the costs of issuing and administering the system, which includes the control and supervision of hackney carriages and private hire vehicles. But the Parliamentary intention is the same, neither broader nor narrower.

The main Regulations are the Private Hire Vehicles (London) (Operator's Licences) Regulations 2000, which the 2017 Regulations at issue amended. They give no indication as to the basis upon which fees are to be calculated.

There is no statutory provision for any consultation about fee levels or fee changes, let alone about the budgetary process or financial assessments which may underlie them.

I also need to mention the two other licensing strands, for which fees may also be charged. These are for the licensing of black cab or taxi drivers and of their vehicles, hackney carriages. The relevant powers are in the Metropolitan Public Carriage Act 1869, and its amendments.

Their licensing is relevant because the licensing, compliance and enforcement tasks and costs for black cabs and private hire vehicles overlap to a very large extent, and form part of the argument about cross-subsidy. The Claimant is concerned that, as well as private hire drivers and vehicles, the black cabs and their drivers are being subsidised by the effect of the increases in private hire operator licensing fees.

As I have said, it was not at issue but that the fees charged for operator's licences could not lawfully include any element of cross-subsidy whether for private hire vehicles or their drivers, or for black cabs or their drivers. The same principle applied across the five strands of fees; it was not peculiar to operators' licence fees. I regard that as correct, though the case law is quite thin.

Plain it is that fees can cover more than the costs of the administrative process in considering and issuing licences; see R (Hemming) t/a Simply Pleasure Ltd v Westminster City Council [2015] UKSC 25, in the context of sex shop licensing, where the statute required the applicant for a licence to "pay a reasonable sum determined by the appropriate authority" , which permitted fees to be set at a level to cover the running and enforcement costs of the licensing scheme. The different language in this case plainly still permits fees to be set at a level to cover the running and enforcement costs of the licensing scheme. Equally plain it is that there is no power to prescribe the level of fees in order to exploit the market; see R v Manchester City Council ex parte King (1991) 89 LGR 696 D Ct; the power to charge fees for street trader licences was "such fees as [the district council] consider reasonable for the grant or renewal of a street trading licence." This covered the total costs of operating the scheme, including enforcement and prosecution. But it did not permit the council to charge fees by reference to what it thought the market would bear.

The agreement that fees from one taxi or private hire licensing strand cannot be used to subsidise the level of fees on another of the five strands is reflected in a considered concession by leading counsel, accepted by Hickinbottom J in R (Cummings) v Cardiff City Council [2014] EWHC 2544 (Admin) at [7].

In my judgment, there is no power to use the fee charging provision in order to act as a market regulator. A cross-subsidy would be a form of market regulation, which the licensing system cannot be used to achieve, in the absence of an express power. There is no power to refuse a licence because an authority might wish to encourage black cabs over private hire or vice versa, or because there were so many drivers and vehicles that fewer made a living than was thought desirable. The fee structure cannot be used to the same end, as between black cabs and private hire.

Nor can the licensing system be used to raise revenue from one strand of private hire licences to favour another strand of private hire licences, say, to favour drivers over operators: it would be unlawful to structure licence fees on the basis that all the costs of enforcement should be borne by operators and not by drivers, for whatever reason, or to appeal to some imagined public sentiment about who should pay. And by the same logic, the simple words of the Act mean that the contribution of the operators of varying sizes must equally avoid cross-subsidy from the larger ones to the smaller ones or vice versa. The fee contribution to the overall costs attributable to private hire licensing, including compliance checks and enforcement, must on that same basis be apportioned to operators, drivers and vehicles in some manner, where perfection is not attainable, which reflects their respective contributions to the costs.

This is all inherent in the statutory language enabling fees to be charged for the application for and grant of a licence, and the basis upon which such applications may be refused. It is a licensing function, not a competition or market regulation power, or one which permits one form of operator or driver or vehicle to be favoured over another, or to favour drivers at the expense of operators on the grounds, stated or implied, that one but not the other may be a corporate body. Still less is it a revenue raising power.

I emphasise these points because cross-subsidy is at the heart of both grounds: was information required about how the costs were apportioned as between all private hire licence fees and black cab licences fees, and between operators' fees and other private hire licence fees? Was there in the upshot a cross-subsidy from operators to others?

The non-statutory consultation process

The press release introducing the consultation document dated 20 April 2017 introduced the changes to operator licence fees, in a way which conveniently summarises the background:

"Transport for London (TfL) has today opened a consultation on proposals to change the fees private hire operators are charged for the costs of licensing, compliance and enforcement activity. This would ensure that operators pay a fee according to the resources required to regulate their operations.

The proposals would see an end to the current system where 'small' operators, with no more than two vehicles, pay £1,488 for a five year licence. 'Standard' operators, which have more than two vehicles, regardless of the size of their fleet, currently pay £2826.

The Capital's private hire industry has grown dramatically, from 65,000 licensed drivers in 2013/14, to more than 117,000. The number of vehicles has increased from 50,000 to 87,000 over the same period. With this growth, there has been a substantial increase in the costs of ensuring private hire operators fulfil their licensing obligations and in tackling illegal activity to keep passengers safe. It is estimated that over the next five years enforcement costs alone will reach £30 million from a previous estimate of £4m.

The total projected costs for licensing, enforcement and compliance for the taxi and private hire trades over the next five years is £209m.

The proposed new fee structure will replace the existing two 'tiers' with five; with charges ranges from around £2,000 for a five year licence for those with 10 vehicles or fewer, to £167,000 plus £68 per car for large operators with more than 1,000 vehicles. This would ensure the licence fee structure for private hire operators reflects the costs of compliance activity according to the scale of each operator.

Close to half of all operators have 10 vehicles or fewer, with just five percent of companies in charge of fleets of over 100 vehicles. TfL is also asking for views on whether there should be an option for operators in the top three tiers to pay their fees in annual instalments.

As set out in the Mayor's Taxi and Private Hire Action Plan, income from operator licensing fees will be used to contribute to funding the extra 250 Compliance Officers who are currently being recruited with a number of them now in post and the remainder being recruited by the summer. The team plays a pivotal role in keeping Londoners safe. They also provide reassurance to those travelling at night through a highly visible, uniformed presence in the West End, City and other areas across London.

Helen Chapman, General Manager of Taxi & Private Hire, said:

The operator fees system is no longer fit for purpose. It is only fair that licence fees for private hire operators accurately reflect the costs of enforcement and regulating the trade. The changes to fees would also enable us to fund additional compliance officers to help crackdown on illegal and dangerous activity."

The press release said that operator fees, instead of the existing two bands, would be replaced by 5 tiers of 5 year licences which it tabulated:

Table 1

The consultation paper itself introduced the issue this way:

"Owing to a number of developments within the private hire industry including advancements in new technology and an increase in the different ways people engage and share a taxi and private hire services, we have undertaken a review of the current policies and processes that govern the licensing of private hire drivers, vehicles and operators.

The TfL Board agreed to consider changes to the existing licence fee structure to better reflect the way in which costs are generated.

We now invite comments on our proposed changes to the fee structure. Where possible, consultees are asked to provide evidence or examples in support of their comments and suggestions."

It then said under the heading "Licensing administration and compliance costs", before providing a table similar to the table above:

"The total projected licence and compliance costs for the taxi and private hire trade over the next five years is £209m. This is apportioned between the fees received from the two trades based on the anticipated demand for resources to undertake the required compliance activities. This is forecast to be around 15 per cent of fees received from the taxi trade and 85 per cent from the private hire trade. Operator licensing administration costs of approximately £8m and TfL incurred operator enforcement costs are approximately £30m over a five year period.

To offset the increases in the scale of charges that larger operators will need to pay in the future, and to not unduly present a barrier to entry for smaller growing operators seeking to move up (or down) between the various fee tiers over a five year period, subject to feasibility, we will continue to consult on allowing operators in the largest three categories to pay their fees in annual instalments."

The "Purpose of the consultation" was described:

"The purpose of the consultation is to set out our proposals for changes to the London private hire operator's fees so they accurately reflect the costs to TfL of administering and enforcing a high quality service. We invite comments on the proposals.

Consultees are invited to comment on any aspect of the proposals or make other suggestions and, in particular, are invited to provide any evidence relevant to issues or proposals that are discussed."

The Claimant raised a number of issues, including about the information available, in correspondence with TfL. Its on-line response, following the on-line template, stated:

"Do you agree with our proposals to change the existing structure to reflect the size of private hire operators? No.

Do you agree with the proposed tiers to be used to allocate fees? No

Do you agree that operators in the three largest tiers should be able to pay the grant of licence in annual instalments? No

Do you have any further comments?

The LPHCA opposes the Transport for London (TfL) 'Private Hire Operator Licence Fees' proposals and maintains the need for immediate suspension of the consultation process.

We believe the 'Private Hire Operator Licence Fees' proposals represent a disproportionate increase from the current fee structure. The grounds for the increase remains unsubstantiated and no justification has been presented for the effects upon the livelihoods of licence-holders. It is therefore further submitted that the current fee proposals are unreasonable.

We submit the overall consultation process, incorporating the 'Have your say on Private Hire Operator Licence Fees' survey, unnecessarily and improperly contravenes, amongst other criterion, Cabinet Office 'Consultation Principles 2016' guidance. Our complaints, regarding the consultation to date, include: ….(8) TfL has disclosed limited justification, or basis, for the proposals.

We have separately presented the above complaints and opened a dialogue with senior TfL representatives on these matters. Supporting Freedom of Information Act 2000 requests have been sent, and whilst TfL has failed to comply with statutory deadlines, information continues to be sought for TfL's basis for these proposals.

In conclusion, the LPHCA strongly opposes the Licence Fee proposals contained in the consultation document and we believe TfL's conduct in undertaking this consultation process has been wholly unacceptable. The Association has been left with no other option but to answer "No" to each question and makes a formal complaint to TfL about the consultation process.

As London PHV operators have historically had very high compliance rates and very few category 7 failings, without the information we have sought from TfL Taxi and Private Hire, it is impossible to use the consultation process as the basis for giving a informed opinion about future licensing fees for licensed PHV Operators.

As Private Hire Licensing in London is determined in law in three separate classifications Operators, Drivers and Vehicles, we also wish to submit that Operator licensing fees must be utilised to manage PHV Operator licensing and must not be appropriated to the wider compliance of PHV Drivers and Vehicles or the London Taxi industry."

The officer report of 15 September 2017, to the Finance Committee, chaired by Ms Val Shawcross, Deputy Mayor for Transport, whose comments elsewhere were also deployed by Mr Matthias on the cross-subsidy issue, itself attracted no adverse submission from Mr Matthias. It dealt with the outcome of the consultation. The costs of the licensing and enforcement regime were not at present being met in full from the fees it raised. The summary continued:

"This is not a sustainable position as it means that funding is required from other TfL budgets to maintain essential licensing activities which are in the interests of public safety.

We are proposing to make adjustments to the fees for private hire drivers and vehicles, and for taxi drivers and licensed taxis, in line with our annual process of reviewing licence fees.

For private hire operators, we are proposing a new licence fee structure that covers the costs to TfL of regulatory, licensing and enforcement activities associated with the regulation of operators, including pre and post licensing costs and take into account changes in the sector including those resulting from the development of new technology.

The proposals represent a substantial change to the current fee structure for operators and it is accepted that the size of the proposed increase in fees will have a significant adverse impact on some operators.

We undertook a public consultation to seek views on our proposals. The consultation took place from 20 April to 16 June 2017.

We received 1,442 responses to the online consultation, and an additional 15 written representations from the main private hire operators and other stakeholders.

The majority of those who responded to the online consultation opposed the proposal to change the structure of operator licensing fees – although some made alternative suggestions for how the discrepancy between the current licence fee and actual regulatory costs associated with small and large operators could be addressed. Similarly, a majority did not support the proposed tiers of charges for operators, nor the ability for larger operators to pay by instalments.

Written responses from stakeholders, mostly private hire operators, showed that, while there was general support for the principle of changing the current fee structure, there were concerns about the impact on small and medium sized operators. Many from small/medium sized operators said that the fees as proposed were not affordable and/or would make their business unviable and others highlighted impact on drivers and on customers if fees were passed on. The largest operators have also opposed the proposals in particular the scale of increased fees.

We have taken careful account of the potential adverse impacts identified. The changes are proposed in order to recover the proportionate costs of regulating the taxi and private hire trade and for that reason are considered justified.

Taking into account these concerns we have modified the proposed fee structure. Two proposed new tiers have been added to mitigate the financial impact on, and better reflect the size of, operators.

In the consultation, we proposed a 'per-vehicle' charge for operators with more than 1,000 vehicles. This has been removed following responses to the consultation."

The recommendations were appended.

The main text of the report set out the background, much as in the consultation paper. It pointed out that in Spring 2015 an extensive consultation process on the private hire industry had taken place, the second stage of which proposed a review of the current operator licence structure, to which the TfL Board had agreed in March 2016.

"The consultation on operator licence fees ran from 20 April to 16 June 2017. It proposed a change to the fee structure whereby the existing categories of 'small' and 'standard' operator for licence grant fees would be replaced by a new five-tier structure for both application and licence grant fees. This was designed to reflect the actual cost of licensing and compliance activities that we are able to recover.

The proposed new structure is set out at Appendix 2 along with a breakdown of operator cost forecasts and allocation across tiers. The forecasted gross expenditure to be recovered between financial years 2017/18 and 20121/22 is £209m, which includes deficits brought forward from previous financial years. The calculation is based anticipated demand for resources to undertake the required regulatory activities over the next five years.

16 per cent of the £209m will be recovered from fees received from the taxi trade and the remainder from fees received from the private hire trade. This split has been calculated following a detailed review of regulatory activity and the costs being apportioned to the different license activities. The methodology is set out in Appendix 2.

Private hire operator licensing administration costs are approximately 38m and operator enforcement costs are approximately £30m, over a five year period. The resulting net private hire operator expenditure relating to the licence period of £38m was allocated to 'Tiers' based on assumptions around staff time and other associated costs required for each tier.

All forecasts have been based on the assumptions included in the 2016 Business Plan and not a more up to date figure. This enabled TfL to establish a firm baseline upon which to generate proposals, put together consultation documents, hold consultation exercise, consider responses to the consultation and make recommendations. Using the forecast included in the 2016 Business Plan ensures that the financials and volumes used remained consistent throughout the process. These figures are set out in Appendix 2.

To mitigate the impact of the proposed increases in the size of fees that larger operators will need to pay in future and to not unduly crate a barrier to operators seeking to scale up their businesses over a five year period, we proposed in the consultation that operators in the larges three categories should be able to pay their fees in annual instalments.

We also proposed in the consultation that an element of the fee would comprise a flat per-vehicle fee for those with fleets over 1,000 vehicles."

The report then summarised the "main relevant comments" from the consultation: the fees proposed would make businesses unviable, and there should be more tiers or at different vehicle numbers. A cap on private hire vehicle numbers and "a number of other suggestions" were outside the scope of the consultation. Many respondents were private hire drivers and customers. 345 were private hire operators. The Claimant's response was specifically mentioned in the Appendix on the consultation results.

The various suggestions were dealt with: a single fee for each vehicle, some means of reflecting the compliance record of the operator, additional tiers, "increasing fees for private hire drivers and vehicles instead of for operators".

I refer to this specifically because Mr Straker submitted that one measure of what the scope of the consultation was, was how people had responded to it, and their response had been considered. This issue of apportionment of costs between operators, drivers and vehicles, as well as taxis, was where Mr Matthias principally submitted that insufficient information had been available; and it underlay the cross-subsidy argument.

"Increase fees for private hire drivers and vehicles instead of for operators

4.22 Our proposals already include an increase in licence fees for private hire drivers and vehicles to reflect the associated regulatory costs. If taken forward, these fees will still represent around two thirds of total licence fee income.

4.23 However, there are licensing and regulatory activities which are necessary for an operator but which are not in the case of drivers or vehicles. For example, an inspection of the proposed operating premises is required even before a licence is granted to ensure the operator and premises are suitable. This includes assessment of the booking system or platform to make sure it is compliant with private hire legislation. Further work to assess the proposed operating model may often be needed.

4.24 Once a licence is granted there are a range of activities necessary to ensure the operator remains compliant. These activities include regular compliance visits; inspection of booking records; inspection of driver and vehicle records and ensuring appropriate insurance is in place; contacting operators through on-street checks; handling of complaints regarding the operator or a driver or vehicle undertaking a booking for that operator.

There should be a cap on PHV driver numbers instead to minimise level of enforcement activity.

4.25 We do not have the statutory power to do this and it would be unlawful to try and achieve it through the licence fee regime."

It concluded under "Financial Implications":

"The Implementation of these proposals will have a financial impact on private hire services, in particular operators. However, it is appropriate and justified that operators, drivers and vehicle licensees pay appropriately for the proportionate costs of the licensing regime with them.

The proposed fees will not fully recover the licensing, compliance and enforcement costs incurred by TFL. This effectively means that other funding streams are subsidising the regulation of the licensed trades. For this financial year we are proposing structural changes to ensure that operator fees are related to the size of their business. We will proceed with any further proposals in future financial years to ensure full cost recovery across all licensees."

Appendix 2 set out the proposed fees for drivers and vehicles, taxis and private hire cars. The final proposed operators' fees, which were separated into the fee for the application for a licence and the larger fee consequent upon its issues were tabulated as follows:

Table 2

I need also to refer to a page within Appendix 2, headed "Methodology for forecasting and apportioning", since this issue is at the heart of the arguments about the adequacy of consultation information and cross-subsidy.

"The forecasted gross expenditure to be recovered between financial years 2017/18 and 2021/22 is £209m. This includes £204m expenditure forecasted to be incurred between the above financial years based on the financials included in the 2016 Business Plan and £5m of retained deficits brought forward from 2016/17.

These costs are then apportioned to the licence streams using the following methodologies:

Directly allocated- specific costs such as vehicle inspections, topographical assessors, Knowledge of London examiners, and directly focused marketing spend etc

Activity based apportionment- service provider costs, driver medical costs, and document archiving etc. apportioned based on expected volume trends

Staff time apportionment- non-specific staff time is apportioned by role based on the specific activities carried out. This apportionment is then applied to salaries and on-costs to calculate a weighted average per team and also an overall weighted average.

Overhead apportionment- based on the appropriate staff time weighted average or activity based apportionment.

For example, Operator costs for the five year licence period consist of the following:

£28.3m- 30 per cent of compliance and enforcement costs, primarily staff time, have been allocated using staff time apportionment.

£4.7m- nine per cent of licensing and policy staff costs have been allocated using staff time apportionment. Services included relate to processing licence applications, licensing support, licensing policies and standards, contracts management and business support.

£1.0m- eight per cent of TfL overheads such as accommodation, legal and HR have been allocated using overhead apportionment (i.e. headcount and staff time weighted average rate)

£0.7m- 11 per cent of contact centre, complaints and appeals staff costs have been allocated using staff time apportionment.

£0.3m- one per cent of service provider costs have been allocated using activity based apportionment (i.e. active licences)."

The recommendations were accepted, a decision notice was sent out, and the Regulations were amended to reflect the changes. The statement said that the changes would "ensure the licence fee structure for private hire operators reflects the costs of compliance activity according to the scale of each operator. Licensed drivers had increased from 65000 in 2013 to 116000 in 2017, and vehicle numbers from 50000-88000 over the same period." It also set out the changes to vehicle and driver licence fees for black cab and private hire. The black cab vehicle fees for a successful application were unchanged; the black cab drivers' fee went up from £272 to £300, the private drivers' fees from £250 to 310 and its vehicles from £100 to £140.

The law on consultation

There was no dispute on this. Though there be no statutory obligation to consult, yet if an authority has decided to consult, its process of consultation must be fair in order for the decision which rests upon it to be lawful. The most recent authority on what is required for a consultation to be fair is R (Moseley) v London Borough of Haringey [2014] UKSC 56: at [25] Lord Wilson said:

"In R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168 Hodgson J quashed Brent's decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful. He said at p 189:

"Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third,… that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."

Clearly Hodgson J accepted Mr Sedley's submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. The Court of Appeal expressly endorsed them, first in the Baker case, cited above (see pp 91 and 87), and then in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at para 108. In the Coughlan case, which concerned the closure of a home for the disabled, the Court of Appeal, in a judgment delivered by Lord Woolf MR, elaborated at para 112:

"It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."

Mr Matthias rightly did not contend that TfL was not entitled to choose for itself the scope of this non-statutory consultation. It is not open to legal attack on the basis that the scope of the non-statutory consultation should have been wider, save on those grounds which would have required a consultation exercise in the first place, perhaps irrationality apart. It was not alleged that the scope of this consultation was unlawfully narrow.

The consultation issue

Mr Matthias submitted that the Claimant had asked for information which was essential for its consultation response to be informed. In a series of answers, that information had been refused. Accordingly, its response had not been informed, and the outcome had been unfair. Once the Claimant saw the consultation document, it had written to Ms Chapman asking for further information. She was then the General Manager of the Taxi and Private Hire Department of TfL. On 4 May 2017, Mr Wright of the Claimant wrote raising a number of complaints about the consultation process which had just got under way. He asked for "clear background information on its grounds for these proposals. It would in particular be beneficial for TfL to disclose the costs deficit of (or planned future expenditures for) licensing, compliance and enforcement that necessitate these fee increases." She replied on 19 May that the purpose of the consultation was to seek comments on the changes proposed to "London private hire operators' fees so that going forward they reflect the costs to TfL of operator licensing, regulation and enforcement." To this, Mr Wright replied on 2 June seeking disclosure of "the specific cost details justifying it proposals."

The Claimant made what it described as a formal complaint about the consultation process raising 7 issues, none of which arise now, and an eighth about what it saw as the limited disclosure of the basis for the proposals, essentially repeating what he had written earlier. Ms Chapman's reply of 3 August 2017 to the complaint said that TfL believed that it had given "sufficient details of the costs deficit and planned future expenditure."

The reply on the information sought, to which Ms Chapman had said TfL would respond separately, came in a letter from the body dealing with TfL's Freedom of Information requests. The letter dated 4 July 2017 post-dated the closure of the consultation. It did not actually add anything which was not already available in the public domain, simply signposting the Claimant to online material which was part of the consultation process. Nothing of any substance was forthcoming in further correspondence. Ms Chapman repeated the purpose of the consultation as being what she had set out in her 9 May letter. The Claimant's reply of 2 September 2017 asked where the additional revenue was going to be spent: "Specifically, we need confirmation that the increase in licensing fees will not be used to fund street enforcement and compliance of the taxi industry". It would be unreasonable for PHV operators to pay for the regulation of taxis when they did not incur the same level of fees. On 6 September 2017, it repeated its concern that the overwhelming majority of London's private hire operators were very compliant, that the proposals were unreasonable, and it was concerned that the private hire operator licensing fees might "be used for ensuring the compliance of private hire drivers and vehicles." The funds raised through operators should only be used for regulating operators, and not to fund enforcement and compliance in its direct competitors, the taxi industry.

Ms Chapman's evidence on the scope of the consultation included this:

"TfL consulted in April 2017 on the principle of amending the private hire operator licence fee structure. TfL was aware that the proposed changes to the fees for private hire operators were significant. TfL consulted in order to obtain views on the proposals for increasing the operator licence fees, in particular the proposals for revised tiers. The consultation was not inviting views on other licence streams e.g. taxi driver and vehicle licence fees and private hire driver and vehicle licence fees."

It did not consult on the costs of administering the licensing and compliance services, or on its financial projections, the costs of hiring the staff or the methodology used to reach "that figure", which I take to mean the budget figure. It was not consulting about the £209m figure and respondents required no further information on it but, she continued, at [66]:

"Respondents were able to offer views on the prospective apportionment between trades and the proposed tiers for operator licence fees. As above, TfL was not consulting on any proposed revisions to the licence fees for the other licence streams."

In my judgment, the question of whether sufficient reasons were given for the proposals to permit respondents to give intelligent consideration to them and to respond, depends on what the scope of the consultation was. As the consultation document makes clear, it was not about the hiring of 250 compliance officers nor about the £209m budget for licence and compliance costs over the next five years. It did not directly relate to taxi licence fees, nor to the fees charged to drivers or in respect of vehicles. Although those aspects are referred to in the consultation paper, and are part of the background to the changes, to enable consultees to see the context in which the proposals are being made, they are not themselves the subject of the consultation. No justifiable complaint can be made that no further information was provided about the total £209m or about taxi or driver or vehicle licence fees as such. The Claimant had also sought information in a very general way. Indeed, the Claimant's information requests seemed to focus on the wider justification for the increases to the budget rather than on the specific issue of the two stages of apportionment, first to private hire, and second to private hire operators.

The consultation on the other hand was clearly about the proposed changes to the fee structure for operators. But the complaint was not that there was insufficient information about the tiering. The sum which the new structure was intended to raise from operators was known. This is £38m, made up of £8m (operator licensing administration costs) and £30m (TfL enforcement costs) over a five year period. That is the figure set out in the TfL consultation paper. Information was not sought about whether those tiers would raise that sum.

The essence of Mr Matthias' submission however, was that there was insufficient information about how that £38m, apportioned for recovery through the operators' fees, and the £30m in particular, had been arrived at. The consultation paper set out the £38m figure with a short explanation that 85 percent of costs had been apportioned to the private hire trade, and a further apportionment had taken place to reach £38m for operators. How and on what evidential basis that had been done was not spelt out, although the arithmetic is obvious enough. He submitted that what Ms Chapman provided in her witness statement should have been provided for the consultation. It is perfectly clear that the consultation process did not provide any information about Tf'L's thinking to which a consultee could have responded, whatever a consultee's own methodology and estimates could have put forward. The response from TfL was that there was no need for it to have provided such information because that is not what the consultation was about. It is in that respect that the scope of the consultation is therefore at issue. Was £38m a given input, with consultation confined to how it should be raised from operators, or was the exercise of apportionment which yielded the £38m figure also an issue being consulted upon?

The consultation paper states that it is on "proposals to change the fees private hire operators are charged for the costs of licensing, compliance and enforcement activity." The proposals would alter the only distinction in the current fee structure for private hire operator licences, which was between operators with up to two vehicles and operators with more than two, in fact even up to a thousand and more, to a more graduated structure. The increase for some would be substantial, and so the possibility of payment by annual instalments of the five-year fee was also for consultation. The proposed tiers with their fees were set out. The paper said that TfL "now invite comments on our proposed changes to the fee structure." The purpose of the consultation was to invite comments on "our proposals for changes to the London private hire operator's fees so they accurately reflect the costs of TfL of administering and enforcing a high quality service." Respondents were also invited to comment "on any aspect of the proposals" or to make other suggestions, and were "invited to provide evidence relevant to issues or proposals that are discussed."

The three specific on-line response template questions are all about the structure of the fees for private hire operators and annual instalments. There was a further question seeking any further comments.

There are passages in the consultation paper, notably in the invitation to comment on "proposed changes to the fee structure" and to add comments or suggestions seemingly at large which could, particularly if taken out of context, suggest a more broad ranging consultation than Mr Straker submitted was the case. However, I am satisfied that reading the consultation paper, and the on-line template response form, that the scope of the consultation was the narrower one for which he contended.

First, that is how the more specifically worded passages in those two, and crucial documents read: I have set them out. They are concerned only with operators' licence fees and only with how they should be structured to avoid the unfairness of the simple two tier band and provide the sum which TfL has decided is what operators should pay to reflect the costs fairly attributable to operators in the running of the licensing system as a whole, including enforcement and compliance. The more specific language should be given weight over the more general, but truncated, language.

Second, no real weight can be given to the fact that more general comments were invited, particularly in the on-line template. That is a sensible enough counterpart to "yes/no" style specific questions, which may not be the place for relevant qualifications. It would be hopeless to try to argue that this meant that TfL were consulting on all aspects of whether to have 250 more enforcement officers, their costs and budget and who should pay and why. Yet if it is not so wide, it is difficult to see that it is wider than Mr Straker contends yet narrow and precise enough to include but then stop at a consultation on how the apportionment to operators' licences was carried out.

Third, I can see why TfL might want to give operators an opportunity to comment on major changes to the basis upon which their fees are assessed, as well as the increase in enforcement costs which they might have to meet. But I see nothing in that, or anything else, as showing that TfL intended a consultation on how it reached the £38m figure. It consulted on the structure whereby operators' fees would raise that sum.

Fourth, the fact that TfL must have done some work on apportionment between taxis and private hire licences, and then between private operator, driver and vehicles streams, in order to reach the £38m figure cannot of itself mean that those workings were to be consulted on. Ms Chapman's evidence does not say that no such calculations had been done before; it implies that they had been, [81]: "Further work was undertaken internally within TfL to consider the financial modelling and assumptions behind the revised operator fees." Indeed, when it comes to judging what the scope of the consultation intended by TfL actually was, the fact that it did not provide that sort of information, when it otherwise should have done were Mr Matthias correct, affords some support to what I have concluded the true scope of the consultation actually was.

Finally, although Mr Straker invited me to consider the consultation responses as some indication of what the scope of the consultation was, I found little help either way. The Claimant's on-line response is in part not couched in terms specific to the apportionment issue behind the £38m, referring instead more generally to the grounds for the increase remaining unsubstantiated and without any justification being presented. That could cover this apportionment, but certainly ranges more widely.

Its response later says that the Claimant had sought unsuccessfully to obtain from TfL information about operator compliance costs, stating that operator licensing fees must not be used for compliance purposes in relation to other licensees. That does raise the issue of apportionment. Other consultees said that licence fees for drivers and vehicles should be increased instead; there is a section in the September 2017 report to TfL's Finance Committee dealing with the "main relevant comments" which specifically deals with that. It does not itself state that such an issue falls outside the consultation process, but explains how operator enforcement and compliance costs are not confined to the costs of specific visits to operators' premises but arise out of and are part of the on-street inspections and checks of vehicles and drivers. There is nothing else in the September report which could support a wider view of the scope of the consultation.

I consider that it would be a mistake to see those comments and TfL's response in the September report as showing that the consultation was intended to cover the basis on which £38m was apportioned to operators, particularly in the light of the first point I have made on the language of the consultation paper and on-line response template. This general comment made by operators is a perfectly understandable one for many to have made, particularly with the limited financial information as to costs and apportionment. But it does not really help with what the consultation was actually about. Likewise, the fact that it was dealt with as a "main relevant comment", rather than as a common but irrelevant one, is not a sufficiently persuasive point in the light of the others I have referred to. It was seen as a comment which merited mention and explanation in a report, so that the decision-makers would understand the position in response to such disquiet as was expressed.

Besides, I can understand why the operators' suspicions as to what TfL was up to had been aroused by the comments of the Mayor in the press release I refer to at the start of the second issue. Officers may have thought it necessary to explain, but not in so many words, that what could have been the expression of an unlawful stance from the Mayor, was not in fact being implemented.

Overall, I have come to the conclusion that the true scope of the consultation, intended by TfL, did not cover the way in which £38m was the costs of licensing regime attributed to operators, and was confined to the structure whereby operators' fees would raise that sum. Accordingly, there was no unlawful failure to disclose the information about how that was worked out, in order for consultees to be sufficiently informed about the proposal actually under consultation in order to make an informed response. This ground of challenge fails.

Ground 2: cross-subsidy

I start with a press release of 7 August 2016 issued by TfL, whose Chairman is the Mayor of London, of which Mr Matthias made understandable use on the unlawful cross-subsidy issue, and which left Mr Straker with some uncomfortable questions. The Mayor announced the increase in the number of compliance officers, "tackling illegal taxi and minicab activity" so that Londoners felt safe when using taxis and minicabs, to be in place by September 2017: they would:

"… patrol London's streets and crack down on illegal activity and improve safety. The Mayor's move quadruples the size of a team which provides a highly visible, uniformed presence in the West End, City and other areas across London."

Later it said, and this language aroused suspicions:

"The new officers will be funded through changes to private hire operator licensing so that larger firms pay a greater share of the costs of enforcement."

Mr Matthias also referred to the description of the success of a recent enforcement operation, none of which referred to operators, at least not explicitly.

There were TfL internal emails of June 2016 which emphasised the desire of some not to "clobber" drivers, with others making the point that operators were to bear the "lion's share" of the cost, and that the true cause of the need for more compliance work was the rise in the use of private hire vehicles.

The Surface Transport Board in TfL, in August 2016, referred to the Mayor's announcement; its agenda said that the new compliance officers "will be funded through TPH Operator Licence Fee Income", and later repeated precisely that point. Discussions, it said, were ongoing. However, the comment in the officer recommendation to the Board was that the costs "will be fully recovered via the taxi and private hire licence fees." This is quite different. Ms Chapman says, in her witness statement, that the Board noted that latter point. That I do not doubt, but I do not know what it decided or approved. There clearly had been some debate about that issue from at least June 2016 onwards.

Department of Transport statistics for 2017 to which Mr Matthias referred me showed that there were 108700 licensed vehicles in London in 2017, an increase since 2015, with a decline in taxis, but an increase in private hire vehicles, with a marked increase for 2013 onwards, to reach 87400 by 2017. There were 117700 licensed private hire vehicle drivers, an increase since 2015, with a decline in taxi drivers licensed, and the number of licensed PHV operators had declined to 2400. Mr Matthias drew a comparison between that number and the total of other private hire licences, drivers and vehicles, which amounted to some 205000. Only 1.17 percent of all licences were operators' licences.

Mr Wright, the Claimant's Managing Director and Chairman, gave evidence disagreeing with much of what TfL had decided over enforcement, but his factual evidence was quite limited on the cross-subsidy issue actually before me. He pointed to this increase in the number of private hire vehicles and drivers, and the contraction in the number of operators, to support his contention that TfL were seeking to fund the costs of enforcing the obligations of driver and vehicle licence holders through the fees for operator licences. The approach to the apportionment of costs to taxis and to the driver and vehicle licence holders in the private hire trade, as set out in the September 2017 Finance Committee report (and which he said should have been available for the consultation), had later changed. The assessment of the booking system was now simple, as generally were other compliance assessments which had to be done. Major compliance problems from operators were rare, as were compliance problems with the booking system. On-street compliance was costly for taxis as they had no operator system, so on-street checks provided the only way of testing their compliance. In his second statement, Mr Wright referred to TfL's evidence that, in the last quarter of 2017, it had carried out 36000 checks on licensed private hire drivers and nearly 43000 checks on licensed private hire vehicles, compared to only 1135 checks on private hire operators, 87 percent of whom were found to be compliant, and 9 percent of those found non-complaint were not trading. Yet TfL was now receiving more in fees and from fewer operators.

Mr Burton, TfL's Director of Compliance, Policing and On-street Services, gave evidence about how the operators' fees had been calculated. On 25 July 2017, a TfL meeting decided to review the current and proposed deployment of compliance officers so that TfL could determine the proportion of time spent on the five individual licence streams. This concluded that the costs should be apportioned 20:50:30 to operators/vehicles/drivers. The rationale was that the average on-street inspection took 20 minutes, involving a number of checks which could be apportioned to each of the three private hire licence streams.

Ms Chapman gave more detailed evidence. Much of it related to the justification for the recruitment of the 250 compliance officers, the lawfulness of which is not at issue. She referred to the increased number of checks which were now being carried out, and the higher compliance rates now found. Noteworthy for this litigation was the 81% increase in private hire operator checks to 461 over a four week period towards the end of 2017, compared with a 137% increase in checks of private hire and taxi drivers and vehicles, over the same period, to 26510 on-street checks.

She pointed out that the cost of the licensing regime included back office costs, accommodation costs, IT hard and software, compliance officer costs, and Knowledge of London examination costs. The financial aim was to break even on a yearly basis with any deficit or surplus carried over to the next year. There had been a surplus in 2015-16, but a deficit in 2016-17 because of the increased costs of compliance officers. The hiring of a significant number of new compliance officers would have made the projected increase in costs clear to consultation respondents.

Ms Chapman's evidence about how the costs of enforcement and compliance arose is critical here. Licence conditions were intended to provide confidence to those using the services of London private hire operator that it was "an honest, professional organisation with safe drivers and vehicles." Operators were required by licence conditions to have public liability insurance, to agree or estimate accurately the fare for the journey booked, provide details of changes to its operating model and of information provided in the licence application, inform TfL of the details of the dismissal of drivers whose conduct as drivers is unsatisfactory, have a complaints procedure and records, maintain a lost property system, a fare structure which was to be used, provide weekly particulars of drivers and vehicles available for bookings or used for bookings within the maximum permitted by the licence, together with any operator specific conditions.

Ms Chapman said that the "vast majority" of compliance activities had "operator involvement", in addition to the specific operator checks. The latter entailed inspections on a licence application, or to vary a licence, and planned or unannounced compliance inspections. Unannounced inspections occurred in response to the provision of information required by the operators, or intelligence or on-street actions, identifying possible non-compliance by an operator. Operators might also be contacted during on-street vehicle and driver checks to ascertain information, such as the booking or fare agreement, and to verify driver information or vehicle maintenance records, who the driver is working for, and insurance cover. Other operator-related work included "reassurance visits" as part of the patrol of an area, patrols where operators were licensed in particular venues such as nightclubs and bars to ensure that bookings were made inside the premises, and that the nearby drivers worked for that operator, rather than loitering for unlicensed hire. Ms Chapman said that this type of work used up many hours of compliance officer time. The management of operator activities at night time venues where operators worked within the premises posed "particular challenges", where combined operator, driver and vehicle checks were undertaken. The compliance officers also deployed to supermarkets where operators had a free phone to ensure that there was no unlicensed plying for hire. Test "purchases" were carried out on operators, licensed or unlicensed.

With those points in mind, Ms Chapman then explained how, after the consultation, the private hire operators' licence fees had been calculated, with the further tiers accepted. Mr Straker explained that the reason Ms Chapman's evidence did not deal with work undertaken earlier than August was because this second issue was confined to what the "cross-subsidy" position was in the amending Regulation. Her evidence related to that, and did not need to go back earlier. The consultation issue was about scope, and not the quite different issue of whether the figures in the amending Regulation involved any cross-subsidy. Whether cross-subsidy was involved mattered in relation to the actual framework now in the Regulations as amended.

The post-consultation work drew upon the following methodology:

"i .Time and motion study – this calculated, using defined vehicle based tier sizes, the total minutes spent inspecting each operator;

ii. Compliance costs apportionment – the total compliance cost apportioned to private hire operators was apportioned to each tier based on the total minutes spent inspecting each operator (calculated in (i));

iii. Licensing and Policy costs apportionment – the total licensing and policy costs apportioned to private hire operators was then apportioned to private hire operators was then apportioned again to each tier based on management judgment of the number of person days required to review, assure and process an application per tier;

iv. Combined cost – the total compliance and licensing and policy costs were then combined to calculate total costs per tier;

v. Fee calculation – the total costs was then divided by the number of operators per tier (after the impact of deferral) to calculate an overall recoverable fee; and

vi. Application and licence fee split – the overall fee was then split be a percentage – split was then 40% application fee and 60% licence fee."

The same approach was adopted for the series of iterations, which she described in this way, using the figures agreed on 22 August 2017:

"i. Apportion total compliance time spent on on-street enforcement/compliance activity versus operator centre inspections on an 85:15 ratio;

ii. Apportion the on-street related compliance costs to the private hire and taxi trade on a 95:5 ratio;

iii. Apportion the private hire on-street related compliance costs to the licence streams as follows: 50% vehicles, 30% drivers and 20% operators;

iv. Apportion the taxi on-street related compliance costs to the licence streams as follows: 60% vehicles, 40% drivers; and

Adopt the proposed methodology to apportion the private hire operator licensing costs to the operator tiers."

These figures were changed from earlier ones, which had had an 80:20 split between private hire: taxi on-street compliance costs, and an equal three-way split of on-street private hire compliance costs. The later 85:15 split at step (i) was based on a survey (post consultation) of time spent on on-street enforcement/compliance activity versus operator centre inspections. This had shown 11.4% of total compliance officer time was spent on operator inspections, but 15% was taken in view of the increase in the number of compliance officers. The split 95:5 of on-street compliance costs private hire:taxi, changed from 80:20, was explained as reflecting the reason why the 250 compliance officers had been required, which was because of the increase in the private hire workload and changes to the way in which the private hire system worked, rather than because of any changes to the black cab trade. Ms Chapman also explained the change in step (iii) from an equal three-way split: on average an on-street inspection took 20 minutes, and she set out 2018 data and calculations which supported that, after the event. 20% or 4 minutes could properly be allocated as activity related to the operator. The growth of "app" based private hire operators had increased the need for officers to travel across London or even outside to check the operator's vehicles and drivers, waiting on roads or in residential areas to be allocated a booking. There was also an internal TfL document of September 2017 which helped apportion the operator fees across the tiers, not a point at issue in this ground of challenge.

While I understand, as I have said, why the Claimant's concerns over cross-subsidy by operators to other licensees were aroused, the question for this Court is whether the Claimant has shown that the basis upon which the licence fees are charged to operators, now in the amended Regulations, involves their fees subsidising the fees charged to other licensees within the taxi and private hire system. This turns on the evidence produced by Ms Chapman. In my judgment, the Claimant has produced no counter-evidence and very little evidence-based argument to show that her evidence is wrong and that there is in fact such a subsidy.

Ms Chapman's evidence explains a methodology for apportioning costs. She provides some evidence as to the data used. She explains why, though they varied over time, the various ratios were adopted. The Claimant has not set up any counter-analysis of its own to show that there is in fact a cross-subsidy. Nor has specific and clear issue been taken with any step in the methodology, or with the data used. The ratios have been criticised but not in any way which persuades me that there is a cross-subsidy embedded in the apportionment. Ms Chapman also produced the emails to which I have referred going back to 2016, as well as the later internal emails arising during the course of discussions about the apportionment exercise, but these rather emphasise the aim of producing "a robust and proportionate methodology" for calculating the fees for each of licence stream. The evolution of the figures is clear.

Mr Matthias points to the small percentage of all licence holders made up by operators. But this is no indication of subsidy at all. Their applications are inevitably more time-consuming than others to consider. Ms Chapman has explained why Mr Wright's allied point, that inspections at operators' premises are low in number compared to on-street inspections, ignores the role which the operator plays in on-street inspections, including, with the new officers, the benefit of reassurance patrols, and other patrols outside premises from which they operate, notably at night-time venues, where they enforce rules, to the benefit of operators, against unlicensed vehicles and drivers. Thus, these costs need to be reflected in the fee payable upon grant. Mr Wright may be correct that most licensed operators are very compliant, but compliance and enforcement against unlicensed operators is important for them too.

I cannot see from the outcome either that operators are bearing all the costs. They are bearing 20 percent of private on-street enforcement costs. Mr Wright has not persuaded me that they should pay no such costs, nor that any other lesser percentage is the maximum payable before a cross-subsidy comes into operation.

I appreciate that Mr Wright does not agree with TfL, but he produced nothing of substance to show a cross-subsidy had been created, beyond his expressions of disagreement. It is unlikely that any methodology, data, or judgment on such an apportionment would meet either approval amongst all licence streams or be beyond criticism, let alone one which could produce a perfect fit between fees and costs.

What TfL have done is to produce a reasonable method, with some evidence, to which reasoned judgment has been applied. It has not been shown to be wrong on its face, and on the analysis which I have had, I am not persuaded that there is any unlawful subsidy. If the Mayor did intend to convey that operators would pay a fee for costs which properly belonged to taxis or drivers or vehicles, the TfL officers have not in fact carried through any such intention. It would have been unlawful, had they done so.

Mr Matthias described TfL as simply paying "lip service" to the principle of no cross-subsidy. The "lip service" allegation, and like language peppered Mr Matthias' submissions. He relied on the Mayor's comment in the 2016 Press Release, and the 2016 emails to which I have referred. The changes were "a political decision" to increase the number of enforcement officers; (which I would accept) "and to saddle private hire operators with the lion's share of the increased costs". He accused TfL officers of "attempting to construct a kind of ex post facto rationalisation for the imposition of the 'lion's share' of the cost" of the extra staff on operators. This is close to accusing officers of bad faith or untruthful evidence, on a wholly inadequate basis, especially with the extensive disclosure of internal materials relating to the process of the decision-making.

That accusation, that TfL have in fact deliberately achieved a cross-subsidy while denying it in its words, is not justified. There is nothing in the September 2017 report or debate or outcome to support it. On the contrary, they refute it. There was an obvious need to alter the operator fee structure which would lead to increased fees for some, of itself. The proportion of on-street costs allocated to operators is 20 percent. The evidence of Ms Chapman justifies that; Mr Wright may disagree but her analysis was not effectively disproved at all. The taxi driver and vehicle fees go up 10 percent, the private hire driver and vehicles go up by 40 and 25 percent. The operator licence fee increase is greater, essentially because of the greater level of tiering as opposed to a flat fee for operators with more than two vehicles, as the table of regulated changes makes clear. An operator of over 10,000 vehicles used to pay £2826, and now pays £2.9m. The "lip service" allegation in fact acknowledges that the September 2017 report contains no suggestion that the apportionments are intended to load costs disproportionately on to operators, but rather to make them reflect the costs to TfL of regulating operators.

Mr Matthias quoted from what Ms Chapman said in the Press Release, introducing the consultation paper, which I have set out earlier, that "it was only fair" that operators' fee "accurately reflect the costs of enforcement and regulating the trade". The "trade" he said meant "the taxi and private hire trade" as a whole, hence the very large increases for operators and comparatively small increases for private drivers and vehicles, and for taxis. He also quoted from other parts of the Press Release: operator fee income would "be used to contribute to funding" the extra 250 officers who would provide on-street reassurance to night-time travellers. This, he said, was irrelevant to operators who did not operate on the streets. I consider this to be making bricks without straw. His interpretation of what Ms Chapman said in the Press Release is not so clear, taken by itself, to warrant the serious allegation he makes, nor are Press Releases suitable for close interpretation. But when read with the consultation paper, the September 2017 report, its outcome and the analysis behind it, this contention is impossible.

Some 2016 emails and the Mayor's comment in the Press Release of 2016, do afford some support for the existence of an intention in 2016 that operators should pay more than the costs properly attributable to them, though those are open to a different interpretation and are not themselves susceptible to close interpretation. However, they do not begin to show that any such intention was actually carried through in the light of the September 2017 report, its outcome and Ms Chapman's evidence. True, it is that none of the pre-consultation working was disclosed, though clearly there had been some, but ground 2 focused on the outcome, not any pre-consultation working. True it is that there were post-consultation iterations before the figures were finalised for a regulatory amendment. But I see nothing strange let alone sinister in that. Rather I see an intention to produce lawful fee structure in the desire expressed to put forward a methodology which "can be robustly justified if challenged by internal and external stakeholders". I found nothing to support Mr Matthias in the Mayor's role as TfL Chairman or Ms Shawcross' as Chair of the Finance Committee.

Overall conclusion

This application is accordingly dismissed.

2018

*****************************************************************

IN THE WESTMINSTER MAGISTRATES COURT

IN THE MATTER OF AN APPEAL UNDER THE PRIVATE HIRE VEHICLES (LONDON) ACT 1998

BEFORE THE SENIOR DISTRICT JUDGE (CHIEF MAGISTRATE) EMMA ARBUTHNOT

BETWEEN

UBER LONDON LIMITED (“ULL”)

Appellant

And

TRANSPORT FOR LONDON (“TfL”)

Respondent

JUDGMENT – 26TH JUNE 2018

Introduction

1. This is an appeal from TfL’s refusal to renew ULL’s licence. It is a de novo redetermination of ULL’s licence application. I must determine in the light of the evidence before me today whether the decision not to renew the licence is now wrong. I must also ask myself whether ULL is a fit and proper person to hold a Private Hire Vehicle Operator’s licence and of course I have had regard to the public interest as well as ULL’s.

2. ULL is represented by Tom De La Mare QC leading Ranjit Bhose QC and Hanif Mussa whilst TfL is represented by Martin Chamberlain QC leading Tim Johnston. Gerald Gouriet QC and Charles Holland have provided written submissions which were followed by a brief oral submission. They appear for the Licensed Taxi Drivers Association. They have also provided a short bundle of evidence. They are not parties to the appeal.

3. I have been provided with a core bundle which contains the parties’ skeleton arguments which I attach to this judgment and the principal statements from the witnesses called on behalf of the parties. I have also received a number of bundles which have been referred to in the evidence.

4. On behalf of ULL I heard from the two executive directors Tom Elvidge and Fred Jones and from Laurel Powers-Freeling the experienced non-executive Chairman of the board. Giving evidence on behalf of TfL was the impressive Ms Chapman the TfL Director of Licensing, Regulation and Charging.

5. The parties agree the law that I should apply and this is set out in their skeleton arguments. I have also been provided with an authorities bundle. I will not set out the agreed legal position. Suffice it to say the licensing regime for London is set out in the Private Hire Vehicles (London) Act 1998 (“the Act”). Tfl is empowered to issue licences to private hire vehicles, private hire drivers and private hire operators. Any licence can have conditions attached to it. The Operators’ Licence Regulations issued under the Act impose a set of obligations on the operators. Section 3(3) of the Act sets out that TfL shall grant an operator’s licence where it is satisfied that the applicant is a “fit and proper person” to hold such a licence.

6. TfL is required to exercise its powers to develop and implement safe, integrated, efficient yet economic transport facilities. The Mayor’s Transport Strategy included ensuring that London has a safe secure accessible private hire service enabling all Londoners including the disabled to travel independently and provide an attractive experience which would encourage great use of public transport. It is clear that passenger safety is TfL’s priority.

Background

7. ULL has been a private hire operator since 2012. It operates via an App that drivers and passengers, or riders, as they are termed in Uberspeak, download onto their mobile telephone. In five years the business has increased at an extraordinary rate. In 2012 there 300 drivers using the Uber app now there are 48,000 registered drivers. An executive director and general manager for Uber in the UK and Ireland Mr Elvidge describes a ‘snapshot’ 12 week period when just under 3.6 million riders used Uber.

8. Inevitably such a young business has suffered a number of growing pains which have not been helped by what seemed to be a rather gung-ho attitude of those running the business in the very recent past. The attitude of the previous managers of ULL appeared to me on the evidence to be that of grow the business come what may.

9. On 28th February 2017, ULL applied to renew its operator’s licence for five years. TfL raised a number of on-going issues in correspondence but granted a further four months in May 2017 whilst the letters went back and forth.

10. The issues and correspondence led TfL to question the wisdom of ULL being licenced at all. On 22nd September 2017, TfL wrote a letter to ULL (“the Decision letter”) saying that a decision had been made that ULL was not a fit and proper person to hold a Private Vehicle Hire Operator’s Licence and that therefore a new licence was not to be granted. This was based on factors which are set out in the two skeleton arguments which are attached and that I set out briefly below.

11. The Decision letter set out a summary of the reasons why ULL was not a fit and proper person. TfL’s complaints were as follows: ULL misled TfL in correspondence in 2014 as to the processes used to make bookings. ULL had available to it a software called “Greyball” which could be used to evade regulatory processes and ULL had shown a lack of corporate responsibility in relation to matters which had public safety implications.

12. On 13th October ULL wrote to say they were appealing the decision and the matter came to Westminster Magistrates’ Court. In October 2017, the appeal was based on ULL’s contention that it was a fit and proper person to hold a PHV licence. In January 2018 I was provided with a provisional list of issues for the appeal. This list made it clear that at that time ULL was not accepting a number of the justified complaints made by TfL. By the time we came to the on Monday 25th June 2018 the list of issues had narrowed greatly and the parties provided a list of agreed conditions that could be attached by this court to a licence if one was granted. ULL had changed a number of its working practices and its governance and TfL took a neutral stance as to whether the licence should be granted by the court. Helpfully TfL explored governance and other matters with the three ULL witnesses called.

13. Importantly by 25th June 2018 ULL was asking for a probationary licence only. The initial period it suggested was one of 18 months but in final submissions it came down to 15 months.

14. It is an important consideration for this court, that ULL accepts now that the Decision not to renew was fully justified, namely that in September 2017 it was not a fit and proper person within the meaning of the Act to hold the licence.

15. Nine months have passed, the changes set out in the skeleton arguments have taken place. The question for this court is whether ULL can be trusted when it says it has changed and whether it will maintain the changes when these proceedings drop away.

Reflections on the evidence

16. I have received substantial documentary evidence which covers the events before the September Decision letter and perhaps more importantly what has happened since. I heard evidence from the two executive directors of the Company, Mr Elvidge and Mr Jones. I also heard from the impressive non-executive Chairman of the Board, Ms Laurel Powers-Freeling. Without her evidence I would have had even more concerns about granting a licence. I was struck by the breadth of her experience including in regulated industries. She has the maturity required for the responsibility that she has accepted. The two other non-executive directors are also of a similar calibre.

17. Mr Elvidge joined ULL in September 2014. He was not involved when the company was describing its processes in one way in letters to TfL (letter dated 17th March 2017 from Ms Bertram at bundle 1 tab 9 page 83 and the other from 17th June 2014 from Mr de Kievit Legal Director in bundle 1 tab 16 page 396) and to Mr Justice Ouseley in the High Court to persuade them that it was the company which accepted the bookings rather than the driver. In the meanwhile Uber was saying to a court in Canada and then ULL to an employment tribunal in the United Kingdom, that it was the drivers who accepted the bookings.

18. Mr Elvidge accepted that what had been said then was false. TfL ask me to consider whether I should make a finding that it was deliberately false. ULL says that it was a failure to understand its own processes and that I should not make a finding which would not be relevant to the issues that are now before me. Having considered the argument it seems to be that it would be unfair on those carrying out the correspondence on behalf of ULL if I were to make any finding of dishonesty without hearing from the people concerned. It is sufficient to say that the correspondence gave a material false picture of the processes then used.

19. Mr Jones’ evidence in relation to how ULL was now approaching reporting allegations of serious criminal conduct to the police was encouraging. A review of past cases had been carried out and a number of cases now referred to the police. I agreed with Ms Chapman’s evidence that the seriousness of some of the complaints were very concerning and that whoever in ULL had reviewed these matters and not reported them orginally lacked common sense.

20. I had to bear in mind that he had launched a public attack on the decision to refuse to renew the licence by launching a petition aimed at the Mayor of London. It was of concern that instead of accepting the blame it tried to whip up a public outcry whilst in fact ULL had brought the refusal of the renewal on itself.

21. The way ULL mislead TfL in 2014 and the High Court and the way Mr Jones reacted to the TfL Decision letter were examples of the management behaviour of ULL leading up to and just after the Decision letter.

22. A more mature approach was then taken by the overall Chairman in the United States and in fairness to Mr Elvidge and Mr Jones they have been leading the negotiations with TfL in the last few months.

23. Laurel Powers-Freeling is the new Chairman of the board of ULL. She was an impressive witness with an impressive background. She has put her reputation on the line. Although engaged for just 50 days a year, the last few months had been more demanding of her and she had chaired regular meetings which discussed the licensing situation. She had noticed a change of culture in the company over the last few months. I was satisfied that under her Chairmanship, as long as she is kept informed of what is happening day-to-day in the business, that the changes that ULL has put in hand will be maintained.

24. So far as the Decision letter is concerned, there is now an acceptance that ULL misled TfL and the High Court. There is an apology from ULL. In terms of the second issue, the use of Greyball technology, at least one of the relevant employees who knew about this technology has left the company although I note others remain and perhaps of more significance, ULL has created a Compliance Protocol to . Governance which had been a problem has been focussed on with three non-executive directors appointed led by the impressive Ms Powers-Freeling. The leadership of the company has been changed to a limited extent.

25. The final concern in the Decision letter was ULL’s approach to corporate responsibility such as the failure to report criminal allegations made against drivers to the police. In the past ULL considered the privacy of the rider required that he or she report such an allegation to the police. Mr Jones gave evidence that after discussions with the Metropolitan Police and TfL ULL have a new system in place which supports the reporting of serious offences to the police. A scheme by which a medical certificate and an eye test could be administered by post and by telephone was wholly inappropriate and a way of checking for criminal records was criticised.

Matters that have arisen since the Decision

26. A data breach had occurred in 2016 in San Francisco but ULL only informed the regulator in 2017 of this breach. Initially ULL thought it related to the details of one driver but it became apparent later the same day that 2.5 million ULL accounts had been affected. It turned out that the parent company had thought it appropriate to pay the hackets $100,000. Ms Chapman was particularly concerned that the parent company knew about this for some time but had not chosen to tell ULL. She also was not satisfied by the ULL view that it was not going to tell its customers because the data loss was not very sensitive.

27. A second issue that has arisen since the Decision is Ripley. Ripley is a software tool which some Uber companies had used to remotely lock computers when regulators were visiting. Mr Elvidge explained that Ripley was not used in that way in the United Kingdom but he understood Ms Chapman’s concerns.

28. Ms Chapman was also concerned that she found out about some hacking of customer accounts from the BBC. Her concern was that it showed that ULL was still slow to communicate with the regulator.

Changes by ULL since the Decision

29. ULL points out the agreed list of conditions that the parties have set out which will be part of the licence if one is granted. This is evidence it says of its efforts to change its culture, processes and governance.

30. The proposed conditions cover corporate governance and intra-group relationships, they evidence the setting up of a Compliance Protocol which assists with communications between the Uber group and ULL. It allows for an independent assurance procedure, this condition was important to the regulator as it allows not just internal but external monitoring of compliance with its obligations as a licensed operator. ULL is to communicate any relevant changes to TfL. It is not to circumvent any of its obligations as a licensed operator. Data breaches are to be referred to the regulator and reported transparently. ULL will not use any tool to circumvent the regulators. The criminal reporting policy now in place will continue unless the police decide otherwise. ULL will check every year that their reporting policy remains fit for purpose. Every six months ULL will update TfL with information about the effectiveness of its complaints handling process. ULL will assess within 48 hours of receiving a safety related complaint about a driver whether he or she should be suspended and such a decision will be notified to TfL. As regards employees ULL will not employ those who have evaded enforcement. There is also a condition in relation to training for ride sharing.

31. ULL relies on governance changes since the Decision. There is a sub-committee of the Board which looks at licensed operations and compliance and a Licensed Operations Management Committee.

32. There are new non-executive directors on the board who outnumber the executive directors. An earlier director who was partly responsible at least for the 2014 correspondence has been removed from the board.

33. A new Compliance Protocol has been introduced globally so that information affecting ULL’s regulatory position in the United Kingdom will not be kept from it by the parent or any other companies in the group.

34. Ms Powers-Freeling and the other directors have regular meetings with others in the group.

35. The directors are trying to change the corporate culture. The then new Chief Executive of the parent company, Mr Khosrowshahi, met with the TfL’s Commissioner in October 2017 and apologised for ULL and Uber’s behaviour.

36. Ms Chapman raises the important question though, which is whether there is evidence that these changes are embedded in the way ULL conducts itself. Her attitude is perfectly understandable when all this change has happened so fast and much of ULL’s attitude to the regulator has had to be re-calibrated since January this year.

Cross-border hiring – the argument raised by the Licensed Taxi Drivers Association

37. The Association argues that cross-border hiring under the authority of a London PHV Operator’s Licence is unlawful yet it is being carried out by ULL. Mr Gouriet argues that that should be taken into account by this court when considering whether ULL is a fit and proper person within the meaning of the Act. He goes on to say that working in areas where the drivers do not have a local licence (or the trinity of licences) undermines local licensing arrangements and particularly so when the licensed vehicles work in areas where ULL has been refused an operators’ licence. He said the evidence showed that the invitation for bookings was happening outside London. Finally he contends that a condition not to work outside Greater London should be added to the licence.

38. Mr Gouriet’s submissions were short and to the point and they were opposed briefly by ULL and TfL. Mr Chamberlain for TfL said that the legislation requires for a trinity of licences to be granted by the same local authority one for the driver, one for the car and one for the operator. If that is complied with then there is authority which makes it clear that a PHV can send a car out of the controlled district when the journey does not pass through, start or finish in the controlled area. Mr De La Mare argued that there was no booking taking place outside London as the operators were in Aldgate Tower in the City of London. The app on the screen is no different to any other operator’s one and was perfectly lawful. Price surging had nothing to do with the regulatory model. As to imposing a condition that ULL stay in Greater London, Mr de la Mare said it would be ultra vires.

39. I do not find this argument is relevant to the matters I have to decide. I noted that TfL did not consider that what ULL was doing was unlawful and they did not rely on it when coming to their neutral view on whether ULL was a fit and proper person. I find that the legislation and the authorities referred to by Mr Chamberlain on the face of it allow for the PHV driver in a trinity of licences situation to leave or never enter or never cross the controlled district. Mr Chamberlain’s view was that legislation was required. I had some understanding of that view as the present arrangements did not seem to support a local area determining the numbers of PHVs operating in their area. A condition on ULL’s licence and not on other companies’ in the same situation would seem unfair.

40. I have considered the evidence and submissions in the case. I have given particular weight to the conditions that have been agreed between the parties. Taking into account the new governance arrangements, I find that whilst ULL was not a fit and proper person at the time of the Decision Letter and in the months that followed, it has provided evidence to this court that it is now a fit and proper person within the meaning of the Act. I grant a licence to ULL.

41. The length of the licence has been the subject of discussion. The rapid and very recent changes undergone by ULL lead me to conclude that a shorter period would enable TfL to test out the new arrangements. A 15 month licence will enable Ms Chapman and her team to check the results obtained by the independent assurance procedure set out in condition number 4 whilst ensuring the public are kept safe.

42. I grant a licence for a period of 15 months.

43. I order that the costs of Tfl are borne by ULL.

Senior District Judge (Chief Magistrate) Emma Arbuthnot

26th June 2018

2018

******************************************************************************

Plymouth City Council Act 1975

CHAPTER xx

ARRANGEMENT OF SECTIONS

Section

1. Short title.

2. Interpretation.

3. Vehicle, drivers' and operators' licences..

4. Licensing of hackney carriages.

5. Licensing of private hire vehicles.

6. Roof signs on private hire vehicles.

7. Transfer of hackney carriages and private hire vehicles.

8. Provisions as to proprietors.

9. Licensing of drivers of private hire vehicles.

10. Appeals in respect of drivers' licences.

11. Drivers' licences for hackney carriages and private hire

vehicles.

12. Issue of drivers' badges.

13. Licensing of operators of private hire vehicles.

14. Operators of private hire vehicles.

15. Power to require applicants to submit information.

16. Return of identification plate or disc on revocation or

expiry of licence, etc.

17. Qualifications for drivers of hackney carriages.

18. Suspension and revocation of vehicle licences.

19. Suspension and revocation of drivers' licences.

20. Suspension and revocation of operators' licences.

21. Stands for hackney carriages.

22. Prohibition of other vehicles on hackney carriage stands.

23. Fixing of fares for hackney carriages.

24. Fares for long journeys.

25. Hackney carriages used for private hire.

26. Fitness of hackney carriages and private hire vehicles.

27. Prolongation of journeys.

28. Fees for vehicle and operators' licences.

29. Taximeters.

30. Offences due to fault of other person.

31. Offences by bodies corporate.

32. Power of entry.

33. Obstruction of authorised officers.

Section

34. The appointed day.

35. Saving for certain vehicles.

36. Penalties.

37. Appeals.

38. Application of provisions of Act of 1936.

39. Authentication of licences.

40. Repeal of enactments.

41. Protection of members and officers of Council from

personal liability.

SCHEDULE—Repeals.

1975 CHAPTER xx

An Act to confer further powers on the Council of the city of Plymouth in relation to hackney carriages and private hire vehicles; and for other purposes.

[1st August 1975]

HEREAS—

(1) The city of Plymouth (hereinafter referred to as "the city") is under the management and local government of the Council of the city (hereinafter referred to as " the Council"):

(2) It is expedient to make further provision with reference to hackney carriages and private hire vehicles in the city, and that the powers of the Council in relation thereto should be enlarged and extended:

(3) It is expedient that the other provisions contained in this Act should be enacted:

(4) The objects of this Act cannot be attained without the authority of Parliament:

1972 c. 70.

(5) In relation to the promotion of the Bill for this Act the requirements of section 239 of the Local Government Act 1972 have been observed;

May it therefore please Your Majesty that it may be enacted and be it enacted, by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled and by the authority of the same, as follows:—

Short Title

1. This Act may be cited as the Plymouth City Council Act 1975.

Interpretation

2.—(1) In this Act, unless the subject or context otherwise requires—

1847 c. 89.

“the Act of 1847" means the provisions of the Town Police Clauses Act 1847 with respect to hackney carriages;

1915 c. lxix.

"the Act of 1915" means the Plymouth Corporation Act 1915;

1936 c. 49.

" the Act of 1936 " means the Public Health Act 1936;

1972 c.20

" the Act of 1972 " means the Road Traffic Act 1972;

“appointed day" has the meaning assigned to it by section 34 (The appointed day) of this Act;

“authorised officer" means any officer of the Council authorised in writing by the city solicitor and secretary for the purposes of this Act;

" the city " means the city of Plymouth;

“the city solicitor and secretary" means the city solicitor and secretary of the city and includes any person appointed by the Council to discharge temporarily the duties of that officer;

“contravene" includes fail to comply;

“the Council" means the Council of the city;

“daily fine " means a fine for each day during which an offence continues after conviction thereof;

“driver's badge" means, in relation to the driver of a hackney carriage, any badge issued by the Council under bye-laws made under section 68 of the Act of 1847 and, in relation to the driver of a private hire vehicle, any badge issued by the Council under section 12 (Issue of drivers' badges) of this Act;

"driver's licence " means, in relation to the driver of a hackney carriage, a licence under section 46 of the Act of 1847 and, in relation to the driver of a private hire vehicle, a licence under section 9 (Licensing of drivers of private hire vehicles) of this Act;

“hackney carriage" has the same meaning as in the Act of 1847 but does not include a public service vehicle;

“hackney carriage byelaws" means the byelaws for the time being in force in the city relating to hackney carriages;

1952 c. 55

“magistrates’ court" has the same meaning as in the Magistrates' Courts Act 1952;

"operate" means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle;

"operator's licence” means a licence under section 13 (Licensing of operators of private hire vehicles) of this Act;

"private hire vehicle" means a motor vehicle constructed or adapted to seat fewer than eight passengers, other than a hackney carriage or public service vehicle, which is provided for hire with the services of a driver for the purpose of carrying passengers;

“proprietor" includes a part-proprietor and, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, means the person in possession of the vehicle under that agreement;

1960 c.16

"public service vehicle" has the same meaning as in section 117 of the Road Traffic Act 1960;

"street" has the same meaning as in section 343 of the Act of 1936;

"taximeter" means any device, approved for the time being for the purpose by the Council, for calculating the fare to be charged in respect of any journey in a hackney carriage or private hire vehicle by reference to the distance travelled or time elapsed since the start of the journey, or a combination of both; and

"vehicle licence " means in relation to a hackney carriage a licence under sections 37 to 45 of the Act of 1847 and in relation to a private hire vehicle means a licence under section 5 (Licensing of private hire vehicles) of this Act.

(2) Except where the context otherwise requires, any reference in this Act to any enactment shall be construed as a reference to that enactment as applied, extended, amended or varied by, or by virtue of, any subsequent enactment including this Act.

Vehicle, drivers’ and operators’ licences.

3.—(1) As from the appointed day—

(a) no person being the proprietor of any vehicle, not being

a hackney carriage in respect of which a vehicle licence is in force, shall use or permit the same to be used in the city as a private hire vehicle without having for such vehicle a current licence under section 5 (Licensing of private hire vehicles) of this Act;

(b) no person shall in the city act as driver of any private

hire vehicle licensed in pursuance of this Act without having a current licence under section 9 (Licensing of drivers of private hire vehicles) of this Act;

(c) no person being the proprietor of a private hire vehicle

licensed under this Act shall employ as the driver thereof for the purpose of any hiring any person who does not have a current licence under the said section 9;

(d) no person shall in the city operate any vehicle as a

private hire vehicle without having a current licence under section 13 (Licensing of operators of private hire vehicles) of this Act;

(e) no person licensed under the said section 13 shall in the

city operate any vehicle as a private hire vehicle—

(i) in respect of which a current licence under the said section 5 is not in force; or

(ii) the driver of which does not have a current licence under the said section 9.

(2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.

Licensing of hackney carriages.

4.—(1) The Council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the Council may consider reasonably necessary.

(2) Without prejudice to the generality of the foregoing the Council may require any hackney carriage licensed by the Council under the Act of 1847 to be of such make, design or appearance or bear such distinguishing marks as shall clearly identify it as a hackney carriage.

Licensing of private hire vehicles.

5.—(1) Subject to the provisions of this Act, the Council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence:

Provided that the Council shall not grant such a licence unless they are satisfied—

(a) that the vehicle is—

(i) suitable in type, size and design for use as a private hire vehicle;

(ii) not of such make, design and appearance as to lead any person to believe that the vehicle is a hackney carriage;

(iii) in a suitable mechanical condition;

(iv) safe; and

(v) comfortable;

(b) that there is in force in relation to the use of the vehicle

a policy of insurance or such security as complies with the requirements of Part VI of the Act of 1972.

(2) The Council may attach to the grant of a licence under this

section such conditions as the Council may consider reasonably

necessary.

(3) In every vehicle licence granted under this section there shall

be specified—

(a) the name and address of—

(i) the applicant; and

(ii) every other person who is a proprietor of the private hire vehicle in respect of which the licence is granted, or who is concerned, either solely or in partnership with any other person, in the keeping, employing or letting on hire of the private hire vehicle;

(6) the number of the licence which shall correspond with the number to be painted or marked on the plate or disc to be exhibited on the private hire vehicle in accordance with subsection (6) of this section;

(c) the conditions attached to the grant of the licence; and

(d) such other particulars as the Council consider reasonably

necessary.

(4) Every licence granted under this section shall—

(a) be signed by an authorised officer;

(b) relate to not more than one private hire vehicle; and

(c) remain in force for such period not being longer than one

year as the Council may specify in the licence.

(5) Where the Council grant under this section a vehicle licence

in respect of a private hire vehicle they shall issue a plate or disc

identifying that vehicle as a private hire vehicle in respect of which

a vehicle licence has been granted.

(6) (a) Subject to the provisions of this Act, no person shall

use or permit to be used in the city as a private hire vehicle a

vehicle in respect of which a licence has been granted under this

section unless the plate or disc issued in accordance with sub¬

section (5) of this section is exhibited on the vehicle in such manner

as the Council shall prescribe by condition attached to the grant

of the licence.

(b) If any person without reasonable excuse contravenes the

provisions of this subsection he shall be guilty of an offence.

(7) Any person aggrieved by the refusal of the Council to

grant a vehicle licence under this section, or by any conditions

specified in such a licence, may appeal to a magistrates' court.

Roof signs on private hire vehicles.

6.—(1) No operator or proprietor of a private hire vehicle licensed under this Act shall cause or knowingly permit such private hire vehicle to have affixed thereto any roof sign of whatsoever design or nature illuminated or otherwise that would lead the public to suppose that the vehicle was a licensed hackney carriage.

(2) If any person contravenes the provisions of this section he shall be guilty of an offence and liable to a fine not exceeding one hundred pounds and to a daily fine not exceeding ten pounds.

Transfer of hackney carriages and private hire vehicles.

7.—(1) If the proprietor of a hackney carriage or of a private hire vehicle in respect of which a vehicle licence has been granted by the Council proposes to transfer the ownership and possession of the hackney carriage or private hire vehicle to a person other than the proprietor whose name is specified in the licence, he shall within fourteen days after such transfer give notice in writing thereof to the Council specifying the name and address of the person to whom the hackney carriage or private hire vehicle has been transferred.

(2) If a proprietor knowingly or without reasonable excuse fails to give notice to the Council as provided by subsection (1) of this section he shall be guilty of an offence.

Provisions as to proprietors.

8,—(1) Without prejudice to the provisions of section 26 (Fitness of hackney carriages and private hire vehicles) of this Act, the proprietor of any hackney carriage or of any private hire vehicle licensed by the Council shall present such hackney carriage or private hire vehicle for inspection by the Council within such period and at such place within the city as the Council may by notice reasonably require:

Provided that the Council shall not under the provisions of this subsection require a proprietor to present the same hackney carriage or private hire vehicle for inspection on more than four separate occasions during any one period of twelve months.

(2) The proprietor of any hackney carriage or private hire vehicle—

(a) licensed by the Council under the Act of 1847 or under this Act; or

in respect of which an application for a licence has been made to the Council under the Act of 1847 or under this Act; shall, within such period as the Council may by notice reasonably require, state in writing the address of every place where such hackney carriage or private hire vehicle is kept when not in use, and shall if the Council so require afford to the Council such facilities as may be reasonably necessary to enable the Council to cause such hackney carriage or private hire vehicle to be inspected there.

(3) Without prejudice to the provisions of section 25 of the Act of 1972, the proprietor of a hackney carriage or of a private hire vehicle licensed by the Council shall report to the Council as soon as reasonably practicable, and in any case within seventy-two hours of the occurrence thereof, any accident to such hackney carriage or private hire vehicle causing damage materially affecting the safety, performance or appearance of the hackney carriage or private hire vehicle or the comfort or convenience of persons carried therein.

(4) The proprietor of any hackney carriage or of any private hire vehicle licensed by the Council shall at the request of any authorised officer produce for inspection the vehicle licence for such hackney carriage or private hire vehicle and the certificate of the policy of insurance or security required by Part VI of the Act of 1972 in respect of such hackney carriage or private hire

vehicle.

(5) If any person knowingly or without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence.

Licensing of drivers of private hire vehicles.

9.—(1) Subject to the provisions of this Act, the Council shall, on the receipt of an application from any person for the grant to that person of a licence to drive private hire vehicles, grant to that person a driver's licence:

Provided that the Council shall not grant a licence—

(a) unless they are satisfied that the applicant is a fit and proper person to hold a driver's licence; or

(6) to any person who has not for at least twelve months been, and is not at the date of the application for a driver's licence, the holder of a licence granted under Part III of the Act of 1972 (not being a provisional licence) authorising him to drive a motor car.

(2) The Council may attach to the grant of a licence under this section such conditions as the Council may consider reasonably necessary.

Appeals in respect of drivers’ licences

10. Any person aggrieved by—

(1) the refusal of the Council to grant a driver's licence under

section 9 (Licensing of drivers of private hire vehicles) of this Act; or

(2) any conditions attached to the grant of a driver's licence;

may appeal to a magistrates' court.

Drivers’ licences for hackney carriages and private hire vehicles.

11.—(1) (a) Every licence granted by the Council under the provisions of this Act to any person to drive a private hire vehicle shall remain in force for three years from the date of such licence or for such lesser period as the Council may specify in such licence.

1875 c. 55. 1889 c. 14.

(b) Notwithstanding the provisions of the Public Health Act 1875 and the Town Police Clauses Act 1889, every licence granted by the Council under the provisions of the Act of 1847 to any person to drive a hackney carriage shall remain in force for three years from the date of such licence or for such lesser period as the Council may specify in such licence.

(2) Notwithstanding the provisions of the Act of 1847, the Council may demand and recover for the grant to any person of a licence to drive a hackney carriage, or a private hire vehicle, as the case may be, such a fee as the Council consider reasonable with a view to recovering the costs of issue and administration.

(3) The driver of any hackney carriage or of any private hire vehicle licensed by the Council shall at the request of any authorised officer or of any constable produce for inspection his driver's licence.

(4) If any person without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence.

Issue of drivers’ badges.

12.—(1) When granting a driver's licence under section 9 (Licensing of drivers of private hire vehicles) of this Act the Council shall issue a driver's badge in such a form as may from time to time be prescribed by the Council.

(2) (a) A driver shall at all times when acting in accordance with the driver's licence granted to him wear such badge in such position and manner as to be plainly and distinctly visible.

(b) If any person without reasonable excuse contravenes the provisions of this subsection, he shall be guilty of an offence.

Licensing of operators of private hire vehicles.

13.—(1) Subject to the provisions of this Act, the Council shall, on receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles, grant to that person an operator's licence:

Provided that the Council shall not grant a licence unless they are satisfied that the applicant is a fit and proper person to hold an operator's licence.

(2) Every licence granted under this section shall remain in force for such period not being longer than five years as the Council may specify in the licence.

(3) The Council may attach to the grant of a licence under this section such conditions as the Council may consider reasonably necessary.

(4) Any applicant aggrieved by the refusal of the Council to grant an operator's licence under this section, or by any conditions attached to the grant of such a licence, may appeal to a magistrates' court.

Operators of private hire vehicles.

14.—(1) For the purposes of this Act every contract for the hire of a private hire vehicle licensed under this Act shall be deemed to be made with the operator who accepted the booking for that vehicle whether or not he himself provided the vehicle.

(2) Every licensed operator of a private hire vehicle licensed under this Act shall keep a record in such form as the Council may, by condition attached to the grant of the licence, prescribe and shall enter therein, before the commencement of each journey, such particulars of every booking of a private hire vehicle invited or accepted by him, whether by accepting the same from the hirer or by undertaking it at the request of another operator, as the Council may by condition prescribe and shall produce such record on request to any authorised officer or to any constable for inspection.

(3) Every licensed operator of a private hire vehicle licensed under this Act shall keep such records as the Council may, by condition attached to the grant of the licence, prescribe of the particulars of any private hire vehicle operated by him and shall produce the same on request to any authorised officer or to any constable for inspection.

(4) The licensed operator of any private hire vehicle licensed under this Act shall produce his operator's licence on request to any authorised officer or any constable for inspection.

(5) If any person without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence.

Power to require applicants to submit information.

15.—(1) The Council may require any applicant for a licence under the Act of'1847 or under this Act to submit to the Council such information as they may reasonably consider necessary to enable them to determine whether the licence should be granted and whether conditions should be attached to any such licence.

(2) Without prejudice to the generality of the foregoing—

(a) the Council may require an applicant for a driver's

licence in respect of a hackney carriage or a private hire vehicle—

(i) to produce a certificate signed by a registered medical practitioner to the effect that he is physically fit to be the driver of a hackney carriage or a private hire vehicle; and

(ii) whether or not such a certificate has been produced, to submit to examination by a registered medical practitioner selected by the Council as to his physical fitness to be the driver of a hackney carriage or a private hire vehicle;

(b) the Council may require an applicant for an operator's

licence to submit to the Council such information as to—

(i) the name and address of the applicant;

(ii) the address or addresses whether within the city or not from which he intends to carry on business in connection with private hire vehicles licensed under this Act;

(iii) any trade or business activities he has carried on before making the application;

(iv) any previous application he has made for an operator's licence;

(v) the revocation or suspension of any operator's licence previously held by him;

(vi) any convictions recorded against the applicant;

as they may reasonably consider necessary to enable them to determine whether to grant such licence;

(c) in addition to the information specified in paragraph (6)

of this subsection, the Council may require an applicant for an operator's licence to submit to the Council—

(i) if the applicant is or has been a director or secretary of a company, information as to any con¬victions recorded against that company at any relevant time; any trade or business activities carried on by that company; any previous application made by that company for an operator's licence; and any revocation or suspension of an operator's licence previously held by that company;

(ii) if the applicant is a company, information as to any convictions recorded against a director or secretary of that company; any trade or business activities carried on by any such director or secretary; any previous application made by any such director or secretary for an operator's licence; and any revocation or suspension of an operator's licence previously held by such director or secretary;

'(iii) if the applicant proposes to operate the vehicle in partnership with any other person, information as to any convictions recorded against that person; any trade or business activities carried on by that person; any previous application made by that person

•for an operator's licence; and any revocation or

• suspension of an operator's licence previously held by him.

(3) If any person knowingly or recklessly makes a false state¬ment or omits any material particular in giving information under this section, he shall be guilty of an offence.

Return of identification plate or disc on revocation or expiry of licence, etc.

16.—(1) On—

(a) the revocation or expiry of a vehicle licence in relation to a hackney carriage or private hire vehicle; or

(b) the suspension of a licence under section 26 (Fitness of hackney carriages and private hire vehicles) of this Act;

the Council may by notice require the proprietor of that hackney carriage or private hire vehicle licensed by the Council to return to the Council within seven days after the service on him of that notice the plate or disc identifying that hackney carriage or private hire vehicle and required to be displayed by the Act of 1847 or by this Act.

(2) If any proprietor fails without reasonable excuse to comply with the terms of a notice under subsection (1) of this section—

(a) he shall be guilty of an offence and liable to a fine not exceeding one hundred pounds and to a daily fine not exceeding ten pounds; and

(b) any authorised officer or constable shall be entitled to remove and retain the said plate or disc from the said hackney carriage or private hire vehicle.

Qualifications for drivers of hackney carriages.

17.—(1) Notwithstanding anything in the Act of 1847 the Council shall not grant a licence to drive a hackney carriage—

(a) unless they are satisfied that the applicant is a fit and proper person to hold a driver's licence; or

(b) to any person who has not for at least twelve months been, and is not at the date of the application for a driver's licence, the holder of a licence granted under Part III of the Act of 1972 (not being a provisional licence) authorising him to drive a motor car.

(2) Any applicant aggrieved by the refusal of the Council to grant a driver's licence on the ground that-he is not a fit and proper person to hold such licence may appeal to a magistrates' court.

Suspension and revocation of vehicle licences.

18.—(1) Notwithstanding anything in the Act of 1847 or in this Act, the Council may suspend or revoke, or (on application therefor under section 40 of the Act of 1847 or section 5 (Licensing of private hire vehicles) of this Act, as the case may be) refuse to renew a vehicle licence on any of the following grounds:—

(a) that the hackney carriage or private hire vehicle is unfit for use as a hackney carriage or private hire vehicle;

(b) any offence under, or non-compliance with, the provisions of the Act of 1847 or of this Act by the operator or driver; or

(c) any other reasonable cause.

(2) Where the Council suspend, revoke or refuse to renew any licence under this section they shall give to the proprietor of the vehicle notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew such licence within fourteen days of such suspension, revocation or refusal.

(3) Any proprietor aggrieved by a decision of the Council under this section may appeal to a magistrates' court.

Suspension and revocation of drivers’ licences.

19.—(1) Notwithstanding anything in the Act of 1847 or in this Act, the Council may suspend or revoke, or (on application therefor under section 46 of the Act of 1847 or section 9 (Licensing of drivers of private hire vehicles) of this Act, as the case may be) refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on any of the following grounds:—

(a) that he has since the grant of the licence—

(i) been convicted of an offence involving dishonesty, indecency or violence; or

(ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Act; or

(b) any other reasonable cause.

(2) (a) Where the Council suspend, revoke or refuse to renew any licence under this section they shall give to the driver notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew such licence within fourteen days of such suspension, revocation or refusal and the driver shall on demand return to the Council the driver's badge issued to him in accordance with section 12 (Issue of drivers' badges) of this Act.

(b) If any person without reasonable excuse contravenes the provisions of this section he shall be guilty of an offence and liable to a fine not exceeding twenty pounds.

(3) Any driver aggrieved by a decision of the Council under this section may appeal to a magistrates' court.

Suspension and revocation of operators licences.

20.—(1) Notwithstanding anything in this Act the Council may suspend or revoke, or (on application therefor under section 13 (Licensing of operators of private hire vehicles) of this Act) refuse to renew, an operator's licence on any of the following grounds:—

(a) any offence under, or non-compliance with, the pro-

visions of this Act;

(b) any conduct on the part of the operator which appears

to the Council to render him unfit to hold an operator's licence;

(c) any material change since the licence was granted in any

of the circumstances of the operator on the basis of which the licence was granted; or

(d) any other reasonable cause.

(2) Where the Council suspend, revoke or refuse to renew any licence under this section they shall give to the operator notice of the grounds on which the licence has been suspended or revoked or on which they have refused to renew such licence within fourteen days of such suspension, revocation or refusal.

(3) Any operator aggrieved by a decision of the Council under this section may appeal to a magistrates' court.

Stands for hackney carriages.

21.—(1) For the purposes of their functions under the Act of 1847, the Council may from time to time appoint stands for hackney carriages for the whole or any part of a day in any' street in the city and, with the consent of the owner, on any land not forming part of a street and may from time to time vary the number of hackney carriages permitted to be at each stand.

(2) Before appointing any stand for hackney carriages or varying the number of hackney carriages to be at each stand in exercise of the powers of this section, the Council shall give notice to the chief officer of police for the city and shall also give public notice of the proposal by advertisement in at least one local newspaper circulating in the city and shall take into consideration any objections or representations in respect of such proposal which may be made to them in writing within twenty-eight days of the first publication of such notice.

(3) Nothing in this section shall empower the Council to

appoint any such stand—

(a) so as unreasonably to prevent access to any premises;

1960 c. 16. 1968 c. 73.

(b) so as to impede the use of any points authorised to be used in connection with a road service licence granted under section 134 of the Road Traffic Act I960, or permit granted under section 30 of the Transport Act 1968, as points for the taking up or setting Hown of passengers, or in such a position as to interfere unreasonably with access to any station or depot of any passenger road transport operators, except with the consent of those operators;

(c) on any highway except with the consent of the highway authority;

(d) in any station, station yard or approach of the British Railways Board except with the consent of that board;

(e) on any property of the British Transport Docks Board except with the consent of that board; or

(/) on any part of the estate of The Sutton Harbour Improvement Company except with the consent of that company;

and in deciding the position of stands the Council shall have regard to the position of any bus stops for the time being in use.

(4) Any hackney carriage byelaws made by the Council before the passing of this Act for fixing stands for hackney carriages shall cease to have effect, but any stands fixed by such byelaws or under section 179 of the Act of 1915 shall be deemed to have been appointed under this section.

(5) The power to appoint stands for hackney carriages under subsection (1) of this section shall include power to revoke such appointment and to alter any stand so appointed and the expressions " appointing " and " appoint " in subsections (2) and (3) of this section shall be construed accordingly.

Prohibition of other vehicles on hackney carriage stands.

22.—(1) No person shall cause or permit any vehicle other than a hackney carriage to wait on any stand for hackney carriages during any period for which that stand has been appointed, or is deemed to have been appointed, by the Council under the provisions of section 21 (Stands for hackney carriages) of this Act.

1967 c. 76.

(2) Notice of the prohibition in this section shall be indicated by such traffic signs as may be authorised for the purpose by the Secretary of State in pursuance of his powers under sections 54 and 55 of the Road Traffic Regulation Act 1967.

(3) If any person without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence.

(4) In any proceedings under this section against the driver of a public service vehicle it shall be a defence to show that, by reason of obstruction to traffic or for other compelling reason, he caused his vehicle to wait on a stand or part thereof and that he caused or permitted his vehicle so to wait only for so long as was reasonably necessary for the taking up or setting down of passengers.

Fixing of fares for hackney carriages.

23.—(1) The Council may fix the rates or fares within the city as well for time as distance, and all other charges in connection with the hire of a vehicle or with arrangements for the hire of a vehicle, to be paid in respect of the hire of hackney carriages by means of a table (hereafter in this section referred to as a " table of fares ") made or varied in accordance with the provisions of this section.

(2) (a) When the Council make or vary a table of fares they shall publish in at least one local newspaper circulating in the city a notice setting out the table of fares or the variation thereof and specifying the period, which shall not be less than fourteen days from the date of the first publication of the notice, within which and the manner in which objections to the table of fares or variation can be made.

(b) A copy of the notice referred to in paragraph (a) of this subsection shall for the period of fourteen days from the date of the first publication thereof be deposited at the office of the city solicitor and secretary and shall at all reasonable hours be open to public inspection without payment.

(3) If no objection to a table of fares or variation is duly made within the period specified in the notice referred to in subsection (2) of this section, or if all objections so made are withdrawn, the table of fares or variation shall come into operation on the date of the expiration of the period specified in the notice or the date of withdrawal of the objection or, if more than one, of the last

objection, whichever date is the later.

(4) If objection is duly made as aforesaid and is not withdrawn, the Council shall set a further date, not later than two months after the first specified date, on which the table of fares shall come into force with or without modification as decided by the Council after consideration of the objections.

(5) A table of fares made or varied under this section shall have effect for the purposes of the Act of 1847 as if it were included in hackney carriage byelaws made thereunder.

(6) On the coming into operation of a table of fares-or variation under this section, any hackney carriage byelaws fixing the rates and fares or any table of fares previously made under this section, as the case may be, shall cease to have effect.

1972 c. 70.

(7) Section 238 of the Local Government Act 1972 (except paragraphs (c) and (d) of that section) shall extend and apply to a table of fares made or varied under this section as it applies to byelaws made by the Council.

Fares for long journeys.

24.—(1) No person, being the driver of a hackney carriage licensed by the Council, and undertaking for any hirer a journey ending outside the city and in respect of which no fare was agreed before the hiring was effected, shall require for such journey a fare greater than that indicated on the taximeter with which the hackney carriage is equipped.

(2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.

Hackney carriages used for private hire.

25.—(1) No hackney carriage shall be used under a contract or purported contract for private hire except at the same rate of fares or charges as may be prescribed from time to time in a table of fares made or varied by the Council under section 23 (Fixing of fares for hackney carriages) of this Act, and, when any such hackney carriage is so used, the fare or charge shall be calculated from the point at which the hirer commences his journey.

(2) Any person who knowingly contravenes this section shall be guilty of an offence.

Fitness of hackney carriages and private hire vehicles.

26. Any authorised officer or any constable shall have power at all reasonable times to inspect, for the purpose of ascertaining its fitness, any hackney carriage or private hire vehicle, licensed by the Council, or any taximeter affixed to such a vehicle, and if he is not satisfied as to the fitness of the hackney carriage or private hire vehicle or as to the accuracy of its taximeter he may by notice in writing require the proprietor of the hackney carriage or private hire vehicle to make it or its taximeter available for further inspection at such reasonable time and place as may be specified in the notice and suspend the vehicle licence until such time as such authorised officer or constable is so satisfied:

Provided that, if the authorised officer or constable is not so satisfied before the expiration of a period of two months, the said licence shall, by virtue of this section, be deemed to have been revoked and subsections (2) and (3) of section 18 (Suspension and revocation of vehicle licences) of this Act shall apply with any necessary modifications.

Prolongation of journeys.

27.—(1) No person being the driver of a hackney carriage or of a private hire vehicle licensed by the Council shall without reasonable cause unnecessarily prolong, in distance or in time, the journey for which the hackney carriage or private hire vehicle has been hired.

(2) If any person contravenes the provisions of this section, he shall be guilty of an offence.

Fees for vehicle and operators’ licences.

28.—(1) Subject to the provisions of subsection (2) of this section, the Council may charge such fees for the grant of vehicle and operators' licences as may be resolved by the Council from time to time and as may be sufficient in the aggregate to cover in whole or in part—

(a) the reasonable cost of the carrying out by or on behalf of the Council of inspections of hackney carriages and private hire vehicles for the purpose of determining whether any such licence should be granted or renewed;

(b) the reasonable cost of providing hackney carriage stands;

and

(c) any reasonable administrative or other costs in connection

with the foregoing and with the control and supervision of hackney carriages and private hire vehicles.

(2) The fees chargeable under this section shall not exceed—

(a) for the grant of a vehicle licence in respect of a hackney

carriage, twenty-five pounds;

(b) for the grant of a vehicle licence in respect of a private

hire vehicle, twenty-five pounds; and

(c) for the grant of an operator's licence, twenty-five pounds

per annum;

or, in any such case, such other sum as the Council may, subject to the following provisions of this section, from time to time determine.

(3) (a) If the Council determine that the maximum fees specified in subsection (2) of this section should be varied they shall publish in at least one local newspaper circulating in the city a notice setting out the variation proposed and specifying the period, which shall not be less than fourteen days from the date of the first publication of the notice, within which and the manner

in which objections to the variation can be made.

(b) A copy of the notice referred to in paragraph (a) of this subsection shall for the period of fourteen days from the date of the first publication thereof be deposited at the office of the city solicitor and secretary and shall at all reasonable hours be open to public inspection without payment.

(4) If no objection to a variation is duly made within the period specified in the notice referred to in subsection (3) of this section, or if all objections so made are withdrawn, the variation shall come into operation on the date of the expiration of the period specified in the notice or the date of withdrawal of the objection or, if more than one, of the last objection, whichever date is the later.

(5) If objection is duly made as aforesaid and is not withdrawn, the Council shall set a further date, not later than two months after the first specified date, on which the variation shall come into force with or without modification as decided by the Council after consideration of the objections.

Taximeters.

29.—(1) As from the appointed day, no private hire vehicle equipped with any form of taximeter shall be used for hire in the city unless such taximeter has been tested and approved by or on behalf of the Council.

(2) Any person who without lawful excuse—

(a) tampers with any seal on any taximeter; or

(b) alters any taximeter with intent to mislead;

shall be guilty of an offence.

Offences due to fault of other person.

30. Where an offence by any person under this Act is due to the act or default of another person, then, whether proceedings are taken against the first-mentioned person or not, that other person may be charged with and convicted of that offence, and shall be liable on conviction to the same punishment as might have been imposed on the first-mentioned person if he had been convicted of the offence.

Offences by bodies corporate.

31.—(1) Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members the provisions of subsection (1) of this section shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Power of entry.

32.—(1) Any authorised officer or any constable may, after giving not less than forty-eight hours' notice to the owner or occupier of any premises and on production of his authority if required, enter the premises at any time between the hours of nine in the forenoon and six in the afternoon for the purpose of any inspection necessary for enforcing and carrying into effect any of the provisions of this Act.

(2) Any authorised officer or any constable to whom admission is refused may apply to a justice after giving to the owner or occupier of the premises reasonable notice of his intention to make the application, and the justice may by order under his hand require that person to admit the authorised officer or constable into the premises during the hours aforesaid.

(3) If the owner or occupier of the premises cannot be found the justice shall, on oath made before him of that fact, by order under his hand authorise any authorised officer or any constable to enter the premises during the hours aforesaid.

(4) Any such order made by a justice shall continue in force until the purposes for which admittance was required have been fulfilled or executed.

(5) Any person who refuses to obey an order of a justice under this section shall be guilty of an offence.

Obstruction of authorised officers.

33.—(1) Any person who—

(a) wilfully obstructs an authorised officer or constable acting in pursuance of this Act or the Act of 1847; or

(b) without reasonable excuse fails to comply with any requirement properly made to him by such officer or constable under this Act; or

(c) without reasonable cause fails to give such an officer or constable so acting any other assistance or information which he may reasonably require of such person for the purpose of the performance of his functions under this Act or the Act of 1847; shall be guilty of an offence.

(2) If any person, in giving any such information as is mentioned in the preceding subsection, makes any statement which he knows to be false, he shall be guilty of an offence.

The appointed day.

34.—(1) In this Act “appointed day” means such day as may' be fixed by resolution of the Council subject to and in accordance with the provisions of this section.

(2) Different days may be fixed under this section for the

purpose of different provisions of this Act.

(3) The Council shall cause to be published in a local news¬

paper circulating in the city notice—

(a) of the passing of any such resolution and of the day

fixed thereby; and

(b) of the general effect of the provisions of this Act coming

into operation as from that day;

and the day so fixed shall not be earlier than the expiration of one month from the date of publication of the said notice.

(4) Either—

(a) a copy of any such newspaper containing any such notice;

or

(b) a photostatic or other reproduction certified by the city

solicitor and secretary to be a true reproduction of a page, or part of a page, of any such newspaper bearing the date of its publication and containing any such notice;

shall be evidence of the publication of the notice and of the date of the publication.

(5) Where any provision of this Act coming into operation on a day fixed by resolution under this section requires the licensing of a person carrying on any business, or of any vehicle used by a person in connection with any business, it shall be lawful for any person who—

(a) immediately before that day was carrying on that

business; and

(b) had before that day duly applied for the licence required

by that provision;

to continue to carry on that business until he is informed of the decision with regard to his application and, if the decision is adverse, during such further time as is provided under section 37 (Appeals) of this Act.

Saving for certain vehicles.

35. Nothing in this Act shall—

(1) apply to a vehicle used for bringing passengers or goods within the city in pursuance of a contract for the hire of the vehicle made outside the city if the vehicle is not made available for hire within the city;

(2) apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of such vehicle by the week or for longer periods of hire;

(3) apply to a vehicle of a funeral director used wholly or mainly for the purpose of funerals;

(4) require the display of any plate, disc or notice in or on

any private hire vehicle licensed by the Council under this Act during such period that such vehicle is used for carrying passengers for hire or reward—•

(a) in connection with the business of a funeral director or owner of funeral vehicles if notice that it is so used has been given by the proprietor to the Council; or

(b) to, from or in connection with any wedding ceremony; or

(c) under a contract for the hire of such vehicle by the day or for longer periods of hire.

Penalties.

36. Any person who commits an offence against any of the provisions of this Act in respect of which no penalty is expressly provided shall be liable on summary conviction to a fine not exceeding one hundred pounds.

Appeals.

37.—(1) Sections 300 to 302 of the Act of 1936, which relate to appeals, shall have effect as if this Act were part of that Act.

(2) If any requirement, refusal or other decision of the Council against which a right of appeal is conferred by this Act—

(a) involves the execution of any work or the taking of any

action; or

(b) makes it unlawful for any person to carry on a business

which he was lawfully carrying on up to the time of the requirement, refusal or decision;

then, until the time for appealing has expired, or, when an appeal is lodged, until the appeal is disposed of or withdrawn or fails for want of prosecution—

(i) no proceedings shall be taken in respect of any failure to execute the work, or take the action; and

(ii) that person may carry on that business.

Application of provisions of Act of 1936.

38. Subsection (1) of section 283 and sections 286, 304 and 328 of the Act of 1936 shall have effect as if references therein to that Act included a reference to this Act.

Authentication of licences.

39. Notwithstanding anything in section 43 of the Act of 1847, any vehicle licence or driver's licence granted by the Council under that Act, or any licence granted by the Council under this Act, shall not be required to be under the common seal of the Council, but if not so sealed shall be signed by the city solicitor and secretary or by an authorised officer.

Repeal of enactments.

40. The enactments specified in the Schedule to this Act are hereby repealed to the extent mentioned in the third column of that schedule.

Protection of members and officers of| Council from personal liability.

1875 c. 55.

41. Section 265 of the Public Health Act 1875 shall apply to the Council as if any reference in that section to the said Act of 1875 included a reference to this Act and as if any reference in that section to a member of a local authority included a reference to a member of a committee of a local authority.

SCHEDULE

Repeals

Chapter Short Title Extent of Repeal

5 & 6 Geo. 5 c. lxix

13 & 14 Geo. 5 c. lxxvii The Plymouth Corporation Act 1915

The Plymouth Corporation Act 1923 Section 178 (Prescribed distance for hackney carriages

Section 179 (Corporation may appoint stands and number of carriages at each)

Section 140 (Inspection and certification of taximeters)

Section 141 (As to hackney carriages)

2018

****************************************************************************

Wednesday, 20 February 2013 11:14

Southampton City Council has lost its landmark appeal against an enforcement notice issued by the Information Commissioner over its policy of requiring continuous audio-recording in all licensed taxis.

The council’s licensing committee had adopted a policy in 2009 requiring all taxis and private hire vehicles to install CCTV equipment. This followed a number of serious violent and sexual offences taking place in or around taxis and was a bid to protect vulnerable users of taxis. A voluntary scheme had previously failed.

The ICO served the notice on Southampton in July 2012, ordering it to stop the mandatory recording. It was the authority's requirement for continuous audio-recording to which the watchdog objected, not the requirement for continuous video-recording. The council appealed.

The First-Tier Tribunal (Information Rights) heard the appeal – the first ever surveillance case under the Data Protection Act – on 30 and 31 January this year.

In its ruling, the FTT said it was clear that the Commissioner had power under s. 40(1) to issue an enforcement notice against the council if he was satisfied that the audio-recording involved the contravention of a data protection principle. The primary issue was whether he was right in his conclusion that this was so.

In deciding whether to exercise the power to issue an enforcement notice, the Commissioner was also obliged to consider under s. 40(2) whether ‘the contravention has caused or is likely to cause any person damage or distress’.

Although accepting that a finding to this effect was not a pre-condition to issuing an enforcement notice, Southampton argued before the tribunal that the IC approached s. 40(2) in a fundamentally flawed way. The council also argued that even if he was right to conclude that the council was contravening the first data protection principle, he ought not, as a matter of discretion, to have issued an enforcement notice.

The parties agreed that the essential question on contravention was whether Article 8 of the European Convention on Human Rights (the right to privacy) was infringed by Southampton’s policy, and whether the policy was justified as a proportionate means of achieving a legitimate aim.

In summary, the specific issues in the appeal were:

1. Whether the words recorded under the council’s policy included “sensitive personal data”;

2. Whether the council’s policy infringed Article 8 of the ECHR;

3. Whether the Commissioner was right to exercise his discretion to issue an enforcement notice.

Ruling unanimously in the Information Commissioner’s favour, the tribunal concluded in particular that the council’s policy “in so far as it requires continuous blanket audio-recording of everything said in taxis, is disproportionate when the extent of the interference with the right of privacy is weighed against the marginal benefits to the legitimate social aims of increasing public safety and reducing crime in relation to taxis which are likely to result from it”.

The tribunal added: "It follows from that conclusion that the policy is not justified under Art 8(2) and accordingly that it contravenes the first data protection principle.”

However, it also said it was impressed by the police evidence in the case. The tribunal appreciated the nature of the problem and the special vulnerability of some taxi passengers.

“It may be that…there is scope for a more targeted scheme involving audio-recording based on times of day, types of customer (for example, children or vulnerable adults carried under contract between a taxi firm and the council), the use of panic buttons or a combination thereof, which strikes a better balance between the competing considerations and does not contravene the Data Protection and Human Rights Acts,” the tribunal said.

Welcoming the ruling, a spokesman for the ICO said it understood that councils must take measures to keep the public safe and that the use of CCTV in taxis could play an important role in keeping passengers and drivers secure.

"However the continuous recording of people’s conversations 24 hours a day, including when the taxi is not in use, clearly goes too far and is disproportionate to the problem it is trying to address," he said.

“We are glad that the tribunal dismissed the appeal made against our original enforcement action by Southampton City Council and hope that any other councils considering the mandatory introduction of similar schemes take note of this legal judgment."

The spokesman added that the ICO was happy to support and advise councils who were "trying to get the balance right between keeping the public safe and respecting their rights to privacy" and urged them to read its CCTV Code of Practice.

Cllr Jacqui Rayment, Deputy Leader and Community Safety lead for Southampton, said: “The decision is disappointing in that the Information Rights Tribunal has found that continuous audio recording as part of taxi camera systems is inappropriate. This is a decision rooted in the complex provisions of information law; it is the first case of its type in the UK and is of national significance in the fight by local authorities and the police to help prevent crime and disorder.”

She pointed out that the tribunal was clear that there was no objection to taxi cameras recording video, and had accepted that cameras did help in deterring crime and assist in the investigation of offences.

Cllr Rayment said: “The tribunal and the Information Commission accept that an unspecified triggered or ‘panic button’ system for audio recordings would be acceptable, although it has not been made clear how this would work in practical terms.”

She added: “The tribunal’s judgment is lengthy and complex; the council will consider it carefully and seek advice before deciding what changes to its policies are required and what the effect of those changes will be on taxis and private hire vehicles, and their passengers, in the city. In the meantime the policy requiring cameras to be fitted on new vehicles will be suspended until the matter is reconsidered by the licensing committee”.

It emerged during the hearing that since the licensing condition was introduced, the police had asked the council for access to audio-visual recordings made in taxis on 193 occasions, of which a chief superintendent had been able to review 164 where it had been possible to get access to a relevant recording.

Of these the vast majority involved criminal allegations against drivers or passengers, including racially aggravated and sexual assaults. The largest group involved allegations of making off without payment. A substantial number of requests did, however, involve serious criminal offences, but did not directly involve taxis - the police simply seeking evidence that might assist their enquiries.

In relation to the three key issues, the tribunal’s findings included:

Sensitive personal data

It was “quite satisfied that the inhabitants of (and visitors to) Southampton will from time to time discuss their own and others’ sex lives, health, politics, religious beliefs and so on in taxis (notwithstanding the presence of the taxi driver) and, if necessary, we take judicial notice of that fact".

There must be numerous conversations in taxis of a sensitive nature which do not necessarily come within the strict definition of ‘sensitive personal data’.

A suggestion by Southampton’s QC that it was open to taxi users, having been informed by the label in the taxi that conversations were being recorded, not to discuss sensitive matters they did not want to be recorded was unrealistic. “We not see any reason why anyone should be forced to modify their normal behaviour in such a way, by being forced to treat what is now (at least) a semi-private space as a public one, not least the taxi-driver driving his taxi to a holiday destination with his family”.

It noted a point by the IC’s barrister that if the council’s policy resulted in people ‘self-censoring’ their conversations, that would prima facie involve a contravention of Article 10 of the ECHR (guaranteeing freedom of speech).

Infringement of Article 8

The Commissioner accepted that the policy served a legitimate aim and that there was a pressing social need for some surveillance in taxis. The real issue was whether Southampton’s policy of continuous audio-recording was ‘proportionate’.

The question whether the policy was “proportionate” was ultimately one of judgment for the tribunal, balancing the benefits to the legitimate social aims it was likely to achieve against the extent of the interference with the right of privacy likely to be caused.

In striking this balance it was “important to note two things: (a) the “legitimate aim” of the policy is that of deterring and detecting taxi-related crime and other misconduct; the fact... that the police have been able to obtain useful evidence about crimes not directly related to taxis cannot therefore come into the balance as a benefit; (b) the relevant benefits and disbenefits are only those marginal ones that come from audio-recording; no-one is complaining about the existence of CCTV in taxis as such or about video-recording.”

As the council pointed out “forcefully”, there were special features of taxis which made those who use them particularly vulnerable to crime. These include the fact that: passengers and drivers were generally strangers to one another; passengers might be children, have disabilities or be intoxicated; or the driver faced the risk of passengers making off without payment.

The tribunal accepted that the existence of CCTV in taxis tends to deter crime and assists in its investigation when it does occur. It also accepted that it assists the council in relation to its function of licensing only suitable taxi drivers.

The extent of any deterrence, and in particular the extent of any additional deterrence arising from audio-recording was unlikely to be susceptible to proof. An attempt by the council’s licensing manager in his written statement to enlist statistical evidence was unsuccessful. However, the tribunal did accept there must be some form of additional deterrent effect from having continuous audio-recording in taxis.

In some cases the existence of audio-recording in addition to video-recording had made a real difference. “The clearest were a few cases where drivers had alleged that passengers were guilty of racially aggravated assaults or racial abuse where, obviously, the existence of audio-recording was crucial." There were also allegations of sexual assault where the video recording did not show what was going on out of view of the camera but an audio-recording would help.

The benefit comes form the ability not only to prove true allegations but also to disprove false allegations. It was also “right to recognise that while few of the examples raised involved really serious crime, it may be that one day there is a rape or a murder associated with a taxi which would have been successfully prosecuted if there was audio-recording but not if there was only video-recording”.

The Commissioner had proposed a ‘panic button’ system allowing the driver or passenger to activate audio-recording. However, the Commissioner had not fully met the council’s criticisms of such a system. The tribunal accepted that a panic button system would not be as effective as continuous audio-recording, would require vulnerable or incapacitated passengers to make use of it and would miss the initial and perhaps most important part of an incident. However, such a system would have some (“albeit limited”) additional benefits.

In terms of interference with privacy rights, “every single conversation, however private and however sensitive the subject matter, taking place during every single taxi ride in Southampton (of which there may well be a million a year) will be recorded and accessible to a public authority”.

The tribunal accepted as highly relevant considerations aspects of the policy that Southampton’s QC argued meant there was only a slight interference with privacy rights: the data was only retained for a short time (14 to 30 days) unless it was accessed for good reason; access to the data was confined to a few individuals; and access was strictly controlled. The evidence was that the data had only been accessed on about 200 occasions in three years. It was not in any sense continuously monitored.

However, the tribunal said these points were weakened by a number of factors: for example, Southampton’s policy, in so far as it relates to audio-recording, was not very fully consulted on or well thought through. “Rather it appears to have been driven by technological developments”. The retention period was simply a function of the capability of the systems.

There was also evidence of so-called ‘function creep’. “The use of the system by the police to gather evidence about crimes not directly related to taxis, however beneficial in itself, was not (or should not have been) part of any policy devised by the council arising from its taxi licensing function.”

It had to be accepted that however robust the systems in place and however well-intentioned and conscientious the licensing manager was – “and he made a generally good impression on us” – there must always be a danger that a taxi driver or a council official or someone else will access and make improper use of the data.

The tribunal wondered whether full consideration had been given to the interests of data subjects other than the requester who submitted a data access request. It noted that once in the hands of the requester, “notwithstanding the council’s standard letter warning him that to publish will involve a breach of the council’s copyright, there is little that anyone can do in practice to control the use of such data (and these days they can be instantly broadcast to the whole world through sites like YouTube)”.

Exercises by both the council and the IC to demonstrate public support for their respective positions were not sufficiently focused on audio-recording to have an influence on the tribunal’s decision. No weight could be attached to complaints from taxi drivers (as cited by the Commissioner) without knowing more about their motivation.

Some weight was given to the views expressed by the Commissioner in his 2008 Code of Practice on CCTV in which he said there were only limited circumstances in which audio recording might be justified, subject to sufficient safeguards that might include where recording is triggered due to a specific threat, "e.g. a panic button in a taxi cab".

Having regard to these considerations, the council’s policy in so far as it required continuous blanket audio-recording of everything said in taxis, was disproportionate when the extent of the interference with the right of privacy was weighed against the marginal benefits to the legitimate social aims of increasing public safety and reducing crime in relation to taxis which were likely to result from it. It followed from that conclusion that the policy was not justified under Art 8(2) and accordingly that it contravened the first data protection principle.

The tribunal wished to record that it was impressed by the police evidence in this case. It also appreciated the nature of the problem and the special vulnerability of some taxi passengers. “It may be that…there is scope for a more targeted scheme involving audio-recording based on times of day, types of customer (for example, children or vulnerable adults carried under contract between a taxi firm and the council), the use of panic buttons or a combination thereof, which strikes a better balance between the competing considerations and does not contravene the Data Protection and Human Rights Acts.”

The exercise of the discretion by the Commissioner

The tribunal was inclined to agree with the council’s QC that the Commissioner did not apply a sufficiently stringent test of likelihood of damage or distress.

However, it did not think that it needed to consider that matter further "for the simple reason that, having concluded that the council were acting in breach of the Data Protection Act and having regard to the high level of public importance of the case, we think it must have been right in this case to decide to issue an enforcement notice, regardless of the likelihood of any actual damage or distress resulting from the policy".

Anya Proops of 11KBW represented the Information Commissioner. Timothy Pitt-Payne QC, also of 11KBW, was counsel for Southampton.

Philip Hoult

***********************************************************************

The law on guide dogs may surprise you

After an Uber driver drove off and left a Liverpool woman and her guide dog stranded - we’ve taken a look at what the law says about where guide dogs are allowed.

For many blind people, having the support of an assistance dog gives them back their independance - but charity Guide Dogs UK says that three in every four guide dog owners say they have been refused access to taxis, hotels and even GP practices in the past twelve months.

Despite the efforts of assistance dog charities - owners of these animals are still frequently refused access, with taxi refusals the most common.

So far this year, Guide Dogs Liverpool has dealt with 31 access refusals from across Merseyside- with 18 of these from taxis or private hire vehicles.

What does the law say?

Despite the frequency of access refusals - the law on where you can and can’t bring a guide dog is actually crystal clear.

Under the Equality Act, guide dog and other assistance dog owners should legally be allowed access to business and premises.

There is also a special section in the law for taxis and private hire vehicles - which means that the driver must carry the disabled person’s dog and allow it to remain with that person.

The law also bans anyone from charging extra for allowing the guide dog into their vehicle.

What is the punishment for breaking the law?

Currently, if a taxi driver doesn’t follow these two rules they are breaking the law and can be fined up to £1000.

As well as financial fines, anyone with a private hire license that refuses a service animal also risks having the private hire license revoked.

Uber is particularly stringent about assistance dogs - and their guidelines state that any driver found to have refused a guide dog will permanently lose access to Uber, even if their council does not revoke their license.

What does Uber say about the rules?

A spokesperson for Uber said: “Licensed private-hire drivers must carry service animals in their vehicle and we remind all drivers of this legal obligation before they start using the Uber app. Any driver who is found to have refused to take a service animal will permanently lose access to the Uber app and risks having their private hire licence taken away.”

What do Guide Dogs UK say about access?

Lynette Proctor, engagement officer for Guide Dogs Liverpool Mobility team says that dealing with access refusals is a large portion of her job.

She said: “Guide Dogs UK is currently running a campaign so that assistance dog owners can access taxis, shops and restaurants without being refused entry, in line with their legal rights.

“Ignorance of the law seems to play a big part in business owners and staff turning away assistance dog owners. Of the reasons given for a refusal, the most commonly reported problem in the survey, was that the dog is unwelcome because food was being served (27 per cent), followed by dislike of dogs by them or their customers (25 per cent)."

“Since the law is very clear that neither of these are valid reasons for refusing service to an assistance dog owner, it suggests a lack of understanding of the special role and training of assistance dogs, and of the service provider’s duties under the law.

“A large portion of my work at Guide Dogs is raising awareness amongst the general public of businesses’ legal duty to make reasonable adjustments for assistance dog owners to stop these refusals from continuing.

“We will continue to campaign for the rights of blind and partially sighted people until they have the same freedom of movement as everyone else.” 


*********************************************************

ADMINISTRATIVE COURT

MAURICE KAY J

17 July 2001

[2001] All ER (D) 210 (Jul)

Road traffic – Hackney carriage – Plying for hire – Mini-cab – Mini-cab parked outside public house – Member of public asking whether cab free – Driver confirming cab free and asking for destination – Driver telling passenger fare – Driver contacting base by radio and booking journey – Whether prima facie case of plying for hire – Town Police Clauses Act 1847, s 45.

The respondent, T, drove a vehicle that was licensed and marked as a private hire vehicle. The vehicle was stationary, just off the main road outside a public house and near a restaurant. T was approached by L, who asked whether T was free. T said that he was and L entered the vehicle. T then asked L for his name and where he was going. He then informed L of the fare that would be charged. Before the journey commenced, T contacted his control base by radio to book the journey. The vehicle did not enter onto the main road until the booking was completed. At the end of the journey, L paid the fare and T drove off.

T was charged with plying for hire without a hackney carriage licence, contrary to s 45 of the Town Police Clauses Act 1847, as amended. At trial before the district judge, T submitted at the close of the prosecution case that there was no case to answer. The prosecution contended that the above facts gave rise to a prima facie case of plying for hire in that the presence of the car amounted to an invitation to treat and the later contractual offer of the fare was irrelevant.

The district judge found that there was no evidence of how long the vehicle had been stationary, that the booking had been made immediately after L had entered the vehicle, and that the journey had taken place after the booking. He concluded that in those circumstances, there was no evidence that T had been plying for hire. The district judge therefore acceded to the submission of no case to answer and dismissed the information.

The prosecution appealed by way of case stated. The question for the opinion of the High Court was whether the driver of a marked mini-cab, whose vehicle was not a licensed hackney carriage, was plying for hire if he, without more, was asked by a member of public if his vehicle was free and, having indicated that it was and received details of the prospective journey and disclosed a price for it, placed a booking with his base before the journey started.

The appeal would be allowed.

In the circumstances of the instant case, the reasons given by the district judge for finding that there was no case to answer indicated that he was influenced by matters that were irrelevant to the issue of plying for hire in the circumstances of the instant case. That which took place after T had informed L of the fare, whether it amounted to a booking via the taxi base or confirmation of a booking taken at the scene, was not relevant to the question of whether a prima facie case had been made out.

Accordingly, as the trial had not reached a conclusion, the question would be answered in the affirmative, but with the rider that what was being decided was that, without more, there was a case to answer.

Nottingham City Council v Wooding [1994] RTR 72, Rose v Welbeck Motors Ltd [1962] 2 All ER 801, Cogley v Sherwood [1959] 2 All ER 313 and Sales v Lake [1922] 1 KB 553 considered.

Martin Carter (instructed by Richard Townson, Chorley) for the authority.

Ian Ponter (instructed by Allansons, Bolton) for T.


**********************************************************

Fares Fair R (Rostron) v Guildford Borough Council 6th December 2017

A High Court challenge to hackney carriage fares set by Guildford Borough Council has been dismissed. In the first ever reported case on the topic, a range of public and European law arguments were mounted. All failed, but the judgment is a mine of stimulating analysis of principles of regulation for licensing and administrative practitioners.

The Council exercised its discretion under section 65 of the Local Government (Miscellaneous Provisions) Act 1976 to set maximum fares for hackney carriages. Its aim was to allow the average cabbie in Guildford to earn the median wage for Guildford residents and cover their costs. Wanting to find out those costs, it consulted the trade who could be expected to have kept records of such costs for tax purposes. The consultation response was negligible.

Therefore, the Council turned to publicly available costs data, eventually using AA figures for motor cars, modified and updated where appropriate, e.g. for fuel, where the latest figures were known. One of the central planks of the challenge was that the Council was irrational to do so, and should have used Transport for London data for black cabs, which the Council had rejected since black cabs are more expensive to run. This argument was dismissed on the evidence. The Council was not bound to use the TfL data on the Claimant's say so.

But a more fundamental point was also run, which was that the exercise of fare setting breached European principles of free movement under the Treaty, since the fares were liable to deter European operators from establishing in Guildford and they could not be justified. In a detailed, intellectually rigorous romp through the field, the judge (John Howell QC), rejected every plank of the challenge.

The first European question essentially related to whether there was the necessary cross-border element. For this, it was not necessary to produce a European person who would be interested in being a taxi driver in Guildford, but who may decide otherwise once the maximum fares were introduced. A likelihood of deterrence would be sufficient to establish the requisite "restriction" of the fundamental freedom. But here, there was simply no evidence that setting fares to enable drivers to recover the median salary for Guildford residents was likely to exert any cross-border effect; so no restriction had been established and the case therefore failed at the first hurdle.

The judge, however, went on to consider what the position would be had a relevant restriction been established. The question then became whether the restriction was justified. This depends on compliance with the test in the case of Gebhard, namely, whether the restriction i) is non-discriminatory, ii) is justified by imperative requirements in the general interest, iii) is suitable for securing the attainment of the objective which they pursue and iv) goes no further than is necessary in order to attain it.

Here, the judge held that the fixing of fares was non-discriminatory, and its purpose was consumer protection, which is a recognised category of European public interest. In asking whether the measure stayed within the band of what was necessary, he gave detailed consideration to the "margin of appreciation", a concept akin to, but not coterminous with, Wednesbury unreasonableness. He concluded, following a review of European case law, that the test is objective reasonableness, namely whether it may reasonably be concluded from the evidence submitted that the relevant condition is satisfied.

On the evidence submitted by the Council, the judge was able to conclude:

In my judgment it may also reasonably be concluded from the evidence submitted by the Borough Council in respect of the particular matters in issue that the maximum fares selected were reasonable and that the table of fares adopted preserves a fair balance between the public interest and the interests of drivers. Having regard to the intention to review the table of fares annually, if not sooner if new information emerges, in my judgment the adoption of the table of fares impugned cannot be said in all the circumstances to have exceeded the extent of the discretion that the Borough Council had. It was not disproportionate.

While all the points of law were resolved in the Council's favour, the case does not necessarily provide an impermeable comfort blanket to authorities. As in all things, they can be held to account by the Court. The real saving grace for the Council here was that it had gone to great lengths to investigate, consult and determine the correct input data for its calculations. It was that, as much as abstruse concepts of European law, which carried it to its destination.

The Council was awarded its full costs in the sum of £17,850, and the Claimant was refused permission to appeal.

The full judgment can be read here.

The Council was represented by Philip Kolvin QC, instructed by Bridget Peplow of Guildford Borough Council.

12/12/2017

*************************************************************************

Rose v Welbeck Motors Ltd and Another.

CRIMINAL; Road Traffic

QUEEN’S BENCH DIVISION

LORD PARKER CJ, WINN AND BRABIN JJ

30, 31 MAY 1962

Rood Traffic – Hackney carriage – Metroplitan police area – “Plying for hire” – Mini-cab parked in bus stand-by – Advertisements and telephone number on vehicle – Radio aerial on roof providing two-way communication – Metropolitan Public Carriage Act, 1869 (32 & 33 Vict c 115), s 7.

On 29 September 1961, at 12.45 pm the appellant, a taxi-driver, found a mini-cab parked in a bus stand-by where buses turn round. It was a bright red Renault Dauphine, with various advertisements on the sides and various inscriptions, the most important being a legend on each side of the vehicle “Welbeck Motors, Mini-cabs”. There was also a telephone number along the roof, and there was a radio aerial on the roof providing a two-way short-wave communication.

A bus later wished to pull in from a nearby road and the mini-cab moved out of the bus stand and stopped about ten yards from where it had been. A police officer asked the driver of the mini-cab why he was waiting there, and received the reply that he was waiting for any jobs that came up in the area, and that he had been there fifty minutes. He made it plain that he was to be informed of jobs over the radio.

At about 1.30 pm, the mini-cab drove off, but later came back and parked quite close to the corner from which it had driven away. The owners and the driver of the mini-cab were charged with plying an unlicensed hackney carriage for hire, contrary to s 7 of the Metropolitan Public Carriage Act, 1869a. The justices upheld a submission that there was no case to answer and dismissed the informations. On appeal by the appellant,

Held – The distinctive appearance of the vehicle, its colour, its inscriptions and its equipment in the form of radio communication, coupled with the place where it was on view and its conduct during the relevant period, made a prima facie case that the vehicle conveyed an invitation to the public to use it, and, as it was on view to the public, there was a case to answer that the mini-cab was plying for hire; accordingly the proceedings would be remitted with a direction to the justices to continue the hearing.

Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood ([1959] 2 All ER 313) applied.

Alker v Woodward (16 February 1962, “The Times”, 17 February 1962) followed.

Appeal allowed.

Notes

As to the meaning of plying for hire, see 33 Halsbury’s Laws (3rd Edn) 801, para 1372; and for cases on the subject, see 42 Digest 853–856, 77–94.

For the Metropolitan Public Carriage Act, 1869, s 7, see 24 Halsbury’s Statutes (2nd Edn) 871.

Cases referred to in judgment

Alker v Woodward (16 February 1962), “The Times”, 17 February 1962.

Allen v Tunbridge (1871), LR 6 CP 481, 40 LJMC 197, 24 LT 796, sub nom Allen v Trowbridge, 35 JP 695, 42 Digest 853, 78.

Cogley v Sherwood, Car Hire Group (Skyport) Ltd v Sherwood, Howe v Kavanaugh, Car Hire Group (Skyport) Ltd v Kavanaugh, [1959] 2 All ER 313, [1959] 2 QB 311, 123 JP 377, [1959] 2 WLR 781, 3rd Digest Supp.

Foinett v Clarke (1877), 41 JP 359, 42 Digest 854, 80.

Gilbert v McKay [1946] 1 All ER 458, 174 LT 196, 110 JP 186, 2nd Digest Supp.

Case Stated.

This was a Case Stated by justices for the county of Essex in respect of their adjudication as a magistrates’ court sitting at Stratford, on 8 November, 1961. On 13 October 1961, the appellant, Emmanuel Rose, preferred informations against the respondents charging that (i) the first respondents, Welbeck Motors Ltd being the owners of an unlicensed hackney carriage which plied for hire at the junction of Forest Road and Beacontree Avenue, E 17, on 29 September 1961, contrary to s 7 of the Metropolitan Public Carriage Act, 1869, and (ii) that the second respondent, Frederick Stanley Jones, being the driver of the vehicle unlawfully plied for hire at the junction of Forest Road and Beacontree Avenue, E.17, on 29 September 1961, contrary to s 7 of the Act of 1869. The following facts are summarised from the evidence.

At about 12.45 pm on 29 September 1961, the appellant, a licensed metropolitan taxi-driver, was driving his cab near the junction of Beacontree Avenue and Forest Road, Walthamstow, when he saw a mini-cab parked in the bus stand-by where buses turn round. The mini-cab was a bright red Renault Dauphine with various advertisements and inscriptions on it, the most important being a legend on each side of the vehicle “Welbeck Motors, Mini-cabs”, and the telephone number “Welbeck 4440” along the roof. In addition, there was a radio aerial on the roof providing a two-way short-wave communication.

The second respondent was sitting behind the wheel. A conversation between the appellant and the second respondent took place, as a result of which the appellant called the police. Some time later a bus wanted to pull in from Forest Road and the mini-cab pulled out from the bus stand and stopped on the corner of Beacontree Avenue about ten yards from where it had been before. At about 1.15 pm a police officer arrived and asked the second respondent if he was a taxi, to which the latter replied in the negative.

The second respondent was then asked why he was waiting there, to which he replied: “I am waiting for any jobs that come up in this area”. There were no passengers in the mini-cab at the time. The police officer pointed out to the second respondent that he was unlawfully plying for hire, to which the second respondent replied, “I have been here fifty minutes waiting for a job”.

He also said that his control had told him he could stand where he liked provided he did not cause an obstruction, and made it clear that he was to be informed of “jobs” over the radio. At about 1.30 pm, the mini-cab drove away, and, according to the appellant, it came back again and parked quite close to the corner from which it had driven away.

The respondents submitted that there was no case to answer. It was contended by the appellant that (a) for a vehicle to ply for hire, there must be a solicitation of the public or invitation to the public to hire the vehicle by the driver or person in control of the vehicle which might be either express or implied; (b) the vehicle must be exhibited to the public as a vehicle which was available802 for hire, and readily available for hire, although it need not be capable of being booked from the driver; (c) on the facts, the vehicle was readily available for hire, and by its character and appearance invited the public to use it or the services provided by the first respondents; (d) the description of the vehicle as a “Welbeck Motors Mini-cab” together with the telephone number from which presumably it could be hired constituted a solicitation or invitation to the public to hire it, (e) the vehicle was exhibited to the public by being parked in a public place for at least fifty minutes and, accordingly, all the elements of a plying for hire were present and a prima facie case was made out.

It was contended by the respondents that (i) there was no evidence of solicitation or invitation to the public; (ii) there was nothing stating that the vehicle was for hire; (iii) the vehicle must be exhibited with an open offer to the public to use that vehicle, and there was no evidence of that, and (iv) the driver was just sitting waiting for directions by radio.

The justices dismissed the informations without calling on the respondents to answer the case, and the appellant now appealed.

The direction and case mentioned below were cited in argument in addition to those in the judgmentb.

________________________________________

b Ie, Practice Note [1962] 1 All ER 448, White v Cubitt, [1930] 1 KB 443

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

Neil Lawson QC and J M Williams for the appellant.

Malcolm Morris QC and John K Wood for the respondents.

31 May 1962. The following judgments were delivered.

LORD PARKER CJ stated the facts and continued: The sole question for this court is whether the prosecution raised a case which required an answer. In order to decide that, it is necessary to consider first the essential elements that the prosecution would have to prove, and then go on to ascertain on the facts given in evidence whether those elements were prima facie proved. The prosecution was for an offence contrary to s 7 of the Metropolitan Public Carriage Act, 1869. Section 4 of that Act provides, so far as it is material:

“In this Act ‘stage carriage’ shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road, or place within the limits of this Act … ”

Section 7 provides:

“If any unlicensed hackney or stage carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding £5 for every day during which such unlicensed carriage plies. And if any unlicensed hackney carriage is found on any stand within the limits of this Act, the owner of such carriage shall be liable to a penalty not exceeding £5 for each time it is so found. The driver also shall in every such case be liable to a like penalty unless he proves that he was ignorant of the fact of the carriage being an unlicensed carriage … ”

In the recent case of Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood, etc, what is sometimes referred to as the “airport case”, this court had to consider that section of the Act, and, in the course of doing so, reviewed a number of the earlier cases. The court there emphasised that the approach to the matter was to ask oneself the question whether the vehicle itself was plying for hire as opposed to the case of a man going to the owner of a car hire establishment and hiring one of his cars. That was the question posed in the earlier cases, a particular illustration of it being in Allen v Tunbridge, where Montague Smith J said ((1871), LR 6 CP at p 485) in reference to a previous case (Clarke v Stanford, (1871), LR 6 QB 357).

“It appears to have been held there, that, if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the Act. That is very different from a customer going to a job-master to hire a carriage.”

Again, in Cogley’s case, this court held that it was essential before one could say that a vehicle was plying for hire, first, that it should be exhibited, be on view to the public, and secondly, that it should, while on view, expressly or impliedly solicit custom in the sense of inviting the public to use it. The fact that if those conditions are proved a ticket had to be obtained from an office or a booking made other than through the driver was immaterial.

It is, I think, right to say that a further possible question, namely, what was to be the result if the obtaining of a ticket or a booking involved a vehicle other than that on view, was left open. Reference, however, was made to Gilbert v McKay, and in the argument to Foinett v Clarke, which cases suggest that, at any rate in certain circumstances, that fact would not of itself prevent a finding that the vehicle in question was plying for hire.

That the vehicle in the present case was on exhibition in the sense that it was on view to the public is undoubted. The real question, as it seems to me, is whether a prima facie case was made out that the vehicle was impliedly inviting the public to use it. Whether in any case such a prima facie case is made out must, of course, depend on the exact circumstances, and I certainly do not intend anything that I say in this judgment to apply to any facts other than those in this case.

What were those facts? As I have already said, one starts with the fact that this vehicle was of a distinctive appearance, its colour, its inscriptions, its equiplment in the form of radio communication, and its type. Secondly, and this is equally important, it stood with the driver at the steering wheel for some fifty minutes in a public place on public view and at a place where buses made a turn round, in other words, at a place where many members of the public would be getting off the buses and where many members of the public would forgather to board the buses. Moreover, when requested to leave, the driver drove away only to return immediately to almost the same place.

It has been urged by counsel for the respondents, that the inscriptions and appearance of this vehicle were incapable of conveying an invitation to the public: “I am for hire”. It is said that the vehicle was merely advertising the owners of the vehicle and was not saying in the way I put it: “I am for hire”. It is perfectly true, of course, that the inscriptions were advertising the owners, Welbeck Motors Ltd and also saying, “and if you ring up Welbeck 4440 you can have one of the vehicles that they hire known as mini-cab”.

In my judgment, however, the inscriptions on, and appearance of, the vehicle, coupled with the place where it was on view and its conduct during the relevant period, was saying more than that. It was saying: “Not only do I”, if I may personify the vehicle, “recommend you to Welbeck Motors Ltd where you can hire a mini-cab, but, further, I am one of those mini-cabs and I am for hire”. I think in that connexion that the reference to mini-cabs is important.

A cab does convey the notion of a vehicle plying for hire. It may be that “taxi” is the more common word today, but “cab” as an abbreviation of “taxi-cab” is well known to everybody, and the legislation covering this matter is dealt with by the London Cab Order, 1934. Suppose it had been exhibited to the public with the word “taxi” on it or “Welbeck Motors Ltd Taxi proprietors”, it seems to me perfectly clear that such a vehicle would be conveying to the public not only “I am one of those vehicles”, but “I am as a taxi or as a cab available and for hire”. Indeed, this court has really gone so far as that already in Alker v Woodwardc where a vehicle was found at Liverpool bearing the inscription “Radio Taxis”, and the telephone number, “North 3071”.

It is true that there was the added fact that it was said to be standing at a licensed hackney carriage stand, but there was no physical lay-out of the stand which could be identified and the court attached no importance to that consideration, the only importance being that it was standing in a public place, and outside an hotel at half-past twelve at night. In that case the learned recorder of the Crown Court at Liverpool had upheld the submission of no case, and this court sent the case back for the hearing to be continued.

________________________________________

c “The Times”, 17 February 1962. In that case the court (Lord Parker CJ Ashworth and Fenton Atkinson JJ) held that a licensed hackney carriage driver in a car displaying a card including the words “Radio Taxis, North 3071” standing at or near a hackney carriage stand was plying for hire

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

In my judgment, there is no real difference between the expression “taxi” and “cab” and, in the circumstances of this case, it seems to me that any tribunal would be bound to hold that this vehicle in the particular circumstances of this case was exhibiting itself as a vehicle for hire. In my judgment, therefore, this case ought to be remitted to the justices with the direction that there was a case to answer and to continue the hearing of the case. I deliberately refrain from saying what, in my judgment, might amount to a defence. I would only say that it must not be taken that what I am reported to have said towards the end of my judgment in the newspaper report of Alker v Woodward is correct in fact or in lawd.

________________________________________

d Lord Parker CJ was reported to have said: “The evidence was that the defendant had said: ‘i’m waiting for a call’, and it was said that the defendant’s firm were known to operate, like mini-cabs, by radio. That, if believed, was a good defence, but the recorder need not have believed it. He should therefore have heard the evidence … ”

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

WINN J. I agree, and would add only one very short point of my own, because all that I would wish to have said has been said so lucidly already by Lord Parker CJ. It seems to me that the essence of this case is what interpretation must be put on the appearance and the behaviour of the vehicle in the circumstances established prima facie by the evidence.

As I understood counsel for the respondents’ most helpful and lucid presentation of his case, he would be constrained to accept the fact that it makes no difference in law whether the vehicle was to be taken to be saying: “I am here available for you to step into and hire me as a cab”, or whether it must be taken to say: “I am here available to be hired by you conditional on my owner’s approval and ordering me to take you where you want to go”.

His case is that neither of those representations or invitations or offers can properly be spelled out on the evidence as it stood when the case was stopped. As I see the matter, leaving aside any possible technicality about whether goods displayed in a shop window are offered for sale, such goods when so displayed at least amount to an invitation to open negotiations for the purchase of those goods, and, where only one item of the kind is displayed, an invitation to negotiate for the purchase of that article assuming it to be of a rare kind or rare in the relevant circumstances.

I think that, at the very lowest, the evidence given discloses behaviour and appearance on the part of this vehicle which amounted to an invitation, “Get in touch one way or another with my owner and see whether he is willing for me to take you as a vehicle which you are hiring”. For the reasons I have added, and for all those Lord Parker CJ has given, I agree.

BRABIN J. I agree with what has been said and have nothing to add.

Appeal allowed: Case remitted.

11/12/2017

***********************************************************************

BAILII case number: [2017] UKEAT 0056_17_1011

Appeal No. UKEAT/0056/17

EMPLOYMENT APPEAL TRIBUNAL

At the Tribunal

On 27 & 28 September 2017

Judgment delivered on 10 November 2017

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

(1) UBER B.V.

(2) UBER LONDON LTD

(3) UBER BRITANNIA LTD

APPELLANTS

(1) MR Y ASLAM

(2) MR J FARRAR

(3) MR R DAWSON AND OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

© Copyright 2017

APPEARANCES

For the Appellants MS DINAH ROSE

(One of Her Majesty's Counsel)

and

MR FRASER CAMPBELL

(of Counsel)

Instructed by:

DLA Piper UK LLP

3 Noble Street

London

EC2V 7EE

For the First and Second Respondents MR JASON GALBRAITH-MARTEN

(One of Her Majesty's Counsel)

and

MS SHERYN OMERI

(of Counsel)

Instructed by:

Bates Wells and Braithwaite LLP

10 Queen Street Place

London

EC4R 1BE

For the Third Respondents No appearance or representation by or on behalf of the Third Respondents

SUMMARY

JURISDICTIONAL POINTS - Worker, employee or neither

WORKING TIME REGULATIONS - Worker

"Worker status" - section 230(3)(b) Employment Rights Act 1996 ("ERA"), regulation 36(1) Working Time Regulations 1998 ("WTR") and section 54(3) National Minimum Wage Act 1998 ("NMWA").

"Working time" - regulation 2(1) WTR

The Claimants were current or former Uber drivers in the London area who, along with others, had brought various claims in the Employment Tribunal ("the ET"), which required them to be "workers" for the purposes of section 230(3)(b) Employment Rights Act 1996 ("ERA"), regulation 36(1) Working Time Regulations 1998 ("WTR") and section 54(3) National Minimum Wage Act 1998 ("NMWA"). The ET concluded that any Uber driver who had the Uber app switched on, was within the territory in which they were authorised to work (here, London) and was able and willing to accept assignments was working for Uber London Ltd ("ULL") under a "worker" contract and was, further, then engaged on working time for the purposes of regulation 2(1) WTR.

The Appellants ("Uber") appealed, contending (relevantly) as follows:

(1) That the ET had erred in law in disregarding the written contractual documentation. There was no contract between the Claimants and ULL but there were written agreements between the drivers and Uber BV and riders, which were inconsistent with the existence of any worker relationship. Those agreements made clear, Uber drivers provided transportation services to riders; ULL (as was common within the mini-cab or private hire industry) provided its services to the drivers as their agent. In finding otherwise, the ET had disregarded the basic principles of agency law.

(2) The ET had further erred in relying on regulatory requirements as evidence of worker status.

(3) It had also made a number of internally inconsistent and perverse findings of fact in concluding that the Claimants were required to work for Uber.

(4) It had further failed to take into account relevant matters relied on by Uber as inconsistent with worker status and as, on the contrary, strongly indicating that the Claimants were carrying on a business undertaking on their own account.

Held: dismissing the appeal

The ET had been entitled to reject the characterisation of the relationship between Uber drivers and Uber, specifically ULL, in the written contractual documentation. It had found (applying Autoclenz Ltd v Belcher and Ors [2011] ICR 1157 SC(E)) that the reality of the situation was that the drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip. Having thus determined the true nature of the parties' bargain, the ET had permissibly rejected the label of agency used in the written contractual documentation. The ET had not thereby disregarded the principles of agency law but had been entitled to consider the true agreement between the parties was not one in which ULL acted as the drivers' agent.

In carrying out its assessment in this regard, the ET was not obliged to disregard factors simply because they might be seen as arising from the relevant regulatory regime; that was part of the overall factual matrix the ET had to consider. In any event, in this case, the ET's findings on control were not limited to matters arising merely as a result of regulation.

In considering the ET's findings, it was necessary to have regard to its Judgment as a whole. Doing so, it was apparent that they were neither inconsistent nor perverse. In particular, the ET had permissibly concluded there were obligations upon Uber drivers that they should accept trips offered by ULL and that they should not cancel trips once accepted (there being potential penalties for doing so). It was, further, no objection that the ET's approach required the drivers not only to be in the relevant territory, with the app switched on, but also to be "able and willing to accept assignments"; that was consistent with Uber's own description of a driver's obligation when "on-duty". These findings had informed the ET's conclusions not just on worker status but also on working time and as to the approach to be taken to their rights to minimum wage. Inevitably the assessment it had carried out was fact- and context-specific. To the extent that drivers, in between accepting trips for ULL, might hold themselves out as available to other PHV operators, the same analysis might not apply; hence the ET's observation that it would be a matter of evidence in each case whether and for how long a driver remained ready and willing to accept trips for ULL.

HER HONOUR JUDGE EADY QC

Introduction

This case arises from what has been described as a modern business phenomenon, commonly known simply as "Uber". It was founded in the United States of America in 2009 and its smartphone app - the tool through which the business operates ("the app") - was released in 2010. In its first instance decision, the Employment Tribunal ("the ET") recorded how Uber's then Chief Executive, Mr Kalanick, described the business in February 2016:

"Uber began life as a black car service for 100 friends in San Francisco - everyone's private driver. Today we're a transportation network spanning 400 cities in 68 countries that delivers food and packages, as well as people, all at the push of a button. And … we've gone from a luxury, to an affordable luxury, to an everyday transportation option for millions of people."

There are around 30,000 Uber drivers in the London area (of some 40,000 in the United Kingdom) and about two million passengers there registered to use Uber's services.

These proceedings concern the employment status of the Claimants as Uber drivers in London. The London Central ET (Employment Judge Snelson and members Mr Pugh and Mr Buckley), [2016] EW Misc B68 (ET), held (relevantly) that Uber London Limited employed the Claimants as "workers", as defined by section 230(3)(b) Employment Rights Act 1996 ("ERA"), regulation 36(1) Working Time Regulations 1998 ("WTR") and section 54(3) National Minimum Wage Act 1998 ("NMWA"). It further held that their working time was to be calculated in accordance with regulation 2(1) WTR and that they were engaged in "unmeasured work" for the purposes of the National Minimum Wage Regulations 2015 ("NMWR"). Uber appeals.

For completeness, I note the ET made alternative findings that Uber drivers would fall to be considered as "workers" - supplied by Uber BV to Uber London Ltd or to passengers - pursuant to extended definitions covering contractors, under section 43K ERA, section 34 NMWA and regulation 36(1) WTR. The focus of the appeal has been on the ET's primary finding as against Uber London Ltd and I have not addressed this secondary case further as it has been unnecessary to do so; I record, however, that this finding is also disputed by Uber.

The Parties

Various entities within the Uber family of companies were Respondents before the ET:

5.1. Uber BV ("UBV") - a Dutch corporation and parent company of the other two Respondents; it holds the legal rights to the Uber app.

5.2. Uber London Ltd ("ULL") - a company registered in the United Kingdom, which holds a Private Hire Vehicle ("PHV") Operator's Licence for London and makes provision for the invitation and acceptance of PHV bookings.

5.3. Uber Britania Ltd ("UBL") - also a UK registered company, which holds and/or manages PHV Operator's Licences issued by various district councils outside London. Both the underlying ET hearing and this appeal focuses on London-based drivers and UBL does not feature in the ET's reasoning.

When it is unnecessary to distinguish between these entities by name, I adopt the same approach as the ET and simply refer to "Uber".

The Claimants before the ET (referred to as such in this Judgment) are current or former Uber drivers; they were selected by agreement between the parties as "test Claimants" for the purposes of a Preliminary Hearing to determine whether they met the statutory definition of "worker" and how they should be treated for the purposes of the WTR and NMWA.

The parties were represented by leading counsel below but not by those (leading or junior counsel) who now appear.

The Relevant Factual Background

The following account of the facts is taken from the ET's fuller record. When citing passages from the ET's Judgment I have omitted footnotes appearing in the original text.

Uber describes the various services provided to users of its app as "products"; the most popular is UberX but there is also UberXL (larger vehicles, holding at least six passengers), UberEXEC and UberLUX (a premium service, using higher specification vehicles with a higher minimum fare), UberTAXI (London black taxis using the Uber platform) and UberWAV (vehicles with wheelchair access, where the driver has undergone special training). As well as differentiating by vehicle size and specification, these services require different driver ratings (see below); a higher rating is required to deliver EXEC and LUX services than UberX work.

Prospective Uber drivers sign up online. Acknowledging that they are not subjected to close scrutiny, the ET found potential drivers were required to personally attend at a specified location to present originals of relevant documentation, when they would be subjected to a form of interview and induction; a process Uber calls "onboarding"; once "onboard", they have access to Uber's drivers' app, either by their own smartphones or by a modified smartphone hired from UBV (allowing access only to the Uber app and satellite navigation system).

Under a contract with UBV, a driver's access to the app is stated to be personal: the right of use is non-transferable and drivers are not permitted to share accounts or their driver IDs (used to log on to the app). As the ET observed:

"39. … There is no question of any driver being replaced by a substitute."

As part of the onboarding process, new drivers would be issued with a "Welcome Packet", which provides (under the heading "WHAT UBER LOOKS FOR"):

"High Quality Service Stats: We continually look at your driver rating, client comments, and feedback provided to us. Maintaining a high rating overall helps keep a top tier service to riders.

Low Cancellation Rate: when you accept a trip request, you have made a commitment to the rider. Cancelling often or cancelling for unwillingness to drive to your clients leads to a poor experience.

High Acceptance Rate: Going on-duty means you are willing and able to accept trip requests. Rejecting too many requests leads to rider confusion about availability. You should be off-duty if not able to take requests."

The Welcome Packet also includes a number of slides. One addressing "Safety & Quality", reads as follows:

"• Polite and professional at all times

• Zero tolerance to any form of discrimination

• Avoid inappropriate topics of conversation

• Acts of sexual harassment, aggressive or threatening behaviour, and violence will not be tolerated. We will cooperate with the police where necessary

• Do not contact the rider after the trip has ended."

The last of these points is reiterated in a further document given to drivers, entitled "Uber UK Partner Standards Advice", which states:

"RETURNING LOST PROPERTY IS THE ONLY INSTANCE WHERE IT IS APPROPRIATE TO CONTACT THE RIDER AFTER THE TRIP ENDS; IF YOU DISCOVER LOST PROPERTY LATER ON, PLEASE CONTACT UBER."

As the ET observed, although presented as a series of "Recommendations" the Standards Advice included the following statement:

"PLEASE REMEMBER THAT THERE ARE SOME RECOMMENDATIONS THAT IF NOT FOLLOWED, MAY CONSTITUTE A BREACH OF YOUR PARTNER TERMS OR LICENCE CONDITIONS."

The ET found that Uber drivers are not at liberty to exchange contact details with passengers; something explained in an email of 6 June 2014, in a "Q&A" format, as follows:

"Can I ask for the phone number directly?

Asking for a riders phone number directly may be seen as a violation of privacy and lead to an uncomfortable rider experience. Such experiences often lead to low ratings and can be reported to Uber.

Can I give them my direct phone number?

Providing an Uber user with your phone number during a trip may be seen as solicitation which is a violation of the partner agreement."

Uber drivers supply their own vehicles, albeit Uber publishes a list of makes and models it will accept and there is a requirement that vehicles be manufactured post 2006 and in good condition and a preference that they be black or silver. The driver is responsible for all costs incidental to owning and running the vehicle.

Although not operational by the time of the ET hearing, new drivers had previously been entitled under certain schemes to a guaranteed income for a specified period.

As for prospective passengers, those aged 18 or over can register (providing contact and payment card details) and then book a trip by downloading the Uber app on to their smartphones and logging on. They are not obliged to state their destination when booking but generally do so; if they ask, they will receive a fare estimate. Once a passenger request is received, ULL passes this (by the app) to the nearest available driver, who is informed of the passenger's first name and rating. The driver has 10 seconds to accept the trip; if there is no response, ULL assumes that driver is unavailable and will locate another. Once a driver accepts, ULL confirms the booking to the passenger and allocates the trip to the driver. At this stage, passenger and driver are put into telephone contact but in such a way that neither has access to the number of the other. Drivers are unaware of the destination until they pick up the passenger (and are strongly discouraged from asking for it in any 'phone conversations with the passenger before pick up); if it has already been notified, this will be provided once the driver presses the "start trip" button on the driver app, otherwise the driver will learn of the destination from the passenger. Once the journey starts, the driver app provides detailed directions using satellite navigation technology; drivers are not bound to follow these directions but may face adverse consequences if they do not. On arrival, the driver presses the "complete trip" button and a fare is calculated by Uber servers, based on global positioning system data from the driver's smartphone, which takes account of time and distance and at "surge times" a multiplier will be applied resulting in a charge above standard levels. As the ET describes:

"19. Strictly speaking, the figure stipulated by Uber is a recommended fare only and it is open to drivers to agree lesser (but not greater) sums with passengers. But this practice is not encouraged and if a lower fare is agreed by the driver, UBV remains entitled to its 'Service Fee' (see below) calculated on the basis of the recommended amount."

The passenger pays the fare to UBV by credit or debit card and receives an emailed receipt. Separately UBV generates an "invoice" addressed to the passenger (using simply their first name and providing no other contact details) by the driver, but this is not sent to the passenger; it is available to the driver though the app and serves as a record of the trip.

Payment to drivers is made by UBV on a weekly basis; it is calculated on the basis of the fares charged for trips undertaken by the driver less a service fee, initially charged at 20% of the fare but increased to 25% by the time of the ET hearing. Although Uber contended it was permissible for drivers to accept tips from passengers, the ET recorded it had seen documents evidencing Uber's disapproval of drivers soliciting tips.

As for disputes between passengers and drivers - for example, over the route taken, which might impact upon the fare - the ET described how these would be resolved as follows:

"23. … the matter is considered by ULL and a decision taken whether to compensate the passenger. … Mr Farrar explained that on several occasions Uber made deductions from his account without prior reference to him. … [when queried] Typically, the explanation was that ULL had agreed a partial refund of the fare with the passenger, resulting in a re-calculation of Mr Farrar's payment. Sometimes he anticipated a deduction (for example, on becoming aware of a refund agreed between ULL and the passenger) but no deduction was ultimately made. …"

It concluded that two points emerged from the evidence:

"… First, refunds are handled and decided upon by ULL, sometimes without even referring the matter to the driver concerned. Secondly, the organisation in practice accepts that, where it is necessary, or at least politic, to grant the passenger a refund - say because a journey took much longer than anticipated - but there is no proper ground for holding the driver at fault, it must bear the loss."

Should a passenger cancel a trip more than five minutes after a request is accepted by a driver, there is a £5 cancellation fee; this is deemed to be a fare and thus subject to UBV's service charge.

As for cases in which the Uber ride has been procured by fraud, the ET found that:

"26. … Uber's general practice is to accept the loss and not to seek to pass it on to the driver, at least where … Uber's systems have failed. Some correspondence … suggests that the organisation may take a harder line if it considers that a driver has failed to react to evidence pointing to fraud."

The ET noted that Uber's case seemed to suggest it could reverse this policy and leave the driver to bear the loss. It found, however, that would be:

"91. … incompatible with the shared perceptions of drivers and Uber decision-makers as to Uber's legal responsibilities. …"

The ET also found Uber would in certain instances pay drivers the cost, or a contribution towards the cost, of cleaning vehicles soiled by passengers, without suggesting this was conditional upon Uber receiving any corresponding sum from the passenger.

Although nominally free to accept or decline trips, the ET noted (paragraph 51) that a driver's acceptance statistics were recorded and Uber had warned:

"You should accept at least 80% of trip requests to retain your account status."

In oral argument, Uber has disputed that this was a warning that could apply to the Claimants.

Further, on drivers' obligations to accept work, the ET found:

"52. Drivers who decline three trips in a row are liable to be forcibly logged off the App by Uber for 10 minutes. … an Uber document called "Confirmation and Cancellation Rate Process" shows that the expression "Penalty Box waring" is current within the organisation. The third in a graduated series of standard form messages reads:

… we noticed that you may have left your partner app running whilst you were away from your vehicle, and therefore have been unable to confirm your availability to take trips. As an independent contractor you have absolute flexibility to log onto the application at any time, for whatever period you choose. However, being online with the Uber app is an indication that you are available to take trips, in accordance with your Services Agreement. From today, if you do not confirm your availability to take trips twice in a row we will take this as an indication you are unavailable and we will log you off the system for 10 minutes."

In argument before me, Uber has explained that in fact a driver would now only be logged off the app for two rather than ten minutes.

In any event, as the ET further found, a similar system of warnings, culminating in a forced log-off penalty would also apply to cancellations by drivers after accepting a trip. The warnings state that cancellation amounts to a breach of the agreement between the driver and Uber unless there is a "good reason" for cancelling (see ET paragraph 53).

The ET found various examples of control being exercised by Uber over how drivers performed their work:

"54. … No Uber manager instructs the driver to take any particular route … In practice, however, the App's mapping software determines the route for most purposes. … [and] if an issue arises as to whether a passenger should receive a refund on the ground that the driver did not follow the most efficient route, ULL starts from the position … that it is for the driver to justify any departure from the route indicated on the App.

55. … Passengers are required to rate drivers at the end of every trip on a simple 0-5 scoring system. Ratings are monitored and [UberX] drivers with average scores below 4.4 become subject to a graduated series of "quality interventions" aimed at assisting them to improve. "Experienced" drivers [who have undertaken 200 trips or more] whose figures do not improve to 4.4 or better are "removed from the platform" and their accounts "deactivated".

56. Uber seeks to tackle what is seen as more serious conduct on the part of drivers through the "Driver Offence Process". Again, provision is made for a graduated series of measures. These begin with a "warning" sent by SMS message. The ultimate penalty is 'deactivation'.

57. Finally, we have been shown numerous instances of ULL's practice of directing messages at drivers (individually or collectively), presented as "recommendations", "advice", "tips" and/or "feedback", seeking in one way or another to modify their behaviour in order to improve the "rider experience"."

On the other hand, the ET recorded those matters relied on by Uber as suggesting that the drivers operated as independent contractors:

"61. As well as undertaking work for or through Uber, drivers can work for or through other organisations, including direct competitors operating through digital 'platforms'.

62. The drivers must meet all expenses associated with running their vehicles.

63. The drivers must fund their own individual PH licences.

64. The drivers are free to elect which 'product(s)' to operate [subject to being accepted ('onboarded') by Uber and subject to the rating requirements and any other special requirement applicable to particular 'products'].

65.The drivers treat themselves as self-employed for tax purposes.

66. Drivers are not provided with any clothing or apparel in the nature of an Uber uniform. And in London they are discouraged from displaying Uber branding of any kind."

It was also part of Uber's case that many of the factors relied on as indicative of worker status were simply consequential upon the regulatory regime; I now turn to that.

The Regulatory Regime

The Private Hire Vehicles (London) Act 1998 ("the 1998 Act") makes provision for "the licensing and regulation of private hire vehicles, and drivers and operators of such vehicles, within the metropolitan police district and the City of London; and for connected purposes". By section 2 it provides:

"Requirement for London operator's licence

(1) No person shall in London make provision for the invitation or acceptance of, or accept, private hire bookings unless he is the holder of a private hire vehicle operator's licence for London (in this Act referred to as a "London PHV operator's licence").

(2) A person who makes provision for the invitation or acceptance of private hire bookings, or who accepts such a booking, in contravention of this section is guilty of an offence …"

A private hire vehicle driver must hold a PHV licence but only the holder of a PHV operator licence can take bookings. In London, ULL holds the relevant PHV operator licence.

Section 4 then sets out the obligations of "operators", (relevantly) as follows:

"Obligations of London operators

(1) The holder of a London PHV operator's licence (in this Act referred to as a "London PHV operator") shall not in London accept a private hire booking other than at an operating centre specified in his licence.

(2) A London PHV operator shall secure that any vehicle which is provided by him for carrying out a private hire booking accepted by him in London is -

(a) a vehicle for which a London PHV licence is in force driven by a person holding a London PHV driver's licence; or

(b) a London cab driven by a person holding a London cab driver's licence.

(3) A London PHV operator shall -

(a) display a copy of his licence at each operating centre specified in the licence;

(b) keep at each specified operating centre a record in the prescribed form of the private hire bookings accepted by him there;

(c) before the commencement of each journey booked at a specified operating centre, enter in the record kept under paragraph (b) the prescribed particulars of the booking;

(d) keep at the specified operating centre or, where more than one operating centre is specified, at one of the operating centres such records as may be prescribed of particulars of the private hire vehicles and drivers which are available to him for carrying out bookings accepted by him at that or, as the case may be, each centre;

(e) at the request of a constable or authorised officer, produce for inspection any record required by this section to be kept.

(5) A London PHV operator who contravenes any provision of this section is guilty of an offence …

(6) It is a defence in proceedings for an offence under this section for an operator to show that he exercised all due diligence to avoid committing such an offence."

To this end, it is also necessary to consider the Private Hire Vehicles (London) (Operators' Licences) Regulations 2000 (SI 2000/3146) ("the Regulations"), introduced by the Secretary of State under regulation 32 of the 1998 Act, which relevantly provide:

"9. Conditions

(1) Every licence shall be granted subject to the conditions set out in the following provisions of this regulation.

(2) …

(3) The operator shall, if required to do so by a person making a private hire booking -

(a) agree the fare for the journey booked, or

(b) provide an estimate of that fare.

(4) If, during the currency of the licence -

(c) any driver ceases to be available to the operator for carrying out bookings, by virtue of that driver's unsatisfactory conduct in connection with the driving of a private hire vehicle,

the operator shall, within 14 days of the date of such event, give the licensing authority notice containing details of the conviction or change, as the case may be, or, in a case falling within sub-paragraph (c), the name of the driver and the circumstances of the case.

(7) The operator shall establish and maintain a procedure for dealing with -

(a) complaints, and

(b) lost property,

arising in connection with any private hire booking accepted by him and shall keep and preserve records …

10. Form of record of private hire bookings

The record which an operator is required to keep by virtue of section 4(3)(b) of the 1998 Act at each operating centre specified in his licence of the private hire bookings accepted by him there shall be kept -

(a) in writing, or

(b) in such other form that the information contained in it can easily be reduced to writing.

11. Particulars of private hire bookings

Before the commencement of each journey booked at an operating centre specified in his licence an operator shall enter the following particulars of the booking in the record referred to in regulation 10 -

(a) the date on which the booking is made and, if different, the date of the proposed journey;

(b) the name of the person for whom the booking is made or other identification of him, or, if more than one person, the name or other identification of one of them;

(c) the agreed time and place of collection, or, if more than one, the agreed time and place of the first;

(d) the main destination specified at the time of the booking;

(e) any fare or estimated fare quoted;

(f) the name of the driver carrying out the booking or other identification of him;

(g) if applicable, the name of the other operator to whom the booking has been sub-contracted, and

(h) the registered number of the vehicle to be used or such other means of identifying it as may be adopted.

12. Particulars of private hire vehicles

(1) For the purposes of section 4(3)(d) of the 1998 Act, an operator shall keep at each operating centre … a record, containing the particulars … of each private hire vehicle which is available to him for carrying out bookings accepted by him …

13. Particulars of drivers

(1) For the purposes of section 4(3)(d) of the 1998 Act, an operator shall keep … a record, containing the particulars … of each driver who is available to him for carrying out bookings accepted by him …

14. Record of complaints

(1) An operator shall keep … a record containing -

(a) the particulars set out in paragraph (2) of any complaint made in respect of a private hire booking accepted by him …;

(2) In relation to each complaint the particulars referred to in paragraph (1) are -

(a) the date of the related booking;

(b) the name of the driver who carried out the booking;

(c) the registration mark of the vehicle used;

(d) the name of the complainant and any address, telephone number or other contact details provided by him;

(e) the nature of the complaint; and

(f) details of any investigation carried out and subsequent action taken as a result.

15. Record of lost property

(1) An operator shall keep … a record, containing the particulars … of any lost property found -

(b) in any private hire vehicle used to carry out a booking accepted by him …"

As there is no contractual documentation directly governing the relationship between Uber drivers and ULL, when looking at the nature of the arrangements between them, Uber says much is determined as a result of this regulatory framework. That said, there are written terms and conditions between (i) the passenger (described as "the rider") and Uber (although referred to as "Uber UK", this can be taken to mean ULL for present purposes) ("the Rider Agreement"), and (ii) UBV and Uber drivers; it is to that documentation that I now turn.

The Contractual Documentation

Starting with the Rider Agreement, by Part 1, this sets out the "Booking Service Terms", where "Booking Services" are defined (see clause 1) as the services:

"… which shall be provided to you by [ULL] as the agent of the Transportation Provider"

"Transportation Provider" is then defined as:

"… the provider … of transportation services, including any drivers licensed to carry out private hire bookings …"

By clause 2, it is explained that a private hire booking must be made with a person holding a relevant operator's licence; that is, ULL. Clause 3 then deals with ULL's acceptance of bookings as "disclosed agent for the Transportation Provider".

Clause 4 concerns the provision of booking services by ULL; these are the services provided via the Uber app and are stated to include:

"1. The acceptance of PHV Bookings [in accordance with clause 3] … but without prejudice to [ULL's] rights at its sole and absolute discretion to decline any PHV Booking you seek to make;

2. Allocating each accepted PHV Booking to a Transportation Provider via such means as [ULL] may choose;

3. Keeping a record of each accepted PHV Booking;

4. Remotely monitoring (from [ULL's] registered office and/or operating centres) the performance of the PHV Booking by the Transportation Provider;

5. Receipt of and dealing with feedback, questions and complaints relating to PHV Bookings … You are encouraged to provide your feedback if any of the transportation services provided by the Transportation Provider do not conform to your expectations; and

6. Managing any lost property queries relating to PHV Bookings."

Payment is then dealt with by clause 5, where it is explained that:

"The Booking Services are provided by [ULL] to you free of charge. [ULL] reserves the right to introduce a fee for the provision of the Booking Services. If [ULL] decides to introduce such a fee, it will inform you accordingly and allow you to either continue or terminate your access to the Booking Services through the Uber App at your option."

"The rates that apply for the transportation services provided by the Transportation Provider can be found … through the Uber App. …"

There are separate terms relating to use of the Uber website and app (see Part 2 of the Rider Agreement), made available by UBV. It is explained (see clause 4 of this Part) that:

"… After you have received services … [UBV] will facilitate your payment of the applicable Charges on behalf of the Third Party Provider [defined to include Uber drivers] as disclosed payment collection agent for the Third Party Provider (as Principal) …"

Within Part 2 of the Rider Agreement, it is further provided:

"Repair or Cleaning Fees

You shall be responsible for the cost of repair for damage to, or necessary cleaning of, Third Party Provider vehicles and property … in excess of normal "wear and tear" … In the event that a Third Party Provider reports the need for Repair or Cleaning, and such Repair or Cleaning request is verified by Uber in Uber's reasonable discretion, Uber reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the Third Party Provider using your payment method designated in your Account. Such amounts will be transferred by Uber to the applicable Third Party Provider and are non-refundable."

That said, as recorded above, the ET found that Uber would sometimes meet such cleaning costs without suggestion that this was conditional upon recovering any sum from the passenger (whether under the terms of the Rider Agreement or otherwise).

Turning to the agreement between UBV and Uber drivers, this was initially recorded in "Partner Terms" of 1 July 2013. In October 2015, without prior consultation or warning, a "New Partner-Driver Agreement" ("the New Terms") was issued to drivers via the app, and had to be accepted before the driver could go on-line and become eligible for further driving work. The email alerting drivers to the New Terms was sent out from "Uber UK Partners", which for present purposes can be understood to be ULL. In argument on the current appeal, all parties have relied on the New Terms and I have proceeded on the basis that there is nothing in the former Partner Terms that would materially impact upon my analysis.

The New Terms are stated to comprise a "Services Agreement" between:

"an independent company in the business of providing Transportation Services … ("Customer") and Uber BV …"

The term "transportation services" is defined as follows:

"1.14. … the provision of passenger transportation services to Users via the Uber Services in the Territory by [the] Customer and its Drivers using the vehicles."

"Users" are the "end user" of the "Transportation Services" obtained using the Uber App (see definition clause 1.18), i.e. passengers.

The vast majority of Uber drivers are sole operators (ET paragraph 34), so, for the purposes of the New Terms, the reality is that they are both "driver" and "customer" and it is the individual driver who provides "transportation services" to users of those services (passengers).

For its part, UBV provides "the Uber Services", which are defined as:

"1.17. … Uber's electronic services rendered via a digital technology platform, being on-demand intermediary and related services that enable transportation providers to provide Transportation Servers to Users seeking Transportation Services; such Uber Services include access to the Driver App and Uber's related software, websites, payment services … and related support services systems …"

Under the New Terms, it is expressly acknowledged that UBV:

"is a technology services provider that does not provide Transportation Services, function as a transportation carrier or agent for the transportation of passengers"

It is further provided, under the sub-heading "Relationship of the parties", that:

"13.1. Except as otherwise expressly provided herein with respect to Uber acting as the limited payment collection agent solely for the purpose of collecting payment from Users on behalf of Customer, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship … between Uber (or any of its Affiliates in the Territory) and a Customer or any Driver; and (b) no joint venture, partnership, or agency relationship exists between Uber and Customer or Uber and any Driver."

UBV's role as "payment collection agent" arises from clause 4 of the New Terms; under the sub-heading "Financial Terms", it is (relevantly) provided:

"4.1. Fare Calculation and Customer Payment. Customer is entitled to charge a fare for each instance of completed Transportation Services provided to a User that are obtained via the Uber Services ("Fare") … Customer: (i) appoints Uber as Customer's limited payment collection agent solely for the purpose of accepting the Fare, applicable Tolls and, depending on the region and/or if requested by the Customer, applicable taxes and fees from the User on behalf of the Customer via the payment processing functionality facilitated by the Uber Services; and (ii) agrees that payment made by User to Uber shall be considered the same as payment made directly by User to Customer. …

4.4. Service Fee. In consideration of Uber's provision of the Uber Services, Customer agrees to pay Uber a service fee on a per Transportation Services transaction basis calculated as a percentage of the Fare …

4.5. Cancellation charges. Customer acknowledges and agrees that Users may elect to cancel requests for Transportation Services that have been accepted by a Driver (either directly or via Uber's Affiliate …[ULL] acting as agent) at any time prior to the Driver's arrival. In the event that a User cancels an accepted request for Transportation Services, Uber may charge the User a cancellation fee on behalf of the Customer. If charged, this cancellation fee shall be deemed the Fare for the cancelled Transportation Services …"

Otherwise the New Terms lay down how the Uber Services are to be used (clause 2) and grant the driver ("the Customer") a non-transferable licence to use the app (clause 5). Under clause 2.1, each driver is to be given a non-transferable "Driver ID" - the identification and password key enabling them to access and use the app - and, by clause 2.2, it is provided:

"… When the Driver App is active, User requests for Transportation Services may appear to a Driver via the Driver App if the Driver is available and in the vicinity of the User. If a Driver accepts (either directly or through an Uber Affiliate … [ULL] acting as agent for the Customer/Driver) a User's request for Transportation Services, the Uber Services will provide certain User Information to such Driver via the Driver App, including the User's first name and pickup location. Driver will obtain the destination from the User, either in person upon pickup or from the Driver App if the User elects to enter such destination via Uber's mobile application. Customer acknowledges and agrees that once a Driver has accepted (either directly or through … [ULL] acting as agent for the Customer/Driver) a User's request for Transportation Services, Uber's mobile application may provide certain information about the Driver to the User … As between Uber and Customer, Customer acknowledges and agrees that: (a) Customer and its Drivers are solely responsible for determining the most effective, efficient and safe manner to perform each instance of Transportation Services; and (b) except for the Uber Services or any Uber Devices (if applicable), Customer shall provide all necessary equipment, tools and other materials, at Customer's own expense, necessary to perform Transportation Services."

Further, at clause 2.3, it is provided:

"2.3. Customer's Relationship with Users. Customer acknowledges and agrees that Customer's provision of Transportation Services to Users creates a legal and direct business relationship between Customer and the User, to which neither Uber nor … [ULL] is a party. Neither Uber nor … [ULL] is responsible or liable for the actions or inactions of a User in relation to the activities of Customer, a Driver or any Vehicle. Customer shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from its provision of Transportation Services. …"

Although, at clause 2.4, the New Terms acknowledge the "legal and direct business relationship between Uber and Customer", it is further provided that:

"… Uber and … [ULL] do not, and shall not be deemed to, direct or control Customer or its Drivers generally or in their performance under this Agreement specifically, including in connection with the operation of Customer's business, the provision of Transportation Services, the acts or omissions of Drivers, or the operation and maintenance of any Vehicles. Whilst authorised to provide Transportation Services under this Agreement, Customer and its Drivers retain the sole right to determine when and for how long each of them will utilize the Driver App or the Uber Services. Customer and its Drivers retain the option, via the Driver App, to decline or ignore a User's request for Transportation Services via the Uber Services, or to cancel an accepted request …"

Provision is also made for a ratings' system, relevantly:

"2.6.2. Customer acknowledges that Uber desires that Users have access to high-quality services via Uber's mobile application. In order to continue to receive access to the Driver App and the Uber Services, each Driver must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Uber for the Territory … In the event a Driver's average rating falls below the Minimum Average Rating, Uber will notify Customer and may provide the Driver in Uber's discretion, a limited period of time to raise his or her average rating … If such Driver does not does not increase his or her average rating above the Minimum Average Rating within the time period allowed (if any), Uber reserves the right to deactivate such Driver's access to the Driver App and the Uber Services. Additionally, Customer acknowledges and agrees that repeated failure by a Driver to accommodate User requests for Transportation Services while such Driver is logged in to the Driver App creates a negative experience for Users … Accordingly, Customer agrees and shall ensure that if a Driver does not wish to provide Transportation Services for a period of time, such Driver will log off of the Driver App."

There are further requirements for drivers at clause 3 of the New Terms, ensuring that the driver holds a valid driver's licence and all other required documentation and that:

"3.3. … To ensure Customer's and each of its Drivers' compliance with all [driver and vehicle] requirements … and to allow Uber and … [ULL] to comply with their regulatory requirements, Customer must provide Uber with written copies of all such licenses, permits … [etc] prior to … provision of any Transportation Services … [and on renewal] …"

There is, additionally, a specific Driver Addendum to the New Terms, again entered into with UBV, which essentially replicates the relevant provisions set out above but is framed as an agreement directly between UBV and the individual driver.

Having set out the relevant contractual provisions, I note the ET considered there were discrepancies in language between how Uber's case was presented in the proceedings (consistent with the contractual documentation) and other material emanating from Uber, which appeared incompatible: for example, the various references to "Uber drivers", "our drivers" and to "Ubers" or "an Uber" (that is, to Uber vehicles) (paragraph 67 of the ET Reasons); the assertion that Uber had provided "job opportunities", potentially generating "tens of thousands of jobs …" (ET Reasons paragraph 68); and the use of the language of "commission" (ET paragraph 69).

The Relevant Legislative Provisions

For the purposes of the ERA, section 230(3) defines "worker" as follows:

"230. Employees, workers etc

(3) In this Act "worker" … means an individual who has entered into or works under (or, where the employment has ceased, worked under) -

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker's contract shall be construed accordingly."

A contract falling within section 230(3)(b) has come to be referred to as a "limb (b)" contract.

The same definition is also found at section 54(3) NMWA and regulation 2(1) WTR.

The ET was further concerned with the definition of "working time", as provided by regulation 2(1) WTR:

" "working time", in relation to a worker, means -

(a) any period during which he is working, at his employer's disposal and carrying out his activities or duties,

and "work" shall be construed accordingly."

As for calculating pay for the purposes of the NMWA and NMWR, Uber argued that drivers (if workers) were carrying out "time work", defined by regulation 30 NMWR as:

"… work, … in respect of which a worker is entitled under their contract to be paid -

(a) by reference to the time worked by the worker;

(b) by reference to a measure of output in a period of time where the worker is required to work for the whole of that period;

(c) for work that would fall within sub-paragraph (b) but for the worker having an entitlement to be paid by reference to the period of time alone when the output does not exceed a particular level."

It is common ground that if the drivers are not engaged on "time work", the default position must be that they are engaged on "unmeasured work" (regulation 44 NMWR).

The ET's Decision and Reasoning

Acknowledging that Uber drivers in the UK were under no obligation to switch on the app - and noting the Claimants' case accepted that there was no overarching "umbrella" contract - the ET considered the legal position when the app was switched on, concluding:

"86. … any driver who (a) has the App switched on, (b) is within the territory in which he is authorised to work … and (c) is able and willing to accept assignments, is, for so long as those conditions are satisfied, working for Uber under a 'worker' contract and a contract within each of the extended definitions. …"

In reaching that conclusion, the ET commented that any organisation:

"87. … (a) running an enterprise at the heart of which is the function of carrying people in motor cars from where they are to where they want to be and (b) operating in part through a company discharging the regulated responsibilities of a PHV operator, but (c) requiring drivers and passengers to agree, as a matter of contract, that it does not provide transportation services … and (d) resorting in its documentation to fictions, twisted language and even brand new terminology, merits … a degree of scepticism. …"

More specifically, the ET rejected Uber's denial that it was in business as a supplier of transportation services, concluding that its "products" spoke for themselves:

"89. … they are a variety of driving services. Mr Aslam does not offer such a range. Nor does Mr Farrar, or any other solo driver. The marketing self-evidently is not done for the benefit of any individual driver. Equally self-evidently, it is done to promote Uber's name and 'sell' its transportation services. …"

In this vein, the ET referenced proceedings under the title Douglas O'Connor v Uber Technologies Inc Case3:13-cv-03826-EMC, 11 March 2015, in which the North Carolina District Court had rejected Uber's assertion that it was a technology company and not in the business of providing transportation services.

The ET further concluded that Uber's:

"90. … general case and the written terms on which they rely do not correspond with the practical reality. The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common 'platform' is to our minds faintly ridiculous. …"

And it rejected Uber's contention that drivers might "grow" their businesses:

"… no driver is in a position to do anything of the kind, unless growing his business simply means spending more hours at the wheel. …"

Or that Uber's function could be characterised as supplying drivers with "leads":

"… That suggests that the driver is put into contact with a possible passenger with whom he has the opportunity to negotiate and strike a bargain. But drivers do not and cannot negotiate with passengers (except to agree a reduction of the fare set by Uber). They are offered and accept trips strictly on Uber's terms."

Testing Uber's case further, the ET noted:

"91. … Since it is essential to that case that there is no contract for the provision of transportation services between the driver and any Uber entity, the Partner Terms and the New Terms require the driver to agree that a contract for such services (whether a 'worker' contract or otherwise) exists between him and the passenger, and the Rider Terms contain a corresponding provision. Uber's case is that the driver enters into a binding agreement with a person whose identity he does not know (and will never know) and who does not know and will never know his identity, to undertake a journey to a destination not told to him until the journey begins, by a route prescribed by a stranger to the contract (UBV) from which he is not free to depart (at least not without risk), for a fee which (a) is set by the stranger, and (b) is not known by the passenger (who is only told the total to be paid), (c) is calculated by the stranger (as a percentage of the total sum) and (d) is paid to the stranger. Uber's case has to be that if the organisation became insolvent, the drivers would have enforceable rights directly against the passengers. And if the contracts were 'worker' contracts, the passengers would be exposed to potential liability as the driver's employer … The absurdity of these propositions speaks for itself. Not surprisingly, it was not suggested that in practice drivers and passengers agree terms. Of course they do not since (apart from any other reason) by the time any driver meets his passenger the deal has already been struck (between ULL and the passenger). …"

In the circumstances, the ET concluded any supposed driver/passenger contract was a "pure fiction", bearing no relation to the real dealings and relationships between the parties. It further rejected any suggestion that Uber was working for the drivers - the only sensible interpretation was that the relationship was the other way around:

"92. … The drivers provide the skilled labour through which the organisation delivers its services and earns its profits. We base our assessment … in particular on the following considerations.

(1) The contradiction in the Rider Terms between the fact that ULL purports to be the drivers' agent and its assertion of "sole and absolute discretion" to accept or decline bookings.

(2) The fact that Uber interviews and recruits drivers.

(3) The fact that Uber controls the key information (in particular the passenger's surname, contact details and intended destination) and excludes the driver from it.

(4) The fact that Uber requires drivers to accept trips and/or not to cancel trips, and enforces the requirement by logging off drivers who breach those requirements.

(5) The fact that Uber sets the (default) route and the driver departs from it at his peril.

(6) The fact that UBV fixes the fare and the driver cannot agree a higher sum with the passenger. (The supposed freedom to agree a lower fare is obviously nugatory.)

(7) The fact that Uber imposes numerous conditions on drivers (such as the limited choice of acceptable vehicles), instructs drivers as to how to do their work and, in numerous ways, controls them in the performance of their duties.

(8) The fact that Uber subjects drivers through the rating system to what amounts to a performance management/disciplinary procedure.

(9) The fact that Uber determines issues about rebates, sometimes without even involving the driver whose remuneration is liable to be affected.

(10) The guaranteed earnings scheme (albeit now discontinued).

(11) The fact that Uber accepts the risk of loss which, if the drivers were genuinely in business on their own account, would fall upon them.

(12) The fact that Uber handles complaints by passengers, including complaints about the driver.

(13) The fact that Uber reserves the power to amend the drivers' terms unilaterally."

The ET was thus satisfied that the Claimants fell to be considered as "limb b" workers for the purpose of section 230(3) ERA:

"93. … the drivers fall full square within the terms of the 1996 Act, s230(3)(b). It is not in dispute that they undertake to provide their work personally. … we are clear that they provide their work 'for' Uber. We are equally clear that they do so pursuant to a contractual relationship. If, as we have found, there is no contract with the passenger, the finding of a contractual link with Uber is inevitable. But we do not need to base our reasoning on a process of elimination. We are entirely satisfied that the drivers are recruited and retained by Uber to enable it to operate its transportation business. The essential bargain between driver and organisation is that, for reward, the driver makes himself available to, and does, carry Uber passengers to their destinations. Just as in Autoclenz, the employer is precluded from relying upon its carefully crafted documentation because, we find, it bears no relation to reality. And if there is a contract with Uber, it is self-evidently not a contract under which Uber is a client or customer of a business carried on by the driver. … we regard that notion as absurd."

The ET considered this conclusion was compatible with the guidance from case-law:

"94. … the agreement between the parties is to be located in the field of dependent work relationships; it is not a contract at arm's length between two independent business undertakings. Moreover the drivers do not market themselves to the world in general; rather they are recruited by Uber to work as integral components of its organisation."

Having found that the terms on which Uber relied did not correspond with the reality of its relationship with the drivers, the ET considered itself free to disregard them; noting the unequal bargaining positions of the parties (in particular, many Uber drivers - a substantial proportion of whom did not speak English as their first language - would be unused to reading and interpreting dense legal documents couched in impenetrable prose), the ET saw this as:

"96. … an excellent illustration of the phenomenon of which Elias J warned in the Kalwak case of "armies of lawyers" contriving documents in their clients' interests which simply misrepresent the true rights and obligations on both sides"

As for when Uber drivers should be treated as undertaking services as "workers", the ET rejected the contention this could only be when a driver was actually carrying a passenger:

"100. … We do not accept that submission because, in our view, it confuses the service which the passenger desires with the work which Uber requires of its drivers in order to deliver that service. It is essential to Uber's business to maintain a pool of drivers who can be called upon as and when a demand for driving services arises. The excellent 'rider experience' which the organisation seeks to provide depends on its ability to get drivers to passengers as quickly as possible. To be confident of satisfying demand, it must, at any one time, have some of its drivers carrying passengers and some waiting for an opportunity to do so. Being available is an essential part of the service which the driver renders to Uber. …"

In the alternative, the ET concluded:

"102. … at the very latest, the driver is 'working' for Uber from the moment when he accepts any trip. He is then bound, subject to the cancellation policy, to complete the trip (and will not be offered any other work until he has done so) and is required immediately by Uber to undertake work essential to Uber's delivery of the service to the passenger, namely to proceed at once to the pick-up point."

Having found the Uber driver to be a "limb b" worker, the ET turned to the question when their "working time" would begin and end for the purposes of regulation 2(1) WTR. It rejected the Claimants' broader case that this was from their leaving to returning home. Consistent with its earlier reasoning, the ET concluded (subject to cases when a trip would take a driver outside the relevant territory, on which it had heard insufficient argument) the drivers' working time started as soon as they were in their territory, with the app switched on, ready and willing to accept trips, and would end as soon as one of those conditions ceased to apply:

"122. … For so long as the conditions apply, but no longer, we consider that he is "working, at his employer's disposal and carrying out his activity or duties." … (It will, of course, be a matter of evidence in each case whether, and for how long, he remains ready and willing to accept trips.) …"

In the alternative, the ET found that working time began at the latest when the driver accepts a trip and ends when the trip is completed (see paragraph 124).

Lastly the ET considered how the Uber drivers' working time was to be treated under the NMWA. Relying on its earlier reasoning, the ET rejected Uber's submission that the drivers were to be treated as engaged on "time work" (working only when actually carrying a passenger). In the circumstances, it concluded the default position must apply: an Uber driver was to be treated as performing "unmeasured work", which would include time spent returning to the driver's territory after completing a trip outside that area but not travel time for the purpose of getting to and from work (ET paragraphs 127 to 128).

The Appeal and the Parties' Submissions

The Appeal

Uber's appeal challenges the following three findings of the ET:

(1) That the Claimants were "employed" as "workers" by ULL;

(2) That the Claimants' working time was to be calculated in accordance with regulation 2(1) WTR; and

(3) That for the purposes of the NMWR, they were engaged in "unmeasured work".

Submissions

Uber's Case

The central question in this appeal was whether the ET had erred in law in finding that the Claimants were employed by ULL as workers; in particular, whether they were working under a contract with ULL whereby they undertook to personally perform services for ULL (questions that underpinned each of the ET's findings challenged by the appeal). It was Uber's case that the Claimants had never worked under a contract with ULL: they had made no contractual undertaking to perform any services but, even if they had, it was not with ULL. The Claimants' contract was with UBV, the entity that owned the Uber app, which allowed them to access the app, in consideration of which they would pay UBV commission of 20 or 25% of the fare for each journey. The app was a powerful piece of technology putting drivers in touch with those wanting to utilise their driving services. Neither drivers nor passengers were under any obligation to use the Uber app; if they did not do so, they would pay nothing to UBV. ULL's function was to hold the PHV operator licence for London and to meet the regulatory requirements for that licence: dealing with complaints and lost property, accepting bookings; as such ULL was operating in the same way as a traditional mini-cab company, although its scale was much greater because of the app. The case thus had to be seen in the context of the traditional mini-cab or hire car operation, subject to a particular regulatory environment, utilising the modern technology of the Uber phone app.

Mini-cab companies could operate in different ways. Drivers might be employees, alternatively, they might be self-employed but still "workers" for statutory purposes. Another alternative would be for the company to act as agent for drivers who were in business on their own account; in such cases, any contract between company and driver would not be for services provided by the latter but for the agency services provided by the company to the driver. These common methods by which mini-cab companies might operate were recognised as such in employment and VAT case-law. In the employment law context, see: Mingeley v Pennock and Anor (trading as Amber Cars) [2004] ICR 727 CA (a discrimination case (but subject to essentially the same statutory test) in which it was held there was no contract for Mr Mingeley to personally execute any work or labour for Amber Cars, he simply paid a weekly fee to access their computer system and (per Buxton LJ) had collateral contracts with passengers); and Khan v Checkers Cars Ltd UKEAT/0208/05, [2005] UKEAT 0208_05_1612 (in which the EAT questioned the Respondent's concession that Mr Khan was a worker when there was no mutuality of obligation). Under VAT law, the position was recognised in the guidance provided by VAT Notice 700/25; in the case-law, the decisions went both ways although in "cash" cases it was consistently held that the passenger and driver were the parties to the relevant contractual relationship (the position required greater investigation in account cases), see Carless v Customs and Excise Commissioners [1993] STC 632 QBD, the High Court upholding the VAT Tribunal's finding that the contract was one of agency. Although a different conclusion was reached by the VAT and Duties Tribunal in Akhtar Hussain t/a Crossleys Private Hire Cars v The Commissioners of Customs and Excise (No. 16194) [1999], in that case the business offered customer discounts not passed on to the drivers (a distinction noted by the First-Tier Tribunal (Tax Chamber) in Lafferty and Anor v Commissioners for HMRC [2014] UKFTT 358). As recognised in Khalid Mahmood v Commissioners for HMRC [2016] UKFTT 622 TC, the key question was: who made the supplies of transportation?

Uber's agency model was nothing new: it was simply the scale of the arrangement that was different but that reflected the new technology. An analogous arrangement could be seen in the case of the golf club caddie in Cheng Yuen v Royal Hong Kong Golf Club [1998] ICR 131, in which the Privy Council rejected the view taken at first instance that it was "artificial" to see the club as acting as agent for the caddie when collecting the fee for his services from individual golfers, allowing there could be a separate contract each time the complainant agreed to caddie for a particular golfer (an analysis adopted by Elias LJ in Stringfellow Restaurants Ltd v Quashie [2012] EWCA Civ 1735 at paragraph 49).

Here the written agreements made clear that the drivers provided transportation services to passengers; Uber was simply the agent. The question was whether the written contracts reflected the true position (Autoclenz Ltd v Belcher and Ors [2011] ICR 1157 SC(E)), but inequality of bargaining power did not mean the written agreement should be ignored (Secret Hotels2 Ltd (formerly Med Hotels Ltd) v Revenue and Customs Commissioners [2014] UKSC 16). And the absence of a contract between the drivers and ULL was not fatal to the existence of an agency relationship, which could be inferred from conduct (see Bowstead & Reynolds on Agency (20th edition, Sweet & Maxwell 2016, at paragraph 1-0006) and Garnac Grain Company Inc v HMF Faure & Fairclough Ltd and Ors [1968] AC 1130 HL(E)). The ET here erred in disregarding the written contracts between the drivers, UBV and the passengers, failing to have regard to the contract arising thereby in respect of each trip between driver and passenger once ULL accepted a booking on the driver's behalf. The provision for a direct contract between putative worker and service end-user (rather than putative employer) distinguished this case from Autoclenz (there the services were provided to the putative employer; the only question was as to the capacity in which they were provided). The ET further erred in concluding that any of the matters on which it relied (see ET paragraphs 87 to 96) meant the written contracts, properly construed, did not reflect the true relationship between the parties. First, there was no proper basis for the ET's rejection of the written contracts; second, it erred in finding Uber was a supplier of transportation services when such services were contractually supplied by the drivers to the passenger, not by Uber; and third, the ET disregarded basic principles of agency law and thus erred in finding "absurd" a number of propositions which were legally orthodox and factually unremarkable (as agent, Uber could still market its services; it was unremarkable that an agent might bind a disclosed but unidentified principal; a del credere agent could indemnify their principal (Bowstead paragraph 1-038)).

The ET had further erred in relying on regulatory requirements as indicia of an employment relationship, specifically as required of ULL as holder of the PHV Operator's Licence, pursuant to the Regulations. The written agreement between UBV and drivers envisaged a contract between driver and passenger, which might be arranged through an affiliate (in London, ULL) as required by the relevant regulatory regime. The regulatory context of itself could not establish a particular form of relationship: Parliament legislated for PHV drivers in London in 1998 (the 1998 Act) but there was nothing to suggest it had intended to outlaw the use of the agency model in the PHV industry; the regulatory requirements (accepting and declining bookings; checking drivers' documentation; obtaining a record of passenger details; fixing the fare; handling passenger complaints) were, at most, neutral in this context - they were legally irrelevant to the characterisation of any contractual relationship between the parties.

The ET had further made internally inconsistent and perverse findings of fact in concluding the Claimants were required to work for Uber. It had wrongly held that drivers were required to accept trips and not cancel, when the ET had: (i) found there was no obligation on a driver to switch on the app (ET paragraph 85), and (ii) expressly allowed that a driver might have the app switched on but still not be able and willing to accept assignments (ET paragraph 86). Specifically, the finding at paragraph 92(4) that drivers were required to accept trips was without evidential foundation and paragraph 51 could not be relied on in support as this was not a finding of fact by the ET (Uber contends this was in fact a reference to a US document; there was no evidence the warning had been applied in the UK). It was also wrong to hold that Uber "accepted the risk of loss" (ET paragraph 92(11)), given the ET's findings were consistent with the conclusion that the drivers accepted that risk. Similar points could be made in respect of the conclusion that the Claimants' working time was to be calculated in accordance with regulation 2(1) WTR: as stated above, the Claimants were at liberty to take on or refuse work as they chose, or to cancel trips already confirmed, and could work for others, including direct competitors of Uber; in the circumstances, they were not at Uber's disposal or working for Uber; they were providing services to the passenger, not to or for Uber. That was also the position in respect of the finding that, for the purposes of regulation 44 of the NMWR, the Claimants were engaged in "unmeasured work", a finding that meant the drivers would be entitled to be paid at national minimum wage rates once they were in the relevant territory with the app switched on, even if they refused all trips offered.

The Claimants' Case

The agency argument was crucial to Uber's case: if ULL was not the drivers' agent, the driver/passenger contract was a fiction and if the written characterisation of the relationship did not reflect the reality, the label used by the parties would not matter and the ET was entitled to so find. In the case of ULL, there was no written document under which drivers had appointed it as their agent. Uber now contended agency was to be inferred from the way the relationship operated in the regulatory context but that was not how the case was put in terms below. The ET's decision reflected the case before it (see ET Reasons paragraph 91); on that basis it rejected any argument that the driver was acting pursuant to agreements entered into with passengers by ULL as agent. Moreover, the suggestion that an agency relationship might commonly be inferred from the conduct of mini-cab businesses was not supported by VAT Notice 700/25: whether a taxi or private hire business acted as agent for drivers depended on the terms of any (written/oral) contract with the drivers. And the VAT cases took the matter little further, showing this was a complex and fact-specific question for the first instance tribunal (see, for example, Carless at page 638a-d). Notwithstanding Uber's contention that the agency model was normal within the industry, the VAT cases showed it was not uncommon for the PHV operator licence holder to act as principal, see, for example, Hussain t/a Crossleys Private Hire Cars v Commissioners of Customs and Excise (16194) [1999] and Bath Taxis (UK) Ltd v HMRC (20974) [2009] UKVAT V20974 - both cases emphasising the fact-sensitive nature of the enquiry.

In conducting this enquiry, aspects of the relationship arising from the regulatory regime were not irrelevant - for example, the personal service requirement (section 4 of the 1998 Act and regulation 2 of the Regulations) could not be ignored - although here the facts took this beyond a relationship dictated by the regulatory requirements. Given it was inherent in Uber's case that the written contractual documentation did not provide the complete picture (ULL's agency relationship with the drivers being inferred from conduct), that had to be for the ET to determine, taking into account all facts and circumstances. Even if this had been a case where the relevant relationship was governed by a written contract between the relevant parties, the ET was entitled to look at the reality of the situation, see Autoclenz. Secret Hotels2 was of less assistance, not least as the very feature causing scepticism in the employment context - inequality of bargaining power - was the basis for the decision, and it was not being said (in contrast to the present case) that the contractual documentation did not reflect the reality.

The perversity challenge to the ET's conclusions had to meet the high threshold for such appeals. The ET had made findings as to what happened in practice - for example, as to the way drivers were penalised for cancellations or for not using the Uber-GPS route; or as to Uber's acceptance of financial loss - not reflected in the contractual documentation. It found ULL gave direction and control beyond that required by the regulatory regime (e.g. complaint investigation and adjudication going further than the requirement to record; the prohibition on drivers contacting passengers, which was no part of the regulatory requirements), at a level that pointed away from an agency relationship (Bowstead paragraph 1-017) and towards the existence of an employment relationship (and see paragraphs 70 to 72, Allonby v Accrington and Rossendale College and Ors [2004] ICR 1328 ECJ). Similar observations could be made relating to the ET's findings relevant to the integration of the drivers into the Uber business as a supplier of transportation services (see paragraph 89) - a further factor acknowledged to be relevant for the determination of employment status, see paragraph 25 Bates van Winkelhof v Clyde & Co LLP and Anor [2014] ICR 730 CA.

Moreover, the drivers' right to decline work when offered was not fatal to a finding of worker status, see Carmichael and Anor v National Power plc [1999] 1 WLR 2042 HL, in which it was held that lack of mutuality of obligation might be fatal to the existence of an umbrella contract but said nothing about employment status when actually working (see at page 2047G-H), and also see James v Redcats (Brands) Ltd [2007] ICR 1006 EAT at paragraphs 82 to 84 (although it was allowed to have a potential relevance in Quashie v Stringfellow at paragraphs 10 to 13, in Windle v Secretary of State for Justice [2016] ICR 721 CA at paragraphs 22 to 25 and in Pimlico Plumbers Ltd v Smith [2017] ICR 657 CA at paragraph 145). In any event, the ET here found there was a requirement for drivers to accept 80% of offers of work, which was sufficient for a finding of an obligation to work. The ET had found that being in the territory, with the app switched on and being willing and able to work amounted to working time for the purposes of the WTR (and the finding that this was unmeasured work for NMWA purposes stood or fell with the WTR finding): being available was part of the service - ULL needed a pool of available drivers in the territory. Even if that was not correct, the drivers had to be workers engaged on working time once they were actually driving a particular passenger on an accepted trip. The fact that a different view had been taken in Mingeley was nothing to the point, not least as that case was argued pre-Autoclenz (a point that could also be made in respect of Cheng).

The Case-Law - Discussion and Conclusions as to the Correct Approach

There have been a number of appellate cases concerned with the proper interpretation of the definition of the limb (b) worker. The first point to note is that the statutory test does not require that there is an "umbrella" contract; there may, instead, be a series of contracts arising as and when work is undertaken, see Carmichael v National Power plc [1999] 1 WLR 2042, HL and James v Redcats (Brands) Ltd [2007] ICR 1006 EAT. There does, however, have to be a contract between putative worker and putative employer, even if purely assignment based, and the determination of the nature of the relationship may be informed (as part of the overall factual matrix) by the fact that there are gaps between assignments (see Quashie v Stringfellow at paragraphs 10 to 13, Windle v SoS for Justice [2016] ICR 721 CA at paragraphs 22 to 25, and Pimlico Plumbers Ltd v Smith [2017] ICR 657 CA at paragraph 145).

The question at the heart of the current appeal is whether there was any contract between the drivers and ULL and, if so, whether that was a contract whereby the drivers provided services to ULL or whether ULL provided a service (as agent) to the drivers as and when they undertook driving services for passengers. Although there was no written contract directly between ULL and the drivers, that would not be fatal to either case. For its part, ULL relies on the characterisation of its relationship with Uber drivers in other contractual documentation, which it contends represents the reality of the position: Uber drivers acknowledging that it acts as their agent in their provision of transportation services to passengers. The ET disagreed, holding that the contractual documentation did not reflect the reality and thus that - following Autoclenz Ltd v Belcher and Ors [2011] ICR 1157 SC(E) - it was entitled to disregard the terms in the written agreements and the labels used therein.

In Autoclenz Lord Clarke of Stone-cum-Ebony JSC (with whom the other members of the Court agreed) considered the normal approach under contract law (as summarised by Aikens LJ in the Court of Appeal in Autoclenz [2010] IRLR 70):

"20. …

"87. … Express contracts (as opposed to those implied from conduct) can be oral, in writing or a mixture of both. Where the terms are put in writing by the parties and it is not alleged that there are any additional oral terms to it, then those written terms will, at least prima facie represent the whole of the parties' agreement. Ordinarily the parties are bound by those terms where a party has signed the contract: see eg L'Estrange v F Graucob Ltd [1934] 2 KB 394. If a party has not signed a contract, then there are the usual issues as to whether he was made sufficiently aware of the clauses for a court to be able to conclude that he agreed to the terms in them. That is not an issue in this case.

88. Once it is established that the written terms of the contract were agreed, it is not possible to imply terms into a contract that are inconsistent with its express terms. The only way it can be argued that a contract contains a term which is inconsistent with one of its express terms is to allege that the written terms do not accurately reflect the true agreement of the parties.

89. Generally, if a party to a contract claims that a written term does not accurately reflect what was agreed between the parties, the allegation is that there was a continuing common intention to agree another term, which intention was outwardly manifested but, because of a mistake (usually a common mistake of the parties, but it can be a unilateral one) the contract inaccurately recorded what was agreed. If such a case is made out, a court may grant rectification of a contract. See, generally, the discussion in the speech of Lord Hoffmann, in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, paras 48-66, with whom all the other Law Lords agreed." "

Whilst not departing from those principles in respect of ordinary contracts, in particular commercial contracts, Lord Clarke observed that a different approach had been adopted in the case-law applicable to employment contracts. In particular, he approved the judgment of Elias J (as he then was), in the EAT case Consistent Group Ltd v Kalwak [2007] IRLR 560:

"25 …

"57. The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work, in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship. Peter Gibson LJ was alive to the problem [in Express & Echo Publications Ltd v Tanton [1999] ICR 693]. He said this (p 697G) 'Of course, it is important that the industrial tribunal should be alert in this area of the law to look at the reality of any obligations. If the obligation is a sham it will want to say so.'

58. In other words, if the reality of the situation is that no one seriously expects that a worker will seek to provide a substitute, or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship. But if these clauses genuinely reflect what might realistically be expected to occur, the fact that the rights conferred have not in fact been exercised will not render the right meaningless.

59. … Tribunals should take a sensible and robust view of these matters in order to prevent form undermining substance …" "

The EAT's judgment in Kalwak was reversed by the Court of Appeal but Lord Clarke was clear Elias J had set out the correct approach: the question in every case was what was the true agreement between the parties and that required looking at the reality of the obligations and the reality of the situation (paragraph 29 Autoclenz SC). In the employment context, the particular reality of the situation is likely to be different to the environment in which a commercial contract is agreed; as Aikens LJ identified (paragraph 92) in the Court of Appeal:

"92. … the circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. I accept that, frequently, organisations which are offering work or requiring services to be provided by individuals are in a position to dictate the written terms which the other party has to accept. In practice, in this area of the law, it may be more common for a court or tribunal to have to investigate allegations that the written contract does not represent the actual terms agreed and the court or tribunal must be realistic and worldly wise when it does so. …"

Lord Clarke agreed, holding:

"35. So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description."

In considering the approach to this issue in the present case, however, Uber relies on a more recent judgment of the Supreme Court (given by Lord Neuberger) in Secret Hotels2 Ltd (formerly Med Hotels Ltd) v Revenue and Customs Commissioners [2014] UKSC 16, [2014] STC 937. Autoclenz was not cited in Secret Hotels2, no doubt because Secret Hotels2 had nothing to do with an employment relationship but concerned the potential VAT liability of a travel company ("Med"), which marketed and arranged the sale of holiday accommodation. The Court held that Med acted as an agent for the providers of the accommodation, so did not have to account for VAT on the sales; it was not (contrary to the finding by the First-Tier Tribunal, upheld by the Court of Appeal) supplying accommodation to customers or acting as principal. In considering how the relationships were to be characterised - and noting it was not suggested the written agreements were a sham or liable to rectification - the Court stated:

"34. … (i) the right starting point is to characterise the nature of the relationship between Med, the customer, and the hotel, in the light of the … Agreement and the website terms ('the contractual documentation'), (ii) one must next consider whether that characterisation can be said to represent the economic reality of the relationship in the light of any relevant facts, and (iii) if so, the final issue is the result of this characterisation so far as [the relevant provision under the EC Principal VAT Directive] … is concerned."

HM Revenue and Customs Commissioners ("the Commissioners") argued that particular aspects of the contractual documentation demonstrated this was not properly to be characterised as an agency arrangement; specifically, the Commissioners relied on the one-sided (in favour of Med) nature of the documentation. The Supreme Court disagreed: the matters relied on were not inconsistent with a relationship of agency and, to the extent the contractual obligations favoured Med, merely reflected the relative negotiating positions of the parties (see paragraph 41). In Secret Hotels2, the imbalance in the parties' relative negotiating positions was thus seen as an explanation for the one-sided nature of the contractual bargain reached; it did not inform the Court's approach when testing the characterisation of the relevant relationships in the contractual documentation as against the economic reality. As I read Autoclenz, that represents (understandably, given the different context of the case) a difference to the approach that is to be adopted in the field of employment.

Moreover, recognition of the imbalance of power between the parties in the employment context has informed the introduction of the statutory rights (such as minimum wage and working time protections) that the Claimants seek to exercise in this case, see, for example, the observation of Lord Reed JSC in R (oao Unison) v Lord Chancellor [2017] UKSC 51:

"6. Relationships between employers and employees are generally characterised by an imbalance of economic power. Recognising the vulnerability of employees to exploitation, discrimination, and other undesirable practices, and the social problems which can result, Parliament has long intervened in those relationships so as to confer statutory rights on employees, rather than leaving their rights to be determined by freedom of contract. In more recent times, further measures have also been adopted under legislation giving effect to EU law. In order for the rights conferred on employees to be effective, and to achieve the social benefits which Parliament intended, they must be enforceable in practice."

Given the context in which the present case is to be determined, I return to Autoclenz. The ET had to determine what was the true agreement between the parties (here, the drivers and ULL) (Autoclenz paragraph 29). In so doing, it was important for it to have regard to the reality of the obligations and the reality of the situation (Autoclenz paragraph 30) and, in investigating allegations that the written contractual documentation did not represent the actual terms agreed, it was to be "realistic and worldly wise" (Autoclenz paragraph 34); that is an approach properly to be described as "purposive", taking into account the relative bargaining power of the parties when deciding whether the terms of any written agreement represented their true intentions (the true agreement often having to be gleaned from all the circumstances of the case, of which the written agreement is only a part (Autoclenz paragraph 35)).

In thus approaching its task, the ET's starting point must always be the statutory language, not the label used by the parties: simply because the parties have used the language of self-employment does not mean that the contract does not fall within section 230(1)(b); the distinction drawn by that provision being explained by Baroness Hale of Richmond DPSC in Bates van Winkelhof v Clyde & Co LLP [2014] ICR 730 SC(E), as follows:

"25. … within the latter class [the self-employed], the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. … The other kind are self-employed people who provide their services as part of a profession or business undertaking carried on by someone else. …"

Which side of the divide an individual falls will inevitably be case- and fact-sensitive. That, indeed, is the message I take from the various "mini-cab" cases I was referred to in the VAT context. Most are first instance decisions and not binding on this Tribunal, but, in any event, what they show is an attempt to determine in each case whether the drivers were providing their services as such to or as part of another entity (the taxi firm) or directly to the passengers as their clients or customers.

In determining that question in the employment context, it will be relevant to consider the nature of the obligations between the parties, but the absence of a general obligation to work cannot be fatal to those cases where it is accepted that there are gaps between particular engagements or assignments (see per Elias J (as he then was) in James v Redcats, at paragraph 82, distinguishing Mingeley v Pennock [2004] ICR 727 CA). Other factors that may be helpful are likely to include the degree of integration into the business undertaken by another (see Hospital Medical Group Ltd v Westwood [2013] ICR 415 CA, in particular per Maurice Kay LJ at paragraph 19) and the degree of true independence in the provision of the service (see Allonby v Accrington and Rossendale College C-256/01, [2004] ICR 1328 ECJ at paragraph 71). Seeking to provide any more specific definition to the statutory test would, however, be futile: the legislative language allows for the flexibility required in this field and respect has to be given to the nuanced assessment carried out by an ET at first instance.

Conclusions

The issue at the heart of the appeal can be simply put: when the drivers are working, who are they working for? The ET's answer to this question was that there was a contract between ULL and the drivers whereby the drivers personally undertook work for ULL as part of its business of providing transportation services to passengers in the London area. On the ET's findings, there are two possible times when the drivers might thus be considered to be working: (1) when they are in their territory, have the app switched on and are able and willing to work; or (2) when they have accepted a trip. I consider first the general question and then turn to the issue of timing.

It is Uber's case that Uber drivers are working in business on their own account directly for their passengers: ULL acts as agent for those drivers in their relationship with passengers; the drivers do not work for ULL. Uber's case on appeal has focussed on what it contends was the ET's inability to understand the nature of this agency relationship. Key to Uber's argument is its contention that the ET erred in disregarding the written contracts, which not only recorded the parties' agreed characterisation of the relationship between ULL and the drivers as one of agent/principal but (in the same way as in Secret Hotels2) set out terms governing that relationship that were consistent with that label; to the extent the ET considered those terms to be one-sided, that (again consistent with Secret Hotels2) (i) did not point away from an agency relationship, and (ii) did not entitle the ET to disregard the written contract.

In the normal commercial environment (that pertaining in Secret Hotels2) the starting point will be the written contractual documentation; indeed, unless it is said to be a sham or liable to rectification, the written contract is generally also the end point - the nature of the parties' relationship and respective obligations being governed by its terms. Here, however, the ET was required to determine the nature of the relationship between ULL and the drivers for the purposes of statutory provisions in the field of employment law; provisions enacted to provide protections to those often disadvantaged in any contractual bargain. The ET's starting point was to determine the true nature of the parties' bargain, having regard to all the circumstances. That was consistent with the approach laid down in Autoclenz and was particularly apposite given there was no direct written contract between the drivers and ULL. Adopting that approach, the ET did not accept that the characterisation of the relationship between drivers and ULL in the written agreements properly reflected the reality. In particular - and crucial to its reasoning - the ET rejected the contention that Uber drivers work, in business on their own account, in a contractual relationship with the passenger every time they accept a trip.

Uber argues that the ET thereby failed to understand how an agency relationship (i) might be typical within the private hire industry, and (ii) might operate; specifically, it criticises the ET's objection that:

"90. … The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common 'platform' is … faintly ridiculous. …"

Uber says, on the contrary, the private hire industry is full of examples of single drivers operating as separate businesses, albeit sharing certain services.

The ET was not, however, denying the possibility of individual drivers operating as separate businesses and, as such, entering into direct contracts with passengers (albeit possibly through a shared agent (the mini-cab "firm") operating as the contact); it was saying this was not what it found to be the true position in this case. In part that was due to the size of the operation: 30,000 individual drivers operating as separate businesses but sharing one point of contact might well raise a question as to whether that is a correct characterisation of what is happening and, while not determinative, the ET was entitled to have regard to the scale of the operation as part of the relevant factual matrix. More than that, however, the ET went on to test the proposition that these 30,000 individuals might still (regardless of numbers) be operating as businesses on their own account (as opposed to that of ULL), finding that did not reflect the reality: the drivers could not grow their "businesses", they had no ability to negotiate terms with passengers (save to agree a fare reduction) and had to accept work on Uber's terms.

Uber objects that a one-sided bargain is not incompatible with an agency arrangement (again, see Secret Hotels2). It further takes issue with specific findings by the ET, which it says fail to appreciate how the circumstances in question might simply be aspects of an agent/principal arrangement. More specifically, on the question of control, Uber contends that the ET failed to appreciate how control on the part of an agent might still be compatible with its role as agent to a principal; wrongly had regard to factors resulting from the regulatory regime; and reached inconsistent or perverse findings as to the existence of control.

Uber's case in these respects is founded on the premise that the ET's starting point should have been informed by the characterisation of the relationship between ULL and the drivers as set out in the documentation. I disagree. The ET was not bound by the label used by the parties; in the same way as the first instance tribunals in the VAT context, the ET was concerned to discover the true nature of the relationships involved. Its findings led it to conclude that the reality of the relationship between ULL and Uber drivers was not one of agent and principal; specifically, it rejected the argument that the drivers were the principals in separate contracts with passengers as and when they agreed to take a trip. It rejected that case because it found the drivers were integrated into the Uber business of providing transportation services, marketed as such (paragraphs 87 to 89), and because it found the arrangements inconsistent with the drivers acting as separate businesses on their own account, given that they were excluded from establishing a business relationship with passengers (drivers could neither obtain passengers' contact details nor provide their own), worked on the understanding that Uber would indemnify them for bad debts and were subjected to various controls by ULL (paragraphs 90 to 92). Having found that Uber drivers did not operate businesses on their own account and, as such, enter into contracts with passengers, the ET was entitled to reject the label of agency and the characterisation of the relationship in the written documentation.

Descending into the ET's specific findings relevant to these conclusions, although an agent might well market services as agent of its principal, the ET was entitled to see Uber's marketing as being for its collection of 'products'; the drivers being integrated into the business as deliverers of those products. Similarly, an agent may bind a disclosed but unidentified principal but where the purported 'principal' is prevented from building up a business relationship with the end user of the service, an ET is entitled to question whether that is the right way to characterise the relationship. As for the ET's finding that the parties had a shared understanding that Uber would indemnify drivers for unpaid fares, while there might be del credere agents who effectively undertake to indemnify their principals, the commentary in Bowstead (paragraph 1-038) suggests that would not be a common inference and, again, I am unable to see why the ET was not entitled see this as something also pointing away from Uber drivers being the principals in separate contractual relationships with passengers.

As for control, an agent-principal relationship need not assume power lies with the principal: while a principal must have control in the sense of authorising the agent to act as such, it is not seen as an essential aspect of the continuing relationship (Bowstead paragraph 1-017). That said, where control lies can be important in the employment field, not least as it can found vicarious liability on the part of the putative employer. Again, the ET was not bound to start from the assumption that this was a relationship of agent/principal; it was entitled to look at all factors to determine whether this was a case in which the Claimants as Uber drivers were entering into contracts with passengers as part of their own business undertakings. Seeing that they were subjected to control on the part of ULL was an indication that they were not.

As for the regulatory requirements point, where there is no suggestion that such requirements were intended to give rise to a particular form of employment or worker status, that is no doubt part of the relevant background. That said, I cannot see that an ET has to disregard factors simply because they might be said to arise from compliance with a particular regulation. In the present case, personal service was a regulatory requirement but was also a relevant matter in determining worker status. An ET is not obliged to disregard such a factor, although it should see it in context, which may include the regulatory context. At the risk of repetition, it is all part of the factual matrix for the ET to assess.

In any event, the ET's findings on control in this case were not limited to matters arising as a result of regulation. Although ULL, as holder of the relevant PHV operator licence, was required to hold copies of documentation relating to PHV drivers and their vehicles, there was no regulatory requirement for it to carry out the interview and induction process ("onboarding") it chose to operate. While it was required to obtain and record passenger details, there was no regulation stopping ULL passing these on to the drivers, still less for it to stop drivers providing their contact details to passengers. Uber says these are matters of common sense, arising due to security concerns or for obvious commercial reasons (the concern about solicitation). That might be true but I cannot see that these factors - controls introduced by ULL at its choice - were thereby rendered any the less relevant. Similarly, although ULL - as the PHV operator licence holder - was required to operate a complaints procedure, it was not obliged to resolve those complaints without recourse to the drivers; again that was its choice. Yet further, there was no regulatory requirement for the guaranteed earnings scheme that had previously been in operation for new drivers, nor any obligation to indemnify drivers against fraud, nor to meet cleaning costs. And there was nothing in the regulatory regime that obliged ULL to warn drivers they should accept at least 80% of trip requests to retain their account status (as to which, see further below), to operate a ratings system (deactivating the accounts of those unable to improve poor scores), to log drivers off if they decline three trips in a row or to provide a suggested route for each trip.

Uber further argues that crucial findings by the ET are simply inconsistent or perverse. Specifically, having found Uber drivers were under no obligation to switch on the app (paragraph 85), it was perverse to conclude that ULL exercised control. And when a driver had switched on the app, by also requiring they are "able and willing to accept assignments", it was perverse to conclude other than that switching on the app, of itself, gave rise to no obligation. Uber submits that, on the ET's own findings, it could not mean drivers assumed an obligation to accept all trips offered (see paragraph 51) and it was inconsistent for the ET then to conclude that drivers were required to accept trips (paragraph 92(4)).

The difficulty in deconstructing the ET's reasoning in this way is that the overall sense of the findings is lost. An ET is entitled to expect its Judgment to be read as a whole. Doing so, it is apparent that the finding that there was no absolute requirement to accept a trip was nuanced by the finding that a driver's account status would be lost if there was a failure to accept at least 80% of trips (ET paragraph 51). Uber objects that paragraph 51 cannot constitute a finding of fact by the ET and says the warning has been taken out of its (US) context. That presents a difficulty in that there is no specific challenge to paragraph 51 in the Notice of Appeal and the expectation there recorded has been relied on by the Claimants in oral argument before me. It would, moreover seem consistent with the ET's finding that the "Welcome Packet" given to drivers as part of the onboarding process informed them (as part of "WHAT UBER LOOKS FOR") that "Going on-duty means you are willing and able to accept trip requests" (ET paragraph 48). Similarly, while the ET did not find a driver was unable to cancel a job once accepted, it did record the warning given to those who did - that (absent good cause) this amounted to a breach of the agreement between driver and Uber (ET paragraph 53). Adopting a 'whole Judgment' approach to the reasoning, I do not see its findings as inconsistent and Uber has not met the high burden of showing that they were perverse.

For these reasons, I am satisfied the ET did not err either in its approach or in its conclusions when rejecting the contention that the contract was between driver and passenger and that ULL was simply the agent in this relationship, providing its services as such to the drivers. Having rejected that characterisation of the relevant relationships, on its findings as to the factual reality of the situation, the ET was entitled to conclude there was a contract between ULL and the drivers whereby the drivers personally undertook work for ULL as part of its business of providing transportation services to passengers in the London area.

At this stage, it is necessary to return to the timing issue identified at the outset of this discussion. The Claimants' case was not put on the basis of an umbrella contract and the ET found they were only working under a contract to personally undertake work or services for ULL as and when they had the app switched on, were within the territory in which they were authorised to work, and were able and willing to accept assignments. Allowing that there could be gaps, when the drivers did not meet these requirements, the ET did not consider that to be fatal to their status as "workers" when they did.

On the ET's findings, I certainly see no difficulty with that conclusion in respect of those periods when a driver accepts a trip from ULL (see the ET's alternative finding at paragraph 102): the obligation assumed at that point is clear - the trip is assigned to that driver and there is an expectation that they will undertake the assignment personally (substitution is not allowed), for which they will be paid at a rate laid down by ULL (through the payment collection agency of UBV), or face possible penalties if they fail to do so.

The more difficult question arises in respect of the ET's broader conclusion, that Uber drivers are also workers in between accepting assignments. The ET saw this as a consequence of the obligation on the part of the driver to be "available" (paragraph 100). Uber objects, however, that at such times the driver has no greater obligation to accept an offer of a trip from ULL than from any other private hire operator which might also have the driver on its books. The driver might thus "be available" for others in the private hire industry (possible competitors of Uber) who may also assign trips, using similar smartphone technology, to those who stand ready to take on such assignments.

This is a point that has troubled me, not least as it is a finding that also informs the ET's approach to the determination of the drivers' "working time" for the purposes of the WTR (and, correspondingly, underpinned its rejection of Uber's contention that the drivers would be engaged on "time work" under regulation 30 NMWR). Is it fatal to the drivers' working status, or to their being engaged on working time, that they might also hold themselves out as seeking work from other PHV operators in the same territory at the same time?

In most instances of assignment-specific work (sometimes referred to as "zero-hours" work), there will simply be no mutuality of obligation between assignments: no obligation for work to be offered and no obligation for any offer of work to be accepted. That, however, is not what the ET found to be the reality of this case. Once Uber drivers are in the territory and have switched on the app, they will be offered a trip if they are the nearest driver and, as I understand the ET to have found, were told they "should accept at least 80% of trip requests" to retain their account status (ET paragraph 51). There might be no requirement for a driver to stay in the territory or have the app switched on (in either event ULL will not offer them trips), but it cannot be said that no obligation arises at those times when they do. It is that obligation the ET characterised as "being available" (or, as Uber's onboarding "Welcome Packet" puts it: "Going on-duty"), an obligation it found essential to Uber's business (paragraph 100).

I record again that Uber disputes that paragraph 51 can be relied on. It says it cannot be seen as a finding of fact by the ET and wrongly refers to a warning that would never have been given to the Claimants (it says the document referenced relates to Uber in the USA). As I have previously observed, however, that gives rise to a difficulty at this level as I do not read the Notice of Appeal as including a specific challenge to paragraph 51 (nor has there been an application to the ET to correct this part of its Judgment by way of reconsideration). As the issue arose in the argument regarding paragraph 92(4) (unambiguously put in issue in the Notice of Appeal), the Claimants relied on paragraphs 51 and 52 as supporting the ET's conclusion. As I have also recorded, it is a reference that seems consistent with Uber's notion of "Going on-duty" and with the ET's finding as to ULL's business model. Taking the ET's findings in the round, I am satisfied that it permissibly found that Uber drivers assume an obligation when they are in territory and switch on the app and are available for work.

As for whether this would constitute "working time" under regulation 2(1) WTR, the definition is conjunctive: all three elements (working; at his employer's disposal; carrying out his activity or duties) need to be present for the time in question to be "working time". Allowing for a purposive approach, I can see that the Uber driver, having driven to the relevant territory (although this may be where they live) and switched on the app, might be deemed to be working and carrying out an activity or duty (being "available"). The question arises as to whether the driver is also at ULL's disposal if, at the same time, permitted to be waiting (similarly "available") for a possible assignment from another PHV operator.

While, as I have said, I think the point is a difficult one, ultimately I am persuaded that the ET grappled with this issue and permissibly concluded that this was not a fatal consideration in this case. The answer to the question lies again in the requirement that drivers "should accept at least 80% of trip requests" (if paragraph 51 can be relied on) or (more generally) that being "on-duty" means being "willing and able to accept trip requests". The ET found this amounted to a requirement to "accept trips" (ET paragraph 92(4)). Even if the evidence allowed that drivers were not obliged to accept all trips, the very high percentage of acceptances required justified the ET's conclusion that, once in the territory with the app switched on, Uber drivers were available to ULL and at its disposal.

Uber complains that this finding is contradicted by the ET's additional requirement, that drivers also be "able and willing to accept assignments". That language, however, is taken from Uber's own onboarding literature. The ET seems to have used the expression in the same way to mean that the driver is then "on-duty" (as opposed to being "off-duty") and I read this as the ET's answer to the concern that the drivers might also be workers for other putative employers while engaged on working time for Uber. If the drivers have entered into an obligation of the same nature for another entity (so, to similarly accept almost every trip request made of them), then - as a matter of evidence - they are unlikely to be at Uber's "disposal"; that is how I read the ET's observation (paragraph 122) that it will "be a matter of evidence in each case whether, and for how long, [the driver] remains ready and willing to accept trips".

As I have stated, I do not see any difficulty with the characterisation of the Uber driver's time as "working time" when a trip offer from ULL is accepted. The assessment of the driver's status and time in between the acceptance of individual trips will, however, be a matter of fact and degree. On the ET's findings of fact in this case, I do not consider it was wrong to hold that a driver would be a worker engaged on working time when in the territory, with the app switched on, and ready and willing to accept trips ("on-duty", to use Uber's short-hand). If the reality is that Uber's market share in London is such that its drivers are, in practical terms, unable to hold themselves out as available to any other PHV operator, then, as a matter of fact, they are working at ULL's disposal as part of the pool of drivers it requires to be available within the territory at any one time. That might indeed seem consistent with Mr Kalanick's description of the original Uber model as a "black car service". If, however, it is genuinely the case that drivers are able to also hold themselves out as at the disposal of other PHV operators when waiting for a trip, the same analysis would not apply.

In the circumstances and for all those reasons, I dismiss Uber's appeal.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII

URL: http://www.bailii.org/uk/cases/UKEAT/2017/0056_17_1011.html

09/12/2017

********************************************************************************

Neutral Citation Number: [2016] EWHC 3597 (Admin)

CO/2713/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Manchester Civil and Family Justice Centre

1 Bridge Street West

Manchester

Greater Manchester

M60 9DJ

19th December 2016

B e f o r e :

LORD JUSTICE McCOMBE

MR JUSTICE KERR

____________________

Between:

OLDHAM BOROUGH COUNCIL Claimant

v

MOHAMMED SAJJAD Defendant

____________________

Digital Audio Transcript of the Stenograph Notes of

WordWave International Limited Trading as DTI

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

____________________

Mr Moss appeared on behalf of the Claimant

Mr Hussain appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT

____________________

Crown Copyright ©

LORD JUSTICE McCOMBE: This is an appeal by way of Case Stated by the Justices sitting at the Oldham Magistrates' Court, in respect of a decision made by them on 26th February 2016.

The appellant is the Oldham Borough Council and the respondent is Mr Mohammed Sajjad. The appellant has been represented before us by Mr Moss of counsel and the respondent by Mr Hussain. I, for my part, am most grateful to them for their submissions.

The appeal is brought by the appellant against the decision of the Justices that the respondent was not guilty of the offence of using a motor vehicle on a road without there being in force a valid policy of insurance, contrary to section 143 of the Road Traffic Act 1988.

The respondent was the driver of a vehicle with the benefit of a Hackney Carriage licence issued by the Rossendale Borough Council, entitling the vehicle to be plied for hire within that borough's local authority area but not elsewhere. The respondent was charged with two offences alleged to have been committed on 23rd January 2015. They were first, plying for hire in the Oldham area and (b) driving without insurance, contrary to section 143 of the 1988 Act. Section 143 of the Act provides as follows:

"Subject to the provisions of this Part of this Act—

(a) a person must not use a motor vehicle on a road [or other public place] unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act..."

Then subsection (2):

"If a person acts in contravention of subsection (1) above he is guilty of an offence."

On 10th January 2016 the respondent pleaded guilty to the "plying for hire" offence but maintained a plea of not guilty to an offence of using the vehicle without insurance. On 26th February 2016 the justices heard the matter and found the respondent not guilty of the offence of driving without insurance. The appellant borough council now appeals against that finding.

The facts appearing in the Stated Case, with the written submissions of the parties annexed are as follows. The evidence was in effect agreed. On 23rd January 2015 officers from the appellant's licensing section and officers at the Greater Manchester Police took part in an operation called "Operation Arizona", targeting Hackney Carriage drivers thought to be plying illegally for hire outside the area of the local authority which had granted them a Hackney Carriage driver's licence. At the time of the alleged offence the respondent was driving the Hackney Carriage vehicle, a Toyota Avensis, registration number FL56LAE which had been licenced by Rossendale Borough Council to ply for hire within that borough but not elsewhere. The respondent held a Hackney Carriage driver's licence issued by the same council with a similar restriction.

The respondent was driving in Oldham at approximately 22.55 hours when he picked up two police officers on Oldham Road in Grotton. In his statement one of the officers stated that he raised his hand into the air to flag down the respondent's taxi. The respondent stopped and the officer opened the front door and asked him if he had a booking and he replied "no". The officer then asked: "Are you free to take to us to..." and he gave an address to which the respondent replied "Yes". He then gestured to the officers to get into the taxi, he turned on his meter but did not contact anyone via his radio. The officers were dropped at the requested address which was a predetermined location. The respondent was identified and it was established that he held a Hackney Carriage drivers licence issued by Rossendale and that he worked for Premier Cars, a private hire operator licenced by Oldham. He had a call sign called "Driver 34".

An interview was arranged for a later date with an interpreter being summoned as the respondent had difficulties understanding the officer who had spoken to him on the night in question.

On 11th February 2015 the respondent was interviewed under caution with an interpreter. In the interview he stated that he had been licensed as a Hackney Carriage driver with Rossendale for just over 12 months. He confirmed that in Oldham he worked for Premier Cars. He understood that he could not pick up passengers off the streets in Oldham. He admitted to plying for hire unlawfully and that he had picked the officers by mistake after believing that they were his customers. He stated that he also understood his insurance did not cover plying for hire in Oldham. Of course that last opinion of his is not strictly relevant; the question for the court is whether there was in place a valid insurance.

The respondent had at the time a hire agreement with a Mr Amar F Hossain in respect of the Toyota with the registration number that I have quoted. It was common ground he was entitled to drive under the terms of Mr Hossain's insurance. It was an insurance policy commencing on 1st January 2015 and ending on 22nd December 2015 in which the date concerned fell.

The certificate of insurance stated the limitations as to use in the following terms:

"(a) Use for business purposes and social and domestic and pleasure purposes by any person who is entitled to drive the vehicle.

(b) Use for business purposes including the carriage of passengers for hire or reward under a public hire licence."

Before the justices the appellant borough council argued that the terms of the insurance policy were clear, the respondent was permitted to ply for hire under a public hire licence. The respondent did not hold a Hackney Carriage driver's licence with Oldham and the vehicle was not licensed to apply for hire in Oldham. He therefore could only lawfully ply for hire in Rossendale and not in Oldham. His plea to the offence of plying for hire was inevitable. The appellant contended therefore he was acting outside the terms of the insurance policy as the policy would not cover the activity of plying for hire outside the area of the local authority which issued the Hackney Carriage licence. Further, such plying for hire constituted a criminal offence - see the guilty plea to the other charge.

The respondent, for his part, submitted there were no exclusions or conditions contained in the certificate of insurance that required the insurer to have a current vehicle licence or a private hire driver's licence for a specific borough or district. Moreover, the certificate of insurance did not contain conditions requiring the insurer to comply with any rules and regulations of any particular licensing authority. The respondent argued that on the facts and details of the insurance certificate therefore he was insured. The activity covered by the insurance certificate was, quoting again the terms of the policy (b) "use for business purposes including the carriage of passengers for hire or reward under a public hire licence." That was the exact same activity in which the respondent was engaged.

In the court below the respondent relied particularly on the case of Adams v Dunne [1978] QB RTR 281. In that case a disqualified driver had obtained a cover note by way of a false representation to the insurance company and, therefore, the insurance contract was voidable by the insurance company on the grounds of misrepresentation. It was held in that case that the driver was insured because the insurance policy was not void but only voidable at the material time. The respondent contended in the present case that his circumstances and those of the defendant in Adams v Dunne were comparable. In Adams, although the defendant was restricted from driving by a court order and he had obtained the insurance policy fraudulently, he was still covered by the terms of the policy. The present case of course does not concern any question of misrepresentation to the insurance company.

On this material the magistrates in our present case formed a view that certificate of motor insurance did not state that a vehicle was not covered by insurance for hire or reward under a public hire licence outside Rossendale. Therefore the respondent at the material time was covered by a valid policy of insurance in respect of third party risks. Although the respondent was found to be plying for hire in an area outside that to which his Hackney Carriage vehicle licence was granted, his certificate of insurance was therefore valid and accordingly the offence had not been committed.

The magistrates were also referred to the case of Telford and Wrekin Borough Council v Ahmed and/Ors [2006] EWHC 1748 (Admin) in addition to the Adams v Dunne case to which I have already referred. I will return briefly to the case of Telford a little later.

In the Case Stated in the present matter, the magistrates asked the following question for the opinion of this court:

"Was the court right in finding from the submissions made that the certificate of insurance produced by the defendant was valid in the circumstances whereby the defendant admits that he was plying for hire in an area outside of that which the Hackney Carriage licence was granted?"

The arguments raised on appeal before us were to a degree those urged upon the justices but with a gloss which is not apparent from the papers that have been before us.

Mr Hussain, for the respondent, now submits that the restriction of the insured activity of using for business purposes including the carriage of passengers for hire or reward has been restricted by reference to an area. That restriction, accordingly offends section 148(2) of the 1988 Act. It is necessary to incorporate certain parts of the Act for the purposes of this judgment to which I will particularly refer. First to section 145, which provides as follows:

"(1) In order to comply with the requirements of this Part of this Act, a policy of insurance must satisfy the following conditions...

(3) Subject to subsection (4) below, the policy—

(a)must insure such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road [or other public place] in Great Britain..."

Section 148 of the Act then provides as follows:

"(1) Where a certificate of insurance ... has been delivered under section 147 of this Act to the person by whom a policy has been effected... so much of the policy or security as purports to restrict—...

(a)the insurance of the persons insured by the policy, or...

by reference to any of the matters mentioned in subsection (2) below shall, as respects such liabilities as are required to be covered by a policy under section 145 of this Act, be of no effect."

Then subsection (2):

"Those matters are—

(e) the time at which or the areas within which the vehicle is used."

Mr Hussain's submission is that the effect of these provisions is to render the restriction on the permitted activity of use for hire or reward, is to restrict it with a restriction prohibiting the time which or the areas within which the vehicle is to be used. Moreover, what the respondent did, although a criminal offence, was nonetheless covered by the policy.

Mr Moss submits that the policy does not cover the activity on which the respondent was engaged, namely plying for hire in Oldham. Section 148(2)(e) is therefore not offended. He points out to the fact the respondent was guilty of a criminal offence to which the plea of guilty to plying for hire bears eloquent testimony.

Mr Hussain's response is that many driving activities can constitute criminal offences, for example dangerous or careless driving and a multitude of other matters that one can imagine. However, without more, the driver is not rendered guilty of the further offence of driving without insurance in such cases.

The situation is perhaps exemplified by the Adams case upon which the respondents relied below. In that case the facts were these. The defendant concealed from the insurers the fact that he was disqualified but managed to obtain a cover note for use by him of a car. The insurers took no step to avoid the contract but it was clear they would not have granted cover had they known the defendant was disqualified. He was charged with the offence of using a motor vehicle on a road without insurance under the then 1972 Act. The justices were of the opinion the cover note remained in force as it had not been cancelled by the insurers and an appeal was dismissed by this court (Melford Stevenson J, Cantley J and Coombe-Johnson J). It was held the cover note was in respect of the very driving activity being conducted by the respondent and it remained in force because even though voidable the insurers had not sought to void it. Of course driving while disqualified was clearly a quite separate criminal offence but the driver's insurance was not rendered invalid by that fact alone.

In contrast, in the Telford and Wrekin case, to which I have referred above, which was heard by Latham LJ and myself, an appeal was brought against dismissal by the District Judge Magistrates' Courts of informations preferred against the respondents alleging offences under section 143 of the present Act. In addition each of the seven respondents faced a charge in respect of an alleged offence of plying for hire a Hackney Carriage for which a licence to ply for hire had not been obtained. All the respondents stood convicted of this latter offence. Each had a licence to carry passengers for reward provided that a prior booking had been made and motor insurance policy in respect of private hire work on prior booking. Note, there was no area restriction in that case. The respondent's insurance policies covered private hire in various forms but they excluded specifically public hire at all. The appeal was allowed and the case was remitted to Magistrates' Court with a direction to convict.

In my own judgment, with which Latham LJ kindly agreed, I said this:

"Whether a policy covers a particular risk and therefore whether there is in force a valid insurance covering that risk will usually be a matter of construction of the insurance policy in question, rather than a matter of evidence. That was certainly so in the present case. In my view, it is entirely clear that the limitations to the insurance in each of these cases demonstrated that the vehicle was not covered when being used on 'ply for hire' operations...

10. It may be true that the policy in each of these cases remained in force notwithstanding any breach of its terms by the relevant respondent until avoided by the insurer. However the fact remained that such policy, in its unavoided form, did not cover the risk in question. In Adams v Dunne the risk was covered, notwithstanding that the policy was voidable for misrepresentation by the insured; it had not in fact been avoided at the relevant time. That is not the issue in this case."

While I said in Telford that the risk would usually be a matter of construction of the insurance policy in question rather than a matter of evidence, that related to the meaning of the policy as to the risk covered. I was anxious to explain in the Telford decision that the view of the witness in that case, a Mr Kemp, as to whether or not the insurer was on risk could not dictate the true meaning of the policy. The question still remains, once one has found the nature of the risk covered as a matter of language of the insurance policy, to determine whether the activity being conducted on the occasion in question is within that covered risk. Certain Mr Moss's submissions to us this morning struck me as seeking to demonstrate consequences of a particular construction of the policy rather than the questions of construction of the policy and the Act as this court has to do.

In the present case, the question is whether the insurance on its true construction, and with reference to the Act and on the facts as found, covered the activity being conducted by this respondent. He was covered for business use including the carriage of passengers for hire or reward under a public hire licence. The vehicle had a public hire licence but not for the type of hire and the area in question on which the respondent had been engaged by his passengers on this occasion. However, in so far as the insurance policy sought to limit the insurance to activity in a particular area, thus if the restriction is rendered ineffective by the operation of section 148 then the policy is to be read, as it seems to me, as if that restriction was treated as deleted in blue pencil from its wording. As Kerr J pointed out in the course of argument, that seems to be the effect of the opening words of section 148(1) which say that "so much" of the policy as purports to restrict the insurance by reference to any of the matters mentioned should be of no effect. So one would therefore remove from the relevant condition the offending passage.

Until directed to the terms of section 148(2)(e) of the Act by Mr Hussain, I confess that I was inclined to think that this case was on all fours with Telford. However, having considered that section and Mr Hussain's submissions together in particular, with the judgment of Collins J in Singh v Solihull Borough Council [2007] EWHC (Admin) I consider that Mr Hussain's submission is correct. In that particular case the policy wording was as follows:

"limitations as to use:

'Social Domestic and Pleasure purposes and Use for the business of the policyholder including the carriage of passengers for hire or reward.""

Then there was an exclusion:

"Excluding use for racing, competitions, rallies or trials, public hire, commercial travelling or any purpose in connection with the motor trade."

The principal issue in that case was whether the effect of certain European Union Directives and the decision of the Court of Justice of the European Union in Ruiz Bernaldez meant that the offender in that case was at all times insured for third party risks notwithstanding contravention of the terms of his policy in the clear and explicit terms. Collins J held the Directive did not have that effect but went on to consider (obiter) the effect of the prohibition of certain conditions under section 148 of the Act - see in a particular paragraphs 29 and 30 of the judgment. He held at paragraph 29 among other things:

"Our domestic legislation prevents such policies from containing some exclusions of liability. Those provisions comply with what is required in particular in the Third Directive but go to a degree beyond that and it is in my judgment apparent that no offence under section 143 is committed in relation to a breach of one of those excluded conditions."

Again at paragraph 30:

"It follows that, so far as the prohibited conditions are concerned, there would be no offence committed of using a vehicle without the necessary insurance under section 143. But the existence of the prohibited conditions shows that there may well be other conditions which are not prohibited..."

The question therefore, as before, is as to the construction of this policy together with the impact of the Act upon it. Does the condition here purport to restrict the insurance by reference "... the areas within which the vehicle is used."

In my judgment, it does purport to restrict the otherwise permitted activity of "hire or reward", which is quite general, by reference to the area restriction in the licence. Under the Act that restriction is to my mind no effect. The policy is to be read for these purposes as if the restriction were not there. Accordingly, I consider that the justices were correct in the decision that they reached, although perhaps for reasons somewhat less full than the ones that have been argued before us.

For these reasons therefore I would answer the question posed by the justices in the affirmative and would dismiss the appeal.

MR JUSTICE KERR: I agree.

LORD JUSTICE McCOMBE: Are there any consequential matters, gentlemen?

MR MOSS: My Lord, a claim for costs in this case, a schedule been supplied. There has been some discussion between me and my learned friend although my Lord will see a figure, a grand total of £5,616 I was --

LORD JUSTICE McCOMBE: Hang on I do not think I have seen that. I will glance through that before you make any further comment (Pause). Yes?

MR MOSS: My Lords, discussions between my learned friend and I were concluded with the view that the may well be justification in the words set out in the schedule, and therefore consequently the claim is of the grand total of £5,000 including VAT.

LORD JUSTICE McCOMBE: £5,000 including VAT.

MR HUSSAIN: I do not resist that.

LORD JUSTICE McCOMBE: You do not resist that.

We will therefore dismiss the appeal with costs assessed at £5,000 including VAT.

MR MOSS: My Lords.

LORD JUSTICE McCOMBE: Gentlemen, as I said in my judgment, we are grateful for your submissions.

Perhaps I should hand back the document that was handed to us Mr Moss (Same Handed). Thank you.

Postscript

By way of postscript, we should add the following. After we had heard the oral argument in this case, we gave extempore judgments dismissing the appeal for the reasons given. Before the order was drawn, we received further written submissions from Mr Moss on behalf of the appellant. He wished to rely on further written argument which, he contended, ought to be considered by the court and ought to persuade us to reach a different conclusion. His argument was that the EU directives considered by Collins J in Singh v Solihull MBC should not impel the court to construe the legislation as contended by the respondent; private hire licences had been geographically limited by reference to local authority areas for well over a century, going back to the Town Police Clauses Act 1847. He invited us to construe the present legislation in the same manner, as not requiring restrictions in insurance policies defined by reference to local authority areas to be treated as of no effect.

Mr Hussain, for the respondent, did not object to us considering this additional material. We were prepared to do so. Mr Hussain argued in written submissions, as he had done at the hearing, that the domestic legislation is clear' that it plainly invalidates area-based restrictions in insurance policies, of the type at issue in this case; that there was no reason to construe the legislation in the unnatural manner proposed by the appellant; and that the law was not thereby rendered deficient; it adequately punished those who ply for hire outside the geographical area of their licence, since by doing so they commit a criminal offence (to which his client had pleaded guilty) irrespective of the insurance position. We agree. We did not find in Mr Moss's added submissions any good reason to alter our reasoning or the conclusion to which it leads. The appeal is dismissed.

09/12/2017

**************************************************************************

Addison Lee - GMB Judgement 2017

09/12/2017

*************************************************************************************

Case No. CO/4743/2009

Neutral Citation Number: [2010] EWHC 3392 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Date: Monday, 29th November 2010

B e f o r e:

MR JUSTICE BURNETT

- - - - - - - - - - - - - - - - - - - - -

Between:

THE QUEEN ON THE APPLICATION OF MAKDA

Claimant

v

THE PARKING ADJUDICTOR

Defendant

- - - - - - - - - - - - - - - - - - - - -

Computer‑Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr C Morrison Appeared On Behalf Of The Claimant

Mr I Rogers (Instructed By Patas) Appeared On Behalf Of The Defendant

- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T

1. MR JUSTICE BURNETT: This is an application for judicial review of two decisions of parking adjudicators, each upheld on review within the parking adjudication system. The claimant, Mr Makda, is a licenced minicab driver who operates through an office in Frith Street, London W1. Licenced minicab drivers, unlike those licenced to drive Hackney carriages, may not tout for work but must pick up only pre‑booked fairs.

2. At about 9.17 in the evening of 25 June 2008 Mr Makda drove to Dean Street, London W1, in response to a booking that had been made at 9.03 by telephone to the office. The customer who had booked the journey was called Laura. She wished to be taken to Streatham Place SW2. Mr Makda pulled up close to the junction with Dean Street, where he had been told that the passenger would be waiting. He did not leave his car. She, however, did not show up. Having established that she was not there, Mr Makda very shortly thereafter drove off.

3. A CCTV camera operator watched the car in real time for a total of 1 minute 30 seconds. Mr Makda was stopped on double yellow lines. The operator issued a parking charge notice for £120 subject to a reduction if paid within 21 days.

4. An almost identical event occurred on 3 July 2008 at about 9.25. On that occasion the CCTV camera operator watched Mr Makda for about 1 minute 20 seconds. Again, Mr Makda was responding to a telephone booking made to his control office. That booking had been made about 3 minutes before hand and asked for a cab immediately in Dean Street. The destination was Kingsland High Road, E8. The passenger on this occasion was noted in the office as Noella Bible. Again, she did not show up and a parking charge notice was issued by the camera operator.

5. Parking restrictions in the City of Westminster are enforced by Civil Enforcement Powers, deriving from the Traffic Management Act 2004. Parking on a double yellow line used to be a criminal offence in Westminster, but this has not been the case for many years. The civil contravention is created by Article 5(1) of the City of Westminster Traffic Management Order 2002. It provides:

"No person shall cause or permit any vehicle to wait during the prescribed hours in any restricted street except subject to the provisions of the next paragraph for so long as may be necessary for the purposes of delivering or collected goods or loading or unloading a vehicle at premises adjacent to the street."

The exemptions relating to loading are then further refined within Article 5.

6. Article 12 provides the first of a number of further exemptions from parking restrictions. As material, it reads:

"Nothing in Article 5 of this order shall render it unlawful to cause or permit a vehicle to wait in any restricted street for so long as may be necessary for the purpose of enabling any person to board or alight from the vehicle or to load there on or unload there from his personal luggage."

7. The Civil Enforcement of Parking Contraventions (England) Representations and Appeal Regulations 2007 allow someone served with a penalty charge notice, or the owner of a vehicle concerned, to make representations to the local authority why he should not be liable to pay the charge. The grounds of such representations are set out in regulation 4(4). It is sufficient to record that one of those grounds is "that the alleged contravention did not occur."

8. A local authority is obliged to consider any representations made and respond to them. If the representations are not accepted, the reasons must be set out in a "Notice of Rejection" which is provided for by Regulation 6 of the 2007 Regulations.

9. Following the rejection of representations, the person concerned has a right of appeal under Regulation 7 to the Parking Adjudicator. The grounds of appeal are the same as those upon which representations could be made to the Local Authority. An adverse decision from the Parking Adjudicator may be reviewed by another parking adjudicator. The nature and extent of such a review jurisdiction is set out in paragraph 12 of schedule 1 to the 2007 Regulations.

10. The scope of that review power has not, it would seem, been the subject of detailed consideration, either by parking adjudicators themselves or in this court. As we shall see, Mr Makda was unsuccessful in his representations, his appeal and also on review.

11. The primary argument advanced by Mr Makda in these proceedings through his counsel, Mr Morrison, is that the exemption set out in Article 12 applied in the circumstances as described. In consequence, Mr Morrison submits that the adjudicators, both when considering the appeal and on review, were wrong to refuse to set aside the notice.

12. I should note that there was a subsidiary argument founded upon guidance issued by the Council, which suggests that camera operators cannot issue parking charge notices unless they observe a vehicle waiting for more than 2 minutes. That argument is not pressed in this application, not least because the guidance to which reference is made post‑dates the alleged contraventions with which I am concerned.

13. The sequence of events in respect of the first notice was as follows: the penalty charge notice itself was dated 2 July 2008. It was served by post. It stated that a camera operator was observing the vehicle in real time at 21.17 parked on double yellow lines in Dean Street. A rather grainy still appears on the notice. Mr Makda made representations to Westminster City Council, the essence of which were as follows:

"I am a minicab driver by trade. On the day in question I had a fare from Dean Street to Streatham Place SW2. I enclose the printout for the job, which was booked for 21.15 hours."

Westminster rejected the representations by letter dated 15 July 2008. The substance of that letter was as follows:

"I have considered all of the information you have provided but I am unable to cancel the PCN. This letter is therefore a formal notice of rejection to your representations. The PCN was issued because the vehicle was seen parked in a street when parking restrictions were in force. Yellow lines at the edge of the road mean that there are parking restrictions which apply to the entire road. The vehicle was observed by a CCTV operator, but no picking up/setting down activity was observed. The picking up/setting down exemption does not permit the vehicle to wait for passengers at any time. Whilst appreciating that you drive a minicab, I must, however, advise that there is no exemption for you to wait for passengers. The exemption means that passengers must be ready to board the vehicle upon its arrival. If passengers are not ready, the vehicle must move on to a legal parking space. The evidence you supplied shows a 2‑minute wait from the appearance time. This is not permitted. The PCN was therefore correctly issued."

14. The author of the letter indicates that his understanding of the exemption is that it allows for no waiting at all for a passenger to show up. The clear impression given by this letter is that no tolerance is allowed for a passenger who may not know the identity of the driver or a driver who may not know the identity of a passenger to establish contact.

15. Mr Makda's representations to Westminster in respect of the second penalty charge notice which is dated 11 July 2008 were, for practical purposes, in the same terms. So too was the response from Westminster City Council, except that there was of course no reference to the timing of the first incident. I should say that the print outs from both jobs which were produced in due course by Mr Makda to the adjudicator identify the passengers in the way that I have described.

16. Mr Makda appealed to the parking adjudicator in respect of both penalty charge notices. As regards the first, he wrote this to the adjudicator:

"I work as a minicab driver. On the day in question I had a fare booked for 21.15 and arrived at the appointed time to pick up my passenger. The normal practice is for me to arrive at the designated place at the appointed time and the pre‑booked passenger would come up to my window to confirm their name and destination. I cannot approach people to the street, as this would constitute touting. I agree with the council's view in their notice of rejection that the passenger should have been ready when I arrived. Unfortunately she was not there at the appointed time. There were some people at the car window, but none of them was the passenger that had booked the journey. As is sometimes the case, some passenger would book a fare and then decide not to travel or find and take a taxi without even calling my office to cancel. I absolutely refute the council's assertion that I was waiting for the passenger. I arrived at the booked time to pick up the passenger and it just happened that she was not there when I arrived."

The account that Mr Makda gave in respect of the second occasion on which he had been issued a penalty charge notice was similar, save that he gave no indication that people were at the window of the vehicle.

17. Both appeals were considered on paper by the same adjudicator, Edward Houghton. His reasons for rejecting the first appeal were these:

"the appellant's vehicle was waiting in a restricted street. This is unlawful unless some legal exemption applies, although there is an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle. This does not extend to waiting for the passenger to arrive, inconvenient though this may be for chauffeurs and private hire drivers. The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully."

As far as the second is concerned, he said this:

"It is not in dispute that as the DVD evidence shows, the vehicle was waiting in a restricted street indicated by double yellow lines. The appellant is a minicab driver and was waiting for a pre‑booked passenger who was not on time. However, although there was an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle, this does not extent to waiting for passengers to arrive, inconvenient though this may be for chauffeurs and private hire drivers. The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully."

Mr Houghton went on to indicate that the circumstances were such that the council might consider exercising discretion to cancel the penalty. That suggestion fell on deaf ears.

18. As I have already indicated, both decisions were reviewed. The review of the first noted that the vehicle was visible in the CCTV footage for something over a minute and 20 seconds with no sign of anyone getting into the car. The second review was dealt with rather differently. Unlike the adjudicator considering the first review, who engaged with the facts and circumstances of the alleged contravention, the second reviewing adjudicator considered that a review was not appropriate because in essence Mr Makda was simply seeking to challenge the factual finding.

19. Article 12 of the 2002 order allows a vehicle to wait:

"for so long as may be necessary for enabling any person to board or alight from the vehicle and to load thereon or unload there from his personal luggage."

This provision admits of no difficulty in interpretation in almost all circumstances in which private drivers, Hackney carriage drivers or minicab drivers stop to let someone out of the car. The governing factor is plainly how long it takes to get out of the car, to unload the various things that the passenger has with him and then, in the case of a Hackney carriage or minicab, to pay. Similarly, in most cases of picking up, the driver knows his intended passenger or in the case of a Hackney carriage, is flagged down to the side of the road. In those circumstances the reverse process occurs. There is unlikely to be any difficulty in considering the facts to decide whether the vehicle concerned was stopped for longer than was necessary for those activities to be completed.

20. Even in cases where the driver and passenger are unknown to each other but the passenger is at the pick up site, ready and waiting, contact is likely to be made very quickly indeed. The time taken to make such contact in those circumstances, would, in my judgment, be necessary for the purpose of enabling that person to board the vehicle. But what if a driver pulls up expecting to find a passenger waiting for him but the passenger fails to show up or, as is not uncommon, has made other arrangements?

21. In the skeleton argument lodged on behalf of Mr Makda by his solicitors, it was submitted that any waiting for a pre‑booked passenger is exempted by Article 12. It is fair to say that Mr Morrison has not supported that submission in oral argument. It is not a submission that I can accept. It over looks two important features found within Article 12, one of which is explicit and the other which is clearly implicit from its context.

22. The explicit feature within Article 12 is the concept of necessity. So, for example if a driver were early for a rendezvous it could hardly be said to be necessary to wait in a restricted area until the pick up time. Neither would it in general terms be necessary for a driver to wait for a passenger who was late. A fresh rendezvous could, in almost all modern circumstances, be arranged. If that were not possible, then, using language which is perhaps not entirely apt nowadays, the driver would have to go round the block.

23. The implicit feature is in my judgment that the exemption in Article 12 is concerned with a time which is proximate to the getting into or the getting out of the vehicle.

24. For those reasons I do not accept the bold submission found in the skeleton argument. I deal with it despite Mr Morrison's not supporting it, simply to make the position clear in the event that similar arguments are advanced in other cases.

25. Mr Morrison has advanced an alternative construction. It is essentially this: that Article 12 is concerned with allowing a vehicle to wait to facilitate the immediate pick up or drop off of passengers. That, as it seems to me, comes closer to identifying the true meaning of Article 12. It is unnecessary to rewrite the language of Article 12, which is not lacking in clarity. In the context of a driver picking up any passenger at a pre‑determined time and place, it is in my judgment necessary for the purpose of enabling that person to board the vehicle for the driver and passenger to make contact with each other; alternatively for the driver to conclude that the passenger is not there.

26. Whether the time spent on that exercise in any given case was necessary is a question of fact. That will depend upon the myriad circumstances which can apply on the ground at the time. The fact that the passenger fails to materialise does not, in my judgment, mean that the exemption can have no application. The time spent by the driver seeking out his passenger by looking for him from the vehicle or waiting for his passenger to identify the vehicle is capable of being time necessary for the purposes of enabling the person to board his vehicle.

27. The reasons given by the adjudicator in respect of these two notices and supported on review in the instance in which the facts were considered drew a distinction between waiting whilst passengers boarded and waiting for passengers to arrive. Mr Makda "absolutely refuted" that he was waiting for his passenger to arrive on either occasion in a general sense. Although he did not express himself with the clarity with which Mr Morrison has been able to develop arguments, the point that Mr Makda was seeking to make was that he pulled up for as long as was necessary to make contact with his passenger. Having failed to do so, within fairly short order he drove away. I have already noted that in the review decision in which the facts were considered, the absence of a passenger seen on the CCTV was a factor that was given considerable weight.

28. In the course of argument this morning I have had cause to observe that adjudicators have an extremely difficult task. They perform what seems to me to be an important yet very difficult judicial function. It is important because thousands of appeals are adjudicated upon each year in circumstances where many people who appeal parking tickets will have no other cause to become involved with the judicial system. Mr Rogers, who appears for the parking adjudicator this morning, indicated that overall about 80,000 appeals are made each year. The task is difficult because a very large number of those appeals are dealt with on paper. They are dealt with on short submissions made by drivers or vehicle owners. Those submissions are inevitably not informed by reference to the underlying statutory provisions or legal concepts in play. Adjudicators are therefore in one sense expected to be all seeing and all knowing.

29. In the circumstances that are revealed in the papers before me and which I have sought to summarise, the subtlety of the argument being advanced by Mr Makda does not appear to have been fully appreciated by the adjudicators concerned. That is not altogether surprising and should not be taken as any real criticism.

30. However, taking the reasoning in the round, it is clear that Mr Makda's evidence was not explicitly rejected. The impact of his evidence on the true interpretation of Article 12 was similarly not explored in the decisions to which I have referred. It does not appear that the underlying interpretation of Article 12 which was being applied by the adjudicators accorded with the meaning I have sought to give it in the course of this judgment. That being the case, in the course of both decision making processes there was an error of law.

31. The question was not asked whether the time during which Mr Makda's vehicle was seen to be stationary in Dean Street was necessary for the purposes of enabling his passenger to board the vehicle, albeit that on both occasions the passenger failed to show. Mr Rogers helpfully suggested in the course of argument that were I to conclude that there was an error of law in the course of the decision making process, the proper course of action would be to quash both decisions of the adjudicators on review, quash both of the underlying decisions of Mr Houghton in respect of the appeals brought by Mr Makda and issue a mandatory order that in the circumstances both appeals should be allowed on the matters being remitted to the adjudicator. In the circumstances, that is the order I shall make.

32. Mr Morrison, Mr Rogers, have I covered everything in the course of that judgment that needs to be covered?

33. MR MORRISON: Yes, my Lord.

34. MR ROGERS: In the appropriate relief it may be, since Westminster are not here and have not intended to participate at all in this judicial review, it may be appropriate to order further declaratory relief in terms of liability to pay the penalty charges. Would your Lordship be minded to do that?

35. MR JUSTICE BURNETT: If there is a mandatory order that Mr Houghton's decisions on appeal are quashed, that the matters are then remitted to him with an order that he allow the appeals, will that not sort it?

36. MR ROGERS: Yes, what would normally then happen is my Lord might be aware that if the adjudicator allows an appeal he normally has to consider what direction to say make, and standard direction when one allows an appeal is the penalty charge be cancelled.

37. MR JUSTICE BURNETT: You are quite right. The subtleties of the directions had slipped my mind. Could I invite you and Mr Morrison to draft an order and to email it to my Clerk, or the associate later today so that we can have a look at it and ensure we have covered all bases.

38. MR ROGERS: My Lord, yes.

39. MR JUSTICE BURNETT: The critical thing, Mr Rogers, is that as far as Mr Makda is concerned, today should be his last engagement in the process. What is to follow may involve Mr Houghton in a little bit of paperwork, but nothing more than that.

40. MR ROGERS: My Lord yes, I understand that.

41. MR JUSTICE BURNETT: Yes, all right. Thank you very much.

42. MR MORRISON: My Lord, I am instructed to apply for a limited costs order. I am very care aware and I am sure you are too that ordinarily course costs would not be awarded, however I am instructed that until we received the defendant's skeleton argument we understood that they opposed the application for judicial review based on a letter explaining their grounds for the decision, page 165 to 168 of the bundle.

43. MR JUSTICE BURNETT: These are the summary grounds.

44. MR MORRISON: Yes and they renewed that opposition in a further short letter at page 173. I would not suggest that we should get any costs in respect of this hearing and the preparation for it, but my instructing solicitors are keen to secure some form of costs order for the preparation of the skeleton argument, since they understood at that point that the application was opposed. It is a limited order we seek. I appreciate that this is a ‑‑

45. MR JUSTICE BURNETT: What are you asking for?

46. MR MORRISON: Unfortunately a cost schedule has not been prepared yet, so costs to be summarily assessed at a later date, the proportion of costs between the preparation of the skeleton argument up to the defendant's skeleton argument and the costs incurred after that, in a form of a recovery order.

47. MR JUSTICE BURNETT: All right.

48. MR MORRISON: Thank you.

49. MR JUSTICE BURNETT: Mr Rogers, has the position softened a little?

50. MR ROGERS: My Lord, I don't think it has. The page 163 ‑‑ it looks like the acknowledgement of the service may have ‑‑ it is said that the adjudicator, with the tribunal finding submission at 163, did use the words, unfortunately, "grounds for contesting", but when one reads the summary grounds, if one reads the summary grounds I don't believe there is any softening of the position at all. There is nothing in there that suggests that this is matter in which this decision was contested and nothing which would suggest that the Tribunal was departing from the normal position of the Tribunal being neutral. There is nothing in there contesting the substance of the points, indeed there is a letter written recently, there was recent correspondence suggesting that the claimant thought he was going to be applying for a costs order and the tribunal drew the claimant's solicitor's attention to the case of Davies v Birmingham Deputy Coroner, copies of which I have.

51. MR JUSTICE BURNETT: I am very familiar with it.

52. MR ROGERS: I appreciate your Lordship is very familiar with that. There is no reason to say this case falls outside the Davies guidelines. This is a case where the Tribunal has effectively played a neutral role throughout regardless of the slight differences in wording there.

53. MR JUSTICE BURNETT: I am just looking for the claim form. It is also a fair observation, is it not, that the original claim form did not quite raise the point with the clarity as has later emerged.

54. MR ROGERS: My Lord, yes.

55. MR JUSTICE BURNETT: It is very difficult to make a generalisation, but it looked as though the the matter was being challenged on factual grounds fairly substantially.

56. MR ROGERS: Yes, my Lord, and I did not draw up the summary grounds, but I notice that they stated effectively the claim raises no new point, it is essentially a challenge which the adjudicators and the reviewing adjudicator were ones they were entitled to come to on the evidence before them.

57. MR JUSTICE BURNETT: I am trying to remind myself whether the grounds mentioned Article 12 at all in terms.

58. MR ROGERS: It is certainly a case where the extent of the argument was really clear from the skeleton argument, which came later.

59. MR JUSTICE BURNETT: Yes, that is right.

60. MR MORRISON: They did not, my Lord, I am afraid the particular Article we relied upon was not available at the application for permission.

61. MR JUSTICE BURNETT: All right. There is an application made on behalf of Mr Makda by Mr Morrison for costs. This is a case which has, to put it mildly, evolved since it was first issued. The original claim form made no mention of the Article 12 point, which is what has occupied time this morning. The original claim seemed to be founded upon a suggestion that the adjudicator had come to a factual conclusion which was not truly open to him. The acknowledgement of service suggested, in fairly measured terms, that the application would be resisted on the basis that the findings and conclusions were open to the adjudicator. Much has happened since. Permission was originally refused on the papers, but allowed at the renewed oral application before Judge Thornton. He granted permission on the basis of what might loosely be called the guidance point, which has in fact not been pursued.

62. The real focus of this challenge became apparent when an extremely detailed skeleton argument was lodged and served by the claimant's solicitors, dated 19 April 2010. The arguments came into focus at that stage. The adjudicator, in compliance with the order made by Judge Thornton, responded to that skeleton argument. Mr Rogers settled that skeleton argument on 21 May 2010. The skeleton made it plain that the adjudicator was not taking up an adversarial position in these proceedings. In summary, the adjudicator was taking part to assist the court.

63. The nature of the arguments today have happily not engaged very detailed technical aspects of law relating to parking. Occasionally that does happen, and in those circumstances the attendance of the adjudicator can be vital to ensure that the court does not fall into error.

64. The principles in play in respect of the costs application of this sort are well known. They are conveniently set out in the decision of the Court of Appeal in Davies (No.2). that of course was a case which concerned a coroner, but the principles are no different. If a judicial respondent in judicial review proceedings attends to assist the court and does not take up an adversarial position then only exceptionally would be it right for the court to award costs against the judicial officer if the judicial review is successful.

65. In my judgment the parking adjudicator has remained on the right side of the line as far as Davies (No. 2) is concerned throughout these proceedings. Despite Mr Morrison's attractive submission, it is not a case in which it would be appropriate to order the adjudicator to pay the costs or any part of the claimant's costs.

Barrie's Comments:

The general rule of law is now confirmed that taxi drivers, minicab drivers and any other drivers are allowed to wait for a long as necessary on single or double yellow lines for the purpose of picking up a passenger and/or their luggage. In the case of black cabs which can be hailed by a passenger in the street it is easy to see what time is taken and in the normal course of events that pickup time is clearly necessary.

The question arises (and this was dealt with by the court): what is the necessary time for a a taxi driver or minicab driver to pickup a passenger when they receive a pre-booked cab fare. I have won many cases at the parking adjudicator arguing that there has to be a time period to pick up a passenger starts when the vehicle arrives, the driver looks for his passenger and the passenger comes from their premises, finds the cab and enters the vehicle. My view is that that is all part of the process of waiting for the purpose of picking up the passenger. I am pleased to say that the court confirmed my view.

Background

Nearly all councils have taken the rigorous view ( in my view totally incorrect and illogical) that when a taxi driver or minicab driver receives a pre-booked fare the driver cannot wait at all and that the passenger has to be at the kerb ready to get into the vehicle. Some parking adjudicators have agreed with the councils’ view, but many parking adjudicators have not agreed. Indeed one parking adjudicator said that it was preposterous to suggest that a driver arriving to pick up a passenger should act like a Formula One driver performing a pitstop with the passenger diving into the vehicle and the vehicle taking off.

The High Court has now clarified the law on this issue and has stated that councils are wrong to adopt the position they have taken so far.

The learning judge stated that when a driver arrives at the destination, the time taken looking for the passenger or waiting for the passenger to identify the vehicle are all a necessary part of the process of picking up the passenger - and accordingly any parking tickets issued in those circumstances must be cancelled.

The judge also decided that if a driver arrives at the destination to pick up the passenger but the passenger then cancels the journey this is still nevertheless part of the process of picking up the passenger and accordingly any parking tickets issued in such circumstances must be cancelled..

Barrie Segal’s Final Comment: This is a very important clarification of the law which demonstrates that councils have been unfairly penalising licensed taxi and minicabs.

09/12/2017

**************************************************************************************

R v Hyndburn Borough Council Ex parte Rauf and Another

Queen's Bench Division (Crown Office List)

12 February 1992

COUNSEL:

A Nadin for the Applicants; A Bradley for the Respondent

PANEL: Kennedy J

JUDGMENTBY-1: KENNEDY J

JUDGMENT-1:

KENNEDY J: This is an application for judicial review of what are said to be two decisions of the respondent local authority to be found in two letters dated 31st January 1991 and 31st May 1991. For reasons which will become apparent, it seems to me that there was really only one decision; that decision was embodied in the earlier letter, and that is of some significance when I come to deal with the question of delay.

The applicant, Mr Rauf, is a taxi driver, living in Accrington, Lancashire. On 21st January 1991 he applied to the respondent local authority for a private hire vehicle licence in respect of a Toyota motor car first registered in 1985. That application was accompanied by an AA report which was generally favourable, but on 31st January 1991 the respondent authority rejected the application in a letter. The material part of that letter reads:

". . . since the vehicle is now 5/6 years old it does not comply with Section 2(a) of the Council's Private Hire Vehicle Conditions which states as follows:-

'From 1st August, 1990 the Council shall only license vehicles which are being registered for the first time if the vehicle is three years old, or less, at the time of the application.'

Your application is therefore refused for that reason. You have, of course, the right to appeal to the Magistrates' Court against this decision."

The applicant did not immediately seek to challenge that decision, either in the Magistrates' Court or by means of an application for judicial review, but nearly four months later on 23rd May 1991 solicitors acting on his behalf wrote to the respondent authority asking the authority to confirm that the position of the respondents remained that the application "is refused on the basis of the three-year policy rule".

On 31st May 1991 the respondents' confirmed in writing that their position in relation to the applicant's application remained unchanged. That letter continued:

"A private hire vehicle to be licensed for the first time, must be less than three years old."

Mr Nadim helpfully has explained to me what had been happening in the interval. It seems that in or about February 1991 his client consulted the solicitors who are at present acting for him. They at some stage approached the legal aid authorities. The legal aid authorities wanted clarification of the position. Some advice was obtained and at some stage another discontented applicant, on this occasion, I think, a taxi operator, Mr Kasim, also consulted the legal aid authorities and one way or another it was June 1991 before a conditional legal aid certificate was obtained. Mr Rauf's actual legal aid certificate is dated, I am told, 1st July 1991. Even that, however, does not explain why it is that these proceedings were not commenced until 3rd September 1991.

It is no secret that so far as the applicant is concerned this is something of a test case because many other private hire and taxi operators are, I am told, affected by the respondents' age of vehicle policy, which again, I am told, is not unlike the policies operated by a number of other local authorities.

For the applicants Mr Nadim submits that the policy is unlawful, irrational and offends against the duty of the respondents not to fetter their statutory discretion.

For the respondents, Mr Bradley submits, first, that a challenge by way of judicial review is inappropriate, having regard to the availability of an alternative remedy; secondly, that this challenge is out of time; thirdly, that the applicants were at fault in not drawing either of those two points, that is to say, the availability of an alternative remedy and the delay, to the attention of the judge when seeking leave and, fourthly, that in any event the challenge to the respondents' policy should fail on the merits.

In order to deal with those issues it is necessary to set this matter in its statutory framework and to say a little about how the respondents' age of vehicle policy came to be implemented. The relevant statutory provisions are to be found in section 48 of the Local Government (Miscellaneous Provisions) Act 1976, the material parts of which read as follows:

"(1) Subject to the provisions of this Part of this Act, a district council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence:

Provided that a district council shall not grant such a licence unless they are satisfied

(a) that the vehicle is --

(i) suitable in type, size and design for use as a private hire vehicle; (ii) not of such design and appearance as to lead any person to believe that the vehicle is a hackney carriage.

(iii) in a suitable mechanical condition;

(iv) safe; and

(v) comfortable;

(b) that there is in force in relation to the use of the vehicle a policy of insurance or such security as complies with the requirements of Part V of the Road Traffic Act 1988,

and shall not refuse such a licence for the purpose of limiting the number of vehicles in respect of which such licences are granted by the council.

(2) A district council may attach to the grant of a licence under this section such conditions as they may consider reasonably necessary including, without prejudice to the generality of the foregoing provisions of this subsection, conditions requiring or prohibiting the display of signs on or from the vehicle to which the licence relates . . .

(7) Any person aggrieved by the refusal of a district council to grant a vehicle licence under this section, or by any conditions specified in such a licence, may appeal to a magistrates' court."

Turning now to the respondents' policy, it is clear from the affidavit of Mr Hargreaves, the respondents licensing enforcement officer, that in late 1988 the respondent became concerned that vehicles which did not satisfy the age limit conditions imposed by other authorities were being brought to Hyndburn. On 8th February 1989 members of the council licensing sub-committee and their officers met representatives of the private hire vehicle operators and owners to discuss a proposal to introduce a condition governing vehicle age limits. The owners and operators favoured more frequent testing, and after similar consultation with representatives of the hackney carriage trade the licensing sub-committee on 30th August 1989 resolved to introduce an age limit. That resolution as amended at the council meeting held on 24th October 1989, was as follows:

"(1) That Private Hire and Hackney Carriage vehicles must be no more than 3 years old when first registered;

(2) That the maximum age of a Private Hire and Hackney Carriage Vehicle must be no more than 7 years;

(3) That the maximum age of an FX4 must be no more than 11 years.

(4) That six monthly testing be imposed from the 1st February 1990; and

5. That the introduction of the age limit on vehicles be imposed from 1st August 1990 but that an exception be made in the case of existing licenced vehicles, and that the seven year rule referred to in part (2) above be applied from 1st January 1991."

The sub-committee decision of 30th August 1989 had been communicated to private hire and hackney carriage operators in a letter dated 5th September 1989, so it is reasonable to conclude that the present applicant was well aware of the policy before he made his licence application of 29th January 1991.

As to why the vehicle age limit policy was introduced, Mr Hargreaves says in paragraph 7 of his affidavit:

"The justification for this requirement is the Council's desire to ensure that vehicles which are to be used for either of these purposes" -- that is to say, as private hire vehicles or hackney carriages -- "are not only mechanically sound at the time of the application but are also likely to remain so, accidents excepted, during the following six months until their next test."

Mr Hargreaves then goes on to spell out the failure and defect discovery rates of vehicles on inspection, which shows that those rates increase in relation to age. That is helpfully set out in two bar charts reproduced at pages 70 and 71 of the applicant's bundle; needless to say, the progress is not entirely even, but the general direction of the charts is obvious upon looking at them.

I return now to the first submission made by the respondents, namely, that the applicant if he wished to challenge the decision should have used the right of appeal to the Magistrates' Court, which is expressly provided by the same section of the statute. As Mr Bradley points out, that right of appeal could have been exercised quickly, and relatively cheaply. If the applicant was dissatisfied with the decision of the Magistrates' Court he could then have gone to the Crown Court or, by way of case stated, to this court. At every stage he could have challenged the terms and the implementation of the respondents' policy, and he should not, it is submitted, seek to by-pass that appellate procedure.

In support of that submission Mr Bradley invited my attention to the decision of the Court of Appeal in R v Chief Constable Merseyside Ex parte Calveley [1986] QB 424 and particularly at page 433 in the judgment of the Master of the Rolls, Sir John Donaldson. What he said at letter B is this, referring to his own judgment in a previous case:

"It is a cardinal principle that, save in the most exceptional circumstances, the judicial review jurisdiction will not be exercised where other remedies were available and have not been used."

He goes on:

"This like other judicial pronouncement on the inter-relationship between remedies by way of judicial review, on the one hand, and appeal procedures, on the other, is not to be regarded or construed as a statute. It does not support the proposition that judicial review is not available where there is an alternative remedy by way of appeal. It asserts simply that the court in the exercise of its discretion will very rarely make this remedy available in these circumstances."

There are further observations on the same page to similar effect.

What is submitted by Mr Nadim is that in effect this is one of the very rare cases in which the court should make the remedy of judicial review available, despite the existence of an alternative remedy in the form of a right of appeal to the Magistrates' Court. He points out that there is a decision in the case of Sharpe v Nottingham City Council (1981) Current Law Year Book paragraph 2,357, which shows that in a somewhat similar case there was an appeal to the Crown Court and that decision apparently went against the local authority in that particular case. In effect, he submits that here the applicant is not simply concerned with the decision in relation to his own vehicle but is concerned with the policy in general and seeks the decision of this court as to whether or not that policy is valid.

However, as it seems to me, he is faced with the difficulty that the statute does provide a specific remedy to an applicant such as this. In my judgment this is not one of the exceptional cases which the Master of the Rolls had in mind. This is a case in which certainly if the point is taken on behalf of the respondents, and it is, it is incumbent upon the applicant to use the right of appeal which is made available to him by the statute. As Mr Bradley points out, from the respondents' point of view the exercise of that right of appeal would have involved relatively little expenditure and it is at least possible that the magistrates might have taken the view which would be favourable to the applicant and the matter would then have ended there with very little of the local ratepayers' or poll tax payers' money being expended.

In my judgment in this case the applicant should have used the alternative remedy which was available to him before coming here. That of course of itself is sufficient to dispose of this application. However it would not be right, having regard to the submissions which have been addressed to me, to dispose of it simply on that basis.

The second submission made on behalf of the respondents is that, even if it were appropriate to challenge the decision of 31st January 1991 by means of judicial review, and as I have indicated I am satisfied the letter of 31st May 1991 was not a fresh decision, the application for judicial review should have been made promptly as required by O 53, r 4 and section 31(6) of the Supreme Court Act.

There is before me no evidence at all to explain the delay from 31st January 1991 to 3rd September 1991, a period of over seven months. Mr Nadim rightly accepts that there should have been such evidence, although he sought to fill the gap in the way to which I have already referred. It seems to me that he was unsuccessful in his attempt because, even assuming, which I am afraid I do not on the information I have been given, that 1st July 1991 was the first day on which this applicant could have been put in a position to proceed with the benefit of legal aid, it seems to me that the certificate, had there been a degree of urgency, could have been obtained at an earlier date; but even if that were the first date it would have been necessary then to proceed with a good deal of expedition. It is not proceeding with expedition if the institution of proceedings is then deferred until the following 3rd September. On this ground also I am not satisfied that the application has been made promptly and accordingly it fails.

Dealing with both the question of alternative remedy and the question of delay, it may be appropriate to say that in one of the authorities which has been brought to my attention, namely R v Metropolitan Borough Council Wirral, Ex parte Wirral Licensed Taxi Owners Association (a decision of Glidewell J on 9th September 1982) the challenge was not to a refusal of an individual application but to the council's own decision to implement a policy which in certain respects had similarities with the policy which was decided upon by the council in the present case. It may well be that different considerations would be appropriate if one were dealing with that type of challenge; for example, it could not possibly be said that there would be available an alternative remedy if what was sought to be challenged here was the decision taken by the council on 24th October 1989. But of course the problem with which the applicant is faced is that October 1989 is so long ago that he is plainly out of time in relation to any challenge to that policy now.

Another point which was taken by Mr Bradley, as I have already indicated, was that there was a failure on the part of the applicant to bring certain of his difficulties before the judge when seeking leave on an ex parte motion, and, of course, it is the duty of counsel to bring all relevant matters to the attention of a judge in that situation. However, Mr Nadim has satisfied me that the difficutly which he had to overcome in relation to the existence of an alternative remedy was brought to the attention of the judge at that stage and he is able to say that there was before the judge information which would have enabled the judge, if he had considered it appropriate, to take the view even at that stage that the application was out of time.

He accepts, as I have already indicated, that there was not, as there should have been, an explanation for the delay and no doubt he will appreciate that on any future occasion there should be such an explanation. But I do not on this occasion think it necessary to say any more about that particular point which was advanced by Mr Bradley.

That brings me to the substantive challenge in which Mr Nadim invites my attention to the words of section 48(1), to which I have already referred. He points out that the discretion to grant a licence is unfettered provided that a vehicle has certain attributes all of which can easily be satisfied by a vehicle more than three years old.

If a licence is granted, then section 48(2) permits the respondents to attach conditions to the licence, but, submits Mr Nadim, that situation was never reached in this case. That, on the face of it, seems to me to be right.

Mr Nadim submits that whenever a wide discretion is granted, as it is by section 48(1), a body such as this respondent authority should not fetter its discretion by laying down rigid conditions which have to be satisfied, and he invites my attention to what was said by Cooke L in Stringer v Minister of Housing [1971] 1 All ER 65 and in particular to a passage which appears at page 80E where the learned judge said this:

"It seems to me that the general effect of the many relevant authorities is that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision."

Mr Nadim submits that the respondents' policy does not satisfy that proviso.

He points out that, although the 1976 Act was amended by the Transport Act 1985, and for that matter by the Road Traffic (Consequential Provisions) Act 1988, Parliament did not take the opportunity to introduce the concept of vehicle age into section 48, and after the 1985 Act the Department of Transport published a circular, No 8 of 1986, paragraph 26 of which reads:

"Some councils set advisory age limits on the vehicles they are prepared to license. These cannot be rigidly enforced and if a vehicle proves to be in a satisfactory condition it should be licensed regardless of its age. It has recently come to the notice of the Department that some councils are proposing to insist that any vehicle submitted for initial licensing must be new. This is seen as an unwarranted restriction on entry to the trade for would-be taxi proprietors."

What Mr Nadim submits in essence is that a council such as these respondents may have a policy, but the policy must be so formulated as to make it clear that it will embrace exceptional cases by the introduction of the word "normally". Furthermore, he submits, the policy should not be of the type which this local authority had, at any rate so far as the starting point is concerned, because, he submits, it is simply irrational to say that a vehicle more than three years old may not be licensed. As regards the terminating point, he is less inclined to take issue.

For the respondents, Mr Bradley submits that the unfettered discretion in section 48(1) of the 1976 Act can also be exercised to refuse applications, perhaps by raising standards, provided that the purpose is not to restrict numbers, and that, having regard to many of the matters specifically mentioned in section 48(1), the age of a vehicle on first application is a proper consideration. Where a discretion such as this is exercised in accordance with a policy, he points to the decision of the Court of Appeal in R v Yarmouth Borough Council, Ex parte Sawyer (1987) 86 LGR 617 as an example of the unwillingness of courts to interfere. He also points to the additional powers granted to the licensing authority by section 48(2), section 57 and section 60 as evidence of Parliament's desire to give to the authority a very wide measure of control. He submits that section 48(2) can also extend to conditions precedent to the grant of a licence, which I am still reluctant to accept (save to the extent that applicants can, and indeed should, be told in advance of the terms on which a licence will be granted). But, more significantly, he submits that the three-year rule has been imposed by the respondents, after proper consultation, to further what they conceive to be, and properly conceive to be, the statutory objectives of the licensing scheme. (See for this purpose the passage from the affidavit of Mr Hargreaves to which I have already referred).

Of course any decision taken by the respondents must not be unreasonable, Mr Bradley concedes, in a Wednesbury sense. (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223, [1947] 2 All ER 680). But in this licensing sphere, as in dealing with statutory grants and applications for statutory grants, it is not ipso facto unreasonable or an unlawful fettering of discretion to set standards or to adopt an approach applicable, at any rate on the face of it, to every case. If it were then, Mr Bradley submits, Wirral Metropolitan Borough Council could not have insisted on taxi operators using London-type cabs, yet in that case, to which I have already referred, Glidewell J held that they were entitled to do so. At page 18E of the transcript he recognised that the decision might bear more harshly on one group than another but said that that was not of itself a ground for quashing the administrative decision.

In R v Manchester City Justices, Ex parte McHugh [1989] RTR 285 Simon Brown J upheld a local authority condition requiring new licences or the grantees of new licences to adapt their vehicles to carry wheelchair-bound passengers; that requirement, like the London-type cab requirement and the present age requirement, was not so formulated as to invite applications for the requirement to be waived.

Mr Nadim seeks to distinguish both of those authorities, and the conditions to which they relate, as being, as he puts it, "post-grant condition cases where the conditions were capable of fulfilment". I am afraid that is not a distinction which I find it possible to make. In British Oxygen Company v Board of Trade [1971] AC 610 the House of Lords was concerned with a statute which provided that the Board of Trade "may make" a grant and it, that is to say the Board of Trade, adopted a policy of not doing so where the equipment cost less than £25. The legality of that decision was one of the issues in the case.

At page 624 Lord Reid said this:

"If the Minister who now administers the Act, acting on behalf of the Government, should decide not to give grants in respect of certain kinds of expenditure, I can find nothing to prevent him. There are two general grounds on which the exercise of an unqualified discretion can be attacked. It must not be exercised in bad faith, and it must not be so unreasonably exercised as to show that there cannot have been any real or genuine exercise of the discretion. But, apart from that, if the Minister thinks that policy or good administration requires the operation of some limiting rule, I find nothing to stop him."

He then cited from the judgment of Bankes LJ in R v Port of London Authority, Ex parte Kynoch [1919] 1 KB at page 176. Then he continued:

"I see nothing wrong with that. But the circumstances in which discretions are exercised vary enormously and that passage cannot be applied literally in every case. The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application' (to adapt from Bankes LJ). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say -- of course I do not mean to say that there need be an oral hearing."

In a somewhat similar vein Viscount Dilhorne at page 630, having cited the same passage from the judgment of Bankes LK, went on to say this:

"In this case it was not challenged that it was within the power of the Board to adopt a policy not to make a grant in respect of such an item. That policy might equally well be described as a rule. It was both reasonable and right that the Board should make known to those interested the policy it was going to follow. By doing so fruitless applications involving expense and expenditure of time might be avoided. The Board says that it has not refused to consider any application. It considered the appellants'. In these circumstances it is not necessary to decide in this case whether, if it had refused to consider an application on the ground that it related to an item costing less than £25, it would have acted wrongly.

I must confess that I feel some doubt whether the words used by Bankes LJ in the passage cited above are really applicable to a case of this kind. It seems somewhat pointless and a waste of time that the Board should have to consider applications which are bound as a result of its policy decision to fail. Representations could of course be made that the policy should be changed."

In the present case Mr Bradley submits that this local authority did give such consideration as was appropriate to this application. It indicated in the letter which it wrote in reply to it that the application was refused in line with the policy and that did not indicate that it was shutting its ears to any application, either considered individually or an application which amounted to an application to change the policy as a whole.

In those circumstances, it seems to me, the stance adopted by the local authority in relation to the application was a lawful one and therefore on the substantive ground, as well as on the two procedural grounds, this application fails.

DISPOSITION:

Application refused

SOLICITORS:

Rust, Moss & Co, Accrington; Solicitor, Hyndburn Borough Council, Accrington

09/12/2017

***************************************************************************************

Thursday 2 May 1996

Lord Justice Pill

Mr Justice Newman will give the first judgment of the court.

Mr Justice Newman

This is an appeal by way of case stated. The appellant was convicted by magistrates on 12 April 1995 of failing to conform with the indication given by a traffic sign, namely a double white line marking, contrary tosection 36(1) of the Road Traffic Act 1988. He appealed to the Crown Court and the Crown Court dismissed his appeal.

The prohibition on a vehicle stopping on any length of road on which there is a double white line is imposed by regulation 26(2)(a) of the Traffic Sign Regulations 1994. This appeal raises an interesting and not unimportant point of interpretation. It is necessary for me to set out the relevant subsections in full. The prohibition commences:

"(2) The requirements conveyed by the road marking mentioned in paragraph (1) shall be that—

(a) subject to paragraph (3), no vehicle shall stop on any length of road along which the marking has been placed at any point between the ends of the marking; and

….

(3) Nothing in paragraph (2)(a) shall apply—

(a) so as to prevent a vehicle stopping on any length of road so long as may be necessary for any of the following purposes—

(i) to enable a person to board or alight from the vehicle,

(ii) to enable goods to be loaded on to or to be unloaded from the vehicle,

(iii) to enable the vehicle to be used in connection with—

(a) any building operation or demolition;

(b) the removal of any obstruction to traffic;

(c) the maintenance, improvement or reconstruction of that length of road; or

(d) the laying, erection, alteration or repair in or near that length of road on any sewer or any main, pipe or apparatus for the supply of gas, water or electricity, or of any telecommunications apparatus as defined in paragraph 1(1) of Schedule 2 to the Telecommunications Act 1984(a),

if the vehicle cannot be used for such a purpose without stopping on the length of road;"

The appellant contended in the courts below that he fell within regulation 26(3)(a), namely that he was someone who was permitted to stop on the length of road under these regulations because he stopped for the purpose set out in (i), namely to enable a person to board the vehicle.

The appellant was a taxi driver. On 27 November 1994, the occasion in question, he was sent to a public house to collect a fare. Finding that he could not get into the public house car park, he stopped directly outside the premises and turned down his lights. At that point the road was governed by double white lines in its centre. While the fares were making their way to the taxi, a car approaching from the opposite direction collided with the taxi.

On those facts, which were not in dispute, plainly the appellant was enabling a person or persons to board the vehicle. However, the prosecution contended that subsection (3)(a)(i) was qualified by the words which appear at the end of subsection (3)(iii), namely these critical words "if the vehicle cannot be used for such a purpose without stopping on the length of road".

On the evidence, and it is not in dispute, there were places available where the appellant could have drawn off the road, parked and picked up his fare. For that reason he was convicted by the magistrates and for that reason his appeal to the Crown Court was unsuccessful.

The only issue, therefore, which arises on this appeal is whether or not the prosecution were right to contend that the purpose which the appellant was fulfilling on the night in question was on that particular road governed by the critical words which I have set out above.

Mr Drew, who appeared for the appellant in this court, in his helpful submissions made a number of points in support of an interpretation of the subsection which confined the application ofwhat I have already, and shall in future refer to as "the critical words" to the purposes set out in (iii) at (a), (b), (c) and (d). He submitted that there was a distinction between the purposes at (i) upon which the appellant relies, and (ii) which enables goods to be loaded or to be unloaded from a vehicle. He submitted that the purposes at (iii)(a), (b), (c) and (d) are purpose which would take a longer period of time to fulfil than the purposes at (i) and (ii). His submission was that the legislative purpose did not require limiting the right to make such short stops in what amounts to a "last resort situation", as the critical words provide.

Secondly he submitted that the words "used for such a purpose" in the critical words reflected the words at the commencement of (iii), namely "to enable the vehicle to be used in connection with".

He next submitted that the layout of the limitation as it is in the 1994 regulations, by which I mean the precise position on the Queen's Printers' copy of the regulations of the critical words, falling as they do below the words "to enable" which commence (iii), and beneath the words "to enable" which commence (i) and (ii) is of assistance. His submission was that the position beneath the words "to enable" indicated that the critical words qualified only the purposes at (a), (b), (c) and (d). Further he also submitted, this being a penal provision, there were at least two reasonable interpretations and the court should adopt the construction which avoided a penalty. He relied upon the case of Tuck v Priester [1887] 19 QBD 629, per Lord Esher at page 6638. He also relied, in his skeleton argument, upon Director of Public Prosecutions v Ottewell [1970] AC, per Lord Reid at page 649. That particular passage was also relied upon by Mr Campbell-Tiech for the respondent.

Additionally, Mr Drew referred us to the current edition of the Highway Code and to the fact that, as appears from the box on the inside of the frontispiece, it is issued with the authority of Parliament. It is a code which was laid before both Houses of Parliament in June 1992. At page 34, Rule 138 states: "You must not stop or park on:" There are then various bullet marks, the relevant one reads:

"a road marked with double white lines even if one of the lines is broken, except to pick up to set down passengers;"

He further referred us to a letter, dated 6 February 1996, from the Department of Transport, signed by somebody from the Traffic Signs Branch, dealing with stopping within double white lines. It was a letter sent in response to the appellant; it is personally addressed to him. In its relevant part it states:

"Regulation 26(3((a)(i) of the 1994 Traffic Signs Regulations states that 'nothing ….shall prevent a vehicle stopping on any length of road ….to enable a person to board or alight from the vehicle'. There is no qualification to that provision. The qualification at the end of regulation 26(3)(a)—'if the vehicle cannot be used for such a purpose without stopping on the length of road' only applies to the various activities listed in sub-paragraphs (a) to (d) of Regulations 26(23)(a)(iii) and not to (i) and (ii)—stopping to set down or pick up passengers or to load or unload goods.

The qualification relating to a lay-by or verge in regulation 23(3) in the 1981 Traffic Signs Regulations was removed in the 1994 Regulations, because many verges now have waiting restrictions imposed on them, and we also wanted to make it clear that a vehicle could stop in a lay-by forany purpose on a length of road with double white lines."

Mr Drew invited our attention to the Highway Code and to that letter because, in my judgment, he rightly states there could not be a clearer statement of what he, on behalf of the appellant, says is the true meaning of the regulation. As part of the legal exercise in interpretation he submits that it is permissible for the court to have regard to it because if one seeks to determine whether there is more than one reasonable interpretation of a provision, and thereafter applies the relevant principle to which I have alluded, then this supports his contention that two reasonable interpretations exist.

Further, he drew attention to the 1981 Regulations, which it will be apparent the 1994 Regulations replaced. The relevant 1981 Regulations are the Traffic Signs Regulations and General Directions 1981, SI 1981 No. 859. He drew our attention to, as it was then, Regulation 23 and the relevant subsections and their content and lay-out to which I shall return.

Speaking for myself, I found these submissions helpful. When construing a statutory provision it is always helpful to have regard to any number of points that can properly be made, even though many may be ambivalent. They may point in both directions and none may be conclusive. In such cases a leaning towards a particular meaning normally emerges from the process of considering each of the relevant points. However, in this instance I derive most assistance from the content and to a much lesser extent the format of the 1981 Regulations. Regulation 23(2) provided:

"The requirements conveyed by the road marking mentioned in the last preceding paragraph shall be that—

(a) subject to the provisions of paragraph (3), no vehicle shall stop on any length of road along which the marking has been placed at any point between the two ends of the marking;

….

(3) Nothing in sub-paragraph (a) of the last preceding paragraph shall apply—

(a) so as to prevent a vehicle stopping on any length of road so long as may be necessary;"

(i) and (ii) are identical to the 1994 Regulations, but (iii) in the 1981 Regulations significantly, in my judgment, provided as follows:

"to enable the vehicle, if it cannot be used for such purpose without stopping on that length of road, to be used in connection with …."

Thereafter there followed a series of purposes or operations which are subsequently reflected in the 1994 amendment of new regulations by the alphabetical division of those purposes into (a), (b), (c) and (d). After the rolled-up form of purposes had been set out the provision went on to provide:

"….so, however, that no vehicle shall be enabled by virtue of this sub-paragraph to stop for any of the purpose at (i), (ii) or (iii) above on a part of that length of road, not being a lay-by or a road verge, if it is reasonably practicable to stop the vehicle for that purpose on a part ofthat length of the road, being a lay-by or a road verge;"

Again it can be seen from the lay-out in the 1981 Regulations that those particular words commencing with "so" and ending with "verge" are positioned in the Queen's Printers' edition of the Regulations far to the left, namely to a point which falls immediately below the margin on the left-hand side of the body of the Regulations. Two points, in my judgment, can be made about the critical words. The critical words are the same in the 1981 Regulations, save only for consequential amendments. Further, they are at the commencement of sub-paragraph (iii) and as a result only qualify that paragraph and not (i) and (ii).

Secondly, the qualification relating to the use of lay-bys and verges which is expressly stated to apply to each of the sub-paragraphs (i), (ii) and (iii) has been removed by the 1994 Regulations. Thus, in my judgment, looking at the two sets of Regulations, it is apparent that the substantive amendment brought about the 1994 Regulations was to delete the qualification relating to lay-bys and road verges. Thereafter the draftsman of the regulations carried out consequentially structural alterations to the section because that particular provision has been deleted. He did two things. He unscrambled the unidentified list as it had appeared in the 1981 Regulations, presenting it alphabetically, and then, as Mr Drew has pointed out, he shifted the paragraph which in its position and in its content had originally related to lay-bys. By amendment he shifted the words which had been at the commencement of the sub-paragraph to the end where they replace the lay-by and road verges provision. Having looked at the two regulations and having compared them, in my judgment there can be no basis for contending that the 1994 Regulations carried out two substantive amendments, namely, not only deleting the provision in relation to verges and lay-bys, but also causing the purposes at (i) and (ii) to be embraced by the qualification of the critical words, when they had hitherto not been so embraced.

Any other material which may be available to indicate to the contrary must be examined. But, as I have stated, taking that point on its own, in my judgment, unless there were strong indicationsthat Parliament had intended an amendment of the type upon which the prosecution here rely, I conclude that the meaning is clear from what I have set out above.

Other matters now fall for consideration. Mr Drew submitted that the layout itself, namely the fact that the relevant words had been shifted from the far left to a position I have already identified beneath the words "to enable" was deliberately employed by the draftsman and was therefore significant. In my the judgment the point is not without interest. We were taken to a number of authorities, but none took the matter further. As a matter of principle I would be cautious in placing much weight upon spacing and lay-out in the way that Mr Drew invited us. But having seen what indeed the draftsman did, I believe that what can be gained from it is that that meaning, which in my judgment is the true meaning of the 1994 Regulations, can at least be said to be reflected in the action that the draftsman had taken by way of changed lay-out.

As to the other points made by Mr Drew, I would not place much weight on the penal argument. Mr Campbell-Tiech submitted that it is only to be resorted to when there is a true ambiguity, not just good argument for more than one meaning.

Mr Drew, as I have indicated, relied upon the wording of the 1994 Regulations which introduced the use of the plural "purposes" at the commencement of the section. He contrasted that with that part of the critical words which related to "for such a purpose". I take that as a confirming indication of the correctness of the limits by way of amendment effected by the 1994 regulations.

Whilst the Highway Code carries the weight and approval of Parliament, it would not be safe in my judgment to treat it as going that far to resolve the issue. The letter to the appellant from the Department of Transport goes even less far. They both represent statements by way of reassurance of the true meaning, as I find it to be.

Mr Campbell-Tiech's further submission was that the mischief aimed at within the regulations was any stopping on a road marked by a double white line, save in last resort. I do not accept that is clear from the regulations. Indeed, I take comfort from the fact that that is not the mischief aimed at by the content of the Highway Code, and the letter, which can be taken to represent the views of thosewho are experienced and have responsibility in these matters.

In my judgment, for the reasons I have set out above, the words "if the vehicle cannot be used for such a purpose without stopping on the length of road" do not qualify the purposes either at (i) or (ii). We are only concerned with (i) in this case. In those circumstances, it being perfectly apparent that all that the appellant did was to enable a person to board his vehicle, he committed no offence. In my judgment this appeal must be allowed.

Lord Justice Pill

The Parliamentary draftsman's difficulty with Regulation 26 was that within Regulation 26(3) there was not only a series of categories lettered (a)—(g), but within sub-paragraph (a) there were three categories numbered (i)—(iii) and within category (iii) there were sub-categories lettered (a)—(d). The qualifying words "if the vehicle cannot be used for such a purpose without stopping on the length of road" appear below the narrative in sub-category (d) and to the left. That lay-out presents difficulties of interpretation. Do the qualifying words refer only to category (iii) or to categories (i), (ii) and (iii)? The opening word "if" appears immediately below the opening word "to" in category (iii). But that also places it immediately below the same opening word in categories (i) and (ii). I understand the draftsman's problem. He had to make it clear that the qualifying words did not apply only to sub-category (d).

I would have had great difficulty in deciding which alternative was intended by the layout adopted in the Regulation. The issue is, however, resolved, in my view, by a consideration of the Regulation with the Regulation it replaced, Regulation 23 of the Traffic Signs and General Directions Regulations 1981. The Parliamentary intention then becomes clear for reasons given in his judgment by my Lord, Newman J. I too would allow this appeal. I am reassured that the Department of Transport take the same view of the Regulation as does the court. They have expressed it not only in a letter to the appellant, but also in the current edition of the Highway Code. I express the hope that lay-outs can be adopted, when drafting and enacting regulations, which avoid the difficulty presented to the courts in the present case.

Question (i) will be answered as follows: the words "if the vehicle cannot be used for such a purpose without stopping on the length of road" apply only to Regulation 26(3)(a)(iii).

My Lord, on that basis is it your Lordships' intention to remit the matter with directions to the lower court?

Lord Justice Pill

Yes. What other relief do you seek?

My Lord, my client is legally aided with a nil contribution. I would ask for legal aid taxation?

Lord Justice Pill

Yes. Otherwise it would come out of some other public funds?

My Lord, to protect the Legal Aid Board I am bound to apply for an order against the Crown.

Lord Justice Pill

Mr Campbell-Tiech, do you have any submissions on the question of costs?

My Lord, I appreciate that technically it comes from one fund or the other, but from the Crown Prosecution Service's point of view the costs would be more appropriate to be ordered from the Legal Aid Board.

Lord Justice Pill

What about central funds? That is a third fund.

My Lord, my initial intention was to apply for a taxation. This is a criminal appeal to a Divisional Court. Therefore I think the matter would usually fall—if my client was paying for his own defence it would fall to be dealt with by a defendant's costs order. But since he is now unemployed I would have thought that the appropriate order would be taxation.

Lord Justice Pill

Very well. In that case the appeal will be allowed. The case will be remitted to the Justices with a direction to acquit and you will have a legal aid taxation direction. We are grateful for your assistance.

I am obliged.

(Mr Drew returned to court later in the day)

My Lord, can I apologise? On leaving court it was pointed out to me that until relatively recently my client's litigation had been funded by the AA. So effectively he was a litigant paying his own legal costs. Therefore I would apply, up until the point that legal aid was granted, for a defendant's costs order.

Lord Justice Pill

Under which provision?

My Lord, I do not have Archbold with me.

Lord Justice Pill

What we have done in other cases is, under the Prosecution of Offences Act 1985, section 16(5), we have ordered costs out of central funds.

"Where any proceedings in a criminal cause or matter are determined before the Divisional Court of the Queen's Bench Division, the court may make a defendant's costs order in favour of the accused."

Is that what you ask for?

My Lord, indeed.

Lord Justice Pill

Subject to anything that you want to tell us, so be it. The AA probably would have considered the result you have achieved good value for money. We accede to that application.

Thank you.

09/12/2017

**********************************************************************************

Milton Keynes Council v Skyline Taxis and Private Hire Ltd and Gavin Sokhi

Judgement on 25 May, 2017 at High Wycombe Magistrates’ Court

Parties in case

1. Ms Clover appeared to represent the prosecutor, Milton Keynes Council. Mr Sokhi

was presented represented by Mr Oscroft. Skyline was represented by Mr Leigh. At

the end of the prosecution case the defendants made submissions of no case to answer

and this is my ruling on those submissions responded to by the prosecution.

Evidence before me

2. I heard live evidence from Alan Broomfield, Senior Enforcement Officer at MKC. I

read agreed s9 statements provided by the prosecution, namely statements from a Mr

Sutcliffe, a Mr Muhammad Sabeel and a Mr Simon Platts. I also considered a joint

prosecution and defence bundles of exhibits. I was provided with a supplementary

defence documentation bundle which contained s9 statements not accepted by the

prosecution and various exhibits some of which were put to Mr Broomfield.

What led to the prosecutions

3. On 3 April, 2016 a Mr Platts phoned Skyline Taxis for a taxi to take him on 4

April, 2016 from his home to Milton Keynes Central Railway Station by ringing

Skyline Taxis’ Milton Keynes telephone number. Skyline Taxis has a private hire

vehicle operator’s licence granted by Milton Keynes Council (MKC). As set out

below this allows Skyline to dispatch a driver and vehicle who are also licensed by

MKC. Mr Platt spoke to an automated computer system (referred to as IVR or

computer voice recognition system) which assigned him a driver and a pick up time.

The taxi was late and he complained to Milton Keynes Council (MKC). When MKC

investigated they found that the taxi driver, Mr Sabeel was a private taxi driver

employed by a separate Skyline Taxi company with an operator’s licence granted by

South Northamptonshire County Council (SNCC). Skyline Taxis (albeit with a

separate corporate identity) are also authorised to act in South Northamptonshire via

an operator’s licence. After investigation MKC decided that this contravened

s46(1)(e)(i) of the Local Government (Miscellaneous Provisions) Act 1976 because

there was no licence to cover that private hire vehicle or that driver. MKC then issued

summons against Skyline Taxis and its directors issuing summonses against various

manifestations of Skyline Taxis in terms of company names. Various summonses

were then withdrawn leaving only those relating to Skyline Taxis and Mr Sokhi.

Agreed facts and evidence

4. The following facts and evidence are agreed:

1. Skyline Taxis are licensed by SNCC under s55 LG(MP)A 1976 to act an

operator of private hire vehicles with an operator’s licence running from

August, 2015 to August, 2018. Mr Sabeel and the vehicle MA60 WGK are

licensed under ss51 and 48 of the Act by SNCC covering the date of the

alleged offences.

2. Skyline Taxis are separately licensed by MKC under s55 LG(MP)A 1976

under an operator’s licence which for the purposes of this case ran from

September, 2015 to August, 2016

3. Mr Platts phoned for a taxi via a Milton Keynes number as already outlined

and spoke to the computer system and it was Mr Sabeel in vehicle MA60

WGK who was assigned and picked him up and transported him albeit late.

4. Skyline taxis is a large company operating taxis and taxi drivers over a large

area that crosses many local authority boundaries and having been doing so

without for many years without any prosecutions being brought by MKC or

SNCC.

5. As a result of proposed deregulation Skyline Taxis investigated and then

installed a cloud based computer system to take over the booking of taxis

using a system called iCabbi. It is accepted that this is a system adopted and

installed by many taxi companies and has been in use without any apparent

difficulty since deregulation in October, 2015. It is agreed that there was

correspondence between Skyline and MKC whereby Skyline gave advance

indication to MKC that it was introducing the iCabbi system and seeking the

approval of MKC. This included an invitation to an opening ceremony for a

new Skyline call centre in August, 2015. This demonstrated a responsible

attitude by the defendants.

6. It is accepted that the iCabbi system can take bookings from customers

without any human intervention and then assign the nearest available driver

again without human intervention to fulfil the booking. The cloud based

system limits the need for any operator’s office to have anything other than a

computer that can access the cloud based system since all that is required is a

computer gateway to the cloud. The cloud based system can be based

anywhere including outside the UK.

7. It is accepted that the iCabbi system records important details such as those of

the customer, the journey, the private hire driver’s details and those of the

private hire vehicle and details of the private hire operator who took the

booking and the private hire operator who accepts the booking if that is a

different operator.

8. It is accepted that by 6 April, 2016 Mr Broomfield, on making enquiries about

Mr Platt’s taxi ride, was provided with the details of the private hire driver, the

private hire vehicle and of the journey and documentation at B12 (better

illustrated at p76 of the defence bundle) purporting to show a transfer of the

booking from Skyline MK to Skyline SN.

Deregulation of taxis

5. Private hire taxis are regulated by a statutory framework set out in the LG(MP)A

1976. Section 46 requires that private taxi operators must have an operator’s licence

from a local authority (granted under s55) together with the vehicle having a private

hire vehicle licence (granted by the same local authority under s48) and the driver

having a private hire licence (granted by the same local authority under 51).

Contravention of s46 is an offence (s46(2)).

6. Before the Deregulation Act 2015 came into force private hire vehicle taxi

companies had to operate in controlled districts (i.e. local authority areas) with the

operator, driver and vehicle being restricted to operating within that one area. This

restricted the ability of taxi companies to work across borders.

7. The Deregulation Act 2015 has an introductory text: An Act to make provision for

the reduction of burdens resulting from legislation for businesses or other

organisations or for individuals; make provision for the repeal of legislation which no

longer has practical use; make provision about the exercise of regulatory functions;

and for connected purposes. For the purposes of this case the relevant parts of the

2015 Act came into force on 1 October, 2015 some 19 months ago. They allowed

private hire vehicle taxi companies to operate across local authority borders in an

attempt to de-regulate the administration of taxi services. Sections 55A and 55B

allowed large private hire vehicle taxi firms such as Sky Line to operate across

England and Wales without the old restriction of only being able to operate within a

local authority area.

The trinity of requirements

8. It is agreed that there is a restriction on how the cross border system works in that

the identifiable operator (i.e. the person taking the taxi booking), the private hire

vehicle and the private hire driver must all still be licensed by the same local

authority. This means that the operator taking the booking must assign a driver and

vehicle who are authorised to act by the same local authority that licences the

operator. For want of a better expression this is the ‘trinity’ of requirements.

9. Section 55A allows an operator (licensed under s55) taking the call to transfer the

booking to another operator (in the words of s55A ‘arrange for another person to

provide a vehicle to carry out the booking’) so that that operator can assign a driver

and a vehicle authorised by the same local authority that authorises that other

operator. That other person must either be licensed under s55 in the same controlled

district or be licensed under s55 in respect of another controlled district and the subcontracted

booking is accepted in that district. There are provisions for London and

Scotland which are not relevant.

10. Section 56(1) deems that every contract for the hire of a private hire vehicle shall

be deemed to be made with the operator who accepted the booking for that vehicle

whether or not he himself provided the vehicle.

The need for records

11. Section 56(2)-(4) goes on to provide for record keeping as specified by the local

authority and to be produced as required. It is accepted that record keeping is

important as stated in the Blue Line Taxi case in 2012 so that if anything goes wrong

with a private hire driver or vehicle or passenger in such a vehicle the relevant details

can be readily obtained in order to investigate what went wrong in the interests of

public safety and whereby the relevant local authority can investigate and if necessary

prosecute and/or revoke any licences.

The cloud based booking system

12. Skyline Taxis are part of a cloud based taxi booking system (called iCabbi) that

links in a number of taxi operating companies and it is accepted many thousands of

drivers. Skyline Taxis argues that when Mr Platts booked a Skyline Taxi using the

MK phone number the taxi booking system (without any human input) worked out

that no local taxis were available so booked the nearest available taxi which was a taxi

operated and driven by Mr Sabeel with both him and his vehicle licensed by SNCC

and with his operator being the SNCC Skyline company. Skyline Taxis argue that the

taxi booking system automatically transferred the booking to its SN operator so

preserving the trinity of requirements.

13. MKC argues that the iCabbi arrangements do not meet the trinity of requirements

and that the taxi arrangements on 4 April, 2016 broke the law. It argues that the

automated iCabbi system used by Skyline Taxis does not amount to arranging for

another person to make the booking and does not provide the relevant paper trail and

record keeping that is necessary to protect public safety. It argues that there must be a

clear record chain of how a booked private hire journey has been processed and

fulfilled. It argues that the word ‘accepts’ in s55 cannot be satisfied by an automatic

reception of a booking by a cloud based computer booking system which then

automatically contacts and dispatches the first available driver – in other words a

computer cannot ‘accept’ a transfer of a booking for the purposes of s55A. It referred

to there having to be a MK based system to request the transfer and a separate SN

based system to accept the transfer and then arrange the driver and vehicle.

14. Skyline Taxis argues that to agree with MKC ignores modern technology and in

particular the iCabbi cloud based system (the taxi booking system many taxi

companies and drivers use) and frustrates the purpose of the Deregulation Act 2015 in

deregulating taxi services to allow cross border arrangements as set up by Skyline

Taxis and other large scale taxi operators.

Does the cloud based system comply with the law?

15. There is no authority directly on this point. In the Wilson case the High Court

applied a common sense approach as to who accepted a telephone booking. All I can

derive from that case is that I can apply a similar common sense view in this case.

16. I take into account that the iCabbi tool utilises cloud dispatch software and has

been provided to many clients involving thousands of drivers and is specially

configured for private hire vehicle taxi companies. I assume it has been designed to

meet the legal requirements for private hire vehicles but I note that individual clients

have to configure the system themselves to ensure legal compliance. I was not made

aware of any concerns or other prosecutions raised elsewhere in England and Wales

about this software which has been available and in use for some years and in the case

of Skyline since 2014. I heard evidence from Mr Broomfield that he was not aware of

other local authorities and in particular SNCC having the same concerns as MKC has.

17. In my judgement I should construe statues in the context of modern technology

and assume that Parliament has taken into account modern technology unless the clear

language of the statute or statutory instrument precludes this.

18. I take account that in much of modern life arrangements and binding contracts are

now made by customers using modern technology without any human intervention

using digital and cloud based booking systems. For example I can arrange my car

insurance on line without ever speaking to a human being and print out a valid and

binding insurance certificate. The insurance company accepts the information and

payment I offer and I accept the insurance contract and certificate thereby provided.

19. In relation to statutes that create criminal offences with criminal sanctions I should

resolve reasonable doubts as to construction in favour of the defendant, namely if

there are two possible meanings to a word or phrase I should adopt the more lenient

meaning as far as the defendant is concerned.

20. Applying what I consider to be a common sense approach I find that the iCabbi

system does comply with the law because:

- I assume that Parliament intended in the Deregulation Act to enable large

companies to operate across local authority bodies using modern technology

albeit with the trinity of requirements still in place

- iCabbi is a system in common used specifically designed for taxi firms and

has been in widespread use for some years without prior complaint or

prosecution that I am aware of

- I therefore make a reasonable assumption that the system has been designed to

be legally compliant a view fortified by there being no evidence that any other

local authority has found fault with the system in England and Wales in the

last 19 months since deregulation has applied including SN who are aware of

this case and its facts.

- I am satisfied that on the evidence before me in the form of the reports in B12

and p76 iCabbi provides specifically for a transfer of booking system in

recognition of the trinity of requirements which remains in place after

deregulation (in the format shown at B12 and better illustrated at p76 of the

defence bundle).

- I appreciate that there was some doubt as to whether the better laid out

complete booking transfer report at the bottom of p76 was available when Mr

Broomfield asked for documentary proof of the transfer but I find that it

contains the same information as in the table in the top of p76 but laid out in a

better and more comprehensible way.

- I construe the words ‘booking is accepted’ in s55A and ‘accepted’ in s55B and

‘accepted the booking’ in s56 as including an automated acceptance via an

cloud system which does not require human intervention in accordance with

the way in which so much modern technology now works. In my judgement

there is no need for a human being to answer a phone or provide some kind of

written acceptance (e.g. by e-mail on a computer) for one private hire vehicle

operator licensed in one local authority area to accept a transferred booking

from another private hire vehicle operator licensed in another local authority

area. I do not construe the word ‘accepted’ so narrowly that once a customer

makes a phone call only the office to which that phone call is made ‘accepts’

the booking and that that booking cannot be automatically transferred to

someone else (individual or company)

- I can find no requirement in the legislation that each private taxi vehicle

operator needs to have separate and identifiable computer systems to take

bookings, transfer bookings and accept transferred bookings and that a cloud

based system to which a number of different operators have access does not

meet the legal requirements in the 1976 Act

- I am satisfied that should a customer make a booking with one firm licensed

with one local authority which is transferred to another firm licensed by

another local authority and something untoward occurs (e.g. the customer is

assaulted by the taxi driver) the iCabbi system provides reports which show

the transfer and provided the relevant details so that any untoward incident can

be properly investigated by the relevant local authority

- I therefore find that when Mr Platts booked his taxi the iCabbi cloud system

discovered that there was no driver available from the Skyline MK operator

the system automatically transferred the booking to the Skyline SN operator so

that a driver and vehicle licensed by SN could be dispatched to fulfil that

booking

- I also find that a proper record of this transfer in B12 (also at the top of B76)

was created by the iCabbi system which was made available to MKC and

which met any concerns about record keeping and the need to properly

investigate any untoward incident involving the customer and the private hire

driver and/or private hire vehicle and making it clear which local authority

was responsible for licensing the operator, driver and vehicle and investigating

any untoward incident. In my judgement this satisfies the important public

safety requirements which underpin the need to keep proper records.

- I also find that the lay out of B12 does not inevitably show that Mr Sobeel was

booked by Skyline MK and then the booking transferred and that everything

happened in the wrong and unlawful order. B12 can equally be construed as

showing that the system identified Mr Sobeel as the best available driver,

transferred the booking from Skyline K to Skyline SN and then assigned Mr

Sobeel. The bottom version of the report on p76 makes this latter construction

much more likely and better illustrates the correct sequential arrangements for

making and accepting of transferred bookings.

I therefore do not find that any reasonable court could convict on the prosecution

evidence and find no case to answer and the offences are dismissed. If I am wrong

about finding no case I would then have dismissed the cases because I have more than

reasonable doubts that the cloud system breaches any laws. There is no evidence in

my judgement that the transfer did not lawfully happen and sufficient evidence that it

did. I am particularly reassured by the format of the transfer report at the bottom of

p76 which if not available at the time these offences were investigated in my

judgement now clearly shows that the cloud based system complies with the law.

Malcolm Dodds

District Judge

25 May, 2017

09/12/2017

**************************************************************************

322 KING'S BENCH DIVISION. [1928]

1927 GREYHOUND MOTORS, LIMITED (APPELLANTS) V.

0ct-27- LAMBERT (RESPONDENT).

Local Government—Stage Carriage— Motor Coach—" Plying for hire "—

" Antecedent" Contract of Carriage—Tickets bought ten Minutes before

Arrival of Omnibus at intermediate Booking Office—But after Beginning

of Journey — Metropolitan Public Carriage Act, 1869 (32 d. 33 Vict.

c. 115), s. 7.

A motor coach which belonged to the appellants and carried passengers between London and Bristol, but was not licensed to ply for hire in the Metropolitan Police District, picked up at certain points within the Metropolitan Police District passengers who, before the arrival of the coach at those points, but after its departure from the place where it began its journey, had obtained tickets entitling them to travel to destinations outside the Metropolitan Police District. The appellants had exhibited posters in which it was stated that passengers entering a coach in London must obtain tickets at least ten minutes before the arrival of the coach at the booking office:— Held, that, as the appellants clearly had contemplated that the coach might start on its journey with vacant seats all or some of which might be filled within the Metropolitan Police District by persons who had not taken tickets before its departure on its journey, it was plying for hire within the Metropolitan Police District within s. 7 of the Metropolitan Public Carriage Act, 1869, which imposes a penalty on the owner of an unlicensed stage carriage which plies for hire.

Per Salter J. The appellants solicited passengers partly by the posters (which contained time-tables and fares as well as the notice referred to) and partly by the fact that their coaches were seen to pass along the route every day at fixed times.

Sales v. Lake [1922] 1 K. B. 653 distinguished.

Case stated by a Metropolitan police magistrate.

At a court of summary jurisdiction sitting at West London Police Court an information was laid by the respondent, a Metropolitan police sergeant, against the appellants, alleging that they were on May 26, 1927, the owners of a stage carriage, to wit, a motor omnibus, found plying for hire between Hammersmith Road and Cranford Bridge, within the Metropolitan Police District, such carriage not being licensed to ply for hire within the limits of the district, contrary to s. 7 of the Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115).

Upon the hearing of the information the following facts were proved or admitted :—

The appellants were the owners of a large number of motor coaches which carried passengers between London and Bristol.

They maintained branch offices at 229 Hammersmith Road ; 1927 at the Clarendon Restaurant, Hammersmith; and at Hounslow ; all being within the Metropolitan Police District.

On May 26, 1927, there was exhibited in the window of the office at 229 Hammersmith Road a poster, in. which notice was given that London passengers must have obtained tickets ten minutes before the omnibus arrived at the booking office. The poster also contained a list of places on the road from Bristol to Hammersmith and a list of places on the road from Hammersmith to Bristol giving the times at which a motor omnibus belonging to the appellants was expected to arrive at and to depart from them. Certain fares which related to somewhat longer journeys than any within the Metropolitan Police District were specifically stated, but there was added in conspicuous type the information that there were " intermediate fares to all stages between Bristol and London at pro rata rates."

At 8.30 A.M. on May 26, 1927, P.-S. Lockyer obtained at the office at 229 Hammersmith Road a ticket entitling him to travel to Slough, a place outside the Metropolitan Police District, for which he paid Is. 9d. At the time when he obtained the ticket there was no motor coach present belonging to the appellants. At 8.54 A.M. on the same day a motor coach belonging to the appellants drew up outside

the office, was entered by P.-S. Lockyer and one other passenger, and drove off. The motor coach was driven to the Clarendon Restaurant, where three other passengers entered it. It started from the Clarendon Restaurant at 8.59 A.M., and was driven to Hounslow, stopping on the way at High Road, Chiswick, and High Street, Brentford, at neither of which places did any other passengers board it.

At 9.10 A.M. on the same day the respondent and another police officer, P.-S. Bryant, obtained at the appellants' office at Hounslow tickets entitling them to travel from Hounslow to Maidenhead, a place outside the Metropolitan Police District, for which they paid Is. 9d. At the time when the last mentioned tickets were obtained the motor coach had not arrived at Hounslow. At 9.30 A.M. on the same day

the motor coach, with P.-S. Lockyer and the other four passengers in it , arrived at Hounslow, and was entered by, the respondent, by P.-S. Bryant and by two other passengers, after which it continued its journey to Slough.

At Colnbrook, between Hounslow and Slough, the respondent informed the driver and the conductor that P.-S. Lockyer, P.-S. Bryant and himself were police officers, and left the motor coach, which continued its journey.

The motor coach was not licensed to ply for hire within the Metropolitan Police District.

The appellants called no evidence, but it was stated on their behalf, and the magistrate accepted the statement, that all their offices were in telephonic communication, and if bookings were insufficient a journey would be cancelled.

On the part of the respondent it was contended that the above facts constituted a plying for hire by the motor coach within the limits of the Metropolitan Police District.

On the part of the appellants it was contended that, as there had been no soliciting of or waiting for passengers, but an antecedent contract of carriage in each case, there had been no plying for hire within the limits of the district.

The magistrate was of opinion that there had been solicitation of passengers both before and after the motor coach left the office, 229 Hammersmith Road, by means of posters, and that there were no real antecedent contracts of carriage in respect of the police officers who bought tickets and boarded the coach soon after on its arrival at the two stopping places mentioned en route for Bristol. He held that there had been a plying for hire within the Metropolitan Police District, and he accordingly convicted the appellants, imposed on them a fine of 5s., and ordered them to pay three guineas costs.

The appellants, being dissatisfied with this determination as being erroneous in point of law, applied to the magistrate to state a case setting forth the facts and the grounds of his decision for the opinion of the Court whether he had come to a correct decision.

Paley Scott for the appellants. There was no plying for 1927 hire by the appellants' motor coach within s. 7 of the Metropolitan Public Carriage Act, 1869. "Plying for hire " connotes solicitation by the presence of a vehicle of the public to enter it and take a seat if one is available. " The carriage itself should be exhibited " : per Channell J . in Cavill v. Amos. (1) The vehicle must be ready to be entered by any person who sees it and desires to travel by it, and in those circumstances the mere interposition of the formality of getting a ticket between the solicitation of the passenger by the presence of the vehicle and the passenger's entering it will not prevent its plying for hire. But those circumstances are not present in this case, which is thus distinguishable from Foinett v. Clark. (2) " There must be a general invitation by the person in charge of the vehicle to members of the public to make contracts with him for carriage in the vehicle": per Salter J. in Leonard v. Western Services, Ld. (3) The only distinction between that case—in which a vehicle was held not to be " plying for hire " because a passenger who had a return ticket entered it—and the present matter is that here the appellants invited the public by posters to take tickets. To constitute "plying for hire" "there must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract

with them" : per Lord Trevethin C.J. in Sales v. Lake (4); by which decision, it is submitted, the present case is concluded, since the passengers here bought tickets for the journey which they required before the arrival of the motor coach at that particular point. The appellants did not solicit the public with the coach ; they merely held out by posters a promise that there would be a coach at certain places at certain times if sufficient passengers presented themselves. All the seats in the coach were numbered and were allotted to the various passengers, and only those persons who held tickets which they had previously obtained were allowed to enter the coach. The magistrate confused solicitation by the posters with plying for hire.

Roome for the respondent. The fundamental distinction between the present case and Sales v. Lake (1) is that in that case the seats in the charabanc were all " booked " before it started on its journey—before even it was hired by the persons who sold the tickets. That was a vital consideration in the minds of the Court:

see per Lord Trevethin C.J. (2)

In the present case the coach started on its journey from 229 Hammersmith Road, and while it was actually in transit to Hounslow passengers at Hounslow were " booking " seats in it.

As was said by Lord Hewart C.J. in Armstrong v. Ogle (3) :

' " When this particular omnibus set out upon its journey all the driver of it knew about the persons he was to collect and pick up . . . . was that they were to belong to a large, unknown, indeterminate class of persons who happened to possess . . . . tickets, and to whom, if they attracted his attention, he was to offer a place in his omnibus." Lord Hewart C.J. added : " If that is not picking up passengers, I do not know what is Here there was not a private hiring ; there was a public and general service."

[He was stopped.]

Paley Scott replied.

LORD HEWART C.J. The real contention of the appellants both in this Court and in the Court below was that the present case is covered by Sales v. Lake. (1) A comparison between that case and the present, however, shows what so often appears—namely, how exceedingly misleading a phrase may be if its meaning is not examined. The phrase here which seems to have become a catchword is " antecedent contract."

Antecedent to what? In Sales v. Lake(l) the passengers bought their tickets before the time of the departure of the vehicle. Indeed, it was not until after the number of

passengers had been ascertained that the respondents in that case.hired the vehicle. The magistrate found expressly that there was no plying for hire, because no member of the public 1927 could have obtained a seat in the vehicle at any of the places where the passengers were picked up unless he had bought a ticket elsewhere before the starting of the vehicle. In giving judgment Lord Trevethin C.J. said (1) : "If there had been any empty seats for which the driver was prepared to take in casual passengers, I think he would have been plying for hire, but the magistrate's finding negatives this suggestion." In my opinion, that case was the very opposite of the present case. Here there are contemplated four different starting points within the Metropolitan Police District. The vehicle starts from 229 Hammersmith Road at 9 A.M. It leaves Brentford at 9.20, Hounslow at 9.30, and Colnbrook at 9.55. What is its true aspect in the eye of the law when it starts from 229 Hammersmith Road ? Non constat that at that moment it has any passengers at all. Obviously it is contemplated that it may start with vacant places all or some of which may be filled at Brentford, Hounslow, or Colnbrook by persons who not only have not reserved accommodation before 9 o'clock, but may not even have

made up their minds to take the journey that day until, in the case of those joining the vehicle at Colnbrook, nearly10 o'clock, when it has accomplished a part of its journey, which occupies something like three-quarters of an hour. Stress has been laid on the fact that here the passengers had to obtain a ticket from an office and not from any one on the vehicle. That seems to me to be quite immaterial for the reasons explained in Foinett v. Clark. (2) In my opinion the magistrate had ample evidence to justify him in coming to the conclusion to which he did, and therefore this appeal must be dismissed.

AVORY J. I am of the same opinion. The importance of this case from the public point of view is that if vehicles such as this are not licensed they may start on their journeys in quite an unfit condition and may be driven by incompetent persons. That being so, it is obvious that the Court ought not to differ with the magistrate, unless the case is governed by Sales v Lake (1) As my Lord has pointed out the essential difference between the present case and Sales v. Lake (1) is to be found in the facts. The vehicle there started for Brighton from Charing Cross, and, although it picked up passengers en route at Grosvenor Gardens, Vauxhall Bridge Road and other places, no passenger was accepted at any stopping place except those who had obtained tickets before the vehicle started from Charing Cross. In other words, the passengers who were picked up had made contracts to be carried for the journey before the vehicle started from Charing Cross. In fact, they made these contracts before the vehicle was hired. The magistrate expressly held that there was no plying for hire at Grosvenor Gardens, because no member of the public could have obtained a seat in the vehicle at that stopping place unless he had previously bought a ticket elsewhere. The judgment of Lord Trevethin is based on the same ground. He said (2): " The information in the present case charged that the driver was plying for hire while he was in Grosvenor Gardens. The learned magistrate has however found that when the carriage was in Grosvenor Gardens no member of the public could have obtained a seat in the vehicle for that journey who had not previously booked his ticket elsewhere. That is to say the process of soliciting was then over and the driver was merely receiving passengers who had already booked their seats. On this ground alone in my judgment the magistrate was right in refusing to convict." That being the distinction between the present case and Sales v. Lake (1) I have no hesitation in saying that we cannot differ from the finding of the magistrate, and that therefore the appeal must be dismissed.

SALTER J. I am of the same opinion. The vehicle in question in this case carried passengers between Bristol and London and London and Bristol, following an ascertained route and travelling by fixed stages, which were notified to the public by posters and by the tickets supplied to passengers. The starting point in London was the appellants' office at 229 Hammersmith Road. The journey to Brentford occupied twenty minutes and that to Hounslow thirty minutes. If when the vehicle started from Hammersmith Road there were any vacant seats—and there might or might not be—any member of the public who had come to the stopping place at Brentford or Hounslow could obtain a ticket to journey to any of the stages towards Bristol, provided he got it ten minutes before the arrival of the vehicle to take him up. On these facts the case seems to me plainly to fall within the two conditions which must exist to constitute plying for hire, and which were applied by Lord Trevethin C.J.

In Sales v. Lake (1), when he said : " There must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them." The soliciting here would be partly by the posters and partly by the fact that this vehicle was seen and known to pass along the route every day at fixed times. Lord Trevethin goes on to say that the test is that " the owner or person in control who is engaged in or authorizes the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers." Here any one who pleased might travel by this vehicle. The distinction between the present case and Sales v. Lake (I) has already been pointed out. In that case the driver of the vehicle was told to pick up at various points suitable to them the particular persons who had previously taken tickets, and he was not authorized to pick up any other persons, and he did not do so. In my opinion the magistrate in the present case was right in holding that the appellants' motor coach was plying for hire in the Metropolitan Police District, and this appeal must be dismissed.

Appeal dismissed.

Solicitors for appellants : Colder Woods do Sandiford, for

F. E. Metcalfe, Bristol.

Solicitors for respondent: Wontner do Sons.

(1) [1922] 1 K. B. 553, 557.

G. F. L. B.

09/12/2017

************************************************************************************

Director of Public Prosecutions v Computer Cab Company Ltd and another

Queen's Bench Division (Crown Office List)

[1996] RTR 130, CO/808/94, (Transcript: John Larking)

HEARING-DATES: 7 November 1994

7 November 1994

COUNSEL:

J Carter-Manning QC and J Regden for the Appellant;

A Scrivener QC and W Hibbert for the First Respondent; R Beckett QC and C Pitt for the Respondents

PANEL: Rose LJ, Scott Baker J

JUDGMENTBY-1: ROSE LJ

JUDGMENT-1:

ROSE LJ: There is before the court an appeal by way of Case Stated against a decision of Mr Roger Davies, Metropolitan Stipendiary Magistrate, at Horseferry Road Magistrates' Court, London, on 7 January 1994. He dismissed a number of informations against the second and subsequent Respondents, who are cab drivers, against whom it was alleged that they had permitted their cabs to be hired in parts of the Metropolitan area in which, by reason of the conditions attached to their licence, they were prohibited from plying for hire, contrary to para 31(1)(ii) of the London Cab Order 1934, sections of the Metropolitan Pubic Carriage Act 1869 and Criminal Justice Act 1967 as amended by the Criminal Justice Act 1982. He also dismissed a number of related informations preferred against the first named Respondent, on the basis that they had aided and abetted the second and subsequent Respondents to commit those offences.

The facts found in the Case Stated, so far as are presently material, were these. The Metropolitan Police District is empowered to issue Green Badges and Yellow Badges to cab drivers. Green Badges permit the driver to ply for hire anywhere in the Metropolitan Police district. The Yellow Badges permit the driver to ply for hire within a particular sector, excluding the central area within a six-mile radius of Charing Cross. All the second and subsequent Respondents held Yellow Badges for sector 1, the North East area of London.

The Stipendiary further found that the first Respondent was a company set up to provide services to licensed cab drivers who subscribed to it in order to obtain the benefit of its services, which included the booking of hirings and the maintenance of radio networks, through which hirings could be communicated to drivers and by which drivers could inform the company of their availability. He further found that all the drivers, when accepting calls material to the present informations, were within their licensed area.

It was not contended to the contrary and the Stipendiary found that the first Respondent admitted aiding and abetting the drivers by the system of offering jobs within the central area to drivers licensed outside that area. He further found that, as between the first Respondent and the other Respondents, there was an obligation to carry out the hiring, once it had been accepted by the driver and the meter had begun to run on receipt by the driver of the call. It is common ground that the meter would begin to run and the "For Hire" sign would be extinguished when the booking was accepted by the driver on communication to him by the first Respondent company.

In the course of Mr Scrivener's submissions to the court, on behalf of the first Respondent, it emerged that there were, first, facts which, as it turns out, were not in dispute between the parties, but which formed no part of the Stipendiary's findings in the Case Stated. These are that, although, on receipt of the radio communication from the first Respondent, a cab driver who accepted the booking would start his meter, the maximum permissible charge in relation to his journey from the point at which he was summoned to the pick-up point was £2.40. It is further common ground that at the very least, in general terms, the destination for the driver after pick-up was communicated by the customer to the first

Respondent and by them, in turn, to the driver. It also emerged that, in relation to each of the informations the subject of the present appeal, all the customers were credit customers in a contractual relationship with the first Respondent with regard to credit terms.

It is, to say the least, highly unfortunate that it was not until the midpoint of the hearing before this court that those facts, which both parties are agreed are material, had not come to be, by way of remission or otherwise, in the Case Stated by the Stipendiary. As is well-known, the parties on receipt of a Case Stated are permitted by the Rules to make representations about it within a period of 21 days. Had that been done in this case, as generally it should be done, the present difficulties would not have arisen. However, because this is not a case where, either before the Stipendiary or before this court, there is any significant difference between the parties as to what the facts are, that difficulty is, to a large extent, overcome.

The material regulations are these. Paragraph 27 of the 1934 Order provides for the form of a cab driver's licence and the issue of a copy of the licence, and empowers the Metropolitan Police Commissioner under para 27 1(b), if he is not satisfied that the Applicant has an adequate knowledge of the Metropolitan area, to ".... attach a condition prohibiting the licensee from plying for hire with a cab in the said area except in such part or parts thereof as may be specified, being a part or parts in respect of which he has satisfied the Commissioner of Police that he has an adequate knowledge."

There are two points that are worthy of comment which emerge from that. First, it provides the basis for the distinction to which I have already referred between and a Yellow Badge and a Green Badge. Secondly, it identifies the basis of the distinction, namely, what is colloquially and familiarly known as "the knowledge"; that is to say a cab driver will not be licensed to drive in the central Metropolitan area unless he has the requisite knowledge of its geography.

Paragraph 31(1) provides:

"If the holder of a cab-driver's licence

(i) .....

(ii) plies for hire with a cab or permits the cab to be hired in any part of the metropolitan area in which by a condition attached to his licence he is prohibited from plying for hire with a cab,

"he shall be guilty of a breach of this Order."

It was in relation to a breach of that part of that paragraph which refers to "permits the cab to be hired" that the Yellow Badge holders were prosecuted in the present case.

Paragraph 39 provides:

"The driver of a motor cab shall, as soon as the cab is hired and no sooner, set the mechanism of the taximeter in motion, and shall, as soon as the hiring is terminated and no sooner, stop the mechanism of the taximeter."

The submission made on behalf of the Appellant (the Director of Public Prosecutions) by Mr Carter-Manning QC, is that, in the interest of the protection of the public, which is the aim and object of this licensing system, one principle should apply to determine whether and when a hiring has taken place, regardless of whether the hiring is for cash or for credit, and the only appropriate principle is that the hiring takes place at the pick-up point, that is to say when the cab driver and the customer meet.

For my part, I see the force of that submission, if it were the case that, until that point in time, an unlimited charge appeared upon the meter which the customer would be required to pay following the operation of that meter by the driver outside the licensed area. Whether that submission remains so persuasive in the light of the facts as they are now agreed to be is another matter.

Mr Scrivener, on behalf of the first Respondent, submits that the first Respondent computer company acts as an agent of both the customer and the driver. He submits that, having regard to Cogley v Sherwood [1959] 2 QB 311, [1959] 2 All ER 313, which established that plying for hire can only occur when a cab is visible to potential customers, once the plying for hire is brought to an end by extinguishing the "For Hire" sign and operating the taximeter, it is at that point that the hiring starts.

For my part, I am not persuaded that that particular authority assists Mr Scrivener. It would do so if it were the case that a hiring necessarily starts when a period of plying for hire comes to an end, but that is not so. It is clearly not so if, for example, a driver extinguishes his "For Hire" sign and heads for home. The question is whether or not the hiring, postulated in the facts before this court, did or did not occur within the area for which the second Respondents were not licensed. Mr Scrivener also invited the court's attention to Khan v Evans [1985] RTR 33 in which it was held that a hiring was complete when hailing took place. That again, as it seems to me, does not advance the argument.

Mr Beckett, on behalf of the drivers, approached the contractual aspect of the matter somewhat differently. His submission was that there was a contract between the customer and the first Respondent for a cab, followed by a subcontract between the first Respondent and the driver, whereby the particular cab was assigned and the driver became contractually obliged to pick up the customer from that time on. Mr Beckett drew the court's attention to Britain v ABC Cabs (Camberley) [1981] RTR 395 and Windsor and Maidenhead Borough Council v Khan [1994] RTR 987, cases which were concerned with provisions akin to, but not identical to, the regulations with which this court is presently concerned. In my judgment, hiring is necessarily a matter of agreement. It involves agreement between the customer on the one hand, and the driver on the other. In the ordinary way that is an agreement which takes place in the street. It is a process which starts with the driver plying for hire being hailed, a discussion following as to where the customer wishes to be taken and, apart from exceptional cases in which the driver is entitled to refuse a particular fare (into which it is unnecessary to go), the agreement for hiring is clearly evidenced by the customer getting in the cab and the cab driver deleting his "For Hire" sign and starting his meter.

Whether or not, in the circumstances postulated, a hiring took place in an area for which the drivers were not licensed, must, as it seems to me, depend on what, if anything, remained to be agreed between the driver and the customer within the licensed area. Mr Carter-Manning was constrained to concede in the course of his reply that, save possibly in relation to the precise destination, nothing remained to be agreed between the customer and driver in the present case once the discussions over the telephone between the customer and the first Respondent and the radio discussion between the first Respondent and the driver had taken place. That latter conversation having taken place, the driver would know where he had to pick up the customer; he would know, at least in general terms, the area where the customer was to be taken; he would know that a sum of a maximum amount of £2.40 could be charged, whatever was shown on the meter, for the journey between his receipt of the call and picking up the customer, and, having extinguished his "For Hire" sign so that he was no longer plying for hire in the area where he was licensed to ply for hire and having started the meter, he would regard himself as not only contractually bound to the first Respondent, but also obliged to collect the customer.

In my judgment, once the position is reached where nothing further remains to be agreed between the driver and the customer within the unlicensed area, the conclusion is inescapable that the hiring took place in the area where these defendants were licensed. The inevitable consequence of that, as it seems to me, is that the cabs in the instant case were not permitted to be hired in the licensed area. The hiring had already taken place. It follows that the answer to the first question posed by the Stipendiary Magistrate, namely: "Whether, notwithstanding any prior booking arrangement or hiring agreement, the licensed cab driver for the purposes of Paragraph 31 of the London Cab Order 1934 permits his cab to be hired at the time and place at which he physically picks "up the hirer?"

is "No"; and, as to the second question, namely:

"Was I correct in law, on the agreed facts, in dismissing the informations?"

the answer is "Yes". Of course the offences in the informations laid in relation to aiding and abetting against the first Respondents must, of course, fail with the informations laid against the other Respondents.

Accordingly for those reasons, I would dismiss this appeal.

JUDGMENTBY-2: SCOTT BAKER J

JUDGMENT-2:

SCOTT BAKER J: I agree.

DISPOSITION:

Appeal dismissed. Costs from central funds.

SOLICITORS:

Crown Prosecution Service; Charles Patel, Wokingham; Michael Demidecki

_________________

****************************************************************

This is the main act in relation to private hire laws.

Please  Copy and Paste the link below

1976 Local Government (Miscellaneous Provisions) Act

*******************************************************************

Please Copy and Paste the link below

1847 Town Police Causes Act

************************************************************************

Please Copy and Paste the link below

Dhillon & Dhillon v HMRC

http://www.bailii.org/uk/cases/UKFTT/TC ... 05583.html

****************************************************************************

CPS code crown prosecutors

Please Copy and Paste the link below

http://www.cps.gov.uk/publications/code ... prosecutors/

*************************************************************************

Pimlico Plumbers -v- Smith 2017

Please Copy and Paste the link below

http://www.bailii.org/ew/cases/EWCA/Civ/2017/51.ht

**************************************************************************