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Southampton - the decision on sound recording in cabs

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https://mycouncil.oxford.gov.uk/documents/s13743/Audio%20Visual%20Recording%20-%20Appendix.pdf

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R v CITY & COUNTY OF SWANSEA (Respondent), EX PARTE JULIE AMANDA JONES (Applicant) (1996)
QBD (Harrison J) 28/11/96
LOCAL GOVERNMENT - ADMINISTRATIVE LAW - LICENSING

HACKNEY VEHICLE LICENSING : FIRST LICENCE : REQUIREMENT OF NEW VEHICLE : WHETHER LAWFUL : JUDICIAL REVIEW

The respondent council's policy of not licensing hackney carriages on the first occasion unless new was lawful.

Application by Julie Jones ('Jones') for judicial review of a decision by the respondent ('the council') refusing Jones' application for a hackney vehicle licence in relation to a 1991 black cab on the ground that it was council policy that vehicles would not be accepted for licensing on the first occasion unless new. Jones' vehicle was already licensed as a hackney carriage in Plymouth, and the council accepted that there was no objection to its mechanical condition. However, the council justified the policy on the grounds that its purpose was to maintain the standard of hackney carriages in Swansea and to ensure the comfort and safety of passengers.

The issues for the court were: (i) whether the council fettered its discretion by adopting and applying its policy; (ii) whether the policy was unlawful as being unreasonable and irrational; and (iii) whether the application of the policy was unreasonable and irrational.

HELD: (1) Although the policy was inflexibly worded, that was not fatal since the evidence established that the policy could be flexibly applied. It was perfectly permissible for the council to apply its policy consistently without attracting the criticism that the policy was being applied inflexibly, provided that the council had an open mind as to the possibility of exceptions. (2) It was clear that the policy was arrived at after consultation and that it had reasonable objectives.

There was, therefore, a rational basis for the policy. (3) Notwithstanding that the vehicle was licensed elsewhere and was in good mechanical condition, there was nothing objectionable in the council deciding to set high standards and then keeping to them. On that basis it was not possible to say that the decision was Wednesbury unreasonable.

Application dismissed.

Mr N Williams QC and Mr P Maddox instructed by R D Edwards Morgan & James (Swansea) for the applicant. Mr R Singh instructed by the Solicitors Division, Swansea City Council for the respondent.
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The sections that are broadly accepted as applying conditions to hackney carriage vehicles are as follows. All these sections have at some time had success and failure but you will find any conditions applying to vehicle type etc will probably be cited from one of these sections but mainly section 47 of the LGMP 1976.

Town Police Clauses Act 1847

Hackney carriages

37 Commissioners may licence hackney carriages And with respect to hackney carriages, be it enacted as follows:

The commissioners may from time to time licence to ply for hire within the prescribed distance, or if no distance is prescribed, within five miles from the General Post Office of the city, town, or place to which the special Act refers, (which in that case shall be deemed the prescribed distance,) such number of hackney coaches or carriages of any kind or description adapted to the carriage of persons as they think fit.

Modification

Modified, in relation to hackney carriages, by the Transport Act 1985, s 16. See further, in relation to a licensed taxi, licensed under this section, providing a local service under a special licence: the Local Services (Operation by Taxis) Regulations 1986, SI 1986/567.

38 What vehicles to be deemed hackney carriages Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance, and every carriage standing upon any street within the prescribed distance, having thereon any numbered plate required by this or the special Act to be fixed upon a hackney carriage, or having thereon any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of this Act; and in all proceedings at law or otherwise the term "hackney carriage" shall be sufficient to describe any such carriage: Provided always, that no stage coach used for the purpose of standing or plying for passengers to be carried for hire at separate fares, and duly licensed for that purpose, and having thereon the proper numbered plates required by law to be placed on such stage coaches, shall be deemed to be a hackney carriage within the meaning of this Act.
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1976 act section 47 Licensing of hackney carriages

(1) A district council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the district council may consider reasonably necessary.

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

(3) Any person aggrieved by any conditions attached to such a licence may appeal to a magistrates' court.

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Taxi Licensing Appeal: Cartledge v Gedling Borough CouncilPublished Date: 21/06/2021

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It is sometimes said that if a taxi (hackney carriage) driver outside London applies to renew his driver’s licence, but the licensing authority fails to determine his application before the licence expires, he must stop working as a taxi driver until the authority makes a decision. A recent taxi-licensing appeal in Nottingham Crown Court suggests that the issue may not always be so clear-cut.  Gerald Gouriet QC explains the position in this authored article.

Different licensing regimes

Until the hotch-potch of taxi licensing legislation is reformed, there is one law for a London taxi driver, and another for drivers in the provinces.

In Greater London: Section 17(7) of The Transport Act 1985provides –

17(7) Where a person holds a licence which is in force when he applies for a new licence in substitution for it, the existing licence shall continue in force until the application for the new licence, or any appeal under this section in relation to that application, is disposed of, but without prejudice to the exercise in the meantime of any power of the licensing authority to revoke the existing licence.

Outside Greater London: There is no ‘continue in force’ provision the equivalent of section 17(7) of the Transport Act 1985.  When a licence expires, it expires, even if the licensee has applied for the renewal of it.

James Button[1] offers an alternative to the enforced unemployment of a provincial taxi driver while he waits for a decision from the licensing authority, in the issue of a temporary licence to bridge the gap between expiry and delayed renewal. But that solution relies on the willingness of the licensing authority to be helpful – which, as the Nottingham Crown Court case demonstrates, cannot always be guaranteed.

Cartledge v Gedling Borough Council

Mr. Cartledge, a licensed hackney carriage driver, had applied for the renewal of his driver’s licence well before it expired. His application was not granted until 14 days after expiry. A council officer saw him standing by his cab in a public street the day before his driver’s licence was renewed, and Mr. Cartledge agreed he had been driving it. There was no suggestion he had been plying for hire or taking passengers. The council prosecuted him under section 46 Town Police Clauses Act 1847 for driving a hackney carriage without holding a licence. He was convicted in the magistrates’ court and appealed to Nottingham Crown Court.

The material facts

• Cartledge had been a licensed hackney carriage driver since 2011 and a licensed private hire vehicle driver since 1987, holding a succession of back-to-back driver’s licences renewed annually without any issues arising. He was also a licensed PCV (Passenger Carrying Vehicle) driver, allowing him to drive any kind of bus or coach. His dual hackney carriage and private hire vehicle driver’s licence was renewed on 22 August 2016, valid for three years until 21 August 2019

• On 24 April, the respondent council sent the appellant a letter to remind him that his current Hackney Carriage drivers’ licence was due for renewal on 22 August 2019.

• On 10 June 2019 Mr. Cartledge telephoned the number given in the letter and made an appointment to attend the council offices on 19 June 2019. He duly attended and brought with him a completed application form and various documentation required by the council for the renewal of his licence. His application was not accepted, however, due to his not having current safeguarding refresher training.

• The following day (June 20) he telephoned the council’s ‘Customer Services’ number to arrange his refresher training. He was offered either 12 July or 16 August as the only dates available for this course but was unable to take 12 July because he was already booked to drive a school coach trip on that day. The training was arranged for the morning of 16 August.

• Cartledge then telephoned the council’s licensing division and requested that he be given an appointment to renew his hackney carriage licence on the afternoon following his refresher training; but the request was declined, the reason given being that “appointments are not held on Fridays”. An appointment was made for Monday 19 August.

• He completed the training on the morning of Friday, 16 August. Confirmation of his having satisfactorily completed the training was emailed to the council’s licensing division by the course provider.

• He returned to the council offices on Monday 19 August. He re-submitted the completed application form and the required documentation, but still his licence was not renewed.

• The licence expired on 21 August. He drove his hackney carriage on 4 September. His licence was renewed on 5 September. The council prosecuted him for driving a hackney carriage on 4 September without holding a hackney carriage driver’s licence.

The Crown Court decision

 Mr. Cartledge’s appeal against conviction was allowed: the judge, sitting with two magistrates, found that the proper inference from the agreed facts was that the application to renew had been refused: Mr. Cartledge had asked for a licence to take the place of his current licence on its expiry and had not been given what he had asked for.  

The refusal triggered section 77(2) of LGMPA 1976, which (so far as material) provides -

“If any requirement, refusal or other decision of a district council against which a right of appeal is conferred by this Act… 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…that person may carry on that business.”

[underlining added]

The council’s case was that section 77(2) was irrelevant. The renewal application (they said) had not been refused: on the date the appellant’s licence expired the council had yet to make a decision on his application. The council’s ‘Respondent’s Notice’ said:-

Section 77(2) of the Local Government (Miscellaneous Provisions) Act 1976 is not relevant to the issue. No requirement, refusal or other decision had been taken for which there was a right of appeal conferred by the Act. So proper construction of this section is not relevant in our submission.

Against that, it was submitted on Mr. Cartledge’s behalf that to make sense of the appeal provisions in the LGMPA 1976 it is necessary to give the word “refusal” a less literal, more purposive construction. Where an application to renew a hackney carriage driver’s licence is made during the currency of the existing licence, a failure to renew the licence by the time it expires should be treated as a refusal to renew it for the purposes of the section 77(2) LGMPA 1976, in order to avoid absurd consequences which cannot have been the intention of Parliament.

The ‘absurd consequences’ rule of statutory interpretation

It is a presumption of statutory interpretation that Parliament intends to act reasonably: see IRC v Hinchy [1961] AC 748 at p 767 per Lord Reid. In R v Central Valuation Officer [2003] UKHL 20 at 116, Lord Millet cited Hinchy and continued:

“The Courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.”

The literalist construction of section 77(2) LGMPA advanced by the respondent in the Cartledge appeal had a number of such consequences:

• A hackney carriage driver whose renewal application is refused before the licence expires would be in a better position than a driver whose renewal application is granted after the licence has expired. The former may continue to drive his vehicle for ‘the appeal period’ (and if he appeals until the appeal is disposed of) even after his licence expires; but a driver who has applied to renew his licence but has not yet been given a decision by the time the licence expires would have to stop driving until the council determined his application.

• Even a driver whose licence is revoked for cause would be, on the respondent’s construction, better-off than a driver who is waiting for a decision on an uncontroversial renewal application made before the licence expires.

• The anomaly goes further than merely disallowing a driver to drive his hackney carriage while waiting for a decision on his renewal application. If the council’s 5 September decision had been to refuse Cartledge’s application to renew, he could of course have appealed the decision (LGMPA section 61(3)), but he could not have carried on as a hackney carriage driver pending determination of the appeal (section 77(2)(b)(ii)) because – on the respondent’s construction – since 22 August he would not have been “lawfully carrying on [his business] up to the time of the… decision”.

It was argued on Mr. Cartledge’s behalf that it would be irrational to give a hackney carriage driver who has applied to renew his licence while it is current the right to carry on working pending appeal if his renewal application is refused before the licence expires, but to deny him that right if his application is refused after the licence expires. An arbitrary dispensation of the right to work is unlikely to have been the intention of Parliament, but if it were one would expect to see express language to that effect.

Conclusions

Whether the decision in Mr. Cartledge’s appeal is restricted to the particular facts of his case or is of more general application (as this article suggests it is), will no doubt be determined if similar cases come before the courts.

There is nothing unusual about a licensee who applies to renew his licence before it expires enjoying the benefit of the licence pending determination of his application. As noted above, a London taxi driver has that privilege. The fact that Section 17 of The Transport Act 1985 applies only to London is perhaps suggestive of Parliament’s being satisfied that the position outside London was already satisfactorily covered by section 77(2) of the LGMPA 1976. It is unlikely that Parliament intended to create a North/South divide!

A street trader enjoys the same entitlement. Street trading is regulated by the LGMPA 1982.  Schedule 4, paragraph 6(10) provides –

If a licence-holder applies for renewal of his licence before the date of its expiry, it shall remain valid… until the grant by the council of a new licence with the same principal terms.

Even the operator of a sex shop or lap dancing club has that security. Schedule 3, paragraph 11(1) of the LGMPA 1982 provides -

Where, before the date of expiry of a licence, an application has been made for its renewal, it shall be deemed to remain in force notwithstanding that the date has passed until the withdrawal of the application or its determination by the appropriate authority.

It would be odd indeed if Parliament intended a provincial taxi driver to be forced into unemployment while waiting for a licensing authority to reach a decision on the renewal of his licence, whilst giving the licensee of a lap dancing club the benefits of his licence for as long as the authority takes to make up its mind.

Gerald Gouriet QC

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CO/9149/2010

Neutral Citation Number: [2011] EWHC 1403 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Monday, 16 May 2011

B e f o r e:

MR JUSTICE COLLINS

Between:

THE QUEEN ON THE APPLICATION OF EXETER CITY COUNCIL

Claimant

v

SANDLE

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 7831 8838

(Official Shorthand Writers to the Court)

Mr J Ticehurst (instructed by Exeter City Council) appeared on behalf of the Claimant

J U D G M E N T

(As Approved by the Court)

Crown copyright©

1. MR JUSTICE COLLINS: This is an appeal by way of case stated from a decision of the Crown Court at Exeter given on 1st October 2009 on an appeal by one Nicholas Sandle against the decision of the Exeter City Council (the appellant in this case) to decline to grant a Hackney Carriage Licence following the expiry of his existing licence.

2. The court decided that notwithstanding that the licence had expired when the application for its renewal was made, it was capable within the meaning of the legislation of being renewed and it ought to have been renewed. However, in addition the court had decided that a fresh licence should have been in the circumstances granted. The appellant council does not challenge that decision. Accordingly, this appeal in so far as Mr Sandle is concerned is academic because he has the licence which he wished for. But it is of some importance to the Appellant Council because I am told that it, and indeed a considerable number of licensing authorities, have taken the view that the terms of section 43 of the Town Police Clauses Act 1847 prevent a renewal because they limit the licence granted to a period of 12 months.

3. The statutory provision in question, section 43, reads as follows. Under the heading "Licence to be enforced for one year only":

"Every licence so to be granted shall be under the common seal of the commissioners, if incorporated, or, if not incorporated, shall be signed by two or more of the commissioners... "

Perhaps that in itself is not particularly material now:

"... and shall not include more than one carriage so licensed, and shall be in force for one year only from the day of the date of such licence, or until the next general licensing meeting, in case any general licensing day be appointed by the commissioners."

In reality nowadays, as I understand it, the local authorities will normally act on the basis of the licence being valid for one year only within the terms of section 43.

4. It is to be noted that section 60(1) of the Local Government (Miscellaneous Provisions) Act 1976 has provided as follows under the heading "Suspension and revocation of vehicle licence":

"Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district council may suspend or revoke or (on application therefor under section 46 of the Act of 1847 or section 51 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... "

Various grounds are then set out and they include any other reasonable cause. If they do so they have to give notice to the proprietor of the vehicle of the grounds upon which they have so acted.

5. It is clear that that provision presupposes that there is power to renew a licence granted under the Act of 1847. The question therefore is whether such renewal can take place after the licence has expired.

6. The first question that is asked by the Crown Court is whether a Hackney Carriage Licence is capable of renewal in a sense envisaged by section 60 of the 1976 Act before the expiration of the year period described by section 43.

7. It seems to me that the word "renew" can quite properly mean "grant afresh". That is to say, to permit the licence that has been granted to be treated as a new licence. That is a perfectly normal use of the English language and one which is clearly recognised by section 60 of the 1976 Act. Thus, an individual licence can only last for 12 months. That licence can be renewed and therefore is treated as a new licence which again will last for a period of 12 months and so on, if application is made. If it is a question of renewal then renewal will normally only be able to be made upon the same terms, that is to say it is a mechanical exercise unless there are reasons why such renewal should not be permitted.

8. In the case of Exeter, and I suspect in the case of other authorities, there is a condition attached to a licence that an application for renewal must be made before the licence comes to an end that is to say before the 12 month period expires. In fact, the condition imposed by Exeter requires that such an application be made not more than 14 days before the 12 month period comes to an end, but can be made at any time up to the expiry of that 12 month period. That means inevitably that if the application is left until the last day of the validity of the licence it is unlikely to be processed until the following day at the earliest and if weekends intervene it will be longer than the following day. Thus, any renewal will have to take place after the licence has expired. I am told that there is what I am bound to say seems to be a little bit of a fudge applied in those circumstances because, albeit it is granted in those circumstances, it is treated as a fresh licence that is to say as if it were not a renewal but a grant of a fresh licence which means that the conditions that normally have to apply in order to enable a new licence to be obtained are not imposed in such a case. It seems to me that that is a wholly unnecessary provision. There is nothing that prevents a licence which has expired from being renewed. As a matter of English, if for example one forgot to renew a driving licence the normal expression to be used when one remembered is "I forgot to renew, I must renew now" and no one, as it seems to me, could suggest that that was a misuse of the English language. As it seems to me that is entirely consistent with the approach indicated by the Act of 1976.

9. Although in the case of Exeter no doubt a renewal can be dealt with speedily, it may be that in other cases it will take a few days for the matter to be considered or there may be questions as to whether a renewal is permissible in an individual case because there may be concerns that there possibly has been a breach of conditions or there are grounds for refusing to renew and thus it could take a few days to sort that out. It would be somewhat absurd if in taking those few days so that the licence had expired it then became impossible to renew it within the meaning of the legislation. Accordingly, I take the view that not only is it permissible to renew when the licence still exists, but also it is possible to renew a licence, that is to say effectively to grant what amounts to a new licence, after the original has expired and that is no breach of section 43.

10. Concern is raised by the council because there are quotas and in fact I think every council will adopt a policy of quotas for Hackney Carriage Licenses on the basis that the demand must be there to justify the grant of a licence. Accordingly, there is often a queue of applicants who wish to obtain a licence if an existing one is not renewed. Accordingly, if no application in time is made then the council officer, who has the responsibility, may decide to grant a new licence to another applicant and accordingly when the application does come in he finds himself in a difficulty if there is a power to renew notwithstanding the application is made after the licence has expired.

11. It seems to me the answer to that problem lies in the condition. The applicant will know that he must make his application before the licence expires and if he does not do so he will find that his application is likely to be rejected. Indeed, unless he has a very good reason for the failure that will almost certainly be the case. I am told that there are problems in deciding how long a period should be left before a decision is made to grant a fresh licence to take the place of the one in respect of which no application for renewal has been made. The simple answer to that surely is that certainly a couple of days, perhaps three days, who knows, but a very short period is one which is appropriate just in case there is a good reason for the delay. In fact in this case the application was made a day late and the Crown Court decided that there was indeed a very good explanation I think the individual who was deputed to make the application had a sick child at the material time and accordingly had been distracted but had realised quickly and tried to make his application but the weekend had come upon him and thus the application was only a day late and, perhaps slightly unsurprisingly, the Crown Court took the view that in those circumstances it was not reasonable for the council to have refused to entertain the application for a renewal. But I must make it clear that if it is apparent from the conditions that the application has to be made within the period the licence is in force, it will take very strong case and very exceptional circumstances for an applicant who fails to make his application for renewal in time to be able to justify a claim that the council ought in the circumstances to have granted his licence. Such exceptional circumstances can exist and as I say it would be sensible for a council to give two or three days at least before taking the step of deciding to grant it to someone else. After all, I suppose such an application can for example be made by post and if there are postal difficulties that would be a good reason no doubt to defer any action to make sure that there had not been a delay in the post. One can imagine other circumstances which might make it obvious that it would be prudent to give a little extra time in all circumstances. It is obviously impossible to spell those out, but as I say suffice it to say that if the condition is not met it will be proper for the council to take the view that they will only allow renewal in exceptional circumstances.

12. Accordingly, I must deal with the questions raised by the case stated:

(1) Is a Hackney Carriage Licence capable of renewal in the sense envisaged by section 60 Local Government (Miscellaneous Provisions) Act 1976 before the expiration of the one year period prescribed by section 43 Town Police Clauses Act 1847? The answer to that is: "Yes".

(2) Is a Hackney Carriage Licence capable of renewal, in the same way, after the expiration of that one year period? Answer: "Yes". If so, how long after does it cease to be so capable? Answer: "There is no particular period, but as I have indicated it would only be in exceptional circumstances that a delay of more than a few days would be permissible." (3) If the licence was capable of renewal, ought the applicant to have renewed the Licence in his case? That is not a question of law. It is a question of exercise of discretion and I need not answer it.

13. It follows therefore that this appeal will be dismissed.

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R v Liverpool City Council ex parte Curzon Ltd

Queen's Bench Division (Crown Office List)

HEARING-DATES: 12 November 1993

12 November 1993

COUNSEL:

Mr Pugh for the Applicant; W Braithwaite QC for the Respondent

PANEL: McCullough J

JUDGMENTBY-1: MCCULLOUGH J

JUDGMENT-1:

MCCULLOUGH J: Curzon Limited operate hackney carriages (in other words, taxis) in Liverpool. The company is aggrieved by two decisions of the City Council's Taxis Sub-Committee.

The submissions raise two interesting points of general importance concerning the operation of taxis. The first is whether a driver is obliged to charge a passenger the full fare prescribed in the table of fares made by the licensing authority, or whether he may charge less. The second is what is meant by the "accuracy" of a taximeter in the relevant legislation.

In Liverpool the licensing of hackney carriages, their proprietors and drivers, is governed by the Town Police Clauses Act 1847 and Pt II of the Local Government (Miscellaneous Provisions) Act 1976. The licensing authority is the Liverpool City Council, which is a district council. The fixing of fares is governed by s 65 of the 1976 Act. Section 65 (1) provides:

"A district council may fix the rates or fares within the district as well for a time as distance, and all other charges in connection with the hire of a vehicle or with the arrangements for the hire of a vehicle, to be paid in respect of the hire of hackney carriages by means of a table (hereinafter in this section referred to as a 'table of fares') made or varied in accordance with the provisions of this section."

Section 68 of the Act of 1976 concerns the fitness of hackney carriages (and also private hire vehicles, with which this case is not concerned). It provides:

"Any authorised officer of the council in question or any constable shall have power at all reasonable times to inspect and test, for the purpose of ascertaining its fitness, any hackney carriage ... licensed by a district council, or any taximeter affixed to such a vehicle, and if he is not satisfied as to the fitness of the hackney carriage ... or as to the accuracy of its taximeter he may by notice in writing require the proprietor of the hackney carriage ... to make it or its taximeter available for further inspection and testing 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 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 s 60 shall apply with any necessary modifications."

The suspensory provisions of s 60 of the 1976 Act are as follows:

"(1) Notwithstanding anything in the Act of 1847 or in this Part of this Act, a district council may suspend ... a vehicle licence on any of the following grounds:

(a) that a hackney carriage ... is unfit for use as a hackney carriage ...;

(b) any offence under, or non-compliance with, the provisions of the Act of 1847 or of this Part of this Act by the operator or driver; or

(c) any other reasonable cause.

(2) Where a district council suspend ... 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 ... within fourteen days of such suspension ...

(3) Any person aggrieved by a decision of a district council under this section may appeal to a magistrates' court."

On 23 November 1990 the Taxis Sub-Committee resolved to rescind the then current table of fares and to introduce a new table with effect from 3 December 1990. The old table had provided for surcharges on fares between midnight and 5.00 or 6.00 am. The new table introduced a separate charging pattern between midnight and 5.00 am., with journey charges twenty-five per cent higher than during the day. This meant that taxis would have to be fitted with meters capable of charging at two different rates. Not all taxis were so fitted. This difficulty was met by allowing those taxis not so fitted to continue to charge, both by day and by night, according to the old table until 3 March 1991. By that date all cabs were to be fitted with a meter capable of displaying the new fare structure. It is convenient to refer to "one-tier" and "two-tier" meters.

By 11 April 1991 there were still a number of taxis which did not have two-tier meters. These included taxis operated by Curzon Limited whose drivers were content to charge their night-time passengers the daytime rate. On that date the Sub-Committee, having considered a joint report from the City Engineer and the City Solicitor on the topic, resolved that:

"(a) the City Engineer be instructed to request all proprietors who have not yet equipped their vehicles with meters capable of operating the new two-tier scale of fares to bring their vehicles for an inspection by the City Engineer within seven days of receipt of written notice from the City Engineer; and

(b) in the event that the vehicles are not equipped with the meters capable of operating the new two-tier scale of fares, the City Engineer be given authority to issue the appropriate Notice prohibiting those vehicles from being used as taxicabs until equipped with a meter capable of operating the new fare structure to the satisfaction of the City Engineer."

On 1 May 1991 the City Engineer wrote to Curzon Limited in the following terms:

"By resolution of the Taxis Sub-Committee on 11th April 1991, taxicab proprietor's licenses in respect of the following vehicles is summarily suspended until such time as they are equipped with a taximeter capable of displaying the current taxicab rates of fare."

There were then set out four vehicles' registration numbers and licence plate numbers.

"If within a period of two months you are unable to satisfy that the vehicles have been equipped with a suitable taximeter, the said licences shall by virtue of section 68 of the Local Government (Miscellaneous Provisions) Act 1976 be deemed to be revoked. Please contact the licensing office if you wish to arrange for the vehicles to be tested with an approved taximeter. The licence plates in respect of the vehicles should be returned to me within seven days."

On 22 May 1991 the City Engineer sent a further letter to the company. It referred to another four of their vehicles, but was otherwise in the same terms as the earlier letter.

Curzon Limited challenges the lawfulness of the second of these suspensions (not the first) and the lawfulness of the resolution of 11 April 1991 on which they were based. The absence of challenge to the first is, I take it, in recognition of the need for an applicant for judicial review to come promptly to the court.

On 8 June 1991 one of Curzon Limited's taxis, DJD 926 V, which was still fitted with a one-tier meter, was stopped by employees of the council at about 1.40 am., ie. during the period of the higher night-time rate. DJD 926 V was not amongst the eight vehicles mentioned in either of the letters. The council employees told the driver to go at once to the licensing office so that the licence plates could be removed from the vehicle. The driver said that he would rather they removed the plates there and then, so that he could just go home. This was done. Curzon Limited challenges the lawfulness of this action.

On 11 June 1991 the City Engineer issued the company with a notice (called a "stop notice") suspending the licence of DJD 926 V on the grounds that it had a "defect", namely, that its taximeter was "incapable of displaying authorised rate of fare". The suspension was to operate until the "defect" was rectified. Curzon Limited challenges the lawfulness of this notice.

Underlying each of the company's challenges is the contention that a driver is not obliged to charge his passengers the rate prescribed in the table of fares. He can, if he chooses, keep his old meter and charge his night-time passengers the daytime rate. Provided his meter correctly displays the daytime fare, which is all that he requires the passenger to pay, it is accurate; the vehicle is not for that reason defective and there is no reason to suspend the vehicle licence.

The 1976 Act applies only in areas where the Act of 1847 is in force. A number of its provisions are relevant.

Section 68 of the Act of 1847 provides:

"The commissions may from time to time (subject to the restrictions of this ... Act) make byelaws for all or any of the purposes following; (that is to say,)"

Then follow six paragraphs, of which the fifth reads:

"For fixing the rates or fares, as well for time as distance, to be paid for such hackney carriages within the prescribed distance, and for securing the due publication of such fares."

Section 54 of the Act of 1847 provides:

"If the proprietor or driver of any such hackney carriage, or if any other person on his behalf, agree beforehand with any person hiring such hackney carriages to take for any job a sum less than the fare allowed by this ... Act, or any byelaw made thereunder, such proprietor or driver shall be liable to a penalty ... if he exact or demand for such job more than the fare so agreed upon."

Section 55 of the 1847 Act provides:

"No agreement whatever made with the driver, or with any person having or pretending to have the care of any such hackney carriage, for the payment of more than the fare allowed by any byelaw made under this ... Act, shall be binding on the person making the same; and any such person may, notwithstanding such agreement, refuse, on discharging such hackney carriage, to pay any sum beyond the fare allowed as aforesaid ..."

The Liverpool City Council, in the exercise of their powers under section 68 of the Town Police Clauses Act 1847, made byelaws on 21st April 1980. Some of these have been referred to in argument.

Clause 5 appears in a group of clauses headed, "Provisions regulating how hackney carriages are to be furnished or provided." This shows that clause 5 was made in the exercise of the power conferred in the third of the six paragraphs of section 68 of the Act of 1847, which reads:

"For regulating ... how such hackney carriages are to be furnished or provided."

Clause 5 provides:

The proprietor of a hackney carriage shall cause the same to be provided with a taximeter so constructed, attached and maintained as to comply with the following requirements, that is to say:

...

c. When the machinery of the taximeter is in action there shall be recorded on the face of the taximeter in clearly legible figures a fare not exceeding the rate which the proprietor or driver is entitled to demand and take for the hire of the carriage by distance in pursuance of the byelaw in that behalf."

Clause 17 was one of two clauses which appeared under the heading, "Provisions for fixing the rates or fares to be paid for hackney carriages within the district and securing the due publication of such fares." So it was made in the exercise of the power conferred in the fifth of the six paragraphs of section 68 of the Act of 1847.

Clause 17 provides:

"The proprietor or driver of a hackney carriage shall be entitled to demand and take for the hire of the carriage the rate or fare prescribed by the table of fares made or varied from time to time by the council under section 65, Local Government (Miscellaneous Provisions) Act 1976, or any statutory amendment thereof, the rate for the fare being calculated by distance and time unless the hirer express at the commencement of the hiring his desire to engage by time only.

Provided always that where a hackney carriage furnished with a taximeter shall be hired by distance and time the proprietor or driver thereof shall not be entitled to demand and take a fare greater than that recorded on the face of the taximeter, save for any extra charges authorised by the table of fares which it may not be possible to record on the face of the taximeter."

In this connection section 65 (5) and (6) of the Local Government (Miscellaneous Provisions) Act 1976 are also material. Section 65 (5) provides:

"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."

Section 65 (6) provides:

"On the coming into operation of a table of fares made by a council under this section for the district, any hackney carriage byelaws fixing the rates and fares or any table of fares previously made under this section for the district, as the case may be, shall cease to have effect."

Since the making of the byelaws in 1980 there have been a number of occasions when the council has fixed a table of fares under section 65 of the 1976 Act. By the operation of section 65 (6), such of the 1980 byelaws as were made under the power created in the fifth paragraph of section 68 of the Town Police Clauses Act 1847 ceased to have effect when the first such table was introduced. This would include clause 17. But clause 5, which was made under the power in the third paragraph of section 68, survives.

Mr. Pugh, for the company, submits that a driver may, if he chooses, charge his passengers less than the fare prescribed in the current table of fares. Mr. Braithwaite, for the council, submits not. He contends that the Acts of 1847 and 1976 give a district council the right to regulate the fares which are to be charged in hackney carriages which it has licensed. By "regulate" he means prescribe what must, rather than what may, be charged. He stresses the word "fix" and the phrase "to be paid" in section 65 (1): "may fix the rates or fares ... to be paid". He says that these words demonstrate that Parliament did not intend that the licensing authority could only prescribe maximum rates or fares.

The same words are to be found in section 68 of the 1847 Act. It is agreed that the words "may fix the rates or fares ... to be paid" in section 65 (1) of the 1976 Act must bear the same meaning as in the earlier Act.

The principal argument against Mr. Braithwaite's submission is the existence of section 54 of the Local Government (Miscellaneouse Provisions) Act 1976. This expressly contemplates a driver agreeing beforehand with his passenger to do a job for less than the fare allowed by the byelaws. The table of fares fixed by a district council takes effect as if it were part of the byelaws: section 65 (5) of the 1976 Act. Thus section 54 contemplates a driver making a prior agreement to charge less than the fare allowed in a table of fares fixed under section 65 of the 1976 Act. The word "allowed" in section 54 may be significant.

Mr. Pugh also submits that there are other indications in the 1847 Act and in the city council's byelaws which support his submission.

In this connection the only other statutory provision to which he drew attention was section 55 of the Town Police Clauses Act 1847. His point is that, while section 55 prohibits and penalises the enforcement of any agreement to pay more than the fare allowed by the byelaws, it contains no similar prohibition in relation to an agreement to pay less than that fare. I attach little weight to this. The function of section 55 was to make it an offence to charge more than the fare allowed by the byelaws. Even if Parliament had intended to prevent a driver from charging less than the fare allowed by the byelaws, it might not have thought it necessary to subject the driver who did so to a penal sanction.

Consideration of the terms of the byelaws is of limited value. Byelaws could not give to the council a power which was not conferred on it by the Act under which they were made. But it is useful to see whether they are consonant with the limitation which Mr. Pugh submits the statute imposes on licensing authorities.Clause 5 c. of the city council's byelaws refers to what a driver is "entitled to demand". The same phrase was found in clause 17. "Entitlement" is the language of permission, not compulsion. Clause 17 imposed (with a minor exception) a prohibition on a driver charging more than the fare displayed on the meter, but none on his charging less. These provisions are consistent with Mr. Pugh's submission as to the effect of the statutes.

It is possible that section 54 could have had some part to play, even if Mr. Braithwaite's submission about the construction of section 68 is correct. This presupposes that Parliament, while giving to licensing authorities a power to fix rates that drivers were required to charge, recognised that an authority might prefer to prescribe only a maximum rate. Even so, I am persuaded that the statutes do not empower a district council to impose on drivers, whether by making byelaws or fixing a table of fares, a fare structure to which they must adhere. Such doubt as there is should be resolved in favour of the less restrictive construction. It is my view that the statutes prevent a driver from charging more than the fares prescribed, but not less; they do not empower a district council to prevent him from charging less.

The great majority of drivers will, no doubt, want to charge the full prescribed fare. But if others do not, they may, at least before the commencement of the hiring, agree to take less. Whether a district council may prevent a driver, at the end of or during the period of hire, from waiving part (or, indeed, the whole) of the charge which the law entitles him to demand is perhaps less clear, in that no section in either Act expressly contemplates such waiver. Mr. Braithwaite said that, other than that such a driver would commit no criminal offence, he reserved the question.

I see nothing in the Acts which gives power to the council to prevent such waiver. There must have been, during the 146 years since 1847, many thousands of occasions when passengers have discovered that the fare exceeds the amount of money they are carrying and drivers have let them off the difference. Waiver in similar circumstances is commonplace in many areas of life. In my judgment, short of a contractual restriction, there is nothing to prevent a driver from doing this if he wants.

I turn to the second issue, which is what is meant by the "accuracy" of a taximeter in section 68. The material words in section 68 are, "Any authorised officer ... shall have power ... to inspect and test ... any taximeter ... and if he is not satisfied ... as to the accuracy of [the] taximeter he may ..." etc. Mr. Braithwaite submits that to be "accurate" a meter must display the fare that the passenger is liable to pay. Mr. Pugh submits that an "accurate" meter is one which accurately measures time and distance, and that no more is required. A meter is that which measures; a taximeter does not measure the fare: it merely displays it. No accuracy of display is required. I do not accept this. Accuracy, in my view, goes also to the display of a fare. An accurate meter must accurately measure time and distance and must accurately translate this into a fare. What fare, is a matter to which I will return.

I want first to consider whether "accuracy" is directed both to the function of the meter and to the manner in which the driver operates it, or whether it is directed only to function. Consider the driver of a taxi with a two-stage meter who forgets to switch his meter from one rate to the other at midnight or 5.00 a.m. Mr. Braithwaite contends that after midnight the forgetful driver's meter will still be accurate, because although it is displaying less than the rate according to the table of fares, it is displaying all that he can charge. But, says Mr. Braithwaite, forgetfulness at 5.00 a.m. renders the meter inaccurate as it thereafter displays a fare that the driver cannot lawfully demand. Mr Braithwaite draws an analogy with a watch. The watch may be capable of functioning properly, but if its wearer has forgotten to put it forward when British Summer Time ends, it is no longer accurate. The meter does not show the correct fare.

In my judgment, this is not the sense in which the word "accuracy" is used in section 68. The section contemplates not perpetual inspection but periodic inspection. The officer or constable requires to be sure that, provided the meter is operated as it should be, it will accurately display the required fare. The accuracy to which the section is directed is accuracy of mechanical or electrical function, not accuracy of driver user. A meter remains accurate in this sense despite the forgetfulness of the driver to change the rate at 5.00 a.m. (which will result in too high a fare being displayed) or to change it at midnight or to start the meter at the beginning of the journey or, where extra charges for luggage or additional passengers are permitted, to put such charges on to the meter (all of which will make for the display of too low a fare). Where through forgetfulness too low a fare is displayed, clause 17, while effective, prevented the driver from recovering more. Where too high a fare is displayed, clause 17, while effective, prevented him from recovering the excess. And in that event the driver offends against clause 5 c. of the byelaws.

Mr. Braithwaite's submission that an accurate meter is one which displays the fare prescribed in the table of fares assumed that the council was empowered to require a driver to charge according to the current table of fares, which is a proposition I have rejected. He concedes that if, as I have held, a driver is entitled to charge what he likes up to a prescribed maximum, his meter is accurate if it is set according to his own scale of charges. This effectively concludes the second question against the council.

I can see why he made the concession. It fits well with clause 5 c. of the byelaws. What the passenger wants to know is what he has to pay. The driver is only entitled to charge what is displayed on his meter. More accurately, this was the position while clause 17 was effective. Despite its repeal, the public perception remains, I believe, the same. If the driver is only going to charge, say, half the rate allowed in the table of fares, then half that rate is what the passenger will expect to see on the meter. Similarly, as with the drivers of Curzon Limited's cabs, if they are only going to charge day rates at night, then what the meter should show is the fare according to the day rate. The concession makes it unnecessary for me to consider whether, even although a driver proposes to charge less than the fare allowed by the table of fares, his meter should nevertheless display the fare according to the table of fares, leaving it to him to tell the passenger that he will take less.

It follows that the one-tier meters fitted to Curzon Limited's cabs, the drivers of which only charged the day rate at night, did not lack "accuracy" for the purposes of section 68 of the Local Government (Miscellaneous Provisions) Act 1976. Section 68 is concerned not only with the accuracy of taximeters but also with the fitness of the vehicles themselves. Mr. Braithwaite accepts that it would be difficult to say that taxis fitted with one-tier meters lacked the fitness to which section 68 is addressed. In the result, section 68 provided no lawful basis for the suspension of the licences of the four taxis listed in each of the letters of 1st and 22nd May 1991; nor did it for the resolution of 11th April 1991, or the removal of the licence plates from DJD 926 V, or the stop notice issued in respect of it.

Mr. Braithwaite nevertheless submitted that the suspension of the licences was lawful on the argument that section 60 (1) (c) of the 1976 Act empowered the council to suspend the vehicle licence for "any ... reasonable cause", the reasonable cause being that the council did not want the hackney carriages they had licensed to have one-tier meters. I cannot accept this. The council did not purport to suspend under section 60; they relied on section 68. In any event, taking the view I do about a driver's entitlement to charge daytime rates at night, the fact that the vehicle was not fitted with a two-tier meter would not have provided a reasonable cause for suspending its licence.

Effectively, therefore, the company succeeds in each of its challenges.

I should perhaps add that I do not accept Mr. Pugh's subsidiary point based on the words "at all reasonable times" in section 68. He submits that it was not reasonable to stop DJD 926 V in the middle of the night and during the driver's shift. In my judgment 1.40 a.m. was not an unreasonable time in the circumstances. The inspection required could hardly have been briefer; it lasted only so long as was needed to see that the vehicle was still fitted with a one-tier meter. The driver was at work at 1.40 a.m. I do not think it was an unreasonable time to stop him for the purpose of looking to see what sort of meter he had. Had the meter been "inaccurate" it would have been lawful to suspend the vehicle's licence there and then, but the requirement that the driver immediately attend at the licensing office so that the licence plates could be removed would not have been lawful. This is made clear by the words of section 58 of the 1976 Act, which provides:

"(1) On --

...

(b) the suspension of a licence under section 68 of this Act, a district council may by notice require the proprietor of that hackney carriage ... licensed by them to return to them within seven days after the service on him of that notice the plate or disc which --

(a) in the case of a hackney carriage, is required to be affixed to the carriage ..."

I turn to the question of relief. In the exercise of the Court's discretion, I decline to quash the decision contained in the letter of 22nd May 1991 or the resolution of 11th April 1991 on which it was based. The effect of these decisions is long since spent. Curzon Limited's vehicles were all fitted with new meters and were back on the road within a short time. Apart from the question of damages, to which I will come, the only appropriate remedy would be a suitably worded declaration about the freedom which a driver has to charge less than the fare prescribed in the table of fares. I will hear submissions as to the words in which a declaration might be framed.

I am not sure what the position is about the claim for damages. As pleaded it stands at £1,500, being £300 (the cost of each two-tier meter) times 5 (being the four vehicles listed in the letter of 22nd May 1991 plus DJD 926 V). The evidence supporting this claim comes from Mr. W.A. Kelly, Curzon Limited's managing director, who says that the old meters worked perfectly well and the new ones cost £300 each. It seems to me, however, that there should be set against this: (a) the sale value (if any) of five one-tier meters, and (b) such extra income as the company has derived from the charging of the night-time rate which would not have been demanded had the one-tier meters still been used.

DISPOSITION:

Judgment accordingly

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