TAXI LAW EXPLAINED RETURN TO BASE OR RIGHT TO ROAM?


This article was supplied by: Stephen McCaffrey Head of Taxi Defence Barristers and Taxi Defence Scotland 020 7060 1775 www.taxidefencebarristers.co.uk www.taxidefencescotland.co.uk


RECENT CASES


In recent times, there have been a number of attempts to find a judicial solution to cross- border hiring. The cases referenced below are the most recent.


R (Uber Britannia Ltd & Delta Merseyside Ltd) v Knowsley Metropolitan Borough Council [2018] EWHC 757 (Admin)


In recent months, the debate on the legali- ties of cross-border hiring has seen no abating. There have been several judicial decisions on the matter and of course the Taxi and Finish Group has made recommen- dations to Government to legislate in order to address concerns and close the “loop”.


In this article I will briefly look at all the rel- evant arguments and legislative provisions to update the trade on the most recent thinking and legal position.


CROSS-BORDER HIRING


There is no official or statutory definition of cross-border hiring. The term is gener- ally used in the taxi and private hire sector to describe a practice where taxis or pri- vate hire vehicles (PHVs) that are licensed by one licensing authority work wholly or predominantly in another licensing author- ity area.


There are a variety of means through which cross-border hiring can manifest itself. For example, a taxi licensed in one licensing authority area can do advanced booking/hir- ing work elsewhere in the country or private hire operators can sub-contract bookings to other out of district operators who can then dispatch a licensed vehicle and driver from out of district to fulfil the booking.


The evolution of cross-border hiring has taken the practice to its extreme where it is now common for private PHVs and drivers to “roam” the country and work wholly or pre- dominantly in an area away from where they obtained their licences. This form of cross- border hiring is most prevalent with operators who operate using smart phone apps such as Uber.


In fact, Uber’s entire


modus operandi is based on obtaining oper- ating licences in only key locations around the country despite covering most of the country.


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In this case, heard before the High Court, Knowsley MBC adopted an intended use pol- icy in to address a significant rise in the number of applications for private hire driver licences from applicants who resided outside of its area.


Intended use policies are policies that place a duty on licence holders to predominantly work in Knowsley, and failure to comply with its policy would have resulted in a licence holder losing their licence for not being ‘fit and proper’.


Uber Britannia Limited and Delta Cars chal- lenged the imposition of such a policy and the case was heard by Mr Justice Kerr in the High Court in Manchester.


Uber argued that a private hire licence was a licence to drive anywhere and was not con- fined in any way to a local area. That was made clear by section 75(2) of the Local Government (Miscellaneous Provisions) Act 1976 (“LGMPA 1976”), and by various decid- ed cases.


This argument was accepted by Mr Justice Kerr.


Kerr J rejected Knowsley’s case that the statutory definition of ‘fit and proper’ could include a situation where a driver who had “failed to show commitment” to Knowsley and the concept of local licensing, might be deemed unfit to hold a licence, given the width of the council's discretion.


In addition, Delta Cars argued that a private hire licence was a generic permission, with- out geographic control, as opposed to a specific permission, which attached to a par- ticular premise or place.


Kerr J ruled that Knowsley’s policy was unlawful as it sought to impose geographical restrictions on private hire licences where the primary legislation did not support such an approach.


Delta Cars advanced further arguments around local authorities’ means to lawfully control the issue of cross-border hiring.


These additional arguments included that it may be lawful for a council to adopt appro- priately worded conditions which promote the principle of localism with regards to pri- vate hire licensing.


Since the policy was ruled unlawful, it was not necessary for Kerr J to rule on these additional arguments but he did provide ver- bal observations indicating that there may be scope for persuading the Court on the lawfulness of these means.


Reading Borough Council v Mudassar Ali


This is a Magistrates’ Court case and to this extent does not carry any judicial authority. Notwithstanding, this case was the first judi- cial decision on the topic and very relevant to the ongoing debate about the right to roam and to this extent it is helpful.


In this case, Reading Borough Council brought a prosecution against Mr Ali, a private hire driver licensed by TfL and working for Uber.


Mr Ali was charged with two offences of ille- gally plying for hire in January 2017.


Reading argued that Mr Ali was unlawfully plying for hire. They argued that there was a market in Reading for Uber drivers and vehi- cles which would not exist if they were not there. The market was created by the exhi- bition on the Rider App of icons showing the location and availability of the Uber vehicles. Reading said that Mr Ali was in possession and control of the Ford Galaxy which was not a hackney carriage. Mr Ali chose to trav- el to and wait in Kings Road, Reading at a time when, and in a place where, members of the public were likely to wish to be immedi- ately conveyed in a vehicle.


In brief, Mr Ali contended that the essence of the private hire contract was that the mem- ber of the public books the vehicle first and then meets the vehicle before the journey proceeds. That is not plying for hire.


Chief Magistrate Judge Emma Arbuthnot, in her judgement stated that the issue in the case was whether the Uber “model” using an App should lead her to conclude that she was sure that the defendant was plying for hire on the two dates.


JANUARY 2019


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