TAXI LAW EXPLAINED
UBER “INVITATION TO BOOK” – HIGH COURT SAYS NO
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
ly finding him not guilty and dismissing the charges by way of case stated and on the 7th of February 2019 Lord Justice Flaux handed down his judgement in the case of Reading Borough Council v Mudassar Ali.
The questions before the High Court were:
Reading Borough Council v Mudassar Ali [2019] EWHC 200 (Admin)
There has been no abating in the national debate on cross-border hiring. The debate initially started with the phenomenon of private hire vehicles (PHVs) predominantly working in areas where they are not licensed. The lawfulness of what has become known as “the right to roam” has now been established most recently in the case of Delta Taxis and Uber v Knowlsey. In recent months, the debate has shifted to the issue of these PHVs - who have the right to roam - being guilty of presenting themselves to create an “invitation to booking” contrary to s.80 Local Govern- ment (Miscellaneous Provisions) Act 1976.
CASE BACKGROUND
Mr Mudassar Ali was charged with two offences: the first that in the early hours of 21st January 2017, in Reading, he was plying for hire with a Ford Galaxy, registration number LR12 ORZ on Kings Road, Reading for which a vehicle licence to ply for hire from Reading Borough Council had not pre- viously been obtained. This was contrary to section 45 of the Town Police Clauses Act 1847.
The second offence is in identical terms to the first but concerns the early hours of 22nd January 2017.
Mr Ali was an Uber driver, licensed by Trans- port for London. On the nights in question he was in Reading, Berkshire waiting for a passenger.
HIGH COURT
Reading Borough Council appealed the decision by the Chief Magistrate that Mr Ali was not illegally plying for hire, consequent-
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(1) As a matter of law did the display of the respondent’s [Mr Ali] vehicle as the out- line of a car on the smartphone Apps of potential passengers constitute an invi- tation to book the respondent’s vehicle?
(2) As a matter of law did the display of the respondent’s [Mr Ali] vehicle as the outline of a car on the smartphone Apps of potential passengers consti- tute 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 avail- able 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 considera- tion that the whole of the transaction between the passenger and the driver, and the passenger and the licensed operator, was conducted via a smart- phone app, where the booking process starts, is recorded and the fare estimat- ed?
(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?
READING’S CASE
Reading Borough Council’s principal argu- ment was that the exhibition of the vehicle’s location on the Uber app was the equiva- lent 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 download- ed 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.
Reading also stated in their argument that traditional private vehicle hire where book- ings were made over the telephone was the equivalent of the job-master in the nine- teenth 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 auto- nomous. The app was a trading platform to match drivers with customers.
MR ALI’S CASE
For his part, Mr Ali’s argument was 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 happen- ing lawfully over the telephone for decades, when a customer rang a PHV business to ask for a car in, say, five min- utes 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.
It was submitted also that neither the legis- lation 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. Further, it was submitted that the respondent whilst parked in Reading wait- ing for a booking over the app was not
MARCH 2019
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