TAXI LAW EXPLAINED
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 char- acter. It was not waiting for a customer from the street to get into the car, but wait- ing for the purpose of a private hire booking which would come exclusively via the Uber App.
THE VERDICT
Lord Justice Flaux found that the way in which Uber operates did not constitute unlawful plying for hire. In his judgement, he outlined a number of reasons for his con- clusions:
(1) The mere depiction of the respondent’s vehicle on the Uber app, without either the vehicle or the driver being specifi- cally identified or the customer using the app being able to select that vehi- cle, is insufficient to establish exhibition of the vehicle for the purpose of inviting a booking.
In coming to this conclusion, Flaux LJ replied on a number of authoritative cases, Cogley v Sherwood and Rose v Welbeck, that ruled the essence of plying for hire means 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.
(2) Flaux LJ did not agree with Reading’s argument that the Uber app was a trad- ing platform to match drivers with customers. Flaux LJ said in relation to this: “On the findings she [Chief Magis- trate] 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. He continued: “…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.”
Some references were made to whether a contract exists between the passenger and the driver, or between the passenger and Uber. This is relevant because in the former (i.e. passenger and driver), the argument supported the case for unlawfully plying for
MARCH 2019
hire. However, Flaux LJ rejected this stating that “On the findings she [Chief Magistrate] 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.” He continued: “What- ever 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.”
(3) On the third point that Flaux LJ referred to as “the character of the waiting”, he said “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 cus- tom during the period of waiting. His vehicle did not advertise itself as avail- able 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 High Court consequently turned down the appeal by Reading, ruling in reference to the questions posed by the council that:
(1) Mr Ali’s vehicle displayed on the Uber app did not constitute an invitation to book and therefore was not guilty of plying for hire; and
(2) Other Uber vehicles in the vicinity whose vehicles were outlined on the Uber app similarly did not constitute an invitation to book and therefore were not guilty of plying for hire.
CONCLUSIONS
Whilst this was an important case and the first one of its kind to be deter- mined by a High Court, it must be remembered that the case was largely determined on its individual merits.
The High Court judgement was limited to the way Uber operates and is to this extent not necessarily also relevant to other ride-hailing firms which may operate in a different way.
This case also reiterated, as has been done in previous cases, that the mere presence of a licensed vehicle is not sufficient in itself to constitute ply- ing for hire. The High Court referred to this as the “essence of plying for hire” and confirmed that there must be certain behaviours on display.
The combination of the Knowlsey case (i.e. PHV right to roam) and this case has, for the time being at least, upheld Uber’s modus operandi as lawful. The High Court did not disagree with Uber’s case that nothing in statute or common law required PHVs from “vanishing” between fares and so there is nothing in law stopping Uber PHVs from parking up when waiting for their next hailing.
The validation of Uber’s modus operandi may exacerbate the current issues, both locally and nationally, around cross-border hiring and it seems that nothing short of a new Act of Parliament requiring PHVs to return to base (or at least their licensing dis- trict) will be necessary here.
However, the Government has not agreed with the Taxi and Private Hire Task and Finish Group’s recommenda- tion that there should be a statutory definition of “plying for hire” that should include “…reviewing the use of technology and vehicle ‘clustering’ as well as ensuring taxis retain the sole right to be hailed on streets or at ranks.”
It seems therefore that no legislation in respect of defining plying for hire or pre-booking will be forthcoming. This will therefore leave the matter to the courts to decide on, as was the case here.
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