Carl Cummings and Others v Council of the City and Council of Cardiff
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 18 June 2014 |
| Neutral Citation | [2014] EWHC 2544 (Admin) |
| Docket Number | CO/12090/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2014 |
[2014] EWHC 2544 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street
Cardiff
Mr Justice Hickinbottom
CO/12090/2013
The Queen on the application of
Leslie Blohm QC and Roy Light (instructed under the provisions for direct access) appeared on behalf of the Claimants
James Findlay QC and Gwydion Hughes (instructed by Cardiff Council Legal Services) appeared on behalf of the Defendant
There are two types of car available for hire for the transport of passengers, hackney carriages (or taxis) and private hire vehicles (or minicabs). Whilst there are other differences, the main operational difference between the two is that hackney carriages may be hired by pre-booking or plying for hire (i.e. soliciting or waiting for passengers on the street, without prior booking), whereas private hire vehicles can only be hired by a pre-booking. Private hire vehicles can only undertake work through a separately licenced operator, and a booking can only be made through that operator.
Outside London, hackney carriages are regulated by the Town Police Clauses Act 1847, as supplemented by the Local Government (Miscellaneous Provisions) Act 1976. The 1847 Act provides for the licensing by local authorities of hackney carriages (section 37) and hackney carriage drivers (section 46). Private hire vehicles are also regulated by the 1976 Act, albeit under a regime different from that applying to hackney carriages. Part 2 of the 1976 Act provides for the licensing by local authorities of private hire vehicles (section 48), drivers of such vehicles (section 51) and the operation of such vehicles (section 55).
The authority responsible for licencing may charge a fee for these various licences, under sections 53(2) and 70 of the 1976 Act. The former covers drivers' licences. The authority may demand and recover "such a fee as they consider reasonable with a view to recovering the costs of issue and administration…". The latter covers fees for vehicle and operators' licences. The authority may "charge such fees… as may be resolved by them from time to time and as may be sufficient in aggregate to cover in whole or in part" the reasonable costs of carrying out inspections, providing hackney carriage stands and administrative costs in connection with the control and supervision of hackney carriages and private hire vehicles.
The Defendant Council ("the Council") is the unitary authority responsible for licensing in relation to hackney carriages and private hire vehicles in Cardiff. The First, Second and Third Claimants are involved in owning and operating hackney carriages and private hire vehicles in Cardiff. The Fourth and fifth Claimants are each a holder of a hackney carriage vehicle and driver's licence issued by the Council.
In this claim for judicial review lodged on 29 August 2013, the Claimants challenge the decision of the Council made on 3 June 2013 through its Public Protection Committee ("the Committee"), setting hackney carriage and private hire licence fees. They do so on two grounds, namely (i) the level of fees set unlawfully failed to have regard to, or to take account of, any surplus or deficiency in previous years, back to 1 May 2009; and (ii) the level of the fee set for hackney carriage licences unlawfully included part of the costs of funding taxi marshals for the Council's administrative area. The relief sought in the original claim was for (i) an order quashing the Council's decision of 3 June 2013 as it relates to hackney carriage and private hire licence fees; (ii) a mandatory order requiring the Council to determine reasonable hackney carriage and private hire licence fees for each year from 1 May 2009 to 1st July 2013, taking account of any surplus generated in previous years, leaving out of account any part of the cost of funding taxi marshals and ensuring that any surplus under each type of licence was accounted for only in respect of that licence; and (iii) a declaration that the level of fees had been set without due regard to any previous surplus and had included the cost of funding taxi marshals; and (iv) restitution (including interest) of any surpluses accrued for hackney carriage and private hire licences.
On 20 November 2013, Wyn Williams J gave permission to proceed.
In its Detailed Grounds of response, lodged on 13 January 2014, the Council conceded that the decision in relation to the setting of the relevant fees was unlawful, in particular in having failed to have regard to previous surpluses (paragraphs 4–6). It agreed to redetermine the level of fees for the period 2009 to 2013, on the basis that (i) earlier surpluses and deficits would be taken into account, (ii) the costs of taxi marshals would be left out of account, and (iii) there would be no cross-subsidisation as between the various categories of licence.
That same day (13 January 2014), Wyn Williams J gave directions including an order that the Council lodge and serve evidence upon which it intended to rely in relation to the points remaining in issue, and that the Claimants lodge and serve any response within 28 days. He gave directions through to a substantive hearing. In due course, the substantive application was set down for hearing on 18 June 2014.
However, on 9 February 2014, on the basis of the concessions made by the Council, the Claimants issued an application to amend the application for judicial review, to include a prayer for restitution for all surpluses arising from failing to take surpluses into account but going back to 1978 rather than 2009. The effective application before me today is that application to amend.
On 28 March 2014, I set down the application to amend for hearing at the same time as the substantive hearing. I also gave directions that the Claimants lodge and serve a draft Amended Statement of Facts and Grounds setting out the factual and legal basis of their claim for restitution in respect of surpluses before 2009, including any evidence relied upon; with the Council to respond by 16 May. I directed the Claimants to serve a skeleton argument by 23 May.
In the event, the Claimants did not comply with those directions. On 10 June – just a week before the final hearing of the claim – they served a copy of a proposed Amended Statement of Facts and Grounds, with an application seeking an extension of time. No evidence was produced; and the Claimants' skeleton argument was not lodged and served until 17 June, the day before the hearing, when it was lodged with a bundle of documents. Whilst I understand that the Claimants are acting in person, I can only say that the bundle is unfortunately in a somewhat ramshackle order that has made the hearing more difficult and longer than it might otherwise have been.
Mr Findlay QC, for the Council complains with some force that the Claimants are in flagrant breach of the orders of the court, and to allow the amendment now would hijack the substantive hearing date, which would inevitably have to go off if the amendment were allowed.
It seems to me that the Claimants are entitled to bring a claim for restitution in respect of surpluses from 1978 to 2009, of course subject to any defences that the Council may have, for example, in respect of limitation. However, that does not mean that such a claim must be pursued within this action; and an important issue – indeed, the main issue — in this application to amend is whether that claim should be heard under the umbrella of this action or whether the Claimants should be made to commence separate private law proceedings for restitution.
Mr Blohm QC, for the Claimants, submits that the amendment should be allowed, and the claim should be allowed to continue in this action; although he accepts that it should proceed, not by way of judicial review in the Administrative Court, but rather by way of a Part 7 claim and be transferred to either the Queen's Bench Division General List or the Chancery Division.
Mr Findlay QC, for the Council, submits that the public law elements of this claim have now been brought to an end; and, if the Claimants wish to pursue a private law claim in restitution, that should be commenced in the appropriate court as a separate action and pleaded properly in that separate action.
Both Mr Blohm and Mr Findlay referred me to the recent case of Hemming & Ors v Westminster City Council [2012] EWHC 1260 (Admin), appealed as [2013] EWCA Civ 591. In that case, there were some significant European Union law issues involved, which do not arise here; and so the cases are not on all fours. However, some of the learning from that case is of considerable assistance. In particular, Hemming makes clear that setting of licence fees is a matter for the relevant local authority (see the judgment of Keith J at first instance at [31], and the judgment of Beatson LJ in the Court of Appeal at [112]). Consequently, the taking of an account is inappropriate on any application for restitution where surpluses of licence fees have not been properly taken into account over time. The correct approach is for the local authority to make a fresh decision on the fees which is, of course, subject to judicial review challenge if they err in any public law way.
In the current claim as unamended, the relief sought by the Claimants is now, by and large, either conceded or unnecessary. I shall formally quash the...
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