Chorley Borough Council v Harold Edward Thomas
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY |
| Judgment Date | 17 July 2001 |
| Neutral Citation | [2001] EWHC 570 (Admin) |
| Date | 17 July 2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1323/2001 |
[2001] EWHC 570 (Admin)
IN THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
QUEEN'S BENCH DIVISION
Mr Justice Maurice Kay
CO/1323/2001
MR M CARTER (instructed by Chorley Borough Council, Town Hall, Market Street, Chorley, Lancashire PR7 1DP) appeared on behalf of the Appellant.
MR I PONTER (instructed by Allansons, Queen's Buildings, 26-28 Central Street, Bolton, Lancashire BL1 2AB) appeared on behalf of the Respondent.
Tuesday, 17th July 2001
This is a prosecutor's appeal by way of case stated from a decision of District Judge Finestein in respect of his adjudication at the magistrate's court sitting in Chorley on 18th January 2001. The case before the District Judge was in the form of a prosecution of the respondent for an offence under section 45 of the Town Police Clauses Act 1847 (as amended). An information had been preferred by the appellant against the respondent that he, on 1st July 2000, did ply for hire with a Ford Mondeo motor vehicle, registration number P585 KKV, at the Ridgeway Arms Public House, Chorley Road, Adlington, Chorley in the County of Lancashire, for which said vehicle a licence to ply for hire as a hackney carriage had not been previously obtained from the Chorley Borough Council.
The district judge found the following facts:
"a) On the 1st July 2000 the respondent was driving a Ford Mondeo motor vehicle registration number P585 KKV and at around 10.00 pm the vehicle was stationary just off the main road outside the Ridgeway Arms pub at Adlington. There was a restaurant next door.
b) This vehicle was a licenced private hire vehicle with Terry's Taxis written upon it, carrying a licence plate.
c) Mr Thomas was approached by Mr Liptrot who asked if he was free. The respondent said that he was and Mr Liptrot entered the vehicle.
d) The respondent asked Mr Liptrot his name and to where he was going. Mr Liptrot responded that he was going from the Ridgeway public house to the White Bear and Mr Liptrot was informed that the fair would be £1.40.
e) Immediately upon receipt of this information and before the journey commenced the respondent contacted the base of Terry's Taxis to book the journey from the Ridgeway pub to the White Bear.
f) The vehicle did not enter into the main road until the booking had been completed.
g) Mr Liptrot completed the journey to the White Bear public house and paid the respondent the sum of £1.40 plus a 50p tip. The respondent then drove off in his vehicle."
At the end of the prosecution case, a submission was made on behalf of the respondent that there was no case to answer. The district judge records that the submission was to the effect that there was no evidence as to how long the vehicle had been stationary and, before the journey started, there had been a pre-booking. The district judge was referred to a number of authorities. He concluded that there was no case for the respondent to answer. In the case stated he explained that conclusion by reference to these reasons:
"a) There was no evidence for how long the vehicle had been stationary.
b) A booking was made to the base station almost immediately after Mr Liptrot entered the vehicle.
c) The booking was in fact supported by documentation.
d) The journey commenced after the booking was made.
e) In those circumstances there was no evidence that the respondent had been plying for hire."
Having accepted the submission of no case to answer, the district judge dismissed the information at the end of the prosecution case. The question posed by the case stated is in these terms:
"The question for the opinion of the High Court is whether the driver of a marked mini-cab whose vehicle was not a licenced hackney carriage was plying for hire within the Town Police Clauses Act 1847 if, he, without more, was asked by a member of the public if his vehicle was free and, having indicated that his vehicle was available and received details of the prospective journey and disclosed the price for it, placed a booking with his taxi operating base before the journey started."
The offence with which the respondent was charged is set out in section 45 of the Town Police Clauses Act. That section is in these terms:
"If the proprietor…of any carriage permits the same to be used as a hackney carriage plying for hire within the [local authority's area] without having obtained a licence as aforesaid for such carriage…or if any person be found driving, standing, or plying for hire with any carriage within the [local authority's area] for which such licence…has not previously been obtained…every such person so offending…shall be liable to a penalty."
The licensing provision referred to is to be found in section 38. Quite clearly, the essence of the offence under section 45 is "plying for hire". The question that arose before the district judge was whether there was a prima facie case of "plying for hire".
I have been referred to a number of authorities in the course of the very careful submissions that were made by both counsel. It is clear that the question of whether "plying for hire" has been established is one of fact and degree. In Cogley v Sherwood Car Hire Group (Skyport) Ltd [1959] 2 QB 311, 323-324, Lord Parker CJ said:
"The court has been referred to a number of cases from 1869 down to the present day dealing with hackney carriages and stage carriages. Those decisions are not easy to reconcile, and like the justices, with whom I have great sympathy, I have been unable to extract from them a comprehensive and authoritative definition of 'plying for hire'. One reason, of course, is that these cases all come before the court on case stated, and the question whether a particular vehicle is plying for hire, being largely one of degree and therefore of fact, has to be approached by considering whether there was evidence to support the justices' finding.
In those circumstances, it was unnecessary, and clearly inadvisable, for the court to attempt to lay down an exhaustive definition."
One of the earlier cases was Sales v Lake [1922] 1 KB 553. In the course of his judgment in that case, Lord Trevethin CJ said, at pages 557 to 558:
"In my judgment a carriage cannot accurately be said to ply for hire unless two conditions are satisfied. (1.) There must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them, and (2.) the owner or person in control who is engaged in or authorizes the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers."
Those two authorities are relied upon by Mr Ponter, on behalf of the respondent, in the present case, but in my judgment they do not advance his case to any degree. They are statements of principle which are undoubtedly correct, but they do not in reality answer the present question in the way that the respondent would wish.
I was taken through the more recent authorities by Mr Carter, on behalf of the appellant prosecutor. His survey began with Rose v Welbeck Motors Ltd [1962] 1 WLR 1010. An interesting aspect of that case is that it arose out of a successful submission of no case to answer, just as the present case so arose. In...
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Dudley Metropolitan Borough Council v Arif
...the case was applied by Maurice Kay J, as he then was, sitting as a single judge in a similar case to this: Chorley BC v Thomas [2001] EWHC (Admin) 570 at [7]. There is another reason urged on me by Mr de Mello for regarding the significance of Cogley v Sherwood as limited. This is because......