Edgar Giovanny Suarez Camayo v Colchester Borough Council
| Jurisdiction | England & Wales |
| Judge | Peter Marquand |
| Judgment Date | 03 November 2021 |
| Neutral Citation | [2021] EWHC 2933 (Admin) |
| Docket Number | Case No: CO/4140/2020 & CO/4759/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2933 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Marquand
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/4140/2020 & CO/4759/2020
and
and
The Claimant appeared in person
Victoria Jempson (instructed by Colchester Borough Council) for the Colchester Borough Council
Essex Magistrates' Court did not appear and was not represented
Hearing dates: 12 October 2021
Approved Judgment
At the conclusion of the hearing, I announced my decision and stated that full written reasons would follow and this Judgment records those reasons. Mr Camayo appeared in person but had the assistance of Mr Richard Ashdown as a McKenzie friend. Mr Camayo feels very aggrieved about what has happened, but he presented his case in a sensible way assisted by Mr Ashdown. I am grateful to Ms Jempson for her submissions on behalf of Colchester Borough Council (“the Defendant Council”). Mr Bryant, who had been named as an interested party, was in court as he had erroneously been named as a defendant on the notice of hearing. However, he took no part in the hearing. An acknowledgement of service had been filed on behalf of Essex Magistrates' Court (“the Defendant Court”), however the Defendant Court took no part in the oral hearing.
In brief, Mr Camayo alleged that the Defendant Council had failed to transfer a hackney carriage vehicle licence onto a vehicle that he owned. The Defendant Council disputed that it was under any obligation to do so. Mr Camayo further alleged that Essex Magistrates' Court had made a mistake following a hearing appealing the defendant's decision. He alleged that directions were made at that hearing for him to obtain a document and return for further hearing. However, the Defendant Court recorded that the claim was withdrawn. I will set out the facts in detail below.
The claim form for the claim against the Defendant Council was filed on 10 November 2020 and the claim form for the claim against the Defendant Court was filed on 11 December 2020. Permission to bring the judicial review was granted by Richard Clayton QC, sitting as a Deputy High Court Judge, by order dated 10 May 2021. Extensions of time were granted in both cases, as CPR 54.5 requires claims to be brought promptly and in any event no later than 3 months after the grounds to make the claim first arose. The Defendant Council did not comply with the directions for the hearing, but before the hearing applied for permission to rely on Detailed Grounds, a witness statement of Mr Jon Ruder and relief from sanction. At the commencement of the hearing for the reasons that I gave at the time, I granted the Defendant Council's applications and gave permission for it to take part in the hearing.
The law
Outside London, the legislation concerning hackney carriages (“taxis”) is contained in the Town Police Clauses Act 1847 (“the 1847 Act”) and Part II of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”). Section 37 of the 1847 Act permits councils to grant hackney carriage vehicle licences. There are other requirements and licensing, for example of a driver, but in this case, I am only concerned with licensing of the taxi itself. Where I refer to a licence in this Judgment, I am referring to the licence pertaining to the vehicle, unless specified otherwise. Section 40 of the 1847 Act provides as follows:
“Before any such licence is granted a requisition for the same, in such form as the [council] from time to time provide for that purpose, shall be made and signed by the proprietor or one of the proprietors of the hackney carriage in respect of which such licence is applied for; and in every such requisition shall be truly stated the name and surname and place of abode of the person applying for such licence, and of every proprietor or part proprietor of such carriage, or person concerned, either solely or in partnership with any other person, in the keeping, employing, or letting to hire of such carriage…”
Section 41 of the 1847 Act requires the licence itself to record the name and address of the proprietor or proprietors, but also a number that corresponds with the number affixed to the taxi. In this case, the number in question is “19”. Section 42 requires the council to keep a record of the licences granted and various other details. That record is open to inspection by any person. Section 43 states that any licence is only for one taxi and shall be in force for one year only.
Section 49 of the 1976 Act requires the proprietor of a taxi with a licence to give written notice to the council within 14 days of any transfer of his interest in the taxi to another person (unless it is to a proprietor already specified in the licence). A failure to comply without reasonable excuse is an offence.
Section 58 of the 1976 Act requires the proprietor, on notice from the council, to return the licence on revocation or expiry, as well as the plate affixed to the taxi. Section 60 of the 1976 Act enables a council to suspend or revoke a licence on three grounds. First, that the taxi is unfit for use, secondly for an offence or non-compliance with the 1847 Act or the 1976 Act by the operator or driver and thirdly, “any other reasonable cause.” The council must give the proprietor notice of the grounds and the proprietor has a right of appeal to a magistrates' court (section 60 (3)).
Section 80 of the 1976 Act includes a definition of “proprietor” as follows:
“includes a part proprietor and, in relation to a vehicle which is the subject of a hiring agreement or hire purchase agreement, means the person in possession of the vehicle under that agreement;”
In R v Weymouth Corporation ex parte Teletax (Weymouth), Ltd. [1947] 1 All ER 779, Teletax acquired five licensed taxis from different persons throughout Weymouth. They applied for the licences to be transferred to them as the new proprietors. However, the licensing authority refused and the court had to examine whether that refusal was lawful. The court concluded that it was not and on page 781 at paragraph F Lord Goddard, CJ stated:
“In my opinion, the effect of the sections [in the 1847 Act] clearly shows that the licence is granted to the carriage… What then is to happen if during that year a change of proprietorship takes place? There is the vehicle, which has its licence attached to it.… A person who buys a cab which has been licensed is under a duty to go to the authority and say: “I am now the proprietor of this cab which you licensed for a year. Please, therefore, enter me in the register as the proprietor, and enter my name on the licence granted in respect of the cab, instead of that of the earlier proprietor.”
Mr Camayo also referred to 2 further cases within his skeleton argument, although he did not refer to them in oral argument. I shall deal with them briefly for completeness. In Challoner v Evans [1986] Lexis Citation 912 the Divisional Court considered whether the magistrates' court had correctly determined that Mr Evans had not committed an offence by describing himself as a proprietor of a taxi in an application for a licence. The legal point was what was the definition of a “proprietor”. The court concluded that the word “proprietor” should include:
“… every person, who either alone or in partnership with any other person, keeps any hackney carriage or who shall be concerned otherwise than as a driver or attendant in the employment for hire of any hackney carriage.”
No reference is made in the judgment to the 1976 Act.
Mr Evans had previously owned the vehicle that had a licence plate but, after a series of changes of vehicle he was solely concerned with renting the licence plate to a Mr Holledge. The court found that Mr Holledge and not Mr Evans was the proprietor, as Mr Evans was not concerned in the employment for hire of the taxi.
In Key Cabs Ltd (t/a Taxifast) v Plymouth City Council [2007] EWHC 2837 (Admin) the claimant applied for 30 licences, which were rejected by the council. The court applied the ruling in Weymouth and held that an application must relate to an identifiable vehicle, a blank application cannot be made.
The facts
Mr Bryant and Mr Camayo entered into a written agreement dated 22 March 2016 that is entitled “contract for rent to buy agreement for Colchester hackney plate 19” (“the Contract”). Mr Bryant is referred to as the owner of plate 19 and the Contract purports to lease it to Mr Camayo with a view to Mr Camayo ultimately taking ownership at the end of the Contract. The agreement is to apply to plate number 19 affixed to a Toyota Avensis registration BF06 HCY (“the Avensis”).
I am not determining any contractual issues and the effect of the terminology used. However, the plate is not one that Mr Bryant can rent or sell itself (see Challoner). The Defendant Council grants the licence and owns the plate. However, viewed as a whole the contract relates not to the plate but to the business. The Contract provides that Mr Camayo is to make weekly payments for 156 weeks with the Contract concluding on 19 March 2019. One of the terms provides that Mr Camayo will be responsible for the full cost of a replacement car within a year of commencement of the Contract. Another term is that Mr Bryant is to retain all of the paperwork and ownership relating to the car and plate 19 until full...
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