Glasgow City Council Against Vicente Bimendi Under The Civic Government (scotland) Act 1982, Schedule 1, Paragraph 18(12)
| Jurisdiction | Scotland |
| Judge | Lord McGhie,Lord Drummond Young,Lady Paton |
| Neutral Citation | [2016] CSIH 41 |
| Docket Number | XA82/15 |
| Date | 08 June 2016 |
| Court | Court of Session |
| Published date | 08 June 2016 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 41
XA82/15
Lady Paton
Lord Drummond Young
Lord McGhie
OPINION OF THE COURT
delivered by LADY PATON
in the appeal
by
GLASGOW CITY COUNCIL
Appellants;
against
VICENTE BIMENDI
Respondent:
under
The Civic Government (Scotland) Act 1982, Schedule 1, paragraph 18(12)
Appellants: Blair; Glasgow City Council
Respondent: Hajducki QC; John Mair Solicitors Ltd t/a Campbell Mair, Glasgow
8 June 2016
Application for renewal of a taxi booking office licence
[1] Since 2009, a licence has been required not only to operate as a taxi driver, but also to run a taxi booking office (The Civic Government (Scotland) Act 1982 (Licensing of Booking Offices) Order 2009 (SSI 2009/145)). Article 3 of that Order incorporates a system of mandatory conditions contained in part I of the 1982 Act.
[2] In terms of paragraph 5(3)(a)(ii) of Schedule 1 to the Civic Government (Scotland) Act 1982, a licensing authority:
“ … shall refuse an application to grant or renew a licence if, in their opinion –
- the applicant or, where the applicant is not a natural person, any director of it or partner in it or any other person responsible for its management, is …
(ii) not a fit and proper person to be the holder of the licence …“
[3] On 19 June 2014, the respondent applied to Glasgow City Council (the appellants, hereinafter “the Council”) for renewal of a licence for a taxi booking office situated at 1552 Great Western Road, Glasgow.
[4] The Chief Constable lodged an objection based on the respondent’s conduct in another licensing area, namely East Dunbartonshire. In particular, by letter dated 9 July 2014, the objection (read short) was as follows:
- The respondent was a director of a limited company, Milngavie & Bearsden Station Taxis Ltd, 8-10 Station Road, Bearsden (“MBST”).MBST had a licence to operate within East Dunbartonshire council area.Nevertheless taxi drivers working for MBST regularly breached that licence by conveying customers on journeys beginning and ending outwith East Dunbartonshire (contrary to section 21 of the Civic Government (Scotland) Act 1982, quoted in paragraph [6] below).Reference was made to journeys recorded in computerised records for 21‑22 February 2013, and the fact that 43% of those journeys began and ended outwith the East Dunbartonshire area.
- Furthermore, the limited company MBST had been dissolved on 19 October 2010.When East Dunbartonshire Council became aware of that fact, they served a letter on MBST on 8 July 2013, requiring them to cease trading with immediate effect.Subsequent police investigations on 9 July 2013 and 2 September 2013 established that MBST was continuing to trade in defiance of the letter.Police visiting the office at 8‑10 Station Road found staff uncooperative and uncommunicative.MBST was restored to the register on 27 July 2013.
[5] In the penultimate paragraph of the letter of 9 July 2014, it was submitted that the conduct of the respondent displayed:
“ … a complete disregard for licensing legislation and the duty of licence holders to adhere to conditions attached to any licence. The [respondent]’s course of conduct, and that of the business of which he is a director, raise major concerns that he is unable to abide by legislation regulating the conduct of taxi drivers and booking offices, and that he is not a fit and proper person to hold a taxi operators licence.”
Section 21 of the Civic Government (Scotland) Act 1982
[6] The Civic Government (Scotland) Act 1982 provides inter alia:
“Section 21 – Offences
-
If any person –
-
operates, or permits the operation of, a taxi within an area in respect of which its operation requires to be but is not licensed or the driver requires to be but is not licensed, or
-
picks up passengers in, or permits passengers to be picked up by, a private hire car within an area in respect of which its operation requires to be but is not licensed or the driver requires to be but is not licensed,
that person shall be guilty of an offence and liable, on summary conviction to a fine …
-
operates, or permits the operation of, a taxi within an area in respect of which its operation requires to be but is not licensed or the driver requires to be but is not licensed, or
- Subsection (1) above does not apply to the operation of a taxi or private hire car within an area in respect of which its operation or its driver is not licensed if the request for its hiring was received by its driver (otherwise than in a public place from the person to be conveyed in it, or a person acting on his behalf, for a journey beginning there and then) whilst –
-
in the area or in that part thereof in respect of which its operation and its driver are licensed;
-
engaged on hire on a journey which began in that area or part or will end there;or
- returning to that area or part immediately following completion of a journey on hire …”
The licensing committee
[7] On 26 November 2014, the respondent’s contested application came before the Council’s Licensing and Regulatory Committee (“the committee”). The respondent was represented by Mr Campbell, solicitor. The objectors (the police) were represented by Chief Inspector Sloan, Sergeant Ryan Curran, and Detective Constable Stewart Mathieson.
[8] Chief Inspector Sloan, Sergeant Curran, and the respondent’s solicitor addressed the committee, gave evidence, answered questions, and made submissions. The respondent also addressed the committee and answered questions (Appendix pages 121; 124 to 133; 136 to 138; 140 to 141).
[9] The committee ultimately refused the respondent’s application. By e-mail dated 27 November 2014 the respondent’s solicitor requested a statement of reasons.
[10] By letter dated 15 January 2015, reasons were given, as follows:
“Dissolution of Milngavie Taxis
… The Committee noted Mr Campbell’s submissions in relation to company law and ongoing court cases. However the Committee was of the view that the company’s restoration to the register could not be relied upon by your client as a point in his favour. At the time of its dissolution your client must have known that his company had been dissolved and the licence held by that company ceased to exist: the fact the company was later restored to the Register does not alter the fact that your client knew he was operating a booking office with a licence belonging to a company that did not exist for approximately 2 years and 9 months.
Mr Bimendi’s actions, as narrated above, demonstrated a disregard for lawful authority and therefore constituted a weakness in character. The Committee formed the view that an experienced licence holder such as Mr Bimendi would have known that a licence held by a corporate entity would have terminated with the dissolution of that entity and despite this, continued to trade. Mr Bimendi knowingly and wilfully traded without a licence of the type required for the activity he was engaged in. Accordingly in respect of the matters outlined in this section, the Committee resolved to refuse your client’s renewal application in terms of paragraph 5(3)(a)(ii) of Schedule 1 to the above Act, i.e. on the grounds that your client is not a fit and proper person to be the holder of a Booking Office Licence.
Section 21 of the 1982 Act
…The Committee does not dispute that a private hire car driver may utilise an exception under [section 21] of the 1982 Act and this is entirely legitimate. However, the Committee noted that the submission by the Chief Constable’s representative that between 21 and 22 February 2013, 43% of journeys commenced and terminated outwith the East Dunbartonshire Council area. Mr Campbell did not dispute the accuracy of these figures. The Committee found it incredible to suggest that all of these journeys involved drivers who were able to rely upon one of the above exceptions. In coming to this view, the Committee noted that for exception (c) to apply, the driver must have been ‘immediately’ returning to his own area. Therefore the Committee formed the view that it was improbable that private hire car drivers could be relying upon this exception in 43% of the bookings. The Committee found that Mr Bimendi’s booking office regularly dispatched private hire cars to pick up passengers within an area for which they held no licence in a manner which would be contrary to section 21 of the 1982 Act. The Committee further found that this activity was permitted by the booking office. In reminding itself of … section 21 of the 1982 Act the Committee did not seek to usurp the position of the Criminal Courts by purporting to find that a criminal offence had been committed. The Committee was aware that your client had not been convicted of any breaches of section 21 of the 1982 Act. However, the Committee was of the view that the material before it allowed it to conclude, on the balance of probabilities, that Mr Bimendi’s East Dunbartonshire Booking Office permitted private hire car drivers to operate outwith East Dunbartonshire and in Glasgow, an area for which they are unlicensed. The Committee were not satisfied that the number of journeys both starting and ending outwith East Dunbartonshire could be explained by reference to the exceptions …
The Committee is of the view that the intent of the legislation here is to ensure that Private Hire Car drivers operate within the area for which they are licensed … unless one of three specific exceptions [is] met. Public safety is of paramount [importance] in a licensing regime and licensing authorities should be able to assume that private hire car drivers operating in their area are subject to their conditions and have had their applications determined by it.
Given that it was not disputed that Mr Bimendi was aware of the practices of the drivers operating from the East Dunbartonshire Booking Office, the Committee concluded that Mr Bimendi was aware that drivers were acting contrary to the provisions of the 1982 Act and that this booking office facilitated this behaviour. The Committee was of the view that as an experienced licence holder Mr Bimendi should have taken steps to...
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