Patricia Jones and Another v First Greater Western Ltd
| Jurisdiction | England & Wales |
| Judge | Judge McCahill |
| Judgment Date | 25 April 2013 |
| Neutral Citation | [2013] EWHC 1485 (Ch) |
| Date | 25 April 2013 |
| Court | Chancery Division |
| Docket Number | Claim No 2BS30445 |
[2013] EWHC 1485 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
His Honour Judge Mccahill QC
(Sitting as a High Court Judge)
Claim No 2BS30445
Mr D Fletcher (instructed by Stones LLP) appeared on behalf of the Claimants
Mr E Paton (instructed by Burges Salmon LLP) appeared on behalf of the Defendant
Introduction
The core issue in this case is whether the defendant, First Greater Western Limited ("FGW") — as the private lessee and station franchise operator of railway premises, namely Bristol Temple Meads ("BTM"), within which are located Hackney Carriage stands fixed by local byelaws ("the taxi byelaws") — is lawfully entitled to introduce and enforce a permit scheme.
This permit scheme requires Hackney Carriage drivers to pay an annual fee for the privilege or opportunity of plying for hire from within the station forecourt or for standing for hire at those prescribed taxi stands, as well as requiring them to conform to certain standards of conduct whilst at BTM, on pain of having their permit revoked.
The scheme, which came into practical effect on 1 March 2012, does not prevent (1) licensed Hackney Carriage drivers without permits or private hire vehicles from dropping off passengers at the station entrance; or (2) private hire vehicles from picking up passengers who had pre-booked a private hire vehicle to pick them up from the forecourt at Bristol Temple Meads.
The defendant
FGW is a passenger railway franchise holder, operating train services on the great western section of the national rail network, from London Paddington to the south west of England and South Wales.
FGW is wholly owned by First Rail Holdings Limited, which is itself wholly owned by First Group plc.
FGW is a commercial undertaking, employing railway assets for profit in accordance with a franchise agreement with the Secretary of State for Transport dated 12 December 2005. FGW's activities include carrying passengers in exchange for fares and entering commercial arrangements with third parties to exploit its land by way of concessions.
As part of its railway services, it is the current operator of BTM which was leased to it by the freehold owner, Network Rail Infrastructure Limited ("Network Rail") by a lease dated 30 September 2009 for a term starting on 1 October 2009 and ending at 2 am on 13 October 2013, some five to six months hence.
The lease includes the station approach land accessed from the public vehicular highway on the south west known as Temple Gate. This approach land includes the access road and pavements known as Station Approach, car parks and 46 taxi stands located in two ranks, one for four taxis, the other for 42. There is also an additional pedestrian side access to the station, from the northern direction of Avon Street, via a pedestrian bridge over the Floating Harbour.
FGW took over as the operator in 2006 from Great Western Trains Company Limited ("GWTC") by a transfer scheme dated 31 March 2006.
Nationlisation of the railways
By way of background history, the railways and other forms of private inland transport had been nationlised under the Transport Act 1947, which had also created the British Transport Commission.
Under the Transport Act 1962, the British Transport Commission was replaced by four separate organisations, one which of which was the British Railways Board ("British Rail"), which thereafter owned all railway stations, railway premises, including taxi ranks and infrastructure, as well as operating the national railway service and network.
Privatisation of the railways
By the Railways Act 1993, operations of British Rail were to be privatised and separated into a number of separate businesses, including businesses providing passenger and freight services using rolling stock, which were known as the Train Operating Companies; and a business which managed the infrastructure, namely the track and railway properly, to be called Railtrack plc.
GWTC, initially a subsidiary of British Rail, had taken over operation of BTM from the British Railways Board in December 1994 as part of the preparations for privatisation of the railways under the Railways Act 1993.
GWTC was subsequently sold by British Rail to private operators, to which the relevant Track Agreement and Station Franchise Agreement were granted. The newly privatised business, GWTC, ran BTM and the rail network from February 1996 to December 2005.
Following the insolvency of Railtrack plc in 2002, it was restructured as National Rail Infrastructure Limited, called Network Rail, in October 2002.
For a more detailed history of the privatisation process, the parties are referred to paragraphs 4.3 to 4.9 of the second witness statement of Mr Bartlett at pages 41 to 42 in bundle C.
Both FGW and GWTC are subsidiaries of First Group plc and, as both trade or traded as 'First Great Western', third parties, including the public, would not have noticed any practical difference upon the change of operator in 2006.
The claimants
The claimants, representing the members of the Bristol Branch of the National Taxi Association, initially brought an application for an interim injunction to restrain the implementation of the scheme. The application for the injunction was compromised on the terms of an order and undertakings agreed at court on 9 March 2012. Those undertakings were slightly varied by orders of 19 April 2012, 28 February 2013 and, most recently, 26 March 2013.
The orders and undertakings enabled a category of claimant taxi drivers, protesting against the permit scheme but wishing to ply for hire on the station land in the interim, to pay an equivalent sum into court in lieu of the permit fee. They were the 'B List' and then the 'B1 List' claimants, who pending trial were also bound by undertakings to comply with the defendant's terms and conditions for permit holders.
I shall refer in the rest of this judgment to licensed Hackney Carriages as 'taxis' and to their drivers as 'taxi drivers'.
The claimant Association comprises between approximately 180 and 200 taxi driver members, referred to on 'List A' attached to the pleadings, some of whom do not ply for hire from BTM at all ('List C'). It is currently the only taxi association in Bristol. It follows that there are many taxi drivers who do ply for hire at BTM who are not members of the claimants' Association. Former taxi associations, active in the 1970s and 1980s, have been disbanded or no longer exist.
The licensing authority
The relevant taxi licensing authority is Bristol City Council ("BCC").
A taxi driver requires her or his own personal licence as a driver to ply for hire in a taxi. The taxi vehicle itself must also be separately licensed by its proprietor. The taxi licence or 'plate' is marketable, but it must be sold with the vehicle to which it relates.
Taxi statistics and the introduction of the permit scheme
Since deregulation there is now no limit on the number of taxis that can be licensed by BCC. In 2011, there were about 771 taxis, of which 581 then plied for hire from BTM. When the permit scheme came into effect on 1 March 2012, there were about 900 taxis, of which 252 held FGW permits and a further 74 operators, the 'B List'taxis, had paid into court the equivalent of the FGW permit fee of £375 under the terms of that interim court order, which allowed them to use their taxis to ply for hire at BTM, without formally submitting to the new permit scheme. They displayed a modified form of permit on the windscreen of the taxi.
As at 1 April 2013, 58 taxis held permits issued for the new year and a further 203 vehicles held 'B' or 'B1' list authorisations, having paid into court the equivalent of the 2013/2014 fee effective from 1 April 2013, namely £400.
The most expensive permit fee currently charged elsewhere by FGW is in the region of £700. It can therefore be confidently predicted that, if FGW is successful in this litigation, the BTM permit fee will soon rise to that level or beyond since BTM is the station with the highest footfall of passengers under FGW's control and management.
The current comparatively low permit fee is, according to FGW, a reflection of the fact that the last permit fee had been charged in 1974 and, therefore, FGW wished to increase the fee gradually. The claimants regard the current comparatively low entry level fee as a cynical ploy by FGW, since FGW's long-term intentions are obvious.
FGW manages 210 stations, at 41 of which it operates a permit scheme because of the number of passengers frequenting that station and the number of taxi drivers who convey them. However, BTM is the only FGW station, of which I am aware, where localbyelaws regulating the taxis are in force and, if FGW succeeds in this case, will remain in force alongside the terms and conditions of the permits. In addition to levying a charge, the permits also seek to regulate the behaviour of taxi driverswhen on BTM premises. The defendant will enforce the permit conditions as partof the operation and management of the station.
The permit
The permit and its conditions are set out between pages 211 and 218 of the Core Bundle. I should refer to some of the conditions at this stage. The parties to the agreement are expressed to be FGW, the licence holder, which is the proprietor of the vehicle, and any applicable driver. In the permit, " Driver means (except where specifically mentioned otherwise) the licence holder holding the licence for the vehicle issued under the Town Police Clauses Act 1847 and any...
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