R Licensed Private Hire Car Associated Ltd v Transport for London
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 07 February 2018 |
| Neutral Citation | [2018] EWHC 331 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 February 2018 |
| Docket Number | CO/5176/2017 |
[2018] EWHC 331 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Dingemans
CO/5176/2017
APPEARANCES
Mr D Matthias QC (instructed by Blue Legal Trinity) appeared on behalf of the Claimant.
Mr T Straker QC (instructed by Transport for London) appeared on behalf of the Defendant.
The claimant, the Licensed Private Hire Car Association Limited (“LPHCA”), seeks permission to apply for judicial review of a decision by the Finance Committee of the defendant, Transport for London (“TfL”), dated 15th September 2017 (“the decision”) to increase the fees for private hire operators, which decision was brought into effect by the Private Hire Vehicles (London) (Operators' Licences) (Amendment) (No. 2) Regulations 2017 (the “2017 Regulations”). The 2017 Regulations were made on 2nd October 2017 and came into force on 3rd October 2017. The LPHCA seeks an order quashing the decision dated 15th September 2017, the 2017 Regulations and seeks an order staying the implementation of the 2017 Regulations.
By an order dated 8th November 2017 Lavender J gave directions for an oral hearing of the application for interim relief and of the application for permission to apply. I heard argument yesterday and this is my judgment. As I am handing down a draft of this judgment to assist with note-taking, I will announce my decision to avoid everyone turning to the back of the document. I will grant permission for LPHCA to apply for permission for judicial review on some but not all grounds. I will refuse interim relief. I will give directions to attempt to ensure a speedy hearing of the application for judicial review.
The issues
The grounds pursued by LPHCA for seeking judicial review were refined from those set out in the claim form by written and oral submissions. The LPHCA claims that the decision was unlawful on the grounds that (1) the consultation process was flawed because: (a) the proposals were not at a formative stage; (b) the time for the consultation was too limited; (c) insufficient material was given to permit informed responses to be provided; and (d) the responses to the consultation were not conscientiously taken into account; (2) there was an improper purpose on the part of TfL in deciding to make the Regulations because the fees from private hire operators will be impermissibly used to cross-subsidise other licences; (3) there was a failure to take into account material considerations and the decision was irrational because there was a very substantial fee increase which adversely affected private hire operators; and (4) TfL approached its decision-making with a closed mind and was biased.
These grounds of claim by LPHCA were denied by TfL, which contended that the decision on 15th September 2017 was lawful and rational and that the amended regulations are lawful.
It is common ground that the issue before me when determining whether to grant permission to apply for judicial review is whether the claim is arguable.
The court also has wide and flexible powers to make interim orders to secure a particular position pending the final disposal of the claim. This may include orders to preserve the status quo before the disputed decision. The basic approach is adapted from private law. This requires consideration of: (1) whether there is an arguable case; and (2) the balance of convenience. In public law terms this requires the court to take whatever course seems likely to cause the least irremediable prejudice. The public interest requires to be considered.
Relevant statutory materials
The Private Hire Vehicles (London) Act 1998 (the “1998 Act”) provides for the licensing of: (i) private hire operators; (ii) private hire drivers (often self-employed but also working for a private hire operator); and (iii) private hire vehicles. Section 3(4), 20(1)(a) and (b), 32 and 36 of the 1998 Act conferred powers on TfL to set the level of fees for the application for and grant of a private hire operator's licence for a period of five years. Section 4 identifies the obligations of London private hire vehicle operators. These include obligations to keep a record of bookings, enter records of journeys and keep particulars of private hire vehicles and drivers.
The Metropolitan Public Carriage Act 1869 (the “1869 Act”) provides for the licensing of: (i) taxi vehicles; and (ii) taxi drivers in London, and taxis are referred to in London as “licensed hackney carriages”.
TfL was established by s.154 of the Greater London Authority Act 1999 and has a duty to exercise its functions in accordance with guidance or directions given by the Mayor of London under s.155 of that Act. These include facilitating duties under s.141(1) and (2) of the Act, which was the promotion of safe, integrated, efficient and economic transport facilities and services.
The Private Hire Vehicles (London) (Operators' Licences) Regulations 2000 (“the 2000 Regulations”) were amended by the 2017 Regulations. The 2000 Regulations provided for two bands, with costs being £1,488 for one to two vehicles, and £2,826 for three or more vehicles. The 2017 Regulations amended the fees to: £2,000 for 1 to vehicles; £6,000 for 11 to 20 vehicles; £19,000 for 21 to 50 vehicles; £30,000 for 51 to 100 vehicles; £150,000 for 101 to 500 vehicles; £350,000 for 501 to 1,000 vehicles; £700,000 for 1,001 to 10,000 vehicles; and £2,900,000 for 10,001 and above vehicles.
Relevant legal principles
If a consultation is embarked upon by a public body it must be carried out properly. What is required for a lawful consultation was considered in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at paragraphs 108 and 112:
“To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.”
A licensing power is not an income-producing asset. The fee must be referable to the predicted costs (see R v Manchester City Council ex parte King [1991] 89 LGR 696 at 711 to 712). It has been common ground in other licensing cases that it is not permissible to use the income from one licence to subsidise another (see R (Cummings) v Council of the City & Council of Cardiff [2014] EWHC 2544 (Admin) at para.7(iii)).
It is established that licensing fees may be charged to cover the costs of inspection and enforcement in order to cover the costs of those who operate without licence (see R (Hemming) v Westminster City Council [2015] UKSC 25; [2015] AC 1600 at para.6).
Procedural matters
Before I turn to consider relevant evidence I should say something about the documents that were supplied by the claimant for this hearing. It is not acceptable to send large treasury-tagged bundles of paper to the court in the hope that someone else will sort them out. This is because experience shows that there is no one to do that. The format of the tagged bundles made it impossible to extract the (very few) relevant documents so that they could be more easily examined. The parties should identify relevant documents and put them in bundles conforming to reasonable practice and Practice Directions.
Evidence
There was much evidence before me. In my judgment much of the evidence was not relevant to the legal issues engaged in this case. Steve Wright MBE, the Managing Director and Chairman of LPHCA, gave evidence in witness statements dated 6th November 2017 and 26th January 2018.
Mr Wright referred to the consultation, notice of which was first published on 20th April 2017. Mr Wright complained about the notice and difficulties with the online process. Mr Wright said:
“Private hire operators should not have to suffer as a result of [TfL] struggling to meet the...
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