R United Cabbies Group (London) Ltd v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 26 February 2019 |
| Neutral Citation | [2019] EWHC 409 (Admin) |
| Docket Number | Case No: CO/3767/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 February 2019 |
and
[2019] EWHC 409 (Admin)
THE RIGHT HONOURABLE The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE Mr Justice Supperstone
Case No: CO/3767/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Griffiths QC and Stuart Jessop (instructed by Chiltern Law) for the Claimant
The Defendant was not represented
Martin Chamberlain QC and Tim Johnston (instructed by Transport for London) for the 1 st Interested Party
Gerald Gouriet QC and Charles Holland (instructed by Michael Demidecki & Co) for the 2 nd Interested Party
Philip Kolvin QC (instructed by Hogan Lovells Intl. LLP) for the 3 rd Interested Party
Hearing date: 13 February 2019
Approved Judgment
The Lord Chief Justice and
Introduction
On 26 June 2018 Senior District Judge Emma Arbuthnot, the Chief Magistrate, granted a London Private Hire Vehicle Operator's Licence to Uber London Limited (“Uber”) for a period of 15 months. A licence had earlier been refused by Transport for London (“TfL”) but by the time the appeal came on for hearing before the judge they no longer opposed its grant. They adopted a neutral stance but tested the evidence advanced by Uber. The United Cabbies Group (London) Ltd (“UCG”), a mutual society representing Hackney Carriage Drivers in London, challenges the decision in judicial review proceedings brought against Westminster Magistrates' Court (“the defendant”).
It is challenged on two grounds. First, it is said that the decision is tainted by actual or apparent bias by reason of the judge's husband's financial relationship with Uber ( Ground 1). Secondly, the judge acted ultra vires and unlawfully in granting the licence in that she did so having made no finding of fact that at the time of her decision Uber was a fit and proper person within the meaning of section 3 of the Private Hire Vehicles (London) Act 1998 (“the 1998 Act”). In effect, she granted a probationary licence unknown to law. ( Ground 2).
Factual Background
TfL is a statutory corporation established by section 154 of the Greater London Authority Act 1999. Its functions include licensing private hire vehicle operators, drivers and vehicles in London, pursuant to the 1998 Act. Under section 3 of the 1998 Act, TfL must grant an applicant a London Private Hire Vehicle (“PHV”) operator's licence if satisfied as to various matters. One of these is that the applicant is a “fit and proper person” to hold such a licence (section 3(3)(a)).
In 2012 TfL granted Uber a five-year London PHV operator's licence. Uber operates via an App that drivers and passengers, or riders, download onto their mobile telephones.
On 28 February 2017 Uber applied to renew its operator's licence for five years. At that time TfL was investigating various matters of concern. Not having concluded those investigations, it granted a four-month licence to expire on 30 September 2017.
On 22 September 2017 TfL wrote to Uber (“the decision letter”) saying that a decision had been made that Uber was not a fit and proper person to hold a London PHV operator's licence and that therefore a new licence would not be granted. The decision letter set out a summary of the reasons why Uber was not a fit and proper person. TfL's complaints were that Uber misled TfL in correspondence in 2014 about the processes used to make bookings. Uber had available to it software called “Greyball” which could be used to evade regulatory processes and Uber had shown a lack of corporate responsibility in relation to matters which had public safety implications.
On 13 October 2017 Uber appealed to Westminster Magistrates' Court. The appeal was heard by the judge on 25 and 26 June 2018. At the end of the hearing the judge retired and produced a written judgement which she handed down later the same day.
The Decision of the Chief Magistrate
The judge noted that in January 2018 she was provided with a provisional list of issues for the appeal which made it clear that at that time Uber was not accepting the justified complaints of TfL. By the time of the hearing on 25 June the list of issues had narrowed. The parties provided a list of agreed conditions that could be attached to a licence if one was granted.
The judge also noted that “[Uber] had changed a number of its working practices and its governance, and TfL took a neutral stance as to whether the licence should be granted by the court. Helpfully TfL explored governance and other matters with the three [Uber] witnesses called”.
The judge set out her findings and conclusion at paras 40 and 41 of her judgment:
“40. I have considered the evidence and submissions in the case. I have given particular weight to the conditions that have been agreed between the parties. Taking into account the new governance arrangements, I find that whilst [Uber] was not a fit and proper person at the time of the Decision Letter and in the months that followed, it has provided evidence to this court that it is now a fit and proper person within the meaning of the Act. I grant a licence to [Uber].
41. The length of the licence has been the subject of discussion. The rapid and very recent changes undergone by [Uber] lead me to conclude that a shorter period would enable TfL to test out the new arrangements. A 15-month licence will enable Ms Chapman and her team to check the results obtained by the independent assurance procedure set out in condition number 4 whilst ensuring the public are kept safe.
42. I grant a licence for a period of 15 months.”
Subsequent Events
On 18 August 2018 The Guardian newspaper published an article entitled “Judge in Uber's London legal battle steps aside over husband's links to firm”. The article claimed that the judge had withdrawn from hearing further appeals by Uber after an Observer newspaper investigation into links between her husband, Lord Arbuthnot, and Uber. The article reported that Lord Arbuthnot was a former director, now a consultant, for a company called SC Strategy Ltd described as a “private intelligence company”. One of SC Strategy's known clients is the Qatar Investment Authority (“QIA”), widely reported to be a significant financial investor in Uber. The article also stated that “a judicial spokesperson” had said, since the investigation had pointed to the link, that the judge would not hear Uber-related cases in the future. It was further stated that the spokesperson had added that the judge had been due to hear a licensing appeal by Uber in Brighton on a date yet to be fixed but that as soon as the link had been pointed out to her, she had assigned the case to a fellow judge.
On 14 August 2018 the judge responded to the allegation in the Guardian article stating that she did not know that QIA were investors in Uber, and that she had checked with her husband and he did not know either.
On 22 August 2018 UCG wrote a letter addressed to the Lord Chief Justice referring to the Guardian article and raising the issue of bias. Further it asked for the decision of the judge to be set aside. That was inappropriate because the Lord Chief Justice has no locus to interfere in the decisions of judges save when sitting on appeal or in judicial review proceedings.
On 11 September 2018 an e-mail was sent on behalf of the judge to Mr Kolvin Q.C. (counsel for Uber) and others informing them that the judge did not know of any connection between Lord Arbuthnot and Uber at the time of the appeal hearing, but that she had recused herself from future cases involving Uber.
On 19 September 2018 UCG filed a claim for judicial review against the Defendant with TfL and the Licensed Taxi Drivers' Association listed as interested parties. Uber was added as an interested party on 27 September. On 22 October 2018 the defendant filed an acknowledgement of service and accompanying letter from the Government Legal Department on behalf of the judge. It repeated her state of knowledge as to material matters.
Mr Rogers of Chiltern Law, the solicitors who act for UCG, filed a witness statement with the claim. He made second, third and fourth witness statements on 26 November, 17 December 2018 and 17 January 2019. These referred to other business interests of Lord Arbuthnot evidencing, it was contended, further associations between the judge's spouse and Uber (and indeed TfL) capable of demonstrating cause for perceived bias. In summary they include the following:
i) Lord Arbuthnot is the Chair of Thales UK (“Thales”) advisory board. He was still the Chair of Thales' advisory board at around the time the decision was made on 26 June 2018. He was an advisory board member of Thales when on 3 August 2015 TfL awarded Thales a contract to renew the signalling and train control system on the London's Underground. TfL also awarded Thales a contract to maintain and upgrade its communications systems in September 2018. An article on 16 July 2018 on the website of Thales suggests a business collaboration between Uber and Thales in respect of air taxis in Dubai.
ii) SC Strategy provides consultancy services to another company called Pure Storage UK (“Pure Storage”) that has a business partnership with Thales called Thales Security. Pure Storage also provides data storage for Uber.
iii) TfL have selected BlackRock to manage very substantial investments. Blackrock previously invested in Uber in 2014, reportedly in the sum of $209m.
iv) The judge's brother, who lives in the State of Virginia and works in the wine trade, in an e-mail dated 15 January 2015 to the Public Service Commission of South Carolina...
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