R United Trade Action Group Ltd v Transport for London
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Mr Justice Fraser |
| Judgment Date | 06 December 2021 |
| Neutral Citation | [2021] EWHC 3290 (Admin) |
| Docket Number | Case No: C0/4087/2020 & CO/3046/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
and
[2021] EWHC 3290 (Admin)
Lord Justice Males
and
Mr Justice Fraser
Case No: C0/4087/2020 & CO/3046/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Matthias QC and Charles Streeten (instructed by Chiltern Law) for United Trade Action Group Ltd
Jason Galbraith-Marten QC (instructed by ITN Solicitors) for the App Drivers and Couriers Union
Maya Lester QC and Tim Johnston (instructed by Transport for London Legal) for Transport for London
Ranjit Bhose QC and Josef Cannon (instructed by Hogan Lovells International LLP) for Uber London Ltd
Philip Kolvin QC and Ronnie Dennis (instructed by EMW Law LLP) for Free Now
Hearing dates: 23 rd and 24 th November 2021
Approved Judgment
Lord Justice Males and
Uber London Ltd (“Uber”) and Transopco (UK) Ltd (the latter trading as “Free Now”) are each operators licensed under the Private Hire Vehicles (London) Act 1998 (“the 1998 Act”). Users of their services are able to book a private hire vehicle using a smartphone app. As is well known, an issue arose whether private hire vehicle drivers providing services to passengers through the Uber app were to be regarded as “workers” within the meaning of various provisions of employment protection legislation. The case, Uber BV v Aslam [2021] UKSC 5, [2021] ICR 657, went to the Supreme Court which held that they were.
In the course of his judgment, with which the other members of the Court agreed, Lord Leggatt considered an argument advanced by Uber that it was acting as agent of the driver. He suggested, albeit without finally deciding the point, that in order to comply with the provisions of the 1998 Act, Uber would have to accept a contractual obligation to the passenger as a principal to carry out the booking. That suggestion has given rise to the first issue in these proceedings.
There are two claims before the court, which have been heard together. First, in Part 8 proceedings Uber, supported by Free Now, claims a declaration that an operator licensed under the 1998 Act who accepts a booking from a passenger is not required by the Act to enter as principal into a contractual obligation with the passenger to provide the journey in respect of that booking. In other words, Uber and Free Now say that Lord Leggatt's suggestion in Uber v Aslam is wrong.
Second, in judicial review proceedings the United Trade Action Group Ltd (“UTAG”), the trade association for (among others) hackney carriage (or black cab) drivers, seeks to quash the decision made on 9 th August 2020 by Transport for London (“TfL”) as the regulator to renew Free Now's operator's licence under the 1998 Act. It does so on two grounds, (1) that according to Free Now's own terms and conditions, bookings are accepted by private hire vehicle drivers and not by Free Now itself, which is unlawful because, under the 1998 Act, the booking must be accepted by Free Now as the licensed operator; and (2) that private hire vehicles ply for hire in London using the Free Now app, which is unlawful as only licensed hackney carriage drivers can lawfully ply for hire. UTAG's position is that the renewal of the licence by TfL was therefore unlawful because (in judicial review terms) (1) TfL failed to have regard to the unlawful way in which Free Now conducts its business by encouraging drivers to break the law, and (2) Free Now's encouragement to its drivers to break the law means that TfL could not rationally conclude that Free Now is a fit and proper person to hold a licence. There is no equivalent judicial review challenge to Uber's licence because, as Mr David Matthias QC for UTAG frankly acknowledged, any such challenge would be out of time. However there appears to be no material difference for the purpose of this case between the way in which Uber and Free Now conduct their business.
Accordingly there are two issues to be decided.
The first issue is whether, in order to comply with the provisions of the 1998 Act, a licensed operator must accept a contractual obligation to the passenger as a principal to carry out the booking (“the Operator issue”). On this issue Uber and Free Now say that this is not necessary, while UTAG and the App Drivers and Couriers Union (“ADCU”) say that it is. TfL is neutral. Uber, Free Now and TfL say that this issue needs to be decided and this court should grant a declaration to decide the point one way or the other. UTAG says that Free Now's terms and conditions mean that it is encouraging drivers to operate unlawfully and that the decision to grant it a licence should be quashed.
The second issue is whether a driver soliciting passengers by means of the Free Now app (which is in all material respects identical to the Uber app) is “plying for hire” within the meaning of the Metropolitan Public Carriage Act 1869 (“the 1869 Act”) (“the Plying for Hire issue”). UTAG says that the answer is yes. Free Now and TfL deny this. If we accept UTAG's position, there is a further issue as to remedy. UTAG says that we should quash the decision to grant Free Now an operator's licence, either immediately or after a period of time, which would mean that Free Now had no licence and drivers using the app would have to cease to do so. Free Now, supported by TfL, says that it would be sufficient to grant a declaration, having regard in particular to the large number of licensed drivers whose livelihoods depend on obtaining business through apps such as Free Now's.
Background
Until the passing of the 1998 Act private hire vehicles in London (then generally known as “minicabs”) were unregulated. At that time, of course, the possibility of booking a vehicle using a smartphone app was not in contemplation. Booking was done either by telephone, or by going personally to a minicab office. Since the use of smartphone apps became possible, the private hire vehicle industry in London has grown significantly. The number of licensed private hire drivers in London has increased from about 65,000 such drivers in 2013 to 104,000 in 2021.
According to the evidence of TfL, there were 1,919 licensed private hire vehicle operators in London as at 13 th June 2021. They vary in their size and type, from single driver-operators, traditional telephone or walk-in minicab offices, through to operators with tens of thousands of drivers registered to their app-only booking platforms. As a result TfL's approach to licensing and regulation must accommodate a wide range of situations, modes of providing services and levels of technical sophistication in each operating model.
While there continue to be many minicab offices where a customer can make a booking either in person or by telephone, either for an immediate journey or for a future time, the introduction of smart phones and app-based services has significantly changed the way many private hire vehicle services are delivered, both in and outside London. In London there are a number of private hire vehicle operators, including Uber and Free Now, which only accept bookings by means of an app, generally known as a “ride hailing app”.
There are two versions of the Free Now smartphone app. One is made available to passengers, the other to drivers. The passenger's use of the app is governed by “General Terms and Conditions for Users of the Free Now Platform” (“the User Terms”). When a passenger first installs the app on their smartphone, they are required to indicate their acceptance of these terms, although it is questionable how many passengers would read them. Separate agreements between Free Now and drivers are contained in “General Terms and Conditions for Drivers using the Free Now Platform” (“the Driver Terms”). No doubt Uber has a broadly similar contractual structure, although the terms of its agreements are not in evidence.
TfL's approach when considering an application for a private hire vehicle operator's licence is to focus on the mechanics of the booking process, that is to say the various steps which make up that process: who accepts the booking, when it is accepted, how it might be cancelled, and so on. More often than not, TfL does not review the contractual terms of the operator when considering a licence application. This is deliberate. TfL's view is that (in the words of Ms Helen Chapman, the Director of Licensing, Regulation and Charging) “a common sense approach should be taken to the question of whether there has been provision made for the invitation and acceptance of bookings, rather than seeking to answer that question by reference to the technicalities and complexities of the law of contract”. Ms Chapman refers to the case of Kingston upon Hull City Council v Wilson [1995] 6 WLUK 360 as supporting this approach.
A customer wishing to book a private hire vehicle using the Free Now app will log on to the app on their smartphone (it is also possible to use the app to order a hackney carriage but we are not concerned with that). The app will determine their current location via GPS and will show, by means of an icon on the screen, which vehicles are in the vicinity of that customer. The customer enters their destination and a...
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