R United Trade Action Group Ltd v Transport for London
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Singh,Lord Justice Phillips |
| Judgment Date | 22 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1026 |
| Docket Number | Case No: CA-2021-003449 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1026
Lord Justice Bean
Lord Justice Singh
and
Lord Justice Phillips
Case No: CA-2021-003449
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT (LORD JUSTICE MALES & MR JUSTICE FRASER)
Royal Courts of Justice
Strand, London, WC2A 2LL
David Matthias QC and Charles Streeten (instructed by Chiltern Law) for the Appellant
Maya Lester QC and Tim Johnston (instructed by Transport for London Legal) for the First Respondent
Philip Kolvin QC and Ronnie Dennis (instructed by EMW Law LLP) for the Second Respondent
Hearing dates: 6–7 July 2022
Approved Judgment
Transopco UK Ltd, better known by its trading name of FREE NOW, is a licensed operator of private hire vehicles (“PHVs”) which can be booked by prospective passengers using a smartphone app. In this litigation United Trade Action Group Ltd (“UTAG”), a trade association for drivers of taxis (“black cabs”) challenges the lawfulness of the decision of Transport for London (“TfL”) to grant Transopco a London PHV operator's licence. It may seem extraordinary that the underlying question of law is one of the interpretation of a statute enacted in 1869, before the invention of the telephone or the motorcar, let alone the internet or the smartphone app. Yet that is the issue before us.
David Matthias QC for UTAG cited to us a passage in the election manifesto of the present Mayor of London, Sadiq Khan, in 2016:-
“ An iconic taxi service
As the world's greatest city it is absolutely right that we have, and continue to have, the best and most qualified cabbies in the world. London's black taxi drivers are highly trained and properly checked to a high safety standard, driving wheelchair accessible vehicles, with the incredible geographical recall and sense of direction that only those with The Knowledge have. With people like this at the wheel, it's understandable that the London black cab is an icon known around the world and a source of pride for Londoners.
I will ensure that the markets for licensed taxi drivers and for private hire drivers are fair – with special privileges built in, as they always have been, for those who become a licensed London taxi driver.”
Few would quarrel with the proposition that the London black cab is an icon known around the world. But black cabs face increasing competition from app-based PHVs, and their numbers have decreased significantly in the last few years.
Both black cabs and PHVs are regulated in London by TfL but under wholly different statutory regimes. PHVs were unregulated in the capital until the passing of the Private Hire Vehicles (London) Act 1998. Black cabs have a far longer established statutory regime. The legal term for a black cab is a hackney carriage: in 1715 the term used was hackney coaches. Section 3 of an Act with the short title of the Hackney Coaches Etc Act 1715 provided that no person “shall presume to stand, ply, or drive for hire with any coach whatsoever” within the cities of London and Westminster or their suburbs, except such persons who were licensed by Commissioners appointed under an earlier statute. After some intervening statutes which I need not set out, the Metropolitan Public Carriage Act 1869 prohibited plying for hire in London except by licensed drivers of licensed hackney carriages. “Hackney carriage” was defined by section 4 of the Act as “any carriage for conveyance of passengers which plies for hire within the limits of this Act” with the exception of stage carriages (the precursors of buses). Section 7 provided:-
“If any unlicensed hackney … carriage plies for hire, the owner of such carriage shall be liable for a penalty not exceeding £5 for every day which such unlicensed carriage plies…”
Until the year 2000 it was the Metropolitan Police Commissioner's Public Carriage Office which licensed hackney carriages and their drivers. Since that time it has been Transport for London. Section 8(1)-(2) of the 1869 Act, as amended, now reads:-
“(1) Transport for London shall have the function of licensing persons to be drivers of hackney carriages
(2) No hackney carriage shall ply for hire within the limits of this Act unless under the charge of a driver having a licence under this section from Transport for London.”
The phrase “plying for hire” in the 1869 Act is not defined. I shall come later to the case law on its interpretation.
It is the Appellant's case that the driver of any London private hire vehicle (“PHV”) providing services via the electronic platform of the Second Respondent, Transopco UK Ltd. commits an offence under s 7 of the 1869 Act. If that is correct, the offence is committed by tens of thousands of drivers of PHVs in London every day, via the FREE NOW platform and also other similar platforms such as those operated by Uber London Limited, Ola and Bolt.
On 9 August 2020 TfL granted a London PHV operator's licence to FREE NOW. UTAG sought judicial review of that decision on two grounds. One was that (as suggested by Lord Leggatt JSC in Uber BV v Aslam [2021] ICR 657) the 1998 Act required the passenger's contract to be with the operator rather than with the driver. On 6 December 2021 the Divisional Court (Males LJ and Fraser J) allowed the judicial review claim to the extent of upholding UTAG's argument on the operator issue and granting a declaration accordingly. Their decision is reported at [2022] 1 WLR 2043. FREE NOW have changed their modus operandi to comply with the law as so declared and have not appealed against the finding.
The other ground for judicial review – the “plying for hire issue” — was that FREE NOW's platform enables and encourages PHV drivers unlawfully to ply for hire; and that as a result Transopco is not a “fit and proper person” to hold a London PHV operator's licence. The Divisional Court rejected this argument, holding that it was bound to follow its previous decision in Reading BC v Ali [2019] 1 WLR 2635 which it regarded as indistinguishable, but granted UTAG permission to appeal. On this appeal UTAG argues that in both Reading BC v Ali and the present case the Divisional Court erred in holding that London PHV drivers working from the FREE NOW app were not plying for hire. TfL and Transopco say that both Divisional Court decisions were correct.
The regulatory framework for PHVs in London is in the 1998 Act. The framework for most of the rest of England and Wales is in the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”).
The effect of the 1998 Act is that private hire journeys may only be provided by: (i) a licensed London PHV operator (s. 3); (ii) in a licensed London PHV (s. 6); (iii) driven by a licensed London PHV driver (s. 12). Each of those entities must hold a licence from TfL, a requirement often described as the “triple lock”.
Section 1(1) of the 1998 Act defines an operator as:
“a person who makes provision for the invitation or acceptance of, or who accepts, private hire bookings”
The 1998 Act draws a distinction between the licensing frameworks for PHVs and hackney carriages (s. 1(1):
“private hire vehicle” means a vehicle constructed or adapted to seat fewer than nine passengers which is made available with a driver for hire for the purpose of carrying passengers, other than a licensed taxi or a public service vehicle”
A vehicle is being used as a PHV if it is in use in connection with a hiring for the purpose of carrying one or more passengers, or is “immediately available to an operator to carry out a private hire booking”. (s 1(2)). The role of accepting a booking falls to the operator (s 1(3)). It is a criminal offence to “make provision for the invitation or acceptance of, or accept, private hire bookings” without an operator's licence (s 2(1)).
Section 3(3) of the 1998 Act states that TfL shall grant an operator's licence where it is satisfied that the applicant is a “fit and proper person” to hold a London PHV operator's licence and any such further requirements as TfL may prescribe are met.
UTAG says that FREE NOW is not a fit and proper person to hold a London PHV operator's licence because its mode of operation involves the commission of a criminal offence by its drivers (plying for hire). Indeed Mr Matthias put his case very high: his argument was that whenever a driver logs on to the FREE NOW app and leaves home he is from that moment committing the offence of plying for hire.
Cogley v Sherwood
Prior to the era of the smartphone app the leading case on plying for hire was Cogley v Sherwood [1959] 2 QB 311, the decision of an exceptionally strong Divisional Court consisting of Lord Parker CJ, Donovan J and Salmon J (the Lord Chief Justice and two future Lords of Appeal in Ordinary).
Two individuals were prosecuted for plying for hire at what is now Heathrow airport. Their vehicles were parked at the airport but there was nothing about the vehicles' appearance, the place where they were parked, or the behaviour of the drivers which suggested that they were for hire. Bookings could only be made via the car hire desk, inside the terminal, which advertised their services.
The Court heard detailed argument on the authorities. Lord Parker CJ observed [323] – [324]:
“The court has been referred to a number of cases from 1869 down to the present day dealing with hackney carriages and stage carriages. Those decisions are not easy to reconcile, and like the justices, with whom I have great sympathy, I have been unable to extract from them a comprehensive and authoritative definition of “plying for hire”. One reason, of course, is that these cases all...
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