Transport for London v Uber London Ltd (First Defendant) Licensed Taxi Drivers Association (Second Defendant) Licensed Private Hire Car Association (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 16 October 2015 |
| Neutral Citation | [2015] EWHC 2918 (Admin) |
| Docket Number | Case No: CO/1449/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 October 2015 |
[2015] EWHC 2918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/1449/2015
and
and
Martin Chamberlain Q.C. and Tim Johnston (instructed by Transport for London) for the Claimant
Monica Carss-Frisk Q.C. (instructed by Hogan Lovells International LLP) for the First Defendant
Martin Westgate Q.C. (instructed by Michael Demidecki & Co) for the Second Defendant
Pushpinder Saini Q.C. (instructed by Latham and Watkins (London) LLP) for the Third Defendant
Hearing date: 5th October
In May 2012, Transport for London, TfL, licensed the first Defendant, Uber London Ltd, Uber, as a private hire vehicle operator in London. The vehicles operating within the Uber network include licensed private hire vehicles, PHVs, but they also include black cabs. The second Defendant, the Licensed Taxi Drivers' Association, LTDA, is an association representing licensed hackney carriage drivers, the London black cabs; the third Defendant, the Licensed Private Hire Car Association, LPHCA, is an association representing Licensed taxi and private hire vehicle operators. It is an offence under s11 of the Private Hire Vehicles (London) Act 1998 for a licensed PHV to be equipped with a taximeter, that is, a device for calculating the fare to be charged for any journey. The LTDA and LPHCA contend that private hire vehicles operating within the Uber network are equipped with taximeters, in contravention of the criminal law. TfL and Uber disagree.
A private prosecution to test the matter was initiated by the LTDA. Those proceedings were adjourned by Senior District Judge Riddle in November 2014 for the issue, which is one of statutory construction, to be resolved by civil proceedings for a declaration in the Administrative Court. This route became possible when the criminal proceedings were withdrawn in February 2015. All parties are now agreed that a declaration under the CPR 40.20 would be appropriate, notwithstanding that it would resolve an issue which arises in a criminal context. I am prepared to grant a declaration resolving the issue and will give short reasons for that at the end of my judgment on the issue of statutory construction. TfL, as the relevant regulator, seeks a declaration, with the support of Uber, that the Uber network PHVs are not equipped with a taximeter. The LTDA and LPHCA, contend that they are. Although disagreeing with their case, TfL does not regard it as unarguable, and needs the issue resolved.
The legislative provisions
TfL is the regulator for both private hire vehicles and for hackney carriages in London. Licensing of private hire vehicles was introduced in London by the Private Hire Vehicles (London) Act 1998, the Act. This Act provides for the licensing of operators of PHVs, the licensing of the vehicles themselves and for the licensing of the drivers of such vehicles. A private hire booking can only be accepted in London by someone who holds a private hire vehicle operator's licence; section 2. Section 7(2)(a) requires TfL to be satisfied that a vehicle for which a London PHV licence is sought:
"(i) is suitable in type, size and design for use as a private hire vehicle—
(ii) is safe, comfortable and in a suitable mechanical condition for that use; and
(iii) is not of such design and appearance as would lead any person to believe that the vehicle is a London cab…."
Section 8 places obligations on the owners of licensed vehicles. These include the presentation of the vehicle for inspecting and testing as reasonably required, which may be up to three times in a 12 month period.
Section 11 is at the heart of the debate. It provides:
"(1) No vehicle to which a London PHV licence relates shall be equipped with a taximeter.
(2) If such a vehicle is equipped with a taximeter, the owner of that vehicle is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) In this section "taximeter" means a device for calculating the fare to be charged in respect of any journey by reference to the distance travelled or time elapsed since the start of the journey (or a combination of both)."
Section 35 provides that the owner of the vehicle "shall be taken to be the person by whom it is kept." That is presumed to be the registered keeper of the vehicle, that is, the person in whose name the vehicle was registered under the Vehicle Excise and Registration Act 1994.
I note that notwithstanding the variable ways in which the principal offenders for a number of offences under the 1998 Act are described, sometimes drivers, sometimes operators, and sometimes owners, or a combination, the principal offender in relation to section 11 is the owner of a vehicle rather than either the driver or the operator. It is the vehicle which must be equipped with the device in question. It does not expressly prohibit the driver from using such a device if it is not part of the vehicle's equipment. The device must be a device "for calculating fares". I was told and accept that 40% of Uber's drivers have rented their cars. There is nothing in the Act or regulations which specifies how a PHV driver or operator is to calculate the fares, and in particular there is nothing which prohibits them from using the most obvious inputs, which are distance travelled and time taken. There is no obligation on the operator or driver to provide a quote or estimate, if none is asked for. There is no prohibition on the fare being calculated at the end of the journey.
The Act is supplemented by the Private Hire Vehicles London (Operators' Licences Regulation) 2000 SI 2000 3146 which requires particulars of bookings to be entered by the operator in his records including any fare or estimated fare.
PHVs outside London are regulated under the Local Government (Miscellaneous Provisions) Act 1976 in the areas to which its controls have been applied. It is the basis for the provisions of the 1998 Act. By s71, nothing requires a PHV to be equipped with a taximeter, defined as in the 1998 Act, but if it is, the taximeter must be tested and approved by the regulator. The London legislation is notably different in that respect.
TfL regulates hackney carriages, the London black cabs, under the Metropolitan Public Carriage Act 1869, the London Cab and Stage Carriage Act 1907 and the London Cab Order 1934 subject to various amendments. I was referred by Mr Chamberlain QC for TfL and Ms Carss-Frisk QC for Uber to Article 35 of the 1934 Order which requires the owner of every taxi to cause it to be fitted with a taximeter of a type approved by TfL and prescribes the way in which the meter is to be constructed and operated. There have been directives from the EEC/EU dealing with the characteristics of taximeters since 1979, now given effect in the Measuring Instruments (Taximeters) Regulations SI 2006 No. 2304 implementing the most recent EU Directive. These define a taximeter as:
"a device that works together with the signal generator to make a measuring instrument; with the device measuring duration, calculating distance on the basis of a signal delivered by the distance signal generators; and calculating and displaying the fare to be paid for a trip on the basis of the calculated distance or the measured duration of the trip, or of both."
The facts
These are not in dispute. I take them largely from Ms Carss—Frisk QC's Skeleton Argument, which is supported by Uber's evidence. Uber signs up both licensed private hire vehicle drivers and licensed black cab drivers who are then able to carry out the bookings accepted and referred to them by Uber. The booking and customer billing process involves the customer using the Customer App and the Driver using the Driver App; both Apps licensed by an Uber related company. The Driver App has to be installed on the driver's Smartphone, either rented from Uber or the driver's own Smartphone. A driver using his own Smartphone can use it for the range of other purposes for which a Smartphone can be used. Smartphones rented from Uber however are disabled from making calls or sending text messages and allow only access to the Driver App and other relevant applications such as the navigation App. Those who rent the Smartphone are supplied with a phone cradle for the vehicle but are not required to use it. The driver can keep the Smartphone where they want to during the trip. The Smartphone does not have to be visible to the customer at any time. The customer obtains the Customer App by registering certain personal details with Uber and providing a valid credit or debit card number. Once registered, the customer can use the Customer App.
When booking, the customer can choose a particular type of vehicle. The nearest vehicle of that type available for hire will be shown on the Smartphone screen. The customer then indicates precisely where they want to be picked up, and clicks "request" to make the booking. Uber accepts the booking and Uber's servers in the United States locate the nearest available vehicle of the type requested by the customer. The servers then send the accepted booking to the Smartphone of the nearest driver, who has 15 seconds to accept the booking. If he does not accept it, the server sends the booking to the Smartphone of the driver of the next nearest vehicle to the customer. When the driver takes on the booking, he is sent all the relevant details including the location. He can contact the customer via the Driver App but not via the customer's mobile number. The customer is sent also by the Customer App details...
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