Transport for London v R Uber London Ltd

JurisdictionEngland & Wales
JudgeLord Justice Floyd,Lady Justice Gloster,Lord Justice Patten
Judgment Date25 May 2018
Neutral Citation[2018] EWCA Civ 1213
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2017/0803
Date25 May 2018

[2018] EWCA Civ 1213

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

The Hon. Mr Justice Mitting

[2017] EWHC 435 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Gloster

Vice President of the Court of Appeal, Civil Division

Lord Justice Patten

and

Lord Justice Floyd

Case No: C1/2017/0803

Between:
Transport for London
Appellant
and
(1) The Queen on the Application of Uber London Limited
(2) Sandor Balogh
(3) Nikolay Dimitrov
(4) Imran Khan
Respondents

Mr Martin Chamberlain QC, Mr Tim Johnston and Mr David Heaton (instructed by Transport for London) for the Appellant

Mr Thomas de la Mare QC and Mr Hanif Mussa (instructed by Hogan Lovells) for the Respondents

Hearing date: 20 February 2018

Lady Justice Gloster

Introduction

1

This is an appeal by Transport for London (“TfL” or “the appellant”) against the order of Mitting J (“the judge”) dated 3 March 2017 allowing the judicial review application of Uber London Limited (“Uber”) and others and quashing Regulation 9(11) of the Private Hire Vehicles (London) (Operators' Licences) Regulations 2000 (“the Regulations”).

2

TfL regulates the taxi and private hire trade in London. Its responsibilities include the licensing of private hire vehicles (“PHVs”), drivers and operators.

3

Uber is a PHV operator in London that utilises the Uber app. The second to fourth respondents are PHV drivers who provide passengers with PHV services using the Uber app (but who, in contrast to Uber, are only indirectly affected by this appeal).

4

This appeal concerns whether the judge was correct to conclude that the imposition by TfL of a requirement on PHV operators in London to provide a “listening” service to the passenger for whom a booking had been made, which was to be available at all times during the operator's hours of business (and at all times during a journey), and in respect of any matter (referred to in argument and in this judgment as “the Voice Contact Requirement”) constituted a disproportionate interference with the rights to freedom of establishment of PHV operators, contrary to Articles 49 and 54 of the Treaty on the Functioning of the European Union (“TFEU”).

5

The substantive hearing took place before Mitting J from 28 February 2017 to 2 March 2017 and he gave an oral judgment on 3 March 2017. An order dated 3 March 2017 was drawn up reflecting the judge's decision to allow Uber's and the other claimants' claim for judicial review of the Voice Contact Requirement and to quash Regulation 9(11). The order also dismissed Uber's and the other claimants' claim to challenge an English language requirement (“the English Language Requirement”) imposed by Regulations 3A and 3B of the Private Hire Vehicles (London PHV Driver's Licences) Regulations (“the 2003 Regulations”).

6

On 12 February 2018, Uber's appeal against the part of the judge's order that upheld the English Language Requirement was withdrawn by consent.

Uber's “click-to-call” Function

7

On 16 February 2018, shortly before the hearing of the appeal, Uber emailed its customers informing them that it would be introducing a dedicated support line using the following language:

“Sometimes there's no substitute for talking to a real, live person. That's why we're introducing telephone support. Starting later this year, riders and drivers will be able to access trained support staff 24 hours a day, 7 days a week through a dedicated line.”

8

This court was presented with further evidence in the form of a fifth witness statement from Mr Thomas Elvidge (Uber's General Manager) about Uber's new “click-to-call” function, which will operate in the app for passengers and drivers. Uber has not yet finalised the full details and it will take, in its estimation, approximately six months to implement. It expects to use this time to put in place technology, infrastructure and resources needed to carry this out in a manner that is consistent with its internal target of a live voice response to safety-related issues within two minutes. Mr Elvidge provided further detail at [9f]:

“[w]hile this phone support will not be just for emergencies or safety-related issues, it is likely that for some non-urgent and low-impact issues, the automated voice-based system may redirect callers to our existing support channels of in-app messaging.”

9

As accepted by Uber, while the “click-to-call” function goes some way to fulfilling the Voice Contact Requirement, it is not fully compliant.

Statutory framework governing PHVs

10

I am grateful to counsel for TfL, Mr Martin Chamberlain QC, Mr Tim Johnston and Mr David Heaton, for their clear summary of the relevant law in this area.

11

TfL was established by the Greater London Authority Act 1999 (“GLAA”) (s. 154). Parliament conferred on TfL wide statutory powers to secure the provision, promotion and encouragement of safe, integrated, efficient and economic transport facilities and services to, from and within Greater London (ss. 141, 173 and 181). It can use these powers to impose conditions subject to which licences for operators, vehicles and drivers in the private hire trade can be granted.

12

TfL is obliged to secure the implementation of the Mayor's Transport Strategy (“the Strategy”). The Strategy must “contain the Mayor's proposals for the provision of transport which is accessible to persons with mobility problems” (s. 142(2)). Its goals include:

i) improving the safety and security of all Londoners, including “ensur[ing] that journeys by taxi and private hire vehicle (PHV) are as safe as possible for passengers and drivers”;

ii) improving transport opportunities for all Londoners, which includes: “improving accessibility” and in particular “overcoming the barriers that exist for some users”, especially disabled Londoners, older and young people; “providing better information and communications”; and “improving the actual and perceived safety and security of transport services and travel”; and

iii) enhancing quality of life for all Londoners, including “improving journey experience”.

13

The Private Hire Vehicles (London) Act 1998 (“the 1998 Act”) establishes a three-part licensing regime that governs private hire operators (ss. 2–5), vehicles (ss. 6–11) and PHV drivers (ss. 12–14) in London. TfL's powers include suspending or revoking a licence (s. 16).

14

Section 2(1) of the 1998 Act provides that PHV bookings have to come through an operator:

“No person shall in London make provision for the invitation or acceptance of, or accept, private hire bookings unless he is the holder of a private hire vehicle operator's licence for London.”

15

Section 2(2) of the 1998 Act makes it an offence to breach that provision.

16

Section 32 of the 1998 Act provides the mechanism by which TfL may prescribe conditions subject to which some licences may be granted:

“(1) [TfL] may make regulations for any purpose for which regulations may be made under this Act (other than section 37) or for prescribing anything which falls to be prescribed under any provision of this Act (other than section 37).

(2) Regulations under this Act may –

(a) make different provision for different cases;

(b) provide for exemptions from any provision of the regulations; and

(c) contain incidental, consequential, transitional and supplemental provision.”

The consultation process

17

From March 2015 to February 2016, TfL conducted a comprehensive three-stage review and consultation on the licensing regime that governs the private hire sector. Mr Chamberlain QC, on behalf of TfL, took the court through this process in some detail but I do not consider it is necessary to repeat that process here. It is clear that TfL engaged in a wide, detailed consultation and gathered responses from a range of customers. It used these results to refine its proposals.

18

Through this consultation, TfL identified public safety, equality and passenger convenience benefits in relation to the Voice Contact Requirement. During the process, it made one significant change to this particular proposal: the omission of the requirement that an operator must have a fixed landline telephone available for passengers to ring at all times, including for bookings. After the measure was first made, TfL also revised it to omit the requirement for contact to be at the London operating centre.

19

It is clear that TfL considered the costs of compliance with the Voice Contact Requirement and the potentially disproportionate impact on small operators including single driver-operators.

20

Following the consultation, TfL identified 19 reforms that would improve customer safety, equality of access to PHV services and customer care (amongst other objectives). It prescribed a number of new conditions of an operator's licence in exercise of its powers under s. 32 and under s. 3(4). Three of these new conditions were the subject of the judicial review proceedings before the judge.

21

The first was the English Language Requirement. This is a requirement that drivers demonstrate proficiency in the English Language to level B1 on the Common European Framework of Reference in speaking, listening, reading and writing. As I have already said, on 12 February 2018, Uber withdrew its appeal in relation to the judge's dismissal of its challenge to this requirement.

22

The second was the Voice Contact Requirement. This is a requirement that:

“at all times during the operator's hours of business and at all times during a journey, the operator shall ensure that the passenger for whom the booking was made is able to speak to a person at the operating centre or other premises with a fixed address in London or elsewhere (whether inside or outside the United Kingdom) which has been notified to the licensing authority in writing if the passenger wants to make a complaint or...

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