![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> United Trade Action Group Ltd, R (On the Application Of) v Transport for London & Anor [2022] EWCA Civ 1026 (22 July 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/1026.html Cite as: [2022] RTR 32, [2023] 2 All ER 98, [2022] WLR(D) 323, [2023] WLR 367, [2023] 1 WLR 367, [2022] EWCA Civ 1026 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[View ICLR summary: [2022] WLR(D) 323]
[Buy ICLR report: [2023] 1 WLR 367]
[Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT (LORD JUSTICE MALES & MR JUSTICE FRASER)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE SINGH
and
LORD JUSTICE PHILLIPS
____________________
THE QUEEN ON THE APPLICATION OF UNITED TRADE ACTION GROUP LIMITED |
Appellant |
|
- and - |
||
(1) ![]() ![]() (2) TRANSOPCO UK LIMITED |
Respondents |
____________________
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
____________________
Crown Copyright ©
Lord Justice Bean :
"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."
"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…"
"(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 fromTransport for London."
The 1998 Act
"a person who makes provision for the invitation or acceptance of, or who accepts, private hire bookings"
"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"
Cogley v Sherwood
"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 come before the court on case stated, and the question whether a particular vehicle is plying for hire, being largely one of degree and therefore of fact, has to be approached by considering whether there was evidence to support the justices' finding."
"I am fortified in suggesting a test of exhibition by several considerations. The first is that there is no decided case where a hackney carriage was held to be plying for hire where it was not exhibited so as to be visible to would-be customers…. Second, in section 7, the words are "If any unlicensed… carriage plies for hire," thus indicating that one is to look and see what the vehicle itself is doing, albeit under human agency. I find it very difficult to say that a vehicle which is not exhibited in some way is a vehicle plying for hire." [emphasis added]
"But for authority, I should have thought that a vehicle plies for hire if the person in control of the vehicle exhibits the vehicle and makes a present open offer to the public, an offer which can be accepted, for example, by the member of the public stepping into the vehicle."
"Here I think it is clear that the cars in question were not exhibited in this sense of the word. As I have said, the only cars that were on view were at one terminal and to the ordinary member of the public they did not appear to be for hire; they appeared merely to be ordinary private cars with private chauffeurs"
"there is certainly no evidence that at either standing there was any notice that the cars, or any of them, were for hire."… "I do not find it possible to say that a hackney carriage not on view to the public is, when not so on view, plying for hire, particularly when at the same time there is no indication in or around it that it ever does such work."
"That the vehicle in the present case was on exhibition in the sense that it was on view to the public is undoubted. The real question, as it seems to me, is whether a prima facie case was made out that the vehicle in question was impliedly inviting the public to use it. Whether in any case such a prima facie case is made out must, of course, depend upon the exact circumstances, and I certainly do not intend anything I say in this judgment to apply to any facts other than those here. What are the facts here? One starts with the fact that this vehicle was of a distinctive appearance, regarding its colour, its inscriptions, its equipment in the form of radio communication, and its type. Secondly — and this is equally important — it was standing with the driver at the steering wheel for some fifty minutes in a public place on public view and at a place where buses turned round: in other words, at a place where many members of the public would be getting off the buses and where many members of the public would forgather to board the buses. Moreover, when requested to leave, the driver drove away only to return immediately almost to the same place."
He expressed the test as being that the vehicle "should while on view expressly or impliedly solicit custom, in the sense of inviting the public to use it."
Reading BC v Ali
"(1) As a matter of law did the display of the respondent's vehicle as the outline of a car on the smartphone Apps of potential passengers constitute an invitation to book the respondent's vehicle?
(2) As a matter of law did the display of the respondent's vehicle as the outline of a car on the smartphone Apps of potential passengers constitute an invitation to book an Uber vehicle in the vicinity, even if it were not the respondent's?
(3) If the answer to questions (1) or (2) is yes:
(a) Did the Chief Magistrate err in law in holding it to be relevant to whether the respondent was plying for hire, that his vehicle had no distinctive markings, was not at a stand and was not available on the street to pick up passengers in the traditional way? and/or
(b) Did the Chief Magistrate err in law in holding it to be a relevant consideration that the whole of the transaction between the passenger and the driver, and the passenger and the licensed operator, was conducted via a smartphone App, where the booking process starts, is recorded and the fare estimated?
(4) On the facts agreed and found by her, did she err in law in finding that the prosecution had not proved that the respondent was plying for hire?"
This court answered (1) No, (2) No (3) not applicable (4) No.
"33. In my judgment, there was no unlawful plying for hire in this case for a number of reasons. First, the mere depiction of the respondent's vehicle on the Uber App, without either the vehicle or the driver being specifically identified or the customer using the App being able to select that vehicle, is insufficient to establish exhibition of the vehicle in the sense in which that phrase is used by Lord Parker CJ in formulating the two stage test for plying for hire in Cogley v Sherwood and Rose v Welbeck. That requires not just exhibition of the vehicle but its exhibition expressly or implicitly soliciting custom, inviting members of the public to hire the vehicle.
34. It seems to me that depiction of the vehicle on the App does not involve any exhibition of that kind, but is for the assistance of the Uber customer using the App, who can see that there are vehicles in the vicinity of the type he or she wishes to hire. I agree with Mr Kolvin QC that the App is simply the use of modern technology to effect a similar transaction to those which have been carried out by PHV operators over the telephone for many years. If I ring a minicab firm and ask for a car to come to my house within five minutes and the operator says "I've got five cars round the corner from you. One of them will be with you in five minutes," there is nothing in that transaction which amounts to plying for hire. As a matter of principle, I do not consider that the position should be different because the use of internet technology avoids the need for the phone call.
35. Second, it does not seem to me that the position is different because, as between Uber and the driver, the latter is a principal and Uber is an agent. Whether this agency analysis is correct has not been finally decided. However, like the Chief Magistrate and contrary to Mr Holland's submissions, I do not consider that it has any bearing on the issue in this case……
…..
37. Whatever the correct contractual analysis, in my judgment it has no impact on the question we have to decide. On any view, there is a pre-booking by the customer, which is recorded by Uber as PHV operator, before the specific vehicle which will perform the job is identified. This is all in accordance with the transaction being PHV business, not unlawful plying for hire. There was no soliciting by the respondent without some prior booking, as he only proceeded to the pick-up point after the customer had confirmed the booking and the respondent as driver had accepted the job. Whenever any contract was concluded, I have little doubt that this was not plying for hire, because on the facts found in this case, the customer could not use the respondent's car without making a prior booking through the App. As with the charabanc in Sales v Lake, the customer would make a booking to be picked up at a pre-arranged point. On the evidence in this case, all the Uber App did was to facilitate that booking.
38. This leads on to the third reason why this was not plying for hire, which is the character of the waiting. The respondent was waiting in his vehicle until a customer confirmed a booking on the Uber App and he accepted that booking. There was no question of his soliciting custom during the period of waiting. His vehicle did not advertise itself as available for hire nor did he do anything which would have suggested to the public that he was available for hire. Indeed, as the Chief Magistrate found, if a member of the public had approached the vehicle and sought a ride, the respondent would have refused to take such a passenger off the street without a prior booking through the Uber App.
39. The waiting here was of a completely different character to that in Rose v Welbeck. Unlike in that case, the respondent was not waiting to solicit custom from passing members of the public, but he was waiting for a private hire booking via the Uber App. Putting the example given by Lord Parker CJ in Cogley v Sherwood of what would not be plying for hire into the context of the Uber App, if approached in the street, the respondent would have been saying: 'You cannot have my vehicle, but if you register for the Uber App and make a booking on it, you will be able to get a vehicle, not necessarily mine."
i) Depiction of available vehicles in the form used by the App is not "exhibition". The App simply uses modern technology as a substitute for the operator of a traditional minicab firm, who tell customers on the phone that (eg) we have 5 minicabs in your area and could get you one in 5 minutes.
ii) The driver using the App is not soliciting custom during the period of waiting; there is nothing on the vehicle advertising that it is for hire and the driver will not allow passengers simply to hail the vehicle and step into it.
The Appellants' submissions
"…a carriage cannot accurately be said to ply for hire unless two conditions are satisfied. (1) There must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them, and (2) the owner or person in control who is engaged in or authorizes the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers."
a) In Cavill v. Amos (1900) 64 J.P. 309, Channell J. said that: "In ordinary cases, in order that there should be a plying for hire the carriage itself should be exhibited. It is, however, possible that a man might ply for hire with a carriage without exhibiting it, by going round touting for customers".
b) Griffin v Grey Coaches (1928) 45 TLR 109 concerned stage carriages for which there were extensive advertisements at an office in Brighton. The times of departure of charabancs were advertised, and it was stated that tickets could be purchased at the office up to 10 minutes before the advertised time, but not afterwards. At the time of the purchase of tickets from the office there was no charabanc in the garage, one not arriving to take passengers until 20 minutes later. Lord Hewart C.J., finding that there had been a plying for hire, said of the facts in the case [at 111]: "What is the real difference, apart from mere accidental difference, between that state of affairs and the state of affairs which exists where the driver of the coach, by gesture and words, invites the members of the public to board, and travel upon, a vehicle which they can see? It may be, as has been said, that the particular coach was not appropriated to the particular journey. It was waiting to be appropriated; it was in a proper and convenient place for that purpose." It is clear from this that the vehicle itself did not need to be visible to the customer to be plying for hire.
c) In Gilbert v McKay [1946] 1 All ER 458, Lord Goddard C.J. held that: "It is quite possible that there can be a plying for hire where [the vehicle] is not exhibited, but where it is being exhibited is a most important fact", and went on: "There may be cases in which, although the cars were standing in some yard and not actually seen by the public, it might be possible to find that there was a hiring".
"Notwithstanding the aforementioned authorities, Lord Parker C.J. proceeded to opine in Cogley v Sherwood at 326 that "it is of the essence of plying for hire that a carriage should be exhibited". There is thus an apparent conflict in the authorities on this point."
a) First, the Court in Reading BC v Ali failed to recognise that Cogley v Sherwood did not provide an exhaustive definition of the term "plying for hire". Nor did the Court properly recognise the effect of the previous decisions, in particular Sales v Lake. The Court in Cogley v Sherwood did not purport to depart from Sales v Lake and its decision should be read as being consistent with that decision. To the extent that there is any conflict between the decisions in Sales v Lake and Cogley v Sherwood, it is the definition in the former that is to be preferred; it better encapsulates the purpose of the legislation. The narrow approach taken by the court in Reading BC v Ali ignores, for example, the fact that touting has always been a form of plying for hire (see, for example, Cavill v. Amos).
b) Second, the Court in Reading BC v Ali failed to identify the mischief targeted by the use of the phrase 'plying for hire' in the 1869 Act. The purpose of the legislation is to stop vehicles, other than licensed hackney carriages, from trying to get customers in a public place, by driving around or waiting in a likely place. So called 'ride hailing' apps (as they are commonly known) fundamentally conflict with that statutory purpose. They encourage drivers to drive around waiting for an electronic 'hail', resulting in significantly increased numbers of vehicles driving the streets looking for passengers. Those vehicles do not meet the stringent regulatory standards demanded of hackney carriages. They make U-turns to reach passengers who have electronically 'hailed' them. Their drivers do not have the intimate knowledge of London's streets required to pass The Knowledge. They are not required to be wheelchair accessible etc.
c) Third, the Court in Reading BC v Ali wrongly regarded the contractual analysis as irrelevant (see para. 37). As Sales v Lake makes clear, an essential element of the test for determining whether or not a vehicle is plying for hire is that there is solicitation before any contract for hire is made.
d) Finally, vehicles working from the Free Now App are "exhibited", giving that word its natural and ordinary meaning, and indeed using it in the sense it was used in Cogley v Sherwood. The very purpose of showing or exhibiting vehicles on the App is to solicit custom. A customer seeking a vehicle will decide which app to use based, at least in part, on whether or not cars are exhibited nearby that will respond to the 'hail'. The effect of this is to encourage drivers to drive to and cruise the streets in popular and busy areas in search of a fare.
The Respondents' submissions
(1) Passenger opens app and sees a display of (say) 5 vehicles in the area;
(2) Passenger click "order ride now". At this stage Transopco, as operator, has accepted the booking pursuant to s 2 of the 1998 Act;
(3) Transopco send the job to drivers in the area to see whether one of them would like to take it.
(4) If a driver does accept the job, then and only then are the vehicle and driver identified to the passenger.
Discussion
Costs
Lord Justice Singh
"But for authority, I should have thought that a vehicle plies for hire if the person in control of the vehicle exhibits the vehicle and makes a present open offer to the public, an offer which can be accepted, for example, by the member of the public stepping into the vehicle."
Lord Justice Phillips