![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) 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 High Court (Administrative Court) Decisions >> United Trade Action Group Ltd, R (On the Application Of) v Transport for London (Rev1) [2021] EWHC 3290 (Admin) (06 December 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/3290.html Cite as: [2022] 1 WLR 2043, [2022] WLR 2043, [2022] LLR 313, [2021] EWHC 3290 (Admin), [2022] 2 All ER 797 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Buy ICLR report: [2022] 1 WLR 2043]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
-and-
MR JUSTICE FRASER
____________________
THE QUEEN (on the application of) UNITED TRADE ACTION GROUP LIMITED |
Claimant |
|
- and - |
||
TRANSPORT FOR LONDON |
Defendant |
|
-and- |
||
TRANSOPCO (UK) LIMITED (trading as FREE NOW) |
Interested Party |
|
-And between- |
||
![]() ![]() |
Claimant |
|
-and- |
||
1) TRANSPORT FOR LONDON 2) UNITED TRADE ACTION GROUP LIMITED 3) APP DRIVERS AND COURIERS UNION |
Defendants |
|
-and- |
||
TRANSOPCO (UK) LIMITED (trading as FREE NOW) |
Intervener |
____________________
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: 23rd and 24th November 2021
____________________
Crown Copyright ©
Lord Justice Males and Mr Justice Fraser:
Background
The Operator issue
The 1998 Act
"(1) In this Act—
(a) '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;
(b) 'operator' means a person who makes provision for the invitation or acceptance of, or who accepts, private hire bookings; and
(c) 'operate', in relation to a private hire vehicle, means to make provision for the invitation or acceptance of, or to accept, private hire bookings in relation to the vehicle. …
(3) Any reference in this Act to the operator of a vehicle which is being used as a private hire vehicle is a reference to the operator who accepted the booking for hiring or to whom the vehicle is immediately available, as the case may be.
(4) In this Act 'private hire booking' means a booking for the hire of a private hire vehicle for the purpose of carrying one or more passengers (including a booking to carry out as sub-contractor a private hire booking accepted by another operator).
(5) In this Act 'operating centre' means premises at which private hire bookings are accepted by an operator."
"(1) A London PHV operator ('the first operator') who has in London accepted a private hire booking may not arrange for another operator to provide a vehicle to carry out that booking as sub-contractor unless—
(a) the other operator is a London PHV operator and the sub-contracted booking is accepted at an operating centre in London;
(b) the other operator is licensed under section 55 of the Local Government (Miscellaneous Provisions) Act 1976 (in this Act referred to as 'the 1976 Act') by the council of a district and the sub-contracted booking is accepted in that district; or
(c) the other operator accepts the sub-contracted booking in Scotland. …
(4) It is immaterial for the purposes of subsection (1) whether or not sub-contracting is permitted by the contract between the first operator and the person who made the booking.
(5) For the avoidance of doubt (and subject to any relevant contract terms), a contract of hire between a person who made a private hire booking at an operating centre in London and the London PHV operator who accepted the booking remains in force despite the making of arrangements by that operator for another contractor to provide a vehicle to carry out that booking as sub-contractor."
The 1976 Act
"(1) For the purpose of this Part of this Act every contract for the hire of a private hire vehicle licensed under this Part of this Act shall be deemed to be made with the operator who accepted the booking for that vehicle whether or not he himself provided the vehicle."
Uber
v Aslam
"46. It is an important feature of the context in which, as the employment tribunal found,Uber
London recruits and communicates on a day to day basis with drivers that, as mentioned earlier: (1) it is unlawful for anyone in London to accept a private hire booking unless that person is the holder of a private hire vehicle operator's licence for London; and (2) the only natural or legal person involved in the acceptance of bookings and provision of private hire vehicles booked through the
Uber
app which holds such a licence is
Uber
London. It is reasonable to assume, at least unless the contrary is demonstrated, that the parties intended to comply with the law in the way they dealt with each other.
47.Uber
maintains that the acceptance of private hire bookings by a licensed London PHV operator acting as agent for drivers would comply with the regulatory regime. I am not convinced by this. References in the Private Hire Vehicles (London) Act 1998 to 'acceptance' of a private hire booking are reasonably understood to connote acceptance (personally and not merely for someone else) of a contractual obligation to carry out the booking and provide a vehicle for that purpose. This is implicit, for example, in section 4(2) of the Act quoted at para 31 above. It would in principle be possible for
Uber
London both to accept such an obligation itself and also to contract on behalf of the driver of the vehicle. However, if this were the arrangement made, it would seem hard to avoid the conclusion that the driver, as well as
Uber
London, would be a person who accepts the booking by undertaking a contractual obligation owed directly to the passenger to carry it out. If so, the driver would be in contravention of section 2(1) of the Private Hire Vehicles (London) Act 1998 by accepting a private hire booking without holding a private hire vehicle operator's licence for London. This suggests that the only contractual arrangement compatible with the licensing regime is one whereby
Uber
London as the licensed operator accepts private hire bookings as a principal (only) and, to fulfil its obligation to the passenger, enters into a contract with a transportation provider (be that an individual driver or a firm which in turn provides a driver) who agrees to carry out the booking for
Uber
London.
48. Counsel forUber
sought to resist this interpretation of the legislation on the basis that the legislation was enacted in the context of 'a long-established industry practice' under which PHV operators may merely act as agents for drivers who contract directly with passengers.
Uber
has adduced no evidence, however, of any such established practice which the Private Hire Vehicles (London) Act 1998 may be taken to have been intended to preserve. I will consider later two cases involving minicab firms which were said by counsel for
Uber
to show that the courts have endorsed such an agency model. But it is sufficient to say now that in neither case was any consideration given to whether such an arrangement would comply with the licensing regime. The same is true of cases also relied on by
Uber
(along with a notice published by HMRC in 2002) which are concerned with how VAT applies to the supply of private hire vehicles. That material in my view has no bearing on the issues raised in these proceedings.
49. It is unnecessary, however, to express any concluded view on whether an agency model of operation would be compatible with the PHV licensing regime because there appears to be no factual basis forUber's
contention that
Uber
London acts as an agent for drivers when accepting private hire bookings."
The parties' submissions
Analysis
Consequences
The Plying for Hire issue
The Metropolitan Public Carriage Act 1869
"In this Act 'Stage carriage' shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road, or place within the limits of this Act, and in which the passengers or any of them are charged to pay separate and distinct or at the rate of separate and distinct fares for their respective places and seats therein.
'Hackney carriage' shall mean any carriage for the conveyance of passengers which plies for hire within the limits of this Act, and is neither a stage carriage nor a tramcar."
The cases
"The current (two tier) system relies heavily on the imprecise concept of 'plying for hire', which performs the very important function of defining what taxis alone are allowed to do in undertaking rank and hail work. However, the meaning of the concept is not set out in statute and has become the subject of a body of case law that is not wholly consistent."
"In my judgment 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. If I may so express myself he must have appropriated, or be able at the time to appropriate, a carriage to the soliciting or waiting."
"In the ordinary way, therefore, I should, apart from authority, have felt that it was of the essence of plying for hire that the vehicle in question should be on view, that the owner or driver should expressly or impliedly invite the public to use it, and that the member of the public should be able to use that vehicle if he wanted to. Looked at in that way, it would matter not that the driver said: 'Before you hire my vehicle, you must take a ticket at the office', aliter, if he said: 'You cannot have my vehicle but if you go to the office you will be able to get a vehicle, not necessarily mine."
Reading v Ali
(1) The vehicle in question had no markings indicating that it was for hire; it did not advertise any telephone number to contact in order to hire the car.
(2) The vehicle was parked lawfully, not waiting in a taxi stand or next to a bus stop.
(3) The vehicle was not available to a person hailing it on the street, but could only be booked by means of the Uber
app.
(4) The vehicle was one of a number shown on the Uber
app, where it was visible to any
Uber
customer; it was depicted by an icon showing the outline of a car.
(5) The app did not show any features which might identify a particular driver or a particular car.
"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 defendant's vehicle on theUber
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 the Cogley and Rose cases [Rose v Welbeck Motors Ltd [1962] 1 WLR 1010]. 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 theUber
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 betweenUber
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 byUber
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 defendant without some prior booking, as he only proceeded to the pick-up point after the customer had confirmed the booking and the defendant 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 defendant'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 defendant was waiting in his vehicle until a customer confirmed a booking on theUber
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 defendant 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's case. Unlike in that case, the defendant was not waiting to solicit custom from passing members of the public, but he was waiting for a private hire booking via theUber
app. Putting the example given by Lord Parker CJ in Cogley's case of what would not be plying for hire into the context of the
Uber
app, if approached in the street, the defendant 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'."
The parties' submissions
"You no longer need to see a vehicle to hail it. Your phone will see it for you. It will see round corners; it will see in the dark. You no longer need to hail a taxi by sticking your arm out or shouting; you just press a button and within minutes – seconds – the car will be at your side. The car can be parked up at a petrol station, or down a side street, or just dawdling in traffic, and – ping – it will be there. In other words the app is allowing private hire vehicles to behave like black taxis: to be hailed, to ply for hire in the streets, to do exactly what the law says they are not supposed to do. You have the instant (or virtually instant) accessibility of the black cab, with none of the extra costs entailed by the vehicle regulations or the Knowledge, and the growth of the business is huge."
Analysis
Remedy
Disposal
Note 1 These terms were current at the date when the Free Now licence was renewed. We are told that the Users' Terms are updated from time to time, that the current version was valid from 8th November 2021, and that it contains no equivalent to clause 8.4 of the version current at the date of the licence [Back]