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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Uber Britannia Ltd v Sefton Metropolitan Borough Council [2023] EWHC 1975 (KB) (28 July 2023) URL: https://www.bailii.org/ew/cases/EWHC/KB/2023/1975.html Cite as: [2024] WLR 1350, [2024] 1 WLR 1350, [2023] EWHC 1975 (KB), [2023] WLR(D) 339 |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
![]() ![]() ![]() ![]() |
Claimant |
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- and - |
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![]() ![]() METROPOLITAN BOROUGH COUNCIL |
Defendant |
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(1) BOLT SERVICES UK LIMITED (2) THE APP DRIVERS AND COURIERS UNION (3) ![]() ![]() (4) D.E.L.T.A MERSEYSIDE LIMITED |
Intervenors |
____________________
Mr Charles Holland (instructed by Sefton
MBC) for the Defendant
The First Intervenor neither appeared nor was represented.
Ms Claire McCann (instructed by ITN Solicitors) for the Second Intervenor
Mr Simon Cheetham KC (instructed by Veezu
Holdings
Ltd)
for the Third Intervenor
Mr Gerald Gouriet KC (instructed by Aaron & Partners) for the Fourth Intervenor
Hearing dates: 3 and 4 November 2022
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
MRS JUSTICE FOSTER DBE :
THE PARTIES AND THE CLAIM
"In order to operate lawfully under Part II Local Government (Miscellaneous Provisions) Act 1976 is a licensed operator who accepts a booking from a passenger required to enter as principal into a contractual obligation with the passenger to provide the journey which is the subject of the booking?"
(a) The First Intervenor, Bolt, offers ride hailing services. They filed an Acknowledgement of Service indicating agreement with the position of the Claimant and seeking the same Order for a declaration but took no part in the hearing.
(b) The Second Intervenor, ADCU, supporting UBL, is an accredited union, and described as the leading trade union representative body for private-hire drivers in London and the United Kingdom. ADCU states its union is primarily made up of low paid Black, Asian and other minority ethnic groups and thevast
majority work for
Uber
or other similar app-based operators in London.
(c) The Third Intervenor,Veezu,
holds 32 private-hire operator licences across 22 local licensing authorities and is understood to be the largest multi-region private-hire operator outside London. It described itself as trading in a "traditional private-hire" operating manner in contrast to UBL, which
Veezu
describe as a "ride-hailer", and where bookings are restricted to being made on a smartphone application, for journeys on demand.
Veezu
do invite and accept bookings for journeys on demand, or on a pre-booked basis from the public by telephone, by walk-in trade and, as to the majority, through a smartphone app
via
a website. Passengers may pay for their fares in cash directly to the licensed driver as well as by card to the driver or to the private-hire operator on the mobile app.
Veezu
notes UBL accept payment only
via
the mobile app.
Veezu
say they speak for a number of private-hire operators in towns and cities in regions across the UK and that the majority of such operators support their submissions on this application.
(d) Delta, the Fourth Intervenor, aligned against UBL, describe themselves as one of the largest private-hire operators in the UK and the leading operator in Merseyside. They take 130,000 bookings each week, and have around 1,320 drivers. They have consulted other named private hire operators, who represent the majority of private-hire operators inSefton
in terms of market share and, in effect, they act as their
voice
in these proceedings.
ISSUE
FACTUAL CONTEXT
"11. In Uber
London Limited
v
Transport for London (and others) [2021] EWHC 3290 (Admin) the Divisional Court considered the question whether, in order to operate lawfully under the 1998 Act, a licensed operator who accepts a booking from a passenger is required to enter as principal into a contractual obligation with the passenger to provide the journey which is the subject of the booking. It was asked to do so by ULL in the light of obiter statements of Lord Leggatt in
Uber
BV and others
v
Aslam and others [2021] UKSC 5, at [47] and [48].
12. The Divisional Court answered the question in the affirmative. It held that to interpret the 1998 Act as including such a requirement "gives effect to the statutory purpose of ensuring public safety" [30]. It granted a declaration in the following terms:
"In order to operate lawfully under the Private HireVehicles
(London) Act 1998 a licensed operator who accepts a booking from a passenger is required to enter as principal into a contractual obligation with the passenger to provide the journey which is the subject of the booking."
13. The Divisional Court noted that "an operator which does not undertake the required contractual obligation is not operating lawfully" [36]. Following the judgment, Transport for London issued a notice requiring London private hire vehicle
operators to ensure that their operating models comply with the law, as held by the Divisional Court.
14. Although the Divisional Court's judgment is concerned with the proper construction of the 1998 Act, that Act is modelled on the 1976 Act and, in the course of its judgment, the Court referred to the 1976 Act as supporting the conclusion to which it came.
15. The Claimant considers that the same question arises under the 1976 Act "
LICENSING FRAMEWORK
"
in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle"
and a "private hire vehicle"
means:
".. a motor vehicle
constructed or adapted to seat fewer than nine passengers, other than a hackney carriage or public service
vehicle
or a London cab or tramcar, which is provided for hire with the services of a driver for the purpose of carrying passengers".
"(1) Except as authorised by this part of this Act
(d) no person shall in a controlled district operate any vehicle
as a private hire
vehicle
without having a current licence under section 55 of this Act;
(e) no person licensed under the said section 55 shall in a controlled district operate any vehicle
as a private hire
vehicle
-
(i) if for the vehicle
a current licence under the said section 48 is not in force; or
(ii) if the driver does not have a current licence under the said section 51.
(2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence."
"(1) Subject to the provisions of this Part of this Act, a district council shall, on receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles
grant to that person an operator's licence:
Provided that a district council shall not grant a licence unless they are satisfied -
(a) that the applicant is a fit and proper person to hold an operator's licence;
"
"(1) A person licensed under section 55 who has in a controlled district accepted a booking for a private hire vehicle
may arrange for another person to provide a
vehicle
to carry out the booking if
(a) the other person is licensed under section 55 in respect of the same controlled district and the sub-contracted booking is accepted in that district;
(b) the other person is licensed under section 55 in respect of another controlled district and the sub-contracted booking is accepted in that district;
(c) the other person is a London PHV operator and the subcontracted booking is accepted at an operating centre in London; or
(d) the other person accepts the sub-contracted booking in Scotland.
(2) It is immaterial for the purposes of subsection (1) whether or not subcontracting is permitted by the contract between the person licensed under section 55 who accepted the booking and the person who made the booking.
...
(6) In this section, "London PHV operator" and "operating centre" have the same meaning as in the Private Hire Vehicles
(London) Act 1998."
"(1) In this section
"the first operator" means a person licensed under section 55 who has in a controlled district accepted a booking for a private hire vehicle
and then made arrangements for another person to provide a
vehicle
to carry out the booking in accordance with section 55A(1);
"the second operator" means the person with whom the first operator made the arrangements (and, accordingly, the person who accepted the sub-contracted booking).
(2) The first operator is not to be treated for the purposes of section 46(1)(e) as operating a private hire vehicle
by
virtue
of having invited or accepted the booking.
(3) The first operator is guilty of an offence if
(a) the second operator is a person mentioned in section 55A(1)(a) or (b),
(b) the second operator contravenes section 46(1)(e) in respect of the sub- contracted booking, and
(c) the first operator knew that the second operator would contravene section 46(1)(e) in respect of the booking."
"(1) For the purposes 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.
(2) Every person to whom a licence in force under section 55 of this Act has been granted by a district council shall keep a record in such form as the council may, by condition attached to the grant of the licence, prescribe and shall enter therein, before the commencement of each journey, such particulars of every booking of a private hire vehicle
invited or accepted by him, whether by accepting the same from the hirer or by undertaking it at the request of another operator, as the district council may by condition prescribe and shall produce such record on request to any authorised officer of the council or to any constable for inspection.
(3) Every person to whom a licence in force under section 55 of this Act has been granted by a district council shall keep such records as the council may, by conditions attached to the grant of the licence, prescribe of the particulars of any private hire vehicle
operated by him and shall produce the same on request to any authorised officer of the council or to any constable for inspection.
(5) If any person without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence."
"(1) Nothing in this Part of this Act shall
(a) apply to a vehicle
used for bringing passengers or goods within a controlled district in pursuance of a contract for the hire of the
vehicle
made outside the district if the
vehicle
is not made available for hire within the district; A "private hire
vehicle"
under section 80(1), is a
vehicle
provided for hire "with the services of a driver"."
"a person who makes provision for the invitation or acceptance of, or who accepts, private hire bookings".
"(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."
CASELAW
i) A private hire vehicle
requires three licences to be in existence, sometimes referred to as "the trinity of requirements" (paragraph [5]);
ii) The object of the 1976 Act is protection of the public, that is of the passenger (paragraph [6] citing St Albans District Council v
Taylor [1991] RTR 400, 403AB, per Russell LJ.)
iii) The licensing authority (in that case all licences were required to be issued by a single authority) controls the level and nature of record keeping required of the operator (paragraph [7]);
iv) The term "operate" is a term of art and focusses on the antecedent arrangements under which the vehicle
was provided, not the provision of the
vehicle
itself (paragraph [8], citing Dyson J in Bromsgrove District Council
v
Powers (unreported) 16 July 1998);
v)
Who accepts the booking is important because under section 56(1) every contract for the hire of a private hire
vehicle
is deemed to be made with the operator who accepts the booking for that
vehicle
whether or not he himself provides the
vehicle
(paragraph [11]).
"
by virtue
of Part II of the 1976 Act a
vehicle
may not work as a private hire
vehicle
in a controlled district unless there are in existence three licences.
(i) An operator's licence issued under section 55. Section 55 provides that a local authority shall, on receipt of an application for the grant of a licence to operate private hire vehicles,
grant to that person a licence unless it is satisfied that that person is not a fit and proper person and, if the applicant is an individual, he has not been disqualified from driving. The local authority may attach such conditions to the licence as it considers reasonably necessary: section 55(3).
(ii) A vehicle
licence issued under section 48, which sets out matters about which the local authority must be satisfied before issuing such a licence, such as the suitability, safety and comfort of the
vehicle.
(iii) A driver's licence issued under section 51, which again sets out matters about which the local authority must be satisfied, such as the fitness of the person to hold such a licence.
6 The underlying purpose of this regulatory regime is "to provide protection to members of the public who wish to be conveyed as passengers in a motor car provided by a private hire organisation with a driver": St Albans District Council v
Taylor [1991] RTR 400, 403AB, per Russell LJ. It is well established that, to enable coherent regulation and enforcement, in respect of any hiring, all three licences must be issued by the same local authority (Dittah
v
Birmingham City Council [1993] RTR 356), something which has been called "the trinity of requirements".
7 Again as part of the regulatory and enforcement scheme, section 56 requires the holder of any section 55 operator's licence to keep such records as the local authority
"may, by condition attached to the grant of the licence, prescribe and shall enter therein, before the commencement of each journey, such particulars of every booking of a private hirevehicle
invited or accepted by him, whether by accepting the same from the hirer or by undertaking it at the request of another operator, as the [local authority] may prescribe" (section 56(2));
as well as particulars of any private hire vehicle
he operates: section 56(3). The licensing authority therefore controls the level and nature of the record keeping of any operator. An operator is required to produce such records on request to any authorised officer of the local authority. A breach of the requirements of section 56 is a criminal offence: section 56(5).
8 "Operate", for the purposes of section 55, has been considered by this court in a series of cases, including Britain v
ABC Cabs (Camberley)
Ltd
[1981] RTR 395,Windsor and Maidenhead Royal Borough Council
v
Khan [1994] RTR 87, Adur District Council
v
Fry [1997] RTR 257 and Bromsgrove District Council
v
Powers (unreported) 16 July 1998 (Dyson J). These firmly establish that, in this context, "operate" does not have its common meaning. Rather, it is a term of art defined strictly by section 80(1) as meaning: "in the course of business to make provision for the invitation or acceptance of bookings for a private hire
vehicle
. . ." Therefore, as Dyson J said in the Powers case:
"the definition of the word "operate" focuses on the arrangements pursuant to which a private hire vehicle
is provided and not the provision of the
vehicle
itself . . . the word "operate" is not to be equated with, or taken as including, the providing of the
vehicle,
but refers to the antecedent arrangements."
9 Section 46(1)(e) provides:
"no person licensed under the said section 55 shall in a controlled district operate any vehicle
as a private hire
vehicle-(i)
if for the
vehicle
a current licence under section 48 is not in force; or (ii) if the driver does not have a current licence under section 51."
And, if any anyone knowingly contravenes that provision, he is guilty of an
offence."
11 Who accepts the booking is, however, important; because, by section 56(1), for the purposes of Part II of the 1976 Act, every contract for the hire of a private hire vehicle
is deemed to be made with the operator who accepts the booking for that
vehicle
whether or not he himself provides the
vehicle."
[Emphasis added].
"Any organization (a) running an enterprise at the heart of which is the function of carrying people in motor cars from where they are to where they want to go and (b) operating in part through a company discharging the regulated responsibilities of a PHV operator but (c) requiring drivers and passengers to agree as a matter of contract that it does not provide transportation services (through UBV or ULL) and (d) resorting in its documentation to fictions, twisted language and even brand new terminology, merits, we think a degree of scepticism."
"87. The Appellant's submissions repeatedly referred to the regulatory regime as if it were irrelevant or of trivial importance. We disagree. In our view
the statutory position strongly reinforces the correctness of the ET's conclusion that the drivers were providing services to
Uber
(specifically to ULL), not the other way round.
88. ULL is the PHV operator for the purposes of the PHVA 1998 and the regulations made under it. It is ULL which has to satisfy the licensing authority for the purposes of section 3(3)(a) of the Act that it is a fit and proper person to hold a PHV licence. It is ULL which alone can accept bookings, and ULL which is required by the PHV Regulations to provide an estimate of the fare on request. For ULL to be stating to its statutory regulator that it is operating a private hire vehicle
service in London, and is a fit and proper person to do so, while at the same time arguing in this litigation that it is merely an affiliate of a Dutch registered company which licenses tens of thousands of proprietors of small businesses to use its software, contributes to the air of contrivance and artificiality which pervades
Uber's
case.
89. Consistently with what we have said about the reality being reinforced by the regulatory framework, it is of interest to note that section 56 of the Local Government (Miscellaneous Provisions) Act 1976 expressly provides for the hire of a licensed private hire vehicle
to be deemed to be made with the operator who accepted the booking, whether or not he himself provided the
vehicle.
For this purpose, it is irrelevant that the Act only applies outside London."
[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 s 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 s 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."
[Emphasis added].
"28. In our judgment the 1998 Act plainly contemplates that acceptance of a booking by the operator will create a contract between the operator and the passenger and, furthermore, that this will be a contract by which the operator undertakes an obligation as principal to provide the transportation service, that is to say to provide avehicle
and driver to convey the passenger to the agreed destination. That is what is meant by a "private hire booking". The language of section 4, "private hire
vehicles
and drivers which are available to him for carrying out [a] booking accepted by him" indicates that it is the operator which carries out the booking (i.e. performs the contractual obligation to convey the passenger) and that it does so by means of the licensed
vehicles
and drivers available to it."
[Emphasis added].
OTHER CONTEXT
SUBMISSIONS
"The modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose."
UBL submit that the particular purpose of the sections under consideration is public protection and the imposition of a contract between the operator as principal and the passenger clearly serves this purpose.
"It is also common ground that there is no prohibition on an operator subcontracting the providing of a vehicle
to another operator. Such an arrangement is explicitly acknowledged and sanctioned by Section 56(1) and (2)."
"60. In the new section 55A, subsection (1) allows an operator who accepts a booking for a private hire vehicle
to sub-contract it to four types of operator - (a) an operator licensed and located in the same district as the initial operator; ...b) an operator licensed and located in a different district from the initial operator (a different district but one which is still governed by the same legislation in practice this means a district in England or Wales but outside London or Plymouth); (c) an operator licensed and located in London; or (d) a person located in Scotland. Scenario (a) constitutes a re-statement of existing law it is already lawful for a private hire
vehicle
operator to sub-contract a booking to another operator licensed in the same licensing district. Scenario (a) has been included because it is not currently expressly stated on the face of the Act and stating all four scenarios where an operator can sub-contract a booking in this amendment makes the law clearer and easier to follow."
"If
the 1976 Act does require a licensed operator who accepts a booking from a passenger to enter as principal into a contractual obligation with the passenger to provide that journey, any operator who does not do so will be operating unlawfully: Uber
London Limited at [35-37]. It would be incumbent on a licensing authority to take steps to see that licensed operators' terms and conditions are compliant and, failing compliance, the authority could take enforcement action (ibid, [37]). Most obviously, this would be by attaching conditions to a licensed operator's licence under section 55(3)
By contrast, if there is no such requirement under the 1976 Act then the law will be out of step with the 1998 Act, with the outcome that London passengers enjoy greater protection than those outside London."
i) The clear language of section 56(1) of the 1976 Act supports such a construction whether read alone or in conjunction with the other provisions of Part II of the Act.
ii) The public safety purpose of the licensing regime in Part II of the 1976 Act compels a reading which gives best effect to that purpose.
iii) This reading places the regulatory and contractual burden on the party or parties who can best promote the safety of the public namely, the licensing authority (i.e. local councils) and the operator, not drivers who are (unless they are driver-operators) subordinate to operators and not in nearly as good a position to promote public safety.
iv) The points raised in opposition do not grapple with the statutory construction issues and centre on practical but illusory problems which are not properly evidenced in any event (nor have they transpired since the judgment in Divisional Court in the ULL v
TfL case (in December 2021)). Further, the terms of the written agreement may well not assist with determining the reality of the relationship between the parties (per Autoclenz
Ltd
v
Belcher [2011] UKSC 41; [2011] ICR 1157).
CONSIDERATION
(i) Construction of the 1976 Act
(i) The central arrangement under the 1976 statute is between the operator and the hirer or passenger. A person who "operates" under the 1976 Act is a person who in the course of business makes provision for the invitation or acceptance of bookings for a private hirevehicle:
that is to say a
vehicle
with the services of a driver, [for fewer than nine people and not a hackney carriage or public service
vehicle
etc.]. The description suggests the central statutory regulated arrangement is between the provider of this compendiously described service the provision of a
vehicle
complete with the services of a driver and the hirer. The function of the driver is comprehended in what is supplied by the operator. The 1998 Act makes even clearer the centrality of this role by its opening sections.
(ii) The notion of acceptance is necessarily included (see below) and the preliminary arrangement between accepter of the booking and the hirer/passenger remains the primary regulatory relationship even when another provides thevehicle
with a driver. Section 56(1) makes clear that one remains the operator under the Act whether one provides the
vehicle
oneself, or another does so. This derives from the wording " every contract for the hire of a private-hire
vehicle
licensed under the 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".
Thus, the term "operator" attaches still, under the Act, even where another person, who did not accept the booking, is the provider of the
vehicle
with the driver (although they might be a person who also requires an operator's licence). The 1998 Act makes explicit the role of subcontractor and the imposition upon the acting operator of the central regulatory relationship with the passenger/hirer, explained as "for the avoidance of doubt" in section 5(5) of that Act.
(iii) Section 56(1) contains a deeming provision which operates in my judgement to make clear that this analysis is effective for those cases where an operator passes a passenger/hirer on to another operator which operation may be quite unknown to the passenger. It maintains, for those cases, the relationship of the first accepting operator as principal with that passenger. There is no reason on the wording to limit this to the first sub-contractual situation only, as suggested by UBL: the contract of hire should always be with the operator who has interacted with the hirer/passenger, since he can control the booking, the driver under the Act is, as submitted by ADCU, subordinate to the operator, working (unlike the hackney cab who plies for hire), entirely through the operator. The Act deems the contractual relationship, essentially, for the avoidance of doubt (wording used in the 1998 Act in section 5(5)).
(iv) Section 56(2) shows that an operator may trade by inviting or accepting bookings from a "hirer" (i.e. directly with the customer) or may provide such a journey to the hirer because requested to by another operator. The wording " particulars of every booking of a private-hirevehicle
invited or accepted by him, whether by accepting the same from the hirer or by undertaking it at the request of another operator " shows that where a person is an operator in whatever capacity, (i.e. accepter of the booking or the undertaker of it for another operator), the obligations of record-keeping by the licensed operator are imposed. The materials must, when required, be submitted to the licensing authority, and failure is subject to criminal sanction. This is reflected in London in the 1998 Act under section 4(3)(d). The regulatory importance of the operator role is reinforced by the record-keeping obligations.
(v)
The amendments made in 2015 by sections 55A and 55B further reinforce this position. They reflect what was implicit, namely that sub-contracting may take place subject to certain geographical restrictions (imposed by caselaw but relaxed by this amendment). Sub-section (2) states it is immaterial whether or not sub-contracting is permitted by the contract between the person licensed under section 55 who accepted the booking and the person who made the booking, indicating this is an unavoidable statutory regulatory imposition. This sub-section is premised on the notion that there is in any event a contract between the operator who accepted the booking and the passenger or the "person who made the booking".
(vi)
Given that in order to be an operator, a licence under section 55 is required, and given that the operation of sections 55 and 56 pre-suppose and/or create a contractual relationship between the accepting operator and the passenger, no matter what the model of provision of
vehicle,
it is inescapable that in every case an operator must have this relationship. That is to say that without a contract between the passenger and the accepting operator as principal the arrangement is operating outwith the regulatory framework.
(vii)
The 1976 Act places an irremovable burden on the accepting operator. Section 55B, added by amendment, refers to the disposition of criminal liability as between the accepting operator ("the first operator") and the sub-contracted operator ("the second operator"). The section ensures that the first operator is only subject to criminal liability with knowledge, and reflects the primary operator's responsibility to reassure itself of the adequacy of any third parties who carry out the provision of the journey whose booking it has accepted from the passenger/hirer. This construction clearly serves a public protection statutory purpose.
(ii) Assistance from the 1998 Act and the caselaw and other materials
i) The definition of PHV in section 1 of the 1998 Act is materially similar to the section 80 definition under the 1976 Act. Both connote provision of "vehicle
with services of a driver".
ii) "Operate" in section 1(1)(c) is materially to the same effect in that, under the 1998 Act, an operator requires an operating centre from which to operate equivalent to an operator operating "in the course of business" under section 80 of the 1976 Act.
iii) Section 1(3)(b), (c) and (d), record keeping obligations, reflect sections 56(2) and (3) under the 1976 Act.
iv) Section 5 reflects the centrality of the agreement between the accepting operator and the hirer, and underlines that only an "operator" may accept a booking whether directly from the hirer, or indirectly as sub-contracting operator. Section 5(4), stating the immateriality to the analysis of any prohibition on subcontracting is very
similar to section 55A(2) of the 1976 Act. The sections keep an original agreement in place (subject to other arrangements) even where there has been delegation to another operator, who has accepted that booking. In the 1976 Act these protections are effected by section 56, and sub-sections 55A and 55B.
"The considerations to which I have already referred make clear that, in its definition of the word 'operate', Parliament was not referring to places which invitations might reach, but to places where provision is made for the invitation of bookings. Put an advertisement in a local newspaper in one part of England and it may be read in almost any other part of the country. The defendant made provision for the invitation of bookings at his office in Slough. What he did by advertising in the directories circulating in the area where he conducted his business, and in adjacent areas, was to inform the public that he had made such provision. His provision was nevertheless made in Slough, not in Maidenhead, nor in any of the other areas in which those directories circulate."
"33. the court was concerned to avoid technical arguments about where a contract is concluded when a series of telephone conversations take place between persons in different areas: jurisdictional issues aside, such questions are only rarely of any practical significance."
"
by section 56(1), for the purposes of Part II of the 1976 Act, every contract for the hire of a private hire vehicle
is deemed to be made with the operator who accepts the booking for that
vehicle
whether or not he himself provides the
vehicle."
It is clear that to operate a PHV includes the concept of accepting the booking. If you do not do that you are not in fact an operator under the Act. The 1976 Act only ever refers to the licensed operator as accepting bookings: see sections 55A(1); 55A(2); 55B(1); 55B(2), 56(1) and 56(2).
"
9.6 We considered whether it was in fact necessary to license hire car "operators", but came to the conclusion that it was essential to do so. In the private hire business the operator (and not the driver) is the person with whom the hirer makes his contract and it is surely right that he should be held to have an overall responsibility for the way in which that contract is carried out, whether or not he owns the particular vehicle
or employs the particular driver used. The person who would stand to lose most from withdrawal of his licence is not the habitual user of a particular
vehicle,
nor the individual driver, but the operator. If, as we propose, every operator had to be licensed and was at risk of losing his licence if he failed (in ways which we shall spell out in more detail later) to ensure that proper standards were maintained, there is in our
view
much more likelihood that the scheme of control would prove effective and enforceable than if only the driver and the
vehicle's
owner were subject to control."
and
"9.8 One problem which arose in connection with the proposal to control operators was that of deciding what should be done about the situation where one operator accepts a booking and then arranges for another to provide the vehicle.
This is apparently common practice nowadays, groups of firms having reciprocal arrangements to pass on business which they themselves cannot handle. This has economic advantages and provides the public with a useful service. But it may mean that the customer could be in some doubt about who provided the car and against whom he should seek any remedy;
9.9 We do not wish to put a stop to the useful practice of arranging for another operator to provide a car in order to avoid losing a customer. But the operator who passes on a booking ought no longer be able to do so without having to accept full responsibility for the standard of service provided. We therefore recommend that the scheme of control should include a provision to the effect that where an operator himself undertakes to arrange for a vehicle
to be provided, whether by himself or by another operator, the hirer's contract is to be deemed to be with the original operator and the fare - to be chargeable on his normal basis.
"
(iii) Policy and/or undesirable practical consequences or defeat of the public interest
"
the person with whom the hirer makes his contract and it is surely right that he should be held to have an overall responsibility for the way in which that contract is carried out, whether or not he owns the particular vehicle
or employs the particular driver used." (See above.)