Thursday, 15 November 2012

TfL v Diamond Chauffeurs Ltd

In the Westminster Magistrates Court

In the matter of Diamond Chauffeurs Limited

Transport for London – Taxi & Private Hire


In the matter of the Private Hire Vehicles (London) Act 1998

Judgement of District Judge (Magistrates Courts) Fanning


1. By s.4(1) of the Private Hire Vehicles (London) Act 1998 (“the Act”), the holder of a London Private Hire Vehicle operators licence shall not accept a private hire booking other than “at an operating centre” specified in his licence.

2. The Appellant is the holder of such a licence which includes (in addition to 13 others) an operating centre at Abacaus, 24 Cornhill, London (“the Premises”).

3. On 28th February 2012, the Respondent notified the Appellant of its decision (under s.19 of the Act) to vary his licence by the removal of the Abacus operating centre on the [grounds set out in its letter of 28th February 2012 ]

following grounds:

a. the Respondent had received complaints of “incidents of taxi touting and a breach of licensing obligations at the premises”;
b. As a result of the investigation that arose from that complaint, on 17th February 2012 two of the Appellants operators were observed “accepting bookings outside the operating centre located inside the Abacus nightclub premises;” and
c. “Therefore, you have failed to demonstrate that you are complying with the requirements of ……the 1988 Act. The evidence of the complaint, coupled with the result of the investigations, indicates a pattern of unacceptable conduct and a breach of obligations by you and those acting on your behalf…..”

4. In summary, the Respondent’s case proceeds upon two limbs, and on a joint and several basis, either or both amounting to justification for the variation of the Appellant’s licence:

a. The first issue is this – the Respondent being of the opinion that in placing his operators outside of the doors of, rather than within, the Premises, the Appellant is in breach of it’s Public Carriage Office Notices and, in turn, s.4 of the Act;
b. The second issue is - the evidence, the Respondent says, of the Appellant’s operators “touting” for business at the Premises.

5. For his part, it is the Appellant’s case that the word “at” in s.4 of the Act does not mean “within the doors of” or “inside” the operating centre.

6. Further, he says that the contents of the PCO Notices is guidance only and not in itself the law, and that the interpretation of the law within the notices is wrong.

7. In any event, if I find against him on that point of law, and if I found that “touting” has taken place, the Appellant avers that the decision to vary his licence in response was disproportionate.

8. The first issue turns on phraseology – specifically, whether the word “at” in s.4(1) necessarily implies that bookings must take place inside the doors of the Premises (as the Respondent insists), or whether it permits bookings to be taken outside the doors of the premises.

9. The second issue turns on whether there is evidence of “touting” at the Premises by or on behalf of the Appellant, and whether if there is, this either alone or in tandem with the first issue warranted the variation.

10. I have seen a series of photographs of the premises, and looked at both the Land Registry plan, and a copy of the plan annexed to the premises licence. I have heard from a number of witnesses including Mr Lamb, the general manager of the Premises, and Mr Sarr, a compliance officer who is familiar with them.

11. In fact, the access doors are not aligned with the boundary of the Premises, but are set back. There is some dispute as to by how far, but it can be gauged from the photographs. That recessed area is partially covered by the floor above. The whole area is effectively a box, with a floor beneath, a roof covering most of what is above, enclosed on three sides but open to the pavement on its fourth.

12. When the premises are open for business, that fourth side is bounded by ropes, and access is controlled by doormen and, on busy nights, Mr Lamb himself. Potential customers must queue on the pavement before being permitted (or not) to leave the pavement, cross onto the premises and approach the doors. They make payment once within the doorway.

13. On Friday 17th February 2012, Perry Kissin and Natasha Young, employed by the Respondent as compliance officers, attended the Premises. They observed two of the Appellants operators standing within what they described as “a covered and roped off area” but outside the glass doors.

14. Again, in short, the Respondents case is that the Operators asked Mr Kissin & Miss Young if they wanted a taxi. The compliance officers were of the view this amounted to prohibited touting (wherever that approach took place – indoors or out), and, their view being that bookings had to take place inside an operating centre rather than on the street or pavement, a breach of s.4. Accordingly, they cautioned and interviewed the operators – pointing out the offences being committed as they saw it.

15. It was as a result of this incident, following as it did a complaint from the Licenced Taxi Drivers Association (which had provided earlier evidence allegedly showing “touting” by the Appellant’s operators) that, ultimately, led the Respondent to vary the Appellants licence (although I do note that this was not the first occasion that the Appellant had been challenged by the Respondent about his operating practices at the Premises).

16. Turning to the nub of this case. As to the s.4 point: I illustrate my decision with an analogy. Imagine the Premises were in fact a boat moored on the Thames, with a short gangway leading from the Premises to the embankment, and with access from the embankment to the gangway patrolled by doormen and a rope. Could it be said that the Appellant’s operators, stood on the outside deck of the boat, were operating other than “at” the premises? Could it be said that they were on the street or the pavement? Could there be a risk of confusion between members of the public as to who were licenced operators “at” the premises, and those who were not, being on the embankment?

17. In my view, in this case, and having regard to the particular geography of the entrance area to the Premises, the operators were standing in an area to which access was controlled by doormen and which was clearly separate, and distinct from the pavement and street. I don’t think my analogy is too far fetched. I am satisfied that the operators were operating at the Premises. There was no breach of s.4.

18. There then arises the issue of how I square that interpretation with the Policy notices, my finding being contrary to that guidance. I do so in two ways:

a. Firstly, unlike the policies discussed in the authorities before me today, the Respondent’s policy is non-statutory. Whilst entitled to draft and publish it, and to use it as a guide for the discharge of its functions under the Act, it is no more than that – a guide. I doubt that the only course of challenge to it is by way of judicial review;
b. Secondly, Mrs Chapman made it clear in her evidence that the Policy permits discretion, to be exercised on a case by case basis, as to the application of the policy. She confirmed two venues at which there have been operating centres permitted out of doors.

19. Accordingly, if I am required, for the purposes of this Appeal, to step into the shoes of the Respondent when adjudicating upon its decision, I can, if I see it as appropriate, exercise that same discretion.

20. As to the “touting” issues. Technically, I can see that the s.167 offence is made out if the operator makes an approach to a customer rather than the other way round. The Appellant concedes that to be so on the evidence. However, the Appellant has operators on the Premises at the request of its management. They are clearly identifiable as operators for the Appellant’s firm. They stand at a designated location. They operate in tandem (now in triplicate) one to accept bookings, another to convey customers to a particular car – thereby protecting the paying public from un-licenced and unregulated operators whom I am told are a regular danger in the immediate vicinity of the Premises. Given the mischief at which the regulation of taxi firms is directed, the breach observed on 17th February 2012 was a minor one, and not one that was inimical to public safety.

21. Accordingly, having regard to the evidence adduced and to the particular facts of this case, I am satisfied that approaching the matter afresh, and standing in the Respondent’s shoes, but with the benefit of these proceedings, and the presentation and testing of evidence within them, to vary the Appellants licence as was done is unsustainable for these reasons:

a. I find no breach of s.4; the wording of the Act clearly permitting the Appellants controllers to operate at the premises in the position that they were;
b. I believe that the Respondent should, in respect of its policy, have in any event exercised its discretion to permit the Appellants operators to stand on the external side of the doors to the premises, it being unreasonable to conclude that there was a real risk of the public confusing the Appellant’s operators in that position with the unregulated touts located in the street beyond; and
c. the Respondent’s response to the “touting” was, given the technical nature of that breach as I see it, a disproportionate one.

22. Accordingly, I allow the Appeal.

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