Saturday, 23 November 2013

Gateshead Council v Henderson [2012] EWHC 807 (Admin) (13 February 2012)

The case below shows exactly why plying for hire needs to be defined in law.

The Law commission has stated they will not be defining plying for hire in law, but will be taking a more modem approach to pre-booking arrangements. 

This is an appeal by way of a case stated against a decision of the Gateshead justices, whereby they dismissed an information against the respondent, Paul Henderson, that he, on 2 October 2010, was plying for hire with a motor vehicle registration number NA 57 VRT within the borough of Gateshead, without having obtained a licence from the appropriate authority, contrary to section 45 of the Town and Police Clauses Act 1847. 

The statement of case records the evidence heard by the justices. Two licensing enforcement officers with Gateshead Council, Mr Lines and Mr Harris, were on duty on 22 October 2010 checking licensed premises and takeaway restaurants on Durham Road. Upon leaving a takeaway premise Mr Lines became aware of a Citroen Xsara Picasso motor vehicle outside the Travellers Rest public house. He noted it was a Gateshead licensed private hire vehicle. Following a discussion with Mr Harris, a decision was made to carry out a test purchase. 

Mr Lines's evidence was that he approached the driver's side of the vehicle but he waited until a passenger in the vehicle had alighted. He stated that he then knocked on the driver's window and in response the respondent wound his window down. Mr Lines then asked if the driver was booked and was told by the respondent "No". At this point, Mr Lines called Mr Harris over and got into the front passenger seat. Mr Harris sat in the rear of the vehicle behind the driver. Mr Lines asked the respondent to take them to the Hilton Hotel. The respondent reversed the vehicle off the path onto the main road and put on the taxi meter. He then made contact by way of his vehicle radio, stating "Just picked up from here", before transporting the officers to the Hilton Hotel as requested. Mr Lines stated that when they arrived at the Hilton Hotel at 9:20pm he paid the fare displayed on the meter and was issued with a receipt when he requested one. 

During cross-examination Mr Lines accepted that the vehicle was clearly not a Hackney carriage, nor was the driver trying to lead anyone to believe that it was. He also accepted that the vehicle was stationary and not parked up in a taxi rank. Mr Harris gave evidence. He noted that a passenger had been in the vehicle and Mr Lines knocked on the driver's window after the lady had got out of the vehicle. He was certain Mr Lines allowed her to alight before getting into the vehicle as she was sitting in the front passenger seat, which is the same seat that Mr Lines occupied for the journey. Mr Lines spoke to the driver before beckoning Mr Harris over and Mr Harris sat in the rear of the vehicle. 

In a section 9 statement Mr Martin stated that he is a private hire operator for Team Valley Taxis. He commented that "private hire drivers can only collect passengers once a booking has been received by the operator. All bookings must be pre-booked". From his records for 2 October 2010 there was no booking shown for the journey in question. 

The respondent gave evidence that he held a Hackney carriage licence with Gateshead Council and had done so since 2003. In October 2010 he obtained a private hire licence as well. Although ordinarily he drove a Hackney carriage minibus, on 22 October he was driving a private hire vehicle belonging to Team Valley Taxis, as his minibus was being repaired. At 9:15 pm he picked up Kathleen Hunter to take her to the Traveller's Rest public house. He knew her as a regular fare, he was aware of her disability and the fact that it takes time for her to get out of the vehicle. Upon arrival at the public house Mrs Hunter handed him a £5 note to cover her fare of £2.80. This meant she required change. She was sitting in the rear seat behind the passenger seat. Whilst completing this transaction an unknown male knocked on his driver's window, which he then wound down. The male asked the respondent if he could be taken to the Hilton Hotel. The respondent asked the male to give him a moment and the male repeated his request. The respondent then wound his window back up and the male asked again. At this point the respondent said that he would. He explained that the unknown male got into the front passenger seat as Mrs Hunter left the rear seat. The unknown male shouted over to another male person who came and sat in the rear seat behind the driver's seat. 

In cross-examination the respondent stated that he should not have picked up these two persons and that he knew he was in a private hire vehicle in the Gateshead area. He stated that he was stationary when he was approached and he radioed the operator to say that he was picking them up. He said he was not plying for hire. He had a customer in the car and if Mr Lines had not come to his car he would not have picked them up. 

Finally, the passenger, Mrs Hunter, gave evidence. She confirmed that she had been sitting in the rear of the vehicle and that she always sits there. She said that as she was handing over payment for the fare and waiting for her change she became aware of a male banging on the driver's door window. She was adamant that the male tried to get into the taxi when she was still in the vehicle and that he opened the front door. 

At paragraph 18 of the case stated, the justices say: 

"Having heard all the evidence we made the following findings of fact in relation to the contentious issues. We found that Mrs Hunter had not alighted from the vehicle prior to Mr Lines knocking on the window and making his repeated requests. Furthermore Mrs Hunter was still in the rear of the vehicle completing her transaction when Mr Lines physically entered the vehicle and made a request to be taken to the Hilton Hotel. 

In our view we could not be sure that the respondent had either expressly or by inference, invited or encouraged a member of the public to use his vehicle. Therefore we dismissed the allegation of plying for hire…"

The justices state that after receipt of the case stated, they had their attention drawn to two authorities, Ogwr Borough Council v Baker [1989] COD 489 and Nottingham City Council v Woodings [1994] RTR 72. At paragraph 23 of the case stated the justices saying having considered those cases: 

"In relation to the interpretation of the word 'plying' we have drawn a distinction between a driver agreeing to complete an unsolicited request, as in the instant case, and a driver who solicits the trade directly or indirectly by parking up or lingering for longer than is necessary in the expectation or hope of further custom. This was clearly not the situation in this case, where the driver was still in the process of concluding a legitimate fare when engaged by the council officers."
The question posed by the justices for consideration of this court is: 

"Were we correct in law in acquitting the respondent on the basis of the definition of 'plying' as applied by us in this case?"

Taxis are divided into 2 distinct types, Hackney carriages and private hire vehicles. A Hackney carriage can be hailed from the street or it can park on a rank and wait for passengers to approach it; a private hire vehicle cannot. A private hire vehicle must be pre-booked through a licensed operator prior to the commencement of a journey. A Hackney carriage can only be driven by a person holding a Hackney carriage licence; likewise a private hire vehicle can only be driven by a person holding a private hire vehicle licence. The vehicle must act in accordance with its respective licence. (See Yates v Gates [1971] All ER 754 and Benson v Boyce [1997] EWHC Admin 35). 

The vehicle in question was a private hire vehicle and the journey was not pre-booked. Section 45 of the Town and Police Clauses Act 1847 provides that it is an offence for a person to stand or ply for hire without a Hackney carriage licence. Accordingly, it is an offence for any person to ply for hire with any carriage which in effect is being used as a Hackney carriage without previously having obtained the requisite licence for that purpose. 

Ms Smith, for the appellant, makes two submissions. First at paragraph 53 of her skeleton argument she submits that: 

"The bench failed to take into consideration the factors relating to the alleged offence and paid too much regard to matters that were irrelevant."
Second, in her oral submissions today she submitted that the bench erred in their construction of the words "plying for hire" in section 45 of the 1847 Act because the driver of a private hire car commits an offence if he agrees to carry a passenger who has not pre-booked the vehicle. I shall deal with these submissions in turn. 

As for the first submission, Ms Smith relies on the cases of Ogwr Borough Council v Baker and Nottingham City Council v Woodings. The case of Ogwr Borough Council v Baker concerned a line of Hackney carriages and private hire vehicles parked outside a nightclub. The Hackney carriages were plying for hire by persons emerging from the nightclub. Also in the street was a hotdog van. It was parked about ten yards away from the nightclub and the respondent's private hire vehicle was parked near to the hotdog van. A couple emerged from the nightclub, walked past some Hackney carriages and went up to the respondent's vehicle. It bore on its windscreen a sticker saying "Always", which the justices found was the name of the firm that employed the respondent. It made available private hire vehicles. The couple approached the driver and asked him whether he was for them and he then communicated with his controller for the purpose of ascertaining whether the couple had indeed booked a private hire vehicle from his firm. It was established they had although the respondent had not been sent there by his firm for the purpose of fulfilling that booking. The justices found that the respondent sometimes parked in the position where he was when accosted by the couple for the purpose of using, as they put it, the facilities of the hotdog van, but as the police constable observed the respondent did not get out of his vehicle for that purpose on this occasion. The officer approached the vehicle and asked the respondent the names and addresses of his passengers. He did not know either and confirmed that this was not a pre-arranged pick up. 

Leggatt J identified the question which the judges had to ask themselves as being: 

"Whether by parking the vehicle where he did the respondent was in the circumstances impliedly soliciting custom -- that is, exhibiting the vehicle to the public as one which might be hired."

In his judgment the respondent's presence in the vehicle with the name of the taxi service on the windscreen near a line of Hackney carriages outside a nightclub at 1:30 in the morning could not but constitute an invitation. As Bingham LJ observed, this was a very clear case of plying for hire by an unlicensed vehicle. The facts of the present case can in my view be distinguished from those in Ogwr in two material respects. First, the vehicle was stationary but not parked, the transaction with Mrs Hunter still being in progress when the vehicle was first sighted by the enforcement officers and approached by Mr Lines; second, the respondent's vehicle was not near a taxi rank. 

In Nottingham City Council v Woodings the defendant was sitting in the driver's seat of a private hire vehicle, recognisable as a minicab by signs on the side of the car. The car was parked and there was no passenger in the vehicle. Lord Justice Rose LJ said at page 75DE 

"In my judgment, when the defendant parked the marked car in the street, for the purpose of going into the toilet, he was not plying for hire, and when he came out of the toilet, he was not plying for hire. But when, having sat in the driver's seat, he told the prospective passengers that he was free to carry them, at that stage he was, bearing in mind where the car was and what the car looked like, plying for hire."

Again, as the justices noted at paragraph 22 of the statement of case, the facts of the present case can be distinguished from those in the Woodings case. The respondent had not parked his vehicle and Mrs Hunter, his passenger, was still in the vehicle completing her transaction when Mr Lines approached and made his request. 

In my judgment the decision of the justices in the present case was one to which a reasonable bench, applying their minds to proper considerations and giving themselves proper directions, could come on the findings of fact that they made. Accordingly, I reject Ms Smith's first submission. 

Ms Smith's second submission, which Mr Holland for the respondent describes as a bold submission, I also reject. In my view it plainly runs counter to the analysis of Leggatt J, with whom Bingham LJ agreed in Ogwr Borough Council, and of Rose LJ with which Waller J agreed in Woodings. Mr Holland submits that there is no comprehensive and authoritative definition of plying for hire. It is a question of fact and agree in each case. In Cogley v Sherwood [1959] 2 QB 311 Lord Parker CJ said at pages 325-326: 

"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."

Ms Smith noted that that case was determined under a different statute, namely the Metropolitan Public Carriage Act 1869. However, Rose LJ in Woodings cited it with approval. In my view both Cogley v Sherwood and Sales v Lake [1922] 1KB 553, a case also involving the 1869 Act to which Mr Holland referred, support the approach adopted in Woodings and in Ogwr. Accordingly this appeal is dismissed. 

Order: 1. Appeal dismissed.

2. No order for costs.

3. LA Direction Respondent.

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