BLOWING THE DOORS OFF PLYING-FOR-HIRE: The Reading case was never the end on the matter

The taxi industry has won the right to a Judicial Review which could effectively blow off the doors on a long-standing trade argument over the definition of plying for hire.

Last month, taxi industry representatives United Trade Action Group (UTAG) were granted the review by Senior High Court Judge, Mrs Justice Lang DBE. The review will focus on Transport for London’s (TfL) decision to grant Transopco an operator's licence on the FREE NOW/Kapten booking platform.

Speaking on the ‘Black Cab Show’ podcast, UTAG Director Trevor Merralls, told the host that the case will focus heavily on how private hire vehicles (PHV) cannot be pre-booked on the app, but licensed taxis can. On the same FREE NOW app, PHV’s can however be ordered via an ‘immediate pre-booking’, which has drawn discussion over what is an immediate hail and what is a pre-booked journey.

Hackney Carriage taxis are the only vehicles that offer their services immediately. Private hire drivers can only offer their services via an operator taking a pre-booked job offer.

A spokesperson from Chiltern Law said via social media on Tuesday: “Another win today for UTAG and the trade. Permission granted to JR transport for London which will involve further scrutiny of Plying for Hire arguments and the Reading decision.”

A spokesperson from trade organisation United Cabbies Group (UCG) said: “The decision to allow UTAG’s Judicial Review and let them argue in court that Private Hire Vehicles (PHV) are plying-for-hire via an app has shown that Reading is NOT the end of the argument.

“UCG has always held this view and today that view has been vindicated.

“We ask all orgs to support this and fight to maintain our rights.”

The latest twist comes years after a high-profile plying-for-hire test case which focused on a private hire driver charged with two offences in Reading. The driver, Mr Ali, was charged for two incidents in January 2017 after being accused of plying-for-hire with a Ford Galaxy. The vehicle did not have a licence to ply-for-hire from Reading Borough Council and was said to be contrary to section 45 of the Town Police Clauses Act 1847.

Mr Ali was an Uber driver, licensed by Transport for London (TfL). On the nights of the two incidents, he was in Reading waiting for a passenger.

The ‘test’ in this case is whether the Uber “model” using an App should lead the court to conclude that Mr Ali was plying-for-hire on the two dates above.

Reading Borough Council argued that Mr Ali was in possession and control of the Ford Galaxy which was not a hackney carriage, he chose to travel to and wait in Kings Road, Reading at a time when, and in a place where, members of the public were likely to wish to be immediately conveyed in a vehicle.

At the relevant times on 21 and 22 January 2017, Mr Ali was logged on and shown as available on the Uber driver and passenger app. His location and availability were displayed to users of the passenger app by an icon on a map. That display, Reading Council argued, constituted a solicitation.

In defence, Mr Ali responded by pointing out that if Reading’s analysis was correct any booking using a mobile app would be plying-for-hire. He contended that the essence of the private hire contract was that the member of the public books the vehicle first and then meets the vehicle before the journey proceeds. That is not plying for hire. He pointed out the technological advances from a time when a job-master was used to book a carriage through telephone booking and in recent times app-based booking services. All of which were and are lawful.

Senior District Judge (Chief Magistrate) Emma Arbuthnot, who also heard the Uber London appeal, said that the “burden of proving the case is on Reading Borough Council and the standard of proof is a high one. I have to be sure of the defendant’s guilt on each charge before I can convict him of plying for hire”.

Arbuthnot concluded:

• Mr Ali’s vehicle did not have a distinctive appearance and a member of the public seeing the vehicle on Kings Road at that time of may have guessed that it was a minicab because it was a dark coloured car with darkened windows but there were no outward signs, for example, no company telephone numbers were displayed. The TfL roundels were not of such prominence that it could be said that there was something on the vehicle which cried out “I am for hire” in the way described in the Rose v Welbeck case, which I find, in any event, turned on its own facts.

• was not near a hackney carriage stand and if he had been approached by passengers from the street, I accept he would not have contacted Uber to make the booking for them. The facts concerning Mr Ali are very different to those set out in Milton Keynes Borough Council v Barry.

• vehicle could not be hailed nor did it wait at a stand. He did not drive around looking for passengers nor did he wait on the street, flashing his lights or hooting at members of the public.

• passengers or riders come via the Uber App. Mr Ali was in central Reading waiting to be contacted by Uber.

She said: “Uber’s server tells the nearest driver about the request, he or she has 10 seconds in which to accept or reject the trip. If the driver accepts then Uber confirm the booking, records it (see tab 31 page 157) and the trip is allocated to him or her. The details of the passenger are then provided to the driver and the driver goes to the pick-up location to meet the rider. The rider cannot choose a specific driver or vehicle.”

The above left Ms Arbuthnot to conclude: “The fact that Mr Ali’s vehicle had no distinctive markings, was not at a stand and was not available to pick up passengers on the street combined with the fact that the whole transaction was conducted via an App where the booking process starts, is recorded and the fare estimated, leads me to find that Mr Ali was not plying for hire.”

Stephen McCaffrey, Head of Kings View Chambers and Taxi Defence Barristers, summed up the Reading case with his own analysis in 2018 saying: “This was the first case of its kind specifically testing the functionality of the Uber App’s compliance with licensing legislation.

“The case was principally decided on its facts but there are some general principles drawn that may be relevant in future litigation.

“It reaffirmed principles established in previous case indicating that circumstances as a whole must be taken in account including the vehicle’s characteristics and the driver’s behaviour.

“The added dimension in this case was the use of the Uber App. The Uber App’s operation did not offend the boundaries of relevant licensing legislation in the circumstances of the case.

“This is by no means the end of the general matter. Ms Arbuthnot commented in her judgement: ‘I have no doubt that the technology will move forward and be susceptible to challenge in the future’.”