London taxi drivers await Judge's decision over digital ‘PLYING-FOR-HIRE’ argument

London taxi drivers now await the Judge's decision after filing a legal challenge against ride-hailing app Free Now, over claims the taxi firm’s business model around ‘plying-for-hire’ is illegal.

Black cab representatives from United Trade Action Group (UTAG) have long argued that ride-hailing apps, like Uber, Ola, Bolt and Free Now, allow passengers to hail taxis.

Only licensed taxi drivers are permitted to ply-for-hire. Plying or standing for hire means taking a passenger to their chosen destination for cash without a prior booking in place.

If a minicab driver agrees to take a passenger without a booking already set up, the driver is likely to be deemed to have been ‘plying-for-hire’, voiding insurance of the vehicle as a result.

UTAG this week have argued that digital hailing, the process used by app firms across the world, is not a pre-booked process and in fact an immediate hail that is only legally available to taxis.

Dependent on the result of this case, cabbies could be calling for a judicial review of Transport for London’s (TfL’s) licensing decisions.

What is ‘Plying-for-hire’?

Back in May 2014 the Law Commission produced recommendations for taxi and private hire vehicle (PHV) services with the aim of providing a clearer distinction between the services offered by the two trades.

Though not defined in the legislation, ‘plying-for-hire’ describes the activity reserved to licensed taxis. Simply, most people might define ‘plying-for-hire’ as driving around looking to be hailed or waiting for passengers at a taxi rank.

The Law Commission however said the concept had developed into something ‘inevitably more complex’ and ‘leaves considerable grey areas, particularly in the interface with licensed private hire vehicles’. There were even questions over the legitimacy of new ways of providing services, especially those using technology such as mobile phones and smartphone applications.

Black cab and licensed taxi services are referred to in legislation as “hackney carriages”. A hackney carriage is defined by section 38 of the Town Police Clauses Act 1847 in the following terms:

‘Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance... shall be deemed to be a hackney carriage within the meaning of this Act.’

The legislation applying to London is slightly different to that used elsewhere around the UK, but uses similar terminology. Taxis in the capital have exclusive right to ‘ply-for-hire’ making it the defining characteristic of taxis under current law, but crucially the term is not defined in legislation.

In the Law Commission report it says: ‘Picking up passengers at ranks and in response to hailing is generally understood to be at the core of plying for hire, but these activities do not feature in the legislation. Instead, the case law refers to factors such as the “exhibition” of the vehicle, which may indicate plying for hire, its availability to the general public and the “immediacy” of its availability.

‘Parking a vehicle in a public place may or may not amount to plying for hire, depending on an assessment of these factors.

‘The case law is often inconsistent and unclear. Technology has highlighted the indeterminacy of some of these factors by adding new ways for consumers to engage services. Internet bookings for example can be virtually immediate, suggesting taxi- like behaviour, and yet have all the characteristics of a pre-booking, making them compliant with private hire requirements.’

Plying-for-hire without a taxi licence is a criminal offence and is therefore the critical point in defining what private hire vehicles are and are not allowed to do.

It has been nearly EIGHT YEARS since it was suggested that the definition of ‘plying-for-hire’ should be placed on a statutory footing to reflect the modern understandings of what taxis do.

Plying-for-Hire: The Digital Hail

Here’s where it gets a little grey. Given that ‘plying- for-hire’ is what distinguishes the two sectors the rules should be clear and concise to maintain a thriving two-tier system that works for both parties. However, ride-hailing and the digital hail blurred itself between taxi and private hire legislation under the name of ‘disruption’.

Until recently there has been little movement, and certainly no desire from Government, to remove the fog around how digital hailing fits into current legislation.

In December 2021 the London taxi trade won the right to Judicially Review rules around plying-for-hire as a result of a landmark ruling at the High Court.

The opportunity arose, after years of debate within the taxi sector, when a Judicial Review led by the United Trade Action Group (UTAG) against FREE NOW was challenged in two parts; the Operator point and Facilitating Private Hire

Vehicles (PHV) to Ply for Hire via an App. UTAG was successful on the Operator ground only, but crucially WERE ALLOWED to appeal the decision regarding plying-for-hire at a higher authority.

This new appeal just heard has allowed the industry to re-open an important court result that has remained central to all plying-for-hire arguments since. The infamous ‘Reading vs Mr Ali’ case.

Ever since technology gathered pace and smartphones began ‘immediately pre-booking’ minicabs, many drivers and representatives within the sector simply see the technology as a way of circumventing the regulations currently in place.

Back in June 2015 four taxi unions came together to call for a new statutory definition of ‘plying-for-hire’ off the back of the Law Commission report. They called for a ‘robust’ definition that would enable the industry to maintain and sustain a two-tier system (taxis and minicabs) for future generations. There was also a belief that the ‘Knowledge of London’ and the right to ply-for-hire was ‘intrinsically linked’.