PLYING-FOR-HIRE JUDICIAL REVIEW: The reasons why the appeal is VITAL for the whole taxi industry

The London taxi trade has won its right to Judicially Review rules around plying-for-hire as a result of a landmark ruling at the High Court earlier this month.

The opportunity arose, after years of debate within the taxi sector, when a Judicial Review led by the United Trade Action Group (UTAG) against FreeNow 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 Judicial Review appeal granted will allow 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.

What is the ‘Reading vs Mr Ali’ case and why is it so important?

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.”

So what next?

The taxi trade will need to dig deep financially and support UTAG in its quest to bring the Judicial Review appeal to the courtroom.

UTAG is uniquely funded by a diverse membership that contains taxi drivers, suppliers of goods and services to the trade and supportive members of the public. Many outside of the traditional taxi organisations are calling for everyone to come together to ensure the argument is heard.

One of those calling for unity, Cabvision’s Lee DaCosta, has also suggested a new steering committee could be formed and an independent Chair may be elected.

Once funds are found, UTAG’s legal team at Chiltern Law will be instructed and the appeal will proceed.

Why is it important to challenge ‘plying-for-hire’ now?

Under current regulations, private hire vehicles (PHVs) can only pick up fares when pre-booked. That is in contrast to licensed hackney carriage taxis who can accept immediate street hails and pick up on ranks.

These regulations were brought in to provide users of both services with crucial safety protections against unregulated drivers.

However, since technology gathered pace and smartphone phones began ‘immediately pre-booking’ minicabs many within the sector simply see the technology as a way of circumventing the regulations currently in place for the taxi and minicab industry.

Back in June 2015 four taxi unions came together to call for a new statutory definition of ‘plying-for-hire’. 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’. Since then there has been little political will to explore a statutory definition.

Could now be the moment that the perceived ‘grey‘ area for some, becomes the black and white for all?