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PostPosted: Thu Aug 11, 2005 7:58 pm 
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I notice there are several threads on taxi touting and signage especially in the London area. I have taken the time to scan in a case appertaining to London which might provoke more debate.

Rose v Welbeck Motors Ltd and Another.

CRIMINAL; Road Traffic

QUEEN’S BENCH DIVISION
LORD PARKER CJ, WINN AND BRABIN JJ
30, 31 MAY 1962

Rood Traffic – Hackney carriage – Metroplitan police area – “Plying for hire” – Mini-cab parked in bus stand-by – Advertisements and telephone number on vehicle – Radio aerial on roof providing two-way communication – Metropolitan Public Carriage Act, 1869 (32 & 33 Vict c 115), s 7.

On 29 September 1961, at 12.45 pm the appellant, a taxi-driver, found a mini-cab parked in a bus stand-by where buses turn round. It was a bright red Renault Dauphine, with various advertisements on the sides and various inscriptions, the most important being a legend on each side of the vehicle “Welbeck Motors, Mini-cabs”. There was also a telephone number along the roof, and there was a radio aerial on the roof providing a two-way short-wave communication.


A bus later wished to pull in from a nearby road and the mini-cab moved out of the bus stand and stopped about ten yards from where it had been. A police officer asked the driver of the mini-cab why he was waiting there, and received the reply that he was waiting for any jobs that came up in the area, and that he had been there fifty minutes. He made it plain that he was to be informed of jobs over the radio.

At about 1.30 pm, the mini-cab drove off, but later came back and parked quite close to the corner from which it had driven away. The owners and the driver of the mini-cab were charged with plying an unlicensed hackney carriage for hire, contrary to s 7 of the Metropolitan Public Carriage Act, 1869a. The justices upheld a submission that there was no case to answer and dismissed the informations. On appeal by the appellant,

Held – The distinctive appearance of the vehicle, its colour, its inscriptions and its equipment in the form of radio communication, coupled with the place where it was on view and its conduct during the relevant period, made a prima facie case that the vehicle conveyed an invitation to the public to use it, and, as it was on view to the public, there was a case to answer that the mini-cab was plying for hire; accordingly the proceedings would be remitted with a direction to the justices to continue the hearing.

Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood ([1959] 2 All ER 313) applied.

Alker v Woodward (16 February 1962, “The Times”, 17 February 1962) followed.

Appeal allowed.

Notes
As to the meaning of plying for hire, see 33 Halsbury’s Laws (3rd Edn) 801, para 1372; and for cases on the subject, see 42 Digest 853–856, 77–94.
For the Metropolitan Public Carriage Act, 1869, s 7, see 24 Halsbury’s Statutes (2nd Edn) 871.

Cases referred to in judgment

Alker v Woodward (16 February 1962), “The Times”, 17 February 1962.
Allen v Tunbridge (1871), LR 6 CP 481, 40 LJMC 197, 24 LT 796, sub nom Allen v Trowbridge, 35 JP 695, 42 Digest 853, 78.
Cogley v Sherwood, Car Hire Group (Skyport) Ltd v Sherwood, Howe v Kavanaugh, Car Hire Group (Skyport) Ltd v Kavanaugh, [1959] 2 All ER 313, [1959] 2 QB 311, 123 JP 377, [1959] 2 WLR 781, 3rd Digest Supp.
Foinett v Clarke (1877), 41 JP 359, 42 Digest 854, 80.
Gilbert v McKay [1946] 1 All ER 458, 174 LT 196, 110 JP 186, 2nd Digest Supp.

Case Stated.

This was a Case Stated by justices for the county of Essex in respect of their adjudication as a magistrates’ court sitting at Stratford, on 8 November, 1961. On 13 October 1961, the appellant, Emmanuel Rose, preferred informations against the respondents charging that (i) the first respondents, Welbeck Motors Ltd being the owners of an unlicensed hackney carriage which plied for hire at the junction of Forest Road and Beacontree Avenue, E 17, on 29 September 1961, contrary to s 7 of the Metropolitan Public Carriage Act, 1869, and (ii) that the second respondent, Frederick Stanley Jones, being the driver of the vehicle unlawfully plied for hire at the junction of Forest Road and Beacontree Avenue, E.17, on 29 September 1961, contrary to s 7 of the Act of 1869. The following facts are summarised from the evidence.

At about 12.45 pm on 29 September 1961, the appellant, a licensed metropolitan taxi-driver, was driving his cab near the junction of Beacontree Avenue and Forest Road, Walthamstow, when he saw a mini-cab parked in the bus stand-by where buses turn round. The mini-cab was a bright red Renault Dauphine with various advertisements and inscriptions on it, the most important being a legend on each side of the vehicle “Welbeck Motors, Mini-cabs”, and the telephone number “Welbeck 4440” along the roof. In addition, there was a radio aerial on the roof providing a two-way short-wave communication.

The second respondent was sitting behind the wheel. A conversation between the appellant and the second respondent took place, as a result of which the appellant called the police. Some time later a bus wanted to pull in from Forest Road and the mini-cab pulled out from the bus stand and stopped on the corner of Beacontree Avenue about ten yards from where it had been before. At about 1.15 pm a police officer arrived and asked the second respondent if he was a taxi, to which the latter replied in the negative.

The second respondent was then asked why he was waiting there, to which he replied: “I am waiting for any jobs that come up in this area”. There were no passengers in the mini-cab at the time. The police officer pointed out to the second respondent that he was unlawfully plying for hire, to which the second respondent replied, “I have been here fifty minutes waiting for a job”.

He also said that his control had told him he could stand where he liked provided he did not cause an obstruction, and made it clear that he was to be informed of “jobs” over the radio. At about 1.30 pm, the mini-cab drove away, and, according to the appellant, it came back again and parked quite close to the corner from which it had driven away.

The respondents submitted that there was no case to answer. It was contended by the appellant that (a) for a vehicle to ply for hire, there must be a solicitation of the public or invitation to the public to hire the vehicle by the driver or person in control of the vehicle which might be either express or implied; (b) the vehicle must be exhibited to the public as a vehicle which was available802 for hire, and readily available for hire, although it need not be capable of being booked from the driver; (c) on the facts, the vehicle was readily available for hire, and by its character and appearance invited the public to use it or the services provided by the first respondents; (d) the description of the vehicle as a “Welbeck Motors Mini-cab” together with the telephone number from which presumably it could be hired constituted a solicitation or invitation to the public to hire it, (e) the vehicle was exhibited to the public by being parked in a public place for at least fifty minutes and, accordingly, all the elements of a plying for hire were present and a prima facie case was made out.

It was contended by the respondents that (i) there was no evidence of solicitation or invitation to the public; (ii) there was nothing stating that the vehicle was for hire; (iii) the vehicle must be exhibited with an open offer to the public to use that vehicle, and there was no evidence of that, and (iv) the driver was just sitting waiting for directions by radio.

The justices dismissed the informations without calling on the respondents to answer the case, and the appellant now appealed.

The direction and case mentioned below were cited in argument in addition to those in the judgmentb.
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b Ie, Practice Note [1962] 1 All ER 448, White v Cubitt, [1930] 1 KB 443
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Neil Lawson QC and J M Williams for the appellant.
Malcolm Morris QC and John K Wood for the respondents.

31 May 1962. The following judgments were delivered.

LORD PARKER CJ stated the facts and continued: The sole question for this court is whether the prosecution raised a case which required an answer. In order to decide that, it is necessary to consider first the essential elements that the prosecution would have to prove, and then go on to ascertain on the facts given in evidence whether those elements were prima facie proved. The prosecution was for an offence contrary to s 7 of the Metropolitan Public Carriage Act, 1869. Section 4 of that Act provides, so far as it is material:

“In this Act ‘stage carriage’ shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road, or place within the limits of this Act … ”

Section 7 provides:

“If any unlicensed hackney or stage carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding £5 for every day during which such unlicensed carriage plies. And if any unlicensed hackney carriage is found on any stand within the limits of this Act, the owner of such carriage shall be liable to a penalty not exceeding £5 for each time it is so found. The driver also shall in every such case be liable to a like penalty unless he proves that he was ignorant of the fact of the carriage being an unlicensed carriage … ”

In the recent case of Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood, etc, what is sometimes referred to as the “airport case”, this court had to consider that section of the Act, and, in the course of doing so, reviewed a number of the earlier cases. The court there emphasised that the approach to the matter was to ask oneself the question whether the vehicle itself was plying for hire as opposed to the case of a man going to the owner of a car hire establishment and hiring one of his cars. That was the question posed in the earlier cases, a particular illustration of it being in Allen v Tunbridge, where Montague Smith J said ((1871), LR 6 CP at p 485) in reference to a previous case (Clarke v Stanford, (1871), LR 6 QB 357).

“It appears to have been held there, that, if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the Act. That is very different from a customer going to a job-master to hire a carriage.”

Again, in Cogley’s case, this court held that it was essential before one could say that a vehicle was plying for hire, first, that it should be exhibited, be on view to the public, and secondly, that it should, while on view, expressly or impliedly solicit custom in the sense of inviting the public to use it. The fact that if those conditions are proved a ticket had to be obtained from an office or a booking made other than through the driver was immaterial.

It is, I think, right to say that a further possible question, namely, what was to be the result if the obtaining of a ticket or a booking involved a vehicle other than that on view, was left open. Reference, however, was made to Gilbert v McKay, and in the argument to Foinett v Clarke, which cases suggest that, at any rate in certain circumstances, that fact would not of itself prevent a finding that the vehicle in question was plying for hire.

That the vehicle in the present case was on exhibition in the sense that it was on view to the public is undoubted. The real question, as it seems to me, is whether a prima facie case was made out that the vehicle was impliedly inviting the public to use it. Whether in any case such a prima facie case is made out must, of course, depend on the exact circumstances, and I certainly do not intend anything that I say in this judgment to apply to any facts other than those in this case.

What were those facts? As I have already said, one starts with the fact that this vehicle was of a distinctive appearance, its colour, its inscriptions, its equiplment in the form of radio communication, and its type. Secondly, and this is equally important, it stood with the driver at the steering wheel for some fifty minutes in a public place on public view and at a place where buses made a turn round, in other words, at a place where many members of the public would be getting off the buses and where many members of the public would forgather to board the buses. Moreover, when requested to leave, the driver drove away only to return immediately to almost the same place.

It has been urged by counsel for the respondents, that the inscriptions and appearance of this vehicle were incapable of conveying an invitation to the public: “I am for hire”. It is said that the vehicle was merely advertising the owners of the vehicle and was not saying in the way I put it: “I am for hire”. It is perfectly true, of course, that the inscriptions were advertising the owners, Welbeck Motors Ltd and also saying, “and if you ring up Welbeck 4440 you can have one of the vehicles that they hire known as mini-cab”.

In my judgment, however, the inscriptions on, and appearance of, the vehicle, coupled with the place where it was on view and its conduct during the relevant period, was saying more than that. It was saying: “Not only do I”, if I may personify the vehicle, “recommend you to Welbeck Motors Ltd where you can hire a mini-cab, but, further, I am one of those mini-cabs and I am for hire”. I think in that connexion that the reference to mini-cabs is important.

A cab does convey the notion of a vehicle plying for hire. It may be that “taxi” is the more common word today, but “cab” as an abbreviation of “taxi-cab” is well known to everybody, and the legislation covering this matter is dealt with by the London Cab Order, 1934. Suppose it had been exhibited to the public with the word “taxi” on it or “Welbeck Motors Ltd Taxi proprietors”, it seems to me perfectly clear that such a vehicle would be conveying to the public not only “I am one of those vehicles”, but “I am as a taxi or as a cab available and for hire”. Indeed, this court has really gone so far as that already in Alker v Woodwardc where a vehicle was found at Liverpool bearing the inscription “Radio Taxis”, and the telephone number, “North 3071”.

It is true that there was the added fact that it was said to be standing at a licensed hackney carriage stand, but there was no physical lay-out of the stand which could be identified and the court attached no importance to that consideration, the only importance being that it was standing in a public place, and outside an hotel at half-past twelve at night. In that case the learned recorder of the Crown Court at Liverpool had upheld the submission of no case, and this court sent the case back for the hearing to be continued.
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c “The Times”, 17 February 1962. In that case the court (Lord Parker CJ Ashworth and Fenton Atkinson JJ) held that a licensed hackney carriage driver in a car displaying a card including the words “Radio Taxis, North 3071” standing at or near a hackney carriage stand was plying for hire
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In my judgment, there is no real difference between the expression “taxi” and “cab” and, in the circumstances of this case, it seems to me that any tribunal would be bound to hold that this vehicle in the particular circumstances of this case was exhibiting itself as a vehicle for hire. In my judgment, therefore, this case ought to be remitted to the justices with the direction that there was a case to answer and to continue the hearing of the case. I deliberately refrain from saying what, in my judgment, might amount to a defence. I would only say that it must not be taken that what I am reported to have said towards the end of my judgment in the newspaper report of Alker v Woodward is correct in fact or in lawd.
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d Lord Parker CJ was reported to have said: “The evidence was that the defendant had said: ‘i’m waiting for a call’, and it was said that the defendant’s firm were known to operate, like mini-cabs, by radio. That, if believed, was a good defence, but the recorder need not have believed it. He should therefore have heard the evidence … ”
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WINN J. I agree, and would add only one very short point of my own, because all that I would wish to have said has been said so lucidly already by Lord Parker CJ. It seems to me that the essence of this case is what interpretation must be put on the appearance and the behaviour of the vehicle in the circumstances established prima facie by the evidence.

As I understood counsel for the respondents’ most helpful and lucid presentation of his case, he would be constrained to accept the fact that it makes no difference in law whether the vehicle was to be taken to be saying: “I am here available for you to step into and hire me as a cab”, or whether it must be taken to say: “I am here available to be hired by you conditional on my owner’s approval and ordering me to take you where you want to go”.

His case is that neither of those representations or invitations or offers can properly be spelled out on the evidence as it stood when the case was stopped. As I see the matter, leaving aside any possible technicality about whether goods displayed in a shop window are offered for sale, such goods when so displayed at least amount to an invitation to open negotiations for the purchase of those goods, and, where only one item of the kind is displayed, an invitation to negotiate for the purchase of that article assuming it to be of a rare kind or rare in the relevant circumstances.

I think that, at the very lowest, the evidence given discloses behaviour and appearance on the part of this vehicle which amounted to an invitation, “Get in touch one way or another with my owner and see whether he is willing for me to take you as a vehicle which you are hiring”. For the reasons I have added, and for all those Lord Parker CJ has given, I agree.

BRABIN J. I agree with what has been said and have nothing to add.

Appeal allowed: Case remitted.

Solicitors: Wegg-Prosser & Co (for the appellant); Amery-Parkes & Co (for the respondents).


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PostPosted: Thu Aug 11, 2005 9:05 pm 
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I think nowadays each case needs to be determined on it's own merits, if merits is the right word. :?

A car parked in a side street with the driver reading his paper, is clearly not plying for hire, even if the PH does have a roof light and door signs, IMHO.

The roof light and door sign must have been permitted by the council, so would they be viewed as an accessory? :?

However a PH sitting near a taxi rank or outside a club without a prior booking is taking a chance that he will be prosecuted for plying for hire.

The Watford situation is quite interesting, because it appears the PH firm that works at the railway station get around current legislation by getting the drivers out of their cars.

It would seem that sitting in an office waiting for a job is ok, but not sitting in your vehicle. :wink:

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PostPosted: Thu Aug 11, 2005 9:21 pm 
our council hadly ewer take anyone to court.
some say they arent bright enough to catch them.
some say the naughties are too good to be caught. :roll:


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PostPosted: Fri Aug 12, 2005 12:04 am 
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Welbeck motors? Red Dauphines? That will bring back some memories for older members of this site! (McDeHack)

They were one of the first minicab companys to start trading in the 1960's.

As I recall from litrature on the company they came up with a fixed fee and used it as their slogan, something like ' ninepence a mile anytime anywhere'.

However that was their demise, they went bust a couple of years later, but that was where it all started.

Amazingly it took 44 years to get the trade licensed.

Only in London. :-|

Thanks for that gem JD.

If any Cabbies or indeed scabbies :wink: are interested in more about that era, I can whole heartedly recommend the book 'Cabbie' by veteran London cabbie, Alf Townsend.

http://www.amazon.co.uk/exec/obidos/ASI ... 64-3772655


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PostPosted: Fri Aug 12, 2005 12:43 pm 
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greenbadgecabby wrote:
Welbeck motors? Red Dauphines? That will bring back some memories for older members of this site! (McDeHack)


Well here is the other relevent case which was referred to in Welbeck. This might bring back memories to some in the London cab trade?
...............................................................................................

Cogley v Sherwood
Car Hire Group (Skyport) Ltd v Sherwood
Howe v Kavanaugh
Car Hire Group (Skyport) Ltd v Kavanaugh

ROAD TRANSPORT.


QUEEN’S BENCH DIVISION
LORD PARKER CJ, DONOVAN AND SALMON JJ
21, 22 APRIL 1959

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Road Traffic – Hackney carriage – Metropolitan police area – “Plying for hire” – Private hire service – Service advertised but vehicles to be hired not marked or exhibited as such – Hire arranged at office – Metropolitan Public Carriage Act, 1869 (32 & 33 Vict c 115), s 7.
===========================================

A hackney or stage carriage does not ply for hire within the meaning of the Metropolitan Public Carriage Act, 1869, unless it is exhibited as being for hire.

A car hire service was run from two offices in the public parts of an airport, and was advertised extensively by signs both at the offices and in other public parts of the airport. To hire a car a member of the public went to either office and asked to be driven to a named destination: he was escorted from the office to a standing place appointed by the owners of the airport where cars and their drivers were waiting, shown into a particular car, and driven to his destination, where the driver asked, and the passenger paid, a fare based on the distance travelled, in accordance with the scale of charges exhibited at the airport.

One standing place was a roadway to which the public had access, but the marks on the roadway defining the standing could not easily be seen when the cars were parked there. The cars appeared to be private cars, the drivers’ uniforms were similar to those worn by private chauffeurs, and so the cars at the standings did not give the appearance of being cars available for hire.

Held – The cars were not exhibited, and so were not plying for hire within the meaning of the Act. Appeal allowed.

Case Stated

This was an appeal by way of Case Stated by justices for the county of Middlesex, in respect of their adjudication as a magistrates’ court sitting at Uxbridge on 19 January 1959. The justices had convicted the appellants, and given them absolute discharges, on four informations charging offences against the Metropolitan Public Carriage Act, 1869, s 7, in that the appellants were respectively the owners and drivers of two unlicensed hackney carriages which had plied for hire without a licence in the Metropolitan Police District.

The appellant company’s business, which was to let cars on hire, mainly with chauffeurs, to persons requiring immediate transport, was conducted at both the passenger terminals at London Airport. By virtue of a contract between the company and the Minister of Transport and Civil Aviation, at each terminal the company had a desk in the public part and a standing for its cars conveniently placed so as to make the cars readily available to anyone who had hired a car at the desk, and agreed to hire the cars at an agreed scale of charges based on the type of car supplied and the distance travelled.

At the Central Terminal the standing was a roadway to which the public did not have access. Both standings were defined by marks on the roadway, but the marks were not easily seen when cars were parked there. The drivers’ uniforms were similar to those of private chauffeurs and the cars appeared to be private cars: they did not give the appearance of being available for hire. At both terminals the company also had more remote parking space from which the standings were replenished as and when cars there were hired and driven away.

The company’s desks were plainly visible to arriving passengers, and notices and advertisements displayed at the desks and elsewhere, in addition to telephone facilities and a push button bell, provided a clear intimation to members of the public at the airport of the availability to them of the company’s services.

On 28 October 1958, the two prosecutors, who were taxi-drivers, each went to different desks and asked to be driven to different destinations. At one desk the clerk wrote on a printed form the name of a driver and the reference number of one of the company’s cars; the passenger was escorted to the car, which was at the appropriate standing, and driven to his destination by the appellant Cogley.

At the other terminal the desk clerk made entries in a book and the passenger, the other prosecutor, was escorted to another car owned by the company, which was at the appropriate standing, and was driven to his destination by the appellant Howe. Each passenger was asked for and paid to his driver a fare calculated at the agreed scale of charges. The airport was within the Metropolitan Police District and neither car was a licensed hackney carriage. The justices held that the cars were plying for hire, and accordingly convicted the company and each driver of offences against s 7. The company and the drivers appealed.

Neil Lawson QC and W A Macpherson for the appellants.
J W Borders for the respondents.
J R Cumming-Bruce for the Minister of Transport and Civil Aviation.

22 April 1959. The following judgments were delivered.

LORD PARKER CJ. This is an appeal by way of Case Stated by justices for the county of Middlesex sitting at Uxbridge, before whom four informations were preferred charging offences against s 7 of the Metropolitan Public Carriage Act, 1869, in that the appellants were respectively the owners and drivers of two unlicensed hackney carriages, which had unlawfully plied for hire without a licence.

The magistrates, after very careful consideration of the authorities, felt constrained to hold that the offences were proved. They convicted the appellants accordingly, but gave them an absolute discharge, ordering in the case of the appellant company that it should pay twelve guineas costs.

The facts giving rise to this matter are shortly as follows: at London Airport there are two sets of buildings for handling passengers, the Central Terminal and the North Terminal. The appellant company, the Car Hire Group (Skyport) Ltd are, as their name indicates, a car hire concern. They hire out cars which can be driven by customers themselves, but the major part of their business is the hiring out of cars with chauffeurs.

They carry on business at London Airport at both terminals under an agreement with the Minister of Transport, who has afforded them standing room for their cars and also facilities in both buildings in the nature of a desk where orders can be taken by people arriving at the airport for transport to their destination in the company’s cars. As those desks are extensive advertisements of the facilities available, and those advertisements also appear in other parts of the premises.

At each terminal the company is allowed to use a place where its vehicles can stand. In one case, the Central Terminal, the standing is in a roadway to which the public have no access; at the other terminal they stand on a roadway to which the public has access, but there is nothing at the stand which indicates that the vehicles are for hire. They appear to any member of the public to be ordinary private cars accompanied by private chauffeurs.

On 28 October 1958, the two respondents, who are taxi-cab drivers, for the purpose of testing the position, went and hired two cars, one car at the Central Terminal and one at the North Terminal. It is as a result of that that these informations are laid, informations against the driver of the car hired at the Central Terminal and the appellant company, the owners of the car, and two similar informations in regard to the car hired at the North Terminal.

It was broadly on those facts that the magistrates held that both cars were plying for hire within the Metropolitan Public Carriage Act, 1869.

The Act provides, so far as it is relevant to these proceedings, by s 2:

“The limits of this Act shall be the Metropolitan Police District, and the City of London and the liberties thereof.”

By s 4, which is the definition section, it is provided:

“In this Act ‘stage carriage’ shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road, or place within the limits of this Act, and in which the passengers or any of them are charged to pay separate and distinct or at the rate of separate and distinct fares for their respective places or seats therein.

“’Hackney carriage’ shall mean any carriage for the conveyance of passengers which plies for hire within the limits of this Act, and is not a stage carriage.”

Finally by s 7, it is provided:

“If any unlicensed hackney or stage carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding £5 for every day during which such unlicensed carriage plies … ”

It is quite clear that London Airport is within the limits of the Act, and therefore the only question falling to be determined in these proceedings is whether either or both of the two cars I have mentioned were plying for hire. If they were, then they were clearly unlicensed, and an offence was committed.

The court has been referred to a number of cases from 1869 down to the present day dealing with hackney carriages and stage carriages. Those decisions are not easy to reconcile, and, like the magistrates, with whom I have great sympathy, I have been unable to extract from them a comprehensive and authoritative definition of “plying for hire”.

One reason, of course, is that these cases all come before the court on Case Stated, and the question whether a particular vehicle is plying for hire, being largely one of degree and therefore of fact, has to be approached by considering whether there was evidence to support the magistrates’ finding.

In those circumstances it was unnecessary, and clearly inadvisable, for the court to attempt to lay down an exhaustive definition. Indeed, that was specifically referred to by Lord Hewart CJ in Griffin v Grey Coaches Ltd ((1928), 45 TLR 109). Lord Hewart CJ said:

“In the course of the argument reference has been made to a considerable number of cases, and attention has been directed to the occasional narrowness of the field of argument and decision in those cases. But it is to be observed that cases on this interesting question of plying for hire usually turn upon the question whether there was or was not evidence in the particular facts of the case justifying the conclusion arrived at by the justices. Nowhere is there any attempt to formulate an exhaustive definition of the meaning of the term ‘plying for hire’ … ”

For myself I think that the proper course is to start with the words of the Act and to construe them, before seeing whether there are any decisions binding on us which constrain us to put a different construction on the words. Approaching the matter in this way, the first thing that strikes one is that the Act is dealing with carriages plying for hire, not with persons carrying on the business of letting out carriages.

It is the carriage that must ply for hire, and though a human agency must clearly be involved, the Act is directing one’s attention to the carriage under consideration and posing the question: is it plying for hire?

While no doubt in 1869 persons were engaged in letting out carriages on hire, the legislature clearly could not then envisage the considerable business which has grown up of recent years of hiring out cars. Indeed today, as a matter of common sense, I do not think that anyone would say that vehicles belonging to the many car hire concerns are plying for hire in the ordinary sense of the word. It seems to me that the Act is prima facie dealing with a particular carriage whose owner or driver invites the public to be conveyed in it.

The idea is well set out by Montague Smith J in Allen v Tunbridge ((1871), LR 6 CP 481) where the learned judge says (at p 485):

“I am of the same opinion upon the authority of the caseb in the Queen’s Bench. It appears to have been held there, that, if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the Act. That is very different from a customer going to a job-master to hire a carriage.”
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b Clarke v Stanford ((1871), L.R. 6 Q.B. 357)
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Indeed that passage was approved in Armstrong v Ogle ([1926] 2 KB 438). In that case Lord Hewart CJ said:

“What is the principle to be applied? It was stated in a single sentence by MONTAGUE SMITH, J., in Allen v. Tunbridge where he said (referring to a previous casec): ‘It appears to have been held there, that, if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the Act. That is very different from a customer going to a job-master to hire a carriage’ [then LORD HEWART says:] The contrast is between a particular and definite private hiring and a public picking up of passengers.”
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c Clarke v Stanford ((1871), L.R. 6 Q.B. 357)
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The decision in Allen v Tunbridge was a decision of the Court of Common Pleas, but the same idea is, I think, behind the contemporary decisions in the Court of Queen’s Bench and the Court of Exchequer. Thus in Case v Storey ((1869), LR 4 Exch 319), Kelly CB in referring to the words “plying for hire” under a different Actd, said:
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d The London Hackney Carriage Act, 1831
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“Those words must mean that the carriage is to be at the disposal of any one of the public who may think fit to hire it.”

In Clarke v Stanford ((1871), LR 6 QB 357), Cockburn CJ said:

“But where a person has a carriage ready for the conveyance of passengers, in a place frequented by the public, he is plying for hire, although the place is private property.”

Mellor J said:

“But what is the carriage there for? Though the driver makes no sign, he is there to be hired by persons who arrive by train, and there is no restriction as to the persons who, arriving by train, shall hire the carriage; it is therefore plying for hire, within the meaning of the statute.”

Lush J said:

“This carriage was awaiting the arrival of a train, in order to be hired by any person who might come by the train. That is a plying for hire, within the meaning of this statute.”

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.

Looked at in that way, it would matter not that the driver said: before you hire my vehicle, you must take a ticket at the office; aliter, if he said: you cannot have my vehicle but if you go to the office you will be able to get a vehicle, not necessarily mine.

There are, however, some cases which point to a different conclusion. For my part, however, I find it unnecessary to go into them and for this reason. In all the cases where it has been held that a carriage was plying for hire, it was in fact there and on view.

Thus in Gilbert v McKay ([1946] 1 All ER 458), cars were held to be plying for hire even though, as I assume, a member of the public could not choose his vehicle, but, be that as it may, the vehicles were clearly on view, they were standing, like taxis might stand on a rank, outside offices bearing the sign “Cars for Hire”. It is true that in that case it was suggested that there might be a plying for hire even if the cars were not on viewe, and the same appears in Cavill v Amos ((1900), 16 TLR 156), where Channell J in giving judgment, said:
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e See per Lord Goddard CJ [1946] 1 All ER at p 459, letters d–f
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“In ordinary cases, in order that there should be a plying for hire, the carriage itself should be exhibited. He thought, however, that a man might possibly ply for hire with a carriage without exhibiting it, by going about touting for customers.”

For myself I think that it is of the essence of plying for hire that the carriage should be exhibited. Here it is clear that the cars in question were not exhibited in this sense of the word. As I have said, the only cars that were on view were at one terminal, and to any ordinary member of the public they did not appear to be for hire; they appeared merely to be ordinary private cars with private chauffeurs.

It is said, however, that the cases concerning stage carriages and in particular Griffin v Grey Coaches Ltd (45 TLR 109), to which I have already referred, force one to a different conclusion. Indeed, I think that it was that case that chiefly influenced the magistrates. Thus, in setting out their reasons, they say this:

“Indeed it is not necessary that at the time the agreement is reached by the hirer and the passenger for the passenger’s conveyance that the actual driver or the vehicle to be used is known (Griffin v. Grey Coaches, Ltd.).”

A little later on they say:

“We considered that the facts in Griffin v. Grey Coaches, Ltd. and the cases before us had two substantial similarities: in both cases the existence of the service offered to the public was made known by advertisement and the vehicle used was not on view or allocated to the particular journey at the time the agreement for the journey was made.”

In Griffin’s case, which, as I have said, concerned a stage carriage, the company, Grey Coaches Ltd were owners of motor charabancs, plying at regular hours between London and Brighton. The question was whether the vehicles317 were plying for hire at Brighton, in respect of which there was no licence. It appears that there were extensive advertisements exhibited at the office in Brighton advertising the times of departure of the charabancs, and tickets could be purchased at the office up to ten minutes before the advertised time, but not afterwards.

At the time when the tickets were purchased, there was no charabanc in the garage adjoining the office, and it was not until twenty minutes later that the charabanc was driven up by one of the company’s servants into the yard to take on the passengers. In the course of his judgment Lord Hewart CJ said (45 TLR at p 111):

“What is the real difference, apart from mere accidental difference, between that state of affairs and the state of affairs which exists where the driver of the coach, by gesture or by words, invites the members of the public to board, and to travel upon, a vehicle which they can see? It may be, as has been said, that the particular coach was not then appropriated to the particular journey. It was waiting to be appropriated; it was in a proper and convenient place for that very purpose.”

For myself I do not think that this decision in regard to a stage carriage is compelling authority in this case. This court, of course, treats itself as bound by its own decisons. There is, however, at present no appeal, and, that being so, I do not think that the court should treat itself as bound by a previous decision unless there can be said to be no real distinction.

It is true that “plying for hire” must have the same meaning whether applied to stage carriages or to hackney carriages. In the former case, however, it may well be far easier to find a plying for hire. Indeed, where a schedule of regular services is advertised and a vehicle or vehicles has been performing those services for some time in full view of the public, there is something to be said for the view that they are exhibited in the sense that

I have indicated, even though a particular vehicle is not on view when the ticket is bought. I do not think that Griffin’s case compels me to come to a conclusion in regard to hackney carriages different from that indicated earlier in this judgment.

In my judgment the magistrates were wrong in treating this case as indistinguishable from Griffin’s case. No conceivable blame attaches to them, and indeed the court is grateful for the clear reasoning set out in the Case on which their decision was based. I would allow this appeal.

DONOVAN J. The Lord Chief Justice has already quoted the definition of “hackney carriage” in s 4 of the Metropolitan Public Carriage Act, 1869f, and I need not repeat it. Section 6 gives the Secretary of State power to license to ply for hire both stage carriages and hackney carriages within the territorial limits of the Act, namely, the Metropolitan Police District and the City of London. Section 9 gives him power to make regulations inter alia for fixing the stands of hackney carriages; s 7 provides, as has already been stated, that if any unlicensed hackney carriage plies for hire or uses one of the fixed stands the owner is liable to a continuing penalty.

The motor cars concerned in the present case are hackney carriages within the definition in s 4, and London Airport is within the territorial limits of the Act. The sole issue is whether these cars, in the circumstances detailed in the case, and which the Lord Chief Justice has already narrated, “ply for hire” within the meaning of s 7.

When that section was enacted hackney carriages were, I suppose, solely horse-drawn, and indeed one meaning of the word “hackney” is “an ambling horse”. The purpose of the Act was clearly to exercise control over these vehicles so as to ensure a proper standard of safety and cleanliness, and of competency in their drivers, for the driver has to be licensed, too, under s 8. The motor car has now displaced the horse carriage and in addition a very large business has grown up of private hire of motor cars.

These new conditions do not mean that plain words in the statute are now to be given something other318 than a plain meaning. They do, however, in my view involve that when the court is asked to apply the language of 1869 to the vastly different circumstances of 1959, then a very close scrutiny of the words is called for.

The expression “plying for hire” is not defined in the statute, and I would respectifully concur in the justices’ finding that no comprehensive definition is to be found in the decided cases; but the term does connote in my view some exhibition of the vehicle to potential hirers as a vehicle which may be hired. One can perhaps best explain the reason by taking an example. It is a fairly common sight today to see in smaller towns and villages a notice in the window of a private house “Car for Hire”. If the car in question is locked up in the owner’s garage adjacent to the house, it could not in my view reasonably be said that at that moment the car was “plying for hire”.

If a customer wishes to hire it, he comes and makes his terms with the owner. On the return journey the owner might exhibit a sign on its windscreen, as some of them do, “Taxi” and then clearly he would be plying for hire. Similarly, if he left the car outside his house, the same notice on the car would involve, I think that the car was then plying for hire, and the notice in the window might also then have the same effect.

The essential difference in the circumstances that I have compared is that in the one the car is not exhibited at all, whereas in the other it is, coupled with the notification that it may be hired. I am fortified in suggesting a test of exhibition by several considerations.

The first is that there is no decided case where a hackney carriage was held to be plying for hire where it was not exhibited so as to be visible to would-be customers. In Gilbert v McKay ([1946] 1 All ER 458) the cars were just outside the premises of the car hire firm which bore advertisements that cars were for hire.

Secondly, in s 7, the words are: “If any unlicensed carriage plies for hire” thus indicating that one is to look and see what the vehicle itself is doing, albeit under human agency. I find it very difficult to say that a vehicle which is not exhibited in some way is a vehicle plying for hire. Like my Lord, I do not regard the decision in Griffin v Grey Coaches Ltd ((1928), 45 TLR 109) as antagonistic to this view.

There it is true that the charabanc was not on view at the time that the passenger booked his seat. But the court was there dealing with a regular service at regular times along a regular route. One can, I think, exhibit a vehicle such as an omnibus or a charabanc just as effectively for the purpose of hire in this way as by any other. By these means it will come to the notice of prospective customers, which after all is the object of exhibition.

The court is dealing in this case with two particular vehicles, one engaged from the Central Terminal and one from the North Terminal. The case finds that at the Central Terminal the cars stood while waiting to be hired on a roadway to which the public had no access.

There is no such precise finding as to the situation of the standing at the North Terminal, but there is certainly no evidence that at either standing there was any notice that the cars, or any of them, were for hire. This no doubt explains the contention put in the forefront of the appellants’ case, namely, that the two cars were not exhibited to intended passengers, or at all. This is not met by any opposing contention on the part of the respondents. The justices appear to deal with the case on the footing that the cars were not on view, for they say in effect that, despite this, the decision in Griffin v Grey Coaches Ltd compelled them to the conclusion that this circumstance was inconclusive.

I have already stated why in my view the charabancs concerned in that case were in fact on view. If, then, the two cars with which this case is concerned were not exhibited to the public as being available for hire, I think that it is wrong to say of these vehicles that they were then hackney carriages “plying for hire”.

The respondents’ main contention begins in this way: plying for hire really means carrying out the business of carrying passengers for hire or reward. With respect I think that this suggested definition is misleading. The business is carried on by the owners of the cars and s 7 is not designed to regulate that business as such. It deals with the vehicle itself, and enacts that the vehicle shall not, if unlicensed, ply for hire. Of course, the vehicle can do nothing except under human control, but the section is contemplating the function which the vehicle itself is fulfilling, albeit under human control, at a particular time.

I do not find it possible to say that a hackney carriage not on view to the public is, when not so on view, plying for hire, particularly when at the same time there is no indication in or around it that it ever does such work. I agree also with the judgment of the Lord Chief Justice, and accordingly I also would allow this appeal.

SALMON J. I also agree, for the reasons stated by my Lord, although not without some doubt, that this appeal should be allowed. Such doubt as I feel springs not from the words of the statute, which appear to me to be reasonably plain, but from the multifarious decisions on it. If the matter were res integra, I should have thought that it was obvious that the words “plying for hire” have a meaning different from and narrower than “letting for hire” or “carrying on a private hire business”. But for authority, I should have thought that a vehicle plies for hire if the person in control of the vehicle exhibits the vehicle and makes a present open offer to the public, an offer which is accepted by the member of the public stepping into the vehicle.

In the case of a bus or charabanc it would matter not that he buys the ticket before he goes into the bus or after he enters the bus. In cases such as those, the member of the public knows nothing about and has no time for making any inquiry about the vehicle or the standing or indeed the identity of the owner, and it is not surprising that in cases such as those Parliament should make arrangements so that the vehicles which so ply for hire shall be of a certain standard of safety and comfort on which the member of the public can rely.

From time to time in the past people owning vehicles which were plying for hire have exercised their ingenuity for circumventing the provisions of the Metropolitan Public Carriage Act, 1869, and on a large number of occasions this court has had to consider those attempts. During the course of the case, observations have been made which deal with the particular circumstances of the case, but which have been followed and expanded in other cases, and so we have come to a position where, on the authorities, it is possible, as has been pointed out by counsel for the Minister of Transport and Civil Aviation, to make a powerful argument, as counsel for the respondents had done, for holding that this Act means something quite different from what any ordinary man would think that it meant on reading it.

Indeed this court, to my mind, is driven to the very brink of saying that whenever a private hire firm has a fleet of motor cars in its garage and advertises for customers, those motor cars are plying for hire. That seems to me to be quite wrong, and it was never within the contemplation of the Act that the job-master, who was the counterpart in 1869 of the car hire service of 1959, should be within the Act, as was pointed out by Montague Smith J in Allen v Tunbridge ((1871), LR 6 CP 481 at p 485), as long ago as 1871.

I do not feel that we are constrained by authority to cross the brink, although authority I think prevents us finding that the making of a present open offer is a necessary part of plying for hire. I do not feel compelled by any authority to find that a vehicle plies for hire unless it is exhibited. In this case the vehicles were not, as my Lords have pointed out, exhibited, and for that reason I agree that this appeal should be allowed.

Appeal allowed.


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