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There is currently a discussion taking place about pink ladies, pink underwear and pink gins. Here is a little item that touches on private hire exemptions such as the services that the pink ladies might be offering.
CRAWLEY BOROUGH COUNCIL v OVENDEN
QUEEN'S BENCH DIVISION
[1992] RTR 60, 156 JP 877
HEARING-DATES: 28 October 1991
28 October 1991
Hackney carriage -- Private hire vehicle -- Exemption from hackney carriage licensing provisions -- Implied contract for carriage of passengers -- No agreed or any minimum length or period of notice -- Whether exemption finding possible -- Local Government (Miscellaneous Provisions) Act 1976 ss 46(1)(a)(b)(d)(2), 48(1), 51(1), 55(1), 75(1)(b), 80(1)
HEADNOTE:
Section 46 [in Part II] of the Local Government (Miscellaneous Provisions) Act 1976 provides:
'(1) Except as authorised by this Part of this Act -- (a) no person being the proprietor of any vehicle, not being a hackney carriage in respect of which a vehicle licence is in force, shall use . . . the same . . . in a controlled district as a private hire vehicle without having for such a vehicle a current licence under section 48 of this Act; (b) no person shall in a controlled district act as driver of any private hire vehicle without having a current licence under section 51 of this Act . . . (d) no person shall in a controlled district operate any vehicle as a private hire vehicle without having a current licence under section 55 of this Act . . . (2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.'
Section 48(1) provides:
'. . . a district council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence . . .'
Section 51(1) provides:
'. . . a district council shall, on the receipt of an application from any person for the grant to that person of a licence to drive private hire vehicles, grant to that person a driver's licence . . .'
Section 55(1) provides:
'. . .a district council shall, on receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles grant to that person an operator's licence . . .'
Section 75(1) provides:
'Nothing in this Part of this Act shall . . . (b) apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days . . .'
Section 80(1) provides:
'In this Part of this Act . . . "controlled district" means any area for which this Part of this Act is in force by virtue of a resolution passed by a district council . . ."private hire vehicle" means a motor vehicle . . . which is provided for hire with the services of a driver for the purpose of carrying passengers . . .'
The defendant, who was the self-employed owner-driver of a private hire vehicle used for transporting children between their homes and schools in the controlled area of a district council, was charged with contravening section 46(2) within Part II of the Local Government (Miscellaneous Provisions) Act 1976 in that he on a certain day on a certain road within the council's district used, acted as a driver of and operated a private hire vehicle without having current licences as required by respectively paragraphs (a), (b) and (d) of section 46(1) of the Act of 1976. The defendant admittedly had no licences and his defence was that the provisions did not apply for, within the saving in section 75(1)(b) of the Act of 1976, the vehicle was used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days. The justices found that there was an implied contract as from a course of dealing between the parties over several years, that there was never any agreed maximum or minimum length of term or minimum notice period for termination of the contract, that the defendant's vehicle, which was not the original vehicle used by him, but had been substituted without prior knowledge or consent of the council and had become the contractual vehicle and that the defendant also transported parcels to which Part II of the Act of 1976 had no application. They were of opinion that, although the contract was performed usually on the basis of a five-day week during school terms, the defendant was expected to have his vehicle available for the authority's use at weekends and that, because he carried parcels only and no passengers other than the children, the saving within section 75(1)(b) applied and he required no licence and they dismissed the informations.
On appeal by the prosecutor:
Held, allowing the appeal, that, in order to establish the saving in section 75(1)(b) of the Act of 1976, the vehicle being used for carrying passengers had to be shown to be being used under a contract for its hire for a period of not less than seven days and the contract had to relate to a particular identified vehicle (p 64L-65A); so that, in view of the justices' findings that there never was an agreed minimum of length or any minimum period of notice in the contract, the saving in section 75(1)(b) could not apply, whether or not the defendant's vehicle had been allocated to the contract; and that, accordingly the case would be remitted to the justices with a direction to convict.
Leeds City Council v Azam [1989] RTR 66, DC and Pitts v Lewis (Note) [1989] RTR 71, DC applied.
Quaere Whether the saving in section 75(1)(b) is applicable only to an offence constituted by use of a vehicle in contravention of section 46(1)(a)
INTRODUCTION:
Case Stated by West Sussex Justices sitting at Crawley
1 On 9 February 1990 three informations were preferred by Crawley Borough Council by PN Crossley, Solicitor and Borough Secretary, the prosecutor, against Stanley Gordon Malcolm Ovenden, the defendant, that: (i) on 15 September 1989 he did knowingly operate a private hire vehicle, namely, a red Ford Sierra index number E98 JPA on a road, namely, the Balcombe Road in the controlled district of Crawley within the meaning of Part II of the Local Government (Miscellaneous Provisions) Act 1976 without having a current licence under section 55 of the Act of 1976, contrary to section 46(1)(d) of that Act; (ii) on 15 September 1989 he did knowingly act as a driver of a private hire vehicle, namely, a red Ford Sierra index number E98 JPA on a road, namely, the Balcombe Road in the controlled district of Crawley within the meaning of Part II of the Local Government (Miscellaneous Provisions) Act 1976 without having a current licence under section 51 of the Act of 1976 contrary to section 46(1)(b) of that Act; (iii) the defendant being the proprietor thereof did on 15 September 1989 use a vehicle, namely, a red Ford Sierra index number E98 JPA on a road, namely, the Balcombe Road in the controlled district of Crawley within the meaning of Part II of the Local Government (Miscellaneous Provisions) Act 1976 as a private hire vehicle without having for such a vehicle a current licence under section 48 of the Act of 1976, contrary to section 46(1)(a) of that Act.
2 The justices heard the informations on 18 June 1990 and found the following facts. (a) The facts as set out in the three informations had already been formally admitted by the defendant's counsel. (b) The defendant had held but had not renewed his driver, vehicle and operator licences as at 31 March 1989. (c) The defendant was self-employed and was commonly engaged by the education authority to transport children to and from their homes and schools in the Crawley area. (d) There was no written contract between the West Sussex County Council education department and himself in this matter. (e) There was however an implied contract as from a course of dealing between the parties over several years from a date in 1986. He had been vetted by the education authority and had entered into an oral agreement with them for the provision of his services. (f) Payment was by means of a monthly invoice by reference to the work actually done during that month and the then prevailing rate of charge. (g) There never was at any stage an agreed minimum or maximum length of term of the contract. (h) There never was at any stage any minimum notice period by either side agreed for termination of the contract. (i) The original vehicle used under the oral agreement was not the vehicle identified on the informations and it was the case that the defendant substituted the vehicle without the prior knowledge or consent of the county council. (j) The defendant otherwise worked and supplemented his income by making his vehicle available to certain airlines at Gatwick Airport, eg Monarch Airlines, for the transport of parts and equipment to which Part II of the Act of 1976 had no application. (k) At the time of the three alleged offences, ie, on 15 September 1989 the defendant did not have any current licences under sections 48, 51 and 55 of the Act of 1976.
3 It was contended by the prosecutor that: the contract was never performed at any stage for a continuous seven day period as the defendant did not work over weekends or through school holidays; in the alternative there might have been from time to time continuous periods of more than seven days but there were frequent weekend breaks, the norm being a five day working period; for the section 75(1)(b) exemption to apply, if a contract within the meaning of that section was found to exist, then the vehicle to which the exemption would apply had to be exclusively appropriated to such a contract.
4 It was contended by the defendant that: (1) he had a statutory defence open to him, namely section 75(1)(b) of the Local Government (Miscellaneous Provisions) Act 1976; (2) he had been told by an officer of the education department that, due to the nature of his business, he was exempt from needing to be licensed; (3) people working for West Sussex education department did not necessarily have to be licensed as a private hire operator in certain circumstances; (4) he was not given a written contract due to the continual amendments that would be necessary to keep the record up to date; (5) the only written document the defendant had ever received from West Sussex County Council was a list of proposed passengers, and that had been up-dated over the years.
5 The justices were of the opinion that: (1) the contract was performed generally on the basis of a five day week during the school term but the defendant was expected to have his motor vehicle available for the use of the education authority at weekends when required; the defendant did not work through the school holidays; he also carried only parcels for an airline for which he required no licence, but he was expected to give priority to West Sussex education authority. The justices were, therefore, of the opinion that because the defendant was carrying parcels only and never passengers, apart from those under the contract, he did not require a licence, and therefore was able to raise the defence under section 75(1)(b) of the Act of 1976. (2) The justices were further of the opinion that, although a substitute vehicle was now being used, the vehicle had been substituted due to depreciation on two occasions and that vehicle then became the contractual vehicle; the education authority was aware of the changes of vehicle and had noted the vehicle type to be the same, albeit an updated version.
6 The justices were referred to two cases:
Pitts v Lewis (Note) [1989] RTR 71, DC
Leeds City Council v Azam [1989] RTR 66, DC.
[The justices dismissed the three informations.]
The prosecutor appealed.
The questions for the opinion of the court were: (A) whether the justices were correct in law in finding that the contract was one for the hire of a vehicle; (B) if that be so, whether the justices were correct in law in finding that the contract was a contract for hire of the vehicle for a period of not less than seven days; (C) further whether the justices should have not directed themselves that for section 75(1)(b) to apply a vehicle must be exclusively appropriated to the contract thereunder; (D) if that question was answered in the affirmative whether the justices were correct in finding on the facts of this case that section 75(1)(b) applied where a substitute vehicle was in operation; (E) finally, whether the justices were correct in law in finding on the facts of the case that there could be a contract between the defendant and West Sussex County Council within the meaning of section 75(1)(b).
COUNSEL:
GC Stephenson for the prosecutor; The defendant did not appear and was not represented.
PANEL: WATKINS, MANN LJJ, ROCH J
JUDGMENTBY-1: MANN LJ
JUDGMENT-1:
MANN LJ: This is an appeal by way of case stated. The appellant is Crawley Borough Council, the prosecutor. The defendant is Stanley Gordon Malcolm Ovenden, who neither appears nor is represented but who has written to the court indicating his availability to answer any questions which the court which might wish to ask of him.
The case is stated by West Sussex Justices sitting at Crawley on 18 June 1990.
On that day the justices dismissed three informations which had been preferred by the prosecutor against the defendant alleging that on 15 September 1989 on Balcombe Road within the district of Crawley he respectively operated, drove and used a Ford Sierra motor car as a private hire vehicle without having the requisite licences to operate, drive and use. That conduct was alleged to be conduct which constitutes an offence by virtue of section 46(2) of the Local Government (Miscellaneous Provisions) Act 1976.
Part II of the Act of 1976 contains a code in relation to, amongst other vehicles, private hire vehicles. The code comes into force in an area when the district council resolves that it should, whereupon the district becomes a controlled district and a licensing regime in regard to private hire vehicles comes into effect. Crawley Borough Council has passed the necessary resolution and the district council area of Crawley is therefore a controlled district.
The expression
'private hire vehicle'
is given a wide meaning by section 80(1) of the Act as meaning for present purposes:
'A motor vehicle . . . which is provided for hire with the services of a driver for the purpose of carrying passengers.'
In general it is an offence for the proprietor for a vehicle to use it in a controlled district as a private hire vehicle without having for it a licence under section 48. In general it is an offence for a person to act as the driver of a private hire vehicle in a controlled district unless he has a licence under section 51. In general it is also an offence for a person to operate a vehicle in a controlled district as a private hire vehicle without an operator's licence under section 55. Those general offences can be picked up from section 46(1)(a), (b) and (d) of the Act.
The prosecutor's case in support of the informations was that on 15 September 1989 the defendant used, drove and operated the Sierra motor car, which was owned by him, as a private hire vehicle without any of the three requisite licences.
Before the justices it was formally admitted by counsel on behalf of the defendant that on 15 September 1989 the defendant owned the Sierra car, which he on that day used, drove and operated within the controlled district as a private hire vehicle without being the possessor of any one of the three licences.
The dispute before the justices was as to whether the defendant could bring himself within one of the saving provisions which removes the application of the Act in certain circumstances. The savings are in section 75 and the material one is section 75(1)(b) which provides:
'Nothing in this part of this Act shall . . . (b) apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days.'
The onus of bringing himself within that saving is on the defendant for the saving is an exception and section 101 of the Magistrates' Courts Act 1980 is therefore applicable. The onus is discharged on a balance of probabilities. In this case the justices were of the opinion that the defendant could bring himself within the saving provision and dismissed the three informations.
Mr Stephenson, on behalf of the prosecutor, now contends that the justices were wrong to do so.
The justices found certain facts. They are contained in paragraph 2 of the case and I read them so far as they are material:
' . . . (c) The defendant was self-employed and was commonly engaged by the education authority to transport children to and from their homes to schools in the Crawley area. (d) There was no written contract between the West Sussex County Council education department and himself in this matter. (e) There was however an implied contract as from a course of dealing between these parties over several years from a date in 1986. He had been vetted by the education authority and had entered into an oral agreement with them for the provision of his services. (f) Payment was by means of a monthly invoice by reference to the work actually done during that month and the then prevailing rate of charge. (g) There never was at any stage an agreed minimum or maximum length of term of the contract. (h) There never was at any stage any minimum notice period by either side agreed for termination of the contract. (i) The original vehicle used under the oral agreement was not the vehicle identified on the informations and it was the case that the defendant substituted the vehicle without the prior knowledge or consent of the county council . . .'
Mr Stephenson drew our attention to two decisions of this court. The first was Pitts v Lewis (Note) [1989] RTR 71 where the court was presided over by Parker LJ who delivered the leading judgment. In his judgment Parker LJ dealt with the defence which in that case had been raised under section 75 and said, at p 73H-K:
'With regard to the main point, that is to say, whether there was here a defence under section 75, it is to be noted that the offence is an offence of using a vehicle without a licence under section 48. That means that one has to look at the particular vehicle and then answer the question whether that vehicle is being used only for carrying passengers for hire or reward under a contract for the hire of that vehicle for a period of not less than seven days. It must therefore be shown that the particular vehicle which it is said has been used in contravention of the Act was itself a vehicle which was being used for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days.'
Parker LJ emphasised the point, at p 74A:
'For a defence under section 75 to be made out it must in my view be a contract for hire for a minimum period of seven days and it must relate to a particular identified vehicle.'
The second case is Leeds City Council v Azam [1989] RTR 66 where, in relation to facts where the contract as found was the contract for the supply of a service rather than of a car, it was observed that such a contract did not correspond to the words of the section and that Pitts v Lewis (Note) [1989] RTR 71 accorded with that conclusion.
Looking at the facts as found in this case it would be easy to conclude in conformity with Pitts v Lewis (Note) and Leeds City Council v Azam that here there was not a contract in relation to a particular vehicle and that the contract was, in truth, one for the provision of a service. Resting there, that would in my judgment be decisive of the matter. However, the matter cannot rest there because, despite the findings of fact which would inevitably lead to that conclusion, the justices in that part of the case in which they expressed their opinion said, at paragraph 5(2):
'We were further of the opinion that, although a substitute vehicle was now being used, the vehicle had been substituted due to depreciation on two occasions and that vehicle then became the contractual vehicle; the education authority was aware of the changes of vehicle and had noted the vehicle type to be the same, albeit an updated version.'
That opinion gives rise to a suspicion that the justices had in mind that there was a 'contractual vehicle' despite the absence of any finding that there was.
Mr Stephenson accepts that here is disclosed the possibility that there may have been the allocation of a vehicle. However he says and in my judgment rightly says that, even if there was an allocation of a vehicle, the findings of fact which have been made are decisively against the application of the saving in section 75, that is to say, the findings that there was never an agreed minimum period or any minimum period of notice. Accordingly, on those findings the saving in section 75 could not in any event apply regardless of allocation.
I think Mr Stephenson is right and, accordingly, on that ground I would allow this appeal.
I do not find it in any way necessary to accept the defendant's courteous offer to the court to respond to any questions put.
Also I find it unnecessary to deal with the point hinted at by Mr Stephenson to the effect that section 75 is a saving applicable only to an offence constituted by a contravention of section 46(1)(a) of the Act. I express no opinion upon that point.
Accordingly, I would remit this case to the justices with a direction to convict and I would answer question (A) posed in the case which is:
'Were the justices correct in law in finding that the contract was one for the hire of a vehicle?'
with this answer:
'No.'
Questions (B), (C) and (D) do not then arise and question (E) appears to me to be the same question as (A) but cast in a different form.
JUDGMENTBY-2: ROCH J
JUDGMENT-2:
ROCH J: I agree.
JUDGMENTBY-3: WATKINS LJ
JUDGMENT-3:
WATKINS LJ: I agree.
DISPOSITION:
Appeal allowed with costs. Questions in case answered as follows: as to (A), No; as to (B), (C) and (D), they do not arise; as to (E), it is the same as (A) but cast in a different form. Adjudication of West Sussex Justices set aside. Case remitted to the justices with a direction to convict
SOLICITORS:
PN Crossley, Crawley
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