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I thought I had posted House V Reynolds but obviously not. Anyway here it is for anyone interested?
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House and Others v. Reynolds

Queen's Bench Division

DC

Lord Widgery C.J. Eveleigh and Slynn JJ.

1976 Nov. 3

Hackney Carriage--Fare--Collateral agreement--Booking fee for hiring by telephone--Charge to hirer in addition io recorded fare on meter--Whether payment of sum more than fare--Whether "fare"--Town Police Clauses Act 1847 (10 & 11 Vict. c. 89), ss. 55, 58

Section 55 of the Town Police Clauses Act 1847 provides:

"No agreement whatever made with the driver, or with any person having ... the care of any such hackney carriage, for the payment of more than the fare allowed by any byelaw made under this or the special Act, shall be binding on the person making the same; ... and if any person actually pay to the driver ... any sum exceeding the fare... such driver shall be liable to a penalty ..."

Section 58 provides:

"Every proprietor or driver of any such hackney carriage who is convicted of taking as a fare a greater sum than is authorised by any byelaw ... shall be liable to a penalty..."

The defendants, who were drivers and owners of hackney carriages licensed within a district for which fares were fixed by byelaws, operated a centralised telephone booking office for the hire of taxis. They required any person telephoning for a taxi to pay a booking fee of 10p in addition to the fare recorded on the meter and, with the hirer's consent, the 10p was collected by the driver when collecting the recorded fare at the end of the journey. In relation to a different telephone hiring in each case the driver was convicted of an offence under each of sections 55 and 58 of the Town Police Clauses Act 1847 and the respective owner was convicted of aiding and abetting the two offences.

On appeal against conviction: --

Held, allowing the appeal in part, (1) that section 55 struck at the payment by the passenger of something apart from, or over and above the fare itself, and was aimed at a collateral agreement to the agreement to hire; and that, since the booking agreement was an agreement collateral to the hiring agreement and provided for the payment of a sum more than the fare allowed by the byelaws, there had been a breach of section 55 and the appeal against convictions under section 55 would be dismissed.
(2) That section 58 related to the fare itself, namely, a sum of money paid and received as the fare; so that, since the 10p. was paid not as the fare but something collateral thereto, no offence had been committed under section58and the convictions under section 58 would be quashed.

No cases are referred to in the judgment or were cited in argument.

CASE STATED by Hampshire justices sitting at Southampton.

On May 7, 1976, the following informations were laid by the prosecutor, Matthew Reynolds, City Secretary and Solicitor of Southampton, against the defendant Christina House that on April 5, 1976, she being the driver of licensed public hire hackney carriage No. 110 did exact and take from Mary Cormack for the hire of the hackney carriage the sum of 10p beyond and exceeding the fare to which she as such driver was entitled by law, contrary to section 55 of the Town Police Clauses Act 1847 and byelaw 18 of the Southampton City Council Hackney Carriage Byelaws; further that on April 5, 1976, she being the driver of licensed public hire hackney carriage No. 110 did takes as a fare a greater sum than that authorised by the Southampton City Council Hackney Carriage Byelaws, contrary to section 58 of the Act of 1847 and byelaw 18 of the byelaws." Identical informations on the same day were laid against the defendant Edward Zammitt that he did aid, abet, counsel and procure Christina House in the commission of the above offences. On May 10, 1976, identical informations were laid by the prosecutor against the defendants George Cox as principal and Robert Sedgley as aider and abettor, in respect of offences said to have been committed on April 26, 1976. On May 24, 1976, identical informations were laid by the prosecutor against the defendants Peter McCartney and David Channell as principals and Arthur Bance and Henry Bulpitt as aiders and abettors, in respect of offences said to have been committed on May 3, 1976, and April 23, 1976, respectively.

The justices heard all the informations together on June 18, 1976, and found the following facts. The defendants Christina House, George Cox, Peter McCartney and David Channell were the drivers of the licensed public hire hackney carriages named in the informations and the defendants Edward Zammitt, Robert Sedgley, Arthur Bance and Henry Bulpitt were the respective proprietors of the same hackney carriages. All the defendants were members of a group of taxi operators called Streamline Taxis running a centralised telephone booking office for the hire of taxis, an unincorporated, non-profit making organisation to which both private hire and licensed hackney carriage drivers and proprietors belonged. It was the practice of Streamline Taxis to require any persons wishing to hire a taxi by telephone to pay, in addition to the fare for the journey recorded on the taximeter, a "booking fee" of 10p.

The hirer was told of that requirement while the negotiations by telephone were in progress and it was collected with his consent. The driver collected the fee along with the payment for the journey and had receipts available if required. In accordance with that practice the defendants House, Cox, McCartney and Channell each collected 10p from the respective complainants on the four dates named in the informations. The defendants Zammitt, Sedgley, Bance and Bulpitt had instructed them to do so.

It was contended on behalf of the defendants that the word "fare" in the Town Police Clauses Act 1847 should be construed restrictively to mean the charge for conveying the passengers; that the booking fee charged by the defendants represented a contractual liability for a service, arising independently of the charge for conveying the passengers; that the charging of a booking fee was thus outside the ambit of section 58 of the Act of 1847; and that no offence was committed under section 55, which should not be construed so as to prohibit drivers taking payment for anything which was not the fare.

It was contended on behalf of tho prosecutor that the purpose of the legislature was to control the total amount that could be charged by the taxi drivers or owners, and that was achieved by reading the sections 55 and 58 together; that their combined effect could be summarised as providing that the only fare chargeable was that allowed by the byelaws, and only the fare and nothing but the fare was chargeable; that the booking fee was charged to defray expenses of an administrative nature which should be included in the overheads element of the fare; that, as a surcharge on fare in whatever guise, the charging of a booking fee represented an offence under both section 55 and section 58; and that even if the booking fee were not part of the fare, an offence was still committed under section 55.

The justices were of opinion that (a) the purpose of the Act of 1847 was to protect the taxi user by ensuring that money paid as a result of hiring a hackney carriage was subject to statutory control; the permissible limits of that payment should be determined by the local authorities (delegates of the statutory power of control) who would take into account expenditure incurred by taxi drivers in running their businesses; that (b) viewed as a whole the Act did not permit the justices to hold that a system of partial control, leaving taxi operators free to charge an unrestricted amount for any amenity which did not directly relate to the actual conveying of the passengers, could have been contemplated by those drafting the Act; that (c) the justices should, therefore, reject the construction of the word "fare" advanced by counsel for the defendants; that (d) it was significant that the benefit of the booking fee went to the defendants, in that an expense was partially defrayed thereby which would otherwise have been borne in full by themselves; that expense was incurred in consequence of the defendants running their business in that particular way and could properly be said to be part of their general administrative costs, which should form an element of the fare; that (e) hence more fare had been charged than permitted by the byelaws; and, accgly, each defendant was convicted of an offence contrary to section 58 and was fined £10; that (f) the effect of section 55 must be that the only payment permitted when hiring a public hire taxi should be the fare allowed by the byelaws, any other reading would stultify the section, in the light of section 58; and that (g) therefore, offences had been committed contrary to section 55, whether or not the justices found that the booking fee was part of the fare; and accordingly, each defendant was convicted of an offence contrary to section 55 and was fined £2.

The defendants appealed.

The question for the opinion of the court was whether on the facts as found the defendants or any of them committed an offence contrary to either section 55 or section 58 of the Town Police Clauses Act 1847; and whether in the event of the defendants being guilty of an offence under section 58 it was proper for the justices to convict also of an offence under section 55.

Representation

Donald Farquharson Q.C. and John Smyth for the defendants.
Anthony Scrivener Q.C. and Christopher Cochrane for the prosecutor.

LORD WIDGERY C.J.
Eveleigh J. will give the first judgment.

EVELEIGH J.

This is an appeal by way of case stated by Hampshire justices sitting at Southampton.

The facts giving rise to this appeal were found as follows. The defendants Christina House, George Cox, Peter McCartney and David Channell were the drivers of the licensed public hire hackney carriages named in the informations and the defendants Edward Zammitt, Robert Sedgley, Arthur Bance and Henry Bulpitt were the respective proprietors of the same hackney carriages. All the defendants were members of a *91 group of taxi operators called Streamline Taxis.

That concern ran a centralised telephone booking office for the hire of taxis. It was the practice of Streamline Taxis to require any persons wishing to hire a taxi by telephone to pay, in addition to the fare for the journey recorded on the taximeter, a booking fee of 10p. This the hirer was told at the time he sought to order the taxi. The sum was collected at the conclusion of the journey with the hirer's consent at the same time as the fare recorded was itself collected.

In those circumstances informations were laid against the defendants alleging offences under section 55 and section 58 of the Town Police Clauses Act 1847, with the drivers as principals and with the owners as aiders and abettors.

I take as a specimen example of the informations the charges laid against Christina House:

"that on April 5, 1976, she being the driver of licensed public hire hackney carriage No. 110 did exact and take from Mary Cormack for the hire of the said hackney carriage the sum of 10p beyond and exceeding the fare to which she as such driver was entitled by law, contrary to section 55 Town Police Clauses Act 1847 and byelaw 18 of the Southampton City Council Hackney Carriage Byelaws."

The second charge laid read as follows:

"on April 5, 1976, she being the driver of licensed public hire hackney carriage No. 110 did take as a fare a greater sum than that authorised by the Southampton City Council Hackney Carriage Byelaws, contrary to section 58 of the Town Police Clauses Act 1847 and byelaw 18 of the said byelaws."

The byelaws were made under section 68 of the Act of 1847 and byelaw 18, suffice it to say, fixes the fare.

The drivers were convicted of the offences and the owners were convicted of aiding and abetting both of those offences.

It is contended by Mr. Farquharson on behalf of the defendants that no offence was committed at all. Secondly, if he is wrong, there was an offence under only one section and could not be an offence under both at the same time. It is necessary to refer to the two sections with which we are concerned.

Section 55 provides:

"No agreement whatever made with the driver, or with any person having or pretending to have the care of any such hackney carriage, for the payment of more than the fare allowed by any byelaw made under this or the special Act, shall be binding on the person making the same; and any such person may, notwithstanding such agreement, refuse, on discharging such hackney carriage, to pay any sum beyond the fare allowed as aforesaid; and if any person actually pay to the driver of any such hackney carriage, whether in pursuance of any such agreement or otherwise, any sum exceeding the fare to which such driver was entitled, the person paying the same shall be entitled, on complaint made against such driver before any justice of the peace, to recover back the sum paid beyond the proper fare, and moreover such driver shall be liable to a penalty for such exaction not exceeding the sum of 40 shillings ..."

Section 58 reads:

"Every proprietor or driver of any such hackney carriage who is convicted of taking as a fare a greater sum than is authorised by *92 any byelaw made under this or the special Act shall be liable to a penalty not exceeding 40 shillings, and such penalty may be recovered before one justice; ..."

Mr. Farquharson says that those two sections are dealing with the payment of a fare and that the 10p with which we are concerned in this case is not a fare but is a booking fee, something quite separate from the fare, and paid for something other than the carriage of the passenger.

I turn once more to section 55 and in particular the words:

"No agreement whatever made with the driver, or with any person having or pretending to have the care of any such hackney carriage, for the payment of more than the fare allowed by any byelaw made under this or the special Act, shall be binding ..."

In my view that section is striking at the payment by the passenger of something apart from, or over and above, the fare itself. It is aimed at a collateral agreement to the agreement to hire. Of course there has to be a connection between such agreement and the contract of hire. The words "No agreement whatever" are clearly to be read in the context of a hiring agreement but relate to something collateral thereto. In my view the booking agreement with which we are concerned in this case was an agreement collateral to the hiring agreement, but it did provide for the payment of a sum more than the fare that was allowed. Consequently, there has been a breach of section 55.

I turn now to section 58. It is important to emphasise the words in that section "taking as a fare." These are clearly to be contrasted with the words in section 55 which referred to the payment of "any sum exceeding the fare." Consequently, it seems to me that section 58 is dealing with the fare itself, with a sum of money paid and received as the fare. As I have already come to the conclusion that the 10p in this case was not paid as the fare but was something collateral thereto, it would follow that there is no offence under section 58.

I should refer to one final argument addressed to the court by Mr. Farquharson, who said that section 55 related to an agreement made with the driver or with any person having or pretending to have the care of the hackney carriage, and he said that in the present case the agreement could not be said to have been made with the defendants, be it with the owner or be it with the driver, because the agreement was made with the organisation Streamline Taxis.

In my view that argument does not prevail. The telephonist was in my opinion acting as an agent on behalf of the defendants, be it the driver or be it the owner, or, to put it another way, the agreement was being made with the owner and the driver through the telephonist.
The result is, therefore, that in my judgment there has here been an offence under section 55 of the Act of 1847 but not under section 58. Accordingly I would allow the appeal to the extent of saying that the conviction under section 58 in each case should be quashed.

SLYNN J.

I agree. Section 55 in my judgment is limited to the taking of a greater sum than was authorised by byelaw of money as a fare. I do not consider that the booking fee charged in this case was a fare and accordingly there is no offence under section 58.

Section 55, on the other hand, is wide enough to cover a collateral agreement to pay money and covers the taking by a driver of a sum *93 over and above what is in the strict sense a fare. The agreement to pay a booking fee and the taking of a booking fee by the driver in the present case in my judgment fell within that section. Accordingly, the defendants were rightly convicted under section 55 but wrongly convicted under section 58.

LORD WIDGERY C.J.

I agree with both judgments.

Representation

Solicitors: Hepherd, Winstanley & Pugh, Southampton; Matthew Reynolds, Southampton.

Appeal allowed in part; convictions under section 58 quashed. No order as to costs.
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