Taxi Driver Online

I was under the impression I had posted this case but in order to clarify the legal requirements of a so called hackney carriage proprietor, I submit the case again.

Mr Evans intentionaly failed to disclose that the vehicle for which the license was to be granted, was not owned by him. There is an added element to this case which is not touched upon but I feel obliged to remind everyone.

Failing to disclose the involvement of a third party on a license application is an offence but you may also wish to consider the fallout from such action. Councillors might construe that the deliberate action of non-disclosure is deceitful or fraudulent and under the circumstances the prospects of either party ever hoping to obtain a license again may be distinctly remote. So if you value your hackney carriage status as a proprietor I advise you to think long and hard before you enter in to an unofficial agreement where a third party supplies the vehicle and you fail to notify the licensing department of such.
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Challoner v Evans

Queen's Bench Divisional Court (Crown Office List)

HEARING-DATES: 13 November 1986

13 November 1986

COUNSEL:

R Campbell for the Appellant; G Grigson for the Respondent

PANEL: Croom-Johnson LJ and Peter Pain J

JUDGMENTBY-1: CROOM-JOHNSON LJ

JUDGMENT-1:

CROOM-JOHNSON LJ. This is an appeal by way of case stated by Mr Arthur Challoner, the Borough Secretary and Solicitor of the Town Hall of Crawley, Sussex, against the decision by the Justices on the 22nd July 1985. The charge was brought against Mr David Leslie Evans of Crawley. The information that was preferred against Mr Evans was that on the 29th November, 1984, he applied for a licence to ply for hire with a certain Hackney carriage, index number HKR 584V, and did state (in the requisition then made and signed by him for the said licence) the name of David Leslie Evans as the proprietor of the said Hackney Carriage, the said David Leslie Evans not then being the proprietor thereof, contrary to section 40 of the Town Police Clauses Act, 1847.

The licensing of Hackney Carriages is dealt with in the 1847 Act, beginning at section 37. It allows commissioners, as they were then called but for whom one now has to read District Council, to licence vehicles to ply for hire within certain distances. Section 38 says what vehicles are to be deemed to be Hackney carriages. Section 39 prescribes the fee and section 40, with which this appeal is particularly concerned, deals with who may apply for a licence and requires them to sign a requisition.

[b]Section 40 says: "Before any such Licence is granted a Requisition for the same . . . shall be made and signed by the Proprietor or one of the Proprietors of the Hackney Carriage in respect of which such Licence is applied for, and in every such Requisition shall be truly stated the Name and Surname and Place of Abode of the Person applying for such Licence, and of every Proprietor or part Proprietor of such Carriage or Person concerned either solely or in Partnership with any other Person in the keeping, employing or letting to Hire of such Carriage . . ." That is what has to go into the requisition.

The section continues: ". . . and any Person who, on applying for such a licence, states in such Requisition the Name of any Person who is not a Proprietor or part Proprietor . . . or who is not concerned as aforesaid in the keeping, employing, or letting to Hire of such Carriage, and also any Person who wilfully omits to specify truly in such Requisition as aforesaid, the name of any Person who is a Proprietor or part Proprietor . . . or who is concerned as aforesaid in the keeping, employing or letting to Hire of such Carriage, shall be liable to a penalty . . ."

What therefore is required in the requisition is that the proprietor or person who is concerned with the keeping, employing or letting to hire of the carriage shall have his particulars put in the requisition and that anybody who is not a proprietor shall not be in the requisition. What is said in the present case is that Mr Evans was not a proprietor but had made the requisition to the licensing authority on the basis that he was.

When the requisition has been made and the proper decision has been taken by the District Council, the licence may be granted. It is not issued as a document. It is entered in a register which is kept in the Town Hall or appropriate place. It is there so that anybody who wants to know who the proprietor is can go and look at it.

It is not necessary to go in detail through the sections in the statute to which we have been referred, but it is quite clear that the Town Police Clauses Act, 1847 does place considerable duties upon the proprietors of Hackney Carriages. They have responsibilities and obligations, and on the proper construction of that part of the Act they are vicariously responsible to third parties for the people who are driving the carriages if there is injury or damage caused by the carriage while being so used. I should say that the licences are issued for a 12 months period. The period with which we are concerned in the present case is the one beginning on the 1st April of any year and ending on the 31st March of the following year.

If, during that period, there is a change of proprietorship of the Hackney carriage, then the new proprietor has the right of applying to the District Council to have the register altered so that the licence stands in his name. That is what continues until the licence expires on the 31st March in the appropriate year.

One of the characteristics of a Hackney carriage is that it has to bear a plate which is attached to it. This has to follow a form which is laid down. It must be attached to the vehicle in a particular exposed position and is to carry the number of the licence in respect of which the Hackney carriage has been licensed. The plate is issued by the District Council and, as is now provided by section 58 of the Local Government (Miscellaneous Provisions) Act 1976, on the revocation or expiry of a vehicle licence in relation to a Hackney carriage a District Council may by notice require the proprietor of that Hackney carriage to return to them within seven days after the service on him of that notice the plate which, in the case of a Hackney carriage, is required to be affixed to the carriage as mentioned in section 38 of the Town Police Clauses Act 1847. If he does not return the plate within a reasonable time or without reasonable excuse, then section 58(2) says that he commits an offence.

It is therefore seen and is conceded in the present case that the plate at all material times remains the property of the District Council. For so long as the Hackney carriage is serving as a Hackney carriage by section 38 of the 1847 Act the plate must be attached to the carriage, and then it is seemed to be a Hackney carriage for the purposes of that Act.

Since there is no guarantee that when the 31st March comes round the licence of the Hackney carriage will be renewed, it is clear that for the time being the possession of the District Council's plate on a Hackney carriage has a money value of a sort. It has a money value because it carries with it the expectation of getting the licence renewed at the end of the year and it entitles the vehicle to trade as a Hackney.

It seems that there has grown up a practice which has converted the money value arising purely from the possession of the plate for the time being into a market involving quite substantial sums. We have been told, on the facts as found by the Justices in the present case, that large sums of money, in the order of £5,000 and £8,000, have changed hands for what is called "the plate."

This case arose out of the requisition which was put in by Mr Evans on the 29th November 1984, in relation to a Vauxhall Cavalier motor car, index number HKR 584V. He filled it in on the form provided by the Crawley Borough Council in his application for renewal of a Hackney carriage licence. Against the full names and addresses of the proprietors, part proprietors and any other person concerned with the keeping, employing or letting of the vehicle, he simply wrote in his own name and address and nobody else's. That is the form upon which this prosecution was based.

The prosecution's contention was not only that Mr Evans was not a proprietor but that somebody called Mr Holledge was the proprietor and that the form ought to have contained the name of Mr Holledge and did not. Because it did not and because it was clear that Mr Holledge at that stage was the proprietor, it may well be that Mr Evans committed an offence under section 40, but that is not what he was charged with. If the prosecution charged him on a wrong basis, not with something that he had committed, then Mr Evans gets the benefit of that because the prosecution is restricted to the matter which has been made the subject of the charge. The whole question is, in the end, whether Mr Evans was properly on the form as a proprietor with his own name and address.

The case which has been put before this court and which was put before the Justices is that both Mr Evans and Mr Holledge were the proprietors and, therefore, whatever Mr Evans may have committed in respect of which he was not charged, he was certainly not guilty of the matter with which he was charged. What this case really comes down to is this: What is meant by "proprietor" for the purposes of the 1847 Act?

The 1847 Act does not contain any definition of what is a proprietor, but the court's attention has been called to the London Hackney Carriages Act, 1843. That concerned the Metropolis only whereas, of course, the Town Police Clauses Act 1847 applied to places outside London.

In the 1843 Act relating to the Metropolis section 2 did contain some definitions. It had a definition of the word "proprietor", as ". . . shall include every Person who, either alone or in partnership with any other Person, shall keep any Hackney Carriage or any Metropolitan Stage Carriage, or who shall be concerned otherwise than as a Driver or Attendant in employing for Hire any Hackney Carriage or any Metropolitan Stage Carriage . . ." One cannot help noticing that there is at any rate some resemblance to the wording of section 40 of the 1847 Act.

What has been submitted by Mr Grigson in his argument on behalf of the Respondent is that by the 1847 Act the word "proprietor" should have a definition which is more extensive than simply the owner or somebody with a proprietary interest which would be the ordinary English interpretation of the word. What he argues for is this: that the word "proprietor" shall include every person, who either alone or in partnership with any other person, shall keep any Hackney carriage or who shall be concerned otherwise than as a driver or attendant in the employment for hire of any Hackney carriage. He submits that the section 2 definition of the 1843 Act should be adopted as the proper meaning to be given to the word "proprietor" in the 1847 Act.

In connection with that he relies on the case of Bygraves v Dicker [1923] 2 KB 585. That was concerned with the question of whether or not the registered proprietor of a Hackney carriage was vicariously responsible for whatever it was the driver of the carriage did. In that case the driver had injured somebody on returning from the races at Brighton and the proprietor had been sued at common law for damages. It was submitted on behalf of the plaintiff that as the defendant was the registered proprietor of the car and the driver the licensed driver, a presumption arose under the 1847 Act that the relationship of master and servant existed between the defendant proprietor and the driver, and that the proprietor was responsible for the acts of the latter in driving the car.

In interpreting the 1847 Act on the appeal from the County Court, the Divisional Court did rely upon the construction of the London Hackney Carriages Act, 1843, as that had been interpreted in the courts. The 1843 Act had clearly been interpreted so as to show that the proprietor was vicariously responsible for the acts of the driver.

At page 592 of the report, Lush J said this in his judgment: "The Courts having interpreted the Act of 1843 as meaning that the driver of a Hackney carriage is to be treated as the servant of the registered proprietor, it cannot consistently be said that a different conclusion should be arrived at as to the meaning of the similar provisions of the Act of 1847. Where a certain construction has been placed upon one Act, it follows that, in the absence of any reason to the contrary, the same construction must apply to a later Act passed in pari materia with the former.

On the true construction of the Act of 1847, the licensed driver of a cab to which the Act applies must, therefore, be treated as if he were the servant of the registered proprietor, and a person who has been injured by the negligence of the driver may at his election sue either the driver's real master, or his statutable master, the registered proprietor of the cab."

What Mr Grigson submits to us is that in the same way as the 1843 Act in that case influenced the interpretation of the 1847 Act, so the definition of proprietor in the early Act should apply to the later Act and so to the present case. That submission seems to be founded in good sense and in good law and I, for my part, would say that the extended definition as put forward by Mr Grigson is one that we should apply for the purposes of this appeal.

It is time now to look at the facts of the case, the decision of the Justices and the reason which they gave for their decision. The history of the transaction between Mr Evans and Mr Holledge involved a series of motor cars. On the facts as found, it appears that in 1981 Mr Evans bought a Peugeot motor car. It carried with it a taxi plate, No 85. The Peugeot motor car was a wreck, having been involved in an accident. Mr Evans paid £5,000 for it. The reason for that was that £5,000 was the value of getting possession of the plate. It was paid, as the Justices found, for the right to registration as proprietor of the Hackney carriage plate and not for the vehicle as such.

I pause to say that there was not any such thing as a right to registration, but that there was certainly an expectation of registration if you were able to submit to the District Council that you had bought a taxi with the plate No 85, that you wished to change to a different motor car and to have the plate No 85 attached to that. I should mention that the plate No 85 had been issued by the Crawley District Council.

Mr Evans made a written application for renewal of the licence on the 27th May 1981, but specifying that the vehicle which was required to be licensed was not of course the written off Peugeot but an Avenger motor car, index number YWL 904R. The application was accepted and the licence was renewed. The Respondent then transferred the Hackney carriage plate to the said Avenger motor car. Subsequent to that transfer, the Respondent, Mr Evans, employed a licensed taxi driver, Mr Holledge, as a driver. There was an oral contract, which was that Mr Holledge would pay a rent to the Respondent of £65 a week for the use of the Avenger and the Hackney carriage plate together as a taxi.

In September 1981, Mr Holledge purchased the Avenger, YWL 904R, from the Respondent. He paid £900. The facts as found I will read: "The terms of their agreement were that the Respondent (Mr Evans) would retain ownership of the taxi plate and Mr Holledge would continue to pay a 'rent' of £25.00 per week for the use of the plate to enable Mr Holledge to continue to work as a taxi driver. There was a clear understanding between Mr Holledge and the Respondent that the Respondent remained the proprietor of the vehicle as a Hackney carriage.

"On the 10th January 1983 Mr Holledge purchased a new car, a Vauxhall Cavalier index number HKR 584V. This purchase took place after consultation with, and agreement by, the Respondent. The Respondent made another written application . . . for renewal of the Hackney carriage vehicle licence No 85 to the Council specifying as the vehicle the Vauxhall Cavalier index number HKR 584V to enable him to transfer the plate to this vehicle. This was accepted and renewal granted by the Council and the Respondent then transferred the Hackney Carriage plate to that vehicle. The terms of the contract between Mr Holledge and the Respondent, Mr Evans, were that for the continued use of the Hackney Carriage plate Mr Holledge would pay a 'rent' of £30.00 per week to the Respondent.

The facts as found continue: "On the 29th November 1984 the Respondent completed and signed an application . . . . for renewal of the Hackney Carriage vehicle licence (plate Number 85) for the Vauxhall Cavalier HKR 584V to enable him to transfer the plate to this vehicle . . ." This was a routine renewal and is the application in respect of which the charge was made.

When the case came before the Justices it was submitted by the prosecution that in the circumstances the Vauxhall Cavalier, bought in January 1983 by Mr Holledge, was his own motor car, that with it he had bought, as it were, from Mr Evans, the right to use the plate No 85 and that it was in respect of that that the rent of £30.00 per week was paid to the Respondent. It was submitted that in those circumstances the proprietor of the vehicle in 1983 was really Mr Holledge. Consequently when, on the 29th November 1984, the instant requisition for renewal was put forward, it was put forward by Mr Evans, quite wrongly describing himself as the proprietor.

The submission which has been made to this court is that on the facts as found Mr Evans, was, within the extended definition, a proprietor, because he was concerned in the employment for hire of any Hackney carriage. It is clear from the facts, as they were found, that the income from driving the motor car, at any rate from the purchase of the Vauxhall Cavalier in January 1983, was Mr Holledge's. The overheads and the expenses were his too. the £30 a week was only in respect of his permission for the time being to use the licence plate No 85. There was clearly no partnership between him and Mr Evans.

The Justices dismissed the charge and gave their reasons. They went back to the Avenger motor car, YWL 904R, which had been bought by Mr Evans in 1981 and subsequently sold by him to Mr Holledge for £900 in September 1981. They said this: "We were of the opinion that the Respondent had maintained his proprietorship of the Avenger motor car YWL 904R which bore the taxi plate No 85 when he sold it to Mr Holledge in 1981. This was achieved by a contract between the parties at the time of sale that this should be the case." That, at any rate, is consistent with the facts as found by them, that at that time there was a clear understanding between Mr Holledge and Mr Evans that he should remain the proprietor of the vehicle as a Hackney carriage.

The reasoning of the Justices continues: "The Respondent further maintained his interest as proprietor of a Hackney Carriage 'business' with Mr Holledge's Vauxhall Cavalier index number HKR 584V again by a similar contract between himself and Mr Holledge. This agreement between the Respondent and Mr Holledge enabled Mr Holledge to work as a Taxi driver and the Respondent to receive a rent." That is not consistent with the facts as found by the Justices, because when they came to deal with that they found these facts, that the terms of the contract at the time of the purchase by Mr Holledge of the Vauxhall Cavalier in January 1983 were that for the continued use of the Hackney carriage plate Mr Holledge would pay a "rent" of £30 a week to the Respondent.

The Justices then referred to The Queen v Weymouth Corporation, Ex parte Teletax (Weymouth) Limited [1947] KB 583, which merely lays down that the licence is granted to the vehicle and not to the owners or proprietors. They then said this: "The Respondent's situation was distinguishable inasmuch as he had a contract with Mr Holledge that he would not sell his proprietorship in the Hackney Carriage business and Mr Holledge was to pay rent for the use of the plate. The sale of the Avenger motor car in 1981 was the sale of a private car and not a Hackney Carriage. The proprietorship remained with the Respondent. This arrangement was subsequently transferred on to the Cauxhall Vavalier motor car by similar contract with Mr Holledge.

"In the light of the above, we came to the conclusion that when the Respondent made his application to ply for hire as the proprietor of a Hackney Carriage on the 29th November 1984 this was indeed the case and therefore the Respondent committed no offence under Section 40 of the Town Police Clauses Act, 1847." The question which therefore remains is to see whether the reasons given by the Justices for their decision are consistent with the facts as found by them and the ordinary inferences to be drawn from the facts as found.

It is quite clear on the facts that what Mr Holledge was paying for was Mr Evans' permission to use what may be loosely called "Mr Evans' plate No 85". It was not Mr Evans' plate No 85. It was the District Council's plate. But he presumably had some idea that it did have a money value which justified him, for so long as the Council continued to let him have that plate on his Hackney carriage, charging Mr Holledge to drive a car carrying that plate.

Looking at the facts as found there is absolutely nothing in them (except possibly in connection with the early days when Mr Holledge was paying a rent of £65 per week for the use of the car and the plate together as a taxi) in relation to a Hackney carriage business of the kind which is described by the Justices in their reasons. It was not. The business as such did not exist. All that happened was that Mr Holledge was paying for the rent of the plate for the time being, and no more. Nor can one find any justification in the facts for the statement by the Justices, that Mr Evans had promised Mr Holledge that he would not sell his proprietorship in the Hackney czarriage business for so long as Mr Holledge continued to pay his rent.

In my view, on the facts as the Justices found them, Mr Evans was not concerned in the employment for hire of any Hackney carriage by Mr Holledge. It was Mr Holledge who was employing the Vauxhall Cavalier for hire. The same position would have continued had the licence been granted in accordance with the application which was made on the 29th November 1984. It is quite clear on the facts found by the Justices that it was Mr Holledge and nobody else who was the proprietor of the Hackney carriage. In those circumstances, in filling in his own name as the sole proprietor of the vehicle Mr Evans did commit the offence with which he was charged. I would accordingly remit this case to the Justices with a direction to convict.

JUDGMENTBY-2: MR JUSTICE PETER PAIN

JUDGMENT-2:
MR JUSTICE PETER PAIN. I agree. This case has to be approached on the basic principle that a Hackney carriage licence attaches to the vehicle and not to the owner of a vehicle. That was laid down in the Weymouth Justices case to which my Lord has referred. It was reiterted in an unreported case, The Queen v The Mayor, Aldermen And Burgesses of the County Borough of Southampton, Ex parte Lankford in 1960. It was reitereated again in Regina v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association and Another [1972] 2 QB 299.

The difficulty which arises in this case arises in this way, that the Justices were unduly impressed by the fact that unquestionably a vehicle with a Hackney carriage licence has an enhanced value because it has that licence and because the owner of that vehicle has a reasonable prospect of getting the licence renewed year by year and, when the vehicle becomes worn out, of getting the licence transferred to another vehicle or, if he so wishes, of selling the vehicle with the licence to someone else who will then get it transferred to another vehicle. But that reasonable expectation is not anything that has any existence as a right in law. The discussion as to the right to registration or the ownership of the palte is not something which has any legal existence.

On the facts as found by the Justices, in September 1981 Mr Holledge purchased Avenger YWL 904R from the Respondent. When he purchased that vehicle that gave him the right to the licence because the licence attached to the vehicle. It may well be that he and Mr Evans were under a misapprehension and that they thought that there was some right to registration which existed which could be made the subject of legal obligations, but in that they were wrong.

The Justices go on to find that the terms of the agreement of sale were that the Respondent would retain ownership of the taxi plate. This shows how the Justices themselves were clearly getting the thing wrong, because the Respondent did not own any taxi plate. He could not agree that he should retain it. They then go on to find that Mr Holledge was continuing to pay a rent of £25 per week for the use of the plate. The only meaning which one can give to that is that Mr Holledge did agree, and in fact did continue to pay £25 a week under the mistaken apprehension that the Respondent retained some rights in the taxi plate, but in fact he was paying that £25 a week in pursuance, perhaps of a moral obligation, but certainly not in pursuance of any obligation that could have been enforced on a matter of contract as the contract was found to exist by the Justices.

Subsequently that car was sold. Mr Holledge purchased a new car from a third party. The Respondent signed the form transferring the licence, but again it is plain that the licence was attached to the new car.

It was implicit in the argument for the Respondent that the car had some sort of split personality, that it could exist as a Hackney carriage and also exist as a private car. That is something I find myself wholly unable to accept.

Of course, it will be the case that a Hackney carriage is not always plying for hire. When the owner drives it to a football match on Saturday or drives his wife to the pub on a Saturday evening he is not plying for hire, and most of the conditions which attach to a Hackney carriage will not then attach. But that does not give it a separate personality. Any such approach seems to me to be wholly unreal. So there is no secondary personality, in my view, in which the Respondent could retain ownership in such a way as to make him a proprietor once he had sold the car.

I came to court thinking that I was going to deal with an argument that the Respondent alone remained the proprietor of the car throughout. That was the way in which I had understood the Justices had determined the matter. However, when we got here we found an argument -- I salute the ingenuity of the argument -- that that was not the case, but that Mr Evans and Mr Holledge were both proprietors of the car and that if the summons had been drawn slightly differently, so that Mr Evans was charged not with putting himself down as proprietor on the form but with having omitted to include Mr Holledge, he would have had no defence, but that in the fact and as the summons is drawn he had a clear defence because he remained proprietor.

That ingenious argument breaks down in two ways. Firstly, because the car as such can have no split personality and, secondly, because even it it could the Respondent does not bring himself within the definition of proprietor.

I accept for the purposes of this case that one looks at the definition of proprietor which was contained in the London Hackney Carriage Act where, by section 2, a proprietor is defined as including "every Person who, either alone or in partnership with any other Person, shall keep any Hackney Carriage or any Metropolitan Stage Carriage, or who shall be concerned otherwise than as a Driver or Attendant in employing for Hire any Hackney Carriage or any Metropolitan Stage Carriage . . ." Even if it were possible to make such a legally enforceable agreement, as the Justices apparently have found the Respondent made in this case, I do not see how thatwould bring him within the definition. Clearly, he was not in partnership under that agreement and, to my mind, he was not concerned otherwise than as driver or attendant in employing for hire any Hackney carriage.

He had made some independent collateral agreement with Mr Holledge as to the weekly payment to be made because Mr Holledge was allowed to make use of the plate. On this basis, therefore, I think that on both these grounds the argument put forward on behalf of the Respondent breaks down. Therefore, I take the view that the Justices were wrong.

Their question is: "Whether we were correct in concluding that following the sale of the vehicle to Edmund Albert Holledge the Respondent remained the proprietor of Hackney Carriage index number HKR 584V on the 29th November 1984 for the purposes of section 40 of the Town Police Clauses Act, 1847". The answer to that is no, they were not correct. Accordingly, I agree with my Lord. The matter will be remitted to the Justices with a direction to convict.

JUDGMENTBY-3: CROOM-JOHNSON LJ

JUDGMENT-3:
CROOM-JOHNSON LJ: What application are you making?

SOLICITORS:
AS Challoner Esquire, Borough Solicitor, Crawley; Burstows, Horsham