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Reid v Mini-cabs

Outer House

24 March 1966

1966 S.C. 137

Lord Avonside

Mar. 24, 1966

Representation

* GEORGE REID AND OTHERS, Petitioners.—Taylor, Q.C.—Clyde.
* MINI-CABS AND OTHERS, Respondents.—M'Cluskey.

Statute—Statutory obligations—Enforcement—Statutory penalty provided for breach—Whether civil remedy also competent—Title to Sue—Dundee Corporation (Consolidated Powers) Order Confirmation Act, 1957 (6 Eliz. II, cap. iv), Sched., sec. 433 (1) and (5) (a).

The Order confirmed by the Dundee Corporation (Consolidated Powers) Order Confirmation Act, 1957, enacts, by sec. 433:—“(1)… the Corporation may grant a licence to any person whom they think fit to operate as a cab such vehicle as may be specified in the licence …” “(5)… a person—(a) who within the city operates as a cab any vehicle in respect of which there is not in force a cab-operator's licence granted by the Corporation … shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding … twenty-five pounds.”

Operators of hackney carriages licensed under the Order sought to interdict an association and two of its officials from operating unlicensed cabs.

Held by the Lord Ordinary (Avonside) that the Order was a code for the municipal government and administration of the City of Dundee for the benefit of its inhabitants, and that it did not confer on licensed cab-operators any benefit enforceable by civil action; and petition dismissed.

Institute of Patent-Agents v. Lockwood, (1894) 21 R. (H. L.) 61, Cutler v. Wandsworth Stadium Ltd., [1949] A. C. 398, and Black v. Fife Coal Co. Ltd., 1912 S. C. (H. L.) 33, [1912] A. C. 149, referred to.

George Reid, Charles Henderson Alexander, Alexander Hill M'Rae, Allan Fyffe Maxwell and David Morris presented a petition for suspension and interdict against Mini-Cabs, an association, and Thomas Donaldson, Senior, and Thomas Donaldson, Junior, two of the officials of the association as representing it. The prayer of the petition was for suspension and interdict restraining the respondents from operating as cabs within Dundee vehicles for which there were not in force cab-operators' licences under the Dundee Corporation (Consolidated Powers) Order Confirmation Act, 1957.1

The respondents pleaded, inter alia:—“(1) The petitioners having no right, title or interest to make the present application for interdict the petition should be dismissed. (2) The petitioners' averments being irrelevant et separatim being lacking in specification the prayer of the petition should be dismissed.”

The circumstances of the case and the contentions of the parties are narrated in the opinion of the Lord Ordinary.

After a Procedure Roll hearing the Lord Ordinary (Avonside) on 24th March 1966 sustained the first and second pleas in law for the respondents and dismissed the petition.

Lord Avonside's—

Opinion.—This is a petition for suspension and interdict in which the petitioners describe themselves as operators of licensed hackney carriages in Dundee and the respondents as an association, and two of its officials, presently operating a business of cab-hiring in Dundee.

The issue raised may be stated briefly. Part 27 of the Dundee Corporation (Consolidated Powers) Order Confirmation Act, 1957, hereinafter referred to as “the Act,” is headed “Cabs” and contains various provisions as to cabs and cab-drivers. In particular, subsection (1) of section 433 provides that “the Corporation may grant a licence to any person whom they think fit to operate as a cab such vehicle as may be specified in the licence” and subsection (5)(a) of that section reads as follows:—[His Lordship read the subsection, and continued]—

The complaint of the petitioners is that the respondents are within the City of Dundee operating as cabs vehicles in respect of which there are not in force cab-operator's licences and they seek to interdict the respondents from so conducting themselves. For the purposes only of the procedure roll debate before me, which dealt with the pleas to title to sue and relevancy tabled by the respondents, this complaint was assumed to be true.

It was contended for the respondents that the Act gave the petitioners no right by the civil action of interdict to restrain the respondents and so, as it were, to enforce a monopoly. The only remedy, *139 they say, is to be found in the Act and that lies in criminal and not civil process. To that the petitioners answer that the Act confers upon them an exclusive privilege, plainly valuable, which they are entitled to protect, and that a recognised defence of such a privilege lies in interdicting illegal acts which damage it. Thus the dispute is in a familiar area of law, but one which contains its difficulties.

It has been said frequently that there is no formula by which this question can be answered, and that in every case the statute concerned must be read and construed as a whole to see whether or not there is an intention to create, and the creation of, rights enforceable by private civil action. While this is undoubtedly so, there have been developed certain general principles of importance which are relevant to the problem.

Thus it may be said that where in a statute there is to be found a specified remedy to secure enforcement of a duty, a remedy which may lie, for example, in criminal proceedings for breach, the implication is strong that that is the whole extent of the remedy intended and provided and that no civil action lies. In the case of Institute of Patent-Agents v. Lockwood, (1894) 21 R. (H. L.) 61, the Institute brought an action, inter alia, of interdict against one Lockwood describing himself as a patent-agent. Under the Patents, Designs and Trade Marks Act, 1888, section 1, it was provided that a person should not be entitled to describe himself as a patent-agent unless he was registered as such in pursuance of the Act. Lockwood, at the date of the action, was not so registered but described himself as a patent-agent. Subsection (4) of section 1 provided:—“If any person knowingly describes himself as a patent-agent in contravention of this section, he shall be liable, on summary conviction, to a fine not exceeding twenty pounds.” It was on that provision that the decision of the House turned. The Lord Chancellor spoke thus (at p. 68):—“You have here, for the first time, a new offence created—the offence of practising as a patent-agent without being on the register. But for the enactment creating that offence, the defender has done nothing of which anybody would have a legal right to complain either civilly or criminally. The Legislature, having created that new offence, has prescribed the punishment for it, namely, a penalty of £20. Can it possibly under these circumstances be open to bring the individual, not before the summary Court at small expense to determine the question of his liability to a £20 penalty, but to bring him before the Court of Session with its attendant expense and to ask the Court of Session to make a declaration that he has been breaking the law in a manner which the Legislature has said subjects him to a penalty, and, then, having proved that he has rendered himself liable to a penalty, to ask the Court of Session to interdict him, with this result, that if he were to offend again he would not be subject to the summary procedure and the £20 penalty, but would be liable to imprisonment for breach of the interdict?

“My Lords, it seems to me, I confess, scarcely necessary to do more than state the contention to show that it is impossible that it can be supported. If that be the law, the number of cases must have been almost innumerable in which such a proceeding would have been competent, and yet it is absolutely unheard of. I will not dwell upon the grave inconveniences which would result from sanctioning a procedure of that description. The mode of procedure and the amount of penalty are often regarded by the Legislature as of the utmost importance when they are creating new offences, and the law would, I believe, contrary to their intention, be most seriously modified *140 if it were held that the party committing a breach of that which for the first time is made an offence were to subject himself by so doing to proceedings of this description which might result in a committal to prison.” Lord Watson, in a passage beginning at the foot of p. 68, said:—“It appears to me that were the House to sustain the present action as a competent one it might lead to very unfortunate results.

In reality this is a case in which the interference of the civil tribunal was invoked for the purpose of repressing that which the Legislature intended should be dealt with as a crime. I do not think it was intended by the Act of 1888 to create in the patent-agents whose names are on the register a right which they could defend against those who use the term ‘patent-agent’ without having their names on the register by means of a resort to the Court of Session. On the contrary, I think it was the plain meaning of the Legislature that when a man whose name was not on the register chose to hold himself forth as a patent-agent, the full measure of punishment to be inflicted upon him should be a fine within the sum limited, viz., twenty pounds, to be fixed by a summary Court of criminal jurisdiction.” That case, prima facie would appear very similar to the present one, but I shall refer later to distinctions which were sought to be made. Again, in Cutler v. Wandsworth Stadium Ld., [1949] A. C. 398, a bookmaker sought a declaration and injunction in regard to his right under the Betting and Lotteries Act, 1934, to have space at a dog racing track where he could carry on his business. Under section 11 of that statute the occupier of a track “shall take such steps as are necessary” to secure when a totalisator is being operated that there is available for bookmakers space on the track.

Failure to comply with this provision constituted an offence and penalties involving fines and imprisonment were prescribed. Lord Simonds (at p. 407) said:—“For instance, if a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach. For, if it were not so, the statute would be but a pious aspiration. ‘But where an Act’ (I cite now from the judgment of Lord Tenterden, C.J., in Doe v. Bridges, [(1831) 1 B. and Ad. 847, at p. 859]) ‘creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.’”

His Lordship then went on to point out that in some Acts there may be a remedy provided by the Act and yet a personal right of action in addition, quoting the well-known words of Lord Kinnear in Black v. Fife Coal Co., Limited, 1912 S. C. (H. L.) 33, at p. 45, [1912] A. C. 149, at p. 165, and goes on:—“It was argued that the rule [in Doe v. Bridges] had no application where the statutory remedy was by way of criminal proceedings for a penalty. But I see no ground for this distinction. The implication is, if anything, in the opposite direction. For the sanction of criminal proceedings emphasises that this statutory obligation, like many others which the Act contains, is imposed for the public benefit and that the breach of it is a public not a private wrong.” Lord du Parcq observed (at p. 411):—“I do not agree with Mr Pritt's submission that it is heretical to regard criminal proceedings which may be followed by fine and imprisonment as a ‘specified manner’ of enforcing a duty. I think that it is both orthodox and right so to regard them.” Finally, Lord Normand (at p. 413) said:—“If there is no penalty and no other special means of enforcement provided by the statute, it may be presumed that those who have an interest to enforce one of the statutory duties have an individual right of action. Otherwise the duty might never be performed. But if there is a penalty clause the right to civil action must *141 be established by a consideration of the scope and purpose of the statute as a whole.”

One could multiply citation, but on this aspect these passages suffice, although it should be noted that the opinions expressed were applied recently in an action of reparation in Pullar v. Window Clean, Limited, 1956 S. C. 13.

As against that there are familiar instances where civil action lies for a breach of statutory duty, although that breach also gives rise to statutory remedies, the reason being that the statute is intended to give rights to, and does confer rights upon, the individual. Groves v. Lord Wimborne, [1898] 2 Q. B. 402, is the Factories Act case. Black v. Fife Coal Co., Limited, supra, was a coal mine case and in it, as already mentioned, Lord Kinnear in a passage frequently quoted said (at p. 45):—“There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Atkinson v. Newcastle Waterworks Company, [(1877) 2 Ex. D. 441], and by Lord Herschell in Cowley v. Newmarket Local Board, [[1892] A. C. 345], solves the question. We are to consider the scope and purpose of the statute, and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mineowners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention.” As in any matter of interpretation, the benefit claimed must be clearly ascertainable on a reading of the statute. So Lord Reid in his speech in Cutler v. Wandsworth Stadium Ld., supra, at p. 417, said:—“I find it extremely difficult to reconcile the nature of the provisions of this subsection [the one already noted] with an intention to confer on individual bookmakers rights which each could enforce by civil action. If the legislature had intended to create such rights I would expect to find these capable of reasonably precise definition.” Earlier he had said (at p. 416):—“I am prepared to assume in the appellant's favour that it may also have been an object of the legislature to give some protection to bookmakers… but it does not follow that to achieve such protection every individual bookmaker must have rights against the occupier of the track which he can enforce by civil action.”

This line of thought is also expressed by Lord du Parcq (at p. 411) when, under reference to the principle of Doe v. Bridges, supra, he said:—“It is, therefore, legitimate to assume that those who were engaged in drafting the Betting and Lotteries Act, 1934, had in mind the principle of construction which had thus been laid down. It was not thought fit to break with tradition and to state explicitly in the Act whether or not an aggrieved bookmaker was to have a right of civil action, but Parliament must be taken to have known that if it preferred to avoid the crudity of a blunt statement and to leave its intention in that regard to be inferred by the Courts, the ‘general rule’ would prevail unless the ‘scope and language’ of the Act established the exception … I do not find in the present case any indication that Parliament sought to manifest an intention that an exception to the general rule should be created.” Lastly, reference may be made to the approach of Lord Simonds (at p. 409):—“So reading it, I have no doubt that the primary intention of the Act was to regulate in certain respects the conduct of race tracks and in particular the conduct of betting operations thereon. If in consequence of those regulations being observed some *142 bookmakers will be benefited, that does not mean that the Act was passed for the benefit of bookmakers in the sense in which it was said of a Factory Act that it was passed in favour of the workmen in factories.”

Before I turn to the Act I should notice two points taken by the petitioners. In the first place they claimed that the patent-agent case could readily be distinguished since it was not one in which rights were created by the statute in question. It was, so to speak, a negative case in that there were created duties or obligations, but no valuable “exclusive privileges” or “monopoly” such as they enjoyed under the Act. Such an approach obviously begs the question. The “rights” of patent-agents and bookmakers in any event obviously had a value. But, that apart, this pretended distinction to my mind is merely a play on words. The principles set out in the patent-agent case and the bookmaker case are of general effect and applicable to all cases in which the question of civil remedy in contrast to statutory remedy arises.

Secondly, the petitioners produced as their main, if not sole, authority the case of Siddons v. Ryder, (1825) 3 S. 576, to vouch their right to enforce their “exclusive privilege.” It is not unfair to remark that the force of their argument is somewhat blunted by reliance on a case of antiquity, in which, it is agreed, the introductory reasoning of the leading judgment is now recognised to be erroneous. Be that as it may, this case is concerned with letters patent issued under the authority of an Act, and, in my opinion, bears not the slightest resemblance to the issue presently in dispute. It was a clear instance of the situation which Burn-Murdoch in his book on Interdict describes at p. 49. “Where a complainer enjoys a distinct right of the nature of a patent or exclusive privilege, he has a good title to interdict against injurious infringements of his right.” It should be noted that it is “exclusive privilege” which those representing the petitioners claim and their task is to show that this is the intention and effect of the Act.

From all this it will be seen that the respondents argue from a position of some strength. The Act, they say, provides the sole remedy, on general principles of construction. Further, even if licensed cab-operators derive some benefit from its provisions this is an incidental matter. The main purpose of the Act and of Part 27 itself is to govern the affairs of the city of Dundee for the benefit of its inhabitants. Now the Act is a consolidating Act in the main and is wholly concerned with the government and administration of the city in all its aspects. It is designed as a code of law applicable to that government and administration and covers all aspects of domestic government. There can be no dispute about this, and it tells in favour of the contentions of the respondents.

But, the petitioners argue, and I accept, there can be found in a general statute provisions conferring rights on individuals. These rights, their “exclusive privilege”, they seek to find in Part 27. This Part, they say, was intended to give a monopoly to a limited number of cab-operators, to give these operators the opportunity of making a reasonable livelihood, with the result that they could afford to fulfil the standards of maintenance and safety laid down for their vehicles, to the ultimate benefit of the public of Dundee. They found strongly on subsection (2)(b)(i) of section 433 which provides that the Corporation may refuse to grant a cab-operator's licence if “in their opinion there is already a sufficient number of vehicles licensed under this section to meet the needs of the city,” and from this derive the conception that the Act is designed, in this aspect, to provide a livelihood for a limited number of drivers.

To my mind, such a conception borders on fantasy and goes far beyond any approach to legal construction. *143 There is no ground for such a contention. It is “the needs of the city” which the legislature has in mind and not the financial needs of cab-operators. Mr Taylor, in advancing this argument, urged me to have regard to the Road and Rail Traffic Act, 1933, which he did not read or expand, and to the “history” of the Act, of which he confessed himself unaware. The first I regard as irrelevant. In default of guidance I should have thought that a possible “history” of such a provision lay in the notorious nuisance of touts and danger created by competing drivers in the old days of uncontrolled competition in public transport.

Further, it was argued, this provision distinguished other instances in the Act where licences and permits were required by street traders, street porters, chimney sweeps, window cleaners and the like, in that numbers were limited and so an “exclusive privilege” created for the few. But the Corporation have a discretion in the issue of such licences or permits, and would not, one assumes, grant them if the number of applicants exceeded reason. The fact that such a ground of refusal is written out in one section does not preclude its application in another. Then the petitioners relied upon subsections (4), (5) and (7) of section 444 which, put shortly, provide that it is a criminal offence not to pay a fare and that, on conviction, the defaulter may be ordered to pay the fare and compensate the cab driver for consequential loss. This, they said, showed that the purpose of this Part of the Act was to benefit the holders of the “exclusive privilege” of cab operating. But this is an incidental benefit within a general code, and the public are similarly benefited under subsection (6) if they have been over-charged.

There is nothing here to show the clear intention to confer a valuable “exclusive privilege” of the nature of a monopoly on the petitioners.

In my opinion the Act is precisely what it is designed to be, a code for the municipal government and administration of the city of Dundee for the benefit of its inhabitants. An ancient and traditional feature of Scottish burghal administration is the control of trades and activities within burgh by a system of licensing combined with regulations directed towards the good conduct and efficiency of these trades and activities.

These regulations are designed for the benefit and protection of the citizens. It may well be that those who carry on these trades and activities reap benefits from the regulations applicable to them, but that is incidental and not the main purpose of the enactments. I am of the view that the petitioners have totally failed to demonstrate that the relevant Part of the Act was designed to confer upon them a benefit enforceable by civil action. Rather it is designed to regulate for the benefit of the public the conduct and standards of those who offer vehicles for public hire, and the sanction lies in summary criminal prosecution.

Accordingly I sustain the first and second pleas in law for the respondents and dismiss the petition.
Representation

* Hagart & Burn-Murdoch, W.S., for Simpson Boath & Co., Dundee—Bonar, Mackenzie & Kermack, W.S.

1. 6 Eliz. II, cap. iv. The provisions of sec. 433(1) and (5) (a) of the Order are set out in the rubric. The other sections of the Order which were referred to in argument are:—Sec. 433(2) which provides, inter alia, “… the Corporation … (b) may refuse to grant a cab-operator's licence in respect of a vehicle if—(i) in their opinion there is already a sufficient number of vehicles licensed under this section to meet the needs of the city; …”; and sec. 444 which, inter alia, creates offences in respect of non-payment of fares and overcharging and also provides for compensation in these cases.
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