Taxi Driver Online

Hackney carriage group considers court challenge

A JUDICIAL review could be sought to challenge a decision to prevent a Fiat Freedom vehicle being used as a hackney carriage in Bury.

Mr Charles Oakes, chairman of Bury’s Hackney Carriage Association, says he is disappointed that the local authority rejected a proposal to allow drivers to use the Fiat Freedom.

He said that the same model of vehicle was deployed by private hire companies.

“The fact is that many other councils throughout the country have allowed the Fiat Freedom to be used as a Hackney carriage. If we had proper funding, I’d like to pursue a judicial review on this decision which I think is ridiculous. If not, then it is definitely something we will take back to the council next year.”

The comments from Mr Oakes come after Bury’s licensing and safety panel heard the vehicle would pose a risk to wheelchair users who would have to be loaded into the vehicle using a rear ramp.

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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

Is this the 'free' association? Can't they find any pro bono publico representation?

He really is a prize one isn't he?? I thought his association was going from strength to strength??



I also thought he was swimming in cash with the BBBBBBBBBBBBPPPPPPPP association???

A Council that's got some sense, these rear loaders are a danger to the travelling public in wheelchairs.

U2

CC

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

How to spot a judicial review -- a five-minute guide to identifying a judicial review


It was Lord Goff who described the 'solicitor...[who] frankly admitted that he knew nothing about judicial review' (Caswell [1990] 2 AC 738, 744C).

Are you in the same boat?

Judicial review operates to control public bodies by quashing (certiorari), restraining (prohibition/injunction), clarifying (declaration) or compelling (mandamus) their action.

Can you recognise a potential judicial review with confidence?

-- NOTE OF CAUTION 1: delay.

Judicial review must be commenced promptly and may be dismissed even if brought within the three-month period referred to in RSC ord 53, r 4(1) (see eg TVNI [1991] The Times, 30 December).

-- NOTE OF CAUTION 2: wasted costs orders.

The practitioner who launches a judicial review without a sufficient grasp of the basic legal principles of this (complex) jurisdiction risks personnal responsibility for costs (see Wenman [1994] COD 141).

Here are three steps to help identify a viable judicial review:

STEP 1: PUBLIC MATTER

Ask - Are the intended respondent and the claim sufficiently 'public' in character?

NOTE OF CAUTION 3: exclusivity (O'Reilly [1983] 2 AC 237).

If a public body's act/decision is amenable to judicial review, the courts may refused to allow it to be challenged in other (eg writ) proceedings.

(a) Public body

To be judicially reviewable, the intended respondent must be a sufficiently 'public' body.

There is 'no universal test' as to what is required (Noble [1990] ICR 808, 814F), but there are notable indicators:

Ask - Does the body wield statutory powers (Leech [1988] AC 533, 561G)?

Ask - Do its functions involve a sufficient public element (Datafin [1987] QB 815, 838E)?

Examples of bodies which have been judicially reviewed:

-- central and local government;

-- courts (eg Crown Courts; magistrates; coroners; county courts);

-- tribunals (eg mental health review tribunal; patents appeal tribunal; immigration appeal tribunal);

-- Legal Aid Board;

-- disciplinary bodies (eg GMC; Law Society); and

-- commercial regulators (eg Lautro; Fimbra).

The courts tend to decline to review sporting bodies (Aga Khan [1993] 1 WLR 909) and religious bodies (Wachmann [1992] 1 WLR 1036; Ali [1994] COD 142).

(b) Public law claim

Remember - it is not enough that the intended respondent is a public body.

Judicial review may be declined if the nature of the claim is seen as 'private'. This is part of the 'procedural minefield' (Roy [1992] 1 AC 624, 653G): even law lords have been known to disagree about on which side of the public/private divide a claim falls (see Gillick [1986] AC 112, 178C-D cf 192A-B).

Matters which have been characterised as 'private' claims, inappropriate for judicial review, include:

-- employment contexts (Noble; McClaren [1990] ICR 824);

-- claims for non-discretionary remedies (Brealey [1994] COD 145).

STEP 2: GROUNDS FOR REVIEW

Ask - Is there a ground upon which the court may be persuaded to intervene?

-- NOTE OF CAUTION 4: the 'forbidden appellate approach' (Brind [1991] 1 AC 696, 767G).

On judicial review, the court will not (usually) substitute its judgment for that of the relevant decision-making body.

A common starting point is Lord Diplock's threefold classification (illegality, irrationality and procedural impropriety): GCHQ [1985] AC 374, 410D-411B.

Established grounds for judicial review can be represented as follows:

(a) Illegality

-- Ultra vires

Ask - Has the public body acted inconsistently with a legal source to which it is subordinate (including EC law: EOC [1994] 2 WLR 409)?

-- Jurisdictional flaw

Ask - Has there been an error going to 'jurisdiction' (including the absence of a precedent fact: Khawaja [1984] AC 74)?

-- Error of law

Ask - Is the decision flawed for (material) error of law (not available against courts: Page [1993] AC 682, 693B) or (in the case of courts) error of law on the face of the record (Shaw [1952] 1 KB 338)?

-- Misdirection in law

Ask - Has the body misdirected itself in law (Nilish Shah [1983] 2 AC 309, 350D)?

(b) Abuse of power

-- Irrationality

Ask - Does the exercise of power constitute 'unreasonableness' (Wednesbury [1948] 1 KB 223), or 'perversity' (Acas [1981] AC 424, 444C)?

-- Relevancy/irrelevancy

Ask - Has the body taken an irrelevant, or failed to take a relevant, matter into consideration (Wednesbury)?

-- Bad faith

Ask - Can it be said that power has been wielded in bad faith (Times Supplements (1991) 3 Admin LR 241, 253A)?

-- Improper motive

Ask - Can the public body be said to have acted for an improper motive or purpose (Preston [1985] AC 835, 864H)?

-- frustrating the legislative purpose

Ask - Has the body breached its 'duty not to act so as to frustrate the policy and objects of the Act' (Padfield [1968] AC 997, 1032G-1033A)?

-- Unfairness as abuse of power

Ask - has the public body been guilty of 'unfairness amounting to an abuse of power' (Preston, 853A)?

-- Improper delegation

Ask - has there been an unlawful or improper delegation of power from one public body to another (Vine [1957] AC 488)?

-- Fettering the discretion

Ask - Has the body adopted an inflexible policy/rule, so that it is no longer 'keeping an open mind' (Brent [1982] QB 593, 643G)?

-- Special grounds

Ask - Is there some special issue which the reviewing court should address (as a matter of first impression), such as 'deliberate abuse of extradition procedures' (Bennett [1994] AC 42)?

(c) Procedural impropriety

-- Procedural ultra vires

Ask - Is the decision flawed for contravention of 'procedural rules that are expressly laid down' (GCHQ, 411A-B)?

-- Bias

Ask - Has there been an infringement of the rule against apparent bias (ie the 'real danger' test: Gough [1993] AC 646)?

-- No fair hearing

Ask - Has the public body breached its common law duties to hear representations (and disclose information) (eg Doody [1993] 3 WLR 154)?

-- Material irregularity

Ask - Is this a situation where the court might intervene for 'material irregularity...or, if one prefers the transatlantic terminology, a want of due process' (Neill [1992] 1 WLR 1220, 1230D-E)?

STEP 3: OTHER HURDLES

Ask - Is there any other reason why a judicial review may fail to get off the ground?

-- NOTE OF CAUTION 5: non-disclosure.

Obvious hurdles should be disclosed on applying for leave for judicial review (see eg Huntingdon [1992] 3 All ER 566, 576f-g (DC) and Wenman).

Common additional hurdles in judicial review:

-- Delay

Ask - Has there been undue delay (s.31(6) of the SCA; TVNI)?

-- Ouster clause

Ask - Is there a statutory provision precluding (or restricting) judicial review (Huntington [1994] 1 All ER 694 (CA))?

-- Alternative remedy

Ask - Is there an (unused) alternative means of challenging the decision (eg a statutory appeal mechanism) (Leech, 580C)?

-- No letter before action

Ask - Does the applicant need to write a 'letter before application', prior to launching any judicial review (Wenman)?

-- Legal incapacity

Ask - Does the applicant lack legal capacity (eg an unincorporated association: Darlington Taxi [1994] The Independent, 13 January)?

-- Lack of standing

Ask - Does the applicant lack a 'sufficient interest' in the subject matter (s.31(3) of the SCA; National Federation [1982] AC 617, 630C)?

-- Hypothetical matter

Ask - Is the question raised a hypothetical or academic one (Wynne [1993] 1 WLR 115)?

-- Disputed facts

Ask - Will the litigation involve factual disputes, which may make judicial review inappropriate (Brealey)?

Courtesy of the law society

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

Dundee have had Doblos for years and have had no safety issues.I think the government should issues a list of vehicles that are acceptable.This way we would not have such a variation of opinions from the LOs.
At the recent DFT workshop a DFT spokesman said that the government did not think that just because a vehicle does not have a VCA certificate that it was not safe.They also said that they did not have a problem with any good conversion but said it was up to the LOs to decide.

Confused as to how it is deemed safe to load on a PH in the road, but not a hackney.

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IDFIMH

A PH can load in areas other than cab ranks?

CC

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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

When we took this to Bury Council we lost by every member voteing against it, this time we lost by one vote 5 against, 4 for,.

Now this association told them we would take a review if we gould, we will take it back to committee early next year. and the same vehicle is on as a P/hire in Bury.

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C. Oakes


The Hackney Association Ltd
bbha@btinternet.com

so can Hackneys, cause none of the councils who run this vehicle as said there is or as been a problem, just look how any vehicles or rear loaders

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C. Oakes


The Hackney Association Ltd
bbha@btinternet.com

Can maybe, but I doubt their conditions of license say must.

If anything it could be viewed as being safer loading on a rank as there are umpteen other cabs behind protecting you.

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IDFIMH

I totally and utterly disagree.

CC

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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

The point is My Members requested this vehicle its may job to try and get it on and i will.

its what my members as asked for, and i very much take your point and thank for for that.

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C. Oakes


The Hackney Association Ltd
bbha@btinternet.com

Then you cannot do anything else then Charles.

But your members in Bury......errm them ones who you were told to take under your winf until there was enough of them to form their own association......are probably unaware of say Gateshead?

CC

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin