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Regina v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet
Operators' Association and Another

Court of Appeal

CA

Lord Denning M.R, Roskill L.J. and Sir Gordon Willmer

1972 Feb. 11, 14

Crown Practice--Prohibition--Local authority--Licensing of hackney carriages--Resolution to increase numbers after undertaking on behalf of local authority not to do so for specified period--Prohibition issued to stop acting on resolution until after hearing interested parties--Town Police Clauses Act 1847 (10 & 11 Vict.c. 89), s. 37

From 1948 onwards a city council, in the exercise of its powers under section 37 of the Town Police Clauses Act 1847 [FN1] to "license ... such number of hackney coaches or carriages as they think fit" in their area, limited the number to 300. In 1970 and 1971 when many private cars were operating for hire in the streets, the applicants, two associations representing all the interests of the 300 existing licence holders, were assured by the town clerk that they would be consulted if any change in the numbers was contemplated.

In 1971 a special sub-committee of the council recommended increases for 1972 and 1973 and no restriction in numbers thereafter but heard the applicants' case against the proposals. On August 4 at a public meeting of the full council the committee chairman gave a public undertaking that the numbers would not be increased above 300 until proposed legislation in the form of a private Bill, which included provisions controlling private hire vehicles, had been enacted by Parliament and had come into force; and that undertaking was confirmed orally both by the chairman to the applicants and also by letter dated August 11 from the town clerk. But in November the sub-committee resolved on an increase for 1972; the committee confirmed it on December 8; and on December 22 the council confirmed the resolution.

FN1 Town Police Clauses Act 1847, s. 37: see post, p. 305H.

The applicants applied ex parte to the Divisional Court of the Queen's Bench Division for leave to apply for orders of prohibition, mandamus and certiorari. Leave was refused without reasons being given.
On the applicants' application ex parte for leave to appeal and on their original motion inter partes:

Held, allowing the appeal, that though the determination as to the number of taxicab licences to be issued was a policy decision to be made by the council in the exercise of its statutory powers under the Act of 1847 and the court could not interfere with such a policy decision, the court could and should intervene to ensure that the council acted fairly in deciding that policy after due regard to conflicting interests.

In view of the past history of the matter and in particular the undertaking publicly given to the applicants on behalf of the council, the applicants were justifiably aggrieved by the council's subsequent unfair conduct. Accordingly the court should order prohibition to go to prohibit the sub-committee, the committee and the council from acting on the resolutions of November 17, December 8 and December 22 or granting any further licences under section 37 without first hearing representations on behalf of persons interested, including the applicants, and any other matters relevant thereto, including the undertaking.

Decision of the Divisional Court of the Queen's Bench Division reversed.

The following cases are referred to in the judgments:

Attorney-General of the Gambia v. N'Jie [1961] A.C. 617; [1961] 2 W.L.R. 845 ; [1961] 2 All E.R. 504, P.C. .

Birkdale District Electric Supply Co. Ltd. v. Southport Corporation [1926] A.C. 355, H.L.(E.).

Cory (William) & Son Ltd. v. London Corporation [1951] 2 K.B. 476; [1951] 2 All E.R. 85, C.A..

Lever Finance Ltd. v. Westminster (City) London Borough Council [1971] 1 Q.B. 222; [1970] 3 W.L.R. 732; [1970] 3 All E.R. 496, C.A..

Maurice v. London County Council [1964] 2 Q.B. 362; [1964] 2 W.L.R. 715; [1964] 1 All E.R. 779, C.A..

Reg. v. Southampton Corporation, Ex parte Lankford (unreported), October 27, 1960, D.C.

Rex v. Brighton Corporation, Ex parte Thomas Tilling Ltd. (1916) 85 L.J.K.B. 1552, D.C..

Rex v. Weymouth Corporation, Ex parte Teletax (Weymouth) Ltd. [1947] K.B. 583; [1947] 1 All E.R. 779, D.C..

Robertson v. Minister of Pensions [1949] 1 K.B. 227; [1948] 2 All E.R. 767.

The following additional cases were cited in argument:

H. K. (An Infant), In re [1967] 2 Q.B. 617 ; [1967] 2 W.L.R. 962; [1967] 1 All E.R. 226, D.C..

Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924 ; [1968] 1 All E.R. 694, H.L.(E.).

Reg. v. Blackpool Corporation, The Times, December 7, 1899.

Reg. v. Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. Ltd. [1952] 2 Q.B. 413; [1952] 1 All E.R. 480, D.C..

Reg. v. Paddington Valuation Officer, Ex parte Peachey Property Corporation Ltd. [1966] 1 Q.B. 380; [1965] 3 W.L.R. 426; [1965] 2 All E.R. 836, C.A..

Rex v. Prestwich Corporation, Ex parte Gandz (1945) 109 J.P. 157, D.C..

Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

Sagnata Investments Ltd. v. Norwich Corporation [1971] 2 Q.B. 614; [1971] 3 W.L.R. 133; [1971] 2 All E.R. 1441, C.A..

Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149; [1969] 2 W.L.R. 337; [1969] 1 All E.R. 904, C.A..

Veitch v. Caldicott (1945) 173 L.T. 30.

APPLICATION for leave to appeal.

ORIGINAL MOTION

The applicants, the Liverpool Taxi Fleet Operators' Association and the Liverpool Taxi Owners' Association, applied to the Divisional Court of the Queen's Bench Division (Lord Widgery C.J., Phillimore L.J., and Lawson J.) for leave to apply for (1) an order of prohibition prohibiting the Liverpool Corporation through the Liverpool City Council from issuing any hackney carriage licences or licence plates on January 1, 1972, or at all in addition to the 300 existing licence plates already issued, and prohibiting the Environmental Health and Protection Committee of the council from taking any steps or making any directions towards the issue of any further licences or licence plates as aforesaid.

(2) An order of mandamus directed to the corporation through the city council and the same committee requiring them to hear and determine in their discretion the question whether or not further hackney carriage licences or licence plates should be issued in addition to the 300 existing licence plates already in circulation.

(3) An order of certiorari to remove to the court and quash a resolution of the city council dated December 22, 1971, consequent on a recommendation and resolution of the special sub-committee of the Environmental Health and Protection Committee of the council dated November 16, 1971, and further removing and quashing the recommendation and resolution of the special subcommittee.

The grounds on which the relief was sought were: as to prohibition, that the corporation through the council and the sub-committee had failed to exercise a judicial or any discretion in resolving to issue further hackney carriage licence plates in addition to the 300 existing licence plates already in circulation and it would be wrong in law and unjust and contrary to a proper exercise of judicial discretion for them to issue further licence plates at the present time, as they had resolved to do by a resolution of the city council dated December 22, 1971.

As to mandamus, in the circumstances set out in the affidavit of the solicitor for the applicants, the corporation through the council had a judicial discretion under section 37 of the Town Police Clauses Act 1847 and section 171 of the Public Health Act 1875 whether or not to issue further licence plates and should exercise their discretion judicially by hearing and determining the question and by not issuing further licence plates in the absence of convincing evidence of a need for them without hearing the representations of the applicants as to such evidence and arguments as appeared to the corporation through the council and the sub-committee thereof to be material and without making the evidence and arguments known and available to the applicants.

Further that (a) the corporation through the council and the sub-committee had failed to hear and determine the question according to law; (b) they had failed to act judicially in their determination; (c) in purporting to determine the question whether or not to issue further licence plates they had failed properly to exercise the discretion vested in them under the Acts of 1847 and 1875; and (d) in purporting to determine the question whether or not to issue further licence plates they were actuated by extraneous considerations about which the applicants had no knowledge.

As to certiorari, by reason of the matters set out in the solicitors' affidavit, the corporation through the council and the sub-committee had failed to exercise their discretion under section 37 of the Act of 1847 judicially and that (a) their resolution of December 22, 1971, was accordingly wrong in law; (b) there was no or no sufficient evidence before them on which the corporation could judicially decide to issue further licence plates; and (c) the resolution was contrary to natural justice.

The application for leave to apply for the orders came before the Divisional Court of the Queen's Bench Division on January 21, 1972. The court refused leave but gave no reasons for their refusal.
The applicants applied to the Court of Appeal ex parte on January 31, 1972, asking that the refusal of leave to apply for the orders be set aside and that leave should be granted to apply for the orders.

The court heard the matters inter partes as an original motion on the grounds (1) that the applicants were entitled to the orders in law and in fact; (2) that the decision of the Divisional Court was against the weight of the evidence contained in the affidavit evidence supporting the application; and (3) that it was wrong in fact and in law.

Charles James for the applicants. The corporation is bound to act fairly in exercising its quasi-judicial discretion under section 37 of theTown Police Clauses Act 1847 (applied by section 171 of the Public Health Act 1874 to urban boroughs) to determine the number of licensed cabs in its area: see per Sankey J. in Rex v. Brighton Corporation, Ex parte Thomas Tilling Ltd. (1916) 85 L.J.K.B. 1552, 1555. Fairness was shown to the applicants as persons vitally interested in an increase in the numbers by their being consulted between July 1970 and August 1971.

But the sudden reversal in November and December 1971 of the policy embodied in the oral undertaking and its confirmation in writing by the town clerk in August 1971, is a breach of the undertaking and of the promise that if any alteration in circumstances took place requiring consideration of a change of policy the applicants would be given an opportunity of being heard, and is such as to amount to unfairness. The applicants are accordingly persons aggrieved and entitled to ask for the determination of the numbers of licensed cabs according to law by provoking the prerogative orders.

If certiorari and mandamus are not appropriate, prohibition should go to require the corporation, the committee, and the sub-committee not to act on the December and November resolutions without first hearing the applicants whose livelihood will be materially affected by this radical change of policy, despite the fact that there were no new material facts since the undertaking was given. It is conceded that but for the undertaking and the duty to act fairly the corporation's right to decide matters of policy is unfettered.

[LORD DENNING M.R. In Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997 , the court looked into the merits of an exercise of ministerial discretion and decided that the minister was not a law unto himself.]

The whole question turns on the effect in law of the undertaking and whether the applicants have been treated fairly. The fact that there is no dispute between the parties is not conclusive in considering the applicants' status to ask for the order. Where the undertaking was in effect inter partes that is enough to entitle them to bring it before the court, a fortiori where they are materially affected. [Reference was made to In re H. K. (An Infant) [1967] 2 Q.B. 617, 630 per Lord Parker C.J.; Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149, 179; Reg. v. Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. [1952] 2 Q.B. 413 , 438-439; Ridge v. Baldwin [1964] A.C. 40; Attorney-General of the Gambia v. N'Jie [1961] A.C. 617, 634; Reg. v. Paddington Valuation Officer, Ex parte Peachey Property Corporation Ltd. [1966] 1 Q.B. 380, 400 on "person aggrieved"]

Michael Morland for the corporation. The decision of the corporation to increase the numbers of licensed cabs is a policy decision and the applicants are not entitled to challenge it by asking for a prerogative order. There is no single reported case in which that has been done.

The courts have frequently criticised policy decisions but have never interfered with them as this court is now being asked to do The corporation cannot be bound by an undertaking not to alter the existing situation until the Parliamentary Bill was in force as an Act, and were advised that it should not have been given since it could fetter the corporation in the exercise of its jurisdiction *304 in licensing cabs when it is obliged to consider each application on its merits. The undertaking has no legal value. It was a political promise.

[LORD DENNING M.R. And political promises are not worth anything.]
That is the gist of the argument. It may be a very long time before the Bill is on the statute book; the applicants are taking part in a perfectly proper political campaign and the number of cabs in Liverpool is a political issue.

There is no legal right vested in the existing licence holders such as to make them persons aggrieved. They had no legal right to be heard by the sub-committee in July 1971; they were heard as an act of grace; and they had no right to be heard before the policy was changed. As the law now stands a licence holder has a licence for 12 months only; the local authority's policy, which is perfectly proper, is that where a licence is transferred during the 12 months the transferee shall be in no better position than someone on the general waiting list. That shows that the applicants have no vested interest conferring on them a sufficient status to apply for the prerogative orders.

[LORD DENNING M.R. But a person who has a licence has a settled expectation of having it renewed, and that is a thing of value.]
The cases cited for the applicants concerned people who had a legal interest in the outcome of the exercise of a quasi-judicial discretion.

[Reference was made to the Peachey case [1966] 1 Q.B. 360; to Ridge v. Baldwin [1964] A.C. 40; to Attorney-General of Gambia v. N'Jie [1961] A.C. 617; to In re H. K. (An Infant) [1967] 2 Q.B. 617; and to Sagnata Investments Ltd. v. Norwich Corporation [1971] 2 Q.B. 614.]

A legal interest is an interest recognised in law. Here the existing licence holders are people whose interests may be prejudiced by an increase in the number of licensed cabs. No local authority has ever before given a right of audience to existing licence holders.

It would involve a fundamental change of practice if the court concludes that the applicants have an interest which entitles them to be heard when a corporation is making a policy decision. When the appropriate committee sits it may decide to hear objections to further licences; but it is the corporation and not the court which must determine procedure.

[Reference was made to Veitch v. Caldicott (1945) 173 L.T. 30; Robertson v. Minister of Pensions [1949] 1 K.B. 227; Reg. v. Southampton Corporation, Ex parte Lankford (unreported) October 27, 1960 and Rex v. Prestwich Corporation, Ex parte Gandz (1945) 43 L.G.R. 97.]

The corporation cannot fetter its duty to Liverpool to provide such number of licensed cabs as the public requires by adhering to the undertaking. Trouble can often be caused by councillors saying things in council: see Reg. v. Blackpool Corporation, The Times, December 7, 1889. If the court were to make an order of prohibition its practical effects might go wider than the court intends, for there are over 100 applications on the waiting list and those could not be considered if prohibition went; yet the corporation remains under the duty in section 37 of the Act of 1847 to hear and determine those applications.

[THE COURT asked counsel whether any undertaking could be given to the court on behalf of the corporation.]

It is not possible to give any undertaking for there are 160 aldermen and councillors and the position of the parties so delicately balanced that one bye-election might change the overall control of policy overnight. If this matter were considered de novo by the corporation and the appropriate committees the decision would still have to be by resolution in council. Prerogative orders are always a matter of discretion and unless there has really been a miscarriage of justice the issue of the order in the present case will create more difficulties than it would solve.

James in reply. It is accepted that a corporation cannot fetter its statutory duty by giving an undertaking in advance to a group of people; but as that has been done they are in fairness obliged to give the applicants notice of any change of circumstances and give them a chance to be heard. [Reference was made to Birkdale District Electric Supply Co. Ltd. v. Southport Corporation [1926] A.C. 355; and Cory (William) & Sons v. London Corporation [1951] 2 K.B. 476.]

It is conceded that certiorari and mandamus would be inappropriate in respect of a general policy decision by a political body but if prohibition goes to prohibit action on the resolutions of November and December and the grant of any further licences until the applicants as persons interested have been heard, it will give the corporation an opportunity to consider the matter afresh with the benefit of what the court says, and that might assist all the parties concerned.

LORD DENNING M.R.

This case concerns the number of taxicabs on the streets of Liverpool. Since 1948 the Liverpool Corporation have limited the number of taxicabs to 300. The taxicab owners want it to remain at 300. They point out that in recent years a great number of private hire cars have come on to the streets.

These private hire cars are not licensed. There is no control over them. These vehicles do not have to come up to any required standard. The taxi drivers feel that they are taking custom which should belong to them. The mischief is such that the Liverpool Corporation are promoting a Bill before Parliament to bring these private hire cars under control.

In addition the Liverpool Corporation have passed a resolution to increase the number of taxicabs. The owners seek to prohibit them from doing so. They say the corporation passed the resolution without hearing their case properly and contrary to an undertaking.

To consider the question, I must first state the jurisdiction of the Liverpool Corporation. They are the licensing authority for taxicabs in the city. They derive their powers from the Town Police Clauses Act 1847 which applies to hackney carriages. There were horse-drawn carriages in those days, but now they are motor driven. Section 37 says:

"The commissioners may from time to time license to ply for hire within the prescribed distance, or if no distance is prescribed, within five miles from the general post office of the city, town, or place to which the special Act refers, (which in that case shall be deemed the prescribed distance,) such number of hackney coaches or carriages of any kind or description adapted to the carriage of persons as they think fit."

By section 43 a licence was to be in force for one year only. That Act was explained by Lord Goddard C.J., in Rex v. Weymouth Borough Council, Ex parte Teletax (Weymouth) Ltd. [1947] K.B. 583, 589:

"It also seems reasonably clear that what Parliament had in mind was that it was desirable that the commissioners should be able to control the number of carriages which plied for hire in a given area, and should also be entitled to prescribe the kind and the description of the carriages.

I have no doubt they certainly could take into consideration the number of cabs which were already licensed, so that there would not be an undue number or, on the other hand, if they found there were not enough for the reasonable requirements of the public, they would be able to license more from time to time as they thought fit."

The licence is a licence for the vehicle. It is not a licence for the owner or the driver. Accordingly the owner of a vehicle can transfer his vehicle during the year to a buyer. The buyer can use it under the licence for the rest of the year. When the owner applies for the licence to be renewed for another year, the corporation can take into consideration not only the then proprietor, but also any new applicant. We were referred to an unreported case on that point: Reg. v. Southampton Corporation, Ex parte Lankford on October 27, 1960.

In the middle of 1970, when the owners heard that the corporation proposed to increase the number of taxicabs, their association took up the matter. On July 24, 1970, the Town Clerk of Liverpool wrote to the solicitors for the taxicab owners' association, saying:

"No decision has been taken on the number of hackney carriage plates and, before any such decision was taken, you have my assurance that interested parties would be fully consulted." That was reaffirmed on October 28, 1970, when the town clerk wrote:

"I have no doubt that your clients will be given an opportunity to make representations, at the appropriate time, should they wish to do so."
In July 1971 the matter was considered by a sub-committee of the corporation. The taxicab owners were represented by counsel. The subcommittee recommended an increase above 300, to the extent that there should be 50 more in the year beginning in January 1972 (making 350) and a further 100 in the year beginning January 1973 (making 450), and thereafter an unlimited number.

On August 4, 1971, that recommendation came up for consideration by the city council themselves. The minutes were approved subject to some matters being sent back. In addition the chairman of the committee, Alderman Craine, gave an undertaking (which was put into writing by the town clerk in a letter on August 11, 1971):

"The chairman of the committee gave an undertaking in council that no plates in addition to the existing 300 would be issued until proposed legislation had been enacted and had come into force."

After the meeting on August 4 the alderman came out to the representatives of the taxicab proprietors. The treasurer of the association asked: "Is it right, Alderman Craine, that no licences will be issued until legislation controlling private hire vehicles is in force?" The alderman replied: "I have just stated that publicly. I have just made an announcement to that effect."

So there was a clear undertaking, namely, no more than 300 licences until the legislation about private hire cabs was in force. It was expected that the bill would be introduced towards the end of 1971, passed in 1972, and in force early in 1973.

So things should have rested there till 1973. But not a bit of it. Behind the scenes the corporation seem to have been advised that that undertaking was not lawful and they ought not to hold themselves bound by it. So, without a word to the taxicab owners or their association, a sub-committee met on November 16, 1971.

They rescinded the earlier resolution and put forward a new recommendation, namely, that from January 1, 1972, a further 50 licences would be issued bringing the total to 350: and that from July 1, 1972, a further 50, bringing the total to 400: and no limit from January 1, 1973.

The taxicab owners got indirectly to hear of that recommendation. (They were never told officially.) So their solicitors asked for a further hearing. They asked if there were any new facts and requested that their clients should be given an opportunity of making further representations. On December 7, 1971, the town clerk replied:

"There are no new important material facts. If there are any new material facts of which you have become aware, please let me have details of them by return." The meeting was to be on the next day, December 8. So it was quite impossible for the owners to make any reply by return.

On December 8 the committee met. They confirmed the sub-committee.

On December 22 the city council met. They confirmed the committee and adopted the recommendation. The result was that the corporation resolved to increase the number from 300 to 350 from January 1 to July 1972, and to 400 from July 1, 1972, to December 31, 1972, and thenceforth unlimited. That was quite contrary to the undertaking which had been most explicitly given in August.

On getting to know of this, the taxicab owners moved the Divisional Court ex parte for orders of prohibition and certiorari. The Divisional Court refused the application. We desired to hear the corporation. So notice was served on them. We have had the full argument before us today.

First I would say this: when the corporation consider applications for licences under the Town Police Clauses Act 1847, they are under a duty to act fairly. This means that they should be ready to hear not only the particular applicant but also any other persons or bodies whose interests are affected. In Rex v. Brighton Corporation, Ex parte Thomas Tilling Ltd. (1916) 85 L.J.K.B. 1552, 1555 Sankey J. said:

"Persons who are called upon to exercise the functions of granting licences for carriages and omnibuses are, to a great extent, exercising judicial functions; and although they are not bound by the strict rules of evidence and procedure observed in a court of law, they are bound to act judicially. It is their duty to hear and determine according to law, and they must bring to that task a fair and unbiased mind."

It is perhaps putting it a little high to say they are exercising judicial functions. They may be said to be exercising an administrative function. But even so, in our modern approach, they must act fairly: and the court will see that they do so.

To apply that principle here: suppose the corporation proposed to reduce the number of taxicabs from 300 to 200, it would be their duty to hear the taxicab owners' association: because their members would be greatly affected. They would certainly be persons aggrieved. Likewise suppose the corporation propose to increase the number of taxicabs from 300 to 350 or 400 or more: it is the duty of the corporation to hear those affected before coming to a decision adverse to their interests.

The Town Clerk of Liverpool was quite aware of this and acted accordingly. His letters of July 24, 1970, and October 28, 1970, were perfectly proper.

The other thing I would say is that the corporation were not at liberty to disregard their undertaking. They were bound by it so long as it was not in conflict with their statutory duty.

It is said that a corporation cannot contract itself out of its statutory duties. In Birkdale District Electric Supply Co. Ltd. v. Southport Corporation [1926] A.C. 355 Lord Birkenhead said, at p. 364, that it was
"a well established principle of law, that if a person or public body is entrusted by the legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties.

They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties."
But that principle does not mean that a corporation can give an undertaking and break it as they please. So long as the performance of the undertaking is compatible with their public duty, they must honour it. and I should have thought that this undertaking was so compatible.

At any rate they ought not to depart from it except after the most serious consideration and hearing what the other party has to say: and then only if they are satisfied that the overriding public interest requires it. The public interest may be better served by honouring their undertaking than by breaking it. This is just such a case. It is better to hold the corporation to their undertaking than to allow them to break it.

Just as it was in Robertson v. Minister of Pensions [1949] 1 K.B. 227 and Lever Finance Ltd. v. Westminster (City) London Borough Council [1971] 1 Q.B. 222.

Applying these principles, it seems to me that the corporation acted wrongly at their meetings in November and December 1971. In the first place, they took decisions without giving the owners' association an opportunity of being heard. In the second place, they broke their undertaking without any sufficient cause or excuse.

The taxicab owners' association come to this court for relief and I think we should give it to them. The writs of prohibition and certiorari lie on behalf of any person who is a "person aggrieved," and that includes any person whose interests may be prejudicially affected by what is taking place. It does not include a mere busybody who is interfering in things which do not concern him; but it includes any person who has a genuine grievance because something has been done or may be done which affects him: see Attorney-General of the Gambia v. N'Jie [1961] A.C. 617 and Maurice v. London County Council [1964] 2 Q.B. 362, 378. The taxicab owners' association here have certainly a locus standi to apply for relief.

We have considered what the actual relief should be. On the whole we think it is sufficient in this case to let prohibition issue. The order should prohibit the corporation or their committee or sub-committee from acting on the resolutions of November 16, 1971, December 8, 1971, and December 22, 1971; in particular, from granting any further number of licences pursuant to section 37 of the Town Police Clauses Act 1847 over and above the 300 currently existing, without first hearing any representations which may be made by or on behalf of any persons interested therein, including the applicants in this case and any other matters relevant thereto, including the undertaking recorded in the town clerk's letter of August 11.

If prohibition goes in those terms, it means that the relevant committee, subcommittee and the corporation themselves can look at the matter afresh. They will hear all those interested and come to a right conclusion as to what is to be done about the number of taxicabs on the streets of Liverpool.

I would say that the trouble has arisen because the corporation was advised that this undertaking was not binding on them, whereas it certainly was binding unless overridden by some imperative public interest. I am sure that all concerned have been acting as best they can; but nevertheless prohibition in my view should issue so as to prevent the corporation committee acting on those resolutions.

ROSKILL L.J.

Lord Denning M.R. has read the undertaking as it was given in the town clerk's letter of August 11, 1971, and as it is recorded in the affidavit of Mr. Lynch, the treasurer of the second of the associations who are the applicants on this motion. Though there were two undertakings, they were in substance identical and their giving is not disputed. Nor is it disputed that the passing by the Liverpool City Council of the resolution of December 22, 1971, was in flagrant contradiction of the undertaking which was given both in council and privately.

Thus the issue arises: can the applicants enforce that undertaking before this court, or is it to be treated as of no effect? Though admittedly given, is it to be ignored and treated as a promise in no way binding upon him who gave it or the local authority on whose behalf and with whose authority it was given? The applicants seek orders of prohibition, mandamus and certiorari. For my part I see no ground for allowing an order of certiorari to go.

The resolution of December 22 is not suggested to have been ultra vires. Moreover, now to quash it, as Lord Denning M.R. has pointed out, causes difficulties in relation to the earlier resolution of August 4, which was rescinded by the resolution complained of. Nor can I see any ground for an order of mandamus, for I see no failure by the Liverpool City Council to exercise a power which it is required by Parliament to exercise. It seems to me that if any redress can be given, it must be redress by way of an order of *310 prohibition. The applicants have not sought relief, as perhaps they might have done, by way of injunction or declaration.

It has been said by Mr. Morland on behalf of the council that the undertaking given by Alderman Craine does not bind the council. He has sought to persuade this court that that is so because to oblige the council now to honour that undertaking would be to fetter the corporation's freedom of action in the performance of its statutory duty to consider other applications for licences after the respective dates mentioned in the resolution of December 22, 1971.

It is said that the corporation having lawfully passed that resolution, no prior undertaking, however clearly given, however much in conflict with the resolution, can be allowed to stand in the way of implementing that resolution. It is said that this court should refuse to grant the relief claimed because the court is under as great a duty to protect the interests of possible future licensees as to protect the interests of those who at present hold a monopoly of the existing licences.

For my part, I do not think this court is under any duty to protect the interests of either rival group of licensees or would-be licensees. Its duty is to see that in dealing with the conflicting interests the council acts fairly between them. It is for the council and not for this court to determine what the future policy should be in relation to the number of taxi licences which are to be issued in the City of Liverpool.

It is not for this court to consider population growths or falls or the extent of the demand for taxis within or without the city or whether there should be more licences issued in the future than in the past or whether the present grave unemployment position on Merseyside is a relevant consideration. All those are matters for the council.

This court is concerned to see that whatever policy the corporation adopts is adopted after due and fair regard to all the conflicting interests. The power of the court to intervene is not limited, as once was thought, to those cases where the function in question is judicial or quasi-judicial.

The modern cases show that this court will intervene more widely than in the past. Even where the function is said to be administrative, the court will not hesitate to intervene in a suitable case if it is necessary in order to secure fairness. It has been said by Mr. Morland that there is no precedent for this court to intervene and enforce an undertaking which he claims to be of no legal effect and thus prevent the council giving effect to delegated legislation of the validity of which there is not doubt.

For my part, I am not prepared to be deterred by the absence of precedent if in principle the case is one in which the court should interfere. The long legal history of the former prerogative writs and of their modern counterparts, the orders of prohibition, mandamus and certiorari, shows that their application has always been flexible as the need for their use in differing social conditions down the centuries has changed.

If I thought that the effect of granting to the applicants the relief sought was to prevent the council validily using those powers which Parliament has conferred upon it, I would refuse relief. But that is not the present case. It seems to me that the relief claimed will in the end, as Mr. Morland in effect ultimately conceded, assist the council to perform rather than inhibit the performance of its statutory duties. Lord Denning M.R. has referred to Birkdale District Electric Supply Co. Ltd. v. Southport Corporation [1926] A.C. 355. The decision of this court in William Cory & Son Ltd. v. London Corporation [1951] 2 K.B. 476, shows that a local authority such as the council cannot contractually fetter the performance of its statutory duties. But the present case is not such a case.

The principle applicable is plain. In matters of this kind, such as the granting of licences for hackney carriages, the local authority concerned is required to act fairly, as well as, as Lord Denning M.R. has said, in a quasi-judicial capacity. It has been said that the council and its relevant committee and sub-committee were never under any duty to hear any representations from the applicants.

That may or may not be correct. In the light of what has happened, I do not think it necessary to express any opinion upon that question. The relevant sub-committee had the advantage of hearing representations made on behalf of the applicants. Subsequently, having heard those representations, they made the recommendation which led up to the resolution of August 4, 1971, as well as, of course, to the undertaking of the breach of which complaint is made. It seems to me, therefore, that now to allow the council to resile from that undertaking without notice to and representations from the applicants is to condone unfairness in a case where the duty was to act fairly.

To stop temporarily action on the resolution of December 22, 1971, is not in any way to perpetuate that undertaking; nor should it embarrass the council in carrying out its statutory duties. The council must make up its own mind what policy it wishes to follow; but before doing so it must act fairly to all concerned, to present licensees and to would-be licensees and to others also who may be interested.

In the end it may adhere to its present policy or it may not; but in my view this court should not allow the undertaking given by Alderman Craine on August 4 and repeated by the town clerk with the council's authority in the letter of August 11 to be set at naught. The council can at some future date, if it wishes, depart from that undertaking; but if it does so, it must do so after due and proper consideration of the representations of all those interested.

I am not persuaded that any such due and proper consideration has yet been given. On the contrary, the evidence before this court shows that the passing of the resolution of December 22 was - as I have said - a flagrant breach of the undertaking. While I make no criticism, I think it right to draw attention to the fact that the minutes of the meeting of the relevant sub-committee on November 16, 1971, show that one member of the council who was a member of the Environmental Health and Protection Committee, though not a member of that sub-committee, attended that meeting of the sub-committee.

The earlier minutes of the meeting of the council on August 4 show that that same gentleman had unsuccessfully moved an amendment to the resolution of that date adverse to the interests of the applicants. It may well be that there was no reason why he should not have been present at the subcommittee on November 16 of the happening of which the applicants were unaware; but the fact that he was there perhaps lends some support to their submission that their interests were not properly taken into account at that meeting.

I have great hesitation in differing from the Divisional Court which included on this occasion both Lord Widgery C.J. and Phillimore L.J.; but they did not have the opportunity of hearing the full argument of which we have had the benefit. For the reasons I have given *312 as well as those given by Lord Denning M.R. I agree that orders of certiorari and mandamus should be refused, but that an order of prohibition should issue in the terms Lord Denning M.R. has suggested.

SIR GORDON WILLMER.

I have reached the same conclusion, and I agree with the terms of the order proposed by Lord Denning M.R. I confess that as I have listened to the story of what happened in this case, I have not found the behaviour of the Liverpool Corporation particularly attractive. We are not, of course, concerned with the question of how many taxicabs there ought to be in Liverpool. That is a matter of policy, the decision of which is entrusted to the corporation as the local authority.

The objection here is to the method which was adopted, or sought to be adopted, in framing the city corporation's policy with regard to the number of taxicabs. The applicants, who represent the owners of the existing licensed taxicabs operating in the City of Liverpool, are of necessity persons who are vitally interested in that policy. During the year 1970 they received repeated assurances that they would be consulted with regard to the number of licences to be allowed.

Moreover, following the publication of the proposed resolution by the special sub-committee in March or April 1971, they were specifically invited to make any representations they desired to make about the proposed resolution. As a result, they did have the opportunity of appearing by counsel and making representations in July 1971.
So far, so good. The applicants at that date could have no possible ground of complaint against the procedure adopted.

The special committee before whom counsel appeared reached certain conclusions, which were later adopted by the full committee and eventually by the city council at its meeting on August 4, 1971. Again I need not go into the merits of the policy which was decided on: that is not a matter for this court. But it was accompanied by an undertaking publicly given by the chairman of the special sub-committee, the terms of which Lord Denning M.R. has already read.

That undertaking was repeated in the town clerk's letter of August 11 to the applicants' solicitors. Naturally, following that, the applicants thought, and were entitled to think, that if there were to be any further change of policy, they would be among the first people to be consulted and invited to make representations.

They were, therefore, naturally surprised to learn that this same sub-committee had met on November 16, 1971, and without notice to them had recommended what amounted to an important change of policy which it could be expected would result in a very large increase in the number of licences to be issued for taxicabs in the City of Liverpool.

About this they were obviously very concerned, and wrote to the town clerk to protest at such a decision having been arrived at without any consultation with them, and without their having been given the opportunity to make representations. They received in answer a letter from the town clerk of December 7, 1971, which in effect said two things. First, it said:

"The special sub-committee and the parent committee are indeed reconsidering the matter on the basis of the information which they then had. There are no new important material facts." Secondly, the letter continued:

"I am sure that the council would not want to deprive your clients of the opportunity of drawing attention to any new important material facts of which you yourselves may now be aware. If there are any such new matters of which you yourselves have become aware, please let me have details of them by return."

As Lord Denning M.R. has pointed out, the applicants were being asked to let the town clerk have details of any new material facts by return of post - not a very practical suggestion.

I venture to criticise that letter in two respects. First, the statement that the special sub-committee were "reconsidering" the matter strikes me as something less than candid, in view of the fact that the special sub-committee had already on November 16, 1971, reached its decision.

The second thing to which I draw attention is the fact that, as the letter states, the proposal was to rescind the previous resolution although there were no new important material facts. As I have already pointed out, the letter invited the applicants to inform the town clerk if they had "any new important material facts" of which they were aware. It seems to me that that request hardly met the applicants' objection, which was that, without having consulted them, the sub-committee had sought to reverse its previous decision in the absence of "any new material facts," which was the whole point of their objection.

As a matter of history, the new resolution by the special sub-committee was duly adopted by the full committee and eventually by the city council at its meeting on December 22, 1971.

As has been pointed out by Lord Denning M.R., what is now sought to be done can only be regarded as being in flat defiance of the undertaking publicly given by the chairman of the sub-committee at the meeting of the city council, and repeated privately to the applicants through the town clerk's letter.

It seems to me that in these very special circumstances, having regard to the history of how this matter had been dealt with in the past, and having regard especially to the giving of the undertaking, the applicants are justified in regarding themselves as "aggrieved" by what I can only describe as unfair treatment on the part of the Liverpool Corporation. Accordingly, it seems to me that this is indeed a proper case in which this court can and should interfere, in order to ensure that a decision is arrived at only after fair discussion and after hearing all proper representations of the parties interested.

I share the hope expressed by Lord Denning M.R. that this will give the corporation an opportunity of tackling the problem afresh, and arriving at a fair conclusion after hearing all interested parties.

Representation

Solicitors: Markbys for Layton & Co., Liverpool;Cree, Godfrey & Wood for Town Clerk, Liverpool.

Application for prohibition granted with costs in Court of Appeal. (M. M. H. )