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Key Cabs Limited t/a Taxifast v Plymouth City CouncilCO/4369/2006

High Court of Justice Queen's Bench Division Administrative Court

8 November 2007

[2007] EWHC 2837 (Admin)2007 WL 4190498Before: Mr Justice Mitting

Thursday, 8th November 2007

RepresentationMr Alan Newman QC (instructed by Messrs Ashfords , Plymouth) appeared on behalf of the Appellant.

Mr James Findlay (instructed by Plymouth Legal Services ) appeared on behalf of the Respondent.

JudgmentMr Justice Mitting:

1 The appellant, Key Cabs Ltd, is a substantial taxi and private hire operator in the Plymouth area. It operates some 400 taxis and private hire vehicles. The licensing authority for both classes of vehicle is Plymouth City Council. It has had for many years a policy of limiting the number of taxis, strictly hackney carriages, operating within its area, a policy which it has maintained despite deregulatory impulses from central government over the last two decades.

2 In 2003 the appellant was anxious to expand its business by applying for, and if possible obtaining, 30 hackney carriage licences. By a letter dated 18th May 2003, its managing director, Mr Preece, on company notepaper which set out its name and registered address, wrote as follows to the Assistant Head of Environmental Regulation Services:

“Dear Mr Truss,

Application for 30 Hackney Carriage Vehicle Plates

Significant demands are now placed on our services and to fulfil that demand we require to increase the number of Hackney Carriages operating on our radio circuit. This conclusion is predicated on the demands we are currently receiving without any promotional activity on our part. We have a requirement for an additional 30 hackney carriages to meet demand and we require an undertaking from the Council that these plates will be made available to us as required.

…

To assist the Council in their deliberations, we are prepared to make a presentation to the Licensing Committee to present our requirements in detail.”


3 No reply was received until a letter dated 10th November 2003 from Mr Truss to Mr Preece, which read:


3 “Re: Application for 30 Hackney Carriage LicencesI refer to your letter in which you request 30 additional Hackney Carriage licences.

…

… I must stress that, as there have been in excess of 100 expressions of interest recorded, I can give no indication at present that your application will be successful.”



4 There then followed a period of silence. For present purposes it is not necessary for me to decide whether that was due (as the council maintains) to action or (as the appellant maintains) to inaction. In any event, on 9th July 2004 Mr Preece wrote to Mr Truss in the following terms:


4 “Hackney Carriage Plate ApplicationsIt is now over eighteen months since our original application to the Plymouth City Council for the grant of thirty hackney carriage vehicle licences. At that time we offered to make a presentation to the committee to enlarge on the reasons why the licences were required — no such presentation has been requested and despite follow up letters the council appears to be moribund in making any decision on this issue.

…

It is therefore our intention to present a vehicle for plating within the next two weeks in order that a decision is made and we are able to pursue our legitimate commercial activities.”



5 That prompted a prompter reply from Mr Truss to Mr Preece dated 21st July 2004, which reads:


5 “Hackney Carriage Plate Applications…

I understand that it is your intention to present a vehicle today for a Hackney Carriage licence to be issued.

I have to inform you that such licence cannot be provided for the reasons outlined within this letter.”


I need not refer to the reasons stated:

“I had originally replied to your request for thirty licences by letter dated 10 November 2003, a copy of which is attached. …”

The letter went on to explain and justify the council's alleged inaction.

6 Mr Preece then involved the National Private Hire Association, who by letter dated 26th July 2004 wrote in these terms to Mr Truss:

“REF: Hackney carriage licence applications — John Preece”

There then followed a long explanation of the history.

7 The letter concluded as follows:

“We therefore give the council seven (7) days from the date of this letter to respond to Mr Preece's application for a further 29 licences.”

That prompted a holding reply of 29th July 2004, but no substantive reply.

8 By a complaint lodged in the Plymouth Crown Court, the appellant identified the matter of complaint as follows:


“(1) On the 18th May 2003 the Complainant Company applied to the Respondent Authority for 30 hackney carriage vehicle licences.

(2) On the 21st July 2004 the Complainant Company submitted a Peugeot Euro 7 vehicle, registration number SF04 RJJ, to the Respondent Authority for plating and licensing as a hackney carriage.

(3) By a letter dated 21st July 2004, the Respondent Authority informed the Complainant Company that it had refused the hackney carriage licence for the submitted vehicle.

(4) By a letter dated 26th July 2004, the Complainant Company's National Association wrote to the Respondent Authority giving them seven days to determine the further 29 applications. No reply has been forthcoming to date.”


Being aggrieved by those matters, the appellant appealed to the Crown Court.

9 Before the hearing of the appeal, the only public statement of the council's position was given in response to a letter to Gary Streeter MP, Mr Preece's Member of Parliament. The letter dealt with a number of questions, including the subject matter of this appeal. The relevant part of the letter dated:

“This case relates to the refusal for an additional 30 Hackney Carriage licences …”


10 When the matter came on for appeal the substantive issue was that raised by section 16 of the Transport Act 1985 , as to the existence or otherwise of unmet demand for hackney carriages in Plymouth. Some ten or 11 days of evidence and argument was required to debate that issue. The Crown Court (a panel presided over by Mr Recorder Fuller QC) decided that question unequivocally in favour of the appellant: see page 25G–H of the transcript of its reasons.

11 There arose, however, a subsidiary but underlying question about the application for 30 licences so-called. The council's case was that for an application to be valid, it must relate to a specific or identified vehicle. The council further submitted that when viewed as a whole, the correspondence demonstrated not that the appellant had applied for 30 licences, but had simply given advance warning of its determination to do so, and sought an extra-statutory undertaking as to the future grant of licences rather than an actual grant of 30 licences.

12 The appellant's case was that the letter of 18th May 2003 (reiterated by the letter of 26th July 2004) was an unequivocal application for 30 licences, was treated as such by the council and accordingly should, subject to the question of demand, have been capable of being granted and should have been granted.

13 The Crown Court did not deal with the first of the submissions made by Mr Findlay for the council. That was made expressly clear in a letter from the Recorder about the case then in draft, in which in paragraph 4(ii) he stated:

“The court did not make a finding that an application must relate to a specific vehicle …”


14 For reasons which I will explain, it seems to me that the question that the court did answer — namely, whether or not the letter of 18th May 2003 amounted to an application for 30 licences — could not be answered without addressing and answering that underlying question.

15 The regulatory regime for hackney carriages was established by the Town Police Clauses Act 1847The relevant provisions are section 37, 40 and 41 , which provide:

“37. Commissioners may licence hackney carriages

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, … hackney coaches or carriages of any kind or description adapted to the carriage of persons as they think fit.

…

40. Persons applying for licence to sign a requisition

Before any such licence is granted a requisition for the same, in such form as the commissioners from time to time provide for that purpose, 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; and any person who, on applying for such licence, states in such requisition the name of any person who is not a proprietor or part proprietor of such carriage, 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 of such carriage, or who is concerned as aforesaid in the keeping, employing, or letting to hire of such carriage, shall be liable to a penalty not exceeding level 1 on the standard scale.

41. What shall be specified in the licences

In every such licence shall be specified the name and surname and place of abode of every person who is a proprietor or part proprietor of the hackney carriage in respect of which such licence is granted, or who is concerned, either solely or in partnership with any other person, in the keeping, employing, or letting to hire of any such carriage, and also the number of such licence which shall correspond with the number to be painted or marked on the plates to be fixed on such carriage, together with such other particulars as the commissioners think fit.”


16 This is an early regulatory regime. If a modern regulatory regime had been drawn up from scratch, there is no reason why it should not have contained provision for applying for a given number of hackney carriage licences without any need to identify particular hackney carriages. A modern licensing regime could, for example, follow the example of the planning laws, in which district plans exist for the construction of a given number of houses. Once that is done, planning applications can be made for the construction of individual houses on particular sites.

17 This regulatory regime, however, contains no such provisions. It is plainly drafted in terms which presume the existence of a carriage before a licence to ply for hire is granted. The wording of section 40 makes that point clear beyond argument. The requisition is required to be made in writing and must be signed by the proprietor or proprietors of “the hackney carriage in respect of which such licence is applied for”. It is an offence for the name of a proprietor of a hackney carriage the subject of a requisition not to be stated in the requisition. Section 41 makes it plain that the licence when granted attaches to an individual existing vehicle. It has always been so construed. In The King v Weymouth Borough Council ex parte Teletax (Weymouth) Ltd [1947] KB 583 , Lord Goddard CJ said as much in judicial review proceedings to quash the decision of the defendant council to refuse to transfer a licence issued in respect of a hackney carriage from one proprietor to another. He observed, at page 588:

“We are simply concerned here with the licensing of a particular vehicle to be on the road for the purpose of plying for hire within the district of the local authority; …”


18 At page 589:

“He is to fill in a requisition, and the requisition is to be signed by the proprietor of the hackney carriage in respect of which such licence is applied for. That, again, appears to show that it is the vehicle which is licensed, and not the person owning the vehicle.”


19 At page 590:

“It would have been perfectly simple in that section [a reference to section 41], as indeed in s. 37, or in any other section of this part of this Act, to refer to the licensing of the proprietor to keep a particular carriage, if Parliament had so intended.”


20 Finally:

“What then is the effect of these sections? In my opinion, they clearly show that the licence is granted to the carriage …”


21 The issue arose for consideration in R (Kelly) v Liverpool Crown Court and another [2006] EWCA Civ 11 in protracted and complex proceedings. During the course of that round of the proceedings, counsel for the interested party, Wirral Borough Council, submitted that one of the applications being considered in the case was:

“… not a valid application because it did not identify vehicles on which plates could be placed.” (see paragraph 6)


22 The court did not find it necessary to answer that question because its order was given in relation to a different and earlier application which did identify ten specific vehicles which were in existence, and the court ordered that licences should be granted in relation to five such vehicles.

23 Accordingly, the question is open for decision by me without there being binding authority directly in point either way. However, for the reasons which I have indicated in the wording of the statute and in the observations of Lord Goddard CJ in ex parte Teletax , there can only be one answer to the underlying question. This regulatory regime requires, at a minimum, that the vehicle or vehicles in respect of which a requisition is made must be identified — and in the ordinary case in existence — when the requisition is made. Otherwise it is difficult to see how the requirements of section 40 could be complied with, or indeed how the person making the requisition could avoid committing the low-level criminal offence specified in the section. It is simply not possible to identify a proprietor of a vehicle in the absence of an identified vehicle. In the ordinary case that will require a vehicle to be in existence, even though not necessarily in the ownership of the person making the requisition. It is theoretically possible to envisage such a person applying in respect of vehicles which have not yet been manufactured, but in respect of which the manufacturer is able to offer advance identification, by chassis number or some other such means, of a vehicle which will be built. But that situation is unlikely to arise often.

24 That ruling has, of course, for the operators of taxis unfortunate economic consequences. It means, as the appellant contends, that a proprietor of a taxi business may incur very substantial expenditure on equipping himself with a fleet (or putting himself in a position to acquire such a fleet) in circumstances in which he does not know one way or other whether or not licences will be granted. That is an unsatisfactory aspect of this regulatory regime, but it is for Parliament and not the courts to address it.

25 I am unable to give to the observations of Mann LJ in Cannock Chase District Council v Alldritt, a decision of the Divisional Court dated 28th January 1993 , the weight and meaning for which Mr Newman QC contends. In that case the issue was simple: whether or not section 57(1) of the Local Government (Miscellaneous Provisions) Act 1976 permitted a local authority to require an insurance certificate to accompany any application for a licence for a hackney carriage. He held that it was not. Mr Newman submits that the reasoning indicates at least sympathy with the underlying economic difficulty which might be faced by an applicant for a hackney carriage licence, who might be required to incur expenditure which would be unfruitful. Mann LJ stated:

“As I understand it, the district council does not dissent from that and is content that its request for information might be answered ‘not yet arranged’ or ‘to be arranged’. Such an answer might well be one for a person who has not previously had a licence for his vehicle and who does not wish to incur expenditure on insuring it as a Hackney before he gets a plate for it. I think the difficulty would be removed if the form made it clear that there was a qualification ‘… if any’.”


26 That observation in fact does not assist Mr Newman because it is premised on the existence of a vehicle in respect of which the insurance certificate might be obtained. It too, therefore, begs the fundamental question which I have to determine.

27 The ability to identify a vehicle is a necessary but not sufficient pre-condition for the making of a requisition under section 40A document could be sent which said, “I have a vehicle. I wish to enquire of the council whether or not if I were to make an application it would be favourably considered.” That would clearly not amount to an application, even though the vehicle existed. What cannot however be made, on my understanding of the law, is an application which does not relate to a specific vehicle, an application for a licence in blank.

28 That reasoning provides a sufficient answer to the appellant's case deployed before the Crown Court because there were not 30 vehicles identified in the requisition, or as I understand it capable of being identified at the time when the requisition was made. It was not a requisition under section 40 .

29 Because of the way in which the Crown Court dealt with the question, I should express a few words about its reasoning. In paragraph 66 of the transcript of the reasoned judgment, the Recorder stated that the letter was:

“… no more than a rather bullish request for an undertaking which in the circumstances no one would have expected to be given, least of all the author of the letter, Mr Preece …”


30 That conclusion was reached in the context of a somewhat ambiguously defined test stated in the preceding paragraph:

“What amounts to an application in our judgment will depend on the facts in any given case and what it is that is being applied for. What in our judgment is important in this case is whether Mr Preece, in the letter of 18th May, did sufficient to be properly regarded as embarking an effective application process.”


31 In my view, the appropriate test to ask and to answer in relation to a document claimed to be a requisition under section 40 is as follows: would it be understood by a reasonable council officer, with knowledge of the circumstances, in the relevant department, to be a requisition under section 40If the answer to that question is “yes”, then it is a requisition for that purpose and must be either granted or refused. The fact that the relevant council official treats the letter as a requisition under section 40 — or in modern parlance an application for a licence — is relevant. In this case the correspondence all points to the council officer, Mr Truss, accepting that the letter was an application or requisition for 30 licences, and responding ultimately by deemed refusal.

32 If therefore I had reached a different conclusion about the need for there to be identified a vehicle or vehicles the subject of the requisition at the time which it was made, I would have reached a different conclusion from that reached by the Crown Court on the single issue posed in the case. But as it is, for reasons which differ from those of the Crown Court but arrive at the same conclusion, I reject this appeal.

33 The question posed in the case is: “Whether the Crown Court erred in finding that the letter of 18th May 2004 did not amount to an application for 30 Hackney carriage licences.” I answer “no”, for the reasons which I have given.

34 That I think deals with the first of the two matters. Do you want to deal with costs arising out of that now?

35 MR NEWMAN: We might as well finish this one.

36 MR JUSTICE MITTING: That seem to me to be sensible.

37 MR FINDLAY: My Lord, I do have an application for costs. My Lord, it was an issue which was run below. It was an issue which the appellants had notice we would run in this court, and thus ( inaudible ) the court below found, the submission of the council since it has been made, and I accept that it was only made late in the day before the Crown Court, had been consistent. So, my Lord, as to the principle of costs I would ask for my costs of this appeal.

38 MR JUSTICE MITTING: Right.

39 Mr Newman?

40 MR NEWMAN: My Lord, the council, who are the regulatory authority, effectively led us to believe that the application was an application for 30 licences. In those circumstances, looking at the history as a whole, I respectfully submit that the correct conclusion is to make no order as to costs.

41 MR FINDLAY: My Lord, if they are to formulate a significant issue before the Crown Court, then I would have difficulty resisting that point. But the costs that I am seeking are the costs incurred on appeal alone in respect of which issue the appellants have lost. Whilst our initial position at the Crown Court may not have been a particularly attractive one, I would submit that our position on this appeal should not be so castigated and certainly should not result in us, having succeeded in our upholding of the judgment, to be deprived of any but certainly not all of our costs.

42 MR JUSTICE MITTING: Thank you.

43 With very great reluctance, because as I indicated in the course of argument I do not think that the council have handled this matter as a regulatory authority should, I allow the application for costs on the simple ground that the council has won the appeal. I therefore direct that costs are to be paid by the appellant to the respondent, to be the subject of a detailed assessment if not agreed.

44 MR NEWMAN: My Lord, one—

45 MR FINDLAY: My Lord, we have produced a schedule of costs. I do not know whether it was produced — it was a joint schedule in respect of this issue and the following issue.

46 MR JUSTICE MITTING: It is not going to be terribly helpful then. We will have to see what happens on the subsequent issue. I strongly suspect it is not a case in which it is appropriate for me to attempt a summary assessment.

47 MR FINDLAY: My Lord, it was listed for a day and a half and it could have easily have taken that time.

48 MR JUSTICE MITTING: We have not yet embarked on the next matter.

49 MR FINDLAY: It could still take that.

50 MR NEWMAN: My Lord, there is one other matter. I do not know whether we would wish to take advantage of your Lordship, but may I invite your Lordship to grant permission to appeal. This is a point which your Lordship has said you are effectively deciding—

51 MR JUSTICE MITTING: Is this not a second appeal?

52 MR NEWMAN: Yes, I suppose it is, because the Crown Court was an appeal as well. So not withstanding that, your—

53 MR JUSTICE MITTING: If it is a second appeal, then I have no power to grant permission to appeal. It can only be obtained from the Court of Appeal, if it is a matter that goes to the Court of Appeal. All of this requires a little thought.

54 MR NEWMAN: I think it certainly goes to the Court of Appeal, it is not a criminal cause or matter.

55 MR JUSTICE MITTING: That is true.

56 MR NEWMAN: But in any event, it is a second appeal and therefore—

57 MR FINDLAY: It is a second appeal.

58 MR NEWMAN: — your Lordship is right, if we choose to go down that route, I have to—

59 MR JUSTICE MITTING: There is nothing I can do to help you on that aspect, I am afraid.

60 MR NEWMAN: My Lord, so be it.

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