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LIVERPOOL CROWN COURT No. A.19990450
Derby Square, Liverpool.
Tuesday, 29th February, 2000.
Before:
HIS HONOUR JUDGE DUNCAN
(And a Bench)
MALCOLM HOLMES Appellant
-v-
SEFTON METROPOLITAN BOROUGH COUNCIL Respondent
MR CLIVE BAKER appeared on behalf of the APPELLANT.
MR KEVIN SLACK appeared on behalf of the RESPONDENT.
JUDGMENT
JUDGE DUNCAN:
This appeal by Malcolm Holmes against the decision of the Sefton Metropolitan Borough Council to refuse his application for a hackney carriage licence has been heard by my colleagues and myself over three part days and there has been (as so often is the case where there is a small gap between hearings) a shift in emphasis and further evidence has been called, but at the end of the day my colleagues and I have been able to come to a decision.
It is in everyone's interests that I give our decision now but obviously it is an extemporary judgment and may not cover absolutely every point, and may indeed not perhaps be as elegant (if that is a word that should ever be attributed to any judgment of mine) as it would be if it was more carefully thought out.
The parties agree that the sole issue for the court today is whether it is satisfied to the civil standard of proof that there is no insignificant unmet demand for the services of hackney carriages. The respondent local authority accepts that the burden of proof rests with the local authority to prove to the civil standard that there is no significant unmet demand for the services of hackney carriages. The appeal hearing is de novo and accordingly the court is entitled to receive any evidence which could have been considered by the local authority.
We also note that there was from the Department of Trade, as it then was, a circular of 1985 which was seeking to give some guidance under the Transport Act, 1985, and which indicates under the section "A District Council may refuse a licence to restrict numbers only if satisfied that there is not significant unmet demand for taxis in the relevant area. If there is an appeal, it will be for the Council to convince the court that they had reasonable grounds for being so satisfied. It will not in general be sufficient for a District Council to rely on the assertion of existing taxi licence holders that the demand is already catered for. They have evidence only of the demand which they satisfy and it will be for the Council themselves to seek for and examine the evidence of unmet demand.", and then it goes on to deal with that.
So that is an acknowledgement, and I have no doubt that the local authority in this case are well aware of the pitfalls and advantages of relying on those in the trade. There is a passage from a book helpfully presented, published by Butterworth’s on Taxis: Licensing Law and Practice by a Mr Button, and we are asked to take note of that. It is not an authority, of course, but it is some guidance, and at page 137, under the little title "Surveys", the author observes: "Finally it is necessary to mention surveys. They are the only acceptable method of demonstrating whether demand for hackney carriage services is met or, if it is not, the extent of the shortfall." It then quotes the Brighton Borough Council ex parte Bunch case, showing that "an independent survey carried out by a competent person attracted judicial approval."
It goes on: "Surveys conducted by the Council's officers are likely to be seen as partial, and therefore unlikely to be capable of being relied on in an appeal against refusal to grant a hackney carriage proprietor's licence. Independent surveys are expensive to commission, but essential if the local authority is going to successfully defend a refusal to grant additional licences." It observes that "such an approach can prove unpopular with hackney carriage trade as it will increase their fees", because apparently there is an argument that the cost of a survey may be capable of being recovered from them, but that is not a matter that should concern us at this stage.
The local authority seek to rely upon the survey of 1990, and the survey of 1990 came to the conclusion that there was no significant unmet demand. The appellant states that that is not a survey that is now capable of challenge, so he accepts that it was appropriate for 1990 for the purposes of these proceedings, but he says that it is not sufficiently up to date bearing in mind the other evidence that the court has heard and that therefore there is no evidence before the court sufficient to satisfy the civil burden of proof to prove that there is no significant unmet demand for the services of hackney carriages: that the Local Authority therefore do not have reasonable grounds for being satisfied.
We have been referred to a number of authorities which draw our attention to the dangers of relying on, if I might call them, "blips in demand." The first case that we were referred to is the case of Regina -v- Great Yarmouth Borough Council, ex parte Sawyer, the judgment of Lord Justice Woolf, where he states: "It is perhaps of assistance to point out that under section 16(b) the licensing authority can adopt a reasonably broad approach in asking itself whether or not it is satisfied that there is no significant demand for the hackney carriage within the area to which the licence would apply which is unmet.
The authority in my view is entitled to consider the situation in relation to the area as a whole. It is also entitled to consider the position from a temporal point of view as a whole. It does not have to condescend into a detailed consideration as to what may be the position in every limited area of the authority in relation to a particular time of day. The authority is required to give effect to the language used by the section and can ask itself with regard to the area as a whole whether or not it is satisfied that there is no significant demand."
That was quoted approvingly (although it had to be in the circumstances) in the case of Gayfor -v- Wakefield M.B.C. That is an interesting case to this extent, what appears to have happened there was that there was an application for a hackney carriage licence, it was refused by the local authority. "On appeal against the Council's decision the Crown Court held that the Council had not established that there was not a significant unmet demand for taxis in the district and allowed the appeal.
The Council thereupon commissioned a survey on the extent of unmet demand and decided to grant five further licences. The applicants sought further licences and the Council refused the application. The applicants appealed to the Crown Court and appeared before the same Bench as had previously allowed the appeal. The Crown Court, with its previous decision in mind, determined that the evidence revealed no significant unmet demand and the Council's decision was correct." In other words, by then the local authority had in their support an independent survey. And during argument there, again dealing with the question of "blips", if I can put it in that way, a delay of up to twenty minutes on a Saturday night it was submitted could not possibly be regarded as less than significant, but that was not something approved of in the judgment and it was basically said that Lord Justice Woolf's approach was right.
There, of course, there was a survey up to date which was indicating the nature of the "blip," and the extent of it. In the original survey that we are dealing with - at page 13 of the bundle, page 10 of the survey -there is the survey as it deals with Southport, and I will deal with that in a moment. When the appellant first made his claim for a licence he was directing his attention primarily to Formby and Freshfield.
The case on appeal has moved to the general issue, as indeed in fact it has to bearing in mind the concession, that one has to look at the area overall and decide whether the local authority has shown that there is no significant unmet demand for the services of hackney carriages, and the evidence that has been latterly put before the court deals primarily with the question of a problem in Southport during the evening hours on three or four nights a week.
At the time in 1990 of the survey, table 3 sets out relatively short waiting times - under a minute between 10 and 11 on average at the Southport rank, and then between 11 and midnight a minute-and-a-half, again not of tremendous significance, and then it is only between 2 and 3 o'clock that the average waiting time seemed to be something like nearly five minutes.
That was the observation of the authors of that independent survey, but in their conclusions at the end, even bearing that in mind, they were able to say, at page 38 of their report: "Overall the passenger delays observed in Southport were not great but the spread of delays into the weekday time periods, and the comparative low cab waiting times, do suggest the possibility of increasing service quality here by increasing the number of cabs operating in Southport."
So there was then a minor problem highlighted within the report of the local authority which they had commissioned. Mr Thompson gave evidence before us, and he said that in Sefton as a whole there had been an increase in private hire from 1,220 in 1990 to 1,440 now, but the hackney carriage licences had been kept at 271.
Although he was giving his evidence primarily initially about Formby and A that area - as indeed were some of the other witnesses, - they were all giving evidence which we found persuasive in the sense that it was clear that since 1990 there has been a considerable change in the type of work undertaken by taxis and the sort of demands made of them by members of the public.
I do not intend now to detail these in great abundance but in the larger shops, whether it was Formby, Bootle or Southport, there are now provided free 'phones by taxi firms so that folk wishing to get home with the week's shopping can make their 'phone call where they are and wait for a taxi rather than look for a rank or struggle down the street hoping that a hackney carriage might appear.
Further, we were told that in other situations there is an enormous increase - and again, it is something we can quite accept as we accept the free phone evidence, we can see it with our own eyes and we are entitled, I think, not to remain remote from the realities of life - but the mobile phone has transformed for many their ability to communicate and that, too, has affected the use of taxis. For example, folk coming off the train will now in many cases ring up ahead to ensure that a private hire vehicle is available for them, or when they are leaving some premises rather than look for a public phone, use their mobile phone to book a taxi, and so that has increased the use of those taxis that have the advantage of being privately hired.
One witness has also given evidence that in some cases folk prefer to ring up a recognised taxi firm and have someone come round, rather than take their chance with the hackney carriage. We found that evidence slightly perplexing but we do not reject it, it may well be that some folk prefer that but we do not feel that that is a significant situation. We also heard from the witnesses, and indeed from a Mr Anthony Holmes (no relation to the appellant) of the great change in the social habits of the people who habitually now need to use taxis.
So we accept that there has been a marked change in consumer use. As Mr Maudsley observed, the whole basis has changed and he believed, as did those earlier witnesses, that there has been a reduced need for hackney carriages, or certainly for hackney carriages without the advantage of an ability also to act as private hire vehicles. It is perfectly clear, for the avoidance of doubt, that a hackney carriage may also be used as a private hire vehicle if it has the advantage of a radio, but otherwise its source of income is by plying for hire, either by being at a rank or, with its light on, being flagged down by a passing member of the public.
We also heard evidence from Joanna Connelly, who gave evidence that one of the disadvantages of increasing hackney carriage licences was that often this did not serve the public well. She said, and she was a lady of considerable experience in and a representative of the taxi trade, - indeed all the folk who gave evidence before us were taxi people of considerable experience and we were impressed by their evidence - but she indicated that what sometimes happened, is that if you increase taxi licences, that is the number of actual hackneys around, you do not necessarily increase the usage of those hackney carriages.
Because she says at present, where there are more holders of hackney carriage driving licences than there are hackney carriages, then you get a "doubling up" of use of the hackney and the public may well be better served by that, and she quoted that when Birmingham derestricted altogether this became a problem and in fact there were complaints in Birmingham because of that.
We need to be very cautious, in deciding this case, not to allow any argument as to regulation or deregulation to sway us one way or the other. It appears that some local authorities have deregulated altogether, and that may well have caused some disadvantages for the public, and indeed some unforeseen and unhappy disadvantages for some of the taxi drivers themselves. The D.O.T. guidance to local authorities indicates that a total abandonment of quantity control can sometimes lead to over-supply before, as it is put, "market forces could bring about an equilibrium between supply and demand." Some might say Government wishful thinking, but a safe enough aspiration one might think.
The situation here, as my colleagues and I understand it, is that if we allow this appeal the local authority have a number of choices and it is not for us in any way to say which of those choices they should follow. They may conduct a survey which may support their present position and they may then be able to resist a further application on the basis of an up to date survey.
They may, on the other hand, consider on the basis of what that survey tells them that there may need to be more licenses, we know not. Equally, they might decide to deregulate, but that again is not for us to say. We are certainly not intending to encourage one course or the other.
During the course of the case we heard evidence from a Mr Anthony Holmes, and in his evidence - (and he was a taxi proprietor and we quite accept that his agenda, if I may put it that way, may well be towards the deregulation end of matters and we take that on board) - he was able to draw our attention to a number of matters, many of which had arisen since the date of the decision of the local authority refusing the appellant Mr Holmes's application in this case.
First of all, there had at some point during the autumn of last year (1999) been a strike threat by some of the private hire taxi drivers in the Southport area because of the difficulties they were encountering as a result of the increased demand, over the last few years which had reached something of a crescendo during 1999. He said that there were more people visiting Southport for its nightlife than ever before, and of course being a private hire vehicle he was saying that, "We're having to pick the right people up.
Five or six years ago", he said, "the town cleared by about twenty to 3 in the morning. Now it has crept up to 4.30, and there are always people wanting to get into our cars." He says there has been an increase in night life - and we heard evidence actually that there had been an increase in night life, not only in Southport but also in Bootle, and indeed some club in Formby ("Shorrocks", is it called?) had re-established itself and that, too, had brought about an additional demand for taxis. He said there were many different clubs and restaurants and small bars with late licences. He said, "This tends to be Thursday, Friday and Saturday", and he said, "also Monday is student night.". We noted at the time that Monday appeared to be student night the country over!
So he was indicating a considerable increase in usage by folk who were enjoying Southport on Thursday nights, Friday nights, Saturday nights and Monday nights. He said in the end the taxi drivers decided not to have a strike and they discussed it with the police, and he and his wife decided to seek some information from other areas. He said that in his experience in Southport the build-up started around about 11 o'clock in the evening when the pubs really were closed and it happened because there were not taxis about to clear the late night revellers, and by the time the clubs came out, which would be much later, the problem got worse, and he regarded it, no doubt as he would, as a significant unmet demand.
He said it is significant in this way. He said that the revellers do not consider the difference between a hackney carriage and a private hire has anything to do with them. If they see an empty vehicle that appears to be a taxi, in whatever shape or guise, then they think it is fair game. He said he and his colleagues do receive a good deal of abuse.
He said most weekends there is this difficulty and they have discussed it with the police. He said demand has grown over the last few years but particularly, he said, in the last two or three years. And he was really putting it in this way, that more hackney carriages around at that time on those nights would relieve the demand and would, in his view, be of considerable assistance to the general good order and management of the area.
He had done some researches and had a copy of a letter, the contents of which in our view support some of his contentions. It is dated 25th October 1999 and is from one Councillor, a Mr Francis, to another Councillor, a Mr McCullough. The second paragraph of that letter reads (and it is referring to Mr Holmes's submissions to us basically about the same problems): "What he says is pertinent, bearing in mind that we heard at the last meeting of the Licensing Committee that the clubs in Southport have the capacity to disgorge 10,000 people on to the streets of the town centre at 2 a.m. when they close. This obviously is a recipe for trouble, and the longer that these people are kept hanging around the town centre the more trouble there is likely to be. It is important that the town centre is cleared as soon after the clubs close as possible." And the Councillor urges the Committee to do something about it.
There is also a letter, because Mr Anthony Holmes has been in correspondence with his M.P., to the M.P., Mr Fern, from an Inspector, Inspector Fitzsimmonds of the Merseyside police, and this letter is dated 19th December 1999. It refers to the M.P.'s letter to the Superintendent concerning the issue of taxis operating in Southport town centre. It was being suggested, whether by the M.P. or not, that one way forward would be for the police in effect to turn a bit of a blind eye and allow private hire operators to pick people up as a way of clearing the streets. Quite obviously the Inspector could not possibly agree to that as an appropriate way forward, but in the second paragraph of the letter it reads: "There is merit in the argument that public order would benefit by virtue of the town centre being cleared of late night clubbers.", (I prefer the word "revellers" really, "clubbers" conjures up all sorts of ideas!). somewhat earlier than is now the case. I am sure you are aware that the present hackney carriage ranks attract huge queues from shortly after the end of licensing hours, when there is always the potential for argument and disorder. Over this past weekend I observed lengthy queues, which were still noticeable at 4 a.m., in bitterly cold weather, as well as droves of people attempting to hire taxis in the street.
In Preston, in 1989 there were fifty-two, and in 1998 there were 182, and Preston is the town to the north of Southport. In Bradford there are at present 223 hackney carriages and they have increased over the last three years, and in York there were in 1999 158 hackney carriages and that, too, is a significant increase.
This is information that Mr Holmes was able to give us from documents he had received from those local authorities. In the unrestricted areas of Birmingham it had gone up in three years from 700 to 1,000, and there had been also an increase of private hire vehicles – a considerable increase, I did not get the precise number. In Newcastle, an increase between 1987 and 1999 from 239 to 720. There had apparently been a decrease in Wigan and it had been static there for some time. He said, and we accept his evidence, that he had selected those randomly and he wrote to a number of authorities, Liverpool included, who did not reply. He accepted also that there was an increasing trend for hackney carriages to work for part of the time as private hire vehicles. So we have the evidence from a number of carriers that there is a shift in emphasis from hackneys to private hire, as a result of the free phones, the mobile phones and changing social habits - that is on the one hand.
We also have the evidence, from the survey that there was, back in 1990, a blip in usage in the evenings in Southport on Friday and Saturday, but we now have the evidence which we accept from Mr Holmes about the very great increase of usage by folk of the nightlife in Southport on Thursdays but more on Friday and Saturday, and then the student night on Monday.
Bearing in mind that evidence, and bearing in mind in particular how it is supported by Inspector Fitzsimmonds's letter and by the Councillor's letter, Councillor Francis - those being of December and October 1999 - are we able to say, "Well, these are merely blips in the way that the survey has reported in the past and in the way that the courts have given guidance that we must look at the overall position?" And, as I think one authority indicates, the Brighton case, "It is questionable whether the size of the fleet should be determined by half-hour surges which only occur four times per week. A taxi must earn a living day in, day out, and cannot be sustained solely by a few jobs on Friday and Saturday night." So that is the balance before us for our decision.
We are unanimously of the view that we cannot rely on the 1990 survey as evidence for 1999/2000 so as to enable the local authority to prove that there is no significant unmet demand. We do not know whether there is a significant unmet demand. We are quite satisfied from the evidence that we have heard that whilst there has been a tremendous change in use, and that change in use has worked generally against hackney carriages, that there has round the country nevertheless been in almost every local authority area an increase in hackney carriage licences, and we accept Mr Baker's assertion, unchallenged as it was, and which is why I went into some detail in the Gayfor case, that in almost every case there have been, where there have been challenges, recent surveys upon which a local authority could base its case, if I can put it that way.
I and my colleagues are not suggesting that every authority should go to the enthusiastic lengths that Manchester does, which apparently has a survey every year, but that is a far cry from not having a survey for a decade.
Changing social patterns are accelerating, and all the witnesses have confirmed that to us - some with one interest in mind, some with another interest in mind, and some, I am quite content as my colleagues are, like Mr Thompson, with no interest in mind - but all have given evidence of a considerable change in life patterns, and my colleagues and I are men and women of the world, we know that ourselves, we are not blind to it, and we are not sitting here in some remote capacity.
We know more and more people use and come out of night clubs and bars late at night and they want to get into a taxi, and we know when they do not that there may be some problem, unfortunately. We also know that there will inevitably be blips of demand and no reasonable system will ever cope with that, to hark back to the Brighton case, but we are quite satisfied here that when one has the evidence of Mr Anthony Holmes, coupled with that which we can glean and take note of - because we appreciate it is not live evidence, but it has not been challenged - from the Inspector and the Councillor, that one is dealing with very much more, on the face of it, than a blip.
If there are four nights a week - which the evidence seems to point to, - if there are four nights a week when those seeking their lawful entertainment in the middle of the night cannot reasonably get a taxi, then there needs to be a survey to see whether that is something that requires an increase in the number of carriages or not, or some other “ shift in emphasis, but we do not consider that that sort of usage, reported by the Inspector and the Councillor and Mr Anthony Holmes, is the sort of blip that is referred to as being a peak half-hour. It is not just a half-hour surge; the evidence we have heard is a good deal more.
There is no public transport available at that time. It is not Millennium night every night, and it may well be, of course, that if there were buses available, that that would be something that the survey could take into account, but as we understand it that is not the position and therefore we have, if the report to the Licensing Committee was a correct one (it is all we have got to go on), potentially 10,000 people coming out on to the streets of Southport, some of whom will be looking for a way home in a taxi, and we feel that that is evidence of significant unmet demand beyond a mere surge,
But we cannot be sure about that, which is why the burden of course is on the local authority to show that there is no significant unmet demand, and that we can be sure they have not shown. So we accordingly allow the appeal. We hope that that does not trigger in the local authority a reversal of their present careful policy of considering matters and we hope they do conduct a survey and continue to strive to manage matters in a way best suited for all those citizens, taxi drivers included, but that is a mere hope and is nothing to do with our decision.
We quite appreciate that the appellant does not automatically get on to the bandwagon of getting a licence, so to that extent he has acted not immediately selfishly.
MR BAKER: Your Honour, no, there is in fact, and your Honour may have observed it in the Button book, an authority where a particular Justice (I cannot remember which one) said something along the lines of, "That person having taken the risk, I hope the local authority take that into account", but I am not asking your Honour to--
JUDGE DUNCAN: We are not passing any such observation. I do not know whether this particular appellant is a suitable or unsuitable person for the task. We have been told what the issue is and we have stuck to it, I hope.
MR BAKER: Your Honour, of course, yes. One of the risks that Mr Holmes bore was that he would have to bear the local authority's costs if he lost, which my learned friend tells me would have been in the region of £10,000. My application is for slightly less. My instructing solicitors and myself have considered the matter of costs and ask your Honour to order Mr Holmes's costs to be paid by the local authority, in that they ought to follow the event, which is in my submission the standard course of events in such matters.
JUDGE DUNCAN: Do you have any observations, Mr Slack?
MR SLACK: Your Honour, costs must follow the event in this case.
JUDGE DUNCAN: I think so. I do not think I have got the power to make them payable out of public funds in any event. It is unfortunate that these things are so costly and have to come to court but I think we will make the normal order for costs, Mr Slack, and I am grateful to you, Mr Slack, for the able way you have put the case, as indeed I am to Mr Baker. There should be no criticism of any person who has given evidence in this case, it has all been extremely valuable and very informative, I think it would be fair to say.
MR SLACK: I am sure all present in court will be grateful for that indication, your Honour.
MR BAKER: Your Honour, in such circumstances usually I understand that the court fixes a figure, that is what has happened in the past. Your Honour, I am asking for £6,150, which is £4,000 less than what my learned friend-
JUDGE DUNCAN: Yes, but how am I to fix the figure? Is that the normal way? If it turns out to be the normal way I am sure my colleagues would allow me to do it administratively on another occasion.
MR BAKER: Your Honour, I am sure it may be the case that my learned friend and I and those who instruct us can come to some agreement. If not we could come back.
JUDGE DUNCAN: I am here if you cannot but I would make what I regard as a normal order for costs. I do not feel in the slightest bit qualified to decide what amount it is, and it may well be that that is something that can be agreed.
MR BAKER: One would hope that it can be agreed, your Honour.
JUDGE DUNCAN: Yes, I am sure efforts can be made along those lines. The combined costs would have gone a long way towards this survey, and the only people who would have been at a disadvantage would have been the lawyers, which would have pleased everybody I would have thought.
MR BAKER: Your Honour, that was a point that was made, I hasten to add.
JUDGE DUNCAN: We will say costs to be taxed if not agreed, I think that must be right, must it not?
MR BAKER: By all means, your Honour, yes.
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FAQ
There is a story that goes with this case, as you can see there are two mr holmes, the mr holmes from Southport was and still is a P/H driver, in this case you can see a reference to a threatened strike by the P/H,(the P/H drivers petitioned Sefton council to ) (1) restrict the number of P/H licences that the council issue and (2) To allow the P/H to pick up from the streets, Why did they do that you might ask, It was becacse the enforcement officers had been booking them for illegal plying for hire
