QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN On the Application of KEITH JOHNSON (Association Secretary) Suing on behalf of READING TAXI DRIVERS' ASSOCIATION |
Claimant |
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- and - |
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READING BOROUGH COUNCIL |
Defendant |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Peter Harrison (instructed by Reading Borough Council) for the Defendant
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Crown Copyright ©
The Honourable Mr Justice Goldring :
"The [council] may from time to time licence to ply for hire within their administrative or other prescribed area hackney coaches or carriages of any kind or description adapted to the carriage of persons provided that the grant of a licence may be refused for the purpose of limiting the number of hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of hackney carriages (within the area to which the licence would apply) which is unmet."
"It follows … this appeal is bound to fail. In coming to that conclusion, I would emphasize two matters. First of all the role of the Judge (at first instance) was an extremely limited role, having regard to the provisions of the Act to which I have made reference. The Judge, in coming to his conclusion, was not purporting to express any views as to the merits of the decision of the authority. The authority was given the responsibility under the licensing legislation as amended of coming to a decision with regard to whether or not they were prepared to maintain their previous policies. They came to that decision, and the court can only intervene if it shown that the authority has gone about its task in a way which was unlawful ….."
"A council does not need a reason under the Act to adopt a policy of de-restriction … A decision to de-restrict is very hard to challenge on grounds of irrationality, although no doubt that could be done if the decision was made for obviously unsustainable reasons."
"The council, as I think quite properly, viewed the matter in a broad way, took account of the matters…and reached a decision. I find no ground upon which to impugn the council's decision-making process. This was essentially a matter of local administration with which this court should be slow to interfere."
The factual background to the Council's decision
"…to determine whether or not there exists a significant unmet demand for hackney carriage services in Reading Borough and…to determine the number of licences required to meet any identified unmet demand in Reading Borough."
"the entire licensing area."
"The package of techniques adopted for this study has been designed to address these issues as well as those pertaining to observations of actual conditions at ranks."
"The analysis suggests that during the peak delay conditions it would have required an additional 20 vehicles in circulation for there to have been no passenger delays observed. The consequences of this level of supply would have been an increase in cab delays [cab waiting time] from just under 4 minutes to just over 12 minutes. During the peak passenger delay conditions it would have required an additional 8 vehicles…for passenger delays to be brought under 1 minute…after a reduction in passenger delays it becomes increasingly difficult, at the margins to achieve further improvements as benefits to passengers is negligible and the disbenefit to the trade becomes disproportionate. It is only possible to provide a marginal improvement in the quality of service to passengers beyond the 8th additional…licence at the expense of a large increase in cab queuing and delay."
"Mr. Johnson goes on to point out that if any plates were to be issued, the key word is balance. A small percentage could be absorbed. A large number would cause great hardship to the people who had invested a lot of money in purchasing new vehicles to improve the fleet in Reading and still have three or four years of repayments to make. They do not want to be put into a position where drivers have to work an unsafe number of hours in order to maintain their financial commitments. Other problems in not maintaining this balance could be parking, congestion, standards of service and more. There would also be stronger confrontations with the illegal activities of the Private Hire Trade."
"12.1 On the basis of the analyses conducted we conclude that there is a significant demand for the services of hackney carriages which is unmet.
12.2 To eliminate this…we recommend a licence increase of 8 vehicles…taking the total fleet to 146 [from 138]. This recommended increase represents a rise of 6%. At this level the significant unmet demand will have been eliminated.
12.3 Consideration should be given to relocating the Gun Street Rank.
12.4 Consideration should be given to re-locating and expanding the Yield Hall Lane Rank…
12.5 Consideration should be given to [two] new ranks…
12.6 The anticipated useful life of the current survey is three years… "
Events after the report
"the survey said a minimum of 8 but it will be how many the elected members decide on."
"…general feeling was that [the Council] intended to issue more licences than recommended by the survey."
"the trade should be able to absorb [8 new licences]"
"… We strongly recommend that the Committee accept the study and issue no more than 8 plates. If they choose to issue a greater number please only do so taking into consideration all the above points and remember that 200 people and their families depend on you for their livelihoods, as does the taxi sections of Reading's Transport Strategy."
"1.1 To allow the Committee to consider the result of the hackney carriage unmet demand survey…and to determine accordingly whether any increase in licensed hackney carriages is necessary. "
"…significant problems with private hire cars illegally plying for hire…one way of helping to curb the illegal activities engaged in by the private hire trade and to control their numbers could be to issue more hackney carriage licences, although there is strong resistance from the Reading Taxi Association."
"Option 1
The first option is to have regard to the results of the survey and to issue the minimum number of 8 hackney carriage vehicle licences as detailed in the survey… A minimum number of 8 plates must be issued.
Option 2
The second option would be to move towards a position where the number of hackney carriages was determined by market forces rather than by local authority control. In law, persons who currently own hackney carriages have a legitimate expectation that the prevailing status quo will not change overnight. It would not be reasonable to lift the limit on the number of hackney carriages without some warning. Therefore if a move towards market forces determining the number of hackney carriages is the favoured option, this would need to be phased in over a period of time. Three to five years would be the minimum period of time that would be necessary to move towards such a position. A number of hackney carriage vehicle licences would need to be issued this year and again in the following years prior to de-limiting occurring in the final year. From an officer perspective, it is felt that an appropriate number of hackney carriage vehicle licences to issue, in order to move towards de-limiting, would be 30 per year….
…. Central government is considering removing the local authority powers to restrict hackney carriage licence numbers in their area.
Option 3
Members may, if thought appropriate, issue in excess of 8 new licences without moving towards de-limiting.
Option 4
Members may choose to disregard the result of the survey … However [this] is likely to lead to an appeal where an applicant for a hackney carriage vehicle licence is refused …"
"The Council often received requests for licences and plates, so there was demonstrable demand in the community. She thought on balance it should not be the Council's role to determine whether or not it was viable to run a hackney carriage when market forces would determine it more effectively. However this would need to be balanced against the legitimate expectations of the…trade…"
"The survey undertaken provided quantitative data saying that 8 new plates would deal with unmet demand in the station area. The private hire vehicle issue was separate matter, but illegal plying for hire demonstrated that there was unmet demand for vehicles circulating the town. She supported the recommended improvements to the ranks…Option 3 was therefore the one the Committee needed to consider, but they would need to agree the number of licences in excess of eight. "
"…hackney carriages should be available for public use from anywhere in the Town to any other location. Currently the majority of journeys started at Reading Station and this led to unmet demand across the rest of the town which was demonstrated by the amount of private hire vehicles that were illegally plying for hire. By increasing the number of hackney carriages it would address the need for more circulating vehicles, the current demand being met by private hire vehicles."
"The survey had shown there was demand and he would like to see more than 8 licences issued."
"that the Committee should adopt option 3 as set out in the report, that the Committee should issue in excess of 8 licences but without moving to de-limiting at this stage and that 30 new licences would be the appropriate number to issue."
"because he considered that issuing 32 licences was too many."
He supported option 3 but proposed that 15 new licences should be issued. Councillor Winfield-Chislett's motion was carried.
"In reaching the decision the Committee had taken into account:
The unmet demand identified by the survey.
The representations of the [claimants]
The likelihood that the government would remove the right of local authorities to determine the number of hackney carriage licences in its area against the legitimate expectation of the [claimants] under the status quo.
The representations of other persons for more than 8 licences, e.g. Chair of Reading Transport Limited.
The knowledge that there was unmet demand throughout the town and not just in popular pick-up points such as Reading station due to the high instances of private hire vehicles plying for hire around the town.
It was therefore agreed that 30 would not be an unreasonable increase, bearing in mind that this was the Head of Environment Consumer Services' recommendation if the Committee wished to adopt option 2 as set out in the report. The Committee was also mindful that it would need to review the situation at the end of the first twelve months after the increase to assess the impact."
"[Her] recollection as to why we opted for 30 plates was based on the fact that the survey we had commissioned concentrated on all the town centre activity and showed that the station ranks accounted for nearly 90% of rank hirings. Therefore its recommendation of a minimum new release of 8 licences, only covered what would be needed to cover the shortage of cabs at this location. The RTA confirmed that approximately 90% of all town centre hirings started at the railway station ranks…. Members of the Committee felt that other locations and ranks in the town were not being properly served if at all…. I would summarise the reasoning of the Committee as being that whilst increasing the number of taxi licences by the minimum number of 8 may be enough as far as the railway station was concerned, more would be needed to provide a service in other parts of the town and borough. Members of the Committee were aware from their role as councillors that taxis could be hard to pick up from ranks other than the station …. The ….. survey also looked at other things but did not put these into their model to come up with a definitive figure of the number of new licences that should be issued if it was to be above the minimum of eight. The Committee felt that it was up to them to set that figure balancing the findings of the report and a number of factors that had been brought to the Committee's attention. These included looking at the illegal plying for hire by private hire vehicles in parts of the town and a survey of members of the public, both of which showed that the town as a whole is not properly served by taxis. Basically if you wanted a taxi in town you needed to go to the railway station. You couldn't expect to flag one down or pick up a taxi from other ranks in the town, although clearly there was a demand for this … This led [the] Committee to [the] view that 8 additional taxis would not be enough for the town as a whole and considerably more would be required. 30 cabs represented an addition of about 20 per cent of the existing l38, which Committee hoped would be sufficient to provide a comprehensive taxi service to all parts of the town. It was impossible to be scientific about the additional number of plates."
The Claimants' submissions
The Defendants' submissions
My conclusion
MR JUSTICE GOLDRING: I formally hand down a judgment which I hope has been distributed to counsel.
MR PATEL: My Lord, given the judgment, I think the first order is pretty straightforward; that the application be dismissed. The usual order that would follow in terms of costs would be that the defendant would have their costs to be paid by the claimant. I make an application to seek to persuade you to make a different order, that each party bear their own costs. I do that on this basis. Before proceeding to issue, I do not know if my Lord has a copy of the trial bundle.
MR JUSTICE GOLDRING: I do, Mr Patel, if you give me one moment. Yes.
MR PATEL: My Lord, the only document I need ask you to look at is the document at page 114, which is a letter from my instructing solicitors.
MR JUSTICE GOLDRING: Just give me one moment. Yes.
MR PATEL: My Lord, essentially this is a letter before action, asking the Council, having taken their decision, to agree to a means of arbitration as it is put there; an alternative dispute resolution, essentially, which will give our clients a fair hearing and allow for such a hearing. Subject to that, and if there were not any proposals then we would issue proceedings for judicial review, if you look over the page.
MR JUSTICE GOLDRING: Yes.
MR PATEL: My Lord, we have had no response to that letter. It was in September of 2003, within the three month period, that we issued our proceedings for judicial review. Furthermore, there was no response in terms of settlement in terms of proposals for alternative dispute resolution until after permission was granted by His Honour Judge Wilkie in December 2003.
MR JUSTICE GOLDRING: Yes.
MR PATEL: It was only then that the Council made any effort to try and compromise the position.
MR JUSTICE GOLDRING: What happened as a result?
MR PATEL: The Council and my clients endeavoured to try and agree some sort of schedule over which the licences would be staggered. That was, in principal, something that was acceptable to my clients. The only stumbling block was the payment of their costs, which the Council insisted upon, by my clients. They insisted on a proportion of their costs to be paid for in order for there to be a settlement of these particular proceedings.
My client took the view they did not want to pay any of those costs because they had tried to come to an alternative dispute resolution on this matter before proceedings were issued. That is why, my Lord, we unfortunately found ourselves in front of you on 15th March and the matter was argued. Unfortunately for my client, your Lordship found that the Council took the decision lawfully within the wide discretion that they had. My Lord, in the circumstances I have just outlined, we would ask that each side bear their own costs in the circumstances and that the usual order followed not be followed by your Lordship in his discretion as to costs.
MR JUSTICE GOLDRING: Thank you very much, Mr Patel. Mr Atkinson, do you have any submissions?
MR ATKINSON: My Lord, yes, I resist this application. There was, I submit, a response to the letter of 5th August. My Lord, the letters and correspondence I refer to are at a different place in the bundle, at B12.
MR JUSTICE GOLDRING: B12? I am not sure I am quite following.
MR ATKINSON: It is towards the back.
MR JUSTICE GOLDRING: What section?
MR ATKINSON: It is 198. I am grateful to my learned friend.
MR JUSTICE GOLDRING: Thank you.
MR ATKINSON: That is the letter to which you have already been referred.
MR JUSTICE GOLDRING: Yes.
MR ATKINSON: My Lord, at 200 you will see there is a holding letter from the Council, explaining that the relevant officer was away.
MR JUSTICE GOLDRING: Yes.
MR ATKINSON: There then followed at 201 a second letter from the claimants' solicitors of 1st September proposing a meeting to see if compromise can be met. The Council, at 204 in the bundle, my Lord, substantially replied to their request for a meeting on 10th September.
MR JUSTICE GOLDRING: Yes, I think I follow the events.
MR ATKINSON: The meeting did take place on the 23rd without prejudice, and this meeting is referred to in the costs schedule of the claimant. I submit that the Council did respond to this offer. The final letter, my Lord, is at 212. A proposal, the result of the discussions preceding it, was set out by the Council in a letter of 5th November.
MR JUSTICE GOLDRING: Yes.
MR ATKINSON: My Lord, I submit there has been a substantial response and I ask that costs are summarily assessed. I do have a schedule.
MR JUSTICE GOLDRING: I had better look at it. Mr Patel, I am bound to say that I am a little sympathetic with your submissions, but it seems to me that in the final analysis the Council is entitled to its costs.
MR PATEL: My Lord, can I make one further submission? You could make an order, based on the feeling you have, by not allowing the Council their full costs. It is clear from even that correspondence which you have just seen that they did not make any proposals other than that we withdraw our proceedings. It was not until much later that they said: "Let us have a standing issue of licences and deal with it on that basis." My Lord, you might think it appropriate to say that they have given you a costs schedule which puts the figure at £11,500 and that you will award them something like 50 or 66 per cent of their costs.
MR JUSTICE GOLDRING: Mr Patel, I did think of that. The answer is, I am afraid, no.
MR PATEL: My Lord, in terms of the schedule, I have only just got it.
MR JUSTICE GOLDRING: Mr Patel, if you want time to look at it then I do not mind you making submissions about it when you are ready, having gone through it.
MR PATEL: My Lord, given the amount of costs in issue, could I have some time?
MR JUSTICE GOLDRING: Of course. They are substantial and it may be there are areas of costs that ought to be questioned.
MR PATEL: My Lord, thank you very much.
MR JUSTICE GOLDRING: If you let the court know when you are ready, I do not anticipate I shall be disappearing from here immediately. Mr Atkinson, thank you. No doubt you will be back when you are ready.
MR JUSTICE GOLDRING: Mr Patel.
MR PATEL: My Lord, if I can just deal with the costs. Do you have a copy of the schedule?
MR JUSTICE GOLDRING: I have it in front of me.
MR PATEL: My Lord, I have had discussions with my learned friend outside and I have had some explanation of what these costs relate to. If I could just indicate those areas that concern me. They are (6),(10) --
MR JUSTICE GOLDRING: Let us just have a look at (6). What is the hourly rate of these three hours?
MR PATEL: Sorry, my Lord, I am actually not talking about the defendant's costs, I am talking about legal costs. I have no problem with any of the defendant's costs. The hourly rate is £40 an hour.
MR JUSTICE GOLDRING: Yes. I beg your pardon. Perusing documents for preparing initial instructions for counsel, four hours.
MR PATEL: They have to be seen together in order for an objection to be made. Number (10), perusing draft witness statements, liaising with witnesses --
MR JUSTICE GOLDRING: Eight hours altogether.
MR PATEL: And then (12) as well: preparing defendant's bundle of evidence, filing --
MR JUSTICE GOLDRING: Twelve and a half hours.
MR PATEL: Yes, my Lord. Then if I go back to (2) which is meetings with licensing officer, Mr Mortlock.
MR JUSTICE GOLDRING: Four and a half hours.
MR PATEL: Say in total 17 hours. Mr Mortlock gave one of the three witness statements and I am told that the four and a half hours in (2) includes such time as was required to draft his witness statement.
MR JUSTICE GOLDRING: What would you like to put forward as the appropriate reasonable number of hours?
MR PATEL: My Lord, I would put something in the region of 12 hours, with respect, rather than 17 hours there. The only other part I object to is (15) to (18) which is a figure of £1,500, roughly, spent on telephone calls, letters, in and out. My Lord, I would say a figure of £1,000 there. I am not saying that any of these costs are wildly extravagant. I just put forward those objections.
MR JUSTICE GOLDRING: Thank you. Yes, very briefly, Mr Atkinson.
MR ATKINSON: My Lord, I am instructed that point (6) included the reading of the TBL survey. At (10) there were a number of re-drafts for each of the three witnesses. At (12) the preparation of the bundle, it is the physical preparation including delivery to the claimant's solicitors; and (15) to (18) I would say the numbers of hours given over to letters and to phone calls are very similar to the applicant's costs at a lower rate. Overall, the defendant's costs are less than the applicant's.
MR JUSTICE GOLDRING: Thank you very much. I am going to take a broad view of this. Under legal costs paragraphs (6),(10) and (12), I shall reduce the hours from 17 to 12. On the telephone calls, I shall reduce the sum claimed to £1,200. Thank you both very much. Mr Patel, thank you for your submissions.