England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WCA 2LL
		12 October 2005

1. LORD JUSTICE KEENE: This is an appeal by way of case stated from the decision of the Crown Court at Leeds dated 26 October 2004. It concerns the licensing of a motorcycle as a private hire vehicle. The appellant sought a licence for a Honda Pan-European touring motorcycle for use as a private hire vehicle. The respondent local authority, the Leeds City Council, refused the application, but the matter was then taken on appeal to the Leeds Magistrates' Court, which allowed the appeal. However, the local authority then appealed successfully to the Crown Court.
2. The local authority is given the power to grant or refuse private hire licences by section 48(1) of the Local Government (Miscellaneous Provisions) Act 1976 ("the 1976 Act"). The proviso to that subsection, however, prevents the local authority from granting such a licence unless it is satisfied as to certain matters. The proviso reads as follows, in so far as it is relevant for the purposes of this appeal:

"Provided that a district council shall not grant such a licence unless they are satisfied -

(a) that the vehicle is -

(i) suitable in type, size and design for use as a private hire vehicle;

(ii)not of such design and appearance as to lead any person to believe that the vehicle is a hackney carriage;

(iii) in a suitable mechanical condition;

(iv) safe; and

(v) comfortable."

3. Such a licence may be granted in respect of a "vehicle" and there is now no dispute that that word in itself does not exclude motorcycles. Indeed a motorcycle could, on the face of the language, come within the terms of the definition of a private hire vehicle, a definition to be found in section 80(1) of the 1976 Act. That states that private hire vehicle

"means a motor vehicle constructed or adapted to seat fewer than eight passengers, other than a hackney carriage or public service vehicle, which is provided for hire with the services of a driver for the purpose of carrying passengers."

4. The issue in the present case centres on the question of safety. The Crown Court heard oral evidence from both sides, and it had a number of reports before it. As a result, it concluded that a private hire licence should be refused for the Honda motorcycle because it was unsuitable and unsafe for use as a private hire vehicle.
5. It is clear that the court's conclusion as to unsuitability was based on safety considerations. The case stated refers to a number of factors in that connection, for example:

"Design features

(i) People sit on the motorcycle not in it.

(ii) The contribution to the weight of the machine by adding a passenger and the positioning of the weight of that passenger can affect the handling of the machine...

(v) The surface area of the tyres in contact with the road is comparatively small.

(vi) The motorcycle is susceptible to side winds because of its two wheeled configuration and its side area.

Safety issues

(vii) Inexperienced passengers may intuitively counterbalance against the leaning over motion of a motorcycle by sitting upright in a way which may destabilise the machine.

(vii) Inexperienced passengers may react unexpectedly during the course of exposure to the ordinary incidents of motorcycle riding and thus create a dangerous situation."

There is also reference to the effect of adverse weather conditions and the reaction of inexperienced passengers to a slippery road surface and to other hazards.

6. In addition to its conclusion on safety, as judged objectively, the case also comments at paragraph 10 as follows:

"The granting of such a licence would be viewed by the public as an endorsement of this form of transport as a private hire vehicle, and would encourage them to think that the dangerous potential which has been demonstrated to us on the evidence for an accident has been carefully weighed and discounted to the extent they can be assured of safe and suitable transport in such a vehicle."

7. It was argued before the Crown Court, as it has been before us, that the word "safe" in section 48(1)(a)(iv) means safe per se rather than safe for use as a private hire vehicle, because the words "for use as a private hire vehicle", which one finds in subparagraph (i) when dealing with suitability, do not appear in subparagraph (iv) where safety is referred to. Therefore sub-paragraph (iv) is confined to considering whether the vehicle is safe in itself.
8. The argument then put before the Crown Court was that, since safety was specifically dealt with in subparagraph (iv), it could not be taken into account when considering whether the vehicle was "suitable in type, size and design for use as a private hire vehicle" under subparagraph (i). Put very succinctly, it was said that the two sub-paragraphs, (i) and (iv), did not overlap.
9. The Crown Court rejected that argument. It decided that there was such an overlap between "suitability" and "safety". In the case stated at paragraph 7(iii) the Crown Court says that the powers must be exercised "with a view for the ultimate use of the vehicle as a private hire vehicle and always in regard to that ultimate use of the vehicle."
10. The questions posed for the opinion of this court are as follows:

"(i) Whether the Crown Court erred in finding that the requirements of section 48(i)(a)(i) and (iv) of the 1976 Act overlapped.

(ii) Whether the Crown Court erred in finding that the meaning of 'safe' within section 48(1)(a)(iv) meant safe for use as a private hire vehicle.

(iii) Whether the Crown Court erred in finding that the vehicle in respect of which a private hire licence was sought, namely a Honda Pan-European motorcycle, was unsuitable and unsafe for use as a private hire vehicle."

11. On behalf of the appellant Mr Maddox submits that section 48(1)(a) lists five matters separately, and that they should therefore be considered separately. In an attractively presented argument this morning he has contended that "suitability" in subparagraph (i) does not cover safety. If it did, subparagraph (iv) would be redundant. Suitability, it is said, is concerned with whether the vehicle is capable of being used as a private hire vehicle, which this motorcycle is because it is designed to carry a passenger.
12. Mr Maddox contends that if a vehicle is capable of carrying a passenger then that is sufficient. Moreover, it is argued that "safe" in subparagraph (iv) is not to be considered in terms of the proposed use as a private hire vehicle; had that been the intention, Parliament would have said so, as it has done with the words in subparagraph (i).
13. Mr Maddox also attacks the factual conclusion reached by the Crown Court. He submits, principally, in his written argument (on which he has touched briefly and orally this morning) that the court wrongly adopted a comparative approach and that its findings merely show that in certain conditions travelling on a motorcycle may be less safe than a car, but it does not follow that it is unsafe.
14. It is also said that the Crown Court was wrong to conclude in paragraph 10 of the case (which I have quoted earlier) that the granting of a licence amounted to some form of endorsement of the motorcycle. The granting of a licence does not assure safety, but it is merely an indication that the statutory requirements are satisfied.
15. The thrust of Mr Maddox's argument, and indeed the effect of it, is that the district council and any court on appeal cannot lawfully consider whether the vehicle in question is safe for use as a private hire vehicle in terms of its type, size and design. The argument, as I have indicated, amounts to saying that safety in sub-paragraph (iv) only concerns the safety of the vehicle in itself, and sub-paragraph (i) does not include safety when considering suitability as a private hire vehicle.
16. Of course if that argument is right, the result would be that safety for the proposed use in terms of type, size or design of vehicle would not be a relevant consideration when such licences are being dealt with. That indeed is the objective which the appellant seeks to obtain.
17. It seems to me that, despite all the skill and ingenuity displayed by Mr Maddox, the proposition only has to be stated for its absurdity to be manifest. It is inconceivable that Parliament did not intend the safety of the vehicle in these respects for such use as a private hire vehicle to be taken into account. If the appellant was right, a licence under section 48 could be granted for a vehicle whose size or design made it unsafe for such use, and I cannot see that that could have been intended.
18. It may be that the narrow construction of the word "safe" in sub-paragraph (iv), as put forward by the appellant, is right. In other words, that sub-paragraph may be concerned as a criterion with whether the vehicle in question, which in terms of type, size and design is entirely suitable for private hire use, is actually safe in all respects; so that if, for example, the seatbelts in a car were too worn the vehicle would fail subparagraph (iv). However that does not greatly assist the appellant. I am quite satisfied that, if that construction were right, sub-paragraph (i) when it refers to suitability in terms of type, size and design for such use brings in safety as a relevant consideration. If, because of any of those factors of type, size and design, the vehicle is unsafe to be used as a private hire vehicle, then it is unsuitable for such use. Consequently a vehicle may be in a safe condition for a vehicle of its type, size and design (as this motorcycle apparently was) with the result that there was nothing wrong with its safety as motorcycles go; but it could still for safety reasons be judged to be unsuitable in type, size or design for private hire use.
19. As to the Crown Court's finding that this vehicle was unsuitable and unsafe for private hire use, I cannot see that its conclusion was not open to it. It did not do any comparative exercise, ie merely comparing the motorcycle with a car. Most of its specific findings related simply to the safety for such a use of this motorcycle. Certainly, given that it had both oral and written evidence before it, one cannot say that the court reached an impermissible conclusion.
20. I recognise that motorcycles regularly carry pillion passengers in modern use and that they do so lawfully, implying that the process is not to be seen as inherently unsafe. But in such private activity the driver and the passenger would normally be known to one another and there would be the opportunity to take precautions to assess experience and to give instructions. Private hire vehicles carry ordinary members of the public who would usually be previously unknown to the driver to any significant degree. It is therefore quite a different context. In that context, there was nothing wrong in the Crown Court's comment at paragraph 10 of the case stated (cited earlier), where in essence it suggested that the grant of a licence would indicate to the public that the private hire use of this motorcycle had been found to be safe. That would indeed be the case. The Crown Court's conclusion overall was not outside the range of conclusions which could reasonably be reached on the evidence it had.
21. Dealing finally with the questions posed in the case, I would answer question (i) in the negative in so far as subparagraph (i) of section 48(1)(a) does embrace safety in the way outlined earlier. It is part of suitability for such proposed use. It then becomes unnecessary to give a definite answer to question (ii) about the meaning of "safe" within the meaning of section 48(1)(a)(iv), although I have given an indication as to the way my mind approaches that matter earlier in this judgment. Question (iii) again should be answered in the negative.
22. For these reasons I, for my part, would dismiss this appeal.
23. MR JUSTICE POOLE: I agree.
24. This argument has been attractively presented by Mr Maddox. He makes the point that there is no reason to regard the vehicle under consideration as being unsafe in itself. Does it therefore become unsafe because people are prepared to go on it? The answer, or part of it, is, I think, that the legislation, namely the 1976 Act, permits district councils individually to consider that question. The fact that a district council, say in Kent, may come to one conclusion (as we are told was the case) does not oblige one in Yorkshire to do the same. Nor does Mr Maddox argue otherwise.
25. The question, therefore, is whether the Crown Court at Leeds erred in law in its determination of the questions stated for the opinion of the High Court at paragraphs 13(i),(ii) and (iii) of the case stated. In my judgment it did not. The question, as I see it, resolves itself into a simple one, namely, whether the words "suitability of type, size and design for use as a private hire vehicle" under section 48(1)(a)(i) permit the court to consider the question of safety under that subsection, given that subsection (1)(a(iv) specifically deals with the question of safety.
26. For my part I am satisfied that it does permit such consideration. It would be extraordinary, in my view, if the court, though satisfied that the machine was safe as being well constructed and maintained, were precluded from going on to consider its safety for use as a private hire vehicle when considering its suitability for such use. Parliament cannot, I believe, have intended such a limitation, and I would refuse this appeal.
27. MISS STOCKLEY: My Lord, in those circumstances I do make an application for the respondent's costs of this appeal.
28. LORD JUSTICE KEENE: We have not had any schedule from you setting out those costs. Do you want us to deal with them today?
29. MISS STOCKLEY: My Lord, I do have a breakdown, I apologise to the court it has not been provided in advance.
30. LORD JUSTICE KEENE: Has it been provided to your opponent?
31. MISS STOCKLEY: It has not. No, my Lord.
32. LORD JUSTICE KEENE: Let us just deal with the principle, first of all. Do you want an order for costs against the appellant?
33. MISS STOCKLEY: I do, my Lord.
34. LORD JUSTICE KEENE: You cannot resist that, can you, Mr Maddox?
35. MR MADDOX: No.
36. LORD JUSTICE KEENE: We will certainly order that the appellant do pay the respondent's costs.
37. MISS STOCKLEY: The total sum claimed is £4,702.20.
38. LORD JUSTICE KEENE: You should let your opponent have a look at that. I do not expect he is going to accept it just off-the-cuff.
39. MISS STOCKLEY: Indeed.
40. LORD JUSTICE KEENE: (After a pause) Do you want us to rise for a moment?
41. MR MADDOX: I would be grateful.
(Short adjournment)
42. LORD JUSTICE KEENE: Where do we stand?
43. MISS STOCKLEY: Perhaps if I can hand the breakdown to the court for the sum that is claimed. I think there is an issue on just one or two aspects.
44. LORD JUSTICE KEENE: Certainly. We have, I think, had a schedule of costs from you, have we not, Mr Maddox?
45. MR MADDOX: Yes, we have.
46. LORD JUSTICE KEENE: Which came up with a somewhat higher total.
47. MR MADDOX: Yes, that is down to a degree to the appellant.
48. MISS STOCKLEY: Just to explain, it was the part at the bottom, the handwritten part. The two top figures are preparation costs of my solicitor. They should be the work that has been billed above the line on the first column. The other costs were all part of the magistrates' courts and Crown Court. So they relate to that work. Then the costs of train fare of my solicitor. That, I think, is counsel's brief fee, counsel's skeleton argument, and then the £470ish figure is the costs of my solicitor attending today.
49. LORD JUSTICE KEENE: The £400, which is then added to all of this, is your solicitors attendance for today?
50. MISS STOCKLEY: Yes, it is.
51. MR MADDOX: The only issue I raise is this. It is whether the skeleton should in fact be part of the brief fee. The only issue I raise about the schedule, full stop.
52. LORD JUSTICE KEENE: I see.
53. MR JUSTICE POOLE: Presumably when we look at your schedule we will find that the skeleton argument was not charged separately, would we?
54. MR MADDOX: My Lord, yes. I hope that is the position.
55. LORD JUSTICE KEENE: Do you want to say anything?
56. MISS STOCKLEY: I do not think I could add anything. It was charged separately. It is a matter for the court whether that is appropriate.
57. LORD JUSTICE KEENE: That was £750, was it not?
58. MISS STOCKLEY: My Lord, yes.
59. LORD JUSTICE KEENE: Very well. We will make a summary assessment of costs. Inevitably any summary assessment involves a certain amount of rough justice in estimating. It seems to us that the point made by Mr Maddox about the charge for the skeleton argument on the part of the respondent has some force. What we intend to do, therefore, is to reduce the amount claimed by the respondent to £4,000. We will make an order, therefore, for a summary assessment of costs in the sum of £4,000.