England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17 October 2007

1. MR JUSTICE BURNETT: Blacktax Radio Taxis Blackpool Limited, who are the respondents in this appeal, operate private hire vehicles in and around Blackpool. This is an appeal by way of case stated from a decision of Fylde Coast Magistrate's Court given on 13 December 2006. On that date, they allowed an appeal by Blacktax Radio Taxis Blackpool Limited against a decision of Blackpool Council's public protection sub-committee of 8 May 2006, refusing to impose a condition on the respondent's private hire licence in the following terms:

"The operator is entitled to accept block bookings from corporate clients."

2. In allowing the appeal, the magistrates attached that so-called condition to the licence. In addition to that action, they ordered the council to pay costs of £5,100. This is the council's appeal by way of case stated against the magistrates' decision. The respondent is, as I understand it, a long-established and reputable private hire company, who is, as I have said, operating in and around Blackpool. For many years they provided a service to Blackpool Airport. Although it is no longer the position, the airport was in fact owned by the council until 2004. At that time, the council sold the airport, although I have been told that they retain a small interest in it. During the period of the ownership of the council, and certainly from 1983, the respondent had a contract with the council as owner of the airport, which enabled them to operate from the airport. The agreement was contained in a lengthy legal document called a licence, but it needs to be distinguished from the licence that the respondent needs under relevant legislation, to which I shall come in a moment. As part of the agreement, the respondent agreed to provide a number of private hire vehicles at the airport to service each incoming flight. The number of cars required was determined by the airport director, who notified the respondent of his individual requirements. There was a designated waiting area at the airport. Passengers would use the cabs which had been pre-arranged by the airport, and would, as one would expect, pay the fare or charge that was incurred. If there were too many cars, that is to say they were not used by the passengers, they went elsewhere. So the arrangement, at first blush, looks in some way similar to that which operates outside railway stations, where there may be a cab rank.
3. The respondents paid the airport operators -- who as I have indicated at the time were the council -- a fee for this arrangement.
4. Private hire vehicles are not allowed to ply for hire. That is a privilege afforded to Hackney carriages. The privilege brings with it obligations: for example, Hackney carriages are obliged to accept fares in many circumstances. Additionally, there is an intense degree of regulation attached to Hackney carriages, most notably over the fares they may charge.
5. Since the end of the contract in 2003 or 2004, Hackney carriages plied for hire at Blackpool Airport until the condition which is in issue in these proceedings was attached by the magistrates. I understand from what I have been told today that, since then, the respondents have entered into a contract with the current owners of the airport, in terms which are similar to the arrangements which existed hitherto.
6. Despite the council being the owner of the airport, and thus a party to the arrangement, a number of its officials wearing a different hat began to have doubts about the legality of the arrangement. Those officials were the team responsible for the licensing of private hire vehicles and Hackney carriages in Blackpool. The concerns appear to have emerged in about 1999, which I observe is four years, or perhaps a little more, before the council sold the airport. The concerns stemmed from a fear that it was at least likely that the arrangement that the council itself had put in place with the respondent involved the respondent's drivers plying for hire at the airport. That doubt developed into something of a certainty as the years passed. It was, for obvious reasons, a matter of great concern to the respondent, whose business no doubt to a significant extent depended on the fares that they were being paid by passengers of the airport. It was essentially in those circumstances that the respondent sought from the council what it described as a condition in the terms eventually granted by the magistrates. Initially, the respondent sought to achieve that end by inviting the council to vary the conditions that were attached to its licence. The council did not consider that it had power to do it by that mechanism, and so it was that the respondent sought to attach that condition when the time came for the renewal of their licence. Their purpose in seeking the condition was to put beyond doubt the legality of an arrangement whereby they accepted a block booking from the airport, which had the effect of their waiting at the airport to pick up customers whose identity was unknown to them, and who would pay the fare. As I have indicated, since the decision of the magistrates, that position has been restored. It is right to note that precisely the same sort of arrangement might exist with other commercial organisations, most obviously pubs and clubs or other commercial entertainment operations, who will often know that they have significant numbers of customers leaving their premises at given times who might well need transport. I observe that, as everyone will be aware, such block bookings are often made by those who organise private parties for the convenience of their guests. Be that as it may, the council refused to impose such a condition. The licence was renewed with a number of conditions attached, which were the same as before. They are what might be called nuts and bolts conditions, which include requirements that the private hire operator identify each booking by reference to a job number, that records are kept of the name of the hirer, the address of the hirer and the time at which the vehicle was booked.
7. By the time the licence came for renewal, it was the clear view of the licensing officers at Blackpool Council that the arrangement that had been operated at the airport was illegal. Essentially, that was because they believed that the arrangement amounted to plying for hire, and there was an additional concern about record keeping. The concern was not, in truth, whether block bookings from commercial organisations were necessarily lawful or unlawful. It is plain that block bookings may be lawful. The issue that was rumbling in the background, and had been rumbling for by then seven years at least, was whether this particular arrangement at Blackpool Airport was lawful. The committee recognised that the general question whether block bookings were lawful was covered by current legislation. In the letter that notified their decision, this was said:

"The basis of the decision was that the committee considered that it was not unlawful under the current conditions to make the block bookings of private hire vehicles by private clients. The committee noted that it was a requirement that a private hire operator is required, amongst other things, to record the name of the hirer. The committee took the view that it was not an onerous duty upon the private hire operator to take details of the name of the hirer, and that this would enable the local authority to ensure that private hire vehicles were pre-booked for enforcement purposes, and would allow particular bookings to be identified to enable the local authority to ensure that a booking was made for a particular journey, and that there would be a comprehensive record of bookings. The committee noted that it was illegal for a private hire vehicle to ply for hire, and that a private hire should respond to pre-bookings only."

8. With that by way of factual introduction, I turn to the statutory provisions. Licensing of both Hackney carriages and private hire vehicles outside London is governed by Part 2 of the Local Government Miscellaneous Provisions Act 1976. The licensing arrangements cover vehicles, drivers and operators. The licensing scheme is designed to serve and protect the public. Sections 55 and 56 are material for the purposes of this appeal. Section 55, headed, "licensing of Operators of Private Hire Vehicles" is in the following terms:

"(1) Subject to the provisions of this part of this Act, a district council shall, on the receipt of an application from any person for the grant to that person of a licence to operate private hire vehicles, grant to that person an operator's licence, provided that a district council shall not grant a licence unless they are satisfied that the applicant is a fit and proper person to hold an operator's licence.

"(2) Every licence granted under this section shall remain in force for such a period, not being longer than five years, as a district council may specify in the licence.

"(3) A district council may attach to the grant of a licence under this section such conditions as they may consider reasonably necessary.

"(4) Any applicant aggrieved by the refusal of a district council to grant an operator's licence under this section, or by any conditions attached to the grant of such a licence, may appeal to a magistrate's court."

Section 56:

"Operators of private hire vehicles."

Provides sub-section 1:

"For the purposes of this part of this Act, every contract for the hire of a private hire vehicle licensed under this part of this Act shall be deemed to be made with the operator who accepted the booking for that vehicle, whether or not he himself provided the vehicle."

It continues:

"(2) every person to whom a licence in force under section 55 of this Act has been granted by a district council shall keep a record in such form as the council may, by condition attached to the grant of the licence, prescribe and shall enter therein, before the commencement of each journey, such particulars of every booking of a private hire vehicle invited or accepted by him, whether by accepting the same from the hirer or by undertaking it at the request of another operator, as the district council may by condition prescribe and shall produce such record on request to any authorised officer of the council or to any constable for inspection.

"(3)Every person to whom a licence in force under section 55 of this Act has been granted by a district council shall keep such records as the council may, by conditions attached to the grant of the licence, prescribe of the particulars of any private hire vehicle operated by him and shall produce the same on request to any authorised officer of the council or to any constable for inspection.

"(4)A person to whom a licence in force under section 55 of this Act has been granted by a district council shall produce the licence on request to any authorised officer of the council or any constable for inspection.

"(5)If any person without reasonable excuse contravenes the provisions of this section, he shall be guilty of an offence."

10. The provision which makes it a criminal offence to ply for hire without being licensed as a Hackney carriage is Section 45 of the Town Police Clauses Act 1847. The magistrates, having summarised the evidence in the case stated, recorded the essence of the arguments advanced before them. The same arguments have been repeated, albeit with some refinement before me. Both counsel who appeared before this court also appeared before the magistrates. It is clear that the focus of attention before the magistrates was on the arrangement at Blackpool Airport, and it was that which they were seeking to clarify. The arguments advanced by the council before the Magistrates' Court are set out in paragraph 3 of the stated case. It came to this:

"(a) we have no jurisdiction to hear the complaint, as there was no actual condition attached to the grant of the private hire vehicle's operator's licence in respect of which the respondent was aggrieved. (The other conditions attached to the licence were not the subject of the appeal).

"(b) Imposing the condition requested by the respondent would be unlawful, unreasonable and not necessary. Block bookings were not prohibited by any licence conditions, and therefore as long as the block booking was permissible by law, the respondent was entitled to accept and carry out the block booking.

"(c) The relevant statutory provisions allowed restrictive conditions to be imposed, but not permissive conditions. Therefore, the condition sought by the respondent would be outside the scope of the statutory provision.

(d) Neither the appellant nor the Magistrates' Court upon appeal could purport to legalise an otherwise unlawful block booking by attaching the condition sought. Some block bookings were lawful, some not. In order to constitute a valid block booking, the details would need to be sufficient to identify, and enable a driver to identify, a specific booked journey. Messages from Blackpool Airport management to the respondent estimating the number of passengers who might require the taxis provided by the respondent could give rise to an offence of plying for hire."

11. The arguments of the respondent are set out in paragraph 4 of the case stated. Each of the propositions advanced by the council as an appellant was resisted. This was said:

"(e) Clarity was needed in view of the appellant's inconsistent pronouncements, and the condition sought was reasonably necessary to achieve this. The condition was lawful. There was nothing in Section 55 which limited conditions to being restrictive.

"(f) Block bookings were lawful. The essence of a private hire booking was simply that it must be pre-booked. In terms of identity, the name and address of the hirer, not the passenger, was required. Therefore, identifying the hirer as Blackpool Airport, for example, was sufficient. The identity of an individual passenger was not necessary to check that the respondent's vehicles at the airport had been sent to service a block booking."

12. The magistrates set out their conclusions in paragraph 6 of the case stated:

"(a) We were of the opinion that we had jurisdiction to hear the appeal. Consequently, we determined that by disallowing the condition requested by the respondent, the appellant, by default, had imposed an inferred condition that no block bookings could be taken.

"(b) We felt that hitherto there had been confusion and ambiguity as to what the respondent was able to do, given that the appellant had stated that some block bookings were lawful and some were not. Accordingly, we felt we were entitled to impose a condition that was reasonably necessary to achieve clarity and certainty.

"(c) Accordingly, we directed that the following condition be added to the licence: 'The operator is entitled to accept block bookings from corporate clients.'

"(d) Regarding the making of a costs order, we were made aware by the appellant that we had a discretion, and to make an order that was just and reasonable in all the circumstances. We were referred by the appellant to the case of Bradford MBC vs Booth (2000). We felt that as the appellant had given conflicting advice to the respondent, and had not made a reasonable decision, the appellant should pay the respondent's costs in full, namely £5,100, to the respondents within 28 days."

13. I should notice that the appellants in this court have a discrete argument that even if the magistrates were right to allow the appeal and impose the condition that they set out, it was wrong as a matter of principle to order the council to pay the costs. In the light of the arguments before them, the magistrates have identified the following questions for answer:

"(a) Were we correct in law to determine that we had jurisdiction to hear the appeal under Section 55(4) of the Local Government Miscellaneous Operations Act 1986?

"(b) If we were correct, was the condition we imposed lawful and reasonably necessary?

"(c) In the particular circumstances, was it reasonable for us to make an order that the appellant should pay the respondent's costs of the proceedings?"

14. While having every sympathy with the magistrates, faced, as they were, with a confused factual history of considerable local concern, and their desire to achieve certainty, it is, with respect, not for a Magistrates' Court to issue what amounts to declaratory relief that a particular practice is lawful. Even this court is cautious before entertaining an application for a declaration that a proposed course of action would not amount to a criminal offence. Whether the arrangement at the airport is unlawful as plying for hire, is something that was not directly in issue before the Magistrates' Court, as it would have been if someone were being prosecuted under Section 45 of the 1847 Act.
15. In my judgment what the respondent was seeking from both the Council, and then from the Magistrates' Court, was not a condition at all. The respondent recognised they were seeking what they described as a condition expressly to permit them to do something, the legality of which was in doubt. It is commonplace for conditions to be attached to a licence in a wide range of circumstances. A condition has the effect of restricting the freedom of action of a licence holder. It may require him positively to do something, or it may prohibit him from doing something, or it may otherwise restrict his freedom of operation. This so-called condition does none of those things. It purports to declare the legality of a general practice. It is recognised by the respondent that it is not appropriate for a Magistrates' Court to do that.
16. The 1976 Act allows the council to attach conditions to the licence; that one sees from Section 55(3). On appeal, the magistrates can vary or remove conditions so imposed. The respondent objects that the council did not say that it had no power to attach this so-called condition to the licence, and so the magistrates must also have had power to do so. However, in my judgment, because it is not something that amounts to a condition, the Council could not have attached it to the licence within the powers it was given by Section 55(3).
17. The magistrates sought to avoid these conclusions by finding that the appellant Council had imposed an inferred condition that no block bookings could be taken. There is, with respect to the magistrates, no basis upon which the actions of the council could be so interpreted. The decision under appeal, reflected in the minutes of the relevant committee and the decision letter, show clearly that that was not what they were doing. Furthermore, the notion of an inferred condition attached to a private hire operator's licence is one with which I have grave difficulty as a matter of principle. The breach of a condition of a licence of this sort amounts to a criminal offence. One only has to put oneself in the position of a court being invited to convict someone for breach of a so-called inferred condition, not patent on the face of the licence and impossible to discern without a long historical narrative, to see that it is wrong in principle.
18. It is clear, in my judgment, that the council had not imposed a condition in respect of which the respondent could appeal. In general, there is a right of appeal to the Magistrate's Court provided by Section 55(4) of the 1976 Act. That right of appeal arises against the refusal of a licence or the imposition of conditions. Plainly, the respondent was not refused a licence. Additionally, it was entirely content with the conditions actually imposed. It is right that an appeal against conditions may often involve the contention that a condition that has been imposed is too onerous, impracticable, or for some reason should be replaced with a different condition. Here, however, there was no condition in respect of which the respondent was aggrieved, to use the language of Section 55(4), and so there was nothing on which their appeal could bite. Section 55(4) conferred no jurisdiction on the magistrates to make the order which they did.
19. For all these reasons this appeal must be allowed. It is strictly unnecessary for me to consider whether, on the hypothesis that the magistrates were correct in allowing the appeal before them, the costs order made was appropriate. That is because in allowing the appeal, the order made by the magistrates, including their costs order, will be set aside. I should, however, indicate shortly that given the history in this case, it is not surprising that the magistrates came to the conclusion that they did. They were clearly directed towards the correct legal principles, and it seems to me that, had their underlying decision been correct, it would have been an uphill struggle for the council to set aside that part of the order alone.
20. In the course of this judgment I have identified the underlying concern of the parties, that is whether the arrangement at Blackpool Airport as described in the papers before me was and is lawful. The questions that arise in that connection were not, as I have already said, before the Magistrates' Court, and neither are they before me. They are questions which, if they arise for determination, would require a very careful analysis of the underlying facts in the context of the relevant law. Nothing I have said in the course of this judgment is intended to express any view whatsoever on whether the arrangement in place amounts to unlawful plying for hire. As far as the questions are concerned, the answers are as follows: (a), no; (b), no; and (c), does not arise.
21. MR WILLIAMS: My Lord, there is an application for costs. I have handed my learned friend a copy of the schedule.
22. MR JUSTICE BURNETT: I do not think I have seen a schedule.
23. MR WILLIAMS: I will hand up a copy now. My Lord, I would ask for that figure in full, subject to anything my learned friend will say.
24. MR JUSTICE BURNETT: You are not asking for the costs in front of the magistrates?
25. MR WILLIAMS: No, my Lord.
26. MR JUSTICE BURNETT: Good.
27. MR WILLIAMS: No, I envisaged that given the history and the chronology I have outlined, it would have been difficult for me to persuade you as such.
28. MR JUSTICE BURNETT: Sorry, I am a bit confused here, there are two sheets of paper with two very different figures on it.
29. MR WILLIAMS: My learned friend has passed his sheet forward, I envisage he is going to make some representations.
30. MR JUSTICE BURNETT: The schedule for costs for the appellant, so this one is yours?
31. MR WILLIAMS: That is correct, my Lord.
32. MR JUSTICE BURNETT: Right, I now have them the right way around. Now, Mr Maddox, as a matter of principle, can you resist --
33. MR MADDOX: No, I can't.
34. MR JUSTICE BURNETT: You, no doubt, will be suggesting that --
35. MR MADDOX: Your Lordship will not be surprised --
36. MR JUSTICE BURNETT: -- at least one aspect of this is rather lush for your submission --
37. MR MADDOX: -- to see that we hand up a schedule by way of comparison. There are a number of factors. Clearly on the face of it, my learned friend's fee is significant for a case stated. Obviously, I accept that the narrative covers more than his attendance here today, it suggests that he has undertaken other work. Clearly it is not easy to see on a summary assessment what has been done, or why it was done by counsel rather than solicitors. For example, there is correspondence included in relation to his fee. What I can tell you is that my learned friend was kind enough to give me a copy of this before the luncheon adjournment, and so I was able to take some brief instructions from those who instruct me. For example, I appreciate that the solicitors' costs are relatively modest.
38. MR JUSTICE BURNETT: Because the solicitors are in-house, presumably, are they?
39. MR WILLIAMS: That is correct, my Lord.
40. MR MADDOX: In terms of preparation for this hearing, no doubt I will be corrected if I am wrong. The bundles, for example, were prepared by the respondent's solicitors or advisors, because, as I understand it, my learned friend's solicitor was away on vacation. He even went as far as to scan the skeleton argument into words so that they could put the pagination into it.
41. MR JUSTICE BURNETT: In that sort of detail, I can see what is being charged. I am bound to say, without wishing to embarrass Mr Williams, the fee is rather higher than one would expect to see for a case of this sort, yours being more of the level that one does see quite a lot.
42. MR MADDOX: My Lord, perhaps I can short-circuit it in this way, in terms of the solicitors' costs --
43. MR JUSTICE BURNETT: You can't quibble with that.
44. MR MADDOX: Work was done between the appeal and the Magistrates' Court now, and clearly there are solicitors behind my learned friend, so really it is whatever view the court takes as to the agreed fee, I guess.
45. MR JUSTICE BURNETT: Well, thank you.
46. It is all very embarrassing, Mr Williams, to have to make representations, but I am inclined to reduce this figure to some extent. What I have in mind is assessing costs at £7,000. Do you wish to try to persuade me that that is wrong in principle?
47. MR WILLIAMS: My Lord, I don't make any representations.
48. MR JUSTICE BURNETT: So the order then will be that the appeal is allowed, and the order of the magistrates is set aside. The appellant will have its costs of this appeal from the respondent assessed at £7,000.
49. Now I have someone's model of conditions.
50. MR WILLIAMS: Correct.
51. MR JUSTICE BURNETT: They are, I think, yours, Mr Williams.
52. MR WILLIAMS: Thank you, my Lord.
53. MR JUSTICE BURNETT: Are there any further applications?
54. MR MADDOX: My Lord, no.
55. MR WILLIAMS: No, thank you.
56. MR JUSTICE BURNETT: Thank you both very much, particularly for putting your arguments so coherently in the skeletons. It saves a great deal of time. Thank you all very much.