QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MR JUSTICE SUPPERSTONE
| THE QUEEN on the application of UNITED CABBIES GROUP (LONDON) LTD
|- and -
|WESTMINSTER MAGISTRATES' COURT
|- and -
|TRANSPORT FOR LONDON
LICENSED TAXI DRIVERS' ASSOCIATION
UBER LONDON LTD
The Defendant was not represented
Martin Chamberlain QC and Tim Johnston
(instructed by Transport for London) for the 1st Interested Party
Gerald Gouriet QC and Charles Holland
(instructed by Michael Demidecki & Co) for the 2nd Interested Party
Philip Kolvin QC (instructed by Hogan Lovells Intl. LLP) for the 3rd Interested Party
Hearing date: 13 February 2019
Crown Copyright ©
The Lord Chief Justice and Mr Justice Supperstone:
The Decision of the Chief Magistrate
"40. I have considered the evidence and submissions in the case. I have given particular weight to the conditions that have been agreed between the parties. Taking into account the new governance arrangements, I find that whilst [Uber] was not a fit and proper person at the time of the Decision Letter and in the months that followed, it has provided evidence to this court that it is now a fit and proper person within the meaning of the Act. I grant a licence to [Uber].
41. The length of the licence has been the subject of discussion. The rapid and very recent changes undergone by [Uber] lead me to conclude that a shorter period would enable TfL to test out the new arrangements. A 15-month licence will enable Ms Chapman and her team to check the results obtained by the independent assurance procedure set out in condition number 4 whilst ensuring the public are kept safe.
42. I grant a licence for a period of 15 months."
i) Lord Arbuthnot is the Chair of Thales UK ("Thales") advisory board. He was still the Chair of Thales' advisory board at around the time the decision was made on 26 June 2018. He was an advisory board member of Thales when on 3 August 2015 TfL awarded Thales a contract to renew the signalling and train control system on the London's Underground. TfL also awarded Thales a contract to maintain and upgrade its communications systems in September 2018. An article on 16 July 2018 on the website of Thales suggests a business collaboration between Uber and Thales in respect of air taxis in Dubai.
ii) SC Strategy provides consultancy services to another company called Pure Storage UK ("Pure Storage") that has a business partnership with Thales called Thales Security. Pure Storage also provides data storage for Uber.
iii) TfL have selected BlackRock to manage very substantial investments. Blackrock previously invested in Uber in 2014, reportedly in the sum of $209m.
iv) The judge's brother, who lives in the State of Virginia and works in the wine trade, in an e-mail dated 15 January 2015 to the Public Service Commission of South Carolina "urges [them] very strongly to reinstate the UBER service" as he "knows they have had their backgrounds checked" and that he feels "safe" and that "it encourages tourism to provide a safe environment and travel options". Mr Rogers exhibits an article from the Washington Post dated 6 October 2016 entitled "Going to Virginia Wine Month Festivities? Take Uber and get discounts"; and an article entitled "Wine and Uber: A Match made in Virginia".
v) On 15 January 2019 it was brought to the attention of Mr Rogers that Uber features on TfL's employee website "My TfL" which is accessed via TfL's website. Discounts are offered on a number of services, one of which includes Uber journeys taken by TfL staff.
vi) Ms Laurel Powers-Freeling, the new chairman of the board of Uber in London, was found by the judge to be "an impressive witness with an impressive background". The judge said that "[she] was satisfied that under her Chairmanship, as long as she is kept informed of what is happening day to day in the business, that the changes that [Uber] has put in hand will be maintained". Decades earlier, Ms Powers-Freeling worked at McKinsey together with her future husband and Lord Hague of Richmond. Lord Arbuthnot and Lord Hague worked together in politics and Lord Arbuthnot was his campaign manager in 1997. Lord Hague is also Chairman of the Advisory Board of Linklaters and that firm is apparently the fund counsel to Soft Bank Group who are said to be the largest shareholder in Uber's parent company.
The Statutory Framework
"(3) The licensing authority shall grant a London PHV operator's licence to the applicant if the authority is satisfied that—
(a) the applicant is a fit and proper person to hold a London PHV operator's licence; …
(4) A London PHV operator's licence shall be granted subject to such conditions as may be prescribed and such other conditions as the licensing authority may think fit.
(5) … [a] London PHV operator's licence shall be granted for five years or such shorter period as the licensing authority may consider appropriate in the circumstances of the case.
(7) An applicant for a London PHV operator's licence may appeal to a magistrates' court against—
(a) a decision not to grant such a licence; …"
The Parties' Submissions and Discussion
Ground 2: The judge made no finding of fact that at the time of her decision Uber was a fit and proper person within the meaning of s.3, and therefore her decision was unlawful
"Importantly by 25th June 2018 [Uber] was asking for a probationary licence only. The initial period it suggested was one of 18 months but in final submissions it came down to 15 months."
"…I must… ask myself whether [Uber] is a fit and proper person to hold a private hire vehicle operator's licence…"
She later referred to "the agreed legal position" and section 3(3) which:
"sets out that TfL shall grant an operator's licence where it is satisfied that the applicant is a 'fit and proper person' to hold such a licence."
"whether [Uber] is now a fit and proper person to hold a licence."
Uber's skeleton stated that the task for the court was to judge its fitness and propriety now, taking account of the progress it had made. It was Uber's skeleton argument that introduced the term "probationary licence" which, in context, was no more than an understanding that if it failed to comply with the conditions and reverted to its previous ways, it would not fare well in an application for renewal.
"It is agreed the issues or questions set out below encompass the full range of potential concerns regarding whether [Uber] is a fit and proper person…"
The revised list of issues also refers to the question of duration of licence and conditions as follows:
"If the court is satisfied that [Uber] is fit and proper (i) whether it should be granted a licence of 18 months' duration expiring on 31 December 2019 (as [Uber] has suggested), (ii) if not, then of what duration, (iii) whether the licence should be subject to conditions and (iv) if so, what conditions."
"The exigencies of daily courtroom life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment… but also of a reserved judgment based upon notes… These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly so when the matters in question are so well known as those specified in s.25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by narrow textual analysis which enables them to claim that he misdirected himself."
Ground 1: Bias
i) Where a judge has a direct pecuniary or proprietary interest in the outcome of a case, he or she is automatically disqualified, whether or not that interest gives rise to a reasonable apprehension of bias (see Dimes v Proprietors of Grand Junction Canal  3 HLCas 759; In Re Medicaments and Related Classes of Goods (No.2)  1 WLR 700 at para 40; R v Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No.2)  1 AC 119 at 134, per Lord Browne-Wilkinson; and Locobail (UK) Ltd v Bayfield Properties Ltd  QB 451 at paras 4 to 9, per Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott VC).
ii) The rationale of the rule is that "a man cannot be a judge in his own cause". That being so, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties (ex p Pinochet (No.2) at 135).
iii) The question is not whether the judge has some link with the party involved in a cause before the judge but whether the outcome of that cause could, realistically, affect the judge's interest (Locobail (UK) Ltd at para 8). It needs to be more than a "tenuous connection" (para 50). The impugned interest must be "direct and certain, and not remote or contingent" (R v Manchester, Sheffield and Lincolnshire Railway Co. [1866-67] LR 2 QB 336 at 339).
iv) In any case where the judge's interest is said to derive from the interest of a spouse, partner or other family member the link must be "so close and direct as to render the interest of that other person, for all practical purposes, indistinguishable from an interest of the judge himself" (Locobail (UK) Ltd at para 10, and Jones v DAS Legal Expenses Insurance Co. Ltd  EWCA Civ 1071 at para 18, per Ward, Waller and Hale LLJ). The fair-minded observer does not assume that the interests of husband and wife are indistinguishable. They are not.
v) The test for apparent bias under English law and Article 6 of the ECHR is "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased" (Porter v Magill  2 AC 357 at para 103, per Lord Hope); and Taylor v Lawrence  QB 528 at para 60).
vi) "In any case where the impartiality of a judge is in question, the appearance of the matter is just as important as the reality" (ex p Pinochet (No.2) at 139, per Lord Nolan).
vii) "While the test is certainly less rigorous than one of probability, it is a test which is founded on reality. The test is not one of "any possibility" but of a "real" possibility of bias" (Resolution Chemicals Ltd v H. Lundbeck A/C  EWCA Civ 1515 at para 36, per Sir Terence Etherton C).
viii) "The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious… she is not complacent either…" (Helow v Secretary of State for the Home Department  1 WLR 2416 at paras 2 to 3, per Lord Hope).
ix) When applying the test of real possibility "it will very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it is shown that he did not know of it the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled" (Locobail at para 18). However, no attention will be paid to any statement by the judge as to the impact of any knowledge on his or her mind (Locobail (UK) Ltd at para 19, and Helow at para 39, per Lord Mance).
x) The test to be applied where there is a familial connection is the same in presumed and apparent bias cases (see (iv) above).
UCG's Case on Bias
"If … the court has to predict what might happen if the hearing goes ahead before the judge to whom objection is taken and to assess the real possibility of apparent bias arising, prudence naturally leans on the side of being safe rather than sorry".
"In this case a simple question by the district judge of her husband – 'can you please check on whether you or any of the companies in respect of which you are a Chairman, Director of Consultant have any direct or indirect association with Uber or Transport for London?' would have resulted in the identification of any potential conflicts of interest which the judge would either have been able to disclose to the parties or enable her in a timely manner to recuse herself from hearing the case."
"there would be no real danger of bias, as no one could suppose that the judge could be unconsciously affected by that of which he knew nothing …"
"In our view, once the hypothesis that the judge "did not know of the connection" is accepted, the answer, unless the case is one to which the Dimes case … applies, becomes obvious. How can there be any real danger of bias, or any real apprehension or likelihood of bias, if the judge does not know the facts that, in argument, are relied on as giving rise to the conflict of interest?"
i) The judge confirms that she believes that she knew that her husband was Chairman of the UK Thales advisory board. She did not know of any Thales connection either in the UK or otherwise to either Uber or TfL;
ii) The judge knew that her husband is a consultant for Pure Storage but she did not and does not know the details of what this involves. She knows that Pure Storage is "an enormous computer company providing storage for information across the world". She has no knowledge of its clients. She did not know of any connection between Pure Storage and any of the parties in this case;
iii) She has no knowledge concerning TfL's selection of BlackRock to manage investment portfolios, or that BlackRock invested, it is said, in Uber;
iv) She had no idea that her brother used or supported Uber prior to her asking him.
v) To her knowledge she had never met or even seen Ms Powers-Freeling before she gave evidence. If she had known her, she would have immediately informed the parties. She was not aware of any connection between her and any person known to her;
vi) As for Linklaters being the fund counsel to SoftBank Group (now Uber's largest shareholder), neither she nor her husband knew that Lord Hague was the chairman of the Linklaters Advisory Group or that Linklaters were fund counsel to Soft Bank Group, if this be so.
vii) We do not accept that the statement in Mr Rogers' fourth witness statement that discounts are offered on Uber journeys taken by TfL staff could have led the fair-minded and informed observer to conclude that there was a real possibility that the judge was biased. As we understand it, the suggestion is that these discounts are "of relevance to TfL's and Uber's stance at the licensing hearing and the likely impact this had on the district judge's decision" (Mr Rogers' fourth witness statement, paras 4-9). Again, sensibly, Mr Griffiths made no reference to this matter in his oral submissions.
"We cannot ...conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances …; or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in the case before him; or membership of the same Inn, circuit, local Law Society or chambers."