[2004]JRC042
royal court
(Samedi Division)
11th March 2004
Before: |
M. C. St. J. Birt, Esq., Deputy Bailiff and Jurats Bullen and Clapham. |
Between |
Environment and Public Services Committee |
Plaintiff |
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And |
Tantivy Holiday Coach Tours Limited |
Defendant |
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Application by the Plaintiff Committee for a declaration that the Defendant is running an omnibus service without the necessary licence, contrary to the relevant provisions of the Motor Traffic (Jersey) Law 1935.
The Solicitor General for the Plaintiff.
Advocate F. B. Robertson for the Defendant.
judgment
the DEPUTY bailiff:
1. This is an application by the Environment and Public Services Committee ("the Committee") for a declaration that the defendant is running an omnibus service without the necessary licence, contrary to the relevant provisions of the Motor Traffic (Jersey) Law 1935.
The factual background
2. The defendant is a company which is the holder of public service vehicle licences allowing it to use the vehicles referred to in the licences to provide a char-à-banc service. It does not hold an omnibus service vehicle licence which, as the name suggests, would allow it to use its vehicles to provide an omnibus service.
3. Commencing on 20th April 2003, the defendant introduced a new passenger service. It was called 'Easylink'. It was described in its published time-table as "linking you to Jersey's Bays and Attractions" and "new easy to use Hop on - Hop off Coach Service". Broadly similar wording appeared on the vehicles themselves. The defendant provided the service throughout the summer season ending on 24th October 2003.
4. The service consisted of the carriage of passengers at separate fares for the journey or circuit. The defendant operated a number of routes. They were described in the time-table as four 'link' routes (links 59, 66, 77 and 88) and three 'Hotel early pick-up routes'. The route of link 88 was changed mid-season but nothing turns on that and we will describe the routes in their final form.
5. The Court has been much assisted by reviewing the defendant's time-table which has a useful sketch plan of the routes. Link 55 started at the Weighbridge and proceeded in a fairly large circuit before returning to the Weighbridge. The stopping points were the Glass Church, Jersey War Tunnels, Living Legend Village, Grève de Lecq Beach, Treasures of the Earth and Leather Land, Jersey Pearl, St. Ouen's Bay (Watersplash), Corbière Lighthouse, St. Brelade's Bay and St. Aubin's Village before returning to the Weighbridge. Link 66 followed exactly the same route with the same stopping points but in the reverse direction. Link 88 went from the Weighbridge to Jersey Zoo and returned. The stopping points were the Glass Church, Jersey War Tunnels, Living Legend Village, Jersey Gold and Jersey Zoo. Link 77 also went to and from Jersey Zoo but via a different route. Its stopping points were Jersey Pottery and Restaurant, Gorey Castle and Pier, La Hougue Bie Museum and Jersey Zoo. The time-table listed all these stopping points and set out the times of arrival at each of the stopping points. The service stopped at each stopping point to allow passengers to get on and off the vehicle but it did not remain there, staying only long enough to allow passengers to get off and other passengers to get on. Passengers could get on or off at any of the points listed in the time-table.
6. The hotel early pick-up routes were designed to enable passengers to get from various hotels to the Weighbridge so as to be able to link up with any of the main link routes should they so wish. The first went from the Beachcombers to the Weighbridge, stopping at Gorey Pier, Gorey Village, Beausite, Pontac, Shakespeare, Samarès, Ambassador, Normandy, Ommaroo, and Carlton hotels before arriving at the Weighbridge. There were two incoming services in the morning and three outgoing services in the late afternoon. The second route was structured in a similar way, departing from the Grand Hotel and going via the Central, Savoy, Norfolk Lodge, Hampshire, de France and Apollo hotels before stopping at the Blue Coach station and the Weighbridge. The third route began at St. Brelade and stopped at St. Aubin before arriving at the Weighbridge.
7. The fare structure varied a little over the course of the season but nothing turns on this. An "Explorer" ticket could be purchased for one, three or five days' travel at varying prices. An Explorer ticket entitled the holder to use any vehicle on any of the routes throughout the duration of the relevant Explorer ticket. Until 15th May 2003 a single fare to any destination could be purchased at a fixed price of £1.50. This was discontinued after 15th May following discussion with the Committee and thereafter only a return fare could be purchased. Such a return fare cost £3 to any destination. It follows that the structure of fares did not provide for the issue of tickets at different prices for different distances. In effect there was a flat fare no matter how far the passenger travelled. Tickets could be purchased at the Weighbridge terminal, at the reception of hotels and tourist attractions, from hotel couriers and from the driver.
8. There were periodic exchanges between the Committee and the defendant during the course of the spring and summer of 2003 as to whether the defendant was operating an omnibus service. The defendant contended that it was operating a char-à-banc service and it made some alterations to the initial method of operation in order to meet some of the Committee's objections. However the Committee remained of the view that, even after such alterations, the defendant was operating an omnibus service rather than a char-à-banc service. In due course the Committee therefore instituted these proceedings in order to resolve the position.
The legal framework
9. According to its long title, the 1935 Law is a Law to provide for the regulation of public service vehicles. 'Public Service Vehicle' is defined in Article 1 as '"a motor vehicle used to carry passengers for hire or reward ...". Part 3 is headed "Regulation of public service vehicles" and Article 5(1) provides:-
"For the purposes of this Law public service vehicles shall be divided into 3 classes, namely:-
(a) those used to provide an omnibus service;
(b) those used to provide a char-à-banc service; and
(c) those used to provide a cab service".
Both parties are agreed that, whatever else it may be, Easylink is not a cab service and we will say no more of that class of public service vehicle.
10. Article 6(1) provides that a person must not cause or permit a motor vehicle to be used on a road as an omnibus, a char-à-banc or a cab unless that person is the holder of a public service vehicle licence for the vehicle that authorizes the vehicle to be used for that purpose. It is an offence under Article 6(2) to cause or permit a motor vehicle to be used or operated as a public service vehicle in contravention of Article 6(1).
11. In Article 1(1) a 'char-à-banc' is defined as 'a motor vehicle being used to provide a char-à-banc service' and 'omnibus' is defined as 'a motor vehicle being used to provide an omnibus service'. The two key definitions for the purposes of this case are:-
"Char-à-banc service" means a service that consists of the carriage by motor vehicles of passengers for hire or reward at separate fares, for a journey or circuit, from one or more points of departure specified in advance to one or more common destinations so specified, and not stopping to take up or set down passengers except in the neighbourhood of the points of departure and of the common destinations.
"Omnibus service" means a service that consists of the carriage by motor vehicles of passengers for hire or reward at separate fares, stage by stage, and stopping to pick up or set down passengers along the line of route."
12. Article 15 provides that it is an offence to provide an omnibus service except in accordance with the terms of an omnibus service licence. The defendant does not hold such a licence in respect of the service. Article 19 deals with the grant of such omnibus service licences. Article 16 provides that the Committee may bring civil proceedings for an injunction or other appropriate relief to compel compliance with Article 15. That is the basis of the proceedings being brought in this case by the Committee.
Irrelevant considerations
13. We begin by stating what this case is not about. The defendant filed affidavits to support its contention that the service is aimed primarily at tourists, is a very useful service for tourists and is strongly supported by the tourism industry. The Committee, on the other hand, filed affidavits to suggest that Easylink acts in direct competition with the Connex bus service and, on occasions, picks up passengers at points (e.g. Jersey Pearl) where there is a Connex bus stop.
14. These are matters upon which strong views may be held in either direction but they are completely irrelevant to our task. It is not our task to decide whether the service is a desirable thing or not. Nor is it relevant to our task whether the service in fact takes passengers from the Connex service. Our duty is to decide only whether the service does or does not amount to the provision of an omnibus service within the meaning of the 1935 Law. It is simply a question of the interpretation of the statute applied to the facts of the case. The desirability of one outcome or another is not a matter for us, is not relevant to our task and has not influenced us.
The Committee's contentions
15. The Solicitor General began by considering whether the service provided by the defendant was a char-à-banc service. She submitted that it was not, because it did not involve the carriage of passengers ".... for a journey or circuit, from one or more points of departure specified in advance to one or more common destinations so specified and not stopping to take up or set down passengers except in the neighbourhood of the points of departure and of the common destinations". In particular, the service failed to meet the requirements of this definition in two respects:-
(i) Because passengers could get on and off as they liked at any of the listed stopping points, a point of departure for one passenger could be a destination for another. Thus one passenger could take the vehicle from the Weighbridge to the Glass Church, getting off at that point whereas another could get on at the Glass Church in order to go the Living Legend. This was inconsistent with the definition which drew a distinction between one or more points of departure and one or more common destinations.
(ii) The definition required there to be common destinations. This was obviously the case in a conventional tour coach, which was what a char-à-banc service was intended to cover. Thus the passengers would get on at one or more departure points, but once on board, they would travel together to common destinations. Thus they might go to Jersey Zoo, get off and explore the Zoo, get back on and travel together to, say, the Living Legend before doing much the same again at that attraction. They would eventually all return to the original departure points. There was a journey or circuit with common destinations in that they were destinations common to all those on the vehicle. This was quite different from the defendant's service where passengers might be travelling to and getting off at a variety of different destinations. The essence of a "hop on, hop off" service was that what was a destination for one person might be a point of departure for another. She submitted that a destination is not a common destination if some of the passengers on the vehicle which is making the journey or circuit get off at the destination and do not re-board the vehicle, while others remain on the vehicle without visiting that destination in order to travel on to some different destination; and yet others board the vehicle for the first time at that destination in order to travel to some different destination. The requirements of the definition of a char-à-banc service were therefore not fulfilled by the defendant's service.
16. Having concluded that the service was not a char-à-banc service, she then turned to consider whether it was an omnibus service. She submitted that it was. Both parties were agreed that the defendant's service involved "the carriage by motor vehicles of passengers for reward at separate fares". The sole question therefore was whether the service operated "stage by stage" and whether it involved "stopping to pick up or set down passengers along the line of route".
17. Taking the second limb first, she submitted that this was obviously so. It was a 'hop on, hop off' service. Passengers could get on and get off at any of the stopping points along the route. The real issue, she submitted, was as to the meaning to be attributed to 'stage by stage'. As we shall see, the defendant submits that 'stage by stage' means that fares on an omnibus service must vary according to the stage or distance travelled. The Solicitor General submitted that this was not its meaning. The expression meant no more than that each passenger travels as far, or for such stages, as he wishes, getting on and getting off at such stopping point as he likes. He does not remain with his fellow travellers for the entire journey or circuit, visiting the common destinations in their company as he would do if the service were a char-à-banc service. The passenger on an omnibus service pays his fare at whatever stage he boards the vehicle. The passenger on a char-à-banc service pays his fare at the start of the journey or circuit and passengers on the same vehicle complete the same journey or circuit and visit the same common destinations.
18. She further submitted that, if the Committee was right in saying that this was not a char-à-banc service (because there was a lack of common destinations) and if the defendant was right in saying that it was not an omnibus service (because the fares did not vary according to the distance travelled), the effect would be that this was a public service vehicle (because it was used to carry passengers for reward) which was neither an omnibus nor a char-à-banc It was therefore a wholly unregulated public service vehicle. This would be an absurd situation and could not have been the intention of the statute. The possibility of such a result suggested that the defendant's construction of 'omnibus service' could not be right.
The English cases
19. The parties agreed that there was no judicial authority on the meaning of 'stage by stage' but each suggested that some, albeit limited assistance could be derived from certain English cases. We think it convenient therefore to deal with both parties' submissions in relation to the English cases at this stage. The Solicitor General began by pointing out that the source for the definition of char-à-banc service and omnibus service in the 1935 Law was almost certainly section 61(1) of the Road Traffic Act 1930 of the United Kingdom. This appeared to be the first reference in any statute to the expression 'stage by stage'. Section 61(1) provided:-
"Public service vehicles shall, for the purposes of this Part of this Act and the regulations made thereunder, be divided into the following classes:
(a) Stage carriages; that is to say, motor vehicles carrying passengers for hire or reward at separate fares (any or all of which are less than one shilling for a single journey or such greater sum as may be prescribed), stage by stage, and stopping to pick up or set down passengers along the line of route, and any other motor vehicles carrying passengers for hire or reward at separate fares and not being express carriages as hereinafter defined;
(b) Express carriages; that is to say, motor vehicles carrying passengers for hire or reward at separate fares (none of which is less than one shilling for a single journey or such greater sum as may be prescribed) and for a journey or journeys from one or more points specified in advance to one or more common destinations so specified and not stopping to take up or set down passengers other than those paying the appropriate fares for the journey or journeys in question;
(c) Contract carriages; that is to say, motor vehicles carrying passengers for hire or reward under a contract express or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum...."
20. In Chapman v Kirke (1948) 2 KB 450 the issue was whether an electric tram was a 'stage carriage' within the meaning of the Stage Carriages Act 1832. Section 5 of that Act had originally contained a definition of 'stage carriage' but that definition had been repealed. Accordingly, at the material time, there had been no definition in the Act. The original definition had not contained the words 'stage by stage' or any equivalent. Having noted that the court had to ascertain whether the vehicle in question was a 'stage carriage' without the benefit of a definition, Lord Goddard went on to say at 454:-
"In my opinion, there is no doubt that a vehicle which proceeds from stage to stage at regular, or more or less regular intervals, and carries passengers who pay separate fares, is a stage coach or a stage carriage, whichever expression is preferred".
The Solicitor General pointed out that Lord Goddard made no specific reference to the need for fares which varied according to the distance or stage travelled. In practice, no doubt, fares would usually have varied according to the distance travelled, but that was not part of the definition. What Lord Goddard had focussed on was that passengers could travel in stages and that they paid separate, i.e. individual fares. Mr. Robertson, on the other hand, pointed out that the court was not concerned with interpretation of the expression 'stage by stage' and the case was therefore of no assistance. We agree that Lord Goddard did not suggest the need for a staged fare structure, but we do not find the case to be of much assistance. The court was not being asked in that case to interpret the expression 'stage by stage' and a decision on what constitutes a stage carriage at common law does not really assist in the interpretation of the two provisions in the 1935 Law with which we are concerned.
21. Victoria Motors (Scarborough) Limited v Wurzal (1951) 1All ER 1016 was concerned with a prosecution under section 72 Road Traffic Act 1930 for having permitted a vehicle to be used as a 'stage carriage' without the relevant licence. The Solicitor General referred to it merely to point out that the court did not suggest any requirement that the fares should vary according to the distance travelled. That is correct but, as Mr. Robertson pointed out, the definition of 'stage carriage' in section 61(1) of the Road Traffic Act 1930 was amended in 1934 and the new definition did not include the words 'stage by stage' as had the original definition in 1930. The court in that case was considering the new definition. Furthermore, the issue in the case was whether the vehicle was being used for a 'special occasion'. We agree therefore that the case is of no assistance.
22. In R v Cambridge City Council ex p Lane (13th July 1998) the issue before the English Court of Appeal was whether a trishaw (being a cross between a rickshaw and a tricycle) was a 'hackney carriage' or a 'stage coach' for the purposes of the Town Police Clauses Act 1847. In that Act, there was a definition of 'hackney carriage' but an exclusion from that definition of anything which was a 'stage coach'. There was however no definition of 'stage coach'. The issue before the Court of Appeal was whether the trishaw fell within the stage coach proviso or not. In passing, Sir Richard Scott V-C said this at page 8:-
"The next Act which I must mention is the Town Police Clauses Act 1889. Miss Baxendale has drawn our attention to some passages in Hansard at the time that the Act was before Parliament, which explain the problems that had arisen under the 1847 Act that the 1889 Act was designed to remedy. The problems arose out of the proviso relating to the hire of vehicles for the carriage of passengers at separate fares, the stage coach proviso. Since 1847 there had, apparently, been a great growth in the use of coaches, known as omnibuses, for taking passengers along pre-determined routes in cities and towns charging separate fares for each stage of the route. These omnibuses did not use prescribed routes but went along whatever routes the proprietors might choose. It was apparently held - the cases that so held have not been unearthed, but there are references to these decisions in some of the Hansard speeches - that these omnibuses fell within the stage coach proviso in section 38 of the 1847 Act and so were exempt from the licensing regime established by the 1847 Act. The reason was that separate fares were being charged to the passengers for the stages of the particular routes on which the omnibuses were travelling. The passengers got on the omnibus at a stopping point and paid a fare for travel to the stopping point of their destination. This service was unlicensed. It did not fall within the licensing regime imposed by the 1847 Act on hackney carriages. It fell within the stage coach proviso. The situation, with the proliferation of omnibuses plying here and there to the annoyance of citizens in quiet neighbourhoods, was in sore need of remedy; hence the 1889 Act."
Shortly afterwards, having set out the definition in the Act of 'omnibus' Scott V-C said:-
"That was a comprehensive definition designed to catch every form of wheeled vehicle that was going to be used for carrying passengers at separate fares along some pre-determined route; in effect, any vehicle fulfilling the function of buses that we now know."
23. Mr. Robertson relies on the underlined wording to support his contention that the key factor which took a vehicle into the stage coach proviso was that the fare varied depending on the distance or fare stages travelled. The Solicitor General, on the other hand, pointed out that Scott V-C had said earlier at page 7 of the judgment:-
"Hackney carriages were things well-known to those who inhabited this Island in 1847. Broadly speaking, they were horse-drawn carriages available for hire to convey individuals from point A to point B, whether in a city or further afield. They performed much the same function that today motorised taxis perform."
It followed, she said, that hackney carriages would usually charge a fare related to the distance travelled, just like today's taxis. That could not, therefore, have been the determining factor which distinguished a stage coach from a hackney carriage and Scott V-C could not have been intending to say so in the extract referred to on page 8 of the judgment.
24. In our judgment, we cannot derive any assistance one way or the other from this case. It is true that, in the extract relied upon by Mr. Robertson, Scott V-C appears to suggest that a variable fee structure is a cause of a vehicle falling within the stage coach proviso. On the other hand, for the reasons given by the Solicitor General, that cannot, in fact, have been the distinguishing factor and it was not an issue which was before the court. Indeed, the issue before us was not before the Court of Appeal and we think it would be unsafe to draw any conclusions from passing comments made in a historical context in that case. The Court of Appeal was not considering any statutory definition of stage coach, nor was it considering anything which contained the phrase "stage by stage"; nor was the issue of variable fares before it in any form.
25. Next, we were referred to R (ex p Oddy) v Bugbugs Limited (12th November 2003). In that case the High Court was concerned with whether bicycle rickshaws (referred to as 'pedicabs') should be classified as stage carriages or as hackney carriages for the purposes of the Metropolitan Carriage Act 1869. That Act dealt with such matters in relation to the Metropolitan areas whereas the Town Police Clauses Act 1847 applied outside London. The issue was however very similar, but where there had been no definition of 'stage coach' in the 1847 Act, there was a definition of the expression 'stage carriage' in the 1869 Act as follows:-
"In this Act, 'stage carriage' shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road or place within the limits of this Act and in which the passengers, or any of them, are charged to pay separate and distinct or at the rate of separate and distinct fares for their respective places or seats therein."
As can be seen, there is no reference to the expression 'stage by stage' in the definition. In passing, the judge said at paragraph 26 of the judgment, "What was generally understood as a stage coach or stage carriage was a vehicle making stops and picking up and dropping passengers at pre-determined places along a pre-determined route". However, he went on to say in paragraph 29 that "there is no indication in the statutory language that Parliament intended to exclude from the definition of stage carriage any vehicle which did not have pre-determined stage stops".
Ultimately he held that the pedicab was a stage carriage but he was considering very different provisions and we do not derive any assistance from the case.
26. In summary, although, in deference to the arguments of counsel, we have dealt with the English cases and they are of some historic interest, we do not find them to be of any real assistance. As both counsel conceded, none of them had to interpret the expression 'stage by stage' and the issue which divides the parties in this case, namely whether the expression imports a requirement for fares which vary according to the distance or stages travelled, was simply not before any of the courts in question.
The defendant's contentions
27. Mr Robertson suggested that the Solicitor General had considered matters in the wrong order. She had considered first whether the service was a 'char-à-banc' service and, having concluded that it was not, argued that it must therefore be an omnibus service. Mr Robertson submitted that this was faulty reasoning. The Court should first consider whether the service fell within the definition of an omnibus service. That was the essential question. The defendant did not have to prove that it was operating a char-à-banc service although it contended that that was in fact was what it was doing. It was however possible that the service fell within neither definition.
28. He submitted that, as a matter of general construction, the expression 'stage by stage' must qualify the words which preceded it. It therefore qualified or characterised the words 'separate fares'; alternatively it qualified all the words which preceded it so that it qualified or characterised not only the separate fares but also the carriage of passengers for hire or reward. Either way a proper construction led inevitably to the conclusion that 'stage by stage' was a reference to different fares being charged for each stage or different stages of the route being travelled. If the expression was intended only to qualify the carriage of passengers (rather than the separate fares) the expression would have been inserted immediately after the word "carriage" where it appears in the definition.
29. The meaning for which he contended, he said, was consistent with the dictionary definition of 'stage' in the Collins English Dictionary (3rd Edition) namely "A division of a bus route for which there is a fixed fare." However he failed to refer to another definition of the word appearing in the same dictionary namely "A portion of a journey or a stopping place after such a portion." It would appear therefore that there is one definition which favours his case and one which favours that of the Solicitor General. We are left to interpret the expression in the context in which it appears.
30. Furthermore, Mr Robertson submitted, if 'stage by stage' had the meaning attributed to it by the Committee, such a construction would render otiose the remainder of the definition namely " ..... and stopping to pick up or set down passengers along the line of route." If a vehicle was picking up passengers along the route in this manner, it was obviously carrying passengers 'stage by stage' on the Committee's meaning of the expression. When interpreting a statute, there was a presumption that words were there for a purpose and were not mere surplusage. This therefore pointed against the Committee's interpretation.
31. He further submitted that, although the defendant did not have to prove this in order to succeed, Easylink was in fact a char-à-banc service. He argued that the Solicitor General had assumed that the definition of char-à-banc in the 1935 Law was intended to cover the conventional coach tour; but this ignored the fact that the definition appeared to have been derived from the definition in the 1930 Act of an 'express carriage' which was clearly not a coach tour. He noted in passing that there was now a definition of 'excursion or tour' in the Transport Act 1985 which made it clear that this meant a service for the carriage of passengers at separate fares on which the passengers travelled together on a journey with or without breaks from one or more places to one or more other places and back. He argued that all the stopping points listed in the published timetable of Easylink were common destinations in that all the passengers travelling in the vehicle immediately prior to arrival at a particular stopping point were travelling there in common even if only some of them were proposing to leave the vehicle at that stopping point whereas others were proposing to continue to another destination. He submitted that the difference between an omnibus service and a char-à-banc service in this respect was that an omnibus could stop at points which were not specified in advance in the published timetable whereas the common destinations of a char-à-banc service had to be specified in advance in accordance with the definition.
32. He submitted that, even if he was wrong on this point, so that Easylink was not a char-à-banc service because it did not include the carriage of passengers to one or more common destinations specified in advance, this did not mean that the service was necessarily an omnibus service. The legislation might well have misfired and left a lacuna in which there might be a service with a public service vehicle which was neither a char-à-banc service nor an omnibus service. In this connection, he said, it was of note that the definition of 'stage carriage' in the 1930 Act (from which the definition of omnibus service was drawn) contained a saving provision by adding "..... and any other motor vehicles carrying passengers for hire or reward at separate fares and not being express carriages as hereinafter defined". The draftsman of the Jersey legislation had omitted to include this saving provision.
33. When pressed, he accepted that his interpretation of 'common destinations' was a somewhat strained one but submitted that the Solicitor General's interpretation of 'omnibus service' was similarly strained in that it meant that all the words appearing after the expression 'stage by stage' added nothing and were therefore otiose. He pointed out that the Easylink service was very different to a normal bus service, such as the Connex service, as there were long intervals between stops and the stops consisted only of tourist attractions.
Decision
34. We agree with Mr Robertson that the essential question is whether Easylink is an omnibus service and it does not follow that, if one concludes that the service is not a char-à-banc service, it must therefore be an omnibus service. It is not impossible that there might be a lacuna in the legislation as he submits. However, one starts from the position that courts seek to avoid a construction which produces an absurd or unreasonable result (since this is unlikely to have been the intention of the legislature) and will only apply a construction which produces an absurd result where the literal meaning of the wording used is too strong to do otherwise. (See Bennion Statutory Interpretation pp336 and 675). It is therefore reasonable to consider the Easylink service in the context of both definitions in order to assist in arriving at the correct interpretation. Furthermore it is the defendant's primary contention that the service is a char-à-banc service. It is only its fallback position to submit that, even if it is not a char-à-banc service, it is not an omnibus service and therefore falls into some form of lacuna in the legislation. We think therefore that it is convenient to start by considering whether the service is a char-à-banc service. If it is, then it cannot possibly be an omnibus service and the defendant is entitled to succeed.
35. In order to be a char-à-banc service, the passengers must be carried to one or more common destinations specified in advance. Mr Robertson submits that the published stopping points on the Easylink service are all common destinations even though, at any particular stopping point, some persons may get off never to get back on, some may remain on the vehicle in order to travel on to some other destination and yet others may get on to the vehicle for the first time in order to travel to some other destination.
36. In our judgment this does not accord with the normal meaning of common destination. Let us take link 55 as an example. Suppose that, as the vehicle pulled out of the Weighbridge, each passenger on board was asked what his destination was. We have no doubt that each passenger would give as his destination the stopping point at which he intended to leave the vehicle. Thus those who intended to get off at the Glass Church would give that as their destination, those intending to travel as far as the Living Legend would give that as their destination and so on. The destinations would not be common destinations because the passengers would be travelling to a variety of different destinations.
37. Mr Robertson's answer to this was that, at any given moment, all the passengers have a common destination in that they are travelling to the next stopping point. Thus, as the vehicle pulls out of the Weighbridge, all the passengers have a common destination of the Glass Church because that is the next stopping point. In our judgment this is an extremely strained and unnatural meaning of the word. A passenger travelling to St Ouen's Bay in order to get off there would never describe the Glass Church as his destination even if asked the question as he travelled between the Weighbridge and the Glass Church.
38. Furthermore, if Mr Robertson's interpretation is correct, the differences between an omnibus service and a char-à-banc service disappear almost to vanishing point. In every bus service, there would therefore be common destinations because, inevitably, all the passengers on a bus are always travelling in common to the next bus stop. Thus, every bus service would involve a series of common destinations even though, in truth, the passengers would be travelling to a variety of different destinations depending upon the stopping point at which they wished to get off. Mr Robertson accepted that his argument involved a considerable assimilation of an omnibus service and a char-à-banc service but submitted that there remained two key differences. First, in the case of an omnibus service, there could be additional stops beyond those published in the timetable. He pointed out, for example, that the Connex timetable did not list all of the intermediate bus stops, only some of them. A char-à-banc service on the other hand had to specify all of them in advance. The Court put to him that this was really a distinction without a difference in that an omnibus service might choose to publish all of its bus stops in its timetable in which event, on Mr Robertson's arguments, they would all be common destinations specified in advance. Mr Robertson's reply was to say that whilst this might be so, it still remained theoretically open to an omnibus service to add additional stops without publishing them in advance whereas a char-à-banc service could not insert additional stops unless it published them in advance. This seems to us a very slender distinction upon which to base the difference between a char-à-banc service and an omnibus service. The second difference, he said, was that a char-à-banc service could charge a flat fare whereas an omnibus had to charge a fare which varied according to the distance or stage travelled. He was pressed with whether an omnibus service could issue a rover ticket whereby a passenger could travel on any service for any distance for a flat fare. Indeed Connex offers 1, 3, 5 and 7 day passes which allow unlimited travel for the relevant period. He was forced to submit that either such tickets were unlawful for an omnibus service or that they were only permissible if a sufficient level or percentage of fares were variable fares according to the stage or distance travelled. He was however unable to be specific as to what level was sufficient in this respect.
39. The Court put to him during the course of argument the example of a service operated solely between the Weighbridge and St Aubin's Village and back again with ten intermediate stops all of which were listed in the published timetable. To the layman that would undoubtedly seem like a bus service. Mr Robertson submitted that all the intermediate stops would be common destinations and that accordingly it would be char-à-banc service unless there were variable fares according to the distance or stages travelled or unless the service reserved the right to add additional stops which were not in the published timetable. We have to say that we did not find this a very convincing picture of the difference between a char-à-banc service and an omnibus service.
40. We are in no doubt that the various stopping points published in the Easylink service are not common destinations. For some passengers a particular stopping point will be a destination (i.e. the place at which they intend to leave the vehicle) but for others the same stopping point will simply be a point en route to their destination (i.e. the stopping point at which they intend to leave the vehicle) and for others the point will not be a point of destination at all but a point of departure (i.e. they will get on the vehicle at that point in order to travel to some other destination). In our judgment the Solicitor General was correct to say that the definition of char-à-banc is apt to cover what in everyday language is referred to as a coach tour. We accept that the origin of the definition may have been that of an 'express carriage' in the 1930 Act, but the draftsman did make significant changes to that definition as well as varying the title to that of 'char-à-banc'. Coach tours do have a number of common destinations. Passengers get on to go, for example, to the Zoo, Living Legend and Jersey War Tunnels. Each of these is a common destination in that all the passengers get off at such places in order to go and visit them before getting back onto the coach and moving to the next destination. If one were to ask each passenger what his destination was, we have no doubt he would say that his destinations were the Zoo, the Living Legend and the War Tunnels before returning home. These destinations would be common to all those on the vehicle. The construction put forward by the Solicitor General is the natural construction of the expression 'common destinations' whereas that put forward by Mr Robertson is a strained and unnatural use of language.
41. Furthermore, as stated above, the effect of accepting Mr Robertson's construction would be to reduce the difference between a char-à-banc service and an omnibus service to two very minor and artificial criteria. The mere publishing of each individual stopping point is a matter of chance. One service operator may choose to do so, another may not. In our judgment the publishing of all the stopping points cannot turn them into common destinations and cannot turn an omnibus service into a char-à-banc service. That would leave only the question of variable fares but there seems little underlying rationale in insisting on variable fares as the sole distinguishing feature between an omnibus and a char-à-banc.
42. It follows that we are satisfied that Easylink is not a char-à-banc service because it does not involve the carriage of passengers to one or more common destinations.
43. Having concluded that Easylink is not a char-à-banc service, we must next consider whether it is an omnibus service. We accept that the expression 'stage by stage' in the definition could be interpreted as qualifying or characterising all that goes before it; in other words both the carriage of passengers and the separate fares. But in our judgment this is not the only or inevitable interpretation. It is equally possible to interpret the definition as if it read as follows:-
" 'Omnibus Service' means a service which consists of the carriage by motor vehicles of passengers for hire or reward:-
(i) at separate fares,
(ii) stage by stage, and
(iii) stopping to pick up or set down passengers along the line of route."
In other words the three expressions 'separate fares', 'stage by stage' and 'stopping to pick up or set down passengers along the line of route' all qualify or characterise the carriage of passengers. So it is the carriage of passengers which must be at separate fares, must be stage by stage and must involve stopping to pick up or set down passengers along the line of route.
44. In our judgment this is a more coherent construction than that put forward by Mr Robertson. After all, although it may well have been the case that most bus services have in the past charged fares which vary according to the distance or stage travelled, why should that logically be a distinguishing feature between an omnibus service and a char-à-banc service? Why should only a char-à-banc be able to charge a flat fare? What is the vice in charging a flat fare which should prevent an omnibus service from doing so? Indeed, as summarised earlier, a bus service such as the Connex service does charge a form of flat fare for rover tickets. How does this fit in with interpreting 'stage by stage' as qualifying the separate fares and therefore requiring those fares to be staged?
45. However Mr Robertson submitted strongly that, unless his interpretation of 'stage by stage' were adopted all the remaining words of the definition added nothing and were therefore otiose. We see the force of that submission. Nevertheless the Solicitor General submitted that they did add something, albeit not perhaps a great deal. The words 'stage by stage' were used in contra distinction to the expression 'journey or circuit' in the definition of char-à-banc service and emphasised that passengers could travel stage by stage i.e. they did not have to undertake the whole of a journey or circuit. Furthermore the extra wording would assist in preventing an omnibus service operator from running a char-à-banc service. An omnibus operator who in fact wished to run a coach tour service to, say the Zoo followed by the Living Legend followed by Jersey Pearl might argue that he was picking up and setting down passengers along the line of route in that passengers got off at the Zoo before getting back on again and likewise the other two destinations. The inclusion of the expression 'stage by stage' would make this argument more difficult and would emphasise the essential nature of an omnibus service, namely that passengers could travel for part or a stage of a journey only.
46. We think there is some force in the Solicitor General's observations but we accept that there is an element of overlap between the expression 'stage by stage' and the words which follow if the expression 'stage by stage' bears the meaning contended for by the Committee. But that would not be wholly unusual. The Court is familiar with cases where, perhaps out of an abundance of caution, the draftsman has used expressions which contain considerable overlap. Furthermore, Mr Robertson's difficulty in explaining how and in what circumstances an omnibus service can issue rover tickets points against his construction. On balance we think that as a matter of simple interpretation, the contention of the Committee is to be preferred to that of the defendant.
47. However the matter becomes much more straightforward when one takes into account the consequences of the rival interpretations. Having concluded that the defendant's interpretation of 'common destinations' in the definition of char-à-banc service is incorrect, so that the Easylink service is not a char-à-banc service, the consequences of accepting the defendant's interpretation of omnibus service are stark. Easylink would be neither a char-à-banc service nor an omnibus service simply because it has a flat fare structure. The service would therefore be completely unregulated, operated by unregulated public service vehicles without any of the protections or safeguards imposed by the 1935 Law. Mr Robertson initially sought to argue that, if this did indeed turn out to be the position, the Home Affairs Committee could still rectify the position by exercising its powers under Article 10 of the Law to revoke the public service vehicle licences in respect of the defendant's vehicles. However he conceded eventually that this did not assist. The whole structure of the 1935 Law is to divide public service vehicles into three categories, namely omnibuses, char-à-bancs and cabs and license them accordingly. Article 5 makes it an offence only to operate a vehicle as an omnibus, char-à-banc or cab without a licence. It is not an offence to operate a public service vehicle which does not fall into one of the those three categories. Thus no licence would be necessary to run a vehicle on the Easylink service if it is neither a char-à-banc nor an omnibus service. It follows that, on the defendant's interpretation, the mere fact that Easylink has a flat fare structure rather than a variable fare structure means that it is a wholly unregulated public service vehicle operation. As against that the Committee's interpretation leads to a simple distinction between what, in lay terms, is a bus service and that which is a coach tour service and there is no lacuna.
48. The interpretation put forward by the defendant would lead to an absurd or unreasonable result. As stated earlier there is long standing authority for the proposition that the Court will lean against a construction which leads to such a result. Accordingly we have no hesitation in concluding that the expression 'stage by stage' does not qualify the words 'separate fares' in the definition of omnibus service so as to require an omnibus service to charge fares which vary according to the distance or stages travelled. The expression qualifies the carriage of passengers and emphasises that each passenger may travel as far or for such stages as he wishes getting on or off at such stopping points as he likes.
49. It follows that we are satisfied that Easylink is an omnibus service. It is described as a 'hop on, hop off' service and it is clear from the evidence that passengers may get on or off at any of the stopping points and may travel for such part of the route as they wish. It is therefore a service for the carriage of passengers for reward at separate fares, stage by stage and stopping to pick up or set down passengers along the line of route.
50. The Court therefore declares that the defendant is operating an omnibus service without an omnibus service licence in breach of Article 15 of the 1935 Law. We will hear the parties as to the exact nature of any relief sought.
Authorities
Motor Traffic (Jersey) Law 1935.
Road Traffic Act 1930.
Chapman -v- Kirke (1948) 2KB 450.
Victoria Motors (Scarborough) Limited -v- Wurzal (1951) 1 All ER 1016.
R -v- Cambridge city council, ex p. Lane (13th July,1998) Unreported Judgment of the Court of Appeal of England..
R (ex p. Oddy) -v- Bugbugs, Ltd (12th November, 2003) Unreported Judgment of the High court of England.
Town Police Clauses Act 1847.
Metropolitan Carriage Act 1869.
Transport Act 1985.
Bennion: Statutory Interpretation : pp.336 and 675.