Jersey Unreported Judgments

Taxi - Further hearing relating to the appeal against the conditions attached to a PSV Licence granted by the Minister of Infrastructure.

[2017]JRC023

Royal Court

(Samedi)

3 February 2017

Before     :		T. J. Le Cocq, Esq., Deputy Bailiff, sitting alone.
Between	Erin Robyn Bisson		Appellant
And	Minister for Infrastructure		Respondent

The Appellant appeared on her own behalf.

Advocate S. A. Meiklejohn for the Respondent.

judgment

the deputy bailiff:

1.        On the 23^rd December, 2016, Erin Robyn Bisson (-�the applicant-�) lodged a notice of appeal against the conditions attached to a Public Service Vehicle Licence (-�the licence-�) granted to her by the Minister for Infrastructure (-�the respondent-�).  There are a number of iterations of licences granted to her the earliest being dated for these purposes 16^th June, 2015, and the most recent 9^th December, 2016. 

2.        The applicant is purporting to exercise the rights afforded to her by Article 9(7) of the Motor Traffic (Jersey) Law 1935 (-�the Law-�) which is in the following terms:-

-�A person may appeal to the Royal Court against a decision made by the Minister -

(a)       not to grant the person a public service vehicle licence on the grounds that the person is not a fit and proper person to operate the public service to be provided by the vehicle; or

(b)      as to a condition subject to which a public service vehicle licence has been granted to the person.-�

3.        The applicant was relying on sub-paragraph (b) above in that her appeal related to the conditions placed upon the licence granted to her. 

4.        On receipt of the notice of appeal, the Minister raised a preliminary issue saying that the appeal was out of time. 

5.        Article 9(8) of the Law provides:-

-�Notice of appeal must be lodged with the Royal Court within 29 days of notice of the refusal being given or of the grant of the licence, as the case may be, or within such further period as the Court may allow if it considers desirable to do so in the interests of justice.-�

6.        The Minister contends that the specific condition that the applicant is complaining about, condition 12 on the licence, has in effect been among the conditions on her licence since a licence was first granted to her.  Given that no appeal has been lodged until 23^rd December, 2016, she is clearly out of time. 

7.        Condition 12 on the licence (-�the condition-�) is to be found (although not always bearing that number) in similar terms in each iteration of the licence provided by the Minister to the applicant.  In the iteration of the licence issued on 9^th December, 2016, the condition is in the following terms:-

-�Licence holder to work from recognised taxi-cab company, co-operative or approved booking entity named on the application and shown overleaf and seek permission from DVS before moving to a different company, co-operative or booking entity.-�

8.        In the licence issued on 9^th February, 2016, such a condition appears in identical terms save for the absence of the words -�or approved booking entity-� and in an earlier licence issued on 16^th June, 2015, a condition in similar terms is found again but this time referring to a taxi-cab company only with no mention of a co-operative or booking entity. 

9.        Accordingly it is correct to say that a condition largely in the same terms as the condition has appeared in all of the iterations of the licence granted to the applicant but has not been in precisely the same terms in each. 

10.      There is a further difference between the licence issued to the applicant dated 9^th December, 2016, and those previously issued.  In the earlier licences the applicant was given permission to use the motor vehicle specified therein as a -�restricted taxi-cab-�.  This means that the cab could not be used on the taxi rank and the majority of its business would have to be on a pre-booked basis.  However in the licence dated 9^th December, 2016, the applicant is given permission to use a specified motor vehicle as a -�purple plate taxi-cab-�.  Purple plate holders are private hire/restricted taxi-cab drivers who may use the rank.  This therefore appears to be a significant difference from the point of view of the applicant because, so I am informed, as a result of that designation, which is based on the wheelchair accessibility of her vehicle and the training she has undertaken, she is able to use the taxi rank which she would not otherwise be entitled to do if she did not have the purple plate. 

11.      It is the Minister's case, however, that the applicant is effectively appealing against a condition that has applied since June 2015 and that she is accordingly out of time for doing so.  The Minister further argues that because of the length of this delay, and the poor prospects of success of any appeal, the Court should not determine it to be in the interest of justice to allow the appeal to continue. 

12.      Accordingly the first issue for me to consider is whether the applicant is in fact out of time in lodging her appeal.  If I take the view that she is not out of time then the appeal may continue as of right and I will then give directions as to the way it should be dealt with.  If, however, I determine that she is out of time then I would need to consider whether or not I should nonetheless allow the appeal to proceed on the basis that it is -�in the interests of justice-� to do so. 

13.      It is, it should be said, common ground between the Minister and the applicant that in the event that the effective date of the licence is the 9^th December, 2016, then the applicant's appeal is within time and she is entitled to progress it. 

14.      In essence the Minister's argument may be characterised as follows:-

(i)        The condition is essentially in the same terms as has been on the applicant's licence since a licence was granted in June 2015;

(ii)       The various iterations of the licence documents reflect changes in the particulars of the applicant and her employment and are merely administrative exercises to reflect those changes of details and do not amount to the re-grant of a licence which, save for a period of suspension, has been continuing;

(iii)      It would be absurd to hold that each administrative change amounted to a re-grant of an entire licence thus bringing the applicant, who might simply have notified a change of employer or other detail, within the period for appealing against conditions which have remained on the licence for a long time.  That cannot have been the intention of the legislature;

(iv)      In reality, therefore, the Court should find that the first iteration of the licence containing the condition is the date from which the applicant's rights of appeal should run and accordingly the applicant is out of time by a very considerable margin;

(v)       That in considering whether to allow the appeal to continue (in the interests of justice) the Court should apply the same principles as it applies when considering whether to enlarge a time within which an appeal might be brought against a decision of a lower court to the Court of Appeal;

(vi)      Applying those principles it is clear that there is a very extensive and unjustified delay, the prospects of success are not such as to justify the Court's exercise of its powers and there would be a prejudice caused to the Minister's position if the Court were nonetheless to agree that the appeal should proceed. 

15.      The Applicant, for her part, says that:

(i)        The effective date of the licence should be taken as 9^th December, 2016, as that is the date on which the condition was set out in its final terms and is the date on which the nature of the licence granted to the applicant moved from being a licence to operate a white plate restricted taxi-cab to one to operate a purple plate restricted/private hire taxi-cab.  A white plate taxi has no access to the taxi rank whereas a purple plate licence affords its holder, because they have a wheelchair accessible vehicle and have undertaken training in wheelchair access, the right to use the taxi rank.  This is a material change to the licence and is, in effect, the issuing of a new licence. 

(ii)       Accordingly the appeal is within time and no question of the interests of justice needs to be considered. 

(iii)      If, however, the appeal is out of time then nonetheless the applicant should be allowed to bring it for a number of reasons including the fact that she will be severely prejudiced if this is not allowed. 

(iv)      This is the first time that she has needed to appeal against this condition and she has tried to obtain employment unsuccessfully through a number of taxi-cab businesses.  She has only had an offer of employment or affiliation with one of them and that on conditions relating to the withdrawal of certain legal proceedings and actions in the Employment and Discrimination Tribunal that the applicant has against third parties and this requirement is unacceptable to her.  She is completely, so she argues, at the mercy of taxi-cab companies as to her ability to continue her livelihood and this should be the subject of an appeal. 

16.      It might also be noted that Article 9(5) of the Law is in the following terms:

-�Unless sooner revoked a public service vehicle licence continues in force for one year from the date of its grant but may be extended by the inspector by up to 72 hours if the inspector is satisfied that there is an adequate reason for doing so.-�

17.      This provision is reflected by the express terms of the licences granted by the Minister.  For example, in the instant case, the licence dated 16^th June, 2015, is expressed as continuing until 15^th June, 2016, that dated 9^th February, 2016, is expressed as continuing until 8^th February, 2017. 

18.      This suggests that the licence lasts for one year from the date of its grant and that therefore any further licence is not an extension of the original licence but is in effect a further grant.  It may very well be the case that licences are re-granted in this way almost automatically if there had been no change of circumstances but, as a matter of the wording of Article 9(5), it seems to me to suggest that a licence is being granted each time it is renewed. 

19.      Furthermore, if it were the case that the different iterations of the licence had done nothing more than reflect entirely administrative changes (such as a change of address) then there would be more force to the argument that the licence should have been taken as granted on the date when it took effect, namely in this case in June of 2015.  However, it seems to me that the alterations in the licence in this case are not solely of an administrative nature.  Although no evidence was put before me, in the course of submissions from both the Minister and the applicant it was clear that the grant of a purple plate reflects that the applicant has undergone certain training and the vehicle is acceptable for that purpose.  This must, it seems to me, involve some form of assessment and if the Minister had not been satisfied as to either the qualities of the vehicle or the skills of the applicant a purple plate would not have been granted.  The grant of a purple plate materially affects the way in which the applicant can conduct her business, namely by the use of the taxi rank, and it seems to me that this also operates as a natural break in the continuity of the licence and it might reasonably be considered to be the grant of a new licence in enhanced terms.  Similarly although not material to the applicant's appeal, the condition is not in precisely the same terms and the licence granted on 9^th December, 2016, does amount to a variation of that condition albeit, as I have said, to be more permissive rather than restrictive. 

20.      I am informed that the condition is in fact a standard condition on all Public Service Vehicle Licences.  It certainly appears to be a condition that prima facie is of a type that the Minister can impose in that, in Article 9(2) et seq of the Law it states:

-�(2) The Minister may grant a Public Service Vehicle Licence unconditionally or subject to conditions, which shall be set out in the licence. 

(3) The condition shall be such, as in the Minister's opinion, are necessary or desirable to ensure the proper operation of the vehicle and the public service to be provided by the vehicle. 

(4) Without prejudice to the generality of paragraph (3), the conditions may relate to: 

...

(c) the manner in which and the times during which the public service to be provided by the vehicle is to be operated.-�

However the Law provides for rights of appeal against any condition and it does not seem to me to be material whether the condition is standard, that is, applied to all licences, or peculiar to the applicant.  No such distinction is made in the Law. 

21.      In my judgment, in the circumstances of this case, the iteration of the Licence dated 9^th December, 2016, is sufficiently different in material terms from the previous iteration of the licence that it should be considered as a new licence.  Indeed on its face it purports to say although it is dated 9^th December, 2016, it had effect from 9^th February, 2016.  This seems to me to be somewhat strange given, as I was informed in submissions, the status of purple taxi-cab did not exist in February 2016 and a licence to operate as a purple taxi-cab simply could not have existed from that date.  In my view, however, the effective date is 9^th December, 2016, and accordingly the applicant's appeal is within time. 

22.      Having decided the first question in the way that I have it is unnecessary for me to go on and consider whether or not I would have been prepared to allow an appeal out of time to continue on the grounds that it is in the interests of justice to do so. 

23.      The principles that I was asked to apply are those applied by courts for considering an enlargement of time within which an appeal might be brought in legal proceedings.  Because of my decision set out above and indeed because the matter was not argued before me, I do not make any finding that those principles are the appropriate ones in the circumstances of an administrative appeal. 

24.      In considering those principles, however, a number of cases were put before me, I do not think that I need to go further than to read part of the note in the case of B v N [2002] JLR Note 29 in which the Court of Appeal held:

-�When exercising its discretion to allow the enlargement of time for appeal under the Court of Appeal (Civil) (Jersey) Rules 1964, R16, it was appropriate for the Court to take into account the extent of the delay, any explanation for it, the prospects of the success of the appeal and the risk of prejudice to the other parties to the proceedings.-�

25.      If those principles apply and if my primary decision, set out above, is wrong and in fact the effective date for the licence is June 2015 then the delay has been, of course, very long and usually a delay of that length of itself would prevent an appeal from continuing. 

26.      The explanation for the delay would require some further consideration.  In essence the applicant's submission is that up until recently she had been able to live with that condition and operate under its strictures.  She did not, therefore, need to consider an appeal against it.  She now, so she submits, is incapable of carrying out her livelihood with the condition in place because she is unable to secure employment or affiliation as required and therefore cannot operate as a taxi driver.  Because the condition now is highly prejudicial to her she only now wishes to challenge it.  For the Minister, it is observed, that in any event the applicant was aware of a difficulty with her licence and the operation of the condition for some months and had not acted as expeditiously as she might.  In my view conditions that impinge upon the operation of a livelihood can be perfectly acceptable when they are first imposed but become in time unworkable.  It seems to me that there should be a mechanism in place to review those conditions if the time comes when the person subject to them is simply unable to achieve the purpose for which the licence was granted, namely the operation of a Public Service Vehicle, subject to those conditions.  Such a circumstance does not, of course, of itself render the condition unreasonable and it may very well be entirely appropriate for such a condition to remain in place, but it does seem to me to be appropriate that the person subject to such a condition has at least an opportunity to challenge it. 

27.      Some argument was addressed to me as to the prospects of success of the appeal.  I do not think that I should make any observation about that given the primary decision that I have made above and I do not do so. 

28.      Lastly, on the question of prejudice to other parties, it does not seem to me that there is any substantial prejudice to the Minister in permitting an enlargement of time in such case as this.  The condition is either reasonable, proportional, and appropriate or it is not and if not the Minister would wish to have it removed and, if so, would presumably wish for clarification on that point. 

29.      Had I been called upon to determine whether in my view in the interests of justice this appeal should be allowed to continue although out of time, then I would have permitted the appeal to continue in any event. 

30.      In the circumstances, however, the applicant's appeal may continue as of right. 

31.      Counsel for the Minister and the applicant very helpfully considered potential directions that I might give in the event of my allowing the applicant to continue with her appeal or adjudging that she was entitled to do so as of right.  I am pleased to endorse those directions which will be issued as part of the Act of Court that is prepared as a result of this decision. 

32.      In my view, any questions of costs, should any arise, should be left to the trial court dealing with the appeal. 

Authorities

Motor Traffic (Jersey) Law 1935.

B v N [2002] JLR Note 29.