PROBLEM WORSE THAN WE THOUGHT
Is it time TfL/ LTPH got a new legal team?
Transport for London has suffered a double set back in two recent appeals in front of Westminster Magistrates’ Court. It lost both appeals against operators KV Cars and Couriers Ltd and Diamond Chauffeurs Ltd. James Rankin, a specialist licensing barrister from Francis Taylor Building successfully appealed against two decisions made by TfL. In all, the court awarded costs of £26,000 against TfL. The cases are significant for a number of reasons.
KV Cars: 1/10/12
Tfl has for some time been attempting to introduce a new policy in respect of the licensing of Private Hire Vehicle (“PHV”) operators. The new policy has been over two years in the making, and at the time of writing is still not in force. One of the cornerstones of the policy is an insistence by TfL that all PHV operators who operate from nightclub premises have to have a booking station INSIDE the premises. The authority has long argued that this is what the law requires. TfL believes that the words of the statute (“at licensed premises”) should be read as “inside licensed premises”).
The appellant argued that TfL had attempted to introduce the new policy in advance of its formal adoption by TfL by issuing a notice (19/09) requiring controllers of PHvs to stand inside the licensed premises. The Licensed Private Hire Car Association (LPHCA) protested vigorously to the notice and the new policy claiming that it was unnecessarily restrictive and that it compromised public safety. Nevertheless, before the adoption of the policy, TfL began implementing the policy as if it was in force.
In KV Cars TfL had sat on an application to vary the company’s operator’s licence so as to include Aquum bar in Wandsworth. The premises had been inspected; the fee paid; the booking procedures passed and given the go ahead. Despite numerous assurances the varied licence was not released because TfL was awaiting the adoption of the new policy (which KVC could comply with in any event).TfL revoked the company’s licence in its entirety when its enforcement officers discovered KV C’s employee acting as a controller at the premises (in this case OUTSIDE the premises!) in February 2012. The revocation was based also upon irregularities in KVC’s record keeping. The company employed 80-100 drivers. The revocation would have meant the death of the company.
The appellant argued estoppel; that the breaches in record keeping were technical and that the revocation of the licence was disproportionate. It was also argued that Anwar (a case which says that the personal circumstances of a driver cannot be taken into account when determining fitness to hold a licence) did not apply to a company. District Judge Roscoe agreed, and said that the revocation was disproportionate. She thought that a seven day suspension was more appropriate. She allowed the appeal and awarded costs of £12,500. TfL has asked her to state a case for the opinion of the High Court.
Diamond Chauffeurs Ltd: 8/11/12
The company (“DC”) operated from 14 nightclub premises. All of the other premises from which it operated had a lobby door inside which the controller could stand. At premises known as Abacus in The City of London there was no lobby door. Instead there was a recessed area and walkway which led to the pavement. The recessed area was owned by the club. It was separated from the pavement by ropes. It was behind this roped off area and in the recessed area that the controller stood. TfL had varied DC’s licence on another occasion (September 2012)so as to remove Abacus from it. The variation had been “with immediate effect”. DC successfully applied to the High Court for an injunction suspending TfL’s decision whilst they pursued an appeal. On appeal in September 2011 they were successful and costs were awarded against TfL (17/1/12).
Nevertheless, a month to the day later TfL again visited Abacus and witnessed DC’s controller accepting bookings “outside” the premises (in the recessed area) contrary to law and their “policy”. The officers also witnessed touting of Abacus’s customers by DC’s controller who asked persons if they would like a licensed car. Abacus was removed from the licence again (although this time not with immediate effect). DC appealed. Abacus represented 40% of its business; 40 drivers were employed at Abacus; DC undertook 400 journeys per week on behalf of the club. Steve Wright MBE (head of the LPHCA) was called as a witness to say that in his 40 years experience of the private hire industry it was safer to take bookings outside rather than inside premises.
The appellant successfully argued that if it was policy then it was not law; “guidelines not tramlines”; that TfL was mistaken in its assertion that the law required bookings to be taken inside premises; that on any commonsense reading of the law and applying it to the facts DC’s controller was operating AT Abacus; that even if the appellant was wrong in that, it was disproportionate to remove Abacus from the licence. It was conceded that touting had taken place. Steve Wright who had been responsible for the 1994 “no touting”law explained that it was not designed to catch touting of the sort witnessed by TfL. Rather, it was aimed at the aggressive street touts acting on behalf of unlicensed and uninsured vehicles.
District Judge Fanning agreed. He found as a fact that DC was operating at the premises, and that this was just such a case when departure from the policy was permissible. Public safety was not compromised by bookings being taken in the recessed area. He agreed with DJ Roscoe that Anwar was restricted to its facts and did not apply to companies. The appeal was allowed and costs of £13,600 were awarded.
James Rankin appeared for KV Cars and Diamond Chauffeurs Ltd.
Source: Francis Taylor Building, Inner Temple.
Obligations of London Operators
PRIVATE HIRE VEHICLES (LONDON) ACT 1998
The holder of a London PHV operator’s licence shall not in London accept a private hire booking other than AT an operating centre specified in his licence
(Bold and capitalised text is for emphasis only)
Apparently the Act says AT, not inside. The term inside only used in TfL notices.
Judge Fanning, ruling on the matter of touting, said that he must address the issue of Notices issued by TfL and whether or not they could be legally enforced: “Whilst TfL is entitled to draft and publish (their Notices) and to use them as a guide for the discharge if its functions under the (1998) Act, it is no more than that; a guide.
“Secondly, Mrs Chapman, TPH deputy director, made it clear in her evidence that the policy permits discretion, to be exercised on a case-by-case basis, as to the application of the policy. She confirmed two venues at which there have been operating centres permitted out of doors.
John Mason made this statement after the case:
"We are disappointed that the court has accepted Diamond Chauffeur’s appeal against the removal of Abacus from its operating licence. Abacus was removed from Diamond Chauffeur’s licence to operate because we believe that it was operating outside of the requirements of their licence".
"We will continue to take action against any operator or member of staff found touting or taking bookings outside the licensed premises. All licensed operators and their staff have compliance and public safety obligations, which we expect them to discharge responsibly. This includes a responsibility on operators to ensure their staff do not tout for business, which the court recognised in its ruling.”