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ASSISTANT COMMISSIONER TO METROPOLITAN POLICE EX PARTE MALCOLM LUBIN, R v. [1999] EWHC Admin 398 (5th May, 1999)
IN THE HIGH COURT OF JUSTICE CO/2600/98

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice
Strand
London WC2

Wednesday 5th May 1999

B e f o r e:

MR JUSTICE TURNER

- - - - - - -


REGINA

-v-

ASSISTANT COMMISSIONER TO METROPOLITAN POLICE

EX PARTE MALCOLM LUBIN

- - - - - -

Computer-Aided Transcript of Smith Bernal Reporting Limited,

180 Fleet Street, London EC4A 2HG

Telephone No: 071 421 4040 Fax No: 071 831 8838

(Official Shorthand Writers to the Court)

- - - - - -



MR MARC MAITLAND (instructed by Legal Department, London Cab Drivers Club, 19/21 Pancras Road, London NW1 2QB) appeared on behalf of the Applicant

MR JAMES LEWIS (instructed by DS Hamilton, Metropolitan Police Service, New Scotland Yard, DX 134 700 Victoria 7) appeared on behalf of the Respondent

- - - - - - -

J U D G M E N T

( As Approved by the Court )

Crown Copyright

- - - - - - -

Wednesday 5th May 1999

1. MR JUSTICE TURNER: This is a renewed application for permission to bring proceedings for judicial review of the decision of the Assistant Commissioner of Metropolitan Police, the Public Carriage Office, made, as it is asserted, on 30th April, to revoke the applicant's Hackney Carriage driver's licence without affording the applicant the benefit of a personal interview and after confusing the applicant and his legal advisers by sending conflicting letters signed by different people.


2. In the amended grounds there are a total of fourteen grounds and six by way of amendment.


3. The facts underlying this application are that by letter dated 25th March 1998, the officer in charge of the Public Carriage Office wrote to the applicant indicating that he had had to review the whole of the applicant's career as a licenced cab driver in the light of five further complaints which had been made against him since he had previously been suspended in 1995. The letter enclosed the complaints' schedule and the applicant's career chronology. The letter then continued (page 9 of the bundle):


"In exercise therefore of the powers conferred on him by paragraph 30(1) of the London Cab Order 1934, as amended, he proposes to consider whether to suspend or revoke your cab driver's licence. In so doing, the Licensing Authority must regard the conviction as fact and he is not able to reassess the value of the evidence on which it was based. Before reaching his decision, the Licensing Authority is prepared to take into account your written representations outlining any other facts or circumstances you consider to be relevant to the future position of your cab driver's licence.



Any such representations must be forwarded to this Office so as to arrive within 14 days of the date of this letter, otherwise the decision will be taken without further delay."

4. One of the points which has been raised on the application is the reference in this and a subsequent letter to the position of the Licensing Authority regarding conviction as fact. That, even on the face of this letter, was plainly in error, because the matters which lent a dynamic to the applicant's position as a licenced cab driver was not any conviction but was stated to be, as in the first paragraph of the letter, "five further complaints made since the suspension of the licence in 1995".


5. The fourteen days provided for representations came and went, but no representations were made. As a matter of history, see the affidavit of Alexander Kennedy of the Public Carriage Office sworn on 16th December 1998. He deposed:


"As a result of the complaints the Licensing Authority wrote..."

(paragraph 7, p.32 of the bundle)

and I read no further save that: in that letter it was erroneously stated that the Licensing Authority would have regard to the conviction of the applicant. In fact the applicant authority did not have regard to a specific conviction, but considered the applicant's career as a whole, especially with regard to the five complaints since the last suspension. Having regard to the terms of the letter and the schedule, that appears to me to be a reasonable gloss to put upon the letter.

6. By paragraph 8 of the affidavit:


"The Applicant failed to respond within 14 days and on 20 April the Licensing Authority revoked the Applicant's licence. That revocation was communicated by letter sent by first-class post and recorded delivery on 28 April and also setting out the Applicant's rights of reconsideration and appeal to be exercised within 28 days."

7. That letter is to be found at pages 17 and 18 of the bundle, which merely recites matters that are already in evidence. In paragraph 2 of the letter:


"In accordance with paragraph 30(2) of the London Cab Order, you are required to surrender your badge, copy and original cab driver's licence within 5 days of receipt of this letter, or advise me of your intentions to take the matter further. I note that this office is already in possession of your cab driver's licence and you should therefore surrender your licence cover note.



A copy of section 17 of the Transport Act 1985 [was] enclosed ... and explains what you can do if you wish to appeal. Simply, you may



- invite the Assistant Commissioner to reconsider the decision. This will take the form of a hearing when you will be invited to put your case personally,



or - appeal to the Horseferry Road Magistrates' Court.



Two essential points to remember are that any request for reconsideration by the Licensing Authority must be made in writing and whichever option you pursue it must be done within 28 days of the date of this letter.



If you choose reconsideration by the Licensing Authority your right of appeal to Horseferry Road Magistrates' Court is protected until the outcome of the reconsideration is notified to you.



Should you have any questions about this letter please contact the Executive Officer."

8. That letter was posted on 28th April.


9. It so happened that on that very day the London Cab Drivers Club Limited, acting as the professional representatives of the applicant, wrote in detail in relation to the matters which had been raised in the letter of 25th March. The letter concluded:


"Our Member is due to attend at your offices to renew his cab driver's licence on Friday 1 May and we trust, in all the circumstances, that you will not be offering any objections to such renewal."

10. To that letter the Public Carriage Office responded, again dealing mistakenly with the conviction points. Then, in the final paragraph on page 19 of the bundle, dealing with Mr Lubin's case, it was said:


"...failing any response being received within 14 days of the date of our letter..., the papers were referred to the Licensing Authority who decided to revoke your client's cab driver's licence..."

and then reciting that notification was sent on 28th April enclosing a copy. In the final paragraph of the letter:

"As to the renewal of your client's cab driver's licence, subject to confirmation that an appeal is to be made then this will be done. However, you will appreciate that if 'revocation of licence' is confirmed after the appeals process is exhausted then he will not have his licence fee refunded. You may care to consider whether the issue of further cover notes, pending the outcome of any appeal, may be in the best interests of your client."

11. Then by way of postscript:


"NB: I am advised that Mr Lubin attended this office today when a further covernote was issued to allow him to continue working."

12. That was undoubtedly what happened.


13. What is submitted is that Mr Lubin was left in a state of uncertainty as to what was his true position and so it was that he took no action. In paragraph 4 of his first affidavit, sworn on 9th July 1998, he describes how on 1st May when he got home that evening he found...


"...a further letter, dated 28 April, had arrived from the PCO informing me that the Licensing Authority had 'revoked' my Licence. ... I immediately contacted the Legal Department of my Trade Association.



5. On the morning of 1 May 1998 (not knowing about the above-mentioned letter dated 28 April) I attended the PCO whereupon my licence was renewed and I duly informed the Legal Department of my Trade Association. Everyone naturally assumed that the FAX sent on 28 April 1998 by my Trade Association to the PCO had had the desired effect and the decision to consider suspension or revocation of my Licence had culminated in my not losing my Licence at all. Nothing further was done on my behalf and I returned to work."

14. I am bound to say, I have the greatest possible difficulty in comprehending the basis upon which Mr Lubin thought as is set out in paragraph 5 of that affidavit, let alone that an organisation which appears to represent, on a professional basis, London cab drivers could have come to any such conclusion. The letter of 30th April made plain that the avenue which Mr Lubin had to follow was by way of appeal, either to the Assistant Commissioner or to the magistrates' court, or to the Assistant Commissioner and the magistrates' court. The postscript did nothing and can have done nothing to lull either the applicant or his Trade Association into a state of suspended thought that had the effect of making the substance of the letter utterly meaningless.


15. The result is that no appeal was brought within 28 days. The position is clear: under the provisions of the Transport Act 1985, section 17(2), it is provided:


"An applicant for a licence may, before the expiry of the prescribed period---



(a) require the authority to reconsider his decision;

(b) or appeal to the appropriate court."

16. The prescribed period, by virtue of the London Taxis Licensing Appeals Regulations 1986, is 28 days.


17. It is also expressly provided by subsection (9) of the same section:


"Where the Licensing Authority suspends or revokes a licence, or confirms a decision to do so, he may, if the holder of the licence so requests, direct that his decision shall not have effect until the expiry of the prescribed period."

18. I see nothing inconsistent between the provisions of that Act and what was done on 1st May 1998. The result is that procedurally the applicant is out of time to appeal either to the authority or to the magistrates' court and the fact that he is out of time to pursue that avenue of appeal makes obvious difficulties for him procedurally in terms of this application for judicial review.


19. Counsel for the proposed respondent cited a short section of the speech of Lord Bridge of Harwich in R v Home Secretary, Ex parte Al-Mehdawi [1990] 1 AC 876, where at 898 he said:


"These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and when the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument."

20. In the present case, as it seems to me, the applicant in this case has lost the opportunity to have his case heard through his own default in making an assumption, completely unjustified by any facts known to him or communicated to him on behalf of the proposed respondent, that simply because he had been issued with a further cover note on 1st May the decision of 20th April, communicated to him by letter dated 28th April, was no longer of any effect. That being the case, and since under the relevant legislation the applicant had a remedy which he could have pursued through the statutory procedure which he has allowed to fall by virtue of his own inactivity, in the exercise of its discretion, even if there were merits of substance underlying this application, the court would not be minded to grant substantive relief.


21. Mr Maitland, on behalf of the applicant, sought to develop some of his arguments in relation to the substance of the application. I have to say that I found difficulty in following those submissions. He drew attention to the provisions of the Public Carriage Guidelines as at February 1990 (see pages 85 and 86 of the bundle). Those guidelines, by the terms of the document...


"...set out the grounds for refusal and revocation/suspension of a cab driver's licence by the Assistant Commissioner of Territorial Operations."

22. Then under three cross-headings the document deals with "convictions general", "cab and traffic offences" and "complaints". Mr Maitland's argument was, I think - by which I mean as I understand it - that having regard to the provisions in relation to the position of a cab driver who is convicted of any cab or traffic offence being entitled to receive a first warning letter or a second warning letter, according to the circumstances set out in the guidelines document, there having been no convictions in the present case and no letters, it was unfair that the authority should have considered, let alone revoked, his cab driver's licence.


23. Under the cross-heading "complaints" it is provided:


"All complaints against cab drivers are to be fully investigated by the Cab Enforcement Section or the Public Carriage Office. Where a prosecution is not possible, the warning issued by the Cab Enforcement Section or at the Public Carriage Office is to be noted on the cab driver's file. Some cab drivers attract frequent complaints but escape prosecution because the complainant is not willing or unable to attend court. Any cab driver whose record of complaints or convictions suggests that he habitually fails to comply with the cab regulations and who appears to disregard the advice tendered by either the Cab Enforcement Section or PCO should be considered for possible suspension or even revocation of his cab driver's licence. In such cases the driver must be informed of the suspension of the complaints in writing and be offered the opportunity to submit his own written version of events before any decision is taken."

24. I just deal with one small point which arises out of the last sentence, which relates back to the letter of 25th March in which the applicant was invited to submit his own written response. It was said in argument that there was no power to require that to be done. That was plainly a submission made in ignorance of the provisions of the last sentence of that document.


25. But the position in regard to complaints is plainly very different from that which may exist in relation to convictions. Neither the Cab Enforcement Section nor the Public Carriage Office need have notice of the circumstances of a conviction, whether the fact of the conviction or the facts underlying the conviction. So it is that it is entirely appropriate, in my judgment, that the cab driver, following a conviction or further conviction (as may be appropriate), should receive his first and (as appropriate) his second warning letter. Not so in the case of complaints, because in each case of complaint there will already have been a meeting or hearing before a representative of the Public Carriage Office or the Cab Enforcement Section face to face with the cab driver, when his position will have been explained to him and he will have been warned as to his future conduct. In such a case, it is unnecessary that there should be any letter or letters sent as a condition precedent to the Cab Enforcement Section or the Public Carriage Office suspending or revoking a cab driver's licence.


26. The submissions heard today have not thrown any question mark over the validity of the guidelines issued by the Public Carriage Office as at February 1990. It follows, in my judgment, that not only does this application fail procedurally, but also as to its substantive merits. This renewed application must be refused.

27. MR LEWIS: My Lord, there is a sequential application for costs.

MR JUSTICE TURNER: Mr Maitland?

28. MR MAITLAND: My Lord, I cannot resist that.

http://www.bailii.org/ew/cases/EWHC/Admin/1999/398.html

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin


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