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PostPosted: Tue Apr 03, 2012 9:18 am 
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Gateshead Council v Henderson [2012] EWHC 807 (Admin) (13 February 2012)


This is an appeal by way of a case stated against a decision of the Gateshead justices, whereby they dismissed an information against the respondent, Paul Henderson, that he, on 2 October 2010, was plying for hire with a motor vehicle registration number NA 57 VRT within the borough of Gateshead, without having obtained a licence from the appropriate authority, contrary to section 45 of the Town and Police Clauses Act 1847.

The statement of case records the evidence heard by the justices. Two licensing enforcement officers with Gateshead Council, Mr Lines and Mr Harris, were on duty on 22 October 2010 checking licensed premises and takeaway restaurants on Durham Road. Upon leaving a takeaway premise Mr Lines became aware of a Citroen Xsara Picasso motor vehicle outside the Travellers Rest public house. He noted it was a Gateshead licensed private hire vehicle. Following a discussion with Mr Harris, a decision was made to carry out a test purchase.

Mr Lines's evidence was that he approached the driver's side of the vehicle but he waited until a passenger in the vehicle had alighted. He stated that he then knocked on the driver's window and in response the respondent wound his window down. Mr Lines then asked if the driver was booked and was told by the respondent "No". At this point, Mr Lines called Mr Harris over and got into the front passenger seat. Mr Harris sat in the rear of the vehicle behind the driver. Mr Lines asked the respondent to take them to the Hilton Hotel. The respondent reversed the vehicle off the path onto the main road and put on the taxi meter. He then made contact by way of his vehicle radio, stating "Just picked up from here", before transporting the officers to the Hilton Hotel as requested. Mr Lines stated that when they arrived at the Hilton Hotel at 9:20pm he paid the fare displayed on the meter and was issued with a receipt when he requested one.

During cross-examination Mr Lines accepted that the vehicle was clearly not a Hackney carriage, nor was the driver trying to lead anyone to believe that it was. He also accepted that the vehicle was stationary and not parked up in a taxi rank. Mr Harris gave evidence. He noted that a passenger had been in the vehicle and Mr Lines knocked on the driver's window after the lady had got out of the vehicle. He was certain Mr Lines allowed her to alight before getting into the vehicle as she was sitting in the front passenger seat, which is the same seat that Mr Lines occupied for the journey. Mr Lines spoke to the driver before beckoning Mr Harris over and Mr Harris sat in the rear of the vehicle.

In a section 9 statement Mr Martin stated that he is a private hire operator for Team Valley Taxis. He commented that "private hire drivers can only collect passengers once a booking has been received by the operator. All bookings must be pre-booked". From his records for 2 October 2010 there was no booking shown for the journey in question.

The respondent gave evidence that he held a Hackney carriage licence with Gateshead Council and had done so since 2003. In October 2010 he obtained a private hire licence as well. Although ordinarily he drove a Hackney carriage minibus, on 22 October he was driving a private hire vehicle belonging to Team Valley Taxis, as his minibus was being repaired. At 9:15 pm he picked up Kathleen Hunter to take her to the Traveller's Rest public house. He knew her as a regular fare, he was aware of her disability and the fact that it takes time for her to get out of the vehicle. Upon arrival at the public house Mrs Hunter handed him a £5 note to cover her fare of £2.80. This meant she required change. She was sitting in the rear seat behind the passenger seat. Whilst completing this transaction an unknown male knocked on his driver's window, which he then wound down. The male asked the respondent if he could be taken to the Hilton Hotel. The respondent asked the male to give him a moment and the male repeated his request. The respondent then wound his window back up and the male asked again. At this point the respondent said that he would. He explained that the unknown male got into the front passenger seat as Mrs Hunter left the rear seat. The unknown male shouted over to another male person who came and sat in the rear seat behind the driver's seat.

In cross-examination the respondent stated that he should not have picked up these two persons and that he knew he was in a private hire vehicle in the Gateshead area. He stated that he was stationary when he was approached and he radioed the operator to say that he was picking them up. He said he was not plying for hire. He had a customer in the car and if Mr Lines had not come to his car he would not have picked them up.

Finally, the passenger, Mrs Hunter, gave evidence. She confirmed that she had been sitting in the rear of the vehicle and that she always sits there. She said that as she was handing over payment for the fare and waiting for her change she became aware of a male banging on the driver's door window. She was adamant that the male tried to get into the taxi when she was still in the vehicle and that he opened the front door.

At paragraph 18 of the case stated, the justices say:

"Having heard all the evidence we made the following findings of fact in relation to the contentious issues. We found that Mrs Hunter had not alighted from the vehicle prior to Mr Lines knocking on the window and making his repeated requests. Furthermore Mrs Hunter was still in the rear of the vehicle completing her transaction when Mr Lines physically entered the vehicle and made a request to be taken to the Hilton Hotel.

In our view we could not be sure that the respondent had either expressly or by inference, invited or encouraged a member of the public to use his vehicle. Therefore we dismissed the allegation of plying for hire…"

The justices state that after receipt of the case stated, they had their attention drawn to two authorities, Ogwr Borough Council v Baker [1989] COD 489 and Nottingham City Council v Woodings [1994] RTR 72. At paragraph 23 of the case stated the justices saying having considered those cases:

"In relation to the interpretation of the word 'plying' we have drawn a distinction between a driver agreeing to complete an unsolicited request, as in the instant case, and a driver who solicits the trade directly or indirectly by parking up or lingering for longer than is necessary in the expectation or hope of further custom. This was clearly not the situation in this case, where the driver was still in the process of concluding a legitimate fare when engaged by the council officers."
The question posed by the justices for consideration of this court is:

"Were we correct in law in acquitting the respondent on the basis of the definition of 'plying' as applied by us in this case?"

Taxis are divided into 2 distinct types, Hackney carriages and private hire vehicles. A Hackney carriage can be hailed from the street or it can park on a rank and wait for passengers to approach it; a private hire vehicle cannot. A private hire vehicle must be pre-booked through a licensed operator prior to the commencement of a journey. A Hackney carriage can only be driven by a person holding a Hackney carriage licence; likewise a private hire vehicle can only be driven by a person holding a private hire vehicle licence. The vehicle must act in accordance with its respective licence. (See Yates v Gates [1971] All ER 754 and Benson v Boyce [1997] EWHC Admin 35).

The vehicle in question was a private hire vehicle and the journey was not pre-booked. Section 45 of the Town and Police Clauses Act 1847 provides that it is an offence for a person to stand or ply for hire without a Hackney carriage licence. Accordingly, it is an offence for any person to ply for hire with any carriage which in effect is being used as a Hackney carriage without previously having obtained the requisite licence for that purpose.

Ms Smith, for the appellant, makes two submissions. First at paragraph 53 of her skeleton argument she submits that:

"The bench failed to take into consideration the factors relating to the alleged offence and paid too much regard to matters that were irrelevant."
Second, in her oral submissions today she submitted that the bench erred in their construction of the words "plying for hire" in section 45 of the 1847 Act because the driver of a private hire car commits an offence if he agrees to carry a passenger who has not pre-booked the vehicle. I shall deal with these submissions in turn.

As for the first submission, Ms Smith relies on the cases of Ogwr Borough Council v Baker and Nottingham City Council v Woodings. The case of Ogwr Borough Council v Baker concerned a line of Hackney carriages and private hire vehicles parked outside a nightclub. The Hackney carriages were plying for hire by persons emerging from the nightclub. Also in the street was a hotdog van. It was parked about ten yards away from the nightclub and the respondent's private hire vehicle was parked near to the hotdog van. A couple emerged from the nightclub, walked past some Hackney carriages and went up to the respondent's vehicle. It bore on its windscreen a sticker saying "Always", which the justices found was the name of the firm that employed the respondent. It made available private hire vehicles. The couple approached the driver and asked him whether he was for them and he then communicated with his controller for the purpose of ascertaining whether the couple had indeed booked a private hire vehicle from his firm. It was established they had although the respondent had not been sent there by his firm for the purpose of fulfilling that booking. The justices found that the respondent sometimes parked in the position where he was when accosted by the couple for the purpose of using, as they put it, the facilities of the hotdog van, but as the police constable observed the respondent did not get out of his vehicle for that purpose on this occasion. The officer approached the vehicle and asked the respondent the names and addresses of his passengers. He did not know either and confirmed that this was not a pre-arranged pick up.

Leggatt J identified the question which the judges had to ask themselves as being:

"Whether by parking the vehicle where he did the respondent was in the circumstances impliedly soliciting custom -- that is, exhibiting the vehicle to the public as one which might be hired."

In his judgment the respondent's presence in the vehicle with the name of the taxi service on the windscreen near a line of Hackney carriages outside a nightclub at 1:30 in the morning could not but constitute an invitation. As Bingham LJ observed, this was a very clear case of plying for hire by an unlicensed vehicle. The facts of the present case can in my view be distinguished from those in Ogwr in two material respects. First, the vehicle was stationary but not parked, the transaction with Mrs Hunter still being in progress when the vehicle was first sighted by the enforcement officers and approached by Mr Lines; second, the respondent's vehicle was not near a taxi rank.

In Nottingham City Council v Woodings the defendant was sitting in the driver's seat of a private hire vehicle, recognisable as a minicab by signs on the side of the car. The car was parked and there was no passenger in the vehicle. Lord Justice Rose LJ said at page 75DE

"In my judgment, when the defendant parked the marked car in the street, for the purpose of going into the toilet, he was not plying for hire, and when he came out of the toilet, he was not plying for hire. But when, having sat in the driver's seat, he told the prospective passengers that he was free to carry them, at that stage he was, bearing in mind where the car was and what the car looked like, plying for hire."

Again, as the justices noted at paragraph 22 of the statement of case, the facts of the present case can be distinguished from those in the Woodings case. The respondent had not parked his vehicle and Mrs Hunter, his passenger, was still in the vehicle completing her transaction when Mr Lines approached and made his request.

In my judgment the decision of the justices in the present case was one to which a reasonable bench, applying their minds to proper considerations and giving themselves proper directions, could come on the findings of fact that they made. Accordingly, I reject Ms Smith's first submission.

Ms Smith's second submission, which Mr Holland for the respondent describes as a bold submission, I also reject. In my view it plainly runs counter to the analysis of Leggatt J, with whom Bingham LJ agreed in Ogwr Borough Council, and of Rose LJ with which Waller J agreed in Woodings. Mr Holland submits that there is no comprehensive and authoritative definition of plying for hire. It is a question of fact and agree in each case. In Cogley v Sherwood [1959] 2 QB 311 Lord Parker CJ said at pages 325-326:

"In the ordinary way, therefore, I should, apart from authority, have felt that it was of the essence of plying for hire that the vehicle in question should be on view, that the owner or driver should expressly or impliedly invite the public to use it, and that the member of the public should be able to use that vehicle if he wanted to."

Ms Smith noted that that case was determined under a different statute, namely the Metropolitan Public Carriage Act 1869. However, Rose LJ in Woodings cited it with approval. In my view both Cogley v Sherwood and Sales v Lake [1922] 1KB 553, a case also involving the 1869 Act to which Mr Holland referred, support the approach adopted in Woodings and in Ogwr. Accordingly this appeal is dismissed.


Order: 1. Appeal dismissed.

2. No order for costs.

3. LA Direction Respondent.

http://www.bailii.org/ew/cases/EWHC/Admin/2012/807.html

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PostPosted: Tue Apr 03, 2012 9:24 am 
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If anyone has a copy of Gateshead vs. Page I'd be greatful

CC

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PostPosted: Fri Jun 01, 2012 7:36 am 
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captain cab wrote:
If anyone has a copy of Gateshead vs. Page I'd be greatful

It would appear the above was a Magistrates' decision, so it doesn't carry the weight that Gateshead Council's press release gave it. :roll: :roll:

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PostPosted: Fri Jun 01, 2012 7:37 am 
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Sussex wrote:
captain cab wrote:
If anyone has a copy of Gateshead vs. Page I'd be greatful

It would appear the above was a Magistrates' decision, so doesn't carry the weight that Gateshead Council's press release gave it. :roll: :roll:



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PostPosted: Fri Nov 09, 2012 4:58 am 
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This is an important decision, I'm surprised nobody has commented on it, in summary the private hire driver was getting paid by his passenger when an undercover licensing officer got into the car and asked to be taken to a destination, the driver radioed the job through and took the journey.

If you would believe your local licensing officer this looks like an open and shut case of plying for hire as the driver had taken an unbooked job, in fact your licensing officer will no doubt have told you that private hire are not plying for hire until they take an unbooked job.

Q. So what is the significance of this case?
A. The driver was found NOT guilty of plying for hire

If he was not guilty of plying for hire, that would suggest that the taking of an unbooked job is not part of the offence of illegally plying for hire, it is the factors before this such as exhibiting the vehicle ie. parking up and waiting with the vehicle in an area where it is likely to attract custom outside a club, restaurant, airport, railway station, taxi rank etc.

If you read this interpretation back into all the previous cases guess what happens IT FITS with them all!


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PostPosted: Fri Nov 09, 2012 11:02 pm 
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I would suggest you re-read the case silvercab.

It seems to me in the summing up that the officer didnt follow guidelines;

Quote:
We found that Mrs Hunter had not alighted from the vehicle prior to Mr Lines knocking on the window and making his repeated requests. Furthermore Mrs Hunter was still in the rear of the vehicle completing her transaction when Mr Lines physically entered the vehicle and made a request to be taken to the Hilton Hotel.

In our view we could not be sure that the respondent had either expressly or by inference, invited or encouraged a member of the public to use his vehicle.

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PostPosted: Sat Nov 10, 2012 4:19 pm 
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captain cab wrote:
I would suggest you re-read the case silvercab.

It seems to me in the summing up that the officer didnt follow guidelines;

Quote:
We found that Mrs Hunter had not alighted from the vehicle prior to Mr Lines knocking on the window and making his repeated requests. Furthermore Mrs Hunter was still in the rear of the vehicle completing her transaction when Mr Lines physically entered the vehicle and made a request to be taken to the Hilton Hotel.

In our view we could not be sure that the respondent had either expressly or by inference, invited or encouraged a member of the public to use his vehicle.



I agree with the part you've underlined Captain, however the judge also made the following statements, confirming that the actual taking of the unbooked job is NOT the offence;

The case presented
Quote:
Second, in her oral submissions today she submitted that the bench erred in their construction of the words "plying for hire" in section 45 of the 1847 Act because the driver of a private hire car commits an offence if he agrees to carry a passenger who has not pre-booked the vehicle.

and rejected
Quote:
Ms Smith's second submission, which Mr Holland for the respondent describes as a bold submission, I also reject.


Therefore plying for hire must occur before taking an unbooked job.
Quote:
"In the ordinary way, therefore, I should, apart from authority, have felt that it was of the essence of plying for hire that the vehicle in question should be on view
parked anywhere that is busy
Quote:
that the owner or driver should expressly or impliedly invite the public to use it,
he's sat in it and it has more signs on it than the strip in Las Vegas
Quote:
and that the member of the public should be able to use that vehicle if he wanted to."
Yes I can take you (possibly adding) you just need to ring/goto the office first.


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PostPosted: Sun Nov 11, 2012 1:02 am 
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I think it had more to do with the officer being pro-active than anything else tbh.

They didnt follow the correct procedure hence the case was lost - they have won a few other cases before and since, the info is on the Gateshead council website.

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PostPosted: Tue Nov 13, 2012 5:00 pm 
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captain cab wrote:
I think it had more to do with the officer being pro-active than anything else tbh.

They didnt follow the correct procedure hence the case was lost - they have won a few other cases before and since, the info is on the Gateshead council website.


After all is said and done the driver took a fare that had not been pre booked yet was found not guilty so you have to conclude that it is NOT the actual act of taking an unbooked fare that makes the offence of plying for hire, it is what the driver has done beforehand. This is a simple concept demonstrated by the following , You are a hackney carriage driver, when are you plying for hire? It is when you are looking for a fare either by driving around looking for a flagger or when you are on a rank (official or not) now how many times have you pulled off that rank empty ? You have been plying for hire but have not taken a fare


You will not find any mention of plying for hire in the 1976 act the author obviously had too much faith in the average head enforcement officer or were the police still running it back then?


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PostPosted: Tue Nov 13, 2012 7:01 pm 
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silvercab wrote:
After all is said and done the driver took a fare that had not been pre booked yet was found not guilty

He was found guilty of a different charge to that of un-licensed hiring. If he had been charged with a licensing offence, rather than a touting offence, then maybe the outcome would have been different.

In short he was being charged with touting, but when you read the evidence given by one of the licensing officials, you have to wonder why. :?

During cross-examination Mr Lines accepted that the vehicle was clearly not a Hackney carriage, nor was the driver trying to lead anyone to believe that it was. He also accepted that the vehicle was stationary and not parked up in a taxi rank. Mr Harris gave evidence. He noted that a passenger had been in the vehicle and Mr Lines knocked on the driver's window after the lady had got out of the vehicle. He was certain Mr Lines allowed her to alight before getting into the vehicle as she was sitting in the front passenger seat, which is the same seat that Mr Lines occupied for the journey. Mr Lines spoke to the driver before beckoning Mr Harris over and Mr Harris sat in the rear of the vehicle.

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PostPosted: Tue Nov 13, 2012 9:26 pm 
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Sussex wrote:
silvercab wrote:
After all is said and done the driver took a fare that had not been pre booked yet was found not guilty

He was found guilty of a different charge to that of un-licensed hiring. If he had been charged with a licensing offence, rather than a touting offence, then maybe the outcome would have been different.


Quite possibly Sussex, (although for clarity I prefer to use the term plying for hire rather than touting) perhaps he could have been charged with being an unlicensed operator?
The 1976 Act defines this as; Operate means "in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle"
He did accept the booking did he not? I don't think a driver has ever been charged with that though it is always plying for hire.


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PostPosted: Tue Jul 07, 2015 5:25 pm 
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Someone out there is listening to me

Omar Gouaalla appeared before Westminster magistrates last month and pleaded guilty to plying for hire, as well as accepting a booking without holding a private hire operator’s licence. He was fined £200 for each offence, plus a victim surcharge, and also ordered to pay £100 towards TfL’s costs.

https://lcdcorg.wordpress.com/2013/07/1 ... -for-hire/


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PostPosted: Wed Jul 08, 2015 10:12 am 
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captain cab wrote:
Sussex wrote:
captain cab wrote:
If anyone has a copy of Gateshead vs. Page I'd be greatful

It would appear the above was a Magistrates' decision, so doesn't carry the weight that Gateshead Council's press release gave it. :roll: :roll:



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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
13th February 2012
B e f o r e :

MR JUSTICE SUPPERSTONE
____________________

Between:
MR FREDERICK ROY PAGE

Claimant

- and -

GATESHEAD COUNCIL

Defendant
____________________

(DAR Transcript of WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)

____________________
The Claimant appeared in person.

Mr John Smith (instructed by Solicitor in-house) appeared on behalf of the Defendant.
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Mr Justice Supperstone:

There is before me an appeal by way of case stated against a decision of the Gateshead Magistrates whereby they dismissed an information that on 2nd October 2010 the respondent, Frederick Roy Page, used a motor vehicle registration number NK 04 BTV, on a road, namely Bridge Street, Blaydon, without in force in relation to the use of the vehicle, such a policy of insurance or such of security in respect of third party risks, as complies with Part 6 of the Road Traffic Act 1988, contrary to section 143 of the Road Traffic Act 1988.

Before the justices at the hearing of this matter was another matter, namely that on the same day the respondent was plying for hire with the same motor vehicle within the borough of Gateshead without having obtained a licence from the appropriate local authority, contrary to section 45 of the Town Police Clauses Act 1847.

Having heard the evidence, the justices were satisfied that the respondent had plied for trade when he was not authorised to do so in the Gateshead area. Accordingly he was convicted of this offence. There is no appeal to this court by way of case stated against that conviction.

In relation to the allegation of the use of a motor vehicle without insurance, the justices dismissed this information. The justices say in the statement of case that the only document that was produced in evidence was a copy of the certificate of insurance, issued by Tradex Insurance Company Ltd, for the period 4th July 2010 to 4th July 2011, in respect of the vehicle. The justices did not see the insurance policy itself. They heard evidence from Jackie Stead, the ex-divisional director of Tradex Insurance Company Ltd, and in the case stated the justices record the evidence that she gave.

Today Mr Page appears before me in person and has, he says, in his possession a copy of the policy of insurance that he would wish me to look at when hearing this appeal. I have explained to him that on an appeal by way of case stated that a court cannot consider new evidence.

Miss Smith, who appears for the appellant, has at my invitation spoken to Mr Page and looked at the policy that he has in his possession.

She has informed me on instructions that a policy of insurance was in the possession of Miss Stead at the hearing before the justices, but that the justices refused to look at the policy or to have it adduced in evidence.

Mr Page's recollection appears to be slightly different in that he does not recall that a policy of insurance was available before the justices, but in any event both Mr Page and Miss Smith are in agreement that the policy of insurance was not adduced in evidence before the justices.

Miss Smith has helpfully submitted that in these circumstances that present themselves before the court today it would be in the interests of justice that this matter be remitted to the justices and indeed to the same bench of justices for them to reconsider afresh the information relating to the absence of insurance cover.

I am in agreement with that suggestion, as is Mr Page.

In the circumstances I direct that the issue of insurance and the information before the magistrates with regard to the absence of insurance be remitted to the same bench of magistrates for them to consider the matter afresh.

No doubt when they do so Mr Page will be present. He will, together with those appearing for the Council, wish the magistrates to look at and consider the policy of insurance.

The direction that I have given disposes of the case stated that is presently before the court.

Mr Page, I am going to treat what you have said as an application for costs by you. I am going to refuse that application. It seems to me in the circumstances that the order should be no order as to costs. You are being given as it were a second bite of the cherry.

Order:

    1. The issue of insurance and the information before the magistrates in respect of the absence of insurance be remitted back to the same bench of magistrates to reconsider the matter afresh.

    2. This order disposes of the case stated.

    3. No order for costs.


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PostPosted: Wed Jul 08, 2015 10:14 am 
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BUT check out the Sedgefield case as well
Which is a case stated and therefore overpowers Gateshaed.


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PostPosted: Thu Jul 09, 2015 9:03 pm 
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Neutral Citation Number: [2008] EWHC 1814 (Admin)

CO/2743/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL

Tuesday, 8 July 2008

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE BLAKE
- - - - - - - - - - - -
Between:
SEDGEFIELD BOROUGH COUNCIL
Appellant

v

JAMES CROWE
ASHLEY CROWE
Respondents

- - - - - - - - - - - -
ComputerAided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
Mr P Abrahams (instructed by Legal Department, Sedgefield Borough Council) appeared on behalf of the Appellant
Mr Robert Benzynie (instructed by Hewitts) appeared on behalf of the Respondents
- - - - - - - - - - - -
J U D G M E N T
SMITH BERNAL WORDWAVE
​MR JUSTICE BLAKE: This is an appeal by way of case stated from a decision of the Bishop Auckland Magistrates' Court on 21 November 2007 whereby they acquitted each of the two respondents of counts of using or permitting the other to use a motor vehicle without insurance. The principal offence is specified in Section 143 of the Road Traffic Act 1988 as follows:

"(1) Subject to the provisions of this Part of the Act 

(a) a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act, and

(b) a person must not cause or permit any other person to use a motor vehicle ..... unless there is in force in relation to the use of the vehicle ..... such a policy of insurance ..... "

​The factual basis for the decision of the justices is set out as follows in the case that they have filed with the court. Paragraph 2a) of the case reads as follows:

"2a) At the time of the alleged offence, James Crowe and Ashley Crowe [those are the present respondents] were the proprietors of Horndale Taxis. Mrs Ashley Crowe was the sole person registered as proprietor of the vehicle used for the alleged offence, namely Hackney Carriage Vehicle HV144 registration number KY51 MJK. James Crowe was driving the vehicle which is the subject of the charge, at the time and place alleged by the prosecution.

b) The vehicle at that time was registered as a Hackney Carriage Vehicle. At the time of the alleged offence, James Crowe did not hold a Hackney Carriage Driver's Licence for the Sedgefield area.

c) James Crowe and Ashley Crowe, trading under the name of Horndale Taxis, had an insurance policy with Illium Insurance. The policy number was [given]. The policy type was Taxi fleet. The policy was in place on the date of the alleged offence. The policy provided for social, domestic and pleasure purposes and for private and public hire including the carriage of passengers and goods for hire and reward. No witnesses were called by the appellant [the prosecutor]. All of the evidence was accepted in the form of Section 9 statements. These statements were read to the court. It was contended by the appellant that because James Crowe did not have a Hackney Carriage Licence when he drove the vehicle on 12 December, the insurance policy in place did not cover the risk. Furthermore, as a result of Ashley Crowe authorising James Crowe to drive the vehicle on the day in question, she committed the offence of permitting driving with no insurance."

​I interpolate at this point to indicate that it was not suggested that James Crowe the driver was using the vehicle as a public hire vehicle or was plying for hire on the occasion of these events in December 2006. He was however convicted of driving a hackney carriage vehicle without being the holder of a hackney licence. That conviction is not the subject of dispute in this appeal. That conviction moreover is founded on the reasoning of this court in Yates v Gates [1970] 1 All ER 754.

​However the issue in the present case is whether the fact that Mr Crowe was committing the offence that he was by driving the vehicle at all automatically put him outside the scope of his insurance certificate.

​Before us the appellant has relied upon Borough of Telford & Wrekin v Ahmed [2006] EWHC 1748 (apparently otherwise unreported), a decision of the Divisional Court, in which the principal judgment was given by Mr Justice McCombe on 21 June 2006. Telford was a matter where those who were permitted to use vehicles for private hire used them to ply for public hire. This was a purpose specifically not covered in the insurance certificates in those cases (see paragraph 3 of the judgment). It was therefore nothing to the point that the insurers in those (?) cases had indicated that they did not intend to void the certificates and would cover third party claims (see paragraph 4 of that judgment).

​The reasoning in Telford is summarised at paragraphs 9 and 10 in the judgment of Mr Justice McCombe:

"In my judgment, the learned District Judge's second thoughts in this matter are entirely correct. Whether a policy covers a particular risk and therefore whether there is in force a valid insurance covering that risk will usually be a matter of construction of the insurance policy in question, rather than a matter of evidence. That was certainly so in the present case. In my view, it is entirely clear that the limitations to the insurance in each of these cases demonstrated that the vehicle was not covered when being used on 'ply for hire' operations. The note at the foot of the certificate does not affect what was in fact covered by the policies. It merely gives notice, in layman's terms, of the consequences of arrangements made under the aegis of the Motor Insurance Bureau for the compensation of third parties for the liabilities of an uninsured driver. Equally it demonstrates that notwithstanding the absence of insurance, there is nothing to prevent such a third party making a claim against the driver. The note does not affect at all the extent of the cover afforded to the insured under the policies themselves.

10 It may be true that the policy in each of these cases remained in force notwithstanding any breach of its terms by the relevant respondent until avoided by the insurer. However the fact remained that such policy, in its unavoided form, did not cover the risk in question. In Adams v Dunne the risk was covered, notwithstanding that the policy was voidable for misrepresentation by the insured; it had not in fact been avoided at the relevant time. That is not the issue in this case."

​It is clear that the question in the present case is not whether the insurer thought that the respondent was covered by the insurance certificate but whether in fact he was covered.

​The quotation from the justices' case already summarises the material terms and difficulties, but in the light of the arguments that have been pursued before us I shall read the following paragraphs of the certificate of insurance which is annexed to the stated case. Under clause 1 of the certificate  "Description of Vehicles"  it is said to apply to 

"1 ..... any private motor car or licensed taxi the property of the policyholder or in their custody or control and for which they are legally responsible."

In [clause] 2 the policyholder is defined as 

"Mr James Crowe & Mrs Ashley Crowe T/A [trading as] Horndale Taxis."

Under clause 5 it states:

"5 Persons or classes of persons entitled to drive.

Any person who is driving on the order or with the permission of the policyholder."

In italics there is a proviso 

"Provided the person driving holds a licence to drive the vehicle or has held a licence and is not disqualified for or prohibited by law from holding or obtaining a licence.

6 Limitations as to use

Use for social domestic and pleasure purposes and for private and public hire including the carriage of passengers and goods for hire and reward.

The policy does not cover use for hiring, the letting on hire, the carriage of passengers or goods for hire or reward, racing, pacemaking, track days, use in any contest, reliability or speed trial, or use for any purpose in connection with the motor trade, except where included in 6 above."

​Two submissions were advanced before us by the appellant. First, that because Mr Crowe did not hold a hackney carriage licence to drive a hackney carriage vehicle he could not comply with clause 5 of the insurance policy where the proviso is 

"Provided the person driving holds a licence to drive the vehicle ..... "

​It appears to us that this was not the principal construction or argument advanced below since it does not appear to have been specifically cited in the part of the case stated already quoted. Nevertheless there is an argument in response to this first limb of this submission that the reference to licence must, in context, be a reference to the ordinary driving licence and not in addition to the special licence that may be required by the driver of a hackney carriage vehicle.

​In my judgment, that first submission fails for the following reasons. First, it is apparent that this certificate of insurance covers a variety of vehicles, private and taxi vehicles, in the possession of the policy holders and one would not expect to see terms that are specific to hackney carriage vehicles unless they were spelt out in very clear terms. Secondly, the proviso in italics relied upon itself has alternative provisions 

"Provided that the person driving holds a licence to drive the vehicle or has held a licence ..... "

So it is sufficient that one has held a licence and is not disqualified or prohibited by law from holding or obtaining a licence. That must indicate that the licence being referred to is a driving licence rather than a hackney carriage licence; a licence to drive such a vehicle.

​The answer, in my judgment, to the first submission advanced before us is that the policy does not require that as a matter of express specification a person who drives a hackney carriage vehicle must hold, in addition to a driving licence, a hackney carriage licence. The words in the proviso would say something different to the effect of "holds a licence or all necessary licences to drive the vehicle". Moreover although  for reasons already dealt with in referring to Telford v Ahmed  the attitude of the insurer is not conclusive as to what the law is, the insurer might be expected to have some understanding of the terms used in the policy. Mr Crowe was able to put before the justices a letter from Illium Insurance dated 19 October which stated:

"It is not a requirement of our policy that the driver holds a valid taxi badge."

That is to say, a hackney carriage licence.

​I accept letters from insurers do not indicate what the law is but it may be a helpful piece of evidence indicating what the terms of the policy mean. It would be unusual if the insurers had completely misunderstood the terms of their policy.

​That leads to consideration of the second submission which appears to be the principal submission advanced by the County Court Justices below; that is that clause 6 of this insurance policy  Limitations and Use  were breached in this particular case therefore requiring the justices as a matter of law to convict.

​I turn to the case stated for the evidence that the justices found on this issue. At paragraph 4a) of the case stated it recites the following:

"4a) James Crowe was the only witness called to give evidence on behalf of the respondents. The full insurance policy was not submitted as evidence. A copy of the certificate of insurance was submitted ..... The respondent James Crowe stated that the purpose he was driving the vehicle was twofold. Firstly, he was delivering forms to the council offices relating to the registration of a different Hackney Carriage Vehicle which was also owned by Horndale Taxis. He gave evidence that he did not feel that this constituted using the vehicle in the course of a business. He stated he was using the vehicle for his own use.

b) The respondent said the second reason he was driving the vehicle that day was to check it for a mechanical fault. He stated that there was a fault with the brakes and he had to ensure that the vehicle was safe to carry passengers.

c) The respondent in evidence said he was insured to drive the vehicle for these purposes. He produced to the court, a letter from his insurance agents ..... 'confirming' he does hold insurance [for the car]."

A total of three such letters were produced.

​Having referred to the authorities cited to them the justices then concluded their factfinding in the case as follows:

"6a) We were of the opinion that the respondent was driving the vehicle on the day in question and was doing so in the course of business. We were satisfied that the respondent had taken out an insurance policy which covered him for driving this vehicle during the course of his business, as well as for social, domestic and pleasure purposes. The respondent, at the time of the alleged offence, no longer held a valid Hackney Carriage Drivers Licence. However, the respondent produced in evidence a letter from the Illium Insurance stating that, it was not a requirement of the policy that the driver holds a valid taxi badge. Accordingly, we found that the respondent was validly insured at the time of the alleged offence. We therefore found James Crowe not guilty of driving with no insurance and Ashley Crowe not guilty of permitting driving with no insurance."

​The appellant submits that once it was found as a fact that the use of the vehicle was for business purposes, then it necessarily fell outside the permitted use in clause 6 of the insurance certificate. However as the justices point out, whatever else clause 6 was saying it was not restricting use of the vehicle solely for pleasure or domestic purposes.

​In my judgment, even if the justices were entitled to characterise the delivery of a form by the owner of a business in a vehicle of which he was a partowner as being a business purpose, they were certainly entitled to conclude that this was not a purpose outside the permitted use outside the insurance policy. If ever a decision did fall on whether a particular term of an insurance policy that contrasted business use with social and domestic use was required to be taken by the court and, according to the construction in terms of the policy, the issue fell whether delivery of a letter was a business as opposed to a social purpose, speaking for myself, I would need great persuasion that the nature of the letter being delivered would determine the nature of the use in question.

​One can certainly imagine a selfemployed person delivering a number of letters to the post office, some purely personal and some relating to his or her business, but that would not necessarily decide the nature of the activity engaged in. It is not necessary to decide any such issue extrapolated (?) in this case. It is not a case where the evidence demonstrated that the respondents were running a courier service for delivery of business documents or that Mr Crowe was acting as an employee of his partner  or his wife  for that purpose. In particular this was not a case of plying for public hire by contrast to Telford, but delivering documents direct to the council.

​In my judgment, there is nothing in the terms of the certificate of insurance to suggest that this was a prohibited purpose. In those circumstances the fact of the conviction for not having a hackney carriage licence did not automatically create criminal liability on the second charge of using such a vehicle without insurance. I recall that the respondents' skeleton argument also drew attention to the statutory defence (?) under Section 143 (1) (a) of the Road Traffic Act, but that was perhaps predicated on the mistaken assumption that Mr Crowe was the employee of his wife in the course of this particular transaction, whereas they were both joint owners of the business and the vehicle was apparently owned or used in that business. So no assistance, on the facts of this case, is to be derived from that particular defence (?).

​However for the reasons I have sought to give in the light of the particular terms of this insurance certificate and the absence of any evidence to suggest that a prohibited use was being put under the terms of the insurance certificate, I would answer the questions posed by the justices as follows. In the first question 

"Can a driver of a Hackney Carriage ever be validly insured to drive the vehicle if he no longer holds a Hackney Carriage Drivers Licence ..... " 

I would pose the answer yes. To the second half of that first question 

" ..... will a driver's insurance policy to drive a Hackney Carriage fail to cover the risk if he no longer holds a Hackney Carriage Drivers Licence?" 

I would answer no.

​The second question, after a recital of the factual findings in this case, is:

" ..... Could any bench of justices properly directed upon the facts and upon the law have reached the conclusion that the respondent was validly insured?"

In my judgment the answer to that question is yes.

​For those reasons I would dismiss this appeal.

​LORD JUSTICE MAURICE KAY: I agree. The appeal is therefore dismissed.

SMITH BERNAL WORDWAVE


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