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PostPosted: Sun Apr 30, 2006 4:52 pm 
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This case has been posted before but this is a more thorough report of the actual case and it really is informative for those who might find themsleves in a position where they might be tempted to break the law of plying for hire, whether they be Hackney carriages out of district or private hire?

CHORLEY BOROUGH COUNCIL v THOMAS

Queen's Bench Division

[2001] EWHC Admin 570, [2001] LLR 625

HEARING-DATES: 17 July 2001

17 July 2001

HEADNOTE:

Mr Thomas was the holder of licence to drive a private hire vehicle. On 1 July 2000, the vehicle he was driving was a licensed private hire vehicle with Terry's Taxis written on it. Mr Thomas was stationary outside the Ridgeway Arms public house, parked just off the road. Next to the public house was a restaurant. A passenger approached Mr Thomas and asked if he was free. Upon being told that the taxi was free the passenger entered and asked to be taken to another public house. The fare was indicated as £ 1.40 and before setting off Mr Thomas radioed in to his base to record the booking.


The local authority prosecuted Mr Thomas for plying for hire in a vehicle for which a licence to ply for hire as a hackney carriage had not been obtained. When the matter came before the magistrates' court (district judge) there was no evidence as to how long Mr Thomas' vehicle had been stationary. The district judge acceded to a submission of no case to answer holding that a booking had been made at the base station almost immediately the passenger had entered the vehicle; it was supported by documentation and the journey had been commenced after the booking had been made. So there was no evidence that the respondent had been plying for hire. The local authority appealed by case stated.

Held - allowing the appeal - there was a prima facie case to answer on the evidence. What took place after the passenger had entered the vehicle was neither here nor there and not relevant to the issue of 'plying for hire'.

NOTES:
Statutory provisions considered

Town Police Clauses Act 1847, ss 38, 45

Metropolitan Public Carriage Act 1869, s 7

CASES-REF-TO:
Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Same; Howe v Kavanaugh; Car Hire Group (Skyport) Ltd v Same [1959] 2 QB 311, [1959] 2 WLR 781, sub nom Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood; Howe v Kavanaugh; Car Hire Group (Skyport) Ltd v Sherwood, [1959] 2 All ER 313, QBD

Nottingham City Council v Woodings [1993] COD 350, [1994] RTR 72, QBD

Ogwr Borough Council v Baker [1989] COD 489, QBD

Rose v Welbeck Motors Ltd and Another [1962] 1 WLR 1010, [1962] 2 All ER 801, QBD

Sales v Lake and Others [1922] 1 KB 553, DC

COUNSEL:
Martin Carter for the appellant; Ian Ponter for the respondent

PANEL: Maurice Kay J

JUDGMENTBY-1: MAURICE KAY J

JUDGMENT-1:
MAURICE KAY J: [1] This is a prosecutor's appeal by way of case stated from a decision of district judge Finestein in respect of his adjudication at the magistrate's court sitting in Chorley on 18 January 2001. The case before the district judge was in the form of a prosecution of the respondent for an offence under s 45 of the Town Police Clauses Act 1847 (as amended). An information had been preferred by the appellant against the respondent that he, on 1 July 2000, did ply for hire with a Ford Mondeo motor vehicle, registration number P585 KKV, at the Ridgeway Arms public house, Chorley Road, Adlington, Chorley in the County of Lancashire, for which said vehicle a licence to ply for hire as a hackney carriage had not been previously obtained from the Chorley Borough Council.

[2] The district judge found the following facts:

'a) On the 1 July 2000 the respondent was driving a Ford Mondeo motor vehicle registration number P585 KKV and at around 10.00 pm the vehicle was stationary just off the main road outside the Ridgeway Arms pub at Adlington. There was a restaurant next door.

b) This vehicle was a licenced private hire vehicle with Terry's Taxis written upon it, carrying a licence plate.

c) Mr Thomas was approached by Mr Liptrot who asked if he was free. The respondent said that he was and Mr Liptrot entered the vehicle.

d) The respondent asked Mr Liptrot his name and to where he was going. Mr Liptrot responded that he was going from the Ridgeway public house to the White Bear and Mr Liptrot was informed that the fair would be £ 1.40.

e) Immediately upon receipt of this information and before the journey commenced the respondent contacted the base of Terry's Taxis to book the journey from the Ridgeway pub to the White Bear.

f) The vehicle did not enter into the main road until the booking had been completed.

g) Mr Liptrot completed the journey to the White Bear public house and paid the respondent the sum of £ 1.40 plus a 50p tip. The respondent then drove off in his vehicle.'

[3] At the end of the prosecution case, a submission was made on behalf of the respondent that there was no case to answer. The district judge records that the submission was to the effect that there was no evidence as to how long the vehicle had been stationary and, before the journey started, there had been a pre-booking. The district judge was referred to a number of authorities. He concluded that there was no case for the respondent to answer. In the case stated he explained that conclusion by reference to these reasons:

'a) There was no evidence for how long the vehicle had been stationary.

b) A booking was made to the base station almost immediately after Mr Liptrot entered the vehicle.

c) The booking was in fact supported by documentation.

d) The journey commenced after the booking was made.

e) In those circumstances there was no evidence that the respondent had been plying for hire.'

[4] Having accepted the submission of no case to answer, the district judge dismissed the information at the end of the prosecution case. The question posed by the case stated is in these terms:

'The question for the opinion of the High Court is whether the driver of a marked mini-cab whose vehicle was not a licenced hackney carriage was plying for hire within the Town Police Clauses Act 1847 if, he, without more, was asked by a member of the public if his vehicle was free and, having indicated that his vehicle was available and received details of the prospective journey and disclosed the price for it, placed a booking with his taxi operating base before the journey started.'

[5] The offence with which the respondent was charged is set out in s 45 of the Town Police Clauses Act 1847. That section is in these terms:

'If the proprietor ... of any carriage ... permits the same to be used as a hackney carriage plying for hire within the [local authority's area] without having obtained a licence as aforesaid for such carriage ... or if any person be found driving, standing, or plying for hire with any carriage within the [local authority's area] for which such licence ... has not previously been obtained ... every such person so offending ... shall be liable to a penalty.'

[6] The licensing provision referred to is to be found in s 38. Quite clearly, the essence of the offence under s 45 is 'plying for hire'. The question that arose before the district judge was whether there was a prima facie case of 'plying for hire'.

[7] I have been referred to a number of authorities in the course of the very careful submissions that were made by both counsel. It is clear that the question of whether 'plying for hire' has been established is one of fact and degree. In Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Same; Howe v Kavanaugh; Car Hire Group (Skyport) Ltd v Same [1959] 2 QB 311, 323-324, Lord Parker CJ said:

'The court has been referred to a number of cases from 1869 down to the present day dealing with hackney carriages and stage carriages. Those decisions are not easy to reconcile, and like the justices, with whom I have great sympathy, I have been unable to extract from them a comprehensive and authoritative definition of "plying for hire". One reason, of course, is that these cases all come before the court on case stated, and the question whether a particular vehicle is plying for hire, being largely one of degree and therefore of fact, has to be approached by considering whether there was evidence to support the justices' finding.

In those circumstances, it was unnecessary, and clearly inadvisable, for the court to attempt to lay down an exhaustive definition.'

[8] One of the earlier cases was Sales v Lake and Others [1922] 1 KB 553. In the course of his judgment in that case, Lord Trevethin CJ said, at 557-558:

'In my judgment a carriage cannot accurately be said to ply for hire unless two conditions are satisfied. (1.) There must be a soliciting or waiting to secure passengers by the driver or other person in control without any previous contract with them, and (2.) the owner or person in control who is engaged in or authorizes the soliciting or waiting must be in possession of a carriage for which he is soliciting or waiting to obtain passengers.'

[9] Those two authorities are relied upon by Mr Ponter, on behalf of the respondent, in the present case, but in my judgment they do not advance his case to any degree. They are statements of principle which are undoubtedly correct, but they do not in reality answer the present question in the way that the respondent would wish.

[10] I was taken through the more recent authorities by Mr Carter, on behalf of the appellant prosecutor. His survey began with Rose v Welbeck Motors Ltd and Another [1962] 1 WLR 1010. An interesting aspect of that case is that it arose out of a successful submission of no case to answer, just as the present case so arose. In fact, Rose v Welbeck Motors Ltd and Another concerned a prosecution under s 7 of the Metropolitan Public Carriage Act 1869 rather than prosecution under the Town Police Clauses Act 1847. But to the extent that both statutes are centred upon the concept of 'plying for hire', the authority is in point. The headnote in Rose v Welbeck Motors Ltd and Another [1962] 1 WLR 1010 states:

'Held, that, since the vehicle had been exhibited to the public and it had been established prima facie that it was impliedly inviting the public to hire, it was prima facie exhibiting itself as a vehicle for hire, and the justices were wrong in dismissing the informations. The case would be sent back to them with a direction that there was a case to answer and that the hearing should be continued.'

[11] In the course of his judgment, with which Brabin J agreed, Lord Parker CJ said, at 1014-1015:

'That the vehicle in the present case was on exhibition in the sense that it was on view to the public is undoubted. The real question, as it seems to me, is whether a prima facie case was made out that the vehicle in question was impliedly inviting the public to use it. Whether in any case such a prima facie case is made out must, of course, depend upon the exact circumstances, and I certainly do not intend anything I say in this judgment to apply to any facts other than those here. What are the facts here? One starts with the fact that this vehicle was of a distinctive appearance, regarding its colour, its inscriptions, its equipment in the form of radio communication, and its type. Secondly - and this is equally important - it was standing with the driver at the steering wheel for some fifty minutes in a public place on public view and at a place where buses turned round; in other words, at a place where many members of the public would be getting off the buses and where many members of the public would forgather to board the buses. Moreover, when requested to leave, the driver drove away only to return immediately almost to the same place.'

[12] No two cases have the same factual content, and Mr Ponter is at pains to point out that in the present case, as the district judge observed, there was no evidence as to the length of time for which the car had been stationary. However, that is merely one matter among several.

[13] In Ogwr Borough Council v Baker [1989] COD 489, the circumstances bore some resemblance to those in the present case. The holding of the court (Bingham LJ and Leggatt J) was:

'The question the justices had to ask themselves was whether by parking the vehicle where he did the respondent was in the circumstances impliedly soliciting custom. To this question there could only be one answer. To suggest that the hot-dog stand provided a valid excuse was absurd. The court would not lightly interfere with findings of fact by justices, but since there was no dispute that the justices had properly directed themselves, the conclusion that their finding was one which no reasonable bench could have made was irresistible. The case would be remitted to the justices with a direction to convict.'

[14] It should be observed that that case, as with all the other cases apart from Rose v Welbeck Motors Ltd and Another [1962] 1 WLR 1010, arose after a case had been heard in its entirety and not at the point where a submission of no case to answer had succeeded.

[15] Finally, Mr Carter placed emphasis on Nottingham City Council v Woodings [1994] RTR 72. The holding of the court (Rose LJ and Waller J) was partly described in the headnote as follows:

' ... whether a vehicle was itself plying for hire was not determinative of whether or not the driver was 'plying for hire with any carriage' for the purposes of the offence under section 45 of the Town Police Clauses Act 1847 ... '

[16] In that case the conversation into which the driver was led was conversation with two plain-clothes police officers to whom the driver had simply confirmed that he was free and that he could take them to a particular destination, the cost depending on precisely where within that destination they were to disembark. Rose LJ stated, at 78:

'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.'

[17] Mr Carter submitted that there is a very close resemblance between the facts in that case and in the present case. I, of course, accept that each of these cases is little more than a decision on its own facts, and I also indicate the reluctance that one has to part company with an experienced district judge sitting in his jurisdiction. However, in my judgment, the reasons given by the learned district judge for finding no case to answer in the present case indicate that he was influenced by matters not relevant to the issue of 'plying for hire' in the circumstances of this case. I accept Mr Carter's primary submission that, in the circumstances of this case, there was a prima facie case to answer upon the evidence contained in paras (a)-(d) inclusive of the district judge's findings of fact. What took place immediately after that, whether it is characterised as a booking via the base station or as a confirmation of a booking that had already taken place at the scene, is, in my judgment, neither here nor there when considering whether a prima facie case had been made out on the evidence in this case. Relying on the approach exhibited in all the authorities to which I have referred, I feel compelled to the conclusion that in this case the prosecution had established a prima facie case and that any decision to the contrary was legally unsound.

[18] The question then arises as to the implications of the conclusion that I have reached. As I have indicated, the only one of the authorities to which I have referred which arose out of a successful submission of no case to answer was Rose v Welbeck Motors Ltd and Another [1962] 1 WLR 1010. In that case the question posed by the case stated was 'whether, upon the above statement of the evidence, the justices came to the correct decision and determination in point of law'. If that were the question posed in the present case, as perhaps it ought to have been, then I would unhesitatingly conclude that the answer is in the negative, namely that the district judge did not come to the correct decision and determination in point of law.

[19] The question actually posed in the present case in a real sense is a question more appropriate to circumstances arising at the conclusion of a case upon hearing all the evidence and resulting in, let us say, an acquittal or a conviction at that stage. Having discussed the matter with counsel, and having come, in effect, to an agreed view as to the appropriate way forward in this case, I would simply say that my answer to the question posed by district judge Finestein is in the affirmative, but with this rider. What I am deciding is that, without more, there was a case to answer at the end of the prosecution case. The appropriate course now is for the matter to be remitted and for the trial to proceed.

[20] It has been suggested to me that the better course would be for it to be remitted to district judge Finestein so that he could simply take up the case where he left off. There is much to commend that suggestion, and it would avoid his having to hear the prosecution case again, provided that he feels that he has sufficient apprehension of it after this period of time. There may be a practical difficulty in that, as I am informed that district judge Finestein no longer sits in Chorley but now sits in an area some 25 miles or so away from there. If that practical obstacle can be overcome, and if district judge Finestein feels able to take up the case from where he left off, it seems to me that it would be sensible for that course to be pursued. If, on the other hand, it is not practicable for him to take up the case where he left off in January, then it should be remitted for hearing before a differently constituted bench in Chorley.

[21] It follows from all I have said that this appeal by way of case stated succeeds. I have answered the question in the way that I have described, and the matter will be remitted upon the bases which I have just set out.

DISPOSITION:
Matter remitted to the magistrates' court for the hearing before the district judge to be continued or for hearing before differently constituted bench. Order for costs in the sum of £ 3,763.46.

SOLICITORS:
Local authority solicitor; Allansons for the respondent


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PostPosted: Sun Dec 07, 2014 4:17 pm 
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who won?

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PostPosted: Sun Dec 07, 2014 4:22 pm 
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wannabeeahack wrote:
who won?


the council

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