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PostPosted: Sun Apr 30, 2006 10:32 pm 
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Those Pink ladies again?

PITTS v LEWIS

QUEEN'S BENCH DIVISION

[1989] RTR 71, 153 JP 220

HEARING-DATES: 16 May 1988

16 May 1988

Hackney carriage -- Private hire vehicle -- Exemption from hackney carriage licensing provisions -- Contract for sole supply of vehicle services for use by staff and passengers for 24 hours every day of year -- Whether imperative for vehicle to be identified -- Whether contract breached if other vehicle supplied -- Whether exemption established -- 'Operate' -- 'Private hire vehicle' -- Local Government (Miscellaneous Provisions) Act 1976 ss 46(1)(a)(2), 48(1)(5), 75(1)(b), 80(1) -- Transport Act 1980 s 43 Sch 5 Pt II -- Transport Act 1985 s 139(2), Sch 7 para 17(1)

HEADNOTE:
Section 46 [in Part II] of the Local Government (Miscellaneous Provisions) Act 1976 provides:

'(1) . . . (a) no person being the proprietor of any vehicle . . . shall use or permit the same to be used . . . as a private hire vehicle without having for such vehicle a current licence . . . (2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.'

Section 48 provides:

'(1) . . . a district council may on the receipt of an application from the proprietor of any vehicle for the grant in respect of such vehicle of a licence to use the vehicle as a private hire vehicle, grant in respect thereof a vehicle licence . . . (5) Where a district council grant under this section a vehicle licence in respect of a private hire vehicle they shall issue a plate or disc identifying that vehicle as a private hire vehicle in respect of which a vehicle licence has been granted . . .'

Section 75(1) [also in Part II] provides:

'Nothing in this Part of this Act shall . . . (b) apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days . . .'

Section 80(1) provides:

'. . . "operate" means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle . . . "private hire vehicle" means a motor vehicle constructed or adapted to seat . . . passengers . . . which is provided for hire with the services of a driver for the purpose of carrying passengers . . .'

INTRODUCTION:
Case stated by City of Coventry Justices

COUNSEL:
Stephen Hockman for the prosecutor, Andrew Henry Pitts, Coventry City Secretary;

RH Tedd for the defendant, Roy Anthony Lewis.

PANEL: PARKER LJ and SIMON BROWN J

JUDGMENTBY-1: Parker LJ

JUDGMENT-1:
Parker LJ This is an appeal by way of case stated by City of Coventry Justices in respect of their finding as a magistrates' court sitting at St Mary's Hall, Coventry.

On 30 April 1987 an information was preferred by the prosecutor, Andrew Henry Pitts on behalf of Coventry City Council, against the defendant, Roy Anthony Lewis, that he, being the proprietor of a motor vehicle, registration number DHP 275Y, did operate the vehicle as a private hire vehicle on 14 December 1986 without having a current licence issued for the vehicle under section 48 of the Local Government (Miscellaneous Provisions) Act 1976, contrary to section 46 of that Act.

Section 45 provides the machinery by which Part II of that Act should be brought into force. There is no doubt that in the present case the provisions of the Act had been brought into force. Section 46(1) [as amended by section 139(2) of and paragraph 17(1) in Schedule 7 to, the Transport Act 1985] in so far as material provides:

'Except as authorised by this Part of this Act -- (a) no person being the proprietor of any vehicle, not being a hackney carriage or London cab in respect of which a vehicle licence is in force, shall use or permit the same to be used in a controlled district as a private hire vehicle without having for such a vehicle a current licence under section 48 of this Act . . .'

It is necessary to read also in part the provisions of section 80(1) [as amended by section 43 of, and Part II of Schedule 5 to, the Transport Act 1980 and section 17(3) of, and paragraph 17(3) in, the Transport Act 1985]. That is the definition section, and it provides two definitions which are of relevance:

'. . . "operate" means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle . . . "private hire vehicle" means a motor vehicle constructed or adapted to seat fewer than nine passengers, other than a hackney carriage or public service vehicle or London cab, which is provided for hire with the services of a driver for the purpose of carrying passengers . . .'

I return to section 46(1). There is provision in 46(1)(d) that:

'No person shall in a controlled district operate any vehicle as a private hire vehicle without having a current licence under section 55 of this Act.'

The wording of the information does not follow section 46(1)(a), but the proceedings before the magistrates' court plainly proceeded on the basis that the charge was intended to mean and it was certainly always understood to mean that there had been a breach of section 46(1)(a): that is to say, the accused had caused or permitted the vehicle to be used as a private hire vehicle.

Section 46(2) provides.

'If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.'

It was submitted that there was a defect in the summons, as there plainly was, but it is a defect which undoubtedly, had the point been raised, would have been cured by section 123 of the Magistrates' Courts Act 1980. It appears to me that there is no substance in the point that the summons was defective in this way.

Section 75 of the Act of 1976 provides:

'(1) Nothing in this Part of this Act shall . . . (b) apply to a vehicle used only for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days . . .'

The substantive defence raised before the magistrates' court was that the present instance was one where there was a defence under section 75.

With that preliminary I now go to the facts as found by the justices in paragraph 2 of the case. They are as follows:

'(a) On 14 December 1986 a vehicle belonging to the defendant and driven by one of his drivers was observed by Mr Cross, the hackney carriage officer employed by the prosecutor, and the two police officers, Police Constable Stephen Bentley and Woman Police Constable Catherine Donaghan to be carrying passengers from the Park Lane Night Club. (b) The passengers were customers from the Park Lane Club who were paying themselves for the cost of the journey, although the justices accepted that the defendant believed that the vehicle was being used at the expense of the club on this occasion for carrying members of staff from the Park Lane Club. (c) The vehicle did not have a private hire licence. (d) There was in existence a contract between the defendant and the owners of the Park Lane Night Club, F & H Entertainments Ltd for the sole supply of vehicle services for use by staff and customers of the club if required 24 hours per day, seven days a week, 365 days a year. This contract had been in existence for at least 10 years. (e) The vehicle supplied pursuant to the contract was kept at the defendant's premises at all times when not in use pursuant to that contract. (f) The defendant had informed his drivers of the existence of the contract and that the vehicle was available solely on business originating from the club.'

There are then set out in paragraphs 3 and 4 the rival contentions of the parties, which it is unnecessary to read. In paragraphs 6 and 7 the justices go on:

'6 We were of the opinion that the contract did afford the defendant a defence under section 75(1)(b) of the Local Government (Miscellaneous Provisions) Act 1976. The fact that the vehicle returned to the defendant's premises after each journey was completed and that F & H Entertainments Ltd only paid for work that was done rather than a fixed fee we found to be entirely consistent with this. 7 We were also of the opinion that the action of the defendant's driver in carrying passengers who were themselves paying for the hire of the vehicle constituted an operation of the vehicle on 14 December 1986 as a private hire vehicle without the licence required by section 48 but, in fact, the driver did so without the defendant's knowledge or authority and that the driver's action was outside the terms of the contract between the defendant and F & H Entertainments Ltd. In consequence the defendant did not knowingly commit the offence alleged against section 46 of the Act.' Then there are annexed copies of the notes of evidence, because it was at one time sought to challenge the findings of fact which I have read. That challenge is not being pursued in this court and it is not therefore necessary to look at the notes of evidence.

The questions for the opinion of the court are two-fold. The first is whether there was any evidence to justify certain of the findings. That does not now arise.

The second question is whether the contract in existence in this case was capable of affording the defendant a defence under section 75(1)(b) of the Local Government (Miscellaneous Provisions) Act 1976.

With regard to the main point, that is to say, whether there was here a defence under section 75, it is to be noted that the offence is an offence of using a vehicle without a licence under section 48. That means that one has to look at the particular vehicle and then answer the question whether that vehicle is being used only for carrying passengers for hire or reward under a contract for the hire of that vehicle for a period of not less than seven days. It must therefore be shown that the particular vehicle which it is said has been used in contravention of the Act was itself a vehicle which was being used for carrying passengers for hire or reward under a contract for the hire of the vehicle for a period of not less than seven days.

It was submitted on behalf of the defendant that in this case the contract in question between the proprietor and the night-club proprietors was such a contract, but the findings of the justices do not support such a proposition. All that is said is that there was in existence a contract for the sole supply of vehicle services for use by staff and passengers for 24 hours a day for every day of the year.

It is true that on the findings the vehicle in fact supplied was kept at the defendant's premises at all times when not in use pursuant to that contract, but there is no finding that it would have in any way been a breach of such contract as existed between the owner of the vehicle and the club if some other vehicle than the one which they chose to use had been supplied pursuant to the contract.

It is not strictly necessary to note what the evidence was in this respect, but, having seen it annexed to the case, it becomes clear that on this occasion a particular type of vehicle was sought and supplied pursuant to an individual request. For a defence under section 75 to be made out it must in my view be a contract for hire for a minimum period of seven days and it must relate to a particular identified vehicle. If it does so relate it does not appear to me that the defence under section 75 is defeated merely because the vehicle is not left in the possession or the control of the hirer for the whole of the period. I see no objection to the vehicle when not being used returning to the proprietor's premises. Nor do I see that section 75 requires the payment which is to be made, and which constitutes the vehicle as being a vehicle used for carrying passengers for hire or reward, to be a fixed fee. It is common in many parts of the vehicle hire business for vehicles to be hired on the basis that there shall be some fixed charge, but that in addition there should be charges related to either the mileage or the number of hours during which the vehicle is actually used. But it is imperative, if a defence under section 75 is to be made out, that the vehicle should be identified, and in such circumstances it would be a breach of contract for the proprietor to supply another vehicle.

Having said that, I ought perhaps to indicate that the contract might be one which in certain circumstances enables the proprietor to supply another vehicle if, for example, the designated vehicle suffered an accident or other mishap which rendered it impossible to supply it. In those circumstances different considerations might arise. The initial vehicle, as it seems to me, would fall within section 75, but whether the substitute vehicle would fall within section 75 would depend upon the balance of the period under the contract yet remaining. If it was for less than seven days then section 75 would not apply. If it were for more than seven days section 75 might apply, and that would depend in its turn on whether the substitute vehicle then became the contractual vehicle or whether it was intended that there should be a return to the original vehicle, in which case it might be clear that the substitute was not a vehicle which came within the provisions of section 75.

Accordingly, I would take the view that section 75 was not capable in the circumstances of affording a defence in this case and I answer the second of the two questions posed in the case in the negative.

A further matter was raised, although not the subject of a question in the case, whether there was a defence under section 46 at all. That was based on paragraph 7 of the case, which I have already read. There is also a finding in paragraph 2(b) that the defendant believed that the vehicle was being used at the expense of the club. Supposing that section 75 does not apply, as in my view it does not, one reverts to section 46. There can be no doubt here that the proprietor was fully aware that there was in force no licence under section 48. There can be no doubt that the proprietor here permitted the vehicle to be used without a licence. Accordingly, section 46(1)(a) was fully proved. The fact that section 46(2) provides the offence only if a person knowingly contravenes the provisions of the section does not appear to me to avail the defendant in this case, for the simple reason that he did knowingly permit, or indeed cause, this vehicle to be used in a controlled district as a private hire vehicle. The fact that it was being used in a particular manner which he did not believe does not appear to me to be of relevance.

Accordingly, as I have said, question 2 should be answered in the negative, question 1 does not arise, and the case must be remitted to the justices with a direction to convict.

JUDGMENTBY-2: Simon Brown J

JUDGMENT-2:
Simon Brown J I agree.

DISPOSITION:
Appeal allowed with costs not to exceed the defendant's legal aid contribution. Legal aid taxation of defendant's costs. Case remitted to the justices with a direction to convict

SOLICITORS:
Sharpe Pritchard for AH Pitts, Coventry;

Segan & Co, Coventry


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PostPosted: Fri May 19, 2006 11:33 pm 
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theyre trying to use this one up here :shock:

1 pink lady X amount of members ?

shurly Shomeones having a laugh (bad connery impreshion i know)

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