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On several occasions on TDO there have been discussions about the hire and reward element of private hire work undertaken by unlicensed persons and vehicles. Sussex has always gone to great lengths to inform everyone that money need not change hands in order for someone to break the law in offering a free service of carrying members of the public.
There are several cases that adequately provide a legal definition of unlicensed hire and reward. The following case sets out such an example and is another nail in the coffin of anyone who thinks they can provide a private hire service without holding the appropriate licenses.
I suspect those ladies in Pink will have to come up with a more inventive opt out clause than the one they propose to use for their little excursion into the hire and reward business.
ST ALBANS DISTRICT COUNCIL v TAYLOR
QUEEN'S BENCH DIVISION
[1991] RTR 400, 156 JP 120, [1991] Crim LR 852
HEARING-DATES: 22 May 1991
22 May 1991
Hackney carriage -- Licence -- 'Private hire vehicle' -- Unlicensed vehicle and driver used when proprietor short-staffed -- No charge made -- Whether proprietor operating vehicles as private hire vehicles -- Whether hiring -- 'Operate' -- 'Private hire vehicle' -- Local Government (Miscellaneous Provisions) Act 1976 ss 46(1)(e)(2), 80(1)
Section 46 of the Local Government (Miscellaneous Provisions) Act 1976 provides:
'(1) . . . (e) no person licensed . . . shall . . . operate any vehicle as a private hire vehicle -- (i) if for the vehicle a current licence . . . is not in force; or (ii) if the driver does not have a current licence . . . (2) If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.'
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 . . . which is provided for hire with the services of a driver for the purpose of carrying passengers.'
HEADNOTE:
The defendant, a licensed operator of a private hire car business, was on two occasions left short-staffed and unable to meet his pre-existing bookings. At his request his wife, who was not licensed as a private hire car driver, drove pre-booked customers to their destinations in her own vehicles, which were unlicensed. His wife told the customers that the journeys were free of charge and the vehicles were not licensed. The defendant was charged with offences against section 46 of the Local Government (Miscellaneous Provisions) Act 1976 of operating an unlicensed vehicle and operating a vehicle the driver of which was not licensed. The justices found that there had been no hiring and that the vehicles had not been operated as private hire vehicles and they dismissed the informations.
On appeal by the prosecutor:
Held, allowing the appeal, that the defendant was acting in the course of business within section 80(1) of the Act of 1976; that he was making provision for the acceptance of bookings and was therefore 'operating' the vehicles as private hire vehicles within section 80(1); that, although no payment of money had been made, the commercial benefit derived by the defendant in protecting the good will of the business sufficed for the transactions to constitute a hiring; and that, accordingly, the justices erred in dismissing the informations and the case would be remitted to the justices with a direction to convict.
Albert v Motor Insurers' Bureau [1972] RTR 230, HL(E) considered.
CASES-CITED:
Ledingham v Bermejo Estanicia Co Ltd; Agar v Bermejo Estanicia Co Ltd [1947] 1 All ER 749
Rael-Brook Ltd v Minister of Housing and Local Government [1967] 2 QB 65; [1967] 2 WLR 604; [1967] 1 All ER 262, DC
INTRODUCTION:
CASE STATED BY HERTFORDSHIRE JUSTICES SITTING AT ST ALBANS 1 On 12 December 1989, four informations were preferred by Michael Lovelady, solicitor to St Albans District Council, the prosectour, against Arthur Raymond Taylor, the defendant, that: (1) on or about 7 July 1989, the defendant, being a private hire vehicle operator licensed under section 55 of the Local Government (Miscellaneous Provisions) Act 1976, knowingly did, in a controlled district within the meaning of Part II of that Act, operate a vehicle as a private hire vehicle, Mrs Taylor, the driver of which vehicle did not have a current licence under section 51 of that Act, contrary to section 46(1)(e)(ii) of the Local Government (Miscellaneous Provisions) Act 1976; (2) on or about 7 July 1989, the defendant, being a private hire vehicle operator licensed under section 55 of the Act of 1976, knowingly did in a controlled district within the meaning of Part II of that Act, operate a vehicle as a private hire vehicle there being no current licence in force for the vehicle under section 48 of that Act, contrary to section 46(1)(e)(i) of the Act of 1976; (3) on or about 13 July 1989, the defendant, being a private hire vehicle operator licensed under section 55 of the Act of 1976, knowingly did in a controlled district within the meaning of Part II of that Act, operate a vehicle as a private hire vehicle, Mrs Taylor, the driver of which vehicle did not have a current licence under section 51 of the Act of 1976 contrary to section 46(1)(e)(ii) of that Act; (4) on or about 13 July 1989, the defendant, being a private hire vehicle operator licensed under section 55 of the Act of 1976, knowingly did in a controlled district within the meaning of Part II of that Act, operate a vehicle as a private hire vehicle, there being no current licence in force for the vehicle under section 48 of that Act, contrary to section 46(1)(e)(i) of the Act of 1976.
2 The justices heard the informations on 27 March 1990 and 10 July 1990 and found the following facts.
(A) The defendant was a private hire vehicle operator licensed under section 55 of the Local Government (Miscellaneous Provisions) Act 1976.
(B) Advance bookings were made and listed in the defendant's booking diary for journeys to take place on 7 July 1989, namely, from 6 Barton Road to Luton and 19 The Pleasance to Redbourn, and 13 July 1989, namely, from 19 The Pleasance to Redbourn, such journeys being within the controlled district within the meaning of Part II of the Local Government (Miscellaneous Provisions) Act 1976.
(C) On 23 June 1989, one of the defendant's employee drivers left his employ without giving notice as to his intention to terminate his employment. The defendant was consequently short-staffed in respect of existing bookings by customers for the defendant's services.
(D) The defendant employed part-time and evening drivers to fulfil those bookings for which he was lacking a driver but was unable to employ sufficient drivers in respect of all the existing bookings on 7 and 13 July 1989.
(E) The defendant asked Mrs Taylor to drive customers in respect of the journeys from 19 The Pleasance to Redbourn on 7 and 13 July 1989. The defendant told Mrs Taylor not to make a charge for the journeys nor to accept any tip.
(F) Mrs Taylor did drive the customers in her motor vehicle on those two journeys and did not receive any payment for the journeys nor any tip. She also drove another customer under similar conditions at the request of the defendant on 7 July 1989 from 6 Barton Road to Luton.
(G) Mrs Taylor was not the holder of a current licence under section 51 of the Local Government (Miscellaneous Provisions) Act 1976, nor was she an employee of the defendant on those journeys. No current licence was in force under section 48 of the Local Government (Miscellaneous Provisions) Act 1976 in respect of Mrs Taylor's vehicles which she used for the journeys.
(H) Mrs Taylor did tell the customers that the journeys were free of charge and that the vehicles being used to undertake the journeys were not licensed.
3 It was contended by the prosectour that: (i) the defendant was 'operating' a vehicle as a private hire vehicle as defined in section 80 of the Local Government (Miscellaneous Provisions) Act 1976; (ii) the defendant was 'carrying on a business' as defined in Rael-Brook Ltd v Minister of Housing and Local Government [1967] 2 QB 65 and that it was not essential that there should be a payment to constitute a business; (iii) the dictionary definition should be applied to the word 'bookings,' namely, the office where the names of people are booked; (iv) the definition of the words 'private hire vehicle' was contained in section 80 of the Local Government (Miscellaneous Provisions) Act 1976; (v) the dictionary definition of the word 'hire' indicated that there might be temporary use for compensation; (vi) hire did not necessarily involve payment; although payment might not have been made for a hiring, consideration might be found in the form of goodwill in the expectation of reward that future business might be received; (vii) occasional social kindness did not constitute a hiring; (viii) for a business to be carried on, it made no difference whether a business was running at a loss or a profit.
4 It was contended by the defendant that: (i) hire was a bailment for reward, a contract, an exchange of mutual promises whereby payment was made by a customer in return for a journey in a car; no payment was made for the journeys undertaken by Mrs Taylor, therefore no continuing contract existed; (ii) the test to be applied in determining whether Mrs Taylor's vehicles were being used for hire was that applied by the House of Lords in Albert v Motor Insurers' Bureau [1972] RTR 230, 231C being 'whether there had been a systematic carrying of passengers for reward which went beyond the bounds of mere social kindness;' there was no evidence that Mrs Taylor had been carrying passengers 'systematically,' Mrs Taylor undertook to drive customers on behalf of Mr Taylor as a result of the obligation that Mr Taylor felt towards his customers on those occasions.
5 The justices were referred to the following cases:
Albert v Motor Insurers' Bureau [1972] RTR 230, HL(E)
Rael-Brook Ltd v Minister of Housing and Local Government [1967] 2 QB 65; [1967] 2 WLR 604; [1967] 1 All ER 262, DC
Ledingham v Bermejo Estanicia Co Ltd; Agar v Bermejo Estanicia Co Ltd [1947] 1 All ER 749.
6 The justices were of the opinion that: at the request of the defendant, Mrs Taylor drove unlicensed vehicles to fulfil bookings made for the 7 and 13 July 1989 in respect of the defendant's diary entries relating to 19 The Pleasance to Redbourne and 6 Barton Road to Luton; in accordance with the defendant's instructions Mrs Taylor received no payment from the customers concerned; Mrs Taylor received no payment for those journeys from the defendant; in applying the test adopted by the House of Lords in Albert v Motor Insurers' Bureau [1972] RTR 230, 231C the justices considered that those free of charge journeys did not constitute 'a systematic carrying of passengers for reward which went beyond the bounds of mere social kindness.'
7 The justices found that there had been no hiring in respect of the informations relating to 7 and 13 July 1989 and that the vehicles were not operated as private hire vehicles. They, accordingly, dismissed the informations, and ordered that the defendant's costs should be paid from central funds, such costs to be submitted for taxation.
The prosecutor appealed.
The question of law on which the opinion of the court was sought was whether the justices were correct, on the facts found, in deciding that there had been no hiring and that the vehicles were not operated as private hire vehicles within the meaning of section 46 of the Local Government (Miscellaneous Provisions) Act 1976 on the two relevant occasions.
COUNSEL:
Stephen Hockman QC for the prosecutor; The defendant did not appear and was not represented.
PANEL: RUSSELL LJ, HODGSON J
JUDGMENTBY-1: RUSSELL LJ
JUDGMENT-1:
RUSSELL LJ: This is a prosecutor's appeal by way of case stated from the dismissal by Hertfordshire Justices sitting at St Albans on 10 July 1990 of four informations alleging contraventions of section 46(1)(e) of the Local Government (Miscellaneous Provisions) Act 1976.
The section is within Part II of the Act which is concerned with, inter alia, private hire vehicles. The underlying purpose of Part II is clear; it is to provide protection to members of the public who wish to be conveyed as passengers in a motor car provided by a private hire organisation with a driver. The vehicle has to be licensed before it can be so used and is subject to periodical inspection by the licensing authority to ensure its continuing suitability and safety -- see section 48. The driver has to be licensed by the same authority and cannot be licensed without the requisite experience -- see section 51.
What happened in this case is that the defendant, as the proprietor of a private hire car business, on two occasions provided members of the public with an unlicensed vehicle and an unlicensed driver. The question for determination is whether in the circumstances he committed an offence. The justices found that he did not.
The defendant was licensed under section 55 of the Act as an operator of private hire vehicles. On 23 June 1989 one of his employees left his employment without notice and, in consequence, as the justices found, the defendant was short staffed
'in respect of existing bookings by customers.'
On two occasions, on 7 and 13 July 1989 respectively, the defendant asked his wife to drive his customers to the destinations booked by them. The defendant told Mrs Taylor that she was not to make any charge for the journeys nor to accept a tip. Mrs Taylor used her own vehicles which were unlicensed under the Act. Mrs Taylor was not licensed under section 51. The justices found that Mrs Taylor told the customers
'that the journeys were free of charge and that the vehicles used were not licensed.'
The first two informations related to 7 July 1989. The first alleged that the defendant, being a private hire vehicle operator,
'knowingly did, in a controlled district within the meaning of Part II of the Act, operate a vehicle as a private hire vehicle, Mrs Taylor, the driver of which vehicle did not have a current licence under section 51.'
The second information was in like terms but alleged that, in relation to the vehicle used, no current licence was in force under section 48 of the Act. The third and fourth informations were in like terms relating to 13 July 1989. The terms of section 46(1)(e), a contravention of which by section 46(2) is an offence are as follows:
'no person licensed under the said section 55 shall in a controlled district operate any vehicle as a private hire vehicle -- (i) if for the vehicle a current licence under the said section 48 is not in force; or (ii) if the driver does not have a current licence under the said section 51.'
The word 'operate' is defined in the interpretation section, which is section 80:
'. . . "operate" means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle.'
I entertain no doubt that from beginning to end Mr Taylor was acting
'in the course of business.'
The justices were referred to Albert v Motor Insurers' Bureau [1972] RTR 230, 231C.
The facts of that case were so far removed from those in the instant case that, for my part, I derive no assistance from it. If the justices regarded the case as helpful in determining whether Mr Taylor was acting in the course of business, they misdirected themselves.
Much more difficult, however, is whether it is right to find, contrary to the findings of the justices, that the defendant was
'operating'
his wife's vehicles as private hire vehicles. I have come to the conclusion that he was because, in telling his wife to drive her own vehicle, he was making provision for the acceptance of the bookings that had been made by his customers within the meaning of
'operate'
to be found in section 80. There was no cancellation of those bookings; on the contrary the defendant was fulfilling them. He was not engaging upon a purely domestic arrangement such as would arise if Mrs Taylor was being asked to give a lift to friends of the defendant. The customers remained customers of the defendant despite what they were told by Mrs Taylor. Whilst the wording of section 80 might have been more happily phrased I do not think that to say Mr Taylor was making
'provision for the . . . acceptance of bookings'
unduly strains the language when applied to the unusual circumstances of this case. This construction of the section certainly achieves the purpose of the legislation to which I have earlier referred.
There remains for consideration the words
'private hire vehicle.'
Was the vehicle used by Mrs Taylor operated as a private hire vehicle?
Private hire vehicle is also defined in section 80. It reads so far as material:
'. . . "private hire vehicle" means a motor vehicle . . . which is provided for hire with the services of a driver for the purpose of carrying passengers.'
By paragraph 7 of the case the justices found
'that there had been no hiring in respect of the informations relating to 7 and 13 July 1989 and that the vehicles were not operated as private hire vehicles . . .'
For my part I have to disagree with this finding. It is true that no payment in respect of the journeys was sought or paid. However, I am quite unable to accept that the journeys were undertaken without any consideration on a purely domestic or social, as opposed to a commercial, basis. Mr Taylor arranged for the carriage of his customers in order to fulfil what he regarded as his contractual obligation. Without that contractual obligation he would not have carried his customers on the journeys that they had booked with Mr Taylor's private hire vehicle business. No doubt in doing as he did Mr Taylor was protecting the good will of that business rather than let down his customers or transfer their custom to a competitor.
To constitute a hiring it is not necessary, in my judgment, that in all the circumstances there should be the payment of money. If the hirer can fairly be said to derive commercial benefit from the transaction then a hiring may take place, and in my view it did take place in the unusual circumstances of this case.
Accordingly, for the reasons I have endeavoured to outline, I have come to the conclusion that the justices fell into error by dismissing these informations.
I would allow this appeal and order that the informations be remitted to the justices with a direction to convict. I have every sympathy with the justices who had to grapple with provisions which are not easy to construe and with a very unusual factual background. No doubt, having made the findings of fact that they did, the justices will be able substantially to mitigate the penalty imposed upon the conviction of the defendant.
JUDGMENTBY-2: HODGSON J
JUDGMENT-2:
HODGSON J: I agree and I too express sympathy with the justices who were asked to construe a provision in an Act of Parliament which, in my judgment, is not well drafted.
I think the reason why the definition of 'operate' in section 80 of the Act sits, to say the least, extremely uncomfortably in section 46(1)(e) of the Act is because with that obsession of providing definitions of ordinary words, which many draftsman seem to have, he thought that a definition was necessary for sections 55 and 56 of the Act which deal with the licensing of operators of private hire vehicles and operators of private hire vehicles and the requirements they have of making certain entries.
I suspect that in doing so, and for my part I cannot see that any harm would have been done by leaving the word 'operate' undefined, he forgot that he had also used the word 'operate' in section 46(1)(e). It may well be that the justices found the construction of section 46(1)(e), in those circumstances, extremely difficult, as for my part, I also did.
That said, I agree with the construction of the section which Russell LJ has advanced. It is the only construction which gives effect to what is clearly the intention of the Act.
DISPOSITION:
Appeal allowed. Adjudication of justices set aside. Case remitted to the justices with a direction to convict.
No order as to costs.
SOLICITORS:
For the prosecutor: Sharpe Pritchard & Co for Michael Lovelady, St Albans.
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