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R. (on the application of Kelly) v Liverpool Crown Court

Court of Appeal (Civil Division)

19 January 2006

Delay; Local authorities powers and duties; Operators licences; Taxis

Taxis; Operators licences; Delays in appeal process; Local authority's policy change

The appellant taxi operator (K) appealed against the refusal ([2004] EWHC 1430) of his application for judicial review of a decision of the respondent Crown Court to dismiss his appeal against the withholding of certain taxi licences by a local authority (W). K had applied for 10 licences during 1991, a further 10 licences during 1993 and in 2002 he applied for four more. His first application was refused by W on the ground that there was no significant unmet demand. However, on appeal it was held that there was unmet demand and an order was made that the application was to be remitted to W for further consideration. W did not immediately reconsider K's application but invited K and other taxi operators to apply for 15 recently issued licences. K did not respond to that invitation on the basis that he already had applications before W. In due course, the 15 licences were issued to other operators. K's second application had been left in abeyance awaiting the outcome of the appeal relating to the first application. K took no further action in respect of either application until eventually, in 2001, he was granted an extension of time in which to appeal against the withholding of the licences that he maintained should have been issued to him.

In 2002, W changed its policy and licences were no longer limited by reference to unmet demand, although vehicles had to be no more than three years old from the date of first registration. K made his final application in 2002 under the new policy. K's application for judicial review was refused on the basis that the delays that had arisen during the course of the proceedings posed an "insurmountable barrier" to the court and the Crown Court had been correct to apply the new policy adopted by W. The judge below also held that K's 1991 application had not been remitted to W, and that K's failure to reapply for licences when the 15 licences were issued was fatal to his judicial review application.

K submitted that (1) delays prior to the appeal coming to the Crown Court were irrelevant to the question of whether judicial review was available; (2) it was clear that the 1991 application had been remitted to W on order of the court and that there was therefore no reason why K should have responded to the invitation from W; (3) the court's approach in applying the new policy in a blanket fashion as a complete answer to K's application was wrong in law, on the basis of the decision in Sagnata Investments Ltd v Norwich Corp [1971] 2 Q.B. 614 CA (Civ Div). The court should have had regard to the special circumstances of the case and to what extent it was fair to apply the policy, brought in in 2002 but not in existence when the application should have been reconsidered. The correct approach would have been to allow K's application under the new policy but waiving the requirement that vehicles should be less than three years old.

Held, allowing the appeal, that (1) the court had been wrong to take the delay prior to the appeal to the Crown Court into account when considering whether to grant the application for judicial review. The only delay that was relevant was the delay that had occurred since the decision of the Crown Court. (2) The court had been wrong to take the view that K's 1991 application had not been remitted to W for reconsideration. The wording of the order was clear. K had made a valid application in 1991 and W was not entitled to insist that K made a further application in 1996 to have his 1991 application considered. (3) The court had been guilty of an error in law.

K's claim should have been dealt with before the new policy came into being and it had been unfair and unjust to apply the policy rigidly in K's case, Sagnata cited. It was out of proportion to the importance of the case and to the amount of money involved to remit the case to the Crown Court. In considering the maximum number of licences that should have been issued to K under the unmet demand regime, taking into account all the circumstances it was fair and just to award K five licences.

Judge: Waller, L.J.; Dyson, L.J.; Neuberger, L.J.

Counsel: For the appellant: Richard Colbey. For the respondent: Andrew Edis QC, Brian Cummings

Solicitor: For the respondent: Hill Dickinson
Appellate History

Queen's Bench Division (Administrative Court)
R. (on the application of Kelly) v Liverpool Crown Court
[2004] EWHC 1430 (Admin)

Reversed by

Court of Appeal (Civil Division)
R. (on the application of Kelly) v Liverpool Crown Court
[2006] EWCA Civ 11

Significant Cases Cited

Sagnata Investments Ltd v Norwich Corp
[1971] 2 Q.B. 614; [1971] 3 W.L.R. 133; [1971] 2 All E.R. 1441; 69 L.G.R. 471; (1971) 115 S.J. 406; (CA (Civ Div))
Legislation Cited

Civil Procedure Rules 1998 (SI 1998 3132)

Public Health Acts Amendment Act 1907 (c.53) s.7(1)

Town Police Clauses Act 1847 (c.89) s.37
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Cummings v Cardiff CC

Court of Appeal (Civil Division)

11 July 2005

Allocation; Licences; Licensing Committees; Taxis

allocation; licences; taxis; decision to remove limits on hackney carriage vehicle licences

The appellant taxi operator (C) appealed against the refusal of his application for judicial review of a decision made by the respondent local authority. C was the proprietor of a number of companies that operated taxis and controlled a number of hackney carriage vehicle licences. The local authority's licensing and public protection committee had decided (the first decision) to conduct a lottery for the purposes of issuing six licences, which decision was made in response to proper consultation that showed that taxi owners were against a lottery.

The basis of the first decision was a report based partly on a survey of demand. Later a second report was prepared following further consultation and subsequently the committee decided to remove the limit on the number of licences (the second decision). C challenged the first decision alleging that the first report had misled committee members by suggesting that there was no waiting list available on the basis of which licences could be allocated according to the date order of applications.

C challenged the second decision alleging that it was tainted by the committee's earlier rejection of the method of allocation based upon the waiting list. The court dismissed C's applications and determined that there were no defects in the process by which the committee had reached the first decision and that the second decision was a lawful decision reached on a fair consideration of the relevant factors. C appealed against the judge's conclusion that the second decision had not been tainted by an allegedly inaccurate report that was the basis of the first decision. C argued that deficiencies in the local authority's decision-making process around the time of the first decision were carried forward to and had tainted the second decision.

Held, dismissing the appeal, that the local authority's second decision was entirely justified. It was entirely separate from and independent of the first decision. In the absence of bad faith or bias on the part of the local authority it was difficult to see how the second decision could be tainted by problems with the first decision. There were no allegations or evidence of bad faith or bias. The local authority had not taken anything into account that they should not have taken into account when reaching the second decision, which was rational and one that the local authority was fully entitled to reach.

Judge: Lord Phillips of Worth Matravers, M.R.; Buxton, L.J.; Scott Baker, L.J.

Counsel: For the appellant: Michael Bromley-Martin QC, Nik Yeo. For the respondent: Graham Walters

Solicitor: For the appellant: Dolmans. For the respondent: Local Authority Solicitor

Appellate History

Queen's Bench Division (Administrative Court)
Cummings v Cardiff CC
[2004] EWHC 2295

Affirmed by

Court of Appeal (Civil Division)
Cummings v Cardiff CC
[2005] EWCA Civ 1061;
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R. (on the application of Kelly) v Liverpool Crown Court (Permission to Appeal)

Court of Appeal (Civil Division)

04 May 2005

Discretionary powers; Licences; Local authorities powers and duties; Taxis

licences; taxis; Crown Court's discretionary power to issue licences

The applicant (K) applied for permission to appeal against a decision that the respondent Crown Court had been correct to dismiss his appeal against the local authority's refusal to consider his hackney carriage licence applications. Following the local authority's refusal to grant him a number of hackney carriage licences, K had successfully appealed and the court had ordered the local authority to grant the licences. On appeal, the High Court had considered that decision to have been in error and, although the matter was not formally remitted, it was clear from the judgment that the court expected the applications to be returned to the local authority for consideration.

However, the local authority had simply invited further applications for licences and, believing that his original applications had been remitted for separate consideration, K had not responded.

The local authority had then refused to consider K's original applications.

The Crown Court dismissed K's appeal against that decision. The local authority's policy on hackney carriage licences had changed fundamentally since the time of K's original applications and the Crown Court had applied the new policy. K submitted that the judge had erred in considering that, in making its decision, the Crown Court had been correct to have regard only to the new policy.

Held, granting the application, that it was arguable that the Crown Court had been wrong in having regard only to the local authority's new policy. It was entitled to have regard to the policy but was not bound by it, Sagnata Investments Ltd v Norwich Corp [1971] 2 Q.B. 614 applied. Given the extraordinary history of the instant case it was at least arguable that it was open to the court to exercise its discretion to depart from the local authority's policy and to grant at least some of the licences itself.

Judge: Carnwath, L.J.

Counsel: For K: Mr Colbey. For The Crown Court: Not specified. For the local authority: Not specified

Significant Cases Cited

Sagnata Investments Ltd v Norwich Corp
[1971] 2 Q.B. 614; [1971] 3 W.L.R. 133; [1971] 2 All E.R. 1441; 69 L.G.R. 471; (1971) 115 S.J. 406; (CA (Civ Div))
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R. (on the application of Newcastle City Council) v Berwick-Upon-Tweed BC

Queen's Bench Division (Administrative Court)

05 November 2008

Subject: Licensing

Discretion; Licences; Private hire vehicles; Taxis

Summary: Taxis; Licences; Power of local authority to grant hackney carriage licence; Grant of licence where area of operation different from local authority's area

The claimant local authority (N) claimed a declaration that it was unlawful for the defendant local authority (B) to grant a hackney carriage licence to a proprietor where it was not satisfied that the vehicle, if licensed, would ply for hire in B's area. N and B licensed hackney carriage proprietors and drivers and private hire vehicles, private hire operators and private hire drivers. Under the Transport Act 1985 s.16 , N limited the number of hackney carriage licences issued as it was satisfied that there was no significant unmet demand for the services of hackney carriages within the city. B was of the view that it was not open to it to refuse to issue licences to hackney carriage proprietors unless either the vehicle or the proprietor were unfit. Therefore, the fact that a proprietor was not living within B's area was not considered to be a valid reason for rejecting an application. A large number of hackney carriages licensed by B were used by private hire operators within N's area to fulfil pre-booked hire contracts. As N was not the licensing authority it had no enforcement powers over those vehicles and the vehicles were not subject to the same conditions as those imposed by N.

Declaration granted. (1) Under the Town Police Clauses Act 1847 s.37 , B had a discretion to refuse to issue licences to those who had no intention of exercising their right to ply for hire in B's area, or to those who intended to use the vehicle predominantly in an area remote from B. The intention behind the licensing system was that it should operate in such a way that the authority licensing hackney carriages was the authority for the area in which those vehicles would generally be used. A local authority, properly directing itself, was entitled and obliged to have regard to whether the applicant intended to use the licence to operate a hackney carriage in that local authority's area. Whilst it was unlikely to be rational to grant a licence to an applicant that intended to operate remotely from B's area, it was not bound to be unlawful to do so and it was not essential for B to use the Local Government (Miscellaneous Provisions) Act 1976 s.57 to ascertain the intention of applicants with regard to where they were going to operate. (2) N was not entitled to prosecute, under s.46 of the 1976 Act, those using hackney carriages to fulfil pre-booked hirings in its area even where the licence had been obtained from a local authority remote from N's area, Brentwood BC v Gladen [2004] EWHC 2500 (Admin), [2005] R.T.R. 12 followed, Kingston upon Hull City Council v Wilson Times, July 25, 1995 DC and Wrexham CBC v Whalley Unreported MC considered.

Judge: Christopher Symons Q.C.

Counsel: For the claimant: John McGuinness QC, Alexandra Ward. For the defendant: Charles Holland. For the first interested party: Peter Maddox. For the second interested party: Jonathan Rodger

Solicitor: For the claimant: In-house solicitor. For the defendant: James Button & Co as agents for in-house solicitor. For the first interested party: National Private Hire Association. For the second interested party: Nicholson and Morgan

Significant Cases Cited

Brentwood BC v Gladen
[2004] EWHC 2500 (Admin); [2005] R.T.R. 12; Times, November 1, 2004; [2005] A.C.D. 21; (DC)

Kingston upon Hull City Council v Wilson
Times, July 25, 1995; (DC)
Legislation cited

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.46(1)(a)

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.46(1)(b)

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.46(1)(d)

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.46(1)(e)

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.46(2)

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.47

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.50

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.55

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.57(3)

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.59

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.60

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.61

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.67

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.68

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.80

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.80(1)

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.46

Local Government (Miscellaneous Provisions) Act 1976 (c.57) s.57

Local Government Act 1974 (c.7)

Local Government Act 1933 (c.51)

Local Government Act 1894 (c.73)

Public Health Act 1875 (c.55)

Town Police Clauses Act 1847 (c.89) s.38

Town Police Clauses Act 1847 (c.89) s.40

Town Police Clauses Act 1847 (c.89) s.41

Town Police Clauses Act 1847 (c.89) s.42

Town Police Clauses Act 1847 (c.89) s.43

Town Police Clauses Act 1847 (c.89) s.44

Town Police Clauses Act 1847 (c.89) s.45

Town Police Clauses Act 1847 (c.89) s.53

Town Police Clauses Act 1847 (c.89) s.65

Town Police Clauses Act 1847 (c.89) s.68

Town Police Clauses Act 1847 (c.89) s.37

Transport Act 1985 (c.67)

Transport Act 1985 (c.67) s.16

Can Alex make a sticky of this please.

CC

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