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Tudor v ellesmere port http://www.taxi-driver.co.uk/phpBB2/viewtopic.php?f=3&t=2953	Page 1 of 1

Author:	JD [ Wed Dec 14, 2005 2:06 am ]
Post subject:	Tudor v ellesmere port
Ellesmere port tried to brand this lady as not being a fit and proper person to hold a license, it is also interesting to read the judges comments on what he says about a Proprietor? Tudor v Ellesmere Port and Neston Borough Council Queen's Bench Division (Crown Office List) HEARING-DATES: 7 May 1987 7 May 1987 COUNSEL: A Edis for the Appellant; M Hedley for the Respondent PANEL: May LJ and Roch J JUDGMENTBY-1: MAY JUDGMENT-1: MAY LJ. This is an appeal by way of case stated against a decision of the Crown Court at Mold, dismissing the present appellant's appeal against the respondent council's refusal to grant her two Hackney carriage licences of her application. The relevant statutory provision is contained in the Town Police Clauses Act, 1847, section 37 of which gives power to commissioners who, over the 140 years since the passage of that Act, now means the Council, to issue Hackney carriage licences. Before 6th January, 1986, the commissioners' power under section 37 of the 1847 Act was to issue licences to such number as they thought fit, and indeed the policy of the council until that date was to issue no more than 20 licences within their area and, if a licence fell vacant, it was issued to the first person on the waiting list which the local authority held. By section 40 of the 1847 Act an application for a Hackney carriage licence is described as a "requisition" for one, and has to be made by the proprietor or one of the proprietors in respect of which such a licence is applied for. However, on 6th January, 1986 section 16 of the Transport Act, 1985 came into force. That amended section 37 of the 1847 Act to the effect that a grant of a licence may now be refused by the local authority for the purpose of limiting the number of Hackney carriages in respect of which the licence is granted if, but only if, the person authorised to grant licences, that is to say the council, is satisfied that there is no significant demand for the services of Hackney carriages within the area to which the licence would apply which is unmet. By virtue in particular -- I say in particular because the statutory devolution is complicated to say the least -- of the Public Health Act Amendment Act 1890, section 7(1) and the Courts Act, 1971, a person aggrieved about the decision of a local authority to refuse the grant of a licence on such a requisition can appeal to the Crown Court. On 25th June, 1985, the present appellant applied by way of requisition to the local authority respondent for the grant of two Hackney carriage licences. That application was refused on two grounds: first, that the licences concerned had already expired when the application was made; and, secondly, in accordance with its policy the two plates, that is to say, the two licences, had to be offered to the next person on the official waiting list. In October, 1985, the appellant gave Notice of Appeal, and that was heard and dismissed, as I have indicated, by the Mold Crown Court on 14th February, 1986. By then, of course, section 16 of the 1985 Transport Act had come into force. Consequently, the grounds upon which the council relied in the first instance were not open to the Crown Court when the matter came before them. In the event, the Crown Court dismissed the appeal against the council's refusal to grant the Hackney carriage licences on two bases: first, that the appellant had failed to establish her ownership of the two vehicles concerned; and, secondly, that the court was satisfied that she was not a fit and proper person to hold a licence. For reasons which will become apparent, for my part I do not think it necessary or indeed desirable to go into any great detail on the facts and circumstances of the present case. The suggestion or contention that this appellant was not a fit and proper person to hold a licence only emerged in the course of the final speech by counsel for the respondents, that is to say, the local authority. No specific allegations had been made against the appellant; no warning had been given that this sort of contention would be made; and she had in fact been given no opportunity to deal with the allegations against her. No doubt her counsel at the appeal hearing could then have asked for an adjournment and particulars and leave to call further material, but for practical purposes, in my judgment, it was then really too late. In the light of such authorities as R v Barnsley Justices, Ex parte Hook [1976] 3 All ER 452, [1976] 1 WLR 1053, to which I need not refer further in detail, in my opinion, natural justice (which really means no more than fairness) required the Crown Court, in the circumstances I have outlined, either to decline to find that this appellant was not a fit and proper person to hold a licence, when the contention had been raised so late in the day or, of its own motion, to have required the respondents to particularise the allegation and to give the appellant and her counsel a full opportunity of dealing with it. I would add, in fairness to the appellant, that it was the evidence of the respondents' own chief witness and indeed their own Hackney carriage licensing officer that, as far as he was aware, the appellant was a fit and proper person to hold a licence. Therefore, on this ground alone, namely, the absence of fairness in the ultimate decision, in my opinion it is clear that the Crown Court's decision on the appeal to them cannot stand and that appeal must go back for further hearing. On the other point, that of ownership, it seems to have been common ground between the parties and indeed the court that for the purposes of section 37 and 40 of the Town Police Clauses Act 1847 this, that is ownership, is a critical factor. The Act, however, speaks of a "proprietor" of a taxi. It may be that in many cases that is the same as the owner of a taxi, but I do not think that it is necessarily the same and what that may involve and what it involved in the instant case was not investigated by the Crown Court. however, in the light of the decision to which I have come on the other point in the case, it is not necessary for me to consider further the question of the precise meaning of the word "proprietor" in the statute, nor the Crown Court's decision in the instant case that the appellant had not shown that she was the owner of the vehicles involved. On that first basis, in my judgment, we should allow this appeal, set aside the decision of the Crown Court below and I , for my part, would remit the whole matter to be reheard, in the light of this judgment, by a differently constituted Crown Court. I would allow this appeal to that extent. JUDGMENTBY-2: ROCH J JUDGMENT-2: ROCH J. I agree. DISPOSITION: Appeal allowed with costs and case remitted to a differently constituted Crown Court. SOLICITORS: Silverback & Co, Liverpool; S Ewbank, Ellesmere Port and Neston Borough Council, Ellesmere Port.

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