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Many thanks to both JD and Sussex for assistance in the article below.....without you it wouldnt have been possible, the following is in Taxitalks February issue, due out next week.
The Eagle has Landed
I sincerely hope my friend Gwen tipped the postman at Christmas because the letters received from disgruntled cab drivers (as explained above) is bulging with complaints about a certain company procuring services from the taxi trade. (Okay don’t mention postman and bulging sacks ever again in the same sentence......Ed)
Recently letters have emanated from taxi drivers up and down the West Coast mainline, which is operated by Virgin Trains and which is owned by an apparently very nice chap with a beard.
We are left to wonder if the guy with the beard (who could possibly be mistaken for Jesus) has any clue with what his company is seemingly allowing to happen to the humble cab driver up and down the country, we also wonder if he is aware of the potential illegality of the operation. All this is strange, I’m actually agreeing with some of my colleagues on taxi-driver online website who have been extremely helpful in researching this story!
You see, we are sure Jesus is aware that according to section 80 of the 1976 local government miscellaneous provisions act "operate" means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle.
We are also sure the bloke with the beard is aware that the sub contracting of private hire bookings across borders is expressly prohibited by way of case stated (Shanks vs. North Tyneside), and we are also certain that the holy one (who has a lot more money and lawyers than us so stop the smart ass comments.....Ed) is aware that the person who accepts the booking must ensure that all three licenses are the same (PH Operator, PH Vehicle and PH driver).
Of course, as a National magazine it would be negligent of us to fail to report that many taxi and private hire companies have told of difficulties in receiving payment from Virgin Trains chosen supplier, one having been told that not only did they have no money, you’d have to take them to court before they’d consider paying!
We are told that companies such as the one used by Virgin Trains are legitimate and are merely booking agents for the company requesting the travel. Presumably this is in the same way a travel agent will arrange you a taxi when you go abroad, the difference is they are not physically allocating the work to the vehicle / driver. This maybe okay for hackney carriage companies, but with private hire....we’re not so sure.
Again, I refer to the 1976 act and section 80, a private hire operator is a person who in the course of business makes provision for the invitation or acceptance of bookings for a private hire vehicle. It therefore follows that if the vehicle dispatched to the job is a PHV, then presumably the person who accepted the booking in the first place needs to be licensed, indeed (and going back to case-law) he needs to be licensed in the area where the vehicle and driver are licensed!
It does seem clear that at some point someone at Virgin Trains is telephoning their supplier and saying “Can you supply (or arrange for) me a taxi at this particular station”, the supplier is then contacting a taxi or private hire firm local to the station. In effect it’s a booking service via a third party, and whilst this is a grey area but possibly allowed in the world of hackney carriages, caselaw suggests it certainly isn’t within the sphere of private hire.
The news editor of TDO mentioned two cases, East Staffordshire Borough Council v Rendall & Bromsgrove vs. Powers, both cases are extremely interesting and of relevance.
In Bromsgrove vs. Powers the Judge stated the following;
The draftsman was alive to the concept of providing vehicles. Section 56(1) is of importance here since it shows that the draftsman plainly understood that an operator might or might not himself provide the vehicle. In view of this, it seems to me that Parliament deliberately decided to make the liability of an operator under s 46(1)(e) not dependent on whether he himself provided the vehicle. That is consistent with the narrow and, some might say, rather strained definition of operator in s 80(1).
Ms Parry submits that it is fairer and makes more sense that the operator who actually provides the vehicle and driver should be responsible for ensuring that the vehicle and driver used are licensed. In my judgment, however, Parliament has clearly imposed such an obligation on the operator regardless of whether he himself provides the vehicle and driver. In the result this appeal must be allowed. Accordingly I answer the three questions posed by the Justices "no", "no", and "yes".
So what the judge has basically stated is that there is an obligation on the operator, who may not necessarily provide the vehicle and driver himself, to ensure those who get the job are licensed by the same local authority. An operator cannot sub-contract work to an operator in another district and if he so does then that can be sufficient cause to refuse to renew an Operator's licence
In the Rendall case the judge referred to the following;
A little more help is to be gained from the unreported decision of this court in Kingston Upon Hull City Council v Wilson of 29 June 1995, the facts of which I need not relate. Addressing himself to s 46(1)(d), Mr Justice Buxton, in the leading judgment, having referred to Windsor v Khan said this:
"It is simply a question of asking, in common sense terms, whether there has been provision made in the controlled district for invitation or acceptance of bookings."
Indeed, in addition to the cases pointed out by TDO, in Dittah vs. Birmingham C.C (Choudhry vs. Birmingham CC), it was stated that an Operator may only use vehicles & drivers licensed by his own authority.
In the Royal Borough of Windsor & Maidenhead v Mahoob Khan, it was held that “Operate” relates to where bookings recorded not where received from.
In Murtagh & Carter (T/A Rubery Rednal Cars) vs. Bromsgrove D.C, it was stated that an Operator licensed in one district could not install dedicated free-phones in another district without falling foul of S46 of the 1976 Act.
The operation maybe perfectly legitimate, it maybe the case that the contract is between the individual private hire operator and with the management company themselves. After all, the management company are the ones who pay the bill.
We are slightly confused by all this, we are not aware of any caselaw on booking agents and this is what the management company appear to be, additionally there is no description of a booking agent or agency within the 1976 act. So the question is whether or not a booking agent is a private hire operator. It is clear the management company accept a booking from Virgin Trains and then sub-contract it. It is reasonable to presume they are charging for the vehicle with perhaps a small management fee for arranging the booking (either that or they are working for nothing).
Similarly there is no description in any Act for a person who accepts a pre-booking for a hackney carriage other than the obvious Hackney Carriage Driver or Hackney Carriage Proprietor. Now clearly it is in the byelaws of every cab driver in England and Wales that when accepting a pre-booking they must punctually attend, it is additionally in the model byelaws as provided by the DFT, arguably this acknowledgement is also included in Hackney proprietor’s license conditions. The question, as a result of the Berwick non decision, is still open, can any person set themselves up to accept and dispatch pre-bookings for hackney carriages?
The London private hire act allows London based private hire operators to sub contract work to their country cousins, but the 1976 act has no similar proviso, indeed as pointed out above, caselaw specifically prohibits it.
Indeed, the matter could have been further confused by the management company apparently using a call centre based in.....Malta! However, as our friends at TDO point out, the Rendell case was all about call diversion.
We can reveal that the licensing practices of the company in question are under investigation by their local licensing department, we will keep readers informed.
I’m sure Virgin Trains are aware that we are in a state of financial catastrophe within the UK, indeed, even the government (who are completely hopeless with small businesses) have issued directives to government agencies to pay suppliers within a certain timeframe. Yet Virgin Trains are seemingly not doing anything similar towards the taxi trade with their chosen management agent.
We find it reprehensible, especially in the current economic climate that the company involved are not paying their bills on time and we sincerely hope this matter is addressed by Virgin Trains.
Further to the above it also transpires that Virgin Trains have permitted (no pun....well only a bad one) the same company to take control of the permit system, this sells permits to hackney carriages to operate on Rail Station land, recent reports seem to suggest a growing resentment up and down the West Coast mainline towards the management company, particularly involving their perceived favoured treatment of coach companies over hackney carriages.
If you have encountered any problems similar to those outlined above, contact the magazine and let us know.
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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin
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FAQ
fao jesus at virgin 
you might want to edit the bit about Jesus though 