|
From the very first day cross-border issues were tested by local
authorities in the Courts, briefly those cases include Dittah -v-
Choudhry, Top Cars -v- Windsor, Powers -v- Bromsgrove, East
Staffordshire -v- Rendell, Murtagh -v- Bromsgrove, and Shanks (Blue
Line) -v- North Tyneside. All these cases have, since the first,
followed the same pattern of determination. It may well be that that is
because a number of these have been heard by the same Judge; or it may
just be that the first decision was of sufficient gravitas to ensure
the same result came forward each time these matters came to Court.
1. However, the fact remains that the overall decision of the Courts has
been that it is unlawful for a private hire operator to sub-contract
work across borders, whatever the circumstances of the initial contract.
The initial view held in Choudhry and Dittah, and upheld in all the
cases since then, is that once an operator's licence is issued, it is
unlawful for that private hire operator to use any other private hire vehicle or
driver than those licensed by the same authority; but that once so
licensed,the car and driver may be used to pick up and drop off anywhere
in the country.
2. Thus in Choudhry and Dittah, the two operators - both licensed by
Birmingham - were making use in Birmingham of vehicles licensed by
numerous other authorities: Solihull, Wolverhampton etc.
This was found to be unlawful, and this was the fundamental case which
said that all the licences -operator, vehicles and drivers - must match.
This would permit sub-contracting amongst operators licensed by the
same authority as themselves, but not otherwise.
3. The Top Cars case: Mr Mahboob Khan, the proprietor of Top Cars, held
an operator licence, vehicle licences and driver licences all issued by
Slough Borough Council. Windsor and Maidenhead prosecuted Mr Khan,
making a case that as he was not licensed by Windsor and Maidenhead, he
was not entitled to take work, or advertise for work, other than in
Slough. Again, the courts held that where the phone rang was where the
operator licence needed to be issued and, once issued, only Slough
drivers and vehicles could be used; it did not matter where the service
was advertised or where the work emanated. Therefore Mr Khan was
acquitted.
4. In the East Staffordshire case, Mr Rendell was wholly licensed by
Derbyshire Dales. His partner Mrs McCartin lived 50 yards away from him,
but on the other side of a bridge which marked the boundary between East
Staffordshire and Derbyshire Dales. The two partners, McCartin and
Rendell, were in the habit in the daily course of their business of
transferring their telephone line between each other when they were out
on a job. The courts held that transferring the line from Derbyshire
Dales to East Staffordshire without having an East Staffordshire
operator licence, and consequently vehicles and drivers also licensed by
East Staffordshire, was unlawful.
5. In the case of Mr Powers, all his vehicles and his office were
licensed in Stratford-upon-Avon, but because this was not a 24-hour
operation Mr Powers diverted his telephone number to his house in
Bromsgrove, and was therefore making a provision in Bromsgrove, for
which he required an operator licence. This worked fine, as long as Mr
Powers had some vehicles licensed by Bromsgrove. However, once he had
got rid of those licences and concentrated on Stratford alone, the
council at Bromsgrove refused to renew his operator licence because
under such licence he could only use Bromsgrove licensed vehicles and
drivers, and has he had none of those it was inappropriate to give him a
licence. His appeal against that decision failed.
6. In Murtagh -v- Bromsgrove Pat Murtagh, who is a senior Magistrate,
had a business on the border of Bromsgrove and Birmingham. She was
wholly licensed in Bromsgrove, but had nine freephones across the border
in Birmingham. Birmingham City Council maintained and insisted that
those freephones had to be served by Birmingham licensed drivers and
vehicles. Acting under some pressure, Mrs Murtagh acceded to
Birmingham's request to obtain an operator licence from Birmingham, and
licensed half her vehicles and drivers with Birmingham.
7. Birmingham and Bromsgrove then embarked on a squabble as to who had
the right of it, with Mrs Murtagh in effect being treated as pig in the
middle. After some ten years Bromsgrove successfully prosecuted Mrs
Murtagh, who then promptly moved her entire operation into Birmingham.
8. The Shanks case is perhaps the final straw that breaks the camel's
back on cross-border. Mr Shanks, wishing to increase his business,
opened an office in Newcastle-upon- Tyne. He held operator licences,
vehicle licences and driver licences for both Newcastle and North
Tyneside, so that his entire operation, like Mrs Murtagh's, was fully
licensed. He even went to the trouble of having business cards made
which advised customers that he was fully licensed in both areas, and
because of that, customers could expect that from time to time
Newcastle or North Tyneside vehicles could be dispatched to fulfil
bookings.
9. Not so, said North Tyneside; that is unlawful. As a North Tyneside
licensed operator, he can only use North Tyneside vehicles - and this,
on trial, was indeed the decision of the Courts. This meant that even a
person who operated his own business from two centres could not even
sub-contract to himself across a licensing border.
10. In fact, the only way that cross-border hiring can become lawful is
by dual licensing. In this respect I quote Lord Justice Kennedy in the
Murtagh case, where in his summing up, not only did he comment on the
abysmally poor legislation which we have to operate under, but also
suggested that Parliament should take steps to correct these problems.
11. In the judgement he said:-
"The facts of this case make it clear that in fairness to private
hire operators, the provision of this statute should be reconsidered by
the legislature as a matter of some urgency. In 1999 it is absurd that a
licensed operator who operates in the area of one district council in a
large conurbation, commits a criminal offence if he instals a small
sub-office, or perhaps even a dedicated telephone line, in an area
controlled by an adjoining district council, because he thereby makes
provision for the invitation of bookings in the second area. To keep
within the law, he must then obtain a whole series of fresh licences:
operator's licence, drivers' licences and vehicle licences for the
second area. This cannot be what Parliament originally envisaged. As the
cost of licences varies, we understand, from one district to another, it
is not easy to see precisely how the problems should be resolved. But
clearly if operators, their drivers and their cars are property licensed
in respect of one area which is responsible for overseeing their
activities, they should not have to be re-licensed elsewhere. The
problem is to some extent the result of improved technology since the
statute was passed, but the law needs to reflect the current state of
technology and not be 23 years behind it."
12. That judgement was given by the same Judge as the one who sat in the
original cross-border case,Choudhry and Dittah. As a result of these
decisions, it is a fact that in some areas in this country, some
councils have dual-licensed vehicles- ie. two plates, two driver badges
and so on.
13. I have to say that nothing I have seen so far suggests to me that in
any way that these Mansfield operators are materially different from
those operations in the cases I have mentioned in this document.
14. Do they take bookings? Yes. Do they hold an operator's licence?
Yes. Therefore, within or without the Mansfield area the only vehicles
and drivers that they can use are those that are licensed in Mansfield.
To reinforce this position, I draw your attention to section 5 of the
Private Hire Vehicles (London) Act 1998. - it seemed
ludicrous to them that fresh legislation should fall into the same trap
as that created by the 1976 Act.
15. Because of section 5, those persons who have an operating centre in
the London area licensed by the Public Carriage Office are the only
people who can legally sub-contract to operators outside the London
area. I can hardly think that Parliament would have responded with this
permissive piece of legislation if it was not clear to them that this
had caused problems elsewhere. It also highlights the fact that the 1976
Act does not contain the same freedom of action, as indeed highlighted
by the Courts.
16. As I see it, if these Mansfield operators had a London office where
their bookings were made, then and only then would they be free to
operate in the manner that they are doing currently.
17. I am concerned about the insurance position. If it is the case that
bookings are being made unlawfully - and I have to suggest that the case
law more than strongly suggests that this is so - then that may well
reflect on the insurance cover; and in this day of ambulance-chasing
lawyers, this cannot be a situation which in my opinion can be left to
chance,
18. In the case of Choudhry and Dittah, these two proprietors passed
their own work to various licensed vehicles. In the cases of Khan,
Powers, Rendell, Murtagh and Shanks, all defendants were principles in
the various prosecutions, but none of those prosecutions involved third
parties. In fact, they were passing work to cars on their own fleets,
albeit licensed in other areas.
19.Mansfield operators are only allowed to operate vehicles licensed by
Mansfield District Council as part of there conditions, but if
they are passing Mansfield bookings onto Bolsover private hire vehicles
and by doing so are invalidating their insurance as this is unlawful.
20.we are talking private hire vehicles,hackneys are another story.ie a bolsover hack would be ok to work from a mansfield base,I refer you to the berwick case.
MANSFIELD DISTRICT COUNCIL
LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1976
PRIVATE HIRE OPERATOR’S
CONDITIONS OF LICENCE
The Operator shall observe and perform the following terms and conditions:
TERMS AND CONDITIONS
1. No operator of a private hire vehicle which is licensed by Mansfield District Council under this Act shall invite or accept a booking for such vehicle, or control or arrange a journey to be undertaken by such vehicle, without first making available in writing or giving orally, to the person making the booking information as to basis of charge for the hire of the vehicle.
2. Every Operator of private hire vehicles who accepts a booking for a private hire vehicle for an appointed time and place, shall give the booking to a vehicle, allowing sufficient time for the vehicle to punctually attend.
3. The Operator, when accepting bookings under the terms and conditions of the licence, shall only operate drivers and vehicles licensed by Mansfield District Council.
|
Login
Register
FAQ
