Taxi Driver Online

Judge Arbuthnot rules in favour of Uber again as TfL driver deemed not to be plying for hire in Reading

https://www.taxi-point.co.uk/single-pos ... in-Reading

https://www.taxi-point.co.uk/single-pos ... in-Reading

A London private hire driver working on the Uber platform was deemed not to have been plying-for-hire in Reading despite picking up in the Uber-free licensed authority.

Judge Emma Arbuthnot, the same judge that awarded the controversial minicab firm a 15-month reprieve to its London operators licence just last month, found the vehicle not to have a “distinctive appearance” and that the TfL roundels “were not of such prominence that it could be said that there was something on the vehicle which cried out I am for hire”.

Reading Council brought the test case against Uber driver Mudassar Ali who held only a Transport for London licence rather than the local authority licence. Uber are not licensed in Reading either.

The council argued that the American based firm did not hold a licence in Reading and had created a market by plying for hire via its app in their authority. Charles Holland QC representing Reading added that without advertising the vehicles availability there would be no market in the area stated .

Philip Kolvin QC representing Mr Ali and Uber pointed out that the drivers services could only be booked by a member of the public who had downloaded the Uber Rider App and then entered into a private hire booking through the App.

Judge Emma Arbuthnot awarded Uber and Mr Ali the case dismissing all charges.

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IDFIMH

Full judgement here for the anoraks, although it looks quite short at eight pages:

https://files.acrobat.com/a/preview/2b5 ... 6402b1d06f

Clearly the point would have been made, by Mr Holland on behalf of Reading Council, that advertising their location and availability via the app is akin to plying for hire.

Personally I believe that point had merit, sadly the Judge decided otherwise.

I'm also interested as to why the case was heard in London.

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IDFIMH

Obviously convenient for Senior District Judge (Chief Magistrate) Emma Arbuthnot to deal with this case and the Uber London case at the same time

perhaps uber used their contacts in HMG to request this judge

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lack of modern legislation is the iceberg sinking the titanic of the transport sector

It's an interesting read, and one wonders if the outcome would have been different if the TfL minicab had had a roof-light or markings indicating it was a Uber vehicle.

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IDFIMH

Just noted that the hearing wasn’t heard in London, just that the Judge went to Reading to hear the matter.

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IDFIMH

Magistrates in Reading must not have been trusted to come out in favour of U*** so Arbuthnot was shipped in to ensure that the decision did favour U***
Think if I were a Reading magistrate a resignation would not be out of order.

Must have shares or a family member has , or she has been informed by the powers higher up to give them a licence

There was this claim a few weeks back when the London case was decided - can't recall if this was mentioned on here:



https://taxileaks.blogspot.com/2018/06/ ... k-all.html

Quick summary of the case from a specialist taxi barrister, so slightly more technical than the newspaper reports.

Then below that is an analysis of the case from the same author, from the Taxi-Point website. Anyone who's read the case might prefer to skip the more factual first part and read the analysis only. In fact the first part of the second piece rehashes the facts to a degree, and the actual analysis is quite brief and is contained in the last five paragraphs.

Uber driver has plying for hire charges thrown out

http://www.taxidefencebarristers.co.uk/ ... hrown-out/

An Uber driver reported for two offences of illegally plying for hire in Reading has had the charges thrown out in an important test case.

The Facts

Mr Mudassar Ali was charged with two offences. The first that in the early hours of 21st January 2017, in Reading, he was plying for hire with a Ford Galaxy, registration number LR12 ORZ on Kings Road, Reading for which vehicle a licence to ply for hire from Reading Borough Council had not previously been obtained. This was contrary to section 45 of the Town Police Clauses Act 1847. The second offence is in identical terms as the first but concerns the early hours of 22nd January 2017.

Mr Ali was an Uber driver, licensed by Transport for London. On the nights in question he was in Reading, Berkshire waiting for a passenger.

The Test

The issue in this test case is whether the Uber “model” using an App should lead the court to conclude that Mr Ali was plying for hire on the two dates above.

Reading Borough Council argued that Mr Ali was in possession and control of the Ford Galaxy which was not a hackney carriage, he chose to travel to and wait in Kings Road, Reading at a time when, and in a place where, members of the public were likely to wish to be immediately conveyed in a vehicle.

At the relevant times on 21st and 22nd January 2017, Mr Ali was logged on and shown as available on the Partner-Rider App. His location and availability were displayed to users of the Rider App by an icon on a map. That display, Reading Council contends, constituted a solicitation.

The Defence

Mr Ali responded by pointing out that if Reading’s analysis was correct any booking using an App would be plying for hire. He contended that the essence of the private hire contract was that the member of the public books the vehicle first and then meets the vehicle before the journey proceeds. That is not plying for hire. He pointed out the technological advances from a time when a job-master was used to book a carriage through telephone booking and in recent times App based booking services. All of which were and are lawful.

The Verdict

Senior District Judge (Chief Magistrate) Emma Arbuthnot – who also heard the Uber London appeal – said that the “burden of proving the case is on Reading Borough Council and the standard of proof is a high one. I have to be sure of the defendant’s guilt on each charge before I can convict him of plying for hire.”

She found that:

1. Mr Ali’s vehicle did not have a distinctive appearance and a member of the public seeing the vehicle on Kings Road at that time of may have guessed that it was a mini-cab because it was a dark coloured car with darkened windows but there were no outward signs, for example, no company telephone numbers were displayed. The TfL roundels were not of such prominence that it could be said that there was something on the vehicle which cried out “I am for hire” in the way described in the Rose v Welbeck case, which I find, in any event, turned on its own facts.

2. was not near a hackney carriage stand and if he had been approached by passengers from the street, I accept he would not have contacted Uber to make the booking for them. The facts concerning Mr Ali are very different to those set out in Milton Keynes Borough Council v Barry.

3. vehicle could not be hailed nor did it wait at a stand. He did not drive around looking for passengers nor did he wait on the street, flashing his lights or hooting at members of the public.

4. passengers or riders come via the Uber App. Mr Ali was in central Reading waiting to be contacted by Uber.

She said “Uber’s server tells the nearest driver about the request, he or she has 10 seconds in which to accept or reject the trip. If the driver accepts then Uber confirm the booking, records it (see tab 31 page 157) and the trip is allocated to him or her. The details of the passenger are then provided to the driver and the driver goes to the pick-up location to meet the rider. The rider cannot choose a specific driver or vehicle.”

The above left Ms Arbuthnot to conclude “The fact that Mr Ali’s vehicle had no distinctive markings, was not at a stand and was not available to pick up passengers on the street combined with the fact that the whole transaction was conducted via an App where the booking process starts, is recorded and the fare estimated, leads me to find that Mr Ali was not plying for hire.”





Reading Borough Council v. Mudassar Ali (Uber): Legal Analysis

July 15, 2018

Stephen McCaffrey QC

https://www.taxi-point.co.uk/single-pos ... l-Analysis

It was accepted by both parties that this will be a test case. It must be understood however that this was a Magistrates’ Court case and consequently at best it could be persuasive but by no means binding or authoritative.

Notwithstanding, the Chief Magistrate in this case has considered in some detail the relevant case law relating to what constitutes “plying for hire” and how the principles established through this body of case law can be applied to modern technology.

The central issue in the case was whether the Uber “model” using an app constituted solicitation, or in other words, plying for hire.

A licensed hackney carriage vehicle and driver must be licensed (as such) by the licensing authority relevant to the area where they are standing or plying for hire (section 45 of the Town Police Clauses Act 1847).

Reading Council’s case was that Mr Ali, the defendant, was in possession and control of his car which was not a hackney carriage, he chose to travel to and wait in Reading at a time when, and in a place where, members of the public were likely to wish to be immediately conveyed in a vehicle.

They also argued that he was logged on and shown as available on the Partner-Rider App and his location and availability were displayed to users of the Rider App by an icon on a map. This Reading Council contented constitutes “plying for hire”.

Mr Ali argued that the essence of the private hire contract was that the member of the public books the vehicle first and then meets the vehicle before the journey proceeds. This in the context of the Uber App, is that a user must book the journey using the app before they commencement of a journey. This, Mr Ali argued, is not plying for hire.

It was agreed between both parties that Mr Ali’s car had no markings indicating it was for hire (apart from two small TfL roundels), was parked lawfully, was not waiting in a taxi stand nor was he next to a bus stop or stand, was not available to a person hailing him on the street and his windows were closed.

Chief Magistrate, Emma Arbuthnot, found that there was nothing substantially distinctive about Mr Ali’s TfL licensed car, behaviour or location that could have led a member of the public to approach him unsolicited.

More importantly in relation to the use of the Uber App, Ms Arbuthnot said that passengers or riders come via the Uber App and consequently drivers are waiting to be contacted by Uber. The Uber App shows a number of licensed Uber vehicles, the drivers of which are logged on nearby. Drivers are not individually identified nor is a car. It is not the driver but Uber which gives a fare estimate depending on the vehicle type chosen by the passenger.

Uber’s server tells the nearest driver about the request, he or she has 10 seconds in which to accept or reject the trip. If the driver accepts then Uber confirm the booking, records it and the trip is allocated to him or her. The rider cannot choose a specific driver or vehicle.

This was sufficient evidence for her to conclude that the defendant was not illegally plying for hire, consequently found him not guilty and dismissed the charges.

Legal Analysis

This was the first case of its kind specifically testing the functionality of the Uber App’s compliance with licensing legislation.

The case was principally decided on its facts but there are some general principles drawn that may be relevant in future litigation.

It reaffirmed principles established in previous case indicating that circumstances as a whole must be taken in account including the vehicle’s characteristics and the driver’s behaviour.

The added dimension in this case was the use of the Uber App. The Uber App’s operation did not offend the boundaries of relevant licensing legislation in the circumstances of the case.

This is by no means the end of the general matter. Ms Arbuthnot commented in her judgement: “I have no doubt that the technology will move forward and be susceptible to challenge in the future.”

So if you're sitting in a street in your PHV, or sitting in an HC out-of-area, make sure you keep your windows shut

Think that's largely consistent with what I said in October - the app is effectively irrelevant to the plying for hire question

Totally different view from another licensing lawyer, though - claims the judgment brushed over the issue of the app, and also questions whether Uber 'untouchable'.


Uber appears to be ‘untouchable’ says Gouriet QC

July 16, 2018

Gerald Gouriet QC

https://www.taxi-point.co.uk/single-pos ... Gouriet-QC

In a decision which is more likely to be mis-cited than any in recent memory, and which has already been widely misrepresented on social media, the Senior District Judge has dismissed the prosecution of an Uber driver for plying for hire in Reading.

The lawfulness of the Uber app, and its equivalence to a taxi ‘for hire’ sign, were not addressed.

The material facts

•The defendant was a TfL-licensed driver of a private hire vehicle also licensed by TfL.

•He was working through a Smartphone App provided by Uber.

•On the date in question, about 60 Uber vehicles were showing on the Uber App map of Reading. Reading Borough Council has refused to licence Uber as an operator there.

•The defendant’s vehicle was stationary on a road in Reading. It had no significant markings, or any marking advertising a telephone number or other means of contacting Uber to make a booking.

•The vehicle was not at a taxi rank, and could not be hired from the street by hailing it down in the traditional way.

•The vehicle’s outline, however, was visible to any Uber customer using the Smartphone App. That outline advertised the presence of an Uber driver.

•Licensing Enforcement Officers saw the vehicle on their Smartphone App, approached the car, introduced themselves, and interviewed the defendant.

•The defendant said that he was waiting for a booking through the Uber app.

The decision

The key passage in the judge’s decision to find the defendant ‘not guilty’ is:

“The fact that Mr Ali’s vehicle had no distinctive markings, was not at a stand and was not available to pick up passengers on the street combined with the fact that the whole transaction was conducted via an App where the booking process starts, is recorded and the fare estimated, leads me to find that Mr Ali was not plying for hire.”

It is respectfully submitted that focusing on “where the booking process starts” misses the central question, which is whether a vehicle, not being a hackney carriage, has advertised itself as available for immediate hire. Plying for hire will occur before any booking process starts, and certainly before any booking is made. The driver who directs potential customers to a licensed operator, so that they can then book his vehicle in the usual way, is plying for hire – the subsequent booking via a licensed operator is immaterial: Rose v Welbeck Motors Ltd, Chorley Borough Council v Thomas.

Uber app: The Big Issue

It was hoped that this prosecution would determine, once and for all, whether displaying a vehicle’s proximity and availability for immediate hire on the Uber App is the modern equivalent of displaying a ‘for hire’ sign on the vehicle. It is regrettable that that all-important question was never answered. Indeed, on one reading of the decision, the judge might even be thought to have been careful to avoid answering it: the determining factors (the vehicle’s lack of distinctive markings, its not being parked at a stand or able to be flagged-down in the usual way) had no bearing at all on what was really at issue.

A charmed life

St. Christopher is the patron saint of travellers. There is even a patron saint of automobile drivers – St. Frances of Rome. Perhaps it is time we had one for PHV operators, so that obeisance may be made and candles lit to encourage (and continue) divine intervention on their behalf. It is not that Uber has the blessing of the courts as to the lawfulness of its operating model – it hasn’t: all attempts to obtain a definitive ruling have, for one reason or another, been stopped in their tracks. Deus ex machina in more ways than one, perhaps. A judicial review of TfL’s decision to licence Uber had to be withdrawn, because it was out of time (no other reason). ‘Plying for Hire’ was said by the Senior District Judge to be irrelevant to the recent Uber appeal against the non-renewal of its licence; as was the possible unlawfulness of Uber’s cross-border operations. The CPS (wrongly) discontinued the ‘plying for hire’ prosecution of an Uber driver in Bromley. And now a Reading Uber driver has been acquitted of plying for hire, without the court having fully considered the unlawfulness of the model under which he operated.

The Uber model should have been properly tested in the courts long ago. Until it is, we will have licensing authorities up and down the country being told they are powerless to stop an invasion of Uber drivers over whom they have no control – Uber even braving the streets of councils that have refused to give them a licence. There is understandable concern, across a wide spectrum that by no means is limited to licensed taxi drivers, that Uber appears to be ‘untouchable’.