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IN THE HIGH COURT 0F JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Courts of Justice ,
Wednesday, 30th October, 1963 Before :-
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Parker)
MR. JUSTICE ASHWORTH and
MR. JUSTICE HINCHCLIFFE
BARRY VANT
and
CONSTANCE MARY VANT
- v -
OSEERT MORRIS CRIPPS (By Amendment)
(From the Shorthand Notes of Cherer & Co., 2, New Court, Carey Street, London, U.C.2. Telephone Number: HOLborn 5178)
MR. J. HAMPTON (instructed by Messrs, Haslewoods , agents for Messrs. Saffman £ Co., Leeds) appeared as Counsel for the Appellants.
MR. V.H. HURWITZ (instructed by Messrs. Sharpe,Pritchard & Co. agents for the Town Clerk, Leeds) appeared as Counsel for the Respondent.
J U D G M E N T
THE LOED CHIEF JUSTICE: This is an appeal by way of Case Stated from a decision of the Leeds Stipendiary Magistrate who convicted the Appellants on certain informations. The first Appellant, Mr.Vant, was convicted of being found plying for hire with a motor car used as a hackney carriage without having a hackney carriage licence, contrary to Section 4-5 of the Town Police Clauses Act, 184-7, He was also convicted of unlawfully using that car without there being in force in relation thereto a Policy of Insurance. The second Appellant, Mrs-Vant, was charged with permitting her Husband so to use the vehicle without such a policy.
The short facts wore these, that Mrs.Vant runs a business known as Barry's Taxis from her dwellinghouse in Leeds. She herself has a job and she arranges for a person, possibly her Husband, to take bookings for the carriage of passengers in a motor vehicle, and when that vehicle is used, it is on all occasions driven by Mr. Vant. The car which she had at the material time was a Vauxhall Victor, which was insured, the insurance being in the form of Use for the carriage of passengers or goods in connection, with the Insured's business, which was described as that of a Private Hire Proprietress and Catering Manageress, also for social, domestic and pleasure purposes, and there was an exclusion covering use for hire or reward other than private hire, which was to mean the letting of the vehicle supplied to the hirer directly from the Insured's garage. So far, there is no difficulty, and I would like to say at this stage I am rather sorry for those Appellants who have been hounded - I do not know if that is the right word - at any rate proceeded against, and it is perfectly proper that if they are guilty they should be given what they were given in this case, a conditional discharge; indeed they might have had an absolute discharge. Their real trouble here is that albeit they are running or said to be running, a genuine private hire business, they kept this vehicle outside their house with a great sign on it at the back "Barry's Taxis" and a telephone number. On top of that, at the corner of the house was an electric light fitting with a rectangular globe on which appeared the word "Taxi" and the telephone number. Accordingly, anyone walking up the street and seeing the car outside the house and the sign at the corner of the house would say "Here is a car waiting to be hired", not a private car but what is known as a taxi, a cab.
On the 21st November a police constable found this car outside the house with this sign on the car and the sign on the house, and inside the house he found the Appellant, Mr. Vant, who said: "I did not know it was wrong, 1 will take the sign off immediately". Whether he did so or not is not clear, but on the next day the police again found the car outside the house, with this sign on it once more. The police officer went and interviewed Mr.and Mrs. Vant, and it appeared that while they were there somebody came along who had seen the car outside and the two signs, the one on the car and the one on the house , and came in and attempted to hire the car, and they were refused. The relevance of that is that it appeared at any rate to one member of the public that the car was outside plying for hire.
The learned Magistrate found - and this must be almost entirely a question of fact - that this vehicle with that sign and under the electric sign on the house could do no other than cause a member of the public to assume that the vehicle was available in the business for hire without a previous contract being made, and he found, as I have said, the Appellants guilty of these charges.
The point taken here in regard to the first information is that unlike a number of cases dealing with plying for hire , this is not a case under Section 7 of the Metropolitan Public Carriage Act 1869; it is in the present case under Section 45 of the Town Police Clauses Act 184-7.
The importance of that is this , that Section 7 of the Act of 1869 is in these terms: "If any unlicenced hackney or stage carriage plies for hire the owner of such carriage shall be liable to a penalty", and this Court over a series of decisions to which I find it unnecessary to refer has over and over again said in connection with Section 7 that you are really looking to see what the vehicle, albeit it is under human agency, is doing: is it in ordinary terms plying for hire. Contrast that, so runs the argument, with Section 45 of the Act of 1847. That provides that:
"If the proprietor or part proprietor of any carriage, or any person so concerned as aforesaid, permits the same to be used as a hackney carriage plying for hire within the prescribed distance without having obtained a licence as aforesaid for such carriage" he shall commit an offence. Pausing there,that is very like and clearly attracts the same principle as Section 7 of the Act of 1867: is the vehicle? plying for hire without a licence - if so, the proprietor is liable ., and accordingly if Mrs . Vant had in the present case been proceeded against and found guilty, this particular point now taken would not arise *
But this Section goes on: "or if any person be found driving, standing or plying for hire with any carriage within the prescribed distance, for which such licence as aforesaid has not been pre¬viously obtained, or without having the number of such carriage corresponding with the number of the licence openly displayed on such carriage, every such person so offending shall "be guilty of an offence. There it is said you are not looking at what the vehicle is doing but what the man proceeded against is doing, and it is said that If that be right the Magistrate approached this in the wrong way, because he was considering what the vehicle was doing.
The second part of that Section 45 is by no means easy to understand, particularly the words "driving, standing or plying for hire with any carriage"- To take the first alternative, driving for hire with: an;/ carriage , why should that man on those words be guilty of any offence at all? He might be using the vehicle for private hire, and it scorns to me therefore that some words have to be imported into this, and it may be that the true view is to read it as if it wore "any person found driving, standing or plying for hire with any carriage which is being used as a hackney carriage" - at any rate some words have to be inserted.
In my judgment the Appellant, Mr.Vant was properly convicted here. On the facts it is perfectly clear that this vehicle was plying for hire,I say that bearing in mind the cases that have been decided under Section 7 of the Act of 1867, and in particular Rose v, Welbeck Motors Ltd.. 1962 1 Weekly Law Reports page 1010; that is the position in regard to the vehicle.
So far as Mr.Vant is concerned he was clearly the person in charge in the sense that he was in the house; he is the person who would drive the vehicle if it was used, and he knew the vehicle was outside with this sign on it under the sign that was on the house, and he was accordingly plying for hire. In those circumstances it seems to me quite impossible to contend that he himself was not plying for hire in the sense of being in charge of a vehicle which itself was plying for hire.
So far as the other charges are concerned in regard to the insurance, the attractive argument which Mr. Hampton has raised is this: he says granted that the policy excludes Use for Hire or Reward other than Private Hire, and accordingly if and when this car outside is being used as a taxi then it will not be insured. He says at the moment when it was outside albeit he was wrong and it was plying for hire, it was not then being used for hire or reward but was merely attempting to get an engagement for hire and reward, so the argument goes. For my part I think both the Appellants were again rightly convicted there. The policy only covers Use for the carriage of passengers or goods in connection with the Insured’s business. If it was plying for hire it was not being used in connection with the Insured’s business, which was a Private Hire Proprietress. Nor was it being used, which was the other limb of the policy, for social, domestic or pleasure purposes.
Finally, if it was plying for public hire it was not being used for private hire, which again is covered by the policy and accordingly as it was not being used .for any of these purposes covered by the policy it was not insured. For those reasons, I think the Magistrate was right and 1 will dismiss this appeal.
KR.JUSTICE ASHWORTH: I agree, I only desire to add one short passage, adopting with special reference to this case the words of Mr. Justice Donovan as he then was in Cogley v. Sherwood 1959 2 All England Reports page 510, In ray view this passage precisely fits the present case, The learned Judge said: "The expression plying for hire is not defined in the statute, and I would respectively concur in the Justices' finding that no comprehensive definition is to be found in the decided cases; but the term does connote in my view some exhibition of the vehicle to potential hirers as a vehicle which may be hired. Ono can perhaps best explain the reason by taking an example. lt is a fairly common sight today to see in smaller towns and villages a notice in the window of a private house 'Car for Hire’. If the car in question is looked up in the owner's garage adjacent to the house, it could not in my view reasonably be said that at that moment the car was "plying for hire1. If a customer wishes to hire it, he comes and makes his terms with the owner. On the return journey the owner might exhibit a sign on the windscreen, as some of them do, 'Taxi1 and then clearly he would be plying for hire. Similarly if he left the car outside his house, the same notice on the car would involve, I think, that the car was then plying for hire, and the notice in the window might also then have the same effect'1.
If one substitutes for the notice in the window the lettering on the electric light globe, that passage precisely fits this case. I agree that this appeal fails.
MR.JUSTICE HINCHCLIFFE: I am of the same opinion for the reasons stated.
MR. HURVTTZ: My Lords, I must ask for costs.
THE LORD CHIEF JUSTICE: I do not think we can avoid that, Mr. Hampton, I think it is a great pity that this appeal was brought and they Just did not take the sign down. I do not think they could have got into trouble if they did not have this sign, but still I am afraid they have to pay the costs,
MR. HAMPTON: My Lords, I do not think I can advance any argument to the contrary at this stage.
THE LORD CHIEF JUSTICE: With costs.
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