greenbadgecabby wrote:
Welbeck motors? Red Dauphines? That will bring back some memories for older members of this site! (McDeHack)
Well here is the other relevent case which was referred to in Welbeck. This might bring back memories to some in the London cab trade?
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Cogley v Sherwood
Car Hire Group (Skyport) Ltd v Sherwood
Howe v Kavanaugh
Car Hire Group (Skyport) Ltd v Kavanaugh
ROAD TRANSPORT.
QUEEN’S BENCH DIVISION
LORD PARKER CJ, DONOVAN AND SALMON JJ
21, 22 APRIL 1959
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Road Traffic – Hackney carriage – Metropolitan police area – “Plying for hire” – Private hire service – Service advertised but vehicles to be hired not marked or exhibited as such – Hire arranged at office – Metropolitan Public Carriage Act, 1869 (32 & 33 Vict c 115), s 7.
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A hackney or stage carriage does not ply for hire within the meaning of the Metropolitan Public Carriage Act, 1869, unless it is exhibited as being for hire.
A car hire service was run from two offices in the public parts of an airport, and was advertised extensively by signs both at the offices and in other public parts of the airport. To hire a car a member of the public went to either office and asked to be driven to a named destination: he was escorted from the office to a standing place appointed by the owners of the airport where cars and their drivers were waiting, shown into a particular car, and driven to his destination, where the driver asked, and the passenger paid, a fare based on the distance travelled, in accordance with the scale of charges exhibited at the airport.
One standing place was a roadway to which the public had access, but the marks on the roadway defining the standing could not easily be seen when the cars were parked there. The cars appeared to be private cars, the drivers’ uniforms were similar to those worn by private chauffeurs, and so the cars at the standings did not give the appearance of being cars available for hire.
Held – The cars were not exhibited, and so were not plying for hire within the meaning of the Act. Appeal allowed.
Case Stated
This was an appeal by way of Case Stated by justices for the county of Middlesex, in respect of their adjudication as a magistrates’ court sitting at Uxbridge on 19 January 1959. The justices had convicted the appellants, and given them absolute discharges, on four informations charging offences against the Metropolitan Public Carriage Act, 1869, s 7, in that the appellants were respectively the owners and drivers of two unlicensed hackney carriages which had plied for hire without a licence in the Metropolitan Police District.
The appellant company’s business, which was to let cars on hire, mainly with chauffeurs, to persons requiring immediate transport, was conducted at both the passenger terminals at London Airport. By virtue of a contract between the company and the Minister of Transport and Civil Aviation, at each terminal the company had a desk in the public part and a standing for its cars conveniently placed so as to make the cars readily available to anyone who had hired a car at the desk, and agreed to hire the cars at an agreed scale of charges based on the type of car supplied and the distance travelled.
At the Central Terminal the standing was a roadway to which the public did not have access. Both standings were defined by marks on the roadway, but the marks were not easily seen when cars were parked there. The drivers’ uniforms were similar to those of private chauffeurs and the cars appeared to be private cars: they did not give the appearance of being available for hire. At both terminals the company also had more remote parking space from which the standings were replenished as and when cars there were hired and driven away.
The company’s desks were plainly visible to arriving passengers, and notices and advertisements displayed at the desks and elsewhere, in addition to telephone facilities and a push button bell, provided a clear intimation to members of the public at the airport of the availability to them of the company’s services.
On 28 October 1958, the two prosecutors, who were taxi-drivers, each went to different desks and asked to be driven to different destinations. At one desk the clerk wrote on a printed form the name of a driver and the reference number of one of the company’s cars; the passenger was escorted to the car, which was at the appropriate standing, and driven to his destination by the appellant Cogley.
At the other terminal the desk clerk made entries in a book and the passenger, the other prosecutor, was escorted to another car owned by the company, which was at the appropriate standing, and was driven to his destination by the appellant Howe. Each passenger was asked for and paid to his driver a fare calculated at the agreed scale of charges. The airport was within the Metropolitan Police District and neither car was a licensed hackney carriage. The justices held that the cars were plying for hire, and accordingly convicted the company and each driver of offences against s 7. The company and the drivers appealed.
Neil Lawson QC and W A Macpherson for the appellants.
J W Borders for the respondents.
J R Cumming-Bruce for the Minister of Transport and Civil Aviation.
22 April 1959. The following judgments were delivered.
LORD PARKER CJ. This is an appeal by way of Case Stated by justices for the county of Middlesex sitting at Uxbridge, before whom four informations were preferred charging offences against s 7 of the Metropolitan Public Carriage Act, 1869, in that the appellants were respectively the owners and drivers of two unlicensed hackney carriages, which had unlawfully plied for hire without a licence.
The magistrates, after very careful consideration of the authorities, felt constrained to hold that the offences were proved. They convicted the appellants accordingly, but gave them an absolute discharge, ordering in the case of the appellant company that it should pay twelve guineas costs.
The facts giving rise to this matter are shortly as follows: at London Airport there are two sets of buildings for handling passengers, the Central Terminal and the North Terminal. The appellant company, the Car Hire Group (Skyport) Ltd are, as their name indicates, a car hire concern. They hire out cars which can be driven by customers themselves, but the major part of their business is the hiring out of cars with chauffeurs.
They carry on business at London Airport at both terminals under an agreement with the Minister of Transport, who has afforded them standing room for their cars and also facilities in both buildings in the nature of a desk where orders can be taken by people arriving at the airport for transport to their destination in the company’s cars. As those desks are extensive advertisements of the facilities available, and those advertisements also appear in other parts of the premises.
At each terminal the company is allowed to use a place where its vehicles can stand. In one case, the Central Terminal, the standing is in a roadway to which the public have no access; at the other terminal they stand on a roadway to which the public has access, but there is nothing at the stand which indicates that the vehicles are for hire. They appear to any member of the public to be ordinary private cars accompanied by private chauffeurs.
On 28 October 1958, the two respondents, who are taxi-cab drivers, for the purpose of testing the position, went and hired two cars, one car at the Central Terminal and one at the North Terminal. It is as a result of that that these informations are laid, informations against the driver of the car hired at the Central Terminal and the appellant company, the owners of the car, and two similar informations in regard to the car hired at the North Terminal.
It was broadly on those facts that the magistrates held that both cars were plying for hire within the Metropolitan Public Carriage Act, 1869.
The Act provides, so far as it is relevant to these proceedings, by s 2:
“The limits of this Act shall be the Metropolitan Police District, and the City of London and the liberties thereof.”
By s 4, which is the definition section, it is provided:
“In this Act ‘stage carriage’ shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road, or place within the limits of this Act, and in which the passengers or any of them are charged to pay separate and distinct or at the rate of separate and distinct fares for their respective places or seats therein.
“’Hackney carriage’ shall mean any carriage for the conveyance of passengers which plies for hire within the limits of this Act, and is not a stage carriage.”
Finally by s 7, it is provided:
“If any unlicensed hackney or stage carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding £5 for every day during which such unlicensed carriage plies … ”
It is quite clear that London Airport is within the limits of the Act, and therefore the only question falling to be determined in these proceedings is whether either or both of the two cars I have mentioned were plying for hire. If they were, then they were clearly unlicensed, and an offence was committed.
The court has been referred to a number of cases from 1869 down to the present day dealing with hackney carriages and stage carriages. Those decisions are not easy to reconcile, and, like the magistrates, with whom I have great sympathy, I have been unable to extract from them a comprehensive and authoritative definition of “plying for hire”.
One reason, of course, is that these cases all come before the court on Case Stated, and the question whether a particular vehicle is plying for hire, being largely one of degree and therefore of fact, has to be approached by considering whether there was evidence to support the magistrates’ finding.
In those circumstances it was unnecessary, and clearly inadvisable, for the court to attempt to lay down an exhaustive definition. Indeed, that was specifically referred to by Lord Hewart CJ in Griffin v Grey Coaches Ltd ((1928), 45 TLR 109). Lord Hewart CJ said:
“In the course of the argument reference has been made to a considerable number of cases, and attention has been directed to the occasional narrowness of the field of argument and decision in those cases. But it is to be observed that cases on this interesting question of plying for hire usually turn upon the question whether there was or was not evidence in the particular facts of the case justifying the conclusion arrived at by the justices. Nowhere is there any attempt to formulate an exhaustive definition of the meaning of the term ‘plying for hire’ … ”
For myself I think that the proper course is to start with the words of the Act and to construe them, before seeing whether there are any decisions binding on us which constrain us to put a different construction on the words. Approaching the matter in this way, the first thing that strikes one is that the Act is dealing with carriages plying for hire, not with persons carrying on the business of letting out carriages.
It is the carriage that must ply for hire, and though a human agency must clearly be involved, the Act is directing one’s attention to the carriage under consideration and posing the question: is it plying for hire?
While no doubt in 1869 persons were engaged in letting out carriages on hire, the legislature clearly could not then envisage the considerable business which has grown up of recent years of hiring out cars. Indeed today, as a matter of common sense, I do not think that anyone would say that vehicles belonging to the many car hire concerns are plying for hire in the ordinary sense of the word. It seems to me that the Act is prima facie dealing with a particular carriage whose owner or driver invites the public to be conveyed in it.
The idea is well set out by Montague Smith J in Allen v Tunbridge ((1871), LR 6 CP 481) where the learned judge says (at p 485):
“I am of the same opinion upon the authority of the caseb in the Queen’s Bench. It appears to have been held there, that, if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the Act. That is very different from a customer going to a job-master to hire a carriage.”
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b Clarke v Stanford ((1871), L.R. 6 Q.B. 357)
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Indeed that passage was approved in Armstrong v Ogle ([1926] 2 KB 438). In that case Lord Hewart CJ said:
“What is the principle to be applied? It was stated in a single sentence by MONTAGUE SMITH, J., in Allen v. Tunbridge where he said (referring to a previous casec): ‘It appears to have been held there, that, if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the Act. That is very different from a customer going to a job-master to hire a carriage’ [then LORD HEWART says:] The contrast is between a particular and definite private hiring and a public picking up of passengers.”
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c Clarke v Stanford ((1871), L.R. 6 Q.B. 357)
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The decision in Allen v Tunbridge was a decision of the Court of Common Pleas, but the same idea is, I think, behind the contemporary decisions in the Court of Queen’s Bench and the Court of Exchequer. Thus in Case v Storey ((1869), LR 4 Exch 319), Kelly CB in referring to the words “plying for hire” under a different Actd, said:
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d The London Hackney Carriage Act, 1831
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“Those words must mean that the carriage is to be at the disposal of any one of the public who may think fit to hire it.”
In Clarke v Stanford ((1871), LR 6 QB 357), Cockburn CJ said:
“But where a person has a carriage ready for the conveyance of passengers, in a place frequented by the public, he is plying for hire, although the place is private property.”
Mellor J said:
“But what is the carriage there for? Though the driver makes no sign, he is there to be hired by persons who arrive by train, and there is no restriction as to the persons who, arriving by train, shall hire the carriage; it is therefore plying for hire, within the meaning of the statute.”
Lush J said:
“This carriage was awaiting the arrival of a train, in order to be hired by any person who might come by the train. That is a plying for hire, within the meaning of this statute.”
In the ordinary way, therefore, I should, apart from authority, have felt that it was of the essence of plying for hire that the vehicle in question should be on view, that the owner or driver should expressly or impliedly invite the public to use it, and that the member of the public should be able to use that vehicle if he wanted to.
Looked at in that way, it would matter not that the driver said: before you hire my vehicle, you must take a ticket at the office; aliter, if he said: you cannot have my vehicle but if you go to the office you will be able to get a vehicle, not necessarily mine.
There are, however, some cases which point to a different conclusion. For my part, however, I find it unnecessary to go into them and for this reason. In all the cases where it has been held that a carriage was plying for hire, it was in fact there and on view.
Thus in Gilbert v McKay ([1946] 1 All ER 458), cars were held to be plying for hire even though, as I assume, a member of the public could not choose his vehicle, but, be that as it may, the vehicles were clearly on view, they were standing, like taxis might stand on a rank, outside offices bearing the sign “Cars for Hire”. It is true that in that case it was suggested that there might be a plying for hire even if the cars were not on viewe, and the same appears in Cavill v Amos ((1900), 16 TLR 156), where Channell J in giving judgment, said:
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e See per Lord Goddard CJ [1946] 1 All ER at p 459, letters d–f
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“In ordinary cases, in order that there should be a plying for hire, the carriage itself should be exhibited. He thought, however, that a man might possibly ply for hire with a carriage without exhibiting it, by going about touting for customers.”
For myself I think that it is of the essence of plying for hire that the carriage should be exhibited. Here it is clear that the cars in question were not exhibited in this sense of the word. As I have said, the only cars that were on view were at one terminal, and to any ordinary member of the public they did not appear to be for hire; they appeared merely to be ordinary private cars with private chauffeurs.
It is said, however, that the cases concerning stage carriages and in particular Griffin v Grey Coaches Ltd (45 TLR 109), to which I have already referred, force one to a different conclusion. Indeed, I think that it was that case that chiefly influenced the magistrates. Thus, in setting out their reasons, they say this:
“Indeed it is not necessary that at the time the agreement is reached by the hirer and the passenger for the passenger’s conveyance that the actual driver or the vehicle to be used is known (Griffin v. Grey Coaches, Ltd.).”
A little later on they say:
“We considered that the facts in Griffin v. Grey Coaches, Ltd. and the cases before us had two substantial similarities: in both cases the existence of the service offered to the public was made known by advertisement and the vehicle used was not on view or allocated to the particular journey at the time the agreement for the journey was made.”
In Griffin’s case, which, as I have said, concerned a stage carriage, the company, Grey Coaches Ltd were owners of motor charabancs, plying at regular hours between London and Brighton. The question was whether the vehicles317 were plying for hire at Brighton, in respect of which there was no licence. It appears that there were extensive advertisements exhibited at the office in Brighton advertising the times of departure of the charabancs, and tickets could be purchased at the office up to ten minutes before the advertised time, but not afterwards.
At the time when the tickets were purchased, there was no charabanc in the garage adjoining the office, and it was not until twenty minutes later that the charabanc was driven up by one of the company’s servants into the yard to take on the passengers. In the course of his judgment Lord Hewart CJ said (45 TLR at p 111):
“What is the real difference, apart from mere accidental difference, between that state of affairs and the state of affairs which exists where the driver of the coach, by gesture or by words, invites the members of the public to board, and to travel upon, a vehicle which they can see? It may be, as has been said, that the particular coach was not then appropriated to the particular journey. It was waiting to be appropriated; it was in a proper and convenient place for that very purpose.”
For myself I do not think that this decision in regard to a stage carriage is compelling authority in this case. This court, of course, treats itself as bound by its own decisons. There is, however, at present no appeal, and, that being so, I do not think that the court should treat itself as bound by a previous decision unless there can be said to be no real distinction.
It is true that “plying for hire” must have the same meaning whether applied to stage carriages or to hackney carriages. In the former case, however, it may well be far easier to find a plying for hire. Indeed, where a schedule of regular services is advertised and a vehicle or vehicles has been performing those services for some time in full view of the public, there is something to be said for the view that they are exhibited in the sense that
I have indicated, even though a particular vehicle is not on view when the ticket is bought. I do not think that Griffin’s case compels me to come to a conclusion in regard to hackney carriages different from that indicated earlier in this judgment.
In my judgment the magistrates were wrong in treating this case as indistinguishable from Griffin’s case. No conceivable blame attaches to them, and indeed the court is grateful for the clear reasoning set out in the Case on which their decision was based. I would allow this appeal.
DONOVAN J. The Lord Chief Justice has already quoted the definition of “hackney carriage” in s 4 of the Metropolitan Public Carriage Act, 1869f, and I need not repeat it. Section 6 gives the Secretary of State power to license to ply for hire both stage carriages and hackney carriages within the territorial limits of the Act, namely, the Metropolitan Police District and the City of London. Section 9 gives him power to make regulations inter alia for fixing the stands of hackney carriages; s 7 provides, as has already been stated, that if any unlicensed hackney carriage plies for hire or uses one of the fixed stands the owner is liable to a continuing penalty.
The motor cars concerned in the present case are hackney carriages within the definition in s 4, and London Airport is within the territorial limits of the Act. The sole issue is whether these cars, in the circumstances detailed in the case, and which the Lord Chief Justice has already narrated, “ply for hire” within the meaning of s 7.
When that section was enacted hackney carriages were, I suppose, solely horse-drawn, and indeed one meaning of the word “hackney” is “an ambling horse”. The purpose of the Act was clearly to exercise control over these vehicles so as to ensure a proper standard of safety and cleanliness, and of competency in their drivers, for the driver has to be licensed, too, under s 8. The motor car has now displaced the horse carriage and in addition a very large business has grown up of private hire of motor cars.
These new conditions do not mean that plain words in the statute are now to be given something other318 than a plain meaning. They do, however, in my view involve that when the court is asked to apply the language of 1869 to the vastly different circumstances of 1959, then a very close scrutiny of the words is called for.
The expression “plying for hire” is not defined in the statute, and I would respectifully 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. One can perhaps best explain the reason by taking an example. It 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 locked 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 hire”.
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 its windscreen, as some of them do, “Taxi” 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.
The essential difference in the circumstances that I have compared is that in the one the car is not exhibited at all, whereas in the other it is, coupled with the notification that it may be hired. I am fortified in suggesting a test of exhibition by several considerations.
The first is that there is no decided case where a hackney carriage was held to be plying for hire where it was not exhibited so as to be visible to would-be customers. In Gilbert v McKay ([1946] 1 All ER 458) the cars were just outside the premises of the car hire firm which bore advertisements that cars were for hire.
Secondly, in s 7, the words are: “If any unlicensed carriage plies for hire” thus indicating that one is to look and see what the vehicle itself is doing, albeit under human agency. I find it very difficult to say that a vehicle which is not exhibited in some way is a vehicle plying for hire. Like my Lord, I do not regard the decision in Griffin v Grey Coaches Ltd ((1928), 45 TLR 109) as antagonistic to this view.
There it is true that the charabanc was not on view at the time that the passenger booked his seat. But the court was there dealing with a regular service at regular times along a regular route. One can, I think, exhibit a vehicle such as an omnibus or a charabanc just as effectively for the purpose of hire in this way as by any other. By these means it will come to the notice of prospective customers, which after all is the object of exhibition.
The court is dealing in this case with two particular vehicles, one engaged from the Central Terminal and one from the North Terminal. The case finds that at the Central Terminal the cars stood while waiting to be hired on a roadway to which the public had no access.
There is no such precise finding as to the situation of the standing at the North Terminal, but there is certainly no evidence that at either standing there was any notice that the cars, or any of them, were for hire. This no doubt explains the contention put in the forefront of the appellants’ case, namely, that the two cars were not exhibited to intended passengers, or at all. This is not met by any opposing contention on the part of the respondents. The justices appear to deal with the case on the footing that the cars were not on view, for they say in effect that, despite this, the decision in Griffin v Grey Coaches Ltd compelled them to the conclusion that this circumstance was inconclusive.
I have already stated why in my view the charabancs concerned in that case were in fact on view. If, then, the two cars with which this case is concerned were not exhibited to the public as being available for hire, I think that it is wrong to say of these vehicles that they were then hackney carriages “plying for hire”.
The respondents’ main contention begins in this way: plying for hire really means carrying out the business of carrying passengers for hire or reward. With respect I think that this suggested definition is misleading. The business is carried on by the owners of the cars and s 7 is not designed to regulate that business as such. It deals with the vehicle itself, and enacts that the vehicle shall not, if unlicensed, ply for hire. Of course, the vehicle can do nothing except under human control, but the section is contemplating the function which the vehicle itself is fulfilling, albeit under human control, at a particular time.
I do not find it possible to say that a hackney carriage not on view to the public is, when not so on view, plying for hire, particularly when at the same time there is no indication in or around it that it ever does such work. I agree also with the judgment of the Lord Chief Justice, and accordingly I also would allow this appeal.
SALMON J. I also agree, for the reasons stated by my Lord, although not without some doubt, that this appeal should be allowed. Such doubt as I feel springs not from the words of the statute, which appear to me to be reasonably plain, but from the multifarious decisions on it. If the matter were res integra, I should have thought that it was obvious that the words “plying for hire” have a meaning different from and narrower than “letting for hire” or “carrying on a private hire business”. But for authority, I should have thought that a vehicle plies for hire if the person in control of the vehicle exhibits the vehicle and makes a present open offer to the public, an offer which is accepted by the member of the public stepping into the vehicle.
In the case of a bus or charabanc it would matter not that he buys the ticket before he goes into the bus or after he enters the bus. In cases such as those, the member of the public knows nothing about and has no time for making any inquiry about the vehicle or the standing or indeed the identity of the owner, and it is not surprising that in cases such as those Parliament should make arrangements so that the vehicles which so ply for hire shall be of a certain standard of safety and comfort on which the member of the public can rely.
From time to time in the past people owning vehicles which were plying for hire have exercised their ingenuity for circumventing the provisions of the Metropolitan Public Carriage Act, 1869, and on a large number of occasions this court has had to consider those attempts. During the course of the case, observations have been made which deal with the particular circumstances of the case, but which have been followed and expanded in other cases, and so we have come to a position where, on the authorities, it is possible, as has been pointed out by counsel for the Minister of Transport and Civil Aviation, to make a powerful argument, as counsel for the respondents had done, for holding that this Act means something quite different from what any ordinary man would think that it meant on reading it.
Indeed this court, to my mind, is driven to the very brink of saying that whenever a private hire firm has a fleet of motor cars in its garage and advertises for customers, those motor cars are plying for hire. That seems to me to be quite wrong, and it was never within the contemplation of the Act that the job-master, who was the counterpart in 1869 of the car hire service of 1959, should be within the Act, as was pointed out by Montague Smith J in Allen v Tunbridge ((1871), LR 6 CP 481 at p 485), as long ago as 1871.
I do not feel that we are constrained by authority to cross the brink, although authority I think prevents us finding that the making of a present open offer is a necessary part of plying for hire. I do not feel compelled by any authority to find that a vehicle plies for hire unless it is exhibited. In this case the vehicles were not, as my Lords have pointed out, exhibited, and for that reason I agree that this appeal should be allowed.
Appeal allowed.