Reading Borough Council v Ali [2019] EWHC 200 (Admin)

Reading Borough Council v Ali [2019] EWHC 200 (Admin) was an appeal by way of case stated from the acquittal by the Senior District Judge (Chief Magistrate) of Mr Mudassar Ali on two charges of plying for hire without a licence contrary to section 45 of the Town Police Clauses Act 1847, heard by Lord Justice Flaux and Mr Justice Holgate in the Divisional Court. The appeal was dismissed.

Mr Ali was an Uber driver licensed by Transport for London under the Private Hire Vehicles (London) Act 1998, as were his vehicle and Uber as operator. On the nights of 21 and 22 January 2017 he was parked lawfully in central Reading waiting for bookings via the Uber smartphone App. Reading Borough Council had refused Uber an operating licence. Two Licensing Enforcement Officers registered as Uber passengers saw the outline of his vehicle on their App and interviewed him on both occasions. He said he was waiting for a booking through the App. The vehicle had no markings indicating it was for hire save for two small but highly visible TfL roundels. It did not advertise a contact number. The App showed registered customers a map with outlines of available vehicles in the area, but did not identify specific drivers or vehicles. A customer requesting a booking entered a destination, received a fare estimate, and if proceeding was matched by Uber with the nearest driver, who had ten seconds to accept. Only after acceptance did Uber confirm and record the booking, allocating the trip to that driver. The driver learned the destination only on pick-up. Mr Ali was not waiting at a taxi stand or bus stop, was not hooting or flashing lights, and would not have accepted street hails.

The Chief Magistrate held that the vehicle did not have a distinctive appearance crying out that it was for hire. It was not at a stand and was not available to pick up passengers in the traditional street manner. The entire transaction was conducted via the App, where bookings started, were recorded and fares estimated. She concluded that this was the modern equivalent of the telephone booking system and that Mr Ali was not plying for hire. She acquitted him on both charges.

The appellant posed four questions of law. The principal submission advanced by Mr Charles Holland for the Council was that exhibiting the vehicle’s location on the Uber App was equivalent to displaying a “for hire” sign and constituted an invitation to immediate hire, amounting to unlawful plying for hire. He argued that the App was a trading platform matching autonomous drivers with customers, that depiction of the vehicle on the App was exhibition in the same sense as in cases such as Rose v Welbeck Motors [1962] 1 WLR 1010, and was in fact more effective than physical display. He contended that there was no prior contract before this exhibition and solicitation, and that any subsequent booking through the App made no difference, being analogous to taking a ticket from an office as mentioned in Cogley v Sherwood [1959] 2 QB 311. Mr Philip Kolvin QC for Mr Ali submitted that the depiction was for the customer’s benefit, showing a potentially available vehicle, and was not solicitation. The App merely showed the location of various vehicles without allowing selection of a particular one. This was the modern technological equivalent of telephoning a private hire vehicle operator to request a car, which had been lawful for decades.

Lord Justice Flaux reviewed the statutory framework, noting that section 45 of the Town Police Clauses Act 1847 penalised plying for hire without a licence and that the Local Government (Miscellaneous Provisions) Act 1976 established a separate licensing regime for private hire vehicles outside London, with the Private Hire Vehicles (London) Act 1998 doing so for London. The two regimes were mutually exclusive. He noted that “plying for hire” was not defined in the statutes and reviewed the authorities. In Sales v Lake [1922] 1 KB 553 the Divisional Court held that plying for hire required soliciting or waiting to secure passengers without any previous contract. In Cogley v Sherwood Lord Parker CJ held that it was of the essence of plying for hire that the vehicle should be exhibited and that whilst so exhibited it should expressly or impliedly invite the public to use it. Donovan J and Salmon J concurred that exhibition was essential. In Rose v Welbeck Motors the Divisional Court held that a distinctive minicab parked for fifty minutes at a bus turning area with markings, radio aerial and telephone number, and returning almost immediately when asked to move, was plying for hire because the vehicle’s inscriptions, appearance and conduct amounted to saying not only that the firm hired minicabs but that this vehicle was one of them and was for hire.

Lord Justice Flaux held that there was no unlawful plying for hire for three reasons. First, the mere depiction of the vehicle on the App without specific identification of vehicle or driver and without the customer being able to select that vehicle was insufficient to establish exhibition in the sense required by Cogley and Rose, namely exhibition expressly or implicitly soliciting custom and inviting the public to hire the vehicle. The depiction was for the assistance of the Uber customer and was the modern technological equivalent of telephoning a minicab firm and being told that several cars were nearby. There was nothing in such a transaction that amounted to plying for hire and the position should not differ because internet technology replaced the phone call. Second, the agency relationship between Uber and the driver (if it existed) had no bearing. The customer had to confirm the booking after receiving the fare estimate and the driver had to accept it before either knew the identity of the other and before the car came to the pick-up point. There was a pre-booking recorded by Uber before the specific vehicle was identified, which accorded with private hire business and not unlawful plying for hire. The customer could not use Mr Ali’s car without making a prior booking through the App, as with the charabanc in Sales v Lake. Third, the character of the waiting was fundamentally different from Rose v Welbeck. Mr Ali was waiting for a customer to confirm a booking which he would then accept; he was not soliciting custom. His vehicle did not advertise availability for hire and if approached in the street he would have refused to take a passenger without a prior booking through the App. He was waiting for a private hire booking, not to solicit custom from passing members of the public. Applying Lord Parker CJ’s example from Cogley, if approached Mr Ali would have been saying that the prospective passenger could not have his vehicle but could obtain one by registering for and booking via the App.

Lord Justice Flaux answered the four questions in the case stated as follows: (1) No, because the identity of the vehicle could not be seen from the App and the specific vehicle could not be booked; (2) No, because the App merely informed Uber customers wishing to book that there were vehicles in the vicinity; (3)(a) and (b) No in any event; and (4) No. Mr Justice Holgate agreed. In short, the depiction of an unidentified vehicle on the Uber App available only for pre-booking through that App did not constitute plying for hire within the meaning of the Town Police Clauses Act 1847, and the Chief Magistrate had been correct to acquit.

Sales v Lake [1922] 1 KB 553
Cogley v Sherwood [1959] 2 QB 311
Rose v Welbeck Motors Ltd & Another [1962] 1 All ER 801; [1962] 1 WLR 1010
Gilbert v. McKay [1944] 1 All ER 458
Uber BV v Aslam [2018] EWCA Civ 2748