United Cabbies Group v Westminster Magistrates’ Court [2019] EWHC 409 (Admin)

United Cabbies Group (London) Ltd v Westminster Magistrates’ Court [2019] EWHC 409 (Admin) concerned an unsuccessful application for judicial review of Senior District Judge Emma Arbuthnot’s decision to grant Uber London Limited a 15-month London Private Hire Vehicle operator’s licence.

Uber had held a five-year licence granted by Transport for London in 2012. In September 2017 TfL refused to renew that licence, finding that Uber was not a fit and proper person to hold it. TfL’s reasons included that Uber had misled the authority in 2014 correspondence about its booking processes, that it had available “Greyball” software capable of evading regulatory processes, and that it had shown a lack of corporate responsibility affecting public safety. Uber appealed to the magistrates’ court. By the time the appeal was heard on 25 and 26 June 2018, Uber had changed its working practices and governance. TfL adopted a neutral stance but tested Uber’s evidence. Senior District Judge Arbuthnot granted the licence for 15 months, finding that while Uber had not been fit and proper at the time of TfL’s refusal, it had provided evidence to the court that it was now fit and proper within the meaning of section 3 of the Private Hire Vehicles (London) Act 1998. The judge granted a shorter licence to enable TfL to test the new arrangements.

United Cabbies Group, a mutual society representing Hackney Carriage drivers, challenged the decision on two grounds. The first ground alleged bias, whether actual or apparent, arising from financial links between the judge’s husband and Uber. In August 2018 the Guardian had reported that Lord Arbuthnot, the judge’s husband, was a consultant to SC Strategy Ltd, whose clients included the Qatar Investment Authority, a substantial investor in Uber’s parent company. The second ground alleged that the judge had acted ultra vires by effectively granting a probationary licence without making a finding that Uber was fit and proper at the time of her decision.

On the second ground, the claimant relied on paragraph 40 of the judgment in which the judge stated that Uber “has provided evidence to this Court that it is now a fit and proper person within the meaning of the Act. I grant a licence.” Mr Griffiths QC submitted that this contained no express finding that the judge was satisfied that Uber was fit and proper, merely that it had provided evidence. He argued that this stemmed from the judge having granted what amounted to a probationary licence in the hope that Uber might become fit and proper in the future, citing the judge’s reference in paragraph 13 to Uber asking for a “probationary licence only” of 18 months, later reduced to 15 months.

The Divisional Court rejected this submission. The Lord Chief Justice and Mr Justice Supperstone held that the judgment read as a whole made abundantly clear that the judge had applied the correct statutory test. She had stated at the outset that she must ask whether Uber was a fit and proper person to hold the licence. The skeleton arguments of the parties, the list of issues and the oral submissions all repeatedly emphasised that the question was whether Uber was fit and proper at the date of the hearing. The judge had been repeatedly reminded of the well-known test in section 3(3)(a) of the 1998 Act and the court was satisfied that she had not departed from it. The court noted that none of the distinguished counsel or solicitors present had considered at the time that the judgment revealed any failure to make the necessary finding. Having said that Uber had provided evidence that it was fit and proper and then immediately granting the licence, it was obvious that the judge had accepted that evidence. The court invoked Lord Hoffmann’s observation in Piglowska v Piglowski that judgments should be read on the assumption that the judge knew how to perform his or her functions unless the contrary was demonstrated, and that appellate courts should resist narrow textual analysis.

On the first ground, the claimant advanced arguments based on both presumed bias and apparent bias. The principles applicable to presumed bias were that a judge is automatically disqualified where he or she has a direct pecuniary or proprietary interest in the outcome, or where the judge’s decision will promote a cause in which the judge is involved with a party. The link must be close and direct, not tenuous, remote or contingent. Where the interest is said to derive from a spouse or family member, the link must be so close and direct as to render that person’s interest indistinguishable from that of the judge.

The claimant’s case rested primarily on the Guardian article. Mr Griffiths confirmed that he did not rely on further matters set out in witness statements concerning other alleged connections between Lord Arbuthnot and Uber or TfL, but invited the court to consider them as part of the factual matrix. The facts were that Lord Arbuthnot had been a director and later a consultant to SC Strategy, one of whose clients was the Qatar Investment Authority, which had invested substantially in Uber’s parent company. The judge and her husband had been unaware of any link between QIA and Uber at the time of the hearing. The court accepted the judge’s explanation entirely.

The court held that the facts did not begin to show that the link between the judge’s interest and her husband’s was so close and direct as to be indistinguishable. Lord Arbuthnot’s remuneration from SC Strategy, which in turn received income from QIA, whose overall holdings included an investment in Uber’s ultimate parent company, constituted a tenuous link at best. He had not advised QIA on Uber. In those circumstances he could not sensibly be said to have a direct financial interest in the outcome, and the judge could not be said to have one either.

As to apparent bias, the test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. Mr Griffiths emphasised the judge’s subsequent decision to recuse herself from further Uber cases, suggesting that if she perceived a problem, so would the fair-minded observer. The court disagreed, noting that at the time the judge wrote explaining her recusal she knew about matters raised by the Guardian which she had not known when granting the licence, and that prudence naturally favoured being safe rather than sorry in such circumstances.

Mr Griffiths advanced a novel argument that a judge dealing with a high-profile matter with a significant public interest element had a duty to check whether there were any likely disqualifying interests which should be disclosed. A simple question to her husband, he submitted, would have revealed potential conflicts. The court rejected this submission as inconsistent with the settled approach in Locabail (UK) Ltd v Bayfield Properties Ltd, in which Lord Bingham CJ had made clear that it is the actual knowledge of the judge that determines the assessment in apparent bias cases. Once it is accepted that the judge did not know of the relevant connection, there could be no real danger of bias. The suggested duty of inquiry found no support in authority, would impose an unnecessary and onerous burden, and would give rise to considerable practical difficulties. The court saw no warrant for a gloss on the Locabail principle.

Having ascertained all relevant circumstances, the court considered that a fair-minded and informed observer would not conclude that there was a real possibility of bias. Even if there were an obligation to check, which the court did not accept, there was no evidence that Lord Arbuthnot had a financial interest in the outcome, still less that the judge could have had such an interest.

The court dealt shortly with the further matters raised in witness statements, which included alleged connections through Thales UK, Pure Storage, BlackRock, the judge’s brother (who had expressed support for Uber in the United States), employee discounts on Uber journeys for TfL staff, and connections between individuals associated with Uber and persons known to Lord Arbuthnot. The judge confirmed in each instance that she had either no knowledge or no relevant knowledge of the matters alleged. The court held that these tenuous connections fell well short of evidence of links that would begin to give a fair-minded observer even pause for thought. The court quoted the examples given in Locabail of relatively close connections or potentially coincident interests that could not give rise to apparent bias, illustrating that suggestions of bias must have substance to trouble the fair-minded observer.

In short, the Divisional Court dismissed the application for judicial review, holding that the judge had correctly applied the statutory test of fitness and propriety at the time of her decision and that no fair-minded observer would conclude there was a real possibility of bias arising from the matters alleged.

Piglowska v Piglowski [1999] 1 WLR 1360
Ltd v Bayfield Properties Ltd [2000] QB 451
Jones v DAS Legal Expenses Insurance Co. Ltd [2003] EWCA Civ 1071
Porter v Magill [2002] 2 AC 357, [2001] UKHL 67
Taylor v Lawrence [2003] QB 528
Helow v Secretar y of State for the Home Department [2008] 1 WLR 2416
Morrison and Another v AWG Group Ltd and Another [2006] EWCA Civ 6, [2006] 1 WLR 1163
Auckland Casino Ltd. v Casino Control Authority [1995] 1 NZLR 142