The High Court has clarified the definition of “plying for hire” in relation to minicabs working for Uber and Free Now. 

In the case of United Trade Action Group Ltd, R (On the Application Of) v Transport for London (Rev1) [2021] EWHC 3290 (Admin), Lord Justice Males and Mr Justice Fraser were asked to make a declaration on whether, in order to comply with the provisions of the 1998 Act, a licensed operator must accept a contractual obligation to the passenger as a principal to carry out the booking (“the Operator issue”). 

The second issue the Court was asked to rule on was whether a driver soliciting passengers by means of the Free Now app (which is in all material respects identical to the Uber app) is “plying for hire” within the meaning of the Metropolitan Public Carriage Act 1869 (“the 1869 Act”) (“the Plying for Hire issue”).

On the Operator issue, Lord Justice Males and Mr Justice Fraser said:

“In our judgment the 1998 Act plainly contemplates that acceptance of a booking by the operator will create a contract between the operator and the passenger and, furthermore, that this will be a contract by which the operator undertakes an obligation as principal to provide the transportation service, that is to say to provide a vehicle and driver to convey the passenger to the agreed destination. That is what is meant by a “private hire booking”.”

By way of illustration, they continued:

“If the passenger’s only contractual relationship is with a driver he or she has never heard of and who is in any event unlikely to be worth claiming against, any claim is likely to be practically worthless. Conversely, if the obligation must be undertaken by the operator, the operator will have a powerful incentive to ensure that the drivers it uses are reliable and, if something does go wrong, a remedy against the operator is likely to be worthwhile.”

Regarding the Plying for Hire issue, it was argued that “the renewal of the licence [Free Now] by TfL was … unlawful because (in judicial review terms) (1) TfL failed to have regard to the unlawful way in which Free Now conducts its business by encouraging drivers to break the law, and (2) Free Now’s encouragement to its drivers to break the law means that TfL could not rationally conclude that Free Now is a fit and proper person to hold a licence.”

Lord Justice Males and Mr Justice Fraser refused the application for judicial review of TfL’s decision.  In doing so, they relied on, and endorsed, the previous decision in the case of Reading v Ali, saying:

“We respectfully agree with that conclusion. Since the question whether a vehicle is plying for hire necessarily focuses on what it is doing before any contract is concluded, it can make no difference whether any contract of hire which may result is made with the operator or the driver.

“It is therefore our duty to follow Reading v Ali. We conclude, therefore, that Free Now does not facilitate or encourage its drivers to ply for hire and that this ground of challenge to TfL’s decision to grant it an operator’s licence must fail.”

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.

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