The Court of Appeal has rejected an appeal by UTAG that sought to challenge TFL’s decision to grant FREE NOW an operating licence.
UTAG, United Trade Action Group Ltd (“UTAG”), a trade association for drivers of taxis (“black cabs”), challenged the lawfulness of the decision of Transport for London (“TfL”) to grant Transopco a London PHV operator’s licence.
UTAG sought to persuade the court that “FREE NOW is not a fit and proper person to hold a London PHV operator’s licence because its mode of operation involves the commission of a criminal offence by its drivers (plying for hire).”
However, Lord Justice Bean, in refusing the appeal, said:
“I agree with the Divisional Court in Reading BC v Ali that plying for hire requires a vehicle to be not just exhibited or on view but, while exhibited, to be soliciting custom in the sense of inviting members of the public to hire it without a prior contract. I do not consider that drivers of PHVs using the FREE NOW app can be said to be plying for hire. Neither the “exhibition” nor the “solicitation” element of the test is satisfied.”
“As to the element of exhibiting the vehicle, I do not consider that the depiction of the vehicle and others as rectangular blobs on the passenger/s smartphone screen amounts to exhibiting. The passenger is not being given any details that would identify a vehicle and no means of finding it or contacting it directly. The individual vehicles depicted on the screen are neither “visible” nor “on view” in any real sense. I agree with Mr Matthias that the case would be the same if, instead of being shown a map of the area with a number of blobs representing cars, the customer was simply told by an on-screen message “there are five cars currently available within five minutes of where you are waiting”. But that would not be exhibition either. Like Flaux LJ in the Reading case, I accept that the case is no different from that of the traditional minicab firm which takes phone calls from prospective customers and where the operator tells them “we have five cars within five minutes of you”. All that the FREE NOW app does is to speed up that process.”
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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