IS THERE A DISTINCTION BETWEEN WHAT IS AND WHAT IS NOT REGARDED IN LAW AS ‘PLYING FOR HIRE’?

A Briefing from Tim Noris, solicitor with Woodvine solicitors, specialising in Transport Law and Licensing.  

This briefing focuses on ‘plying for hire’ which remains a thorny, and ultimately unresolved, issue amongst Hackney Carriages, Private Hire vehicles (“PHV”) and enforcement officers and has led to uncertainty and a lack of clarity in the law.

The impact of being successfully prosecuted for ‘plying for hire’ when not possessing a Hackney Carriage licence is a conviction for an offence under Section 45 of the Town Police Clauses Act 1847 (‘TPCA’) as well as a conviction of permitting to use a vehicle on a road without a policy of insurance being in existence (contrary to Section 143 of the Road Traffic Act 1988 if that offence is also prosecuted).

Drivers summoned for such offences will need to consider whether they are covered by their own insurance policy or that of the company which has employed them; and whether such a policy was one that gives them cover in relation to the hiring. The difficulty will arise as is often the case outside London, when a driver is both licensed as a Hackney Carriage and as a private hire vehicle. However, this briefing principally deals with those who are only licensed as drivers of PHVs and therefore have no right to ‘ply for hire’.

Many drivers will be tempted by the offer of hiring following an approach by a prospective customer but will have to be mindful of the significant consequences should they be prosecuted and convicted of plying for hire. It is frequently the case that Local Authorities will seek to suspend or revoke a driver’s private hire licence under Section 60 of the Local Government (Miscellaneous Provisions Act 1976) following a hearing before the Local Licensing Taxi Sub-Committee.

The financial consequences of such a suspension for a period of anything between one to three months will certainly be significant in terms of the driver’s livelihood in these difficult financial times.

This is further exemplified when drivers receive a period of driver disqualification under the totting-up procedure by virtue Section 35 Road Traffic Offenders Act 1988 (where 12 or more penalty points are accumulated.) Having received a mandatory minimum 6 month ban they find themselves excluded from re-applying for their licence for a period of anywhere between 18 months and 2 years. 

The significance of this regulatory penalty cannot be under-estimated. It may be the case that drivers should consider whether they should operate either as a Hackney Carriage or a private hire or whether they should hold dual registration, albeit being mindful of the additional financial burden and licensing requirements that this would involve. It should be noted that the Government has refused to remove the ability of Local Authorities to limit Hackney Carriage numbers though some Local Authorities are increasingly choosing such a course of action. 

This is despite publication of a market study of the regulation of taxis and PHVs by the Office of Fair Trading in 2003 and the subsequent publication by the Department of Transport Best Practice Guidance in 2006 (updated in March 2010), both of which contradicted each other with regard to de-limitation being the best course. In turn, this has led to many decisions by Local Authorities being challenged in the courts.

HOWEVER, IS THERE A DISTINCTION BETWEEN WHAT IS AND WHAT IS NOT REGARDED IN LAW AS ‘PLYING FOR HIRE’?

It has always been the case that the public do not understand the distinction between a Hackney Carriage and a PHV, frequently believing that all vehicles are available for hire whatever the circumstances.

The question as to what is meant by ‘plying’ and ‘standing for hire’ has been a source of contention for a long time.

The right to ply or stand for hire is jealously guarded by Hackney Carriage proprietors as it is obviously the greatest distinction between their operations and that of a PHV. As already discussed it is an offence under Section 45 of TPCA to use a vehicle as a Hackney Carriage without a licence. 

This whole area has been the subject of much litigation over the past century or so and as a result a large body of legal authority has built up. Unfortunately, this has not been as helpful as may be assumed - as detailed in the case of Cogley v Sherwood which effectively summarised that “no comprehensive and authoritative definition of ‘plying for hire’ has emerged”. It was not until more recently in 1976 when lawfully licensed private hire vehicles came into existence that this very issue became such a contentious subject.

Lord Chief Justice Parker in Cogley made reference

to the many cases that have over the years been considered. Questions include: how is the vehicle being used and positioned to effectively ply for hire? In essence it appears that the vehicle should be on view and the owner or driver 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/she wants to. 

This means that if a PHV is positioned in an area where the public expect taxis to be, whether Hackney Carriages or PHVs, their very positioning may suggest that they are available for hire.

It should be noted that a fare being paid or a journey being undertaken does not have to have occurred for the offence of ‘plying for hire’ to be established. It is again a matter of fact and degree in each case, where there is prima facie evidence of the vehicle plying for hire or being on view to the public and inviting the public to use it. Clearly the location and appearance of the car is relevant. 

If a PHV is parked adjacent to a taxi rank and for a period of time, whether short or long, in such a position and bearing all the hallmarks of being a cab that such members of the public are likely to approach and avail themselves of the services of a taxi, then this could give rise to an accusation of plying for hire. The driver may argue that he was simply waiting for a future booking but in the circumstances it may be such that any Court could conclude that he was obtaining the opportunity of plying for hire.

Of course, the question then asked is: what does the PHV do whilst waiting for the next booking? It clearly would be unreasonable for them to drive continuously in fear of being accused of plying for hire whenever they stop anywhere. Nor could it be considered reasonable that they return to parking in a building where they cannot be seen.

And, can a PHV lawfully contact an operator on behalf of a prospective customer without this amounting to ‘plying’? The general view is that there is nothing in the Local Government (Miscellaneous Provisions) Act 1976 or any reported case or general law of agency to prevent a driver acting as a passenger’s agent in these circumstances. 

Therefore, it could be argued that if a driver is not parked near a taxi rank or in circumstances implying that he is plying for hire, he may assist in making a booking through his operator.

However, this was tested in the case of Chorley Borough Council v Thomas when such a booking was made in similar circumstances. The PHV was parked outside a pub when it was approached by a prospective passenger and the driver asked whether he was free. Having confirmed he was, the passenger got in the vehicle and the driver asked him his name and where he was going to. Having been told the destination the driver informed him the fare would be £1.40. 

The driver then contacted the operator via his radio to book the journey, the vehicle not moving until the booking had been made. A prosecution then followed under Section 45 TPCA but was dismissed by the District Judge. An appeal to the High Court by way of case stated followed. The question posed for the High Court was as follows:

“Whether the driver of a parked marked mini-cab whose vehicle was not a licensed Hackney Carriage was plying for hire within the Town Police Clauses Act 1847 if, he, without more, was asked by a member of the public if his vehicle was free and, having indicated that his vehicle was available and received details of the prospective journey and disclosed the price of it and placed a booking with this taxi operating base before the journey started.”

In allowing the appeal the High Court Judge decided on the facts that parking the vehicle outside the pub and then saying that he was free amounted to a prima facie case of plying for hire.

The consequence of this is that it must surely be the case that, by implication, should a booking be made before anybody enters the vehicle and that vehicle is assigned for the booking then the offence under Section 45 is not made out.

This particular offence in relation to PHVs continues to be both complex and undefined. It is essential that any driver or operator summoned for such offences receives detailed advice prior to appearing at the Magistrates’ Court. It may well be the case that there is a defence open to drivers who may unknowingly feel obliged to plead Guilty where the facts have not been fully considered prior to the hearing. 

However it must be remembered that an offence under Section 45 of the TPCA is a strict liability offence without any requirement of knowledge or intention. The illegal act itself is sufficient to constitute the crime.

The pre-booking element required for private hire vehicle is detailed in Section 56(2) of the Local Government Miscellaneous Provisions Act 1976. The key words being: “Shall keep a record... and shall enter therein, before the commencement of each journey, such particulars of every booking of a private hire vehicle invited or accepted by him.”

Unfortunately the law does not specify where a PHV may park on or off a road and in such a location whilst awaiting a radio message from their operator. Equally will it matter how long they are parked or the place in which they are parked whether near to places where prospective passengers may be found? 

And, is a PHV prevented from stopping anywhere near potential passengers unless they already have a booking or will they have to drive around until they receive the next booking or park somewhere well away from prospective passengers? Clearly this is a difficult situation for operators and their employees and/or driver operators who will find that cost and environmental pressures will not justify such unnecessary travel. 

It is unfortunate that the caselaw does not clearly decide even at this stage what is the right answer. It is of course a fact that there is no law to suggest that a PHV cannot park legally and await a further call for a booking via their operator provided that the vehicle is not standing or plying for hire as discussed earlier. It is suggested that the length of time that such parking is lawful is not relevant in these circumstances. 

The test of whether or not the vehicle is available for hire must be based on the intentions of the driver as evidence by his actions if approached by a prospective passenger.

So what is left for the individual operator and what must he do? He can park his vehicle lawfully and not have to secrete himself away and await a booking from his operator. Of course he can park adjacent to a Hackney Carriage rank (as long as he is parked legally) 

However, any prospective passenger can make a booking only by having received the details displayed on the private hire vehicle and can then be directed by the operator to such a vehicle, when lawfully parked and exhibited, as the driver had no involvement in the booking process.

The driver cannot himself take an active part in facilitating a booking via the operator as the offence of making himself available for immediate hire will have been made out. Similarly a third party other than the driver (e.g. a receptionist or pub landlord) can make the booking on behalf of the passenger so long as the driver does not fulfil that role.

London Case History 

Most famouse case re Unlicensed Vehicles Plying a For Hire is Rose v Welbeck Motors Ltd and Another. <see case here>

Other cases used in this judgement: 

Alker v Woodward (16 February 1962), “The Times”, 17 February 1962.
Allen v Tunbridge (1871), LR 6 CP 481, 40 LJMC 197, 24 LT 796, sub nom Allen v Trowbridge, 35 JP 695, 42 Digest 853, 78.
Cogley v Sherwood, Car Hire Group (Skyport) Ltd v Sherwood, Howe v Kavanaugh, Car Hire Group (Skyport) Ltd v Kavanaugh, [1959] 2 All ER 313, [1959] 2 QB 311, 123 JP 377, [1959] 2 WLR 781, 3rd Digest Supp.
Foinett v Clarke (1877), 41 JP 359, 42 Digest 854, 80.
Gilbert v McKay [1946] 1 All ER 458, 174 LT 196, 110 JP 186, 2nd Digest Supp. 

Source: Woodfines Solicitors. 

Tim Norris is Solicitor with the Crime & Regulatory Law Department, specialising in road transport law and licensing at Woodfines Solicitors based in Cambridge (offices also at Milton Keynes, Bedford and Sandy). tnorris@woodfines.co.uk