𝐇𝐢𝐠𝐡 𝐂𝐨𝐮𝐫𝐭 𝐯𝐞𝐫𝐝𝐢𝐜𝐭: 𝐔𝐛𝐞𝐫 𝐚𝐧𝐝 𝐨𝐭𝐡𝐞𝐫 𝐏𝐇 𝐨𝐩𝐞𝐫𝐚𝐭𝐨𝐫𝐬, 𝐨𝐩𝐞𝐫𝐚𝐭𝐢𝐧𝐠 𝐢𝐥𝐥𝐞𝐠𝐚𝐥𝐥𝐲.

Uber and others operating illegally and High Court Victory for UTAG and Black Cabs

We continue to be at the forefront of important public law challenges, the latest in which my client, the United Trade Action Group (“UTAG”) was the Claimant in the judicial review and the defendant in the Part 8 proceedings commenced by Uber (Hogan Lovells instructed) following our application to JR.

In short, we have been successful in Part 8 proceedings, a big win for UTAG on behalf of the taxi trade.  There is no dispute that Uber does not currently operate in accordance with the requirements of the 1998 PHV Act and therefore Uber does not presently operate lawfully.

The Divisional Court declared in both proceedings:

"that in order to operate lawfully under the Private Hire Vehicles (London) Act 1998 a licensed operator who accepts a booking from a passenger is required to enter as principal into a contractual obligation with the passenger to provide the journey which is the subject of the booking."

“I am very pleased with the judgement and the clarity it provides for private hire operators. They are the principal and their operating model must be compliant with the 1998 Act. Transport for London now has the declaration from the divisional court with which to enforce and ensure compliance and scrutinise the terms of the contract between passenger and operator.” Darren Rogers

The first issue for the divisional court was 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”). On this issue Uber and Free Now argued that this is not necessary, while UTAG argued that it was. TfL remained characteristically “neutral”.

Uber and similar platforms maintained that ‘their’ drivers were performing services solely for, and under contracts made with passengers through the agency of Uber or under similar platforms. Uber maintained that its only role was to act as a booking agent providing technology services and collecting payment as agent for the drivers.

Uber maintained that references in the 1998 Act to “acceptance” of a booking refer only to acceptance of the regulatory responsibilities set out in the Act and in the operator’s licence. Kingston upon Hull City Council v Wilson shows that concepts of contract law should not be introduced into the 1998 Act which is concerned with regulation in order to ensure public safety.

Unsurprisingly Free Now supported Uber’s submissions. They submitted in addition that there is a distinction between acceptance of a booking (which is what the operator is required by the Act to do and is what Free Now does) and the undertaking of an obligation to carry out the journey (which is what the driver does). Acceptance of an obligation to carry out the journey by the operator is unnecessary in order to ensure public safety, which is ensured by the fact that regulatory obligations are also imposed on the driver and the vehicle, both of which have to be licensed, together with the obligation on the operator to keep records at its operating centre.

We argued that the 1998 Act plainly contemplates that acceptance of a booking by the operator would 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. 

Mr David Matthias QC for UTAG, submitted that Lord Leggatt’s analysis in Uber v Aslam was in accordance with the language and purpose of the 1998 Act. He drew attention to some of the terms in Free Now’s current Users’ Terms (valid from 30th June 2020) which, he submitted, are inconsistent with the requirements of the Act. 

"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...The distinction proposed between acceptance of a booking and the undertaking of an obligation to carry out the journey is illusory.” Lord Justice Males

A major illegality underlying the operating model of many app based private hire operations has been decisively recognised by the Divisional Court in this landmark ruling

In respect of our Judicial Review against FreeNow this challenge was in two parts; the "Operator point" and Facilitating PHV to Ply for Hire via an App. UTAG was successful on the “Operator issue”. Overall, the Judicial Review result was a victory but not being able to win the second ground on Plying for Hire was always going to be a challenge.

Our application for permission to appeal to the Court of Appeal on the Plying for Hire issue (as defined in paragraph 7 of the judgment) is granted. The plying for hire issue is an issue of considerable importance which is suitable for consideration by the Court of Appeal. 

My thanks to David Matthias QC, Charles Streeten both of Francis Taylor Building, London and the United Trade Action Group team and supporters. 

Source Darren J Rogers on Linkedin