Reading Borough Council v Ali

Unlawful plying for hire requires both exhibition of the vehicle and express or implied solicitation of custom, inviting the public to hire that vehicle without a prior contract. A vehicle’s appearance on a private-hire smartphone application does not, without more, amount to exhibition or solicitation where the customer cannot identify or select the particular vehicle. Waiting for a booking made through the application is materially different from waiting to attract passengers from the street. The use of internet technology, rather than telephone booking, does not alter the legal character of the transaction.

This was an appeal by way of case stated against the acquittal of an Uber driver on two charges of plying for hire without a hackney-carriage licence, contrary to section 45 of the Town Police Clauses Act 1847. The driver was lawfully parked in Reading while waiting for a booking through the Uber application. The application showed vehicles in the vicinity, but did not identify or allow customers to select the particular vehicle. The central issues were whether that display constituted an invitation to book the vehicle or an Uber vehicle nearby, and whether the Chief Magistrate had erred in treating the absence of distinctive markings, street availability and the application-based booking process as relevant.

1. Appeal dismissed. The questions stated were answered no.
2. The governing principle, drawn principally from Cogley v Sherwood [1959] 2 QB 311 and Rose v Welbeck Motors [1962] 1 WLR 1010, is that plying for hire requires two elements: the vehicle must be exhibited or on view, and while exhibited it must expressly or impliedly solicit custom by inviting the public to use it without a prior contract.
3. The mere depiction of an unidentified vehicle on the Uber application did not constitute the necessary exhibition. Customers could see that vehicles of the relevant type were nearby, but could not identify or select the respondent’s vehicle. The application performed a function comparable to telephone booking by a private-hire operator.
4. The contractual relationship between Uber, the driver and the passenger was immaterial. Whatever the precise contractual analysis, the customer made a booking through the application before the particular vehicle was identified and before the driver proceeded to the pick-up point. This was private-hire business rather than unlawful plying for hire.
5. The character of the driver’s waiting was also decisive. He was waiting for a confirmed application booking, did not advertise the vehicle as available for hire, and would have refused a passenger seeking a ride from the street without a prior application booking. That differed materially from the vehicle waiting in Rose v Welbeck Motors.
6. The reasoning in Uber BV v Aslam [2018] EWCA Civ 2748 did not assist because the contractual analysis did not affect the plying-for-hire issue.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The respondent’s acquittal on two charges under section 45 of the Town Police Clauses Act 1847 was upheld.
• Chief Magistrate’s Court: The Senior District Judge (Chief Magistrate) acquitted the respondent on 10 July 2018.