United Trade Action Group Limited (R on the application of) v Transport for London

For plying for hire under the Metropolitan Public Carriage Act 1869, a vehicle must be exhibited to the public and, while exhibited, expressly or impliedly solicit custom for a journey without a prior contract or booking. An anonymised app display of nearby vehicles is not exhibition where no vehicle is identifiable or directly hireable. Driving towards or waiting in an area of demand while awaiting a pre-booked private-hire job is not solicitation. Digital technology does not remove the distinction between private hire and plying for hire.

United Trade Action Group Ltd challenged Transport for London’s grant of a London private hire vehicle operator’s licence to Transopco UK Ltd, which operated through the FREE NOW smartphone app. The Divisional Court allowed the claim on a separate operator issue and granted a declaration, but rejected the argument that drivers using the app were plying for hire. That decision, reported at [2022] 1 WLR 2043, followed Reading BC v Ali [2019] 1 WLR 2635. The appeal concerned the plying for hire issue and, separately, the decision to make no order as to costs.

1. Plying for hire. The appeal was dismissed. Under section 7 of the Metropolitan Public Carriage Act 1869, plying for hire requires a two-stage inquiry. The vehicle must be exhibited, in the sense of being visible or on view to prospective customers. While exhibited, it must expressly or impliedly solicit custom by inviting members of the public to hire it without a prior contract or booking. Bean LJ approved the approach in Cogley v Sherwood [1959] 2 QB 311 and agreed with Reading BC v Ali [2019] 1 WLR 2635.
2. An anonymised display of rectangular vehicle symbols on a passenger’s smartphone did not amount to exhibition. No particular vehicle was identified, and the passenger could not find, contact or directly hire it. The app merely accelerated the traditional process in which a minicab operator tells a customer that vehicles are available nearby.
3. Nor was there solicitation. A driver did not solicit custom merely by driving towards, or remaining in, an area of high demand. The vehicles displayed no relevant invitation, drivers did not wait at taxi ranks or solicit passers-by, and passengers could not be taken without a prior booking. Singh LJ emphasised that technological developments had not removed the conceptual distinction between a pre-booked private hire journey and plying for hire. Phillips LJ agreed with both judgments.
4. Costs. Permission to appeal on costs was refused. The Divisional Court had been entitled to treat the two separate judicial-review issues as cancelling each other out after success on one and failure on the other. Its decision to make no order as to costs was an exercise of discretion and disclosed no error of principle.

• Court of Appeal (Civil Division): The appeal on plying for hire was dismissed. Permission to appeal against the costs order was refused.
• Divisional Court of the Queen’s Bench Division: In [2021] EWHC 3290 (Admin), the court granted relief on the separate operator issue but rejected the plying for hire challenge and made no order as to costs.