Introduction

The case United Trade Action Group Ltd, R (On the Application Of) v Transport for London & Anor ([2022] EWCA Civ 1026) addresses a pivotal issue in the regulation of transportation services in London. United Trade Action Group Ltd ("UTAG"), representing the interests of traditional black cab drivers, contested the legality of Transport for London ("TfL") granting a London Private Hire Vehicle (PHV) operator's licence to Transopco UK Ltd, trading as FREE NOW. Central to this litigation is the interpretation of the term "plying for hire" as defined by the Metropolitan Public Carriage Act 1869, a statute predating modern transportation technologies.

The dispute underscores the tension between traditional taxi services and app-based PHVs, exploring whether the latter's operational model aligns with or violates longstanding legal definitions. This commentary delves into the court's analysis, the precedents cited, the legal reasoning employed, and the broader implications for the transportation sector in London.

Summary of the Judgment

UTAG challenged TfL's decision to license FREE NOW as a PHV operator, arguing that the app-based model inherently contravenes the Metropolitan Public Carriage Act 1869 by facilitating "plying for hire" without proper regulation akin to that governing black cabs. The Divisional Court previously upheld UTAG's stance on the operator licensing issue but dismissed the claim that PHV drivers were plying for hire. Upon appeal, the England and Wales Court of Appeal (Civil Division) reaffirmed the Divisional Court's decision, ruling that PHV drivers operating via the FREE NOW app do not meet the criteria for "plying for hire" under the 1869 Act.

The Court of Appeal concluded that the technological framework of the FREE NOW app effectively mitigates the traditional indicators of plying for hire, such as the physical exhibition of vehicles and solicitation of passengers without prior booking. Consequently, the licensing of app-based PHVs remains lawful, preserving the regulatory distinction between black cabs and PHVs.

Analysis

Precedents Cited

The judgment extensively references historical and contemporary cases to elucidate the boundaries of "plying for hire." Key among these are:

• Cogley v Sherwood [1959] 2 QB 311: Established a two-stage test requiring both exhibition of the vehicle and solicitation of passengers.
• Rose v Welbeck Motors [1962] 1 WLR 1010: Affirmed that vehicles must explicitly or implicitly solicit custom to be considered as plying for hire.
• Reading BC v Ali [2019] 1 WLR 2635: Applied the Cogley test in the digital context, ruling that app-based PHV drivers do not equate to plying for hire.
• Sales v Lake [1922] 1 K.B. 553: Outlined conditions for plying for hire, emphasizing solicitation and possession of a carriage.

These precedents collectively inform the court's nuanced approach to interpreting "plying for hire," especially as it pertains to technological advancements in the transportation sector.

Legal Reasoning

The court's legal reasoning centered on the statutory interpretation of "plying for hire" within the framework of the 1869 Act. The term was dissected to determine whether the actions facilitated by the FREE NOW app fell within its ambit.

The two critical elements derived from Cogley v Sherwood—exhibition and solicitation—were scrutinized:

• Exhibition: The court determined that the depiction of vehicles as anonymized icons on a smartphone app does not constitute "exhibition" in the traditional sense required by the 1869 Act. Unlike visibly parked hackney carriages, the app's interface does not present the vehicles in a manner that implies availability for hire without prior booking.
• Solicitation: The solicitation element necessitates an open offer to the public, inviting immediate engagement without the need for a pre-existing contract. The app-based model mandates a booking process, thereby diluting any claim of unsolicited service offerings.

Furthermore, the court highlighted that the operational mechanisms of FREE NOW, including the "triple lock" licensing requirements (operator, vehicle, and driver), align with statutory mandates, negating claims of simultaneous lawful conduct under PHV legislation and criminal conduct under hackney carriage laws.

Impact

The judgment has significant ramifications for the regulation of app-based PHVs in London:

• Legal Clarity: It reinforces the legal distinctions between traditional taxi services and modern PHVs, providing a clear interpretation of "plying for hire" that accommodates technological advancements.
• Regulatory Framework: Upholding the licensing of app-based operators like FREE NOW ensures that the existing regulatory regime remains effective and adaptable to evolving transportation models.
• Market Dynamics: By affirming the legality of PHV operations, the judgment allows for continued competition between black cabs and app-based services, potentially impacting market share and service standards.
• Future Litigations: The detailed analysis serves as a precedent for future cases where traditional regulations intersect with modern technological applications, guiding courts in similar disputes.

Complex Concepts Simplified

Plying for Hire

Plying for hire refers to the act of offering transportation services to the public for payment. Under the 1869 Act, this encompasses any carriage for conveyance of passengers available for hire within London, excluding stage carriages. The key components include:

• Exhibition: The vehicle must be visibly available to the public, indicating readiness to provide hire services.
• Solicitation: There must be an open offer to the public to hire the vehicle without the necessity of a prior contract.

Triple Lock Licensing

The "triple lock" is a regulatory requirement for PHV operators in London, ensuring that:

• Operator License: The company managing the PHV service must be licensed by TfL.
• Vehicle License: Each vehicle must hold a valid PHV license.
• Driver License: Drivers must possess a valid PHV driver license.

This framework ensures that only qualified operators, vehicles, and drivers participate in the PHV market, maintaining service standards and regulatory compliance.

Metropolitan Public Carriage Act 1869

Enacted to regulate public transportation in London, this act governs the operation of hackney carriages (black cabs) and imposes licensing requirements to ensure safety and service quality. Despite its age, the act remains pertinent, necessitating judicial interpretation to address modern transportation modalities.

Conclusion

The Court of Appeal's ruling in United Trade Action Group Ltd v Transport for London serves as a landmark decision delineating the boundaries between traditional taxi services and app-based PHV operations. By upholding the principles established in Cogley v Sherwood and adapting them to contemporary contexts, the court effectively bridges historical legislation with modern technological realities.

This judgment not only preserves the regulatory integrity of PHV services but also ensures that traditional black cab operators can coexist alongside innovative transportation solutions. The decision underscores the judiciary's role in interpreting archaic statutes in a manner that accommodates progress without undermining legislative intent. As the transportation landscape continues to evolve, this case will undoubtedly inform future legal discourse and regulatory frameworks, fostering a balance between innovation and tradition.

Ultimately, the significance of this judgment lies in its affirmation that lawful, regulated PHV operations, facilitated by contemporary technologies, do not infringe upon or cannibalize the established taxi services, thereby maintaining a fair and competitive market environment.