1962 Clipboard Johnnie 2011 No Change


Rose v Welbeck Motors Ltd and Another.

CRIMINAL; Road Traffic

QUEEN’S BENCH DIVISION
LORD PARKER CJ, WINN AND BRABIN JJ
30, 31 MAY 1962

Rood Traffic – Hackney carriage – Metroplitan police area – “Plying for hire” – Mini-cab parked in bus stand-by – Advertisements and telephone number on vehicle – Radio aerial on roof providing two-way communication – Metropolitan Public Carriage Act, 1869 (32 & 33 Vict c 115), s 7.

On 29 September 1961, at 12.45 pm the appellant, a taxi-driver, found a mini-cab parked in a bus stand-by where buses turn round. It was a bright red Renault Dauphine, with various advertisements on the sides and various inscriptions, the most important being a legend on each side of the vehicle “Welbeck Motors, Mini-cabs”. There was also a telephone number along the roof, and there was a radio aerial on the roof providing a two-way short-wave communication.

A bus later wished to pull in from a nearby road and the mini-cab moved out of the bus stand and stopped about ten yards from where it had been. A police officer asked the driver of the mini-cab why he was waiting there, and received the reply that he was waiting for any jobs that came up in the area, and that he had been there fifty minutes. He made it plain that he was to be informed of jobs over the radio.

At about 1.30 pm, the mini-cab drove off, but later came back and parked quite close to the corner from which it had driven away. The owners and the driver of the mini-cab were charged with plying an unlicensed hackney carriage for hire, contrary to s 7 of the Metropolitan Public Carriage Act, 1869a. The justices upheld a submission that there was no case to answer and dismissed the informations. On appeal by the appellant,

Held – The distinctive appearance of the vehicle, its colour, its inscriptions and its equipment in the form of radio communication, coupled with the place where it was on view and its conduct during the relevant period, made a prima facie case that the vehicle conveyed an invitation to the public to use it, and, as it was on view to the public, there was a case to answer that the mini-cab was plying for hire; accordingly the proceedings would be remitted with a direction to the justices to continue the hearing.

Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood ([1959] 2 All ER 313) applied.

Alker v Woodward (16 February 1962, “The Times”, 17 February 1962) followed.

Appeal allowed.

Notes
As to the meaning of plying for hire, see 33 Halsbury’s Laws (3rd Edn) 801, para 1372; and for cases on the subject, see 42 Digest 853–856, 77–94.
For the Metropolitan Public Carriage Act, 1869, s 7, see 24 Halsbury’s Statutes (2nd Edn) 871.

Cases referred to in judgment

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.

Case Stated.

This was a Case Stated by justices for the county of Essex in respect of their adjudication as a magistrates’ court sitting at Stratford, on 8 November, 1961. On 13 October 1961, the appellant, Emmanuel Rose, preferred informations against the respondents charging that (i) the first respondents, Welbeck Motors Ltd being the owners of an unlicensed hackney carriage which plied for hire at the junction of Forest Road and Beacontree Avenue, E 17, on 29 September 1961, contrary to s 7 of the Metropolitan Public Carriage Act, 1869, and (ii) that the second respondent, Frederick Stanley Jones, being the driver of the vehicle unlawfully plied for hire at the junction of Forest Road and Beacontree Avenue, E.17, on 29 September 1961, contrary to s 7 of the Act of 1869. The following facts are summarised from the evidence.

At about 12.45 pm on 29 September 1961, the appellant, a licensed metropolitan taxi-driver, was driving his cab near the junction of Beacontree Avenue and Forest Road, Walthamstow, when he saw a mini-cab parked in the bus stand-by where buses turn round. The mini-cab was a bright red Renault Dauphine with various advertisements and inscriptions on it, the most important being a legend on each side of the vehicle “Welbeck Motors, Mini-cabs”, and the telephone number “Welbeck 4440” along the roof. In addition, there was a radio aerial on the roof providing a two-way short-wave communication.

The second respondent was sitting behind the wheel. A conversation between the appellant and the second respondent took place, as a result of which the appellant called the police. Some time later a bus wanted to pull in from Forest Road and the mini-cab pulled out from the bus stand and stopped on the corner of Beacontree Avenue about ten yards from where it had been before. At about 1.15 pm a police officer arrived and asked the second respondent if he was a taxi, to which the latter replied in the negative.

The second respondent was then asked why he was waiting there, to which he replied: “I am waiting for any jobs that come up in this area”. There were no passengers in the mini-cab at the time. The police officer pointed out to the second respondent that he was unlawfully plying for hire, to which the second respondent replied, “I have been here fifty minutes waiting for a job”.

He also said that his control had told him he could stand where he liked provided he did not cause an obstruction, and made it clear that he was to be informed of “jobs” over the radio. At about 1.30 pm, the mini-cab drove away, and, according to the appellant, it came back again and parked quite close to the corner from which it had driven away.

The respondents submitted that there was no case to answer. It was contended by the appellant that (a) for a vehicle to ply for hire, there must be a solicitation of the public or invitation to the public to hire the vehicle by the driver or person in control of the vehicle which might be either express or implied; (b) the vehicle must be exhibited to the public as a vehicle which was available802 for hire, and readily available for hire, although it need not be capable of being booked from the driver; (c) on the facts, the vehicle was readily available for hire, and by its character and appearance invited the public to use it or the services provided by the first respondents; (d) the description of the vehicle as a “Welbeck Motors Mini-cab” together with the telephone number from which presumably it could be hired constituted a solicitation or invitation to the public to hire it, (e) the vehicle was exhibited to the public by being parked in a public place for at least fifty minutes and, accordingly, all the elements of a plying for hire were present and a prima facie case was made out.

It was contended by the respondents that (i) there was no evidence of solicitation or invitation to the public; (ii) there was nothing stating that the vehicle was for hire; (iii) the vehicle must be exhibited with an open offer to the public to use that vehicle, and there was no evidence of that, and (iv) the driver was just sitting waiting for directions by radio.

The justices dismissed the informations without calling on the respondents to answer the case, and the appellant now appealed.

The direction and case mentioned below were cited in argument in addition to those in the judgmentb.
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b Ie, Practice Note [1962] 1 All ER 448, White v Cubitt, [1930] 1 KB 443
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Neil Lawson QC and J M Williams for the appellant.
Malcolm Morris QC and John K Wood for the respondents.

31 May 1962. The following judgments were delivered.

LORD PARKER CJ stated the facts and continued: The sole question for this court is whether the prosecution raised a case which required an answer. In order to decide that, it is necessary to consider first the essential elements that the prosecution would have to prove, and then go on to ascertain on the facts given in evidence whether those elements were prima facie proved. The prosecution was for an offence contrary to s 7 of the Metropolitan Public Carriage Act, 1869. Section 4 of that Act provides, so far as it is material:

“In this Act ‘stage carriage’ shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road, or place within the limits of this Act … ”

Section 7 provides:

“If any unlicensed hackney or stage carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding £5 for every day during which such unlicensed carriage plies. And if any unlicensed hackney carriage is found on any stand within the limits of this Act, the owner of such carriage shall be liable to a penalty not exceeding £5 for each time it is so found. The driver also shall in every such case be liable to a like penalty unless he proves that he was ignorant of the fact of the carriage being an unlicensed carriage … ”

In the recent case of Cogley v Sherwood; Car Hire Group (Skyport) Ltd v Sherwood, etc, what is sometimes referred to as the “airport case”, this court had to consider that section of the Act, and, in the course of doing so, reviewed a number of the earlier cases. The court there emphasised that the approach to the matter was to ask oneself the question whether the vehicle itself was plying for hire as opposed to the case of a man going to the owner of a car hire establishment and hiring one of his cars. That was the question posed in the earlier cases, a particular illustration of it being in Allen v Tunbridge, where Montague Smith J said ((1871), LR 6 CP at p 485) in reference to a previous case (Clarke v Stanford, (1871), LR 6 QB 357).

“It appears to have been held there, that, if the proprietor of a carriage sends it to a place for the purpose of picking up passengers, that is a plying for hire within the Act. That is very different from a customer going to a job-master to hire a carriage.”

Again, in Cogley’s case, this court held that it was essential before one could say that a vehicle was plying for hire, first, that it should be exhibited, be on view to the public, and secondly, that it should, while on view, expressly or impliedly solicit custom in the sense of inviting the public to use it. The fact that if those conditions are proved a ticket had to be obtained from an office or a booking made other than through the driver was immaterial.

It is, I think, right to say that a further possible question, namely, what was to be the result if the obtaining of a ticket or a booking involved a vehicle other than that on view, was left open. Reference, however, was made to Gilbert v McKay, and in the argument to Foinett v Clarke, which cases suggest that, at any rate in certain circumstances, that fact would not of itself prevent a finding that the vehicle in question was plying for hire.

That the vehicle in the present case was on exhibition in the sense that it was on view to the public is undoubted. The real question, as it seems to me, is whether a prima facie case was made out that the vehicle was impliedly inviting the public to use it. Whether in any case such a prima facie case is made out must, of course, depend on the exact circumstances, and I certainly do not intend anything that I say in this judgment to apply to any facts other than those in this case.

What were those facts? As I have already said, one starts with the fact that this vehicle was of a distinctive appearance, its colour, its inscriptions, its equiplment in the form of radio communication, and its type. Secondly, and this is equally important, it stood with the driver at the steering wheel for some fifty minutes in a public place on public view and at a place where buses made a turn round, in other words, at a place where many members of the public would be getting off the buses and where many members of the public would forgather to board the buses. Moreover, when requested to leave, the driver drove away only to return immediately to almost the same place.

It has been urged by counsel for the respondents, that the inscriptions and appearance of this vehicle were incapable of conveying an invitation to the public: “I am for hire”. It is said that the vehicle was merely advertising the owners of the vehicle and was not saying in the way I put it: “I am for hire”. It is perfectly true, of course, that the inscriptions were advertising the owners, Welbeck Motors Ltd and also saying, “and if you ring up Welbeck 4440 you can have one of the vehicles that they hire known as mini-cab”.

In my judgment, however, the inscriptions on, and appearance of, the vehicle, coupled with the place where it was on view and its conduct during the relevant period, was saying more than that. It was saying: “Not only do I”, if I may personify the vehicle, “recommend you to Welbeck Motors Ltd where you can hire a mini-cab, but, further, I am one of those mini-cabs and I am for hire”. I think in that connexion that the reference to mini-cabs is important.

A cab does convey the notion of a vehicle plying for hire. It may be that “taxi” is the more common word today, but “cab” as an abbreviation of “taxi-cab” is well known to everybody, and the legislation covering this matter is dealt with by the London Cab Order, 1934. Suppose it had been exhibited to the public with the word “taxi” on it or “Welbeck Motors Ltd Taxi proprietors”, it seems to me perfectly clear that such a vehicle would be conveying to the public not only “I am one of those vehicles”, but “I am as a taxi or as a cab available and for hire”. Indeed, this court has really gone so far as that already in Alker v Woodwardc where a vehicle was found at Liverpool bearing the inscription “Radio Taxis”, and the telephone number, “North 3071”.

It is true that there was the added fact that it was said to be standing at a licensed hackney carriage stand, but there was no physical lay-out of the stand which could be identified and the court attached no importance to that consideration, the only importance being that it was standing in a public place, and outside an hotel at half-past twelve at night. In that case the learned recorder of the Crown Court at Liverpool had upheld the submission of no case, and this court sent the case back for the hearing to be continued.
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c “The Times”, 17 February 1962. In that case the court (Lord Parker CJ Ashworth and Fenton Atkinson JJ) held that a licensed hackney carriage driver in a car displaying a card including the words “Radio Taxis, North 3071” standing at or near a hackney carriage stand was plying for hire
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In my judgment, there is no real difference between the expression “taxi” and “cab” and, in the circumstances of this case, it seems to me that any tribunal would be bound to hold that this vehicle in the particular circumstances of this case was exhibiting itself as a vehicle for hire. In my judgment, therefore, this case ought to be remitted to the justices with the direction that there was a case to answer and to continue the hearing of the case. I deliberately refrain from saying what, in my judgment, might amount to a defence. I would only say that it must not be taken that what I am reported to have said towards the end of my judgment in the newspaper report of Alker v Woodward is correct in fact or in lawd.
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d Lord Parker CJ was reported to have said: “The evidence was that the defendant had said: ‘i’m waiting for a call’, and it was said that the defendant’s firm were known to operate, like mini-cabs, by radio. That, if believed, was a good defence, but the recorder need not have believed it. He should therefore have heard the evidence … ”
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WINN J. I agree, and would add only one very short point of my own, because all that I would wish to have said has been said so lucidly already by Lord Parker CJ. It seems to me that the essence of this case is what interpretation must be put on the appearance and the behaviour of the vehicle in the circumstances established prima facie by the evidence.

As I understood counsel for the respondents’ most helpful and lucid presentation of his case, he would be constrained to accept the fact that it makes no difference in law whether the vehicle was to be taken to be saying: “I am here available for you to step into and hire me as a cab”, or whether it must be taken to say: “I am here available to be hired by you conditional on my owner’s approval and ordering me to take you where you want to go”.

His case is that neither of those representations or invitations or offers can properly be spelled out on the evidence as it stood when the case was stopped. As I see the matter, leaving aside any possible technicality about whether goods displayed in a shop window are offered for sale, such goods when so displayed at least amount to an invitation to open negotiations for the purchase of those goods, and, where only one item of the kind is displayed, an invitation to negotiate for the purchase of that article assuming it to be of a rare kind or rare in the relevant circumstances.

I think that, at the very lowest, the evidence given discloses behaviour and appearance on the part of this vehicle which amounted to an invitation, “Get in touch one way or another with my owner and see whether he is willing for me to take you as a vehicle which you are hiring”. For the reasons I have added, and for all those Lord Parker CJ has given, I agree.

BRABIN J. I agree with what has been said and have nothing to add.

Appeal allowed: Case remitted.

Solicitors: Wegg-Prosser & Co (for the appellant); Amery-Parkes & Co (for the respondents).

Last edited by JD on Tue Dec 11, 2007 4:05 pm; edited 2 times in total

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