Private hire driver loses appeal to High Court over service of notice revoking his licence

Mohammed Berow appealed to the High Court by case stated from Maidstone Magistrates' Court, which had dismissed his appeal against the council’s decision to revoke his private hire and hackney carriage licence on the grounds that he was not a fit and proper person.

Magistrates found the appeal had been filed outside the statutory time limit of 21 days, which began when a licensing officer emailed the reasons for the revocation to the appellant.

He told magistrates the email was not validly served until 22 October 2024, which would mean the appeal was within time.

The questions before Sir Peter Lane in the High Court were:

1) Was the council's decision to email the notice to Mr Berow good service within the meaning of s. 300(2) Public Health Act 1936 and s. 233 of the Local Government Act 1972, when it was agreed that the council gave no notice that they would use that method of service, nor, correspondingly, did Mr Berow have the opportunity to assent to that method of service.

2) Was it wrong in law for the Court to find that the council's chosen method of email service was good service for the purposes of s. 300(2) Public Health Act 1936 and s. 233 of the Local Government Act 1972.

3) On what date was effective service made on Mr Berow of the decision of the council.

The appellant asked the High Court to find magistrates erred in concluding that service had been effective because he received the email on 2 September 2024 and that service only occurred on 22 October 2024.

Sir Peter said: “I fully accept that the respondent bore the burden of proving that service was effected.

“Its case before the Magistrates' Court was that this burden had been discharged because the sending of the notice by email was, in the circumstances, effective service. That was so, whether or not the email had been sorted into the appellant's spam folder.”

The appellant by contrast claimed email was not good service whether or not it had gone into his spam folder.

Sir Peter said it was neither party's position that the issue of whether the email went into spam was material to the outcome of the appeal before the Magistrates' Court. But the appellant's position had materially changed since he had originally said the use of email per se was not permitted in the circumstances of this case, not simply that it had entered a spam folder.

The judge said there was no evidence that another email, concerning penalty points, went into the appellant’s spam folder, and so “it is difficult to see why the email of 2 September 2024 should have done so.

“This difficulty is compounded by the following considerations. The email was successfully copied to and received by the appellant's solicitor....

“The letter of 24 October 2024 from LS Licensing Lawyers to the respondent states (apparently on instruction from the appellant) that the email of 2 September 'was never seen or read' by the appellant, as ‘his system apparently deletes such spam after a period of one month.’”

This would have put the deletion at 2 October yet Mr Berow responded on 21 October to the original email chain that began with the email of 2 September, indicating that it had not been deleted.

“If deletion had occurred before the appellant claims to have seen the email, it is difficult to understand how the appellant could ever have been aware that the email had entered his spam folder,” Sir Peter said.

“Given all this, it would be wholly inappropriate for this court to make a finding of fact in favour of the appellant on the ‘spam’ issue. If I had to make any finding on the issue…I would find on balance that the appellant's assertion is simply not credible.

Given the appellant’s reliance on the claim about the email this meant neither of his case stated challenges could succeed.

Mark Smulian