London cabbies fail in High Court challenge to grant of 15-month licence to Uber

On 26 June 2018 Senior District Judge Emma Arbuthnot, the Chief Magistrate, granted a private hire vehicle operator’s licence to Uber London for a period of 15 months.

A licence had earlier been refused by Transport for London but by the time the appeal came on for hearing before the judge they no longer opposed its grant. TfL adopted a neutral stance but tested the evidence advanced by Uber.

The United Cabbies Group (London), a mutual society representing hackney carriage drivers in London, challenged Senior District Judge Arbuthot’s decision in judicial review proceedings brought against Westminster Magistrates’ Court.

The decision was challenged on two grounds:

1. The decision was tainted by actual or apparent bias by reason of the judge’s husband’s financial relationship with Uber. A report by The Guardian had revealed that Lord Arbuthnot was a former director, now a consultant, for a company called SC Strategy. One of its known clients was the Qatar Investment Authority, which had been reported to be a significant financial investor in Uber.
2. The judge acted ultra vires and unlawfully in granting the licence in that she did so having made no finding of fact that at the time of her decision Uber was a fit and proper person within the meaning of section 3 of the Private Hire Vehicles (London) Act 1998 (“the 1998 Act”). In effect, she granted a probationary licence unknown to law.

The case was heard in the High Court by the Lord Chief Justice, Lord Burnett, and Mr Justice Supperstone.

Taking the second ground of challenge first, the LCJ and Mr Justice Supperstone concluded in their judgment that it was “abundantly clear that the judge did not grant a provisional or probationary licence without considering whether Uber was, at the time of hearing, a fit and proper person.

“The judgment read as a whole demonstrates that the judge understood that the test she had to apply was that set out in section 3(3)(a). She had to be satisfied that at the time of the decision Uber was a fit and proper person to hold the licence for which it had applied.”

The judges pointed out that the transcript of the hearing, which included the opening and closing submissions of leading counsel for Uber and TfL, demonstrated that the Chief Magistrate was repeatedly reminded that the key issue she had to decide was whether Uber at the time of hearing was a fit and proper person to hold an operator’s licence.

The LCJ and Mr Justice Supperstone concluded that they were satisfied that Dame Emma did not depart from the section 3(3)(a) test. They also noted as a fair point that when the Chief Magistrate’s judgment was given to the parties “it did not occur to any of the galaxy of distinguished counsel and solicitors in court that the language of paras 40 and 41 demonstrated a failure to by the judge to make the necessary finding. We find that unsurprising.

“Having said, as she did, that Uber had provided evidence that it was fit and proper and then immediately gone on to indicate that the licence would be granted it was obvious that the judge accepted that evidence.”

The LCJ and Mr Justice Supperstone also rejected the first ground on bias. They said they did not consider that the facts even began to show that there was a link between the judge’s interest and the interest of her husband ‘so close and direct’ as to render the interest of her husband indistinguishable from her interest. It was also difficult to see how the husband could have a direct financial interest in the outcome of the appeal.

The judges later said: “Having ascertained all the circumstances bearing on the suggestion that the judge was biased, we consider that those circumstances would not lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased in this case.

“Even if there was an obligation on her to check whether her husband had any direct or indirect association with Uber or TfL, which as we have said we do not accept, there is no evidence that Lord Arbuthnot had a financial interest in the outcome of the case, still less that the judge could have had such an interest.”