Cummings et al v Cardiff City Council. Prof Roy Light St John s Chambers

Transcription

1 Cummings et al v Cardiff City Council Prof Roy Light St John s Chambers

2 Licence fee regimes Taxis must be licensed and a fee paid to the licensing authority. The fee is designed to cover various costs to authority of the licensing regimes. There are two types of 'taxi' regime - private hire and hackney carriage.

3 Types of licence Hackney carriage driver Hackney carriage vehicle PHV operator PHV driver PHV vehicle

4 Statute based authority Authority's powers to charge fees is provided by statute and authority does not have a free reign but must exercise its charging powers within the scope of the statute. Importantly, authority may only charge such fees as are necessary to cover its costs in relation to each licensing regime. It must not make a profit

5 Principles cannot make a profit must keep regimes separate enforcement control of others surpluses/deficits refunds

6 Covering costs Authority will make projections to establish income necessary to cover costs of each type of licence fee for the future. It will estimate number of each type of licence that it s likely to grant or renew. This will allow the authority to set lawful fees.

7 Surplus/deficit However, if the previous fee levied for a particular licences shows a surplus the authority must return this to the licence payers by way of a reduction in the new fee that it sets. However, if the surplus is large a refund should be returned to the licence holders.

8 Licence specific cost Cost to authority of PHV and hackney regimes different. Eg, for hackneys there is cost of providing stands, not the case for PHVs. So fees should be separately assessed with separate accounts kept. Also cost differences within the regimes between licence types. Eg, statute narrower in what it permits authority to recover from fees for drivers' licences than from vehicle licences.

9 LG (MP) Act 1976 S.53(2) drivers licence - district council may demand and recover for grant of licence to drive a hackney carriage, or a PSH such a fee as they consider reasonable with a view to recovering the costs of issue and administration.

10 LG(MP) Act 1976 S.70 - vehicle and operators licences (1) Subject to provisions of subsection (2) of this section, a district council may charge such fees for the grant of vehicle and operators licences as may be resolved by them from time to time and as may be sufficient in the aggregate to cover in whole or in part (a) the reasonable cost of the carrying out by or on behalf of the district council of inspections of hackney carriages and private hire vehicles for the purpose of determining whether any such licence should be granted or renewed; (b) the reasonable cost of providing hackney carriage stands; and (c) any reasonable administrative or other costs in connection with the foregoing and with the control and supervision of hackney carriages and private hire vehicles.

11 S.70(2) fees chargeable under this section shall not exceed (a) for the grant of a vehicle licence in respect of a hackney carriage, twenty-five pounds; (b) for the grant of a vehicle licence in respect of a private hire vehicle, twenty-five pounds; and (c) for the grant of an operator s licence, twenty-five pounds per annum; or, in any such case, such other sums as a district council may, subject to the following provisions of this section, from time to time determine.

12 Possible grounds of challenge Adoption of 1976 Act Compliance with provision in relation to fee setting under s.70(30) Calculation of fees

13 R(oao) Carl Cummings, Primeoutlet Limited, Supatax 2000 Limited, Farzand Ali, Stephen Mears v Council of the City and Council of Cardiff [2014] EWHC 2544 (Admin) 2014 WL

14 The Claimants are all involved in the taxi trade and hold licences issued by Cardiff City Council covering each of the five types of licence.

15 Claim challenged the lawfulness of the setting of hackney carriage and private hire licence fees by Cardiff. Following a decision of the authority on 3 June 2013 to inflate considerably the fees for hackney carriages (as of 1 July 2013).

16 JR decision Cardiff initially resisted the claim but later conceded and by an order dated 18 June 2014 Mr Justice Hickinbottom granted the claim for judicial review in the following terms.

17 the Council conceded that the decision in relation to the setting of the relevant fees was unlawful, in particular in having failed to have regard to previous surpluses. It agreed to redetermine the level of fees for the period 2009 to 2013, on the basis that (i) earlier surpluses and deficits would be taken into account, (ii) the costs of taxi marshals would be left out of account, and (iii) there would be no cross-subsidisation as between the various categories of licence.

18 The Council conceded that the decision in relation to the setting of the relevant fees was unlawful. There was agreement on the law. Decisions of Defendant on 3 June 2013 as they relate to hackney carriage and private hire vehicle and respective drivers licence fees was quashed on the basis that they are unlawful for the following reasons:

19 the level of fees set failed to have regard to and/or account for any surplus or deficit generated in previous years dating back to 1 May 2009; the level of fees set failed to account for any surplus or deficit accrued under each of the hackney carriage and private hire licensing regimes within the regime under which they have accrued; the level of fee set for hackney carriage licences in 2013 included part of the cost of funding taxi marshals for the Council s administrative area.

20 Declarations that (1) A local authority when determining hackney carriage and private hire licence fees under ss.53 and 70 of the LG(MP) Act 1976 must take into account any surplus or deficit generated from fees levied in previous years in respect of meeting the reasonable costs of administering the licence fees as provided by ss.53 and 70 above.

21 (2) A local authority must keep separate accounts for and ensure when determining hackney carriage and PHV licence fees under ss.53 and 70 of the LG(MP) Act 1976 that any surplus or deficit accrued under each of the hackney carriage and private hire licensing regimes are only accounted for and taken into account within the regime under which they have accrued and a surplus from one licensing regime shall not to be used to subsidise a deficit in another.

22 Defendant do pay Claimants forthwith the following sums by way of restitution in respect of sums unlawfully obtained from the Claimants in respect of hackney carriage and private hire license fees from 1 May 2009.

23 Limitations Act On the basis of the concessions made by the Council, Claimants issued an application to amend the application for judicial review, to include a prayer for restitution for all surpluses arising from failing to take surpluses into account but going back to 1978 rather than On the basis of unjust enrichment.

24 Limitations Act Restitution was ordered on the basis that the order and subsequent payment shall not prevent the Claimants from pursuing any claim that (i) the Defendant is obliged to make restitution in respect of such payments prior to 1 May 2009 and (ii) the Defendant is under an obligation to make restitution in respect of any greater sum should the Defendant s decisions of March 2014 recalculating the sums that should have been claimed for the period after 1 May 2009 be set aside.

25 It seems to me that the Claimants are entitled to bring a claim for restitution in respect of surpluses from 1978 to 2009, of course subject to any defences that the Council may have, for example, in respect of limitation.

26 However, that does not mean that such a claim must be pursued within this action; and an important issue indeed, the main issue in this application to amend is whether that claim should be heard under the umbrella of this action or whether the Claimants should be made to commence separate private law proceedings for restitution.

27 ...the claim... back to 1978, in my judgment should be brought, not under the umbrella of this claim, but by way of a separate claim. Indeed, in my view, that is clearly the appropriate procedural course. The current claim concerns many issues that are now no longer alive, such as the lawfulness of the 2009 to 2013 decisions.

28 In my view, the claim should be brought by way of separate proceedings, properly pleaded in the conventional way, to which the Council should have a proper and full opportunity to respond. In that response, it will no doubt bring forward a limitation defence, which it has already trailed.

29 No reason why current public law claim cannot be brought to an end now; and why claim in respect of earlier period, if the Claimants wish to pursue it, cannot be pursued by way of a separate action. That should not involve any substantial additional expense. Indeed, by focusing on the issues that will arise in that claim properly, hopefully the costs will be reduced because the new claim will not involve the enormous baggage that currently accompanies the public law claim.

30 Taxi marshals Any views?