Ride hailing and app bookings are not ‘plying for hire’: landmark judgement

Use of ride-hailing apps does not constitute plying for hire, the Court of Appeal has ruled.

In a landmark decision, three High Court judges rejected claims by a taxi activists group that the Free Now app was acting unlawfully by operating in London.

In a lengthy judgement that referenced laws dating back to 1869, the judges agreed that making cars available to be booked via an app was not “plying for hire”. The judgement supported an earlier judgement made in favour of an Uber driver in Reading (Reading BC vs Ali), where a court ruled that a driver sitting in a vehicle waiting for a booking was not plying for hire.

Taxi trade group United Trade Action Group Ltd brought the case – the first test of the phrase “plying for hire” in the Court of Appeal in 150 years, alleging that by making cars available via an app, Free Now was acting illegally.

But the judges agreed with earlier judgements that “plying for hire” had to involve “exhibition” – displaying the vehicle as clearly available for hire – and “solicitation” – inviting the public to get inside.

The judges ruled that displaying the outline of a car on an app screen was not “exhibition”. And the fact that the vehicles cannot be booked other than via the app means no “solicitation” is taking place. Lord Justice Bean (pictured, inset) said: “I do not consider that drivers of PHVs using the Free Now app can be said to be plying for hire. Neither the ‘exhibition’ nor the ‘solicitation’ element of the test is satisfied.”

He said the use of app technology made no difference to the principle: “The App is simply the use of modern technology to effect a similar transaction to those which have been carried out by PHV operators over the telephone for many years.”

“If I ring a minicab firm and ask for a car to come to my house within five minutes and the operator says ‘I’ve got five cars round the corner from you.

One of them will be with you in five minutes,’ there is nothing in that transaction which amounts to plying for hire. As a matter of principle, I do not consider that the position should be different because the use of internet technology avoids the need for the phone call.”

Dismissing the UTAG claims, Lord Justice Bean added: “The Appellants [UTAG] argue that as a matter of ordinary language a vehicle plies for hire if it ‘drives around or parks in a public place waiting for someone to hire it’. That cannot possibly be enough. Such a test would criminalise almost the entire PHV industry, except perhaps one-person operators working from home.”

Referring to the 1869 Metropolitan Carriage Act, which UTAG had claimed Free Now was contravening, Lord Justice Singh said: “It was always possible, even in 1869, for a person to hire a private vehicle (to use modern terminology) which would not be plying for hire. At that time, there were carriages with horses and drivers available for hire from a ‘jobmaster’. There were stables where such carriages and horses were kept.”

“But the essential difference between such a hire and plying for hire by a hackney carriage was that a pre-booking had to be made. The coming of the motor car did not change this conceptual distinction.”

Background:

Cogley v Sherwood, 1959

Before the era of the smartphone app and ride-hailing services, the leading case on plying for hire was Cogley v Sherwood, dating back to 1959. This ruling, presided over by the Lord Chief Justice of the day, set the definition of plying for hire which was used by Free Now to win the case.

Cogley v Sherwood involved two individuals who were prosecuted for plying for hire at Heathrow airport. Their vehicles were parked at the airport but there was nothing about the vehicles’ appearance, the place where they were parked, or the behaviour of the drivers which suggested that they were for hire. Bookings could only be made via the car hire desk, inside the terminal, which advertised their services.

The court ruled in favour of the drivers, and gave the clearest definition of “plying for hire” by introducing the concepts of “exhibiting” the vehicle and “soliciting” for work. In the Cogkey v Sherwood case, the drivers were found not to be doing either, and therefore were not “plying for hire”.