Case name and citation:

R (on the application of United Trade Action Group Ltd) v Transport for London [2022] EWCA CIV
1026.

Court and judges:

Court of Appeal (Civil Division) : Lord Justice Bean, Lord Justice Singh and Lord Justice Phillips

Parties:
Appellant: The Queen on the application of United Trade Action Group Limited
Respondent: Transport For London and Transopco UK Limited

Material facts:
The case of UTAG v Tfl & Transopco UK Ltd, involves a legal dispute regarding the lawfulness of
granting a London PHV operator’s license to Transopco UK Ltd, trading as FREE NOW, by transport for
London (TfL). The central issue revolves around whether the drivers of private hire vehicles (PHVs)
using the FREE NOW app were unlawfully plying for hire, thus questioning the lawfulness of the
operator’s license. The case is being heard in the Court of Appeal (Civil Decision) and involves a series
of legal questions, including whether the display of the respondent’s vehicle as the outline of a car on
smartphone apps constitutes an invitation to book the vehicle, and whether the prosecution has proven
that the respondent was plying for hire.

The case cites legal precedents such as Cogley v Sherwood, which upheld the requirement to show a
vehicle to be exhibited and soliciting business without a prior booking to constitute plying for hire. The
court will also examine the impact of modern technology such as smartphone applications, in the context
of soliciting customs and inviting the public to use a vehicle.

The judgement also deals with the issue of costs and the court exercises its discretion to make no order as
to costs, considering the outcomes to have canceled each other out. The court’s decision highlights the
difference between a decision contested on several grounds and two entirely separate issues, which lead to
the refusal to grant permission to appeal on the issue of costs.

The court’s decision underlines the requirement that the vehicle must be on display and in use without a
prior booking to constitute plying for hire, as established in Cogley v Sherwood. The court found that the
mere presence of PHVs in high-demand areas and their depiction on the smartphone application did not
meet the criteria for plying for hire, thus the issue of costs, and emphasized the difference between a
single decision contested on multiple grounds and two entirely separate issues.The court exercised its
discretion in deciding not to award costs as it found the outcomes to be mutually exclusive. The
judgement provided a clear and complete interpretation of the statutory provisions relating to the licensing
and operation of PHV and hackney carriages, upholding the lawfulness of Transopco’s operator’s license
and the discretion used in making the costs decision.

The case examines in detail the legal principles established in Cogley v Sherwood which provides a clear
and comprehensive interpretation of the statutory provisions governing the licensing and operation of
PHVs and ax carts. The decision upheld the lawfulness of Transopco’s operator’s license, and the
discretion exercised in the cost's decision, thus providing clarity on the distinction between lawful PHV
operations and unlawful plying for hire.

In summary, the decision of the Court of Appeal in the case of UTAG v Tfl & Transopco UK Ltd
reaffirmed the legal principles established in Cogley v Sherwood, providing a clear and comprehensive
interpretation of the statutory provisions governing the licensing and operation of PHVs and hackney
carriages. The decision upheld the lawfulness of Transopco’s operator’s license, and the discretion
exercised in the cost’s decision, thus providing a clarity on the distinction between lawful PHV operations
and unlawful plying for hire.

Question of Law/Issues:
The question of law and issues in the case of UTAG v Tfl and Transopco UK Ltd revolves around the
lawfulness of granting a London PHV operator’s license to Transopco UK Ltd, trading as FREE NOW,
by transport for London (TfL). The case raises several legal questions, including the interpretation of the
1998 Act and the application of legal principles to modern technological advancements in the
transportation industry. The specific issues addressed in the case are as follows.

The first issue is if the display of the respondent’s vehicle as an outline of the car on smartphone apps is
an invitation to book the respondent’s vehicle and whether it constitutes an invitation to book a nearby
Uber vehicle even if the respondent does not have one.

Next, Did the Chief Magistrate violate the law when considering the importance of the fact that the
respondent’s vehicle does not have distinctive markings, not being at a stand, and not being available on
the street to pick up passengers in the traditional way, as well as the importance of the entire transaction
between the passenger and the driver being conducted via a smartphone application.

Furthermore, Whether the Chief Magistrate erred in finding that the prosecution had not proved that the
respondent was plying for hire.
These issues mentioned above are central to determining whether the actions of PHV drivers using the
FREE NOW application constitutes unlawful plying for hire, thus calls into question the lawfulness of the
operator’s license. The case also involves a detailed examination of legal precedents such as Cogley v
Sherwood and their application to the modern digital age, as well as consideration of costs and judicial
discretion.

Decision:
The Court of Appeal (Civil Division) dismissed the appeal brought by United Trade Action Group
Limited (UTAG) against Transport for London (TfL) and Transopco UK Limited. The court upheld the
Divisional Court’s decision that the operators using the FREE NOW app were not plying for hire under
the 1869 Act and thus were operating lawfully within the framework of private hire legislation. The court
also did not grant permission to appeal against the Divisional Court’s decision not to make any order for
costs, as it deemed the outcomes of the two issues in the case effectively canceled each other out.

Detailed reasons for the decision:

The case of UTAG v TfL & Transopco UK Ltd involves a detailed examination of the legal principles
surrounding the operation of private hire vehicles (PHVs) and the interpretation of the statutory provisions
governing the licensing and operation of PHVs and hackney carriages. The central issue in the case
revolves around whether the actions of PHV drivers using the FREE NOW app constitute unlawful plying
for hire, thus questioning the lawfulness of the operator's license. The court's decision is based on several
key reasons.

The first reason is interpretation of Legal Precedents. The court looked closely at legal precedents such as
Cogley v Sherwood, which established the requirement to show a vehicle to be exhibited and soliciting
business without a prior booking to constitute plying for hire. The court emphasized the historical context
and legal framework governing the licensing and operation of PHVs and hackney carriages, providing a
comprehensive interpretation of the statutory provisions.

The second reason is Modern Technological Advancements. The court also examined the impact of
modern technology, especially smartphone applications, in the context of soliciting customs and inviting
the public to use a vehicle. The appearance of the respondent’s vehicle as the outline of the car on
smartphone applications was a vital consideration in determining whether it constituted an invitation to
book the respondent’s vehicle or an uber vehicle in the vicinity.

The third reason is Distinctions Between Issues. The court looked at costs and the difference between a
single decision challenged on multiple grounds and two entirely separate cases. It was found that the
appellant succeeded on one issue, while the respondent succeeded. The court exercised its discretion to
make no order as to costs, considering the outcomes to have cancelled each other out.
The fourth reason is Application of Legal Principle. The court applied the legal principles established in
Cogley v Sherwood, pressing on the requirement for a vehicle to be both exhibited and soliciting business
without a prior booking to be considered plying for hire. The court's decision upheld the lawfulness of
Transopco's operator's license, indicating that the drivers were lawfully operating under the private hire
legislation.

The fifth reason is Rejection of Unlawful Plying for Hire. The court rejected the argument that the mere
presence of PHVs in high-density areas and their depiction on the smartphone applications constituted
unlawful plying for hire. It was emphasized that the operator’s using the FREE NOW application did not
present their vehicles or solicit business without a prior booking, which corresponded to the lawfulness of
the operator’s license.

To conclude, the court's decision in UTAG v TfL & Transopco UK Ltd was based on a comprehensive
analysis of legal principles, historical context, and the application of statutory provisions governing the
operation of PHVs and hackney carriages. The decision upheld the lawfulness of the operator's license and
provided clarity on the distinction between lawful PHV operations and unlawful plying for hire.

Ratio Decidendi:
The ratio decidendi of this case revolves around the interpretation of the statutory provisions governing
the operation of private hire vehicles (PHVs) and the determination of whether the actions of PHV drivers
using the FREE NOW application constitutes unlawful plying for hire. The court's decision is based on
several key elements

The first element is Exhibition and Solicitation. The court emphasized the requirement that the vehicle
must be both exhibited and soliciting business without a prior booking to be considered plying for hire, as
established in the precedent case of Cogley v Sherwood. The court concluded that the mere presence of
PHVs in high-density areas and their depiction of smartphone applications does not qualify for plying for
hire.

The second element is Distinction Between Issues. The court considered the distinction between a claim
for judicial review where there is a single decision challenged on more than one ground and a case in
which there are in substance two entirely different issues to be determined. In this case, the appellant
succeeded on one issue and the respondent succeeded on the other, leading the court to exercise its
discretion to make no order as to costs.

The third element is Modern Technological Advancements. The court also considered the implications of
modern technology, particularly smartphone apps, in the context of soliciting customs and inviting the
public to use a vehicle. It was determined that the mere depiction of the respondent's vehicle on the Uber
App, without either the vehicle or the driver being specifically identified or the customer using the App
being able to select that vehicle, was insufficient to establish exhibition of the vehicle in the sense of
soliciting custom.

The fourth element is Rejection of Unlawful Plying for Hire.The court rejected the argument that a PHV
or its operators solicits business simply by driving towards or remaining in an area of high population. It
has been pointed out that this would lead to the conclusion that the PHV industry has been inheriting
criminality for many years, well before the introduction of ride-hailing applications.
To conclude, the ratio decidendi of this case is centered on the interpretation of the statutory provisions
governing the operation of PHVs, the distinction between issues, and the application of legal principles to
modern technological advancements in the transportation industry. The court's decision upheld the
lawfulness of the operator's license and provided clarity on the distinction between lawful PHV operations
and unlawful plying for hire.