Vehicle & Operator Services Agency v Johnson [2003] EWHC 2104 (Admin)

Case No CO/2662/2003[2003] EWHC 2104 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 30 July 2003
Strand
London WC2
B E F O R E:
MR JUSTICE PITCHFORD
Between
VEHICLE & OPERATOR SERVICES AGENCYClaimant-v-
Between
ALUN MARCUS JOHNSONDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR O WILLIAMS (instructed by Hugh James, xx , xx) appeared for APPELLANTMR D HARRIS (instructed by Glass & Co, Swansea SA13 5ES) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE PITCHFORD: This is a prosecutor's appeal from the decision of the justices sitting at Swansea on 19 March 2003. The informations charged the respondent with three offences:(1) using a public service vehicle without a certificate of initial fitness or a certificate under sections 55-58 Road Traffic Act 1988, contrary to section 6 Public Passenger Vehicles Act 1981;(2) using a public service vehicle when it was not operated under a public service vehicle operator's licence granted under Part 2 Public Passenger Vehicles Act 1981 contrary to section 12 of that Act;(3) permitting the driver to drive a public service vehicle carrying nine passengers for hire or reward otherwise than in accordance with the licence authorising him to drive vehicles of that class, contrary to section 87(2) Road Traffic Act 1988 and Schedule II Road Traffic Offenders Act 1988. "Vehicles of that class" were, for these purposes, a public service vehicle.[2]It was a common ingredient of each information, requiring proof by the prosecutor, that the vehicle was indeed a public service vehicle. By subsection 1(1) Public Passenger Vehicles Act 1981 a public service vehicle is defined as "a vehicle adapted to carry more than eight passengers .... used for carrying passengers for hire or reward." The vehicle in question, registered number MIL 2597, was stopped on Friday 19 July 2002 at Quay Parade in Swansea. It was a stretch limousine, a dramatically elongated saloon motorcar which is becoming familiar on our streets. It was being driven by Phillip Jeffrey Morgan on behalf of the owner and operator, Alun Marcus Johnson, who is the respondent in this appeal. Mr Morgan did not hold a public service vehicle licence and the vehicle did not hold a public service vehicle certificate of fitness or its equivalent under sections 55-58 of the 1988 Act, and was being used on a road without a public service vehicle operator's licence. It was carrying a total of nine passengers. It was not disputed that the vehicle was being used for carrying passengers for hire or reward. Nevertheless the respondent's case was that he had committed no offence, since the limousine was not a public service vehicle as defined by subsection 1(1) of the Act of 1981.[3]A series of decisions of the Divisional Court, over which Lord Parker CJ presided, settled, it is common ground, that the word "adapted" used in subsection 1(1) means not "altered" but "apt", "fit" or "suitable". These decisions were Maddox v Storer [1962] 1 All ER 831, Burns v Currell [1963] 2 All ER 297 and Wurzal v Addison [1965] 1 All ER 20. The question for the justices was whether the vehicle as constructed was suitable for carrying nine passengers. They found it was not, and the question posed in the case stated is this:
"Were we right in finding that the stretch limousine registration MIL 2597 was not adapted to carry more than eight passengers and was therefore not a public service vehicle for the purposes of the statute and the regulations?"
[4]The Public Service Vehicle (Conditions of Fitness, Equipment, Use and Certification) Regulations 1981, regulation 28 paragraph 1b provides:
"The following conditions shall as regards every passenger seat be complied with in the case of every vehicle .... (b) a length of at least 400 mm measured horizontally along the front of each seat shall be allowed for the accommodation of a seated passenger."
In Traffic Commissioners for the South Wales Traffic Area v Snape and Another [1977] RTR 367 the court held that consideration of suitability should take place against the standard seat width per passenger provided by the regulations. The court was concerned in Snape with the equivalent provisions of subsection 117(1) Road Traffic Act 1960 and the Public Service Vehicles (Conditions of Fitness, Equipment and Use) Regulations 1972, regulation 30 of which provided that a length of at least 1 ft 4 ins should be allowed for each passenger. In that case the seating available for passengers comprised three single seats and a bench seat 7 ft 4 ins in length. Subsection 117(1)(b) provided that a public service vehicle was a motor vehicle adapted to carry eight or more passengers. Since each single seat was suitable for one passenger, the question for the court was whether the side-facing bench seat was suitable for five passengers. Watkins LJ, delivering the leading judgment, said at page 372C of the report:
" .... the courts have been given further assistance in coming to a conclusion whether or not a vehicle is or is not 'adapted', in the sense in which the word is used in section 117. That assistance is derived from regulation 30(1)(b). That regulation now has to be read in conjunction with section 117 of the Road Traffic Act 1960. When those two provisions are taken together and the facts are, as they are in the instant case, that there are no factors to be considered other than the size of the seats, then, if there is sufficient room for eight passengers provided by the provision of seats of an individual nature or in bench form each measuring no less than 1 foot 4 inches, that vehicle, in my opinion, is 'adapted' -- providing its use is for hire or reward -- for use as a public service vehicle and so becomes and so must be treated for all relevant Regulations and Acts."
Since the bench seat could accommodate five passengers in line, each occupying 1 ft 4 ins of seat space, the total passenger capacity was eight and the minibus with which the court was then dealing was a public service vehicle.[5]What then was the seating provided in the respondent's vehicle? Mr Honeyman, the officer whose responsibility it was to inspect this vehicle, helpfully provided a sketch plan for the use of the justices, and I have received a copy of it. The seating was arranged on three sides of the vehicle. At the rear of the vehicle there was a front-facing bench seat. No particular division of the upholstery is marked by Mr Honeyman as representing the natural area of seating available for each passenger, although he did note that there was a central arm rest which could be extended from the back of the seat. That occupied 8½ ins along the length of the seat. There was a side-facing bench seat which was apparently divided in the form of the design of upholstery into four sections, three along the side of the vehicle and a corner seat between the side and front of the vehicle. Finally, Mr Honeyman has marked on the bench seat at the front of the vehicle, facing the rear, a separate area for the seating of one individual. On the face of it, therefore, the vehicle was designed or adapted, to use the words of the legislation, for seven people. However, the arrangement of the design of upholstery is by no means conclusive, a subject to which I shall return later.[6]The justices recorded their findings of measurement in inches. I shall use millimetres, since that is now the measurement used by the regulation. I have been assisted in interpreting the justices' findings as to the length of seating by counsel, who have had time to reflect upon the evidence which was produced to the justices and to interpret it to make my understanding easier.[7]The rear front-facing bench seat to which I have referred, when the arm rest was retracted, provided 1,462.5 mm of seating, suitable, it is agreed between the parties, for carrying three passengers. The side-facing bench seat to which I have referred was 1,750 mm in length and adjoined to it at the front end of the bench was a rear-facing bench seat 650 mm in length. Thus the side- and rear-facing bench seats formed the shape of a capital L. At issue between the appellant and the respondent is the question whether the bench seating represented by that L was suitable accommodation in total for five or six passengers. If that bench seating was suitable for six passengers, then the vehicle was adapted for a total of nine. If it was suitable for no more than five passengers, then it had not been so adapted and was not a public service vehicle within the meaning of the legislation.[8]If the correct approach was to treat the corner seat as a straight line continuation of the bench seats, the total measurement would be 2,400 mm, which would be just enough to accommodate six people sitting in line, each occupying 400 mm each. However, the justices were not dealing with a single straight-line bench seat, as was the Divisional Court in Snape's case. They were dealing, in effect, with an L-shaped bench whose effect was to create a corner space which could not be occupied by a passenger on one side of the corner without encroaching on the space available to a passenger on the other side of the corner. Undoubtedly six persons could squash themselves into the space available, and it is suggested that that was the case on the night when this vehicle was inspected by Mr Honeyman. But to do so would reduce the length of the seat for use by one of those passengers below 400 mm.[9]Mr Harris, who appears on behalf of the respondent, points out to me the difficulty which this creates for the respondent were it to be found that the vehicle was suitable for the carriage of nine passengers, since if it is a public service vehicle, it does not comply with the regulation, which provides seating accommodation of at least 400 mm for each passenger. Additional factors addressed to the justices were the presence of eight seat belts and the purpose of the vehicle as a luxury carrier. In this connection the justices' attention was drawn to a passage in the 20th edition of Wilkinson's Road Traffic Offences at page 851, in which the editors express the following opinion:
"A tantalising problem has arisen with the emergence of the 'stretch limo'. These are often designed to provide generous accommodation but for no more than eight passengers. However, the generosity of the seating space allowed is such that far more than 400 mm is given for each seat. Seat belts may be provided for only eight passengers. The question arises as to whether this is a public service vehicle. It is submitted that the nature of the use to which the vehicle is put and the requirements regarding seat belts . . . combine to exclude such vehicles from the definition."
[10]I have no doubt that both the design of seating space provided and the number of seat belts fitted will (depending upon the circumstances) be relevant considerations. It seems to me, however, that they can seldom be determinative of the issue whether a vehicle is suitable for the carriage of more than eight passengers. Were that to be so, the operator could avoid the plain purpose of the legislation by relying on style rather than the substance of the accommodation.[11]The justices made the following findings, commencing at paragraph 10 of their case stated:
"After hearing the evidence and submissions we accepted the submissions made on behalf of Alun Marcus Johnson. 11. We concluded that although nine passengers were actually being carried in the vehicle when it was stopped that was only one factor to take into account when deciding whether the vehicle had been adapted to carry more than eight passengers. 12. The seating dimensions gave an indication of how many passengers the vehicle had been adapted to carry but we accepted that the seating space provided per passenger in a stretch limousine would be more generous than for other vehicles. 13. In normal use it was not practicable for this vehicle to carry a ninth passenger. 14. Having considered the design and layout of the vehicle and the use to which it was put we decided that the vehicle was not adapted to carry more than eight passengers. 15. We therefore found that vehicle registration mark MIL 2597, a stretch limousine, was not a public service vehicle and dismissed all three informations."
It does not seem to me that the justices gave undue weight to style. While they accepted that the seating space was intended to be more generous for a passenger in a stretch limousine than in a standard car or taxi, their decision was that in normal use it was not practicable for the vehicle to carry a ninth passenger. The vehicle was not designed and laid out to carry more than eight passengers. It seems to me that the justices' observation as to the generosity of seating was apt when one considers the natural compartments into which the bench seating was divided.[12]In deciding that mere straight line measurement was not appropriate to judge the accommodation, which included a corner seat and the short arm of the L to which I have referred, I consider the justices exercised sound judgment and common sense. Their decision was, in my view, plainly open to them on the facts. Accordingly, it is my view that the question posed for the opinion of this court should be answered "yes" and the appeal should be dismissed.[13]MR HARRIS: The question of costs then arises. My Lord, in the magistrates' court the costs order was made that the respondent's costs be met by central funds and there be a taxation of the costs using the procedure applicable to that kind of assessment. My Lord, both parties have today prepared costs schedules and doing the best we can with Part 52 of the CPR, it appears that the court has jurisdiction today to summarily assess the costs of the successful party. There would be an application that the respondent's costs be met either by the appellant or once again from central funds.

MR JUSTICE PITCHFORD: How much, Mr Harris?

[15]MR HARRIS: My Lord, can I hand in a copy of the schedule? The total cost is £2,689.58.[16]MR JUSTICE PITCHFORD: Thank you. It looks as though some assistance was given in drafting the case? Attendances on the magistrates.[17]MR HARRIS: My Lord, yes. May I turn my back on the court for one moment?

MR JUSTICE PITCHFORD: Of course.

[19]MR HARRIS: (after taking instructions) My Lord, I am told that there was a draft document provided. Initially instructions were taken upon that and some discussion took place with the magistrates' court, and eventually the final version was produced.[20]MR JUSTICE PITCHFORD: Very well. Mr Williams, have you had an opportunity to consider this document?[21]MR WILLIAMS: My Lord, I have. My Lord, I am instructed to ask that any costs application my learned friend has, if it is to succeed, costs should be paid from central funds. The reason for that, my Lord, is this. As your Lordship pointed out in your Lordship's judgment, the stretch limousine is an all too familiar vehicle on today's roads. Wilkinson's points out a "tantalising problem" which I would suggest needed judicial clarification and the vehicle inspectorate -- or now the Vehicle & Operator Services Agency -- should not be penalised in bringing a case to seek judicial clarification.[22]MR JUSTICE PITCHFORD: Yes. I have the power to make an order out of central funds, and I propose to do so in the sum sought unless you wish to resist it.[23]MR WILLIAMS: My Lord, no.[24]MR JUSTICE PITCHFORD: I shall make an order for costs in favour of the respondent to the appeal. I shall summarily assess those costs in the sum of £2,689.58 and shall order that it be paid out of central funds. Nothing else? I am grateful to you both.