Aujla & Ors, R (on the application of) v Slough Borough Council [2005] EWHC 1866 (Admin)

Case No CO/126/2005

[2005] EWHC 1866 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 13th July 2005

Stand

London WC2

B E F O R E:

MR JUSTICE GOLDRING

Between

THE QUEEN ON THE APPLICATION OFClaimant

MANJITSINGH AUJLAClaimant

JASWINDAR SINGH SEEHRAClaimant

JATINDER SINGH MASHIANAClaimant

-v-

Between

SLOUGH BOROUGH COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR P MADDOX (instructed by Kearns and Company, Swansea SA1 8QL) appeared for CLAIMANT

MR P KOLVIN (instructed by the Legal Department of Slough Borough Council) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE GOLDRING: The claimants are taxi drivers in Slough. They are holders of hackney carriage licences. In 1976 the defendant council had limited the number of such licences in its area to 66. On 12th October 2004, the defendant resolved to remove that limit. It removed any restriction on the number of hackney carriage licences altogether. At issue in this application for judicial review is the lawfulness of that decision. It is said to have been tainted by bias.

[2]Although this is the substantive hearing of a case in which permission was given by Bean J, on 4th April 2005, the claimants today seek leave fundamentally to amend the claim. Bean J granted permission in respect of their allegation of bias regarding the resolution on 12th October 2004. The claim was based upon the assertion that two councillors, Mr Butt and Mr Hayat, were wrongly present and participated in that decision. Their presence and participation tainted the decision.

[3]It is clear, and has been for some time, that they were not present and took no part in the decision of 12th October. The claimants now wish to amend to assert that they were present and took part in a meeting of the Licensing Subcommittee on 9th August 2004. That Committee recommended to the Council that there should be delimitation. That they were present and did take part on 9th August is agreed.

[4]The allegation now sought to be advanced is that their presence at the subcommittee tainted the council's later decision on 12th October.

[5]Although these facts were known to the claimants as long ago as May 2005, the defendant was only informed of the application to amend on, it seems, 1st July 2005. I am afraid it does not stop there. On 28th June 2005, the claimants made an application for an interim injunction to prevent the defendant implementing its policy delimiting the number of hackney cab licences. Stanley Burnton J refused that application. At that stage no application to amend had been made.

[6]Mr Kolvin, on behalf of the defendant, objects to the proposed amendments for reasons which seem to me to have some substance. Among the points he raises are these. First, it is too late. This amounts to a challenge to a decision now effectively reached 11 months ago. The point could have been taken long ago. The claimant was present at the meeting on 9th August 2004. On 13th October 2004, and again on 1st December 2004, when the claimant's solicitors wrote to the defendant, no allegation of bias at that, or any, meeting was raised.

[7]Second, as a result of this delay there has been prejudice. The recommendation was on 9th August 2004. The decision sought to be impugned was 12th October 2004. On 5th April 2005, the licensing committee met again. It recommended the specification for the knew licences. There was some urgency. There was only one vehicle with a disabled access. The newly licensed vehicles would be required to have such access. On 26th April 2005, the council accepted the recommended specification.

[8]In short, submits Mr Kolvin, a series of administrative decisions have now been taken.

[9]Mr Kolvin further submits that if the amendment is granted several new allegations are effectively raised. They will require evidence. The whole question whether the 9th August recommendation tainted the council's decision of 12th October 2004 requires evidence. Mr Butt's behaviour is impugned in a recent third witness statement from the second claimant. The allegations there made are new. Evidence is required to rebut them. Finally, an allegation is made that voting was on party lines. That requires evidence to rebut too.

[10]The importance of promptness in public law cases is frequently emphasised. Here, for the reasons advanced by Mr Kolvin, it is now too late to grant the amendments sought. I should add this: there was an application to revive a ground upon which Bean J had refused permission. During argument it became plain it had no conceivable substance.

[11]My refusal to grant leave to amend would be sufficient on its own to dispose of this case. However, I shall go into the merits for as will become clear, I would, in any event, have refused the application for judicial review. The legal framework By section 37 of the Town Police Clauses Act, as amended, by section 16 of the Transport Act 1985:

"The [council] may from time to time licence to ply for hire within their area ... Hackney coaches or carriages of any kind or description adapted to the carriage of persons provided that the grant of a licence may be refused for the purpose of limiting the number of Hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of Hackney carriages (within the area to which the licence would apply) which is unmet."

[12]The council has an unfettered discretion to increase the number of licences it may issue. It may de-restrict entirely. The width of the discretion was emphasised in R v Great Yarmouth Borough Council, ex parte Sawyer [1989] RTR 297 and R v Reading Borough Council, ex parte Johnson

[2004] EWHC 765

. The factual background The government's approach

[13]It is clear that the tenor of the policy is to delimit. I need only refer to a limited number of aspects. In November 2003 the Office of Fair Trading produced a report entitled "The regulation of licensed taxi and PHV services in the UK." It stated that quantity regulation was detrimental to consumer service. It referred too to the premium on taxi licences. Such a premium exists in this case. It recommended the removal of all limits. On 18th March 2004, in its response to the OFT report, the Government agreed. On 16th June 2004, the Government wrote to the defendant. It stated that by 31st March 2005 it should review the case for local restrictions. What the council did

[14]On 30th July 2004, the defendant issued and published a report. It announced that there would be a special meeting of the Licensing Committee on 9th August in the town hall. The councillors who were to be on the Committee were Mr Dhillon (in the chair), Mr Butt, Mr Hayat, Mr Palmer, Mr Pond, Mr Shine and Mr Zeib.

[15]Under the heading "Constitutional Matters" the documentation said this:

"Declarations of Interest: Members are reminded of their duty to declare personal and personal prejudicial interests in matters coming before this meeting as set out in the Local Code of Conduct."

[16]As I have said, it is in respect of two members of the licensing committee Mr Butt and Mr Hayat, that objection is now taken. In the paper of 30th July the options available to the Committee were set out in some detail. "Purpose of the Report To outline The Government's response to the Office of Fair Trading report into the regulation of taxi provision and provide Members with the required information to decide how the authority should respond to the suggested changes to taxi regulation." Under the heading:

"Recommendations" it stated: "

The options available to the Committee are as follows: (a) Delimit the hackney carriages in Slough. (b) Keep the current restriction of 66 hackney carriages. (c) Keep a restriction on the number of hackney carriages but increase the number. (d) Commission an unmet demand study The Committee may be reminded to impose conditions with regard to wheelchair accessibility."

[17]On 9th August, again as I have indicated, the Committee met. Mr Dhillon was in the chair. Messrs Butt and Hayat were present. So too were Messrs Dhaliwal, Parmar, Pond, Shine and Zeib. The minutes of the meeting set out what happened. I shall simply summarise. Donna Harrison, the taxi licensing team leader, introduced the report and provided a brief history. As it was later put, "At the request of the Committee a number of interested parties had been invited to make representations at the meeting." Valerie Storie, Director of Slough Community Transport and Shopmobility, spoke on behalf of its 300 disabled members. She supported delimitation. Mr Hussein of the Slough Private Hire Association spoke in favour of delimitation. "Delimiting hackney carriage provision in Slough would result in a better, more competitive service."

[18]Mr Phillips, a police officer, spoke in favour too. The first claimant spoke on behalf of the Slough Federation of Licensed Taxi Drivers. He was against limitation. Among other things he said he was unaware of any evidence, survey or otherwise that suggested that there was an unmet demand. "The following proposal was then moved and seconded:- That hackney carriages in Slough be delimited and that all new hackney carriage licences be issued with a condition that requires wheelchair accessibility."

[19]The proposal was put to the vote. It carried by 5 votes to 3. It took the form of a "recommendation to Council."

[20]There was no objection taken to the presence at that meeting of councillors Butt and Hayat, although the second claimant had by then, I am told, written and objected.

[21]On 21st September 2004, the Planning and Environment Scrutiny Subcommittee met. The proposal of the licensing committee had been "called in." At that subcommittee meeting Councillor Butt was present. Councillor Hayat was not. In paragraph 6 of the minutes it says:

"The Team Leader for Taxi Licensing advised the Sub-Committee that the delimitation of hackney carriage licences could be phased to make the process more controlled and conditions would have to be laid down if this was agreed."

A little later:

"Members were advised that the Taxi Federation would be allowed to speak at the October Council meeting if they wished. The Assistant Director of Transport and Planning advised Members that the decision taken at the Licensing Committee to delimit hackney carriage licences would be ratified at Council."

[22]Mr Maddox, on behalf of the claimant, emphasises the use of the word "decision" as opposed to recommendation. That does not seem to me a point of great substance.

[23]The recommendation to council by the Planning and Environment Scrutiny Subcommittee was "That the increase in hackney carriage licences be phased."

[24]On 1st October 2004, there was notification of a full meeting of the council to take place on the 12th. A great deal of information was circulated to members. It included the two different recommendations. The options were left entirely open. On 12th October the meeting took place. Item 8 on the agenda was consideration of the recommendations of the Licensing Committee and the Planning and Environment Scrutiny Sub-Committee from their meetings held on 9th August and 21st September 2004. Under the heading "Recommendations" it says this:

"The Council is requested to consider the recommendation of the Licensing Committee: That hackney carriages in Slough be delimited and that all new hackney carriage licences be issued with a condition that requires wheelchair accessibility and the recommendations of the Planning and Environment Scrutiny Sub-Committee: That the increase in hackney carriage licences be phased. That purpose - built wheelchair accessible vehicles be used to attain disability compliance and resolve what action it wishes to take."

[25]There are minutes of the council proceedings, although it is clear that they do not include reference to everything that transpired.

[26]According to them at paragraph 33, under the heading:

"Deputation - Objection to the Proposed Delimiting of Hackney Carriage Provision," this is said. "

The Mayor advised that the Slough Federation of Licensed Hackney Carriages had submitted a petition and requested the opportunity to address the Council on their objection to the proposed delimiting of hackney carriage provision in the Borough. She invited Mr Benford [a representative of the Slough Federation of Licensed Hackney Carriages] to speak on this matter for up to five minutes."

[27]There was also in the appendices before the members Mr Benford’s argument in writing. Two councillors who were current holders of taxi licences, councillors Aziz and Butt left prior to consideration of this proposal.

[28]At paragraph 34, under the heading "Recommendations of the Licensing Committee and the Planning and Environment Scrutiny Sub-Committee from their Meetings held on 9th August and 21st September, 2004 - Proposed Delimiting of Hackney Carriage Provision," it states this:

"It was moved by Councillor Shine, Seconded by Councillor Pond, ‘That hackney carriages in Slough be delimited and that all new hackney carriage licences be issued with a condition that required wheelchair accessibility and that purpose built wheelchair accessible vehicles be used to obtain disability compliance.’"

[29]An amendment was moved by Councillor Dhillon and seconded by Councillor Janik. It was in these terms:

"That the motion be amended to read as follows:- ‘That an unmet demand study be commissioned from an independent entity as part of a general review of taxi provision in Slough including increasing the quantity, size accessibility of taxi ranks and a decision on whether or not to delimit all hackney licences be suspended pending the result of that review.’"

[30]The amendment was lost by 12 votes to 18. The substantive motion was put and carried by 16 votes to 0, with 12 abstentions. The resolution is then put in these terms:

"That hackney carriages in Slough be delimited and that all new hackney carriage licences be issued with a condition that requires wheelchair accessibility and that purpose built wheelchair accessible vehicles be used to attain disability compliance."

[31]In the first witness statement of the second claimant the attack on the council's decision is put in these terms. At paragraph 1 this is said:

"I do not think that councillors Butt and Hayat should have been allowed to take part in and vote on this proposal. They previously held private high licences, and members of their family and friends are still members of that trade." (2) For example, Councillor Butt’s four brothers are licensed private hire drivers in a neighbouring Borough. It might be argued that this was not relevant, but there is a clear advantage to them in the resolution being passed, because they can now obtain a hackney licence in Slough. (3) Their participation in the proceedings was clearly unfair when compared with Councillor Bal who was excluded from the discussions and decision. ... This is because he is a licensed hackney carriage proprietor in Slough, but I fail to see how he was excluded yet Councillors Butt and Hayat were not."

[32]There is reference in paragraph 4 to the controversy amongst the hackney and private hire trade regarding delimitation of licences and the opposing views advanced by those two groups of people. There is reference in paragraph 5 to the polarised views and it is said:

"... we think it was very unfair that Councillors with a past and present connection with the private hire trade should have taken part in the discussion and decision on this matter... We find it inconceivable that these particular Councillors would have approached this issue with an open mind, but rather would have prejudged the issue."

[33]There is reference to a comment made in an Urdu newspaper called Jang. It is to this effect:

"Slough Borough Council, after 20-years, has announced the delimitation of hackney taxi black cabs allowing any taxi driver to apply for a plate. The Tory council committee decision has been appreciated by the entire community. Private Hire Cab Union Chairman, Raja Mehboob, has said ‘the entire community will benefit [from this decision]. We are all extremely grateful to councillors Raja Mohammed Latif, Raja Mohammed Aziz, Sumander Khan, Mushtaq Hayat who helped us in getting this decision."

There is no reference to Councillor Butt. The second claimant goes on to say:

"We are left with the impression that the decision was not taken fairly, and was influenced by those Councillors with sympathy for and connections with the private hire trade."

[34]Mr Butt and Mr Hayat have both made witness statements. Mr Butt says this:

"2. I was a member of the Licensing Committee on 9th August 2004. That Committee did not decide to delimit the number of Hackney Carriages: its decision was in the form of a recommendation. The decision is a matter for the Full Council, as subsequently occurred. 3. Prior to my becoming a Councillor, I ceased to be a private hire driver and handed back my private hire plates and badge to the Council with a written note. 4. I have two brothers who work as private hire drivers in Windsor and Maidenhead. There is no reason whatsoever why that should influence me in considering matters in Slough, and it did not so influence me. As a member of the Licensing Committee, my responsibility is to the electorate and the Hackney Carriage drivers in Slough. I note it is also said in the Claim Form that I have friends in the private hire trade, albeit not all in Slough Borough, and that the decision was of potential benefit to them. This implies I have friends in the trade in Slough Borough. The Claim Form names none and I cannot think of any. 5. I wish to add that, having read the officer's report and listened to the evidence, it did seem to me that there was a very strong case indeed for derestricting numbers in Slough, based on views of the Office of Fair Trading, the Government, the police, the liquor-licensing trade and representatives of the disabled, and that the only objection was based on the views of trade objectors: hence I voted for the recommendation which was made."

Mr Hayat says this:

"I have not been in the private hire trade for over 14 years and have no family or friends in the trade..."

Contrary to what the claimants assert:

"I am completely perplexed by the allegations made against me in this case and profoundly regret that they have been made. There does not appear to have been a basic level of checking before these proceedings commenced."

[35]As to the assertions in their witness statements by Councillors Butt and Hayat, the second claimant, in his recent witness statement refers to the controversial nature of the decision; how passionate and forcefully each side of the trade feels about the delimitation of numbers. Regarding Councillor Butt, he says this, for the first time:

"It is a fact that before he was elected, councillor Butt used to campaign for the private hire trade. He used to attend consultative meetings of the Council, and at one meeting shouted slogans in Urdu such as 'private hire zinibad', which means 'long live private hire'. It is easy to say in a statement that this issue was approached impartially, and judged on its merits, but I think an impartial observer who was aware of all the facts would be concerned that former members of the private hire trade took part in such a sensitive decision-making process."

How the claimants put their case

[36]The claimants accept that the Council was entitled to pass the resolution it did provided it was passed lawfully. They submit it was not. The submission on the basis of the amended case comes to this: the defendant's resolution was based, or very substantially based, on the Licensing Committee's decision of 9th August 2004. That decision was tainted by bias. The ultimate resolution based upon the Licensing Subcommittee's recommendation was as a result tainted. It is artificial to seek to isolate that later decision from the earlier resolution. Reliance is placed upon the witness statements, to which I have referred; also upon the Urdu newspaper report.

[37]I can deal with the newspaper report immediately and shortly. It does not seem to me that a newspaper report in these terms can begin to found a case of bias in respect of Mr Hayat. Indeed by the same token the absence of thanks to Mr Butt may lead to the opposite inference. I shall say no more about it.

[38]As to the law on bias, Mr Maddox accepts the applicability of the well-known definition in Porter v Magill, Weeks v Magill

[2002] 2 AC 357

. It is at paragraph 102 at page 494 that Lord Hope of Craighead deals with it. He refers in paragraph 202 to the case of R v Gough in which it is said:

"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or real danger, the two being the same, that the tribunal was biased."

Lord Hope, as he observes, would: "however delete from it the reference to ‘a real danger’".

[39]Mr Maddox has drawn my attention to a decision of Richards J in this court in the case of Georgiou v Enfield London Borough Council and Others

[2004] EWHC 779

. He submits, in reliance upon Richard's J observation in that case (one case very different on its facts) that here: "there was a real possibility that ... some of [the licensing subcommittee’s] members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant [licensing] issues." (see paragraph 31 of Georgiou).

[40]He submits that the evidence that he relies upon shows that. I disagree. It seems to me bordering on the absurd to suggest that Mr Hayat's experience as a private hire driver, some 14 years before, would lead to such a conclusion. As to Mr Butt, he was no longer the holder of a private hire licence. It had been surrendered. The fact his brothers who are holders in the next borough might theoretically benefit from Slough freeing up its licensing structure seems to me a fanciful basis upon which to base the allegation of bias. I am too, I have to say, sceptical about the most recent allegations regarding Mr Butt, made as they were very late in the day.

[41]I bear in mind too that councillors are entitled to have robust views without the decision in which they participate being defective. It does not seem to me, on the evidence presented, that there was the real possibility of these councillors approaching the Licensing Subcommittee's decision with a closed mind: without impartial consideration of all the relevant licensing issues.

[42]The case does not, however, simply fail at that first hurdle. There is another, in my view, insurmountable one. The decision it is sought to impugn was that of the Council. Neither Mr Butt nor Mr Hayat were there. There were before the Council two different proposals. There was additionally a great deal of information. Submissions, both oral and in writing, were made by, or on behalf, of the claimants. I remind myself of the observations of Sedley J in the case of R v Secretary of State for the Environment and Another, ex parte Kirkstall Valley Campaign Limited

[1996] 3 All ER 304

, where, at page 337, again on facts very different to the present, Sedley J said this:

"Is there then a real danger that the decision of July 1994 to grant planning permission for a modified version of the originally proposed retail development was affected, at the date when it was taken, by the pecuniary interest which had formerly been held by the chairman in the grant of such consent. If I were persuaded that the decision of July 1994 was the product of a prior decision tainted by the participation of a member with an incompatible personal interest, I would consider that a real danger of bias tainted the later decision too."

A little later he said this:

"... Although I reject Mr Ryan's submission that bias cannot infect more decisions than those it has tainted directly, I have been persuaded by Mr Drabble that the compromise scheme which was eventually adopted was a fresh proposal to which the corporation gave independent consideration. It resulted in a decision which did not depend upon the tainted proposal in a sufficiently substantial way to enable this court to treat the earlier apparent bias as continuing to operate."

That sets out the appropriate approach when considering the resolution of the 12th October 2004 in the context of the earlier recommendation of August 2004.

[43]It seems to me, having regard to the matters to which I have just referred, in particular the great deal of information before the Council, the conflicting submissions made directly to it, that the resultant decision did not depend upon the earlier recommendation of the Licensing Committee. It was not tainted by it. For a second reason, therefore, I would have refused this application for judicial review.

[44]There is finally another problem which faces the claimants. If Mr Butt should have excused himself (as I have indicated there is no even arguable case that Mr Hayat should have), the recommendation would have been the same. Given the policy of the government, and the clear views expressed by all those consulted, save the Hackney Carriage Licence Lobby, the Council's decision would have been the same. In short, it seems to me most unlikely that any other decision, than the one that was reached, would have been, had Mr Butt not played a part in the recommendation of 9th August. If so, it would not have been appropriate to exercise my discretion to grant judicial review.

[45]The topic of waiver has also been argued. It is not necessary for me to consider it.

[46]In short, had I granted the amendment sought this application for judicial review would have failed. It does so, in any event.

[47]MR KOLVIN: I am grateful, there is an application for costs. A schedule has been handed up. I wonder whether it has reached your Lordship?

[48]MR JUSTICE GOLDRING: I have a feeling that it has. I am not sure I can put my hand on it immediately. I take full responsibility. Yes, I have it.

[49]MR KOLVIN: The claim is in the sum of £10,522, which is almost exactly £400 less than the defendant's schedule which we received yesterday.

MR JUSTICE GOLDRING: Do you have any observations, Mr Maddox?

[51]MR MADDOX: As to the principle, no of course not. Three points if I may. First of all, the hourly rate claimed is £150 per hour. I do not know what the local authority rate is in the area. My experience is that the local authority rates do not usually include a profit (inaudible).

MR JUSTICE GOLDRING: Mr Kolvin can take instructions about that.

[53]MR KOLVIN: The second matter is the preparation of the draft at 14-hours. Your Lordship will see if your Lordship compares with the claimants' schedule that is almost the same 15-hours and 30 minutes for the claimants. Clearly the claimants in a case such as this where they have carriage of bundle preparation and drafting prepared - then in my submission that is a high figure. My submission would be 7 hours would be ample for that. My learned friend's fee, if your Lordship compares, is not greatly, but slightly higher than mine. The difference is that my brief includes the drafting of the skeleton and his is in addition. Those are the only matters I raise.

[54]MR KOLVIN: The last is -- I do hate singing for my supper. Can I just do my best? What that includes is the initial advice, assisting on the witness statements, drafting the detailed statement of grounds, the skeleton argument, the subsequent skeleton argument--

MR JUSTICE GOLDRING: Next point,Mr Kolvin?

[56]MR KOLVIN: So far as the number of hours is concerned, I have not taken instructions but summary assessments are intended to be summary. That obviously would have included reading the initial papers when they came and filing the brief acknowledgment of service. It would certainly have included the initial instructions to me and dealing with what I said when I had done my drafting and also included responding and trying to deal with the new case which emerged only last week.

MR JUSTICE GOLDRING: It is £150 an hour.

[58]MR MADDOX: So far as that is concerned, very quickly it is the same hourly rate for the injunction which was not complained about when costs were ordered in full. Secondly, it is the same hourly rate as the claimant claimed for a Grade 2 solicitor. They both claim to be Grade 2. Thirdly, I only discovered this was a point before we came in. There is a passage in the White Book dealing with the hourly rate which says in short, page 1203.

MR JUSTICE GOLDRING: Just read it to me.

[60]MR MADDOX: It says that it is not an accountancy exercise, it is not an exact science. The court is not concerned with charges but only with costs. So it is a question of whether the cost for a solicitor of that grade is a reasonable cost to charge. I have not had much time to research it, but I have spoken to other members of chambers who appear here more often than I who say that a charge of that sort--

[61]MR JUSTICE GOLDRING: In my experience it is not out of the way. I just wonder about the 14-hours. I am going to reduce that to ten. It is a pretty broad brush approach, but I will reduce that to ten. I am not going to change anything else.

[62]MR KOLVIN: That would take a little bit off the VAT as well.

MR JUSTICE GOLDRING: Can I leave you to work out the figures.

[64]MR KOLVIN: Thank you very much. I am grateful.