Challenge to Uber’s London licence fails

26 Feb 2019

Licensing, Public Law and Judicial Review

On 26 June 2018, the Chief Magistrate renewed the operator’s licence of Uber London Limited following its appeal against an earlier refusal by Transport for London.

The Chief Magistrate’s decision was challenged in the High Court by hackney carriage trade associations the United Cabbies Group (London) Limited (“UCG”) and the Licensed Taxi Drivers Association (“LTDA”).

On 26 February 2019 their challenge was dismissed by the Administrative Court.

UCG brought their claim on two grounds. First, they said that the Chief Magistrate did not in fact find Uber fit and proper and so should not have granted it a licence. Second, they said that the Chief Magistrate was biased because of an alleged link between her husband Lord Arbuthnot and Uber and/or Transport for London. They were supported by LTDA which suggested that the Chief Magistrate had been wrong to dismiss as irrelevant Uber’s despatch of vehicles to locations outside Greater London.

The Administrative Court, consisting of the Lord Chief Justice and the judge in charge of the Administrative Court Mr Justice Supperstone, dismissed UCG’s arguments.

As to the first ground, the Chief Magistrate had said that Uber had “provided evidence to this court that it is now a fit and proper person within the meaning of the Act. I grant a licence to [Uber].” The Court said that, in the circumstances, it was obvious that the judge had accepted the evidence given by Uber as to its fitness.

As to bias, the Court considered the claim under two heads, presumed and apparent bias.

For presumed bias, it is necessary to show that the judge had a direct pecuniary or proprietary interest in the outcome of the case. In this case, her husband was a consultant to an advisory company which advised an investment company which had invested in Uber, but he had never advised the investment company or anyone else about Uber.

The Court stated that it did “not consider that the facts even begin to show that there was a link between the judge’s interest and the interests of her husband ‘so close and direct’ as to render the interest of her husband indistinguishable from her interest”. Furthermore, it said that it was difficult to see how her husband had any direct interest in the outcome of the Appeal.

As for apparent bias, the test is whether a fair minded observer, having considered the facts, would conclude that there was a real possibility of bias. UCG said that when the Chief Magistrate had learned of a Guardian story alleging a link between her husband and Uber, she had stood down from hearing further cases involving Uber. This, claimed UCG, demonstrated apparent bias.

The Court disagreed. The fact that a judge chooses on a precautionary basis to stand down from hearing further cases once she had learned of the facts does not demonstrate that she was apparently biased before she knew of those facts. It also rejected as wrong and impractical an argument that judges should be required to investigate any links between family members and parties to cases they were trying.

UCG also relied on various other links between the Chief Magistrate and Uber and/or Transport for London, for example that her husband knew Lord Hague who was on the advisory board of a firm of solicitors which was fund counsel to a bank which had invested in Uber. The Court stated that it reminded one of the song “I danced with a man who danced with a girl who danced with the Prince of Wales.” It dismissed all of UCG’s allegations.

LTDA had argued before the Chief Magistrate that Uber’s approach to cross-border despatch was illegal and in any case rendered it not fit and proper. The Chief Magistrate accepted Transport for London’s position that matters relating to cross-border hiring did not go to fitness and propriety, but were a matter for Parliament.

By the time the matter reached the High Court, LTDA had abandoned the argument that Uber was acting illegally, but maintained that Uber’s conduct was relevant to fitness and propriety. Their case was that if the Chief Magistrate’s decision was quashed, then in any rehearing the Court should direct the Justices to take LTDA’s case into account.

Given that the Court did not quash the decision, it found it unnecessary to deal with the points raised beyond noting that the points had been fully responded to by Uber and Transport for London.

A copy of the judgment can be found here.

Uber London Limited was represented by Philip Kolvin QC, instructed by Charles Brasted of Hogan Lovells International LLP.