Cross-border hiring: appeal judgment

12 Dec 2018


Uber Britannia Limited has won an appeal against a refusal of their operator’s licence in Brighton. The decision of District Judge Szagun contains analysis on the question of cross-border hiring, as well as principles regarding the scope of licensing authorities’ powers to impose licence conditions.

A copy of the judgment can be found here.

Brighton and Hove City Council (“BHCC”) had refused to renew Uber’s operator’s licence on the main ground that Uber permitted drivers using its App to drive in Brighton while being licensed elsewhere. It considered that this eroded local control and so Uber was not fit to hold the licence.

On appeal BHCC additionally stated that it would be content with a condition preventing Uber allowing drivers to come into Brighton from certain other authority areas.

In a lengthy judgment, District Judge Szagun rejected the contention that Uber’s conduct was relevant to its fitness and propriety as an operator. She said:

The case law on the question of fit and properness is unequivocal. The test relates to the personal characteristics and qualifications reasonably required of a person doing whatever it is that the applicant seeks permission to do. The recent decision in Delta Merseyside Ltd and UBL v Knowsley Metropolitan Borough Council 2018 is on a very similar point and clearly rejects the argument that previous authorities justify a proposition that a policy restricting statutory rights is lawful. It follows that a refusal on the basis of the argument put forward by BHCC that UBL are fit and proper as long as they agree to a condition restricting their right to roam but otherwise are not is, therefore, clearly not lawful.”

Having heard extended argument on the use of conditions in licensing cases, the District Judge also rejected the contention that she should impose a condition restricting cross-bordering. She said:

The law is equally clear in respect of the exercise of discretion in attaching conditions to licences. Stewart v Perth and Kinross DC 2004 in which it was held to be unlawful to impose conditions on a car dealer to regulate the terms of their trade: […] discretion is not unlimited. The authority is not at liberty to use it for an ulterior object, however desirable that object may seem to be in the public interest“.

The District Judge also considered the wider question of Uber’s fitness and propriety on the facts. She stated:

For the avoidance of any doubt, on the facts and evidence in this case, I am satisfied that UBL have taken a responsible and collaborative approach in meeting the concerns around localism and difficulties presented by the nature and size of their operation.

I found Mr Jones’ evidence to be measured and reflective. The information provided demonstrated a responsible attitude towards the safety of all users of the service as well as an attitude of proactive and positive engagement and responsiveness to real concerns posed by BHCC.”

As a result, District Judge Szagun granted the licence for the full five-year term. There were agreed conditions to resolve another issue, regarding a data breach in 2016.

BHCC and Uber agreed on a partial contribution to Uber’s costs.

Philip Kolvin QC, who is Head of Chambers at Cornerstone Barristers, acted for Uber Britannia Limited, instructed by Charles Brasted, Head of Public Law and Policy at Hogan Lovells International LLP.