Cummings v Cardiff County Council

Neutral Citation Number: [2004] EWHC 2295 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Case No: CO/1750/2003 CO/5575/2003 Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 27 October 2004 Before: THE HONOURABLE THE HON. MR. JUSTICE MOSES - - - - - - - - - - - - - - - - - - - - - Between: Cummings - and - Cardiff County Council Claimant Defendant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Michael Bromley-Martin QC and Mr Nik Yeo (instructed by Dolmans) for the Claimant Mr Graham Walters (instructed by Cardiff County Council) for the Defendant - - - - - - - - - - - - - - - - - - - - Judgment Moses J: Introduction 1. 2. 3. 4. 5. Cardiff County Council is the licensing authority for the hackney carriage trade in Cardiff. The claimant, Mr Cummings, is the proprietor or part proprietor of a number of companies operating taxis in Cardiff. In total he controls 58 vehicle licences or 12.08% of the fleet of 480. The Council has, for many years, restricted the number of licences it issued. From time to time it decided to issue fresh licences. On 14 th January 2003 it decided to issue six further licences but to allocate them by means of a lottery. When the claimant challenged that decision the Council rescinded it and decided, in October 2003, to remove the restriction on the numbers of licences it issued. Although the later decision will result in the claimant receiving all the licences he wishes, it has the effect of destroying the secondary market in transfer of licences which, understandably, have a high value during a system of restriction. There are before the court two applications for Judicial Review in respect of two decisions of the Cardiff County Council Licensing and Public Protection Committee (“the Committee”). The first decision challenged, dated 14th January 2003, was to conduct a lottery for the purposes of issuing six Hackney Carriage Vehicle Licences. The second decision challenged, dated 7th October 2003, was to rescind the earlier decision and to remove the restriction on the number of such licences issued subject to certain conditions relating to the vehicles. This was called “delimitation”. Since it was reversed the claimant’s grounds of challenge to the earlier decision might appear academic. But the claimant persists in his challenge to the January decision because, he contends, the defect in that decision taints the decision to delimit the issue of licences taken in October. It is, accordingly, necessary to examine the earlier decision and the basis upon which it is challenged before turning to the second, October decision. Statutory Framework The power to licence hackney carriages to ply for hire is contained within Section 37 of the Town and Police Clauses Act 1847 as amended by the Transport Act 1985. Section 37 of the 1847 Act, as amended, provides:- “The Commissioners may from time to time licence to ply for hire …. hackney coaches or carriages of any kind or description adapted for the carriage of persons.” By Section 40:- “Before any such licence is granted a requisition for the same, in such form as the Commissioners from time to time provide for that purpose, shall be made and signed by the proprietor or one of the proprietors of the hackney carriage in respect of which such licences is applied for …” (there then follow detailed rules in relation to the form of the requisition). Nothing turns on these provisions in these applications save that it should be observed that it is the vehicles which are licensed and that firms or individuals seeking a licence are required to sign an application called “a requisition”. Pursuant to Section 47 of the Local Government (Miscellaneous Provisions) Act 1976 District Councils are empowered to attach conditions to the grant of a licence. Although objection was made to the particular conditions applied, this challenge is not being pursued and it is, therefore, unnecessary to set out the relevant statutory provisions. 6. It is, however, relevant to record that there is a statutory restriction upon the power of the local authority to limit the number of licences it issues. The power only exists where authorities are satisfied that is there is no significant demand for the services of hackney carriages which is unmet. Even if there is no unmet demand the authority is under no obligation to restrict the issue of licences. Further, there is no statutory restriction on the removal of any limit on the number of licences issued. The statutory source of those propositions is contained in Section 16(b) of The Transport Act 1985:- “… 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.” 7. Those statutory principles were summarised in R (on the application of Maud) v Castlepoint Borough Council [2002] EWHC 273 (Admin):- “6. The legal position has thus become as follows; (a) Before a local authority can refuse an application for a vehicle licence in order to limit the number of licenced taxis, they must be satisfied that there is no significant demand for the services of taxis, within the area to which the licence would apply, which is unmet; (b) (c) If the local authority are thus satisfied, a discretion, as opposed to an obligation, arises to refuse the grant of a licence; but If the local authority are not so satisfied, they cannot refuse to grant a licence for the purpose of limiting the number of licensed taxis and are thus obliged to grant it.” The first decision, 14 th January 2003 8. The report of the meeting records on 14th January 2003 that it was agreed to issue six hackney carriage vehicle licences and that applicants for those six licences should be restricted to the current holders of driver’s licences or proprietor licences. Each eligible individual or company would be limited to one licence. The selection of the applicants would be made by chance, through a lottery. The resolution further imposed a number of conditions in relation to the licences granted to the six who were successful in the lottery. 9. The basis of the decisions reached on 14th January 2003 was the report of the Chief Regulatory Services Officer dated 23rd December 2002. The report was based, in part, on a survey of demand commissioned from Halcrow Group Ltd (“the Halcrow Report”). This report is of particular relevance to the challenge to the later October decision. But it is of note, at this stage, that a draft report had been made available for comments by those operating taxis in November 2002 and that consideration of that report was deferred on 10th December 2002 to allow “the trade” a further opportunity to submit a consensus opinion on the proposals. The Committee received a summary of the trade consultation response dated 17th December 2002. The decision of 14th January 2003 was, accordingly, made in response to proper consultation. That consultation showed that “the trade” was against a lottery. 10. The possibility of a lottery was one of three methods of selection of applicants for licences summarised by Halcrow in its report. Halcrow’s report advised (at 17.3.1.):- “If the Council pursues the option of issuing six additional licences there are three options the Council could pursue;   Issue licences according to the Council’s waiting list, for example, i.e. the driver has been on the waiting list for the longest is issued a licence first, for example, Selby District Council; or If no waiting list is available all potential drivers could be interviewed and graded according to a set of pre- determined criteria, both Manchester and Leeds City Councils use such a system; or  Use a lottery system, for example, Southampton City Council.” Challenges to decision dated 14 th January 2003 11. The decision to select applicants by lottery is challenged on three bases:- i) ii) iii) The report to the Committee misled its members by suggesting that there was no waiting list available on the basis of which licences could be allocated according to the date order of applications. Secondly, it is contended that it was irrational to use a lottery when there was a waiting list in existence which would have demonstrated that there were earlier, deferred, applications, dating back to June 1998, from the claimant. It was unfair to use a method which depended purely on a chance. The third ground is that the method of allocation should, at least, have required consideration by the Committee according to a combination of a lottery or date order and the merits of any particular application. The Committee was misled into thinking that each applicant was of equal merit because that applicant 12. 13. 14. 15. already held licences. It ought to have allowed representations as to the merits of the claimant’s applications. The most significant of these challenges relates to the rejection of the use of a waiting list as a basis for determining priority. This challenge is of particular importance because, it is said, it led subsequently to the decision to de-restrict the issue of licences. The existence of a waiting list The challenge focuses on the wording of the report laid before the Committee on 14 th January 2003. Paragraph 4.3. of the report records the three mechanisms available to the Council identified by Halcrow. The report continues at 4.4:- “While the authority does keep a record of applicants and companies who have expressed an interest in obtaining hackney carriage licences, this has been largely a mechanism for assessing the level of demand and it is restarted following each release of licences. As many people would have expressed an interest previously prior to the creation of the new records and who would still wish to apply for the issue of the new licence, it is not equitable to use the existing recording mechanism in the way suggested by the consultants. It is therefore proposed that the use of a recording system to register expressions of interest for further licence releases is no longer necessary and be discontinued. Two other options to consider would therefore be to use the lottery system or establish appropriate criteria against which to consider the merits of each individual applicant.” The report continued by noting the simplicity of a lottery system as opposed to the problems in identifying appropriate criteria to select applicants by merit (see paragraphs 4.5 and 4.6 of the report). Thus the rejection of a waiting list was crucial to the decision to use a lottery. The report is criticised because it is said that it misled the Committee into thinking that there was no available waiting list to select applicants for consideration in the order in which they had made their application. This, so it is contended, was untrue. Such a list did exist and it would have been easy to use that list as a basis for selecting applicants for consideration according to the date of their application. The claimant stresses that he is not suggesting that the Committee was bound to grant licences in the order of the date of the applications but, at least, it is said, consideration should have been given in that order. Further, the history of the issue of the licences showed that on occasions when then there were more applications than the number of licences the Council proposed to issue, applicants had been selected in the order in which they had applied for licences. Previous history of grant of licences 16. This challenge led to an analysis of the previous history of the issue of licences. On 5th December 1990 the Committee resolved to issue twenty-five taxi licences to meet the needs of the disabled. It was resolved to issue licences in “strict order of application dates”. There is a specific reference to “the waiting list” from which those who had previously sold the licences would be deleted. Offers for licences which were not accepted within a time limit of three months would be withdrawn and an offer made to an applicant “at the top of the list”. By 11 th December 1991 it appears that not all the offers of licences had been accepted. The Committee proposed to offer licences to those who had previously sold them in the date order of application. The Committee, on 11th November 1992, resolved that future applications should be refused and applicants’ names be placed on the waiting list. The following year, on 15th September 1993, it was resolved to invite those on the waiting list to make application for one remaining licence. Other licences would be issued according to the extent to which individuals or companies had been “proactive” in requesting the provision of licences for vehicles adapted or manufactured for the disabled. By July 1994 ten licences were available although the method of allocation is not apparent from the resolution dated 13th July 1994. There are no written records until 1998 although in the Statement of Facts the claimant records that he was awarded some licences between 1994 and 1997 and assumes, by reason of the date, any unsuccessful application would have led to him being at the top of the waiting list (see e.g. paragraph 13 of the Statement of Facts). Of greater significance are the events in 1998. On 2nd June 1998 the Committee resolved to grant ten new licences for vehicles adapted for disabled persons. It is not clear on what basis the ten applicants were chosen. On 30th June 1998 the Committee granted seventeen further licences, eight of which were granted to firms owned by the claimant. Applications for four further licences from firms owned by the claimant were deferred. On 3rd September 1998 the Committee resolved not to issue further licences, to review the position and to consider at a later meeting the extent to which licences on offer had been accepted. On 3rd November 1998 the Committee learnt that some of those selected had been unable to raise the necessary finance and recorded that there were other applicants “on a waiting list”. It was resolved to offer the remaining eight licences which had not yet been taken up:- “In order of date of receipt of the application to those who had applied since 29th April 1998.” Such licences would only be offered to persons or to companies who had not already been allocated a licence under the current issue. This resolution is of importance, says the claimant, because it led to the allocation of further licences to firms he owned because those applications were at the head of a waiting list starting on 30th April 1998 and finishing on 13th January 2003. This document (at pages 623 to 626) demonstrates not only that there was a waiting list which showed the order in which applications had been received but that the waiting list had been retained until the day before the resolution on 14th January 2003 and that on the last occasion before 14th January 2003 when licences were issued, they were, indeed, issued in the order in which applications were made. In the light of that history it can be established:- i) On every occasion, save in 1993, when there were more applicants than licences, at some stage in the process of allocation, applications had been invited in strict date order. 17. 18. 19. 20. ii) There was a waiting list in existence which showed the order applications had been received since 30th April 1998. 21. In those circumstances, it is contended, it was wrong to suggest that the waiting list was “largely a mechanism for assessing the level of demand”. Although it did, obviously, indicate how many were interested in obtaining a licence, it had also formed the basis for the grant of such licence. Conclusions as to waiting list 22. It does seem to me that the report at paragraph 4.4 is an inadequate description of the previous history of the issue of licences. The only basis, so far as I can see, for rejection of the waiting list system proposed in the report appears to be because those who had expressed a wish to apply for the issue of a new licence may have done so before 30th April 1998. Mr Bromley-Martin QC, on behalf of the claimant, suggests that is fallacious because prior to 1998 there had been a surplus of licences over applicants and thus anybody who wanted a licence, and was able to afford a vehicle complying with the Committee’s requirements, would have been able to obtain such a licence. I am not sure it is fair to assume that all those who wanted licences prior to April 1998 would have obtained them. The consultation process revealed that at least one person had been waiting “for the last 18 years” (see letter to the Committee at page 385). But even if such applicants did exist it is difficult to see that, read as a whole, paragraph 4.4. fairly describes the history of the system. In rejecting the use of a waiting list as a means of ascertaining the dates when applications were made it is a surprising omission that no reference is made to the existing list which, by 14 th January 2003, was nearly five years old. Secondly, the fact that the dates of some earlier applications may have been unknown provided no inhibition to a method of selection according to date back in 1998. This fact was not reported to the Committee. Thirdly, it was not accurate to say that the record had been largely a mechanism for assessing the level of demand. It had not. On the majority of occasions when the applicants exceeded the number of licences the waiting list had been used as a method of determining the date of applications and the priority in which those applications would be considered. 23. My attention was drawn to a number of documents in which the principal officer in the licensing section, Mr Shone, sought to justify the passage impugned in the report at paragraph 4.4 (see in particular paragraph 53 of his second witness statement dated 4th February 2004 which predates his first). Further reference was made to his tortuous evidence during the course of an appeal mounted by the claimant to the Crown Court which was never concluded. In my mind none of this material is of assistance. Confusing though it is, it postdates the decision and report under attack. It cannot cast light on the information available to the Committee at the time it made its decision to reject a method of allocation based upon a waiting list. 24. Of possibly greater assistance on this issue is the statement from the chairman of the Committee, Brian Pinnell. He has been chairman since 1999 and was deputy chairman for about two years before. His statement is focussed upon the challenge to the second decision. He says that the list “did not necessarily reflect the merits or circumstances of individual applicants. There were 159 names on the list. It would have been very difficult to devise a set of criteria on which to assess individual merits, as well as administratively cumbersome and expensive to carry out that assessment.” 25. 26. 27. Mr Pinnell, thus, does not deal with the meaning or effect of paragraph 4.4 of the Report before the Committee but, merely, seeks to explain why a merit system was rejected by the Committee. Accordingly, I conclude that the report laid before the Committee did not accurately record the use to which the waiting list had been put in the past by the Committee. Paragraph 4.4 did not provide a fair or safe foundation on the basis of which the waiting list could be rejected. However, I reject the second and third grounds of challenge to the Committee’s decision to select applicants by lottery. There is no basis for saying that it was irrational to use a lottery merely because earlier applications had been deferred. It is plain from an analysis of the history that on each occasion a decision was reached to issue fresh licences, a fresh decision was made as to the method of allocation. Mr Cummings does not suggest that he had any legitimate expectation that the same system would be adopted on each occasion a decision was made to issue fresh licences. On the contrary, the history shows that there was no basis for such an expectation. Nor was it, in my view, irrational to reject a method of allocation, which included consideration of the merits of any particular application. The Committee was entitled to take the view that any system which laid down a criterion of merit was difficult, cumbersome and expensive, for reasons identified by the Chairman, Mr Pinnell. There remains the issue as to the effect of the misleading report. It seems to me wrong to reach any conclusion as to the effect of that report on the decision of 14th January 2003 when that decision has itself been rescinded. The importance of the decision to use a lottery is only of any relevance if it has an impact on the decision to delimit the issue of licences. The effect of the misleading report is only of relevance if it has an impact upon the decision under challenge in the second Judicial Review proceedings, the decision dated 7th October 2003. I should, therefore, before considering the impact of the misleading report, turn to the events leading to the decision of 7th October 2003 and to that decision itself. Events leading to decision 7 th October 2003. 28. Once the Committee had passed a resolution to hold a lottery, on 30 th January 2003 the claimant wrote asserting that the lottery was unlawful and requesting the Committee to revoke the decision. The claimant agreed to withhold Judicial Review proceedings until a meeting on 11th February 2003 since the lottery was not due to take place until 8th April 2003. The Committee did not consider the claimant’s assertions on 11th February 2003 because it took the view that no basis had been given for them. Further correspondence ensued and Judicial Review proceedings were issued on 4th April 2003. An interim injunction was obtained, by consent, to restrain the Committee from holding the lottery. 29. On 8th April 2003, the Committee resolved to defer the lottery in the light of the intended application for Judicial Review and to pursue the option of removing numerical limits on the issue of licences. It resolved to consult the trade and obtain a report for future consideration. On the same day, an acknowledgment of service sought an adjournment on the basis that a decision of the Committee:- “is likely to render the proceedings academic” (see paragraph 1.1 of the grounds for contesting the claim). The decision of 8th April 2003 was based on a report dated 27th March in which it was recorded that 512 licence holders had indicated a wish to be issued with licences. It stated at paragraph 4.4:- “In view of the demand for licences and the notification of a proposed Judicial Review, members may wish to consider if the imposition of numerical limits is still appropriate. Deregulation would provide Dolmans clients (the claimant’s solicitors) with the opportunity to obtain a licence from the authority without the need for a lottery system as any person could make an application. As all persons would be free to obtain a licence, this would remove the basis for the Judicial Review.” At paragraph 8.8 the report recommended consideration of the option of removal of numerical limits for those two reasons, namely to satisfy applicant’s demands and meet the requirements of the claimant. The decision on 7th October 2003 to rescind the January decision to issue six licences by way of lottery and to remove the limitation on the number of licences was preceded by a period of consultation with the trade and a report dated 12 th August 2003. A letter was sent to all holders of vehicle and drivers licences in April 2003 inviting views by 30th May 2003. The many responses were reported in Section 2 of the report to the Committee and in appendices. Sixty-six were in favour of delimitation and one hundred and sixty seven against. Paragraph 2.8 of the report summarised the arguments against delimitation, in paragraph 2.9 the arguments in favour. Paragraph 5 of the report recorded a summary of what was described as “expert advice on delimitation”. It referred to the view of an expert, Mr Jim Button of the Public Health Legal Information Unit, recommending delimitation. Appended to the report were two copies of a letter written by the claimant dated 18 th July 2003, outside the period for making representations. This argued against delimitation and in favour of deferring any decision. It also pointed out that by reason of limiting the number of licences they had acquired a substantial transfer value. In his evidence Mr Cummings stated that they were, at the time of his statement, worth £20,000. A further copy of his letter contained written arguments to the contrary drafted by officials. The Minutes of the Committee dated 7th October 2003 show that the Committee considered examples of licensing systems in other parts of the United Kingdom and that it was advised that the, majority do not place any restriction on numbers. The Minutes continue: 30. 31. 32. 33. “Having considered all the evidence, the Committee then discussed the implications of such a proposal in Cardiff. The Committee found that:  From the Halcrow survey and report, and their own experience of Cardiff on a Friday and Saturday night, that there was an unmet demand for hackney carriage services in the city;  The market for hackney carriage services will find its own sustainable level and number of vehicles;  The local authority could maintain quality control over the services through introducing conditions as part of the vehicle licensing process;  Recognise that the initial outlay of a new car could be prohibitive for some potential owners, and therefore a three year vehicle age limit would be introduced as part of the conditions of licence.” There was also a reference to difficulties concerning the provision of taxi ranks and the claimant’s appeal to the Crown Court. Challenges to the decision dated 7 th October 2003 34. The background to the challenges advanced, so the claimant emphasises, was the decision not to remove restriction on the number of licences made as recently as 14 th January 2003. That decision was made on the basis of the Halcrow Report, which specifically advised against delimitation at paragraph 16.3.8, drawing on examples in other authorities. The challenges to the rationality of the decision on 7 th October 2003 must be viewed in the light of that sudden and, so it is said, irrational change of heart. It is not contended that it was not open to the Committee to change its mind but, if it was to do so, it had to have a rational basis for doing so based on a fair process for reaching that conclusion. The primary submission advanced is that the decision to remove the restriction was tainted by the earlier rejection of the Committee of the method of allocation based upon the waiting list. The Committee ought, in October, to have considered whether the advantages of removal of restriction on numbers were outweighed by the advantages of a method of allocation of a limited number of licences based upon the waiting list. There was no reference whatever to consideration of the waiting list at the time of the decision on 7 th October 2003. That was, so it was contended, because the Committee had been misled earlier in January as to the availability of a waiting list as a basis for allocation. In short, the Committee failed to consider the rival merits of a method of allocation based upon the waiting list as opposed to de-restricting the number of licences issued altogether. Secondly it was said that the decision was tainted by the desire to avoid Judicial Review and, indeed, the decision had been made without any fair consideration of the rival arguments as demonstrated by the surprising percipience, in the grounds for seeking an adjournment of the first Judicial Review proceedings, namely, that those proceedings were likely to be academic because of a decision to de-restrict the numbers of licences issued. Thirdly, it was contended that the claimant’s objections were not dealt with fairly because his letter contained detailed annotations arguing against the reasons he advanced opposing de-restriction. Finally, it was contended that the report upon which the decision was based was misleading in that, whilst it referred to an expert in favour of de-restriction, it made no reference to the Halcrow Report advising against it. This omission was particularly significant, so it is said, because three out of the seven Councillors had not been present at the Committee meeting on 14th January 2003. Conclusions 35. 36. 37. 38. The first question I have to decide is the extent to which the errors contained in the report can be said to have tainted the decision to de-restrict the numbers of licences issued. Mr Bromley-Martin QC stressed, in his reply, that the only reason why the Committee came to consider the de-restriction was that they believed they had run out of options in relation to the choice of a method of allocation under a limited scheme. He referred to the opinion Mr Pinnell expressed in his statement that systems for the allocation of licences were contentious (see paragraph 14). Thus, the claimant argues that the misleading report which led to the decision to reject a waiting list as a basis of allocation led to the Committee’s failure in October 2003, when comparing the advantages of the issue of a limited number of licences against de-restriction, to put in the balance a system of allocation based on the waiting list. In rejecting the issue of a limited number of licences the Committee, misled by the report, must have taken the view that the system of allocation based upon the waiting list was not available. I do not think that by the time the Committee came to decide whether to de-restrict the number of licences it issued, it took the view that possible methods of allocation under the limited system was a relevant consideration. The arguments in favour of delimitation at paragraph 2.9 did not include the difficulties of devising a fair system of allocation. The arguments opposing delimitation at paragraph 2.8 did not advance the merits of a particular method of allocation. The claimant’s own letter dated 18 th July 2003 did not rely upon any supposed advantage in a method of allocation based upon a waiting list. It was a matter for the Committee to decide what arguments were relevant to the issue of whether there should be de-restriction or not. It was not and it cannot be suggested that any of the considerations they did take into account were irrelevant. The Committee was entitled to take the view that the issue before it, in October, was whether the advantages of de-restriction outweighed the disadvantages. It was under no obligation to take into account the issue of a fair method of allocation, should it continue to issue a limited number of licences. In the light of the essential question, whether to de-restrict or not to de-restrict, the issue as to a fair method of allocation, should the Committee continue to issue a limited number of licences, simply did not arise. I accept that had it not been for the earlier decision in January and the challenge mounted by the claimant it is unlikely that the Committee would have ever turned to consider the question of de-restriction. But the fact that the earlier decision and the challenge triggered consideration of the issue does not mean to say that any defect in the process, by which the first decision was reached, tainted the second decision. The trigger for the decision to de-restrict played no part in the actual consideration as to whether to de-restrict. It could hardly be said that the decision was taken in order to deprive the claimant of licences to which he would otherwise have be entitled. After all, his challenge in January was made for the purpose of securing an entitlement to consideration of the grant of licences ahead of others. A decision in October resulted in him having any licences he wanted. The damage to him, which was advanced in 39. 40. 41. 42. 43. his letter and, accordingly, considered by the Committee was in the damage to the market in transfer of licences. The Committee was entitled to reject the claimant’s arguments in relation to damage to the market in transfer of licences and it was not argued before me to the contrary. For those reasons I reject the submission that any defects in the process by which the January decision was reached affected the second decision so as to make it unlawful. The Committee properly considered the merits of de-restriction, taking into account the consultation with the trade and the arguments against it. Nor do I accept the contention that the Committee failed properly to weigh the rival arguments. This submission was based upon reference to the “likely” result of any consideration as to de-restriction. All the evidence relating to the consultation after April 2003, the report and Mr Pinnell’s own evidence between paragraphs 46 – 48 go to show that there was proper and conscientious consideration before a decision was reached. Nor is there any merit in the contention that the Committee did not fairly consider Mr Cumming’s objections expressed in his letter dated 18th July 2003. I reject the submission that comments, in italics, drafted by officials demonstrate that his objections were not given fair consideration. Officials were perfectly entitled to comment on Mr Cumming’s letter and I was referred to no principle or authority as to why officials were not entitled to refer the Committee to their own views as to claimant’s objections. The nature of the claimant’s objections, which came after the time for making representations had expired, was clear. Two copies of the claimant’s letter were annexed, one with comments and one without. Finally it was argued that the report was unfair because it made no reference to that Halcrow Report opposing de-restriction. Whilst the report referred to an expert in favour or de-restriction it made no reference to the fact that another expert had argued against de-restriction. The omission of any reference to an expert report opposing de- restriction also led to the omission to refer to Halcrow’s examples of difficulties in de- restriction experienced by other authorities. The report before the Committee did refer to the Halcrow Report but it did not refer to the opposition of those experts to de-restriction nor to the experiences of the other authorities to which Halcrow referred. It must also be acknowledged that three out of the seven members of the Committee had not been present when the Halcrow Report was relied upon in deciding to continue with the limited issue of licences in January. However, as Mr Bromley-Martin QC fairly accepted, all the arguments against de- restriction, advanced by Halcrow, were in substance expressed in the report. Whilst reliance was not placed upon the experiences of other authorities the substance of those difficulties was expressed. In those circumstances the failure to refer specifically to those particular authorities, where difficulties had been experienced, or to the content of the Halcrow Report in its opposition to de-restriction did not in my view render the report misleading or thereby taint the decision. It must also be recalled that the decision to adopt de-restriction was made unanimously and the majority of those present had been present at the time of the earlier decision in January. 44. There is more substance in the suggestion that the report contained an imbalance in referring to an expert in favour of de-restriction whilst not, at least, reminding the Committee that an expert had recently advised against it. Even though the substance of Halcrow’s arguments had been expressed, Mr Bromley-Martin QC stresses that the objections did not have the imprimatur of support by an expert. In my view the report should have reminded the Committee that there had been expert advice which disagreed with the views of Mr Jim Button, the expert in favour. But the difficulty with this submission is that I have no evidence as to whether the Committee was or was not unaware of the fact that Halcrow, in its expert view, opposed de-restriction. The point was not raised in the application. Nor is it contained in the skeleton argument. The nearest one gets to it is a reference in a written document at paragraph 33 (page 293 of the first bundle of documents) which was part of an application to adduce further evidence at a time when it was hoped to obtain statements from other councillors present at the meeting. This discussion apparently took place on the 19 th January 2004. But if this was to be a point of substance, to be argued at the full hearing, it should have formed the subject matter of a ground in the application or at least in an application to amend those grounds. The consequences of the failure specifically to raise this point in the grounds is that there has been no opportunity for the Council to adduce evidence as to whether members of the Committee were or were not ignorant of Halcrow’s views. The majority of the Committee cannot have been. After all, the Halcrow Report is specifically referred to in the report and minutes. I am not, therefore, prepared to assume ignorance on the part of the Committee or that it led to any substantial unfairness affecting the decision. Bearing in mind the substance of Halcrow’s objections was contained in the report I doubt whether, even if the Committee was unaware of Halcrow’s views, it would have led to any ground for impugning the decision. Since the contention was not raised in any ground, or in any amended ground, it is not in my view, open to the claimant to rely upon it now. For those reasons I reject the challenge to the second decision which, in my view, was a lawful decision reached on a fair consideration of the relevant factors. I should mention that a number of other grounds were advanced either in the original application or in the skeleton argument. They were not pursued before me. Since I have taken the view that the second decision cannot be impugned and the first decision has been rescinded, both applications fail. 45. 46. MR JUSTICE MOSES: This is a judgment which I disseminated some two weeks ago. It was urgent and therefore I did it as a matter of urgency. This was important because there had been enormous delay in circumstances where there should not have been such delay. The delay probably stemmed from an order, or at least a suggestion, that the matter should be heard in Cardiff and the lack of availability of a judge in Cardiff, but I have spoken with one of the presiding judges in Wales and I understand that the matter is being looked at so as to avoid this sort of delay again. The only reason that it is being handed down today, some two weeks after it was distributed, was to accommodate at least one of the parties who was not available until now. For the reasons that I have given, this application is refused. MR WALTERS: My Lord, in the light of that I make application for the defendant's costs in both judicial review proceedings. I understand from my learned friend that there is an application that relates to the first of those, so I say no more at this stage other than the application is on the basis of costs following the event. MR JUSTICE MOSES: Yes. MR BROMLEY-MARTIN: My Lord, can I say at once that I have nothing to say about the application for costs made by the defendant in relation to what we have been referring to as JR2. MR JUSTICE MOSES: Quite. MR BROMLEY-MARTIN: My Lord, I make application on behalf of the claimant in respect of his costs in relation to JR1 up to October 7th, the date of the decision the subject of JR2. My Lord, I could expand on that and develop that argument -- MR JUSTICE MOSES: Once they decided to postpone the holding of the lottery and reconsider the whole matter it was open to you to say, "Well, that is fine, we will not go on with the first proceedings". MR BROMLEY-MARTIN: My Lord, we submit that until the decision the subject of JR1 was rescinded there was a very good reason for continuing the proceedings. We know your Lordship has found the only reason for the decision to consider delimitation was not only because of what was said and decided in the January 14th meeting, but also because of the proceedings which Mr Cummings, the claimant, had taken out. MR JUSTICE MOSES: But even though they erred, it did not necessarily mean that you would have succeeded in the first judicial review proceedings. You got part of the way. Whether it vitiated the decision was a different question that I just did not decide because I did not need to. MR BROMLEY-MARTIN: My Lord, I entirely appreciate that and I entirely understand that that was because your Lordship -- MR JUSTICE MOSES: You say it started the whole process off, even though it rebounded on you and you incurred some expense in doing that, and perhaps that was for all the public good. MR BROMLEY-MARTIN: My Lord, indeed that is the case. I will not assume -- MR JUSTICE MOSES: You were saying "Look here, what about this waiting list," and there was merit in that. If you do not agree the costs, what would the taxing costs judge do about it? MR BROMLEY-MARTIN: My Lord, because in fact JR2 does not by definition come into play until October 7th, there could be no costs in relation to JR2 before October 7th, so all the costs in relation to JR2 are likely to be the defendants. MR JUSTICE MOSES: On a date basis. You say you have your costs up to October and they have their costs after October? MR BROMLEY-MARTIN: Precisely. MR JUSTICE MOSES: I see, yes. Thank you very much. MR WALTERS: My Lord, can I refer you to page 27 of the first trial bundle. It is the acknowledgment from the defendant in the first judicial review proceedings. MR JUSTICE MOSES: Summary of grounds? MR WALTERS: The first is the adjournment point your Lordship will recall. MR JUSTICE MOSES: Yes. MR WALTERS: Then at section 2 on page 28 there are matters of delay, and this is a convenient means of reciting the history. The points we make, and I will ask your Lordship to read it in a moment, are effectively that from the decision of 14th January, which identified 8th April 2003 as the lottery date, the claimant indicated an intention to challenge the lawfulness of a lottery but did not comply with the protocol and gave no reasons at all until trial proceedings of 25th March. MR JUSTICE MOSES: Yes. MR WALTERS: By that date the claimant's conduct had prevented the defendant considering the matter in committee, only the committee having power to resolve not to implement its own resolution or to give a formal undertaking, and on 25th March and the issue on 4th April it had effectively become unnecessary because the indication had clearly by that date been given of an intention to proceed. It would have been referred to committee on the 8th. Had the committee considered that it would nevertheless hold a lottery on the 8th there would have been no allocation of licences for several weeks because of the need for requisition and therefore any urgent action could have been taken by issue of proceedings on the 9th, the 10th or whenever. So non-compliance with protocol in giving reasons, delay generally and the consequence of that delay being that it was effectively unnecessary to issue on the 4th because nothing was achieved -- MR JUSTICE MOSES: 4th of what? MR WALTERS: 4th April, which we understand to be the issue date, 4th April 2003. If your Lordship is against me on that as the principle of costs, I simply mention as to the date that after the acknowledgment which was dated 25th April the position was abundantly clear so that that should be the cut-off date. MR JUSTICE MOSES: 25th April you had not decided to abandon the lottery, just merely considering whether you would. MR WALTERS: We had by that date, certainly on 8th April, concluded that there was no lottery because they were proceeding at that stage -- MR JUSTICE MOSES: Sorry, you will have to remind me. MR WALTERS: Page 27, the resolution of the 8th is 27, 1.2. MR JUSTICE MOSES: Deferring. MR WALTERS: Yes, until further consideration. That is the lesser point that would go as to the date being a date at the end of April as opposed to October. MR JUSTICE MOSES: If proceedings had not been threatened it may well be that your people would not have made those decisions. MR WALTERS: The threat, I fully accept -- MR JUSTICE MOSES: The fact of the matter is that it is always difficult challenging a local authority because you do not in fact have all the papers. I do not know whether the other side have the report about the waiting list. MR WALTERS: They did. There was a lengthy delay. MR JUSTICE MOSES: They did have that, so that once they have got that they realise there is something in it. They went to some bright spark in Cardiff who said "Let us mount a challenge" and that will cost a bit because that is what really triggered and gave your people second thoughts, and I am sympathetic to them having something. MR WALTERS: I would say that that tends to reinforce the cut-off date being the date of receipt of the acknowledgment, which is 25th April because, although they were non- compliant with protocol, they relied on draft grounds as -- MR JUSTICE MOSES: If they have their costs of the first proceedings up to 25th April. MR WALTERS: The issue fee there is of course minimal, which is the permission one which comes subsequently. MR JUSTICE MOSES: Thank you. MR BROMLEY-MARTIN: My Lord, in my submission, no. The position is that by 25th April the decision had not been made to rescind the lottery. It was open to the council, injunction aside, to reintroduce the lottery right the way up until 7th October. I rely heavily upon the fact that the council agreed to an injunction being necessary right the way up to 7th October and in fact beyond. MR JUSTICE MOSES: Since they agreed to defer it, it would have been silly not to. They had nothing to lose. I do not quite see why, looking at it with hindsight, as you lost on the main thing, you should have costs after they decided to defer because from then you had nothing to lose and once you restored the claims you lost them. MR BROMLEY-MARTIN: My Lord, the decision to defer was plainly made. My Lord, is the suggestion that at that stage we should have removed the threat of litigation in relation -- MR JUSTICE MOSES: You say, "Let it be adjourned generally and we will not incur any more legal costs in this litigation until we know what has happened after the consideration of the option of removal". MR BROMLEY-MARTIN: My Lord, indeed. There may be very few legal costs between April 25th and October 7th. In many ways, in my submission, that helps my case because it is a matter of principle. In my submission, if one challenges a local authority -- and there were difficulties in delay in getting hold of the report from the local authority prior to the issue of proceedings in March. MR JUSTICE MOSES: So you would get substantial costs if I said costs up until the end of April, would you not? MR BROMLEY-MARTIN: My Lord, certainly. MR JUSTICE MOSES: There is hardly any disagreement between you, except on the principle. MR BROMLEY-MARTIN: It is the principle, my Lord, in my submission. Your Lordship has made a very specific finding in relation to the adequacy of the report. MR JUSTICE MOSES: Yes. MR BROMLEY-MARTIN: And indeed used the expression that the report was not a fair and safe foundation. My Lord, whatever the pros and cons of JR1 are, we rely upon that finding by your Lordship to indicate that we were quite right to issue proceedings in relation -- MR JUSTICE MOSES: When did you issue proceedings? MR BROMLEY-MARTIN: We issued proceedings on, I believe, 4th April. MR JUSTICE MOSES: So if you had your costs up until, say, the end of April, that will include the hearings for the injunctions, would you not have had most of the costs of JR1? MR BROMLEY-MARTIN: My Lord, the answer to your question is yes, but I would try to persuade your Lordship not to simply take that pragmatic and practical approach to it. MR JUSTICE MOSES: What more do you want? MR BROMLEY-MARTIN: My Lord, I want the principle, which is -- MR JUSTICE MOSES: You have lost me. MR BROMLEY-MARTIN: -- that we should have our costs up until the time that the council conceded that the decision to hold a lottery should be rescinded. MR JUSTICE MOSES: That is up until October. Why do you want that, because there is some mopping up between April and October? MR BROMLEY-MARTIN: I suspect, as I have indicated to your Lordship, that the amount of costs between the end of April to October is very slight -- MR JUSTICE MOSES: That is up to what date? MR BROMLEY-MARTIN: October 7th. MR JUSTICE MOSES: Thank you very much. This is an application for costs by the successful council. Firstly, I should say that they should have the costs, subject to one point that I shall come to in a moment, of this hearing, that is the application and the substantive hearing, save for this. The claimant should have the costs up until 7th October 2003, which was the date that the committee rescinded the decision to hold a lottery. I say that they have the costs up until that date because although they have not succeeded in the first judicial review proceedings, it was undoubtedly the launch of those proceedings that led the council to think again, and indeed therefore benefit the public as they perceived it to be by removing the limitation. Whether there was a flaw, as I have indicated, in the process which led them to decide upon a lottery in the first place, and although that might not have had any effect on the decision, it was nonetheless that challenge that has led to the position as it now is in relation to taxis in Cardiff. In those circumstances the council get all the costs save in relation to the first judicial review proceedings. The claimant shall have the costs up until 7th October 2003. MR WALTERS: Subject to detailed assessment of course. MR JUSTICE MOSES: Subject to detailed assessment if not agreed. MR BROMLEY-MARTIN: My Lord, I would seek permission from your Lordship to appeal your Lordship's decision. MR JUSTICE MOSES: On what basis? There is no law in this. MR BROMLEY-MARTIN: There is no law, no. It would be a question simply -- and it is always difficult to say to a judge of first instance. MR JUSTICE MOSES: Not at all, the Court of Appeal is a great comfort. MR BROMLEY-MARTIN: The grounds of appeal would be that your Lordship has erred in failing to make the connection, or the necessary connection as the claimant would have it, between the October 7th decision and the January decision. Your Lordship has indicated that there were at least some flaws, the extent of which we need not argue here, in the January 14th decision, and we contend that another court may take a different view as to the effect that decision had upon the decision of October 7th. Your Lordship has concluded that the council in fact made a straightforward decision to delimit or not to delimit. My suggestion is that a court could easily take the view that in fact the decision that was open to them on October 7th was either to delimit or to allocate under a limited system, in which case the decision of January 14th would have been of considerable significance. MR JUSTICE MOSES: Thank you very much. No, permission will be refused. You must ask their Lordships. There is no point of principle and I do not see the likelihood of success. MR BROMLEY-MARTIN: My Lord, then there arises the third question, and that is the question of a stay or the injunction, or at least the status quo being retained until such time as their Lordships have considered either an application for permission or an appeal itself. My Lord, I do not know how that mechanism could be obtained. MR JUSTICE MOSES: You are not going to get a stay from me. You can go and ask their Lordships. MR BROMLEY-MARTIN: Could I at least ask even for a stay until I have asked their Lordships. The effect of this -- MR JUSTICE MOSES: They are not going to bring in anything tomorrow, so it would be up to their Lordships. This thing has been maundering on, and even if they started distributing licences they could stop if you got a stay. It would be a few extra licences. MR BROMLEY-MARTIN: My Lord, the position is that the delay has not been the fault of the claimant in any way at all. MR JUSTICE MOSES: The fact of these proceedings has led to enormous delay and they have failed. MR BROMLEY-MARTIN: My Lord, I appreciate they have failed, but on the other hand your Lordship has found that there were at least some grounds upon which they introduced the proceedings in the first place, although your Lordship has not given any relief or indeed allowed the application in respect of it, so, my Lord, there is some merit somewhere in the claim -- MR JUSTICE MOSES: To launch a new scheme now is going to take some days to draw up the documents; is that not right, Mr Walters? Nothing is going to happen for a few days, is it? MR WALTERS: I think certainly we know the established position is even after a requisition we are talking of 8 to 14 weeks. MR JUSTICE MOSES: You have to look at the quality of taxis. You still have to do that. There is not going to be more licence holders on the road under the new regime on the road. It must take -- MR WALTERS: It would be a matter of some weeks, I am sure. MR JUSTICE MOSES: I cannot believe it would happen in the next few days. You are not going to bind yourself, but physically you have to advertise and say "we are having a free for all", but you still have to have roadworthy vehicles. There is presumably some mechanism to check that both the taxi driver and the vehicle are suitable people. You cannot have people with sex convictions driving around. There must be a process of vetting. MR WALTERS: The process that will take place takes some weeks and the formal decision will be through committee at any event which meets once a month. If I could just find out the actual practical reality. It takes some weeks, I am told, because of course you have to put in place the finance and purchase of a vehicle, and it is a specific vehicle which is then the subject of the requisition. MR JUSTICE MOSES: Mr Bromley-Martin, it has been said in open court that it is going to take some weeks. Can you go to their Lordships tomorrow? MR BROMLEY-MARTIN: Could I reply upon that. If that were to be the case, then why on earth is there objection to the stay remaining? My Lord, it works both ways. MR JUSTICE MOSES: But at least they can get on with it, and if they have wasted money then on their own head be it. MR BROMLEY-MARTIN: The reality is that it is going to be open to the council tomorrow morning to indicate that it will grant licences, that will mean that a great number of expectations will be raised in relation to the grant of licences. It may result in the expectations of literally hundreds of people being raised. My Lord, if the position is that the process takes 8 to 14 weeks in any event, what on earth can be the difficulty with having a stay for a further week in order that we can go to the Court of Appeal? MR JUSTICE MOSES: Thank you. MR BROMLEY-MARTIN: The delay has been now 13 months and no fault of the claimant, and my Lord -- MR JUSTICE MOSES: I am thinking about the people waiting for taxis in Cardiff. MR BROMLEY-MARTIN: Another week, in my submission, really could not make any difference. MR JUSTICE MOSES: I have the point. Thank you. I am not going to grant a stay. You can ask their Lordships for a stay. If a stay is refused and if permission to appeal is refused, or Mr Cummings decides not to launch an appeal, at least the process will start so that that which is the wish of the elected representatives of the council can be put into place rather quicker than otherwise. I refuse a stay. MR JUSTICE MOSES: There is one other thing. There is another set of judicial review proceedings, is there not? What has happened about those? MR BROMLEY-MARTIN: My Lord, I am not instructed in JR3, my junior is and unfortunately he is not here today. MR JUSTICE MOSES: I was really depressed about this. Some time this whole thing has got to get sorted out. There we are. What is happening about JR3? MR WALTERS: The permission hearing has not yet taken place is my current instruction. MR JUSTICE MOSES: I hope the Court of Appeal are told, in fact they must be told, that there is yet another set of proceedings hanging around because it is about time all of this got sorted out other than through the courts. MR BROMLEY-MARTIN: My Lord, JR3 deals with conditions. It is not going to hold up, I believe, the issuing of licences. It is in relation to -- MR WALTERS: They are private hire vehicles. MR BROMLEY-MARTIN: It is private hire vehicles. MR JUSTICE MOSES: I shall look forward to hearing that one. Thank you both very much.