UBER V TRANSPORT FOR LONDON

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Transport for London (TfL) was created 3rd July 2000 as part of the Greater London Authority; having a budget of £11.5 billion (40% of this coming from fares), this company has been built by public achievement.

The Uber company emerged out of an idea of convenience. The first UberCab being launched in 2009 in San Francisco, and then being publicly used from 2010; the company then goes international a year later, whereby 500 cities are currently now enjoying Uber. Dara Khosrowshahi (CEO) states that Uber is currently worth about $3 billion at a $48 billion valuation.

It’s been almost six years since the launch of Uber’s App in the UK, and prior to this, the company has made its fair share of both enemies and allies. The case went under way when TfL announced they will not be renewing Uber’s licence to operate within London. Stating that ‘the company (Uber) is not fit and proper to hold a private operator licence…’ and that they ‘demonstrated a lack of corporate responsibility.’ There were three main concerns raised by TfL that proved to be the foundations of this case. These three main areas the concerns relate to include:

1.       Uber’s approach to reporting any serious criminal offences, such as sexual assault by the companies’ drivers;

2.       The way in which the company performs background checks on its drivers; and the way in which it obtains medical certificates;

3.       TfL also raised concerns about Uber’s of a controversial piece of software, known as Greyball (allows companies to systematically avoid law enforcement and sting operations on its drivers).

In response to these concerns, brought to attention by TfL, Uber denies all allegations made in TfL’s announcement and said it will immediately appeal to the decision. Despite this, Uber will retain the right to operate in London during the appeal’s process.

The in-house lawyers instructed by Hogan Lovells on behalf of Uber, being Mr T De La Mare QC (Blackstone Chambers) and Mr H Mussa (Blackstone Chambers). The in-house lawyers instructed by TfL being Mr T Johnston (Brick Court Chambers), and Mr D Heaton (Foundry Chambers).

Under Mr Justice Ouseley of the High Court: Queen’s bench division, TfL’s concern with Uber being ‘[un]fit and [not] proper to hold a private operator license’ was attended to, by bringing to the courts attention that under Section 11 of PHVs (Private Hire Vehicles) (London) Act 1998) it is an offence for a licensed PHV to be equipped with a taximeter (a device used to calculate the fare charged for any journey). It was under this this statement that the LTDA (licenced taxi drivers association) and the LPHCA (licensed private hire car association) assert that the PHVs operating within the Uber company are in fact equipped with taximeters. With regards to this, Ouseley makes the judgement that Uber’s PHV’s are not in fact equipped with a taximeter, this being a device that calculates the fare to be charged in respect of any journey by reference to the distance travelled or time. In this definition, Ouseley ruled that the drivers phone with the drivers’ app is not adequate to be defined as a taximeter. The fact that the fares calculation is done in one of two ways by the Uber company: signals that provide GPS data, or via a fare calculation model; proved in this case that Uber’s PHVs were not in fact equipped with taximeters. Despite this ruling the LTDA and LPHCA argue that even though the driver’s smartphone provides input to the calculation in the form of time and distance, this isn’t in fact adequate device. However, there is nothing under the PHVs (London Act 1998 that clearly specifies what medium/ device must be used to calculate the journeys fare.

In-house: instructed by Hogan Lovells – Mr T De La Mare QC (Blackstone Chambers) & Mr H Mussa (Blackstone Chambers)

In-house: instructed by Transport for London – Mr T Johnston (Brick Court Chambers) & Mr D Heaton (Foundry Chambers)

The second hearing under Judge Mr Justice Mitting, of the High Court, ruled that two out of the three requirements imposed by the TfL on the PHV industry are unlawful. Uber challenged the new provisions (insurance requirement) put in place by TfL on 15th August 2016, these provisions being:

1.       The English language requirement

2.       The requirement is that applicants must be able to communicate in English at or above level B1 on the CEFR (Common European Framework of Reference for Language).

3.       The ability to communicate in English for the purpose of speaking, listening, reading and writing.

4.       The applicants must satisfy TfL with their ability to meet the requirements

TfL had also imposed a telephone requirement, by which all PHV operators had operate a complaints line for any customer complaints, as well as bookings. This was resolved as being of no useful purpose for Uber, whose current efficient system for dealing with non-urgent issues raised by passengers wasn’t in need of being replaced or duplicated. Mitting rejects TfL’s new provisions, by saying that in reality there is no gap which, in the interests of passengers is required to be filled by the insurance requirement.

In-house: Mr Martin Chamberlain QC, Mr Tim Johnston and Mr David Heaton- instructed by TfL (Brick Court Chambers)

In-house: Mr Thomas De La Mare QC and Mr Hanif Mussa- instructed by Hogan Lovells (Blackstone Chambers)

An appeal made by TfL against Mitting’s 3/03/2017 order, allowed for a court review of the application. Mitting’s 3/03/2017 order was to allow Uber and the other claimants’ claim for judicial review of the Voice Contract Requirement (the operator shall ensure that the passenger for whom the booking was made is able to speak to a person at the operating centre). This was continued in the 25/05/2018 hearing under Lady Justice Gloster (Vice President of the Court of Appeal, Civil Division). In this case TfL furthers their appeal by questioning if Mitting was correct in his conclusion; this was to allow Uber and the other claimants’ claim for judicial review of the Voice Contact Requirement. Following the consultation process (March 2015 – February 2016) TfL conducted a comprehensive three-stage review, where they lay down three conditions:

1.       English Language Requirement

2.       Voice Contact Requirement (the operator shall ensure that the passenger for whom the booking was made is able to speak to a person at the operating centre, or other premises with a fixed address in London.

3.       The Insurance Requirement (concerns the insurance for PHVs)

Following this hearing 5 main issues had been brought to attention: (1) did the judge mistakenly rely on the distinction between an emergency and non-emergency contact facility; (2) whether the judge accorded TfL a proper margin of appreciation in this area. (3) Does the Voice Contact Requirement achieve a higher level of protection than the Emergency Telephone Alternative. (4) is the Voice Contact Requirement a proportionate and lawful interference with Uber’s freedom of establishment in any event; (5) Whether it is unlawful that TfL has not imposed a similar requirement on taxis? Following this the disposition allows for TfL’s appeal, and both Lord Justice Patten and Lord Justice Floyd agrees to this.