High Court ruling issued in Uber taximeter case

Background

Under the current law, taxis (that is to say, licenced hackney carriages or black cabs) and private hire vehicles (or minicabs) are regulated under separate regulatory and statutory regimes and different legislation applies in London as opposed to the rest of the country. Ever since Transport for London (TfL) licensed Uber to operate private hire vehicles in the capital in May 2012, tensions have run high in the taxi industry.

Black cab drivers, supported by the Licensed Taxi Drivers' Association (LTDA) and the Licensed Private Hire Car Association (LPHCA), have publicly spoken out in opposition to TfL’s treatment of Uber, stemming from the disparity between licensing requirements for black cab drivers and other private hire drivers in the city. Over 5,000 black cabs gridlocked the roads around Trafalgar Square, Whitehall and Parliament Square on 11 June as part of a staged protest.

At the centre of the row between TfL and black cab drivers is the use of the Uber Driver app and whether or not it qualifies as a taximeter, the device that calculates the distance travelled and the metered fare payable for a jouney. Black cabs are required to have taximeters installed. Outside London, private hire vehicles are not required to have taximeters, but have the option of installing one. In London, however, private hire vehicles are prohibited from being equipped with a taximeter.

Taximeters

When drivers sign up to work for Uber, they are obliged to hire a locked-down smartphone, a cradle for the phone, a charging cable and a 12v adapter. Using the General Uber app of their smartphones, customers find and select a nearby driver, at which point Uber sends instructions to the pre-installed Driver app on the driver’s smartphone, along with directions and a fare calculation. LTDA and others argued that the use of a smartphone installed with the Driver app was equivalent to a taximeter. Under s.11 (2) of the Private Hire Vehicles (London) Act 1998, the owners of licensed private hire vehicles ‘equipped with a taximeter’ commit a criminal offence. TfL did not agree and, in a bid to clarify its position, issued an open letter to taxi drivers in July 2015 stating: ‘smartphones that transmit location information (based on GPS data) between vehicles and operators, have no operational connection with the vehicles, and receive information about fares which are calculated remotely from the vehicle, are not taximeters within the meaning of the legislation (section 11 of the Private Hire Vehicles (London) Act 1998).’

In the face of widespread disagreement from taxi organisations and private hire companies, TfL acknowledged that the best course of action would be to allow the High Court to make a declaration on the issue. The LTDA responded by initiating private prosecutions against six Uber drivers for the offence of possessing a taximeter in a private hire vehicle.

High Court decision

On 16 October, Lord Justice Ouseley was tasked with making a declaration before representatives of TfL, Uber, the LTDA and the LPHCA. The facts were not in dispute, as all the parties were in agreement about the way in which the Driver app functioned on a smartphone. The sole purpose of the declaration was to determine whether or not it constituted a taximeter. In delivering his judgement, Lord Justice Ouseley referred to a more specific definition of a taximeter found in the Measuring Instruments (Taximeters) Regulations SI 2006 No. 2304: ‘a device that works together with the signal generator to make a measuring instrument; with the device measuring duration, calculating distance on the basis of a signal delivered by the distance signal generators; and calculating and displaying the fare to be paid for a trip on the basis of the calculated distance or the measured duration of the trip, or of both.’

The judge held that the combination of the driver’s smartphone and the Driver app was ‘not a device for calculating fares by itself…and even if it were, the vehicle is not equipped with it’. The decision was based on the fact that GPS data is forwarded from the device to a remote server, which in turn calculates the appropriate fare by reference to the distance travelled and the time taken for the journey. This information is then relayed to the device. Although the smartphones are responsible for recording time and distance information, the calculation takes place elsewhere. Furthermore, Lord Justice Ouseley took issue with the idea of smartphones being ‘equipped’ in the vehicles, as defined in s.11 of the Private Hire Vehicles (London) Act 1998. He reasoned that the driver of the vehicle is equipped with the smartphone, not the vehicle. In contrast, a taximeter is physically installed and sealed in the taxi it serves. The importance of the distinction is that the offence under s.11 (3) is targeted at the owner of the vehicle, not the driver and so the focus of the legislation is ‘on something which the owner might be expected to have knowledge or control over rather than the driver’.

Comment

The decision is surprising for a number of reasons. By placing so much emphasis on the calculation of the fare taking place remotely, Lord Justice Ouseley has downplayed the overall function of the combined smartphone and Driver app. As argued in the case, calculating the fare remotely seems to have ‘legal effect but no commercial purpose’. Similarly, the fact that a smartphone can be removed from a vehicle does not mean it is not equipped when in use. The very fact that Uber supplies phone cradles and locked-down smartphones to its drivers is indicative of the intended function of the device. The decision is undoubtedly a poor one for taxi drivers and organisations across London but it has forced TfL to consider the regulations surrounding private hire vehicles in further detail. A public consultation has been opened, allowing interested parties and members of the public to comment on the proposals until 23 December. For more information, please speak to Rhys Williams on +44 (0)1223 225284 or see www.taylorvinters.com find out more.