Gilbert v McKay

 Gilbert v McKay

CRIMINAL; Road Traffic

KING’S BENCH DIVISION

LORD GODDARD LCJ, HUMPHREYS AND HENN COLLINS JJ

28 JANUARY 1946

Street Traffic – Hackney carriages – Motor cars – Plying for hire without being licensed – Vehicles standing in public street – Hire and payment made in

adjacent street – No contract with, and no payment to, driver of vehicle – Metropolitan Public Carriage Act, 1869 (c 115), s 7.

The appellant had an office in London with a sign, “Cars for hire,” displayed on the outside. Several motor cars belonging to the appellant were standing in

the street adjacent to the office, and, on 11 October 1944, several persons were seen to enter the office for the purpose of paying for the hire of any one of the

cars in which later they were driven away. On a charge of being the owner of unlicensed hackney carriages plying for hire, contrary to the Metropolitan

Public Carriage Act, 1869, s 7, the appellant was convicted and fined by the metropolitan police magistrate. The appellant appealed and a case was stated for

the opinion of the High Court:—

Held – Although in each case no contract was entered into with the driver of the car and no payment made to him, there was a plying for hire of the cars

standing in the public street.

Notes

It is difficult to lay down any test of what is “plying for hire” on which there are many decisions under the Town Police Clauses Act, 1847. It was held in

Cavill v Amos that there was no plying for hire where the vehicle started from private premises, but in the case under consideration the vehicle stood outside

the premises and the exhibition of the vehicle, while not conclusive, is a very important factor in deciding whether there was a plying.

As to the Metropolitan Public Carriage Act, 1869, s 7, see Halsbury’s Statutes, Vol 19, p 165.

Case referred to in judgments

Cavill v Amos (1900), 64 JP 309, 42 Digest 855, 89.

Appeal

Appeal by way of case stated by the defendant from a decision of a metropolitan police magistrate. The facts are sufficiently set out in the judgment of Lord

Goddard LCJ.

Geoffrey Howard for the appellant.

Vernon Gattie for the respondent.

28 January 1946. The following judgments were delivered.

LORD GODDARD LCJ. This is a case stated by one of the metropolitan magistrates, in which the appellant was convicted of “being the owner of a hackney

carriage … [which] was on 11 October 1944 found plying for hire within the limits of the metropolitan police district, namely, at 6, Rupert Street, W1, such

carriage not being licensed to ply for hire,” and there were two subsidiary 􀂭 458􀀉 charges to which it is unnecessary to refer, because it is clear that if he was

properly convicted on the first charge, he was properly convicted on the others.

The facts found by the magistrate are as follows. The appellant keeps an office in Rupert Street, with a sign on the outside: “Cars for hire.” On the night

in question there were several cars belonging to him standing outside the office in the street. Various people came up, and as each got into a car and was driven away, the rank of cars moved forward. In each case the hirer had gone into the office and apparently paid his fare in the office to the proprietor or the

manager of the business, that is to say, he did not make a contract with the driver. The magistrate has found that that amounted to a plying for hire, and it is

said that he was wrong.

A certain number of cases were referred to before the magistrate, which he sets out in the case, and some of those cases have been referred to before us.

Whether a car is plying for hire or not it is essentially a question of fact which has to be decided by the application to a great extent of the rules of

commonsense, and nobody is more able to do that than the magistrate who stated this case, and in this particular case there is no doubt there was a plying for

hire. What was being maintained was a stand, if I may use the word, for cars in the street. These cars were being used and left outside this office to be hired

in exactly the same way as taxicabs drive up and stand on an ordinary hackney carriage stand in the street.

Various tests have at one time and another been laid down to decide whether or not a vehicle is plying for hire. Channell J said in Cavill v Amos (64 JP

309, at p 310):

‘In ordinary cases, in order that there should be a plying for hire the carriage itself should be exhibited.’

It is quite possible that there can be a plying for hire where it is not exhibited, but where it is being exhibited it is a most important fact.

The only reason why I think it is necessary to say very little more than that we agree with the magistrate is that I think he has gone further in giving his

reasons both in the case and the considered reasons than is necessary for the purpose of deciding the particular case. He has said in his reasons:

‘I was further of the opinion that, if the cars had been concealed in a private yard or garage, the result would be the same provided that the cars were

ready to be appropriated to an immediate hiring.’

I express no opinion whatever as to whether that is a necessary conclusion or not; in fact I am not going to say any more than that I do not necessarily agree

with that remark of the magistrate. There may be cases in which, although the cars were standing in some yard and not actually seen by the public, it might be

possible to find that there was a hiring. In any case, that part of the magistrate’s finding is not necessary for this case, and I prefer to say no more about it. In

my opinion there was abundant evidence in this case on which the magistrate could come to the conclusion that these cars were plying for hire; I would say

that there was no other conclusion to which he could come, and therefore this appeal must be dismissed.

HUMPHREYS J. I agree with every word of the judgment of Lord Goddard LCJ.

HENN COLLINS J. I agree, and have nothing to add.

Appeal dismissed with costs.

Solicitors: H R Hodder & Son (for the appellant); The Solicitor for the Metropolitan Police (for the respondent).

C StJ Nicholson Esq Barrister.

􀂭 459􀀉

[1946] 1 All ER 460