R (Uber London Ltd) v Transport for London  EWCA Civ 1213
The Court of Appeal today held that Transport for London may lawfully require private hire operators to provide a voice contact facility to enable passengers to complain or discuss bookings. It allowed TfL's appeal against the decision of Mr Justice Mitting at first instance (R (Uber London Ltd) v Transport for London EWHC 435 (Admin)), which had held that a voice contact requirement was a disproportionate interference with Uber London Limited's ("ULL") freedom of establishment under EU law.
London taxis and "private hire vehicles" (or minicabs) are regulated under different regimes. Unlike taxis, private hire vehicles must take bookings through an "operator" in London and cannot be hailed on the street. In 2016, after an extensive consultation, TfL imposed a requirement on private hire operators to provide a voice contact facility. The requirement is that a person for whom a booking had been made is, during the operator's house of business and during journeys, able to speak to a person at the operator to make a complaint or otherwise discuss the carrying out of the booking. No similar requirement exists for taxis.
Mr Justice Mitting held at first instance that a requirement to provide while a voice contact facility in "emergency" situations "broadly defined" could be justified by public safety and passenger convenience benefits. He held, however, that in its full breadth, including for example its application to lost property enquiries, the voice contact requirement was unlawful. He held that an emergency requirement was a less burdensome means of achieving TfL's objectives.
The Court of Appeal overturned Mr Justice Mitting's decision.
The Court of Appeal held that Mr Justice Mitting was wrong to rely on the distinction between an emergency requirement and the voice contact facility, which was not raised in the consultation or suggested as a less burdensome alternative by ULL. It accepted TfL's evidence introduced on the appeal that an emergency requirement would not be practicable, would not achieve the same benefits, and would not necessarily be less burdensome. The Court of Appeal also held that, because the emergency requirement would not achieve the same benefits as the voice contact requirement (speed of response and customer comfort outside emergency situations), it was not a less burdensome alternative. It rejected ULL's arguments that the benefits outside of emergency situations were negligible.
The Court of Appeal also rejected ULL's argument that, because the voice contact requirement was not imposed on taxis, it was disproportionate. It held that taxis and private hire vehicles were not relevantly in comparable positions. The Court of Appeal also held that, although justifications for the requirement had evolved from the consultation, their substance was considered during the consultations. Accordingly, the Court did not accord them less weight as ex post reasoning.
The Court therefore allowed TfL's appeal and held that the requirement for a voice contact facility was lawful.
The judgment appears here.
Martin Chamberlain QC, Tim Johnston and David Heaton acted for TfL, on appeal and at first instance.