No obligation on minister to create or maintain market in taxi licences

Michael O'Dwyer, Anthony,O'Sullivan and Andrew Quelly (plaintiffs) v The Minister for the Environment, Ireland and The Attorney General (defendants).

Road Traffic _ Taxi licences - Hackney licences - Power of minister to make regulations - Whether minister acting ultra vires - Whether defining characteristics of taxis unreasonable - Whether regulation permitting transfer of taxi licences is discriminatory -Whether court can interfere with policy decision of minister - Road Traffic Act 1961, sections 5 and 82 - Road Traffic (Public Service Vehicles) (Licensing) Regulations 1978, article 10 - Road Traffic (Public Service Vehicles) (Amendment) Regulations 1983, article 2 - Road Traffic (Public Service Vehicles) (Amendment) Regulations 1995, article 18.

The High Court (before Mr Justice Geoghegan); judgment delivered 27 March 1998.

Article 2 of the Road Traffic (Public Service Vehicles) (Amendment) Regulations 1983 and Article 18 of the Road Traffic(Public Service Vehicles) (Amendment) Regulations 1995 are not unreasonable, unconstitutional or ultra vires the powers to make regulations granted under the Road Traffic Act 1961. While one might disagree with the view of the Minister for the Environment that being able to radio in to a driver is close to the essential nature of a taxi business it could not be said that this view was wholly irrational or unreasonable. One of the side effects of the way in which taxis are regulated is the existence of a market in taxi licences but there could be no legal obligation on the minister to create or maintain this market and the court has no power to direct the minister to make or introduce particular regulations.

Mr Justice Geoghegan in the High Court so held in dismissing the plaintiffs' claim.

James Connolly SC, Michael Collins SC and Maire Kirrane BL for the plaintiffs; Paul O'Higgins SC and Blathna Ruane BL for the defendant.

Mr Justice Geoghegan said that the plaintiffs, who were owners of hackney licences, were complaining about the regulatory regime governing taxis and hackneys and were seeking damages for breach of constitutional duty owed by the first and second defendants to the plaintiffs. The plaintiffs also sought a declaration that Article 2 of the Road Traffic (Public Service Vehicles) (Amendment) Regulations 1983 is unreasonable and/or unlawful and/or ultra vires the powers to make regulations granted under section 5 and section 82 of the Road Traffic Act 1961 and/or unconstitutional. The plaintiffs sought a similar declaration in respect of Article 18 of the Road Traffic (Public Service Vehicles) (Amendment) Regulations 1995. By regulation in 1983 sub-article 2 was inserted into the Road Traffic (Public Service Vehicles) Regulations 1963. The regulations define taxi by reference to certain types of use of a small public service vehicle and the effect of the new paragraph (f) of sub-article 2 in the 1983 amendment was to add an additional category of use to the categories of use defining a taxi. The new category reads as follows _ "in pursuance of a contract of hiring for the carriage of persons for reward other than in connection with the funeral of a deceased person, initiated or facilitated by means of a telephonic or radio communication with the vehicle while such vehicle is in a public place in a taximeter area." The regulations define a hackney by reference to types of use of a small public service vehicle otherwise than by any of the categories of use of a taxi and therefore the effect of the change was that a hackney owner could no longer make telephone or radio communication with a hackney driver while on a public road in taximeter area. This change, the plaintiffs claimed, represented an unjust attack on their livelihood.

Mr Justice Geoghegan referred to the Supreme Court decision in Mintola v The Minister for the Environment (unreported, 4 June 1997) where the same issues arose in relation to the use of radios and telephones by hackney drivers. The Supreme Court in that case upheld the decision of Mr Justice Costello in the High Court where it was held that the regulations were not ultra vires in the sense that the Road Traffic Act 1961 did not permit the making of the regulations and they were also not ultra vires in the broader sense of being unreasonable, arbitrary or illogical. While that case concerned an application for an interlocutory injunction, rather than a full hearing, Mr Justice Geoghegan said that he would be very slow to come to a different view from that expressed by the Supreme Court and the President of the High Court. In any event having heard all the evidence he came to the same conclusion. Undoubtedly, the inability to use telephones or radios on a public road in a taximeter area is a restriction on business which hackney drivers understandably want removed. However, the minister came to a policy decision that being able to telephone or radio into a driver was so close to the essential nature of taxi business that the right to do so should be confined to the taxi business and made a defining characteristic of a taxi service. While one might come to a different conclusion it could not be said that the minister's decision was wholly irrational or unreasonable so as to justify the court interfering with it.

Article 18(1) of the Road Traffic (Public Service Vehicles) (Amendment) Regulations 1995 provides that a person to whom a taxi licence has been granted can apply to the licensing authority to have the licence continue in force where it is being sold or otherwise transferred. The plaintiffs claimed that this effectively amounted to a discriminatory restriction on the disposal or transfer of hackney licences. They further claimed that this system operated in areas where the relevant local authority had placed a ceiling on the number of hackney and taxi licences which placed a premium on their value. Mr Justice Geoghegan said that there was in fact no power to limit the number of hackney licences, as opposed to taxi licences, but a local authority could impose a moratorium for a period on the granting of hackney licences.

Article 18(1) was enacted to provide for problems arising out of the fact that there is a restriction placed on the number of taxi licences and is completely silent on the issue of the transfer of hackney licences because in the absence of a moratorium on the granting of hackney licences there is no need for such a licence to be kept in force as a new one could be applied for. As there was a restriction on the number of taxi licences in any given area the minister was entitled to regard the position of taxis as different from hackneys in relation to the issue of transferring licences and to make appropriate provision for that.

Evidence was also heard and accepted that the only time during which there was a saleable market in hackney licences was a short period in 1991/92 when there a total moratorium on the granting of such licences. That moratorium was subsequently lifted.

If the plaintiffs wished to complain that there was no provision for the transfer of hackney licences in an area where a moratorium was in force then there was no legal redress open to them as the court could not order the minister to make some new regulation.

Mr Justice Geoghegan said that Article 10 of the Road Traffic (Public Service Vehicles) (Licensing) Regulations 1978 provides that on the death of the holder of a public service vehicle licence, the licence shall devolve on his personal representative. This provision would also include hackneys although it was unclear what happens in practice when the personal representative winds up the administration of an estate in an area where a local authority is operating a moratorium. It appears that if it is not possible for the beneficiary to continue the licence in force then it would remain in the name of the personal representative and would not, therefore, be lost.

Mr Justice Geoghegan said that the minister's duties under Road Traffic legislation are to provide for public transport services. As a side effect of the manner in which taxis are regulated there is a market in taxi licences. However, it could not be said that the minister was under a duty to create or maintain such a market. Similarly it could not be said that the mere fact that regulations concerning hackneys do not produce a similar side effect renders such regulations discriminatory. The plaintiffs claim was dismissed.

Solicitors: H. V. O'Donoghue & CO (Cork) for the plaintiffs; Chief State Solicitor for the defendant.