020-7353-8415 — clerks@ftbchambers.co.uk

Uber: Plying for Hire

Uber drivers not plying for hire

The High Court has today ruled that Uber drivers are not ‘plying for hire’. There is no soliciting of potential passengers.

Uber Driver not soliciting custom?

A key passage in the judgment of Flaux LJ is –

The respondent was waiting in his vehicle until a customer confirmed a booking on the Uber App and he accepted that booking. There was no question of his soliciting custom during the period of waiting. His vehicle did not advertise itself as available for hire nor did he do anything which would have suggested to the public that he was available for hire.

That is only part of the story, and may be thought an anodyne interpretation of what an Uber driver is doing. If, which does not appear to be in doubt, a driver goes to an area with the express intention of advertising his presence there to potential passengers, and his availability for immediate hire; and if he does advertise his presence by logging on to the Driver App, causing his vehicle to be visible on the smartphones of potential passengers; it is difficult to agree with Flaux LJ that there is “no question” of his soliciting custom.

Uber Driver merely waiting for PHV booking?

The judge continued:

The waiting here was of a completely different character to that in Rose v Welbeck. Unlike in that case, the respondent was not waiting to solicit custom from passing members of the public, but he was waiting for a private hire booking via the Uber App. Putting the example given by Lord Parker CJ in Cogley v Sherwood of what would not be plying for hire into the context of the Uber App, if approached in the street, the respondent would have been saying: ‘You cannot have my vehicle, but if you register for the Uber App and make a booking on it, you will be able to get a vehicle, not necessarily mine.’

The central issue

The central issue in the case was expressed by way of the two principal questions which the Chief Magistrate asked the High Court to answer:

(1) As a matter of law did the display of the respondent’s vehicle as the outline of a car on the smartphone Apps of potential passengers constitute an invitation to book the respondent’s vehicle?
(2) As a matter of law did the display of the respondent’s vehicle as the outline of a car on the smartphone Apps of potential passengers constitute an invitation to book an Uber vehicle in the vicinity, even if it were not the respondent’s?

 

Flaux LJ answered both questions with a “no”; but the Judge’s reasoning (particularly in distinguishing Rose v Welbeck only with regard to what might happen if a passenger approached the vehicle) does not seem to me to have fully addressed what I had hoped would be clarified once and for all by this appeal: can there be a soliciting for custom by electronic means, i.e. passing between the Apps of the driver and the passenger?; or  does ‘plying for hire’ require a line-of-sight invitation to “passing members of the public”?

I would answer the first of my questions “yes’, and the second question “no” – but on the face of it, the High Court would seem to be against me.

Gerald Gouriet QC

For the full decision: Reading BC v Mudassar Ali

For a discussion of the decision of the Magistrates’ Court see: Uber Driver not Plying for Hire