IN THE SUPREME COURT OF JUDICATURE FC3 98/6268/4
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Monday, 13th July 1998
B e f o r e :
THE VICE CHANCELLOR
(Sir Richard Scott)
LORD JUSTICE PETER GIBSON
LORD JUSTICE SCHIEMANN
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CAMBRIDGE CITY COUNCIL
Ex parte SIMON LANE
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(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
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MISS P. BAXENDALE Q.C. (instructed by Richard Buxton, Cambridge) appeared on behalf of the Applicant.
MISS M. COOK (instructed by Legal Services, Cambridge County Council) appeared on behalf of the Respondent.
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J U D G M E N T
(As approved by the Court)
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THE VICE CHANCELLOR: The problems in this case have arisen out of the fact that, when the 1847 Act and the 1889 Act were passed, the means by which citizens of the country travelled by public transport from one place to another were by means of vehicles drawn by horses, or perhaps occasionally the animals may have been mules or donkeys. Licensing regimes were established for the purpose of regulating public transport carried out in that manner.
There then emerged the era of motor vehicles in which we still flounder. Accordingly, since 1889, the date of the last of the two statutes I have mentioned, the licensing regimes have been modified so as to accommodate the requirements of public transport based on motor vehicles. But just as ancient as public transport by horse drawn vehicles has been public transport by means of power provided by human beings. Rickshaws, I suppose, have been in common use for public transport in cities in the East every bit as long as horse drawn transport in this country. The advantages of the wheel were understood in the East no later than they were in this country. At all events, both in the East and in parts of Africa public transport by means of wheeled vehicles drawn or propelled by manpower has been common. But it has not been common in this country.
The appellant, Mr. Simon Lane, has put a good deal of his time and his money into endeavouring to set up in Cambridge what has become known as a trishaw business. A trishaw is a cross between a rickshaw and a tricycle. Like a tricycle it has three wheels, a single front wheel and two rear wheels. Over the rear wheels a compartment in which passengers may sit is suspended. The vehicle is an adaptation of a rickshaw, replacing the individual running on the ground and pulling the vehicle with an individual using the cycle technique to provide the power for propelling the vehicle.
When Mr. Lane decided to set up his trishaw business, he applied for permission to do so from the local authority, the Cambridge City Council. He did so by letter of 1st February 1996 in which he gave the Council some brief details of the operation that he had in mind. He referred to his experience operating pedicabs, so-called, in San Francisco, and said that he intended to run two vehicles in Cambridge during the first year of operation.
On 6th March 1996 a committee of the Cambridge City Council expressed tentative approval for Mr. Lane to have a trial period of one year, in which all concerned could see how his proposed business worked out. The minute of the committee's decision referred to "permission to operate a trishaw (peddle rickshaw) service along a pre-determined route in Cambridge City." I draw attention to the reference to "a pre-determined route". The operation of the service along a pre-determined route or routes was a basic feature of what was then being proposed.
On 15th April there was a meeting which Mr. Lane had with officials of the Council. A letter from the Council, dated 10th April, shortly before the meeting, referred to the agenda for the meeting. The agenda included an item as to "the proposed route and collecting points." It referred also to standards to be met by the driver and the vehicle.
On 31st October 1996 Mr. Lane made a formal application for a licence. His application gave a brief resume of his proposal. It is of interest to notice how it was put: "Tours and point to point journeys will be offered with pricing dependent upon length and content." The last sentence of the resume said this:
"Preselected stopping points will be used during tours to minimize the impact on other road users."
It seems clear that at this point, and indeed subsequently, both the Council and Mr. Lane were proceeding on the footing that the licence that he was asking for, and the licence that the Council were considering, would be a licence to operate an "omnibus" service. I will in a moment, when I come to refer to the relevant statutes in more detail, make clear the significance of the omnibus character of the licence being considered.
On 27th March 1997 the Council granted Mr. Lane a preliminary licence to operate his trishaws from 1st April 1997 down to 30th September 1997. This was the so-called trial period. There were in fact two licences granted. One was a licence for Mr. Lane as the driver of the vehicle, and the other was a licence for the vehicle itself. The driver's licence was entitled "Rickshaw Omnibus Driver's Licence". The vehicle licence was entitled "Rickshaw Omnibus Vehicle Licence". The vehicle licence was expressed to allow him "to stand or ply for hire along a route or routes specified by the Council". That was consistent with a predetermined route or routes for the operation of the proposed service.
In September 1997 the trial period and the licence were extended to mid-November. In August, however, points of dissension had become apparent between Mr. Lane and his advisers on the one hand, and the Council on the other, regarding some of the conditions which the Council had in mind to impose as terms of any full licence that might be granted. That appears from a letter of 28th August 1997 from Mr. Lane's solicitor, Richard Buckton, to the Council. There was a problem regarding permission for Mr. Lane to station a vehicle at Cambridge Railway Station. This was something he wanted to do but the Council were dubious about. More important, however, was that the Council proposed to restrict the vehicle to carrying two persons only. Mr. Lane objected to that. He thought that a couple with a child might want to use his services. He wanted to be able to carry not only two adults but also a child as passengers. Mr. Buckton's letter said:
"There is no provision in the legislation for the licence to restrict the number of persons carried. It is therefore important that you confirm that this purported restriction is of no effect."
Under the heading "conclusion", the letter went on:
"We are satisfied that aspects of the licensing here are ultra vires and must be addressed."
That was a precursor of the judicial review application which was made some months later.
On 10th November 1997 there was a review by the Council of the trishaw scheme. The review refers to the relevant Council committee having approved the principle of licensing trishaws as "licensed omnibuses under the Town Police Clauses Acts 1889 and allowing them to operate on two defined routes in the centre of the City". That reference makes it clear, if it had not already been clear, that the Council was treating the trishaws as "omnibuses" for the purposes of the relevant licensing legislation.
On 4th December 1997 the Council's decision of 10th November was communicated by letter to Mr. Lane. But the licence the Council expressed itself to be minded to grant included the conditions objectionable to Mr. Lane to which I have referred. The consequence was that on 22nd February 1998 a letter before action was sent by Mr. Richard Buckton, Mr. Lane's solicitor, to the Council. The letter objected to the Council limiting the number of individuals who might be carried as passengers in a trishaw. That was not the only point of objection. The letter objected also to the Council's statement that it would hold itself free to issue trishaw licences to others who might apply, competitors of Mr. Lane. Another matter to which Mr. Lane objected was the short duration of the licence. He had expected a licence for at least three years and was not content with a licence for a year only.
On 18th March 1998, following the letter before action that I have mentioned, an application for leave to make an application for judicial review of the Council's decision was made on behalf of Mr. Lane. In April, however, after the judicial review application had been formally made, two further important decisions were made by the Council. First, on 2nd April 1998 the Council prescribed standard conditions, procedures and fees for trishaw driver and vehicle licences. These included that there would be no maximum number of trishaw vehicles or operators, thereby allowing for a degree of competition that Mr. Lane found unacceptable. Vehicle licences and driver licences would be issued for a 12 month period. Trishaw drivers were to pass a knowledge test based on the highway code for cyclists and were to undergo a medical examination. In addition, trishaw drivers would be required to pass a cycling proficiency test. Secondly, on 16th April 1998 the Committee prescribed a maximum number of two passengers for trishaws.
On 14th May 1998 the judicial review leave application was amended to include the Council's two April decisions in the decisions of which judicial review was sought.
It was of great importance to Mr. Lane that the issues between himself and the Council over the terms on which licences to him, his drivers and his vehicles were to be granted should be resolved speedily. He had invested a considerable sum of capital in setting up his business. It was important for its financial success that he should be able to exploit the current holiday season. Cambridge is a place to which many visitors from overseas, as well as from within this country, go in the course of their summer vacations and these were the customers whom Mr. Lane was hoping to attract to his trishaws. If, for whatever reason, he were to be unable to operate his trishaw service during the current holiday season, he feared for the future of his new business and that he might lose the investment that he had committed to it.
Accordingly, special arrangements were made in order to have a speedy trial of his judicial review leave application. The case came for hearing before Richards J on 21st and 22nd May. There were broadly two questions placed before the judge for his decision. First, there was the question whether the Council had power to subject Mr. Lane's trishaws to a licensing regime. The Council had purported to exercise licensing powers under an Act of 1976. When I finish this short recital of the history, I will explain the relevant statutes. Secondly, the judge had to decide whether, assuming that the Council had the power to exercise licensing power over the trishaws, it had done so lawfully, or whether its exercise of the power was in some respect unreasonable and unlawful. The judge granted Mr. Lane leave to apply for judicial review of the question whether the Council had the licensing power which it was purporting to exercise, that is to say, to licence the trishaw operation and to impose as terms of those licences the conditions that it had indicated it would impose. But, having granted leave, the judge ruled against Mr. Lane on that issue. He refused Mr. Lane leave to appeal. As to the other question, namely, whether assuming that the Council had the licensing power it had exercised it reasonably and lawfully, the judge refused leave to apply for judicial review. Mr. Lane has not pursued in this court that second issue. He has sought from us leave to appeal on the first issue; that is to say, the vires issue, as Miss Baxendale has described it in her skeleton argument. The urgency of the matter is no doubt even sharper now in nearly mid-July than it was in May when the matter came before Richards J. Miss Baxendale has therefore urged us, if we are minded to grant leave to appeal, to proceed to determine the appeal here and now, so that, if Mr. Lane is successful, he may grab what is left of the holiday season before it is too late.
So the issue before us on this appeal is confined to the issue of vires, namely, whether the Cambridge City Council had the power under the 1976 Act to license Mr. Lane's proposed trishaw service and impose conditions of the sort that they did impose.
I must now come to the relevant statutes. I have already indicated the problem about them. Each of them was designed to deal with vehicles quite different from Mr. Lane's trishaws. I must start with the Town Police Clauses Act 1847. This Act contains provisions in sections 37 to 58 relating to the licensing and regulation of what are described as hackney carriages. Hackney carriages were things well known to those who inhabited this island in 1847. Broadly speaking, they were horse drawn carriages available for hire to convey individuals from point A to point B, whether in a city or further afield. They performed much the same function that today motorised taxis perform. Section 37 of the 1847 Act gave power to commissioners (whose function has been taken over by local authorities) to "licence to ply for hire within the prescribed distance . . . . hackney coaches or carriages of any kind or description adapted to the carriage of persons. . . . " The next section, section 38, is of critical importance in this appeal. It describes what is meant by "hackney carriages". It is in these terms:
"Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance. . . shall be deemed to be a hackney carriage within the meaning of this Act; and in all proceedings at law or otherwise the term 'hackney carriage' shall be sufficient to describe any such carriage: ...."
I pause there. Up to that point in section 38 there would seem to me to be no doubt whatever but that Mr. Lane's trishaws would fall within the definition of "hackney carriage". A trishaw is a wheeled carriage of some form or construction, and is to be used either in standing or in plying for hire in the streets of Cambridge. If that was all the section had said, the trishaws would, in my judgment, have been hackney carriages within the meaning of the expression in the 1847 Act. But the section continues with a proviso:
"Provided always, that no stage coach used for the purpose of standing or plying for passengers to be carried for hire at separate fares, and duly licensed for that purpose, and having thereon the proper numbered plates required by law to be placed on such stage coaches, shall be deemed to be a hackney carriage within the meaning of this Act."
The question arises in this appeal (in the event, it may be the critical question) whether, within the meaning of the language used in the 1847 Act, Mr. Lane's trishaws can be regarded as "stage coaches". One only has to put that question to have an almost irresistible urge to start laughing. Whatever one may envisage as a stage coach, it will be a long way removed from Mr. Lane's trishaws. But Miss Baxendale has asked us to concentrate, not on the concept of the stage coach, but rather on the part of the proviso that refers to passengers being carried "for hire at separate fares". She says that, if a wheeled vehicle is standing or plying for passengers to be carried for hire at separate fares, it is within the proviso, and therefore excluded from the regime of the 1847 Act, whether or not it is what one would have in mind as a stage coach. I will come back to this question after I have described the other relevant statutory provisions.
Staying with the 1847 Act, I should refer to section 45, which imposes a criminal penalty if a proprietor of a hackney carriage allows it to ply for hire without having obtained a licence, section 46 under which the driver of a hackney carriage who has not been licensed under the Act commits an offence, and section 68, which gives the regulatory authority (the commissioners in the Act but now local authorities) power to make byelaws for a number of specified purposes relating to the regulation of hackney carriages, their owners and drivers.
Some of the other sections of the 1847 Act will strike a chord when the rules applicable to taxis operating in London today are considered. There is a section requiring the driver of a licensed hackney carriage to drive to any place within the prescribed distance that he may be asked to drive to. If he does not do so he commits an offence. There is a section imposing a penalty on the proprietor or the driver of a hackney carriage which has been hired "who permits or suffers any person to be carried in or upon or about such hackney carriage during such hire, without the express consent of the person hiring the same". So when you hire your hackney carriage, the driver cannot make you share it with a load of other people who come along clambering to get in.
The next Act which I must mention is the Town Police Clauses Act 1889. Miss Baxendale has drawn our attention to some passages in Hansard at the time that the Act was before Parliament, which explain the problems that had arisen under the 1847 Act that the 1889 Act was designed to remedy. The problems arose out of the proviso relating to the hire of vehicles for the carriage of passengers at separate fares, the stage coach proviso. Since 1847 there had, apparently, been a great growth in the use of coaches, known as omnibuses, for taking passengers along pre-determined routes in cities and towns charging separate fares for each stage of the route. These omnibuses did not use prescribed routes but went along whatever routes the proprietors might choose. It was apparently held - the cases that so held have not been unearthed, but there are references to these decisions in some of the Hansard speeches - that these omnibuses fell within the stage coach proviso in section 38 of the 1847 Act and so were exempt from the licensing regime established by the 1847 Act. The reason was that separate fares were being charged to the passengers for the stages of the particular routes on which the omnibuses were travelling. The passengers got on the omnibus at a stopping point and paid a fare for travel to the stopping point of their destination. This service was unlicensed. It did not fall within the licensing regime imposed by the 1847 Act on hackney carriages. It fell within the stage coach proviso. The situation, with the proliferation of omnibuses plying here and there to the annoyance of citizens in quiet neighbourhoods, was in sore need of remedy; hence the 1889 Act. Section 3 of the 1889 Act defines the term "omnibus" as follows:
"The term 'omnibus' . . . shall include -
Every omnibus, char-a-banc, wagonette, brake, stage coach, and other carriage plying or standing for hire by or used to carry passengers at separate fares, to, from, or in any part of the prescribed distance;...."
That was a comprehensive definition designed to catch every form of wheeled vehicle that was going to be used for carrying passengers at separate fares along some pre-determined route; in effect, any vehicle fulfilling the function of the buses that we now know. Section 4 of the 1889 Act amended a number of the sections of the 1847 Act by providing expressly that the term "hackney carriage" when used in specified sections of the earlier Act should be taken to include every omnibus. Subsection (1) was in these terms:
"The several terms 'hackney carriages', 'hackney coach', 'carriages', and 'carriage' whenever used in sections thirty-seven, forty to fifty-two (both inclusive), fifty-four, fifty-eight, and sixty to sixty-seven (both inclusive) of the principal Act (that is the 1847 Act) shall, notwithstanding anything contained in section thirty-eight of that Act, be deemed to include every omnibus."
The effect of this statutory amendment of the 1847 Act was to produce in the 1847 Act two meanings of the expression "hackney carriage", one meaning applicable to some sections, another meaning applicable to other sections. In the sections of the 1847 Act specified in section 4(1) of the 1889 Act, the expression "hackney carriage" included every omnibus. Section 4(1) said so. But in every other section, every section other than those specified in section 4(1) of the 1847 Act, the expression "hackney carriage" was left with its limited meaning as set out in section 38, i.e. as including "wheeled carriages of every description", but excluding stage coaches on which passengers were carried at separate fares. The result of section 4(1) was that the licensing regime established for hackney carriages under the 1847 Act was able to be exercised also in relation to every omnibus.
I should refer also to section 6 of the 1889 Act. That section empowered local authorities to make byelaws for the purpose of regulating omnibuses and their owners and drivers. Section 68 of the 1847 Act had conferred a comparable power so far as hackney carriages, as defined in section 38, were concerned. Section 68 was not one of the sections of the 1847 Act in which the expression "hackney carriages" was deemed by section 4(1) of the 1889 Act to include every omnibus. The result of the 1889 Act was that, on the one hand, the licensing power in relation to hackney carriages conferred by section 37 applied to every omnibus, but, on the other hand, two separate byelaw making powers remained side by side, section 68 of the 1847 Act, which applied to hackney carriages in section 38, and section 6 of the 1889 Act which applied to omnibuses as defined and was, therefore, restricted to vehicles in respect of which separate fares were to be charged.
The provisions of the 1847 Act in relation to hackney carriages, and the whole of the 1889 Act, were repealed by provisions in the Road Traffic Act 1930, insofar only as they related to public service vehicles. The expression "public service vehicles" covered most motorised vehicles carrying passengers for hire, but it excluded motor taxi cabs. The effect of this repeal was that (with an exception which is not material for present purposes) the 1889 Act only applies to non-motorised vehicles, i.e. vehicles pulled by horses, donkeys, mules or other animals on the one hand, or pulled or driven by individuals, such as Mr. Lane with his pedal power, on the other hand, but that the 1847 Act continues to apply to taxi cabs, whether motorised, pulled by animals or propelled by pedal power.
That is the background leading up to the enactment of the Local Government (Miscellaneous Provisions) Act 1976 ("the 1976 Act"), to which I have already made some reference. This Act contains a number of provisions relating to the licensing of hackney carriages. Section 47(1) provides that:
"A district council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the district council may consider reasonably necessary."
Section 37 of the 1847 Act is the licensing section. What section 47 of the 1976 Act was doing was giving an additional power to the licensing authority to attach conditions to the grant of licences under section 37. The subsection refers to "the grant of a licence of a hackney carriage under the Act of 1847". The first question at issue is whether the reference to "a licence of a hackney carriage under the Act of 1847" means a licence of a hackney carriage in the sense in which the 1847 Act used the expression, or means a licence of a hackney carriage in the expanded meaning produced by the 1889 Act.
I should refer also to section 59 of the 1976 Act. Section 59 is headed "Qualifications for drivers of hackney carriages". Subsection (1) says this:
"Notwithstanding anything in the Act of 1847, a district council shall not grant a licence to drive a hackney carriage -
(a) unless they are satisfied that the applicant is a fit and proper person to hold a driver's licence; or
(b) to any person who has not for at least twelve months been, and is not at the date of application for a driver's licence, the holder of a licence granted under [the Road Traffic Acts] ... authorising him to drive a motor car."
That is a clear indication that Parliament, in enacting the 1976 Act, had in mind motorised hackney carriages. But the 1847 Act, which still applies to the licensing of motorised taxi cabs, applies also to hackney carriages as defined, which includes vehicles that are not motorised. And the 1889 Act, which enabled licences under section 37 to be granted in respect of omnibuses which plyed for passengers who would pay separate fares for the stages they travelled, still applies to non-motorised omnibuses which plyed for passengers on that footing. Parliament plainly overlooked the possibility of there being non-motorised hackney carriages when it passed the 1976 Act and enacted that a licence to drive a hackney carriage was not to be granted unless the applicant held a licence to drive a motor vehicle. But that is what the Act says and that unfortunately is what has to be given effect to.
The Cambridge City Council, when it was considering Mr. Lane's application for licences for the purpose of his trishaw operation was plainly of the opinion that sections 47 and 59 of the 1976 Act applied. Therefore, they regarded themselves as precluded by section 59 from granting a trishaw driver's licence other than to an individual who held a Road Traffic Act licence to drive a motor vehicle. They had received legal advice that that was the position. Whether that was the position is one of the main issues in this case.
I should turn to the definition section in the 1976 Act, section 80, for the purpose of seeing how the expression "hackney carriage" is defined. There are other definitions I should refer to before I come to the critical one. "The Act of 1847" is defined as meaning "the Town Police Clauses Act 1847 with respect to hackney carriages." And "hackney carriage" is defined as having "the same meaning as in the Act of 1847." I should refer to subsection (3) of section 80, which provides that:
"Except where the context otherwise requires, any reference in this Part of this Act to any enactment shall be construed as a reference to that enactment as applied, extended, amended or varied by, or by virtue of, any subsequent enactment including this Act."
Miss Baxendale, noticing the definition of "hackney carriage" as having "the same meaning as in the Act of 1847", has taken us carefully through a number of the sections of the 1976 Act where the expression "hackney carriage" appears, for the purpose of submitting that the only sensible meaning that can be given to the expression is the meaning attributed to it in section 38 of the 1847 Act, unaffected by the 1889 Act. There are undoubtedly sections, as Miss Cook, counsel for the Cambridge City Council, has accepted, where that must be so. An example, to be found in the section 80 definition of "driver's badge", which is defined as meaning, "in relation to the driver of a hackney carriage, any badge issued by a district council under byelaws made under section 68 of the Act of 1847". Section 68 of the Act of 1847 is not one of the sections specified in section 4(1) of the 1889 Act. So "hackney carriage" in the definition of "driver's badge" must mean, as Miss Baxendale pointed out, hackney carriage as defined in section 38, and as excluding, therefore, stage coaches caught by the proviso to section 38.
Miss Baxendale referred to a number of other sections for the purpose of making the same point. I do not need to go through them all. In most of them, in my judgment, the point she made was a sound one. In most of those to which she drew attention the expression "hackney carriage" could only mean "hackney carriage" as defined in section 38 and without the "omnibus" extension made by the 1889 Act.
Miss Cook, on the other hand, has submitted that the effect of the 1976 Act was to produce two meanings for "hackney carriage" when used in the 1976 Act. She contended for one meaning where use of the expression in the 1976 Act related to sections of the 1847 Act expressly specified in section 4(1) of the 1889 Act. Here "hackney carriage" would include every "omnibus". She contended for a narrower meaning where use of the expression "hackney carriage" did relate to other sections of the 1847 Act. Here, Miss Baxendale submitted that trishaws were not licensable under section 37 of the 1847 Act, and, accordingly, were not subject to sections 47 and 59 of the 1976 Act. She submitted that trishaws were within the proviso to section 38 of the 1847 Act. So, "hackney carriage" would exclude any vehicle that came within the proviso to section 38.
I find myself doubtful whether Miss Cook's construction can be correct. A definition section in a statute is intended to produce certainty as to the meaning of expressions. One would not normally expect to construe a definition so as to have alternative meanings by implication; for they are certainly not explicit. In my view, the intention of Parliament in defining "hackney carriage" as having the same meaning as in the Act of 1847 must have been to attribute to it the same meaning throughout the Act. If that is right, the meaning must be the meaning which section 38 bears without incorporating into it the amendment made by section 4(1) of the 1889 Act. That conclusion is contrary to that expressed by the judge below. But it is not determinative of the appeal because it simply brings one back to sections 37 and 38 of the 1847 Act. I return to the proviso to section 38:
"Provided always, that no stage coach used for the purpose of standing or plying for passengers to be carried for hire at separate fares, . . . shall be deemed to be a hackney carriage."
I am unable to accept that Mr. Lane's trishaws are stage coaches for the purposes of this proviso. I accept for present purposes that his trishaws may be vehicles "standing or plying for passengers to be carried for hire at separate fares". I would simply say of that that the evidence is not very satisfactory. That may be because attention was not paid to this point at the time that the evidence was originally being prepared. But accepting in Mr. Lane's favour that his trishaws are vehicles standing or plying for passengers to be carried for hire at separate fares, they are not, in my judgment, stage coaches. The approach which Miss Baxendale urged on us was that "stage coach" should be treated as covering every wheeled carriage, of whatever character, used for the specified purpose, namely, carriage for hire at separate fares. I am unable to accept that. If that was what Parliament meant, there was no reason why Parliament should in the proviso have singled out stagecoaches from the other wheeled carriages referred to in the "hackney carriage" definition. I remain of the view that I formed on a preliminary footing when I first read section 38, that, whatever a "stage coach" might include, it did not include a trishaw, the combination of rickshaw and tricycle, which is the vehicle by means of which Mr. Lane desires to offer the service to the public in Cambridge. Nor, for that matter, would a rickshaw be a "stage coach".
There are a number of difficulties that that conclusion as to the meaning of "hackney carriage" may give rise to. But I do not think that they are as serious as Miss Baxendale's forceful submissions suggested. Problems in regard to individuals who flag down Mr. Lane's trishaws and demand to be taken somewhere off the prescribed route do not seem to me to be likely to be practical ones. If Mr. Lane makes it clear that he is plying for hire and is licensed to ply for hire only on a prescribed route, he will have a more than reasonable excuse for declining to carry passengers off the prescribed route. The qualification of "without reasonable excuse" is the answer to that difficulty and to others of a similar character that were proposed by Miss Baxendale.
Be that as it may, I have come to the conclusion that Mr. Lane's trishaws are within the definition of hackney carriage in section 38 and are not excluded by the proviso. They are, therefore, licensable under section 37 and, if that is right, sections 47 and 59 of the 1976 Act apply to them. That answers, in my judgment, the question of vires which is the basis of this appeal. For these reasons I would dismiss the appeal.
LORD JUSTICE PETER GIBSON: I agree.
LORD JUSTICE SCHIEMANN: I also agree.
Order: Appeal dismissed; order nisi against legal aid fund with nil contribution; application for leave to appeal to the House of Lords refused.
( Order not part of the judgment of the court)