Scottish council wins appeal against sheriff’s decision to overturn ‘not a fit and proper’ taxi operator finding

Judges in the Inner House of the Court of Session held that the licensing authority was “fully entitled” to conclude that the respondent was not a fit and proper person to hold a licence and that the sheriff “erred in law” in concluding that the committee’s decision represented an “unreasonable exercise” of its discretion.

Lady Paton , Lord Drummond Young and Lord McGhie heard that in June 2014 the respondent Vicente Bimende applied to the appellants Glasgow City Council for renewal of a licence for a taxi booking office on Great Western Road, Glasgow.

However, the police lodged an objection based on the respondent’s conduct as a director of the limited company, Milngavie & Bearsden Station Taxis Ltd (MBST), which had a licence to operate within East Dunbartonshire council area.

In a letter to the council, the chief constable alleged that drivers working for MBST regularly breached that licence by conveying customers on journeys beginning and ending outwith East Dunbartonshire, contrary to section 21 of the Civic Government (Scotland) Act 1982.

Reference was made to computerised records for 21 22 February 2013, which showed that 43% of the recorded journeys began and ended outwith the East Dunbartonshire area.

Furthermore, the limited company had been dissolved on 19 October 2010, but when East Dunbartonshire Council became aware of that fact and served a letter on MBST on 8 July 2013 requiring them to cease trading with immediate effect, subsequent police investigations on 9 July 2013 and 2 September 2013 found that the company was continuing to trade.

The licensing committee, having heard representations from the police and the respondent’s solicitor, refused the renewal application on the grounds that the respondent was not a fit and proper person to be the holder of a licence.

In its statement of reasons the committee said that Mr Bimendi’s actions in relation to the dissolution of Milngavie taxi “demonstrated a disregard for lawful authority and therefore constituted a weakness in character”.

The committee also noted that while a private car hire driver may utilise one of the exceptions under section 21 of the 1982 Act, it found that Mr Bimendi’s booking office regularly dispatched cars to pick up passengers within an area for which they held no licence and therefore it was “incredible” to suggest that 43% of the journeys involved drivers who were able to rely upon one of the exceptions.

However, the respondent successfully appealed to the sheriff court, after the sheriff ruled that the committee’s decision was “erroneous in law” and should be remitted for reconsideration, as there was “no evidence” that the respondent had knowingly traded without a licence and it was “more likely that the had not known the company had been dissolved and had no licence”.

The council then appealed to the Court of Session on the basis that the sheriff had erred in law, arguing that he failed to address the question of practical onus, on the contrary making a “presumption” in favour of the respondent.

The appellants also argued that in relation to breaches of section 21, the sheriff erred in law by taking the view that the committee had relied on “local knowledge”, when in fact they had relied on information provided by the police which had not been challenged in cross examination.

It was submitted that the onus was on the respondent to explain how it came about that 43% of the journeys in one day started and ended in Glasgow, when the taxi operator was licensed for East Dunbartonshire.

The appeal judges recalled the sheriff’s decision and restored the decision of the committee after agreeing that the sheriff erred in law.

Delivering the opinion of the court, Lady Paton said: “We consider that the sheriff erred in law in that he failed to take into account the practical onus resting on the respondent, and further in that, despite the evidence before the committee, he decided that the committee were not entitled, on the basis of that evidence, to exercise their judgement as they did.

“Prima facie, continuing to trade on the basis of a licence granted to a company which no longer exists (having been struck off the register) is conduct which, in our view, a committee would be entitled to regard as irresponsible and without regard to the law. It was therefore for the respondent to provide an explanation in exculpation for that prima facie failure, supported by evidence if necessary.

“The respondent and his solicitor, when appearing before and addressing the committee, did not do so. In our opinion in those circumstances, the sheriff erred in law by adopting the speculative and exculpatory approach he did.”

The judge added: “We consider that, on the evidence before the committee, it could not be said that no licensing authority acting reasonably could have reached the conclusion they reached… We consider that, on the evidence, the committee were fully entitled to reach the view that the respondent’s conduct constituted significant non compliance with the law, and to conclude that the respondent was not a fit and proper person to be the holder of a licence.”

In relation to the committee’s decision on the breaches of section 21, the judges concluded that it was clear that the committee did not rely upon local knowledge, but relied upon the evidence given by the police.

Lady Paton said: “We therefore consider that the sheriff erred in concluding that the committee relied upon local knowledge and did not identify what local knowledge they had used (thus failing properly to explain their reasons). The sheriff also erred in concluding that the committee had exercised their judgement unreasonably.”