Cummings, R (on the application of) v Cardiff County Council

J U D G M E N T

1. LORD PHILLIPS: Lord Justice Scott Baker will give the first judgment.

2. LORD JUSTICE SCOTT BAKER: This is an appeal against a decision of Moses J on 27 October 2004 refusing Mr Cummings judicial review of a decision of the Cardiff County Council of 7 October 2003 to remove the restriction on the number of hackney carriage licences in Cardiff.

3. The legal background can be quite shortly stated, and in summary is as follows. The power to grant licences for hackney carriages to ply for hire is in section 37 of the Town and Police Clauses Act 1847 as amended by the Transport Act 1985. It provides:

"The Commissioners may from time to time licence to ply for hire... hackney coaches or carriages of any kind or description adapted for the carriage of persons."

Section 40 provides:

"Before any such licence is granted a requisition for the same, in such form as the Commissioners from time to time provide for that purpose, shall be made and signed by the proprietor or one of the proprietors of the hackney carriage in respect of which such licences is applied for..."

There then follows detailed rules in relation to the form of requisition.

4. Section 16(b) of The Transport Act 1985 provides:

"... the grant of a licence may be refused, for the purpose of limiting the number of hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of hackney carriages (within the area to which the licence would apply) which is unmet."

It should be noted that it is the vehicles that are licensed and that firms or individuals seeking a licence have to sign an application called a requisition.

5. Section 47 of the Local Government (Miscellaneous) Provisions Act 1976 gives councils power to attach conditions to licences. There is no statutory restriction on the number of licences that may be issued, but the power to refuse to grant a licence is limited by section 16(b) of The Transport Act 1985.

6. The legal position was summarised succinctly in R (on the application of Maud) v Castlepoint Borough Council [2002] EWHC 273 (Admin) in the following terms:

"(a) Before a local authority can refuse an application for a vehicle licence in order to limit the number of licensed taxis, they must be satisfied that there is no significant demand for the services of taxis, within the area to which the licence would apply, which is unmet;

(b) If the local authority are thus satisfied, a discretion, as opposed to an obligation, arises to refuse the grant of a licence; but

(c) If the local authority are not so satisfied, they cannot refuse to grant a licence for the purpose of limiting the number of licensed taxis and are thus obliged to grant it."

7. The appellant is proprietor or part proprietor of a number of companies operating taxis in Cardiff. In total he controls just over 12 per cent of the licences in issue - 58 eight vehicles out of a total of 480.

8. The Council's decision, if maintained, to remove the limit on the number of licences would have the effect of destroying the secondhand market in licences which is said to be in the region of £20,000 per licence.

9. The present application for judicial review, which was refused by Moses J in October 2004, is unusual in that it follows an earlier application for judicial review in respect of an earlier decision by the same Council in January 2003. In short, the appellant's argument is that deficiencies in the Council's decision-making in January 2003 were carried forward to and tainted the November 2003 decision.

10. What happened in January 2003 was this. On 14 January the Council agreed to issue six licences, each eligible individual being limited to one licence by chance through a lottery. The basis of the decision was a report of the Chief Regulatory Services Officer dated 23 September 2002. That report was based, in part, on a survey of demand commissioned by the Halcrow Group Ltd. The draft report had been made available in November 2002 for comment by those operating taxis. Consideration of that report was deferred on 10 December 2002 to give the trade a further opportunity to submit a consensus opinion. The trade consultation response was dated 17 December 2002, and showed that the trade was against a lottery.

11. The Halcrow report advised the Council that if they were going to pursue the option of issuing six additional licences there were three options for allocation: (1) by the length of time that the applicant had been on the waiting list (a comparable example being operated by the Selby District Council); (2) on a merits-based system against some predetermined set of criteria such as was operated by the Manchester and Leeds City Councils; and (3) by a lottery system operated by the Southampton City Council.

12. The Council decided to follow the lottery option. That decision was challenged by the appellant on three grounds: (1) the report to the Committee misled members by suggesting that no waiting list was available to form a basis for allocating licences; (2) it was irrational to use a lottery when there was a waiting list available; and (3) that the Committee was misled into thinking that the applications were of equal merit, they should have allowed representations as to the merits of, in particular, the appellant's applications.

13. The report of the Regulatory Services Officer to that committee began, in the first paragraph, by setting out briefly the background:

"1.1 At its meeting of 6 February 2001 the Committee considered the level of demand for the services of hackney carriages in Cardiff in accordance with section 16 of the Transport Act. The Committee resolved to authorise the Chief Regulatory Services Officer to advertise for expressions of interest from organisations willing to survey the level of demand for the services of Hackney Carriages in Cardiff and to appoint consultants and report the results of the survey to a future meeting of this Committee.

1.2 A progress report on the appointment of consultants was noted by the Committee at its meeting of 6 November 2001.

1.3 This report is to provide members with details of the result of the survey. Consideration of the report was deferred by the Committee at its meeting of 10 December 2002 to enable trade members to have an opportunity to submit a consensus opinion on the proposals in the report by 20 December 2002."

In the section at paragraph 3 headed "The Demand Survey", it is recorded that Halcrow were awarded the contract as it was clear to the assessing group that the methodology proposed by Halcrow, as well as effectively addressing the Section 16 requirements, would provide the most detailed information for the purposes of the Local Transport Plan and provide best value for the authority. The final report and a copy of its executive summary was annexed at appendix A.

14. The report at paragraph 4 continues by saying this:

"The removal of the limit on the number of hackney carriages would have a major impact on service provision and it is clear from the consultant's report that there are no clear benefits arising from the removal of the restriction."

I shall turn in a moment to look in a little more detail about what Halcrow had to say in that regard. But continuing with the Regulatory Services Officer's report for the present, it records at paragraph 4.4:

"While the authority does keep a record of applicants and companies who have expressed an interest in obtaining hackney carriage licences, this has been largely a mechanism for assessing the level of demand and it is restarted following each release of licences. As many people would have expressed an interest previously prior to the creation of the new records and who would still wish to apply for the issue of the new licence, it is not equitable to use the existing recording mechanism in the way suggested by the consultants. It is therefore proposed that the use of a recording system to register expressions of interest for further licence releases is no longer necessary and be discontinued. The two other options to consider would therefore be the use a lottery system or establish appropriate criteria against which to consider the merits of each individual applicant."

The judge found, and I entirely agree with him, that this paragraph was an inadequate description of the previous history with regard to the so-called waiting list. The report continues:

"A lottery system would have the benefit of simplicity. It would be possible to invite applicants from existing licence holders for the grant of a vehicle licence and then to draw the applicants' names at random. Such a system would operate entirely at random with all applicants having exactly the same opportunity of being granted a licence. The holders of all hackney carriage/private hire driver licences and the holders of all hackney carriage proprietor (vehicle) licences would be invited to apply. Each eligible individual or company would be able to apply for one licence.

4.6 The identification of appropriate criteria against which to match potential proprietors could proved problematic in that the criteria by their nature would provide a bar to otherwise suitable applicants. If the length of time a licence had been held was used for example, this would rule out many applicants who would otherwise make perfectly good proprietors. The aim of the authority is to protect the public and all existing licence holders should already meet any criteria ensuring they are fit and proper persons. It is recommended that the distribution of licenses would most fairly be accomplished by the use of a lottery system."

The report at paragraph 16 refers to introduction of free entry to the hackney market and records:

"To examine the possible effects of de-restricting the hackney carriage market it is useful to examine other authorities that have gone down this particular route."

There are then five case studies relating to Coventry, Leicester, Halton, South Ribble and Worcester. Then there is a reference to the possibility of phased de-restriction at paragraph 16.3.7, and the following summary at 16.3.8:

"There is no clear indisputable trend from the experience of these authorities. However the following points can be made:

• de-restriction need not lead to rapid and uncontrollable increase in hackney licences if strict controls on vehicle type are maintained;

• if a rapid increase does occur it can be difficult or impossible to reverse the trend in licences;

• de-restriction does not eliminate problems associated with illegal plying for hire;

• de-restriction does not eliminate peak time passenger delay;

• de-restriction may nevertheless improve the situation with regard to peak time passenger delay and illegal plying for hire;

• de-restriction may place an urgent obligation on the authority to increase rank capacity; and

• de-restriction in Cardiff may not lead to a large increase in hackneys due to the relatively high level at which the limit is currently set."

So it appears, from an admittedly cursory examination of the report, that the Halcrow report was not advising the Council firmly against the restriction.

15. In the result, the Halcrow report made a number of recommendations. It is only relevant to mention the first of them, which is this: to increase the size of the hackney fleet by six to 486 to eliminate the significant unmet demand identified. Retain entry control at the level of 486. Three suggested mechanisms for releasing licences are given in 17.3 below. Those are the ones to which I have already referred.

16. It seems to me that the focus of the January meeting was on how to allocate extra licences rather on whether the issue of licences should be derestricted. That latter subject was not considered with a list of all the arguments for and all the arguments against as it was the following October.

17. The rejection of the waiting list criteria was crucial to the decision to meet the additional allocations by lottery. The appellant's case was that there was a perfectly good waiting list that could have been used and that consideration should have been given to it. Obviously the waiting list option was something that was very much in the appellant's interest because he had control over the first eight at the top of the list.

18. We were told by Mr Bromley-Martin QC, who has appeared for the appellant, during the course of argument that in 1998 the appellant also had a number of slots at the top of the waiting list but he was not allocated all the licences because, having allocated some to him, the Council then went to the next applicants down the line. Mr Bromley-Martin submits that it would have been perfectly possible for the same procedure to have been adopted here. What the appellant complains about is that the waiting list option, which was one of three real options, should at the very least have been considered properly by the Committee on the basis of full information.

19. In November 1998 the Committee learned that some of those who had been selected as recipients of licences had been unable to raise the necessary finance. It then recorded that there were other applicants on the waiting list, and resolved to offer the eight remaining licences in order of receipt of application, subject to the adjustment with regard to the appellant that I have just mentioned.

20. There was indeed a waiting list of those who had applied since 29 April 1988. The waiting list is to be found at page 623 of the bundle where the numerous names on it can be seen between pages 623 beginning on 30 April 1998 right up to 13 January 2003, the total number of names being 159.

21. Moses J dealt with the history of the waiting list and it is unnecessary for me to go in any great detail into it. He found first of all that on every occasion, save in 1993 when there were more applicants than licences, at some stage in the process of allocation the applications had been invited in date order; and second, that there was a waiting list in existence which showed the order in which the applications had been received since April 1998.

22. The judge found that the January Committee did not accurately have before it the use to which the waiting list had been put, and that it did not provide a fair and sufficient foundation on which the waiting list could be rejected. The judge, however, rejected the appellant's other grounds of challenge to the January decision. But since the decision of January 2003 had already been rescinded, the misleading impact of the report about the waiting list and the decision to use a lottery was only of relevance in so far as it impacted in the October 2003 decision to de-limit licences. That is the decision now underlying this appeal.

23. I turn next to the history after the January decision. On 30 January the appellant wrote to the Council claiming that the decision was unlawful and asked for the decision to use a lottery to be revoked. He threatened proceedings for judicial review. The lottery was not in the event due to take place until April 2003. The appellant obtained an interim injunction after commencing judicial review proceedings on 4 April. On 8 April the Committee resolved to defer the lottery in the light of the application for judicial review and to pursue the option of removing numerical limits on the issue of licences. It resolved to consult the trade and obtain a report for future consideration.

24. The minutes of the meeting are, in my judgment, of some importance and they are to be found at page 700 of the bundle. At page 701 the minutes record that the Chief Regulatory Services Officer advised that, following a notice in the Western Mail and South Wale's Echo on 31 January 2003, 512 valid applications had been received. It was therefore clear that there was a large demand from licence holders for the issue of a licence. The minutes continue:

"The Chief Legal Services Officer informed the Committee that judicial review proceedings had been commenced by Mr Carl Cummings in respect of the Committee's decision to grant vehicle licences by means of a lottery, rather than the 'established waiting list'; and in respect of some of the proposed conditions for licensing. The Officer confirmed that the Administrative Court on 7 April, 2003, as a preliminary to the Judicial Review, had issued an injunction to prevent the Committee from issuing new vehicle licences, in order to maintain the status quo.

The Chief Regulatory Services Officer advised that in view of this [the] Committee defer the issue of licences by lottery, and in view of the fact that a large number of licence holders had indicated that they would wish to be considered for Hackney Carriage Vehicle Licences, that this was an indication that there was a level of demand for such licences. In addition, he advised that a letter had been received from a local vehicle operator requesting that in the interest of the trade, and to avoid any harmful effects of monolopy ownership, that the Committee consider the option of the abolition of numerical controls on the issue of Hackney Carriage Vehicle Licences. Such a decision would have an impact on the trade and it would therefore be necessary to undertake a consultation exercise with all members of the trade."

The resolution that followed was first, the proposal to undertake a lottery be deferred; and second, that the option of removal of numerical limits as a means of satisfying applicants' demands be pursued and consultation with the trade on its views be undertaken, with the report being submitted to a future meeting of the Committee outlining these views and possible appropriate preconditions prior to any further progress of the matter.

25. In its acknowledgment of service the Council had sought an adjournment of the judicial review proceedings on the basis that a decision of the Committee was likely to render the proceedings academic. The decision to consider de-limiting the number of licences and to go for consultation before doing so is not challenged by the appellant. Although Mr Bromley-Martin suggests that the real reason the officials recommended this course and that the Council followed the recommendation was to overcome the difficulty caused by the judicial review proceedings.

26. In my judgment, the decision of the Council in April 2003 was entirely justified in the light of (i) the 512 applications; and (ii) the potential harmful effects of monolopy ownership referred to in the letter from the local vehicle operator and quoted in the minutes. Furthermore, the Council had not, at any rate in the recent past, taken a considered decision balancing up all the pros and cons whether de-limitation was a good or a bad thing from the viewpoint of the issue of hackney carriage licences in their locality.

27. A decision whether or not to de-limit is entirely separate and independent of a decision upon how to allocate licences within the context of limitation. On the face of it, therefore, in the absence of bad faith or bias on the part of the authority it is difficult to see how the later decision can be tainted by any deficiencies in the earlier decision. No bad faith or bias is alleged in the present case, although at times Mr Bromley-Martin seemed in the course of his submissions to come close to it without actually formulating any allegation. Let me say at once that there is no evidence that any official or counsellor behaved other than honestly and fairly. In so far as anything was misrepresented at either of the meetings it seems to me that it was entirely innocent.

28. The judge in his judgment referred to paragraph 4.4 of the report to the Committee which preceded the decision of 8 April. Paragraph 4.4 reads as follows:

"In view of the demand for licences and the notification of a proposed Judicial Review, members may wish to consider if the imposition of numerical limits is still appropriate. Deregulation would provide Dolmans' clients (the claimant's solicitors) with the opportunity to obtain a licence from the authority without the need for a lottery system as any person could make an application. As all persons would be free to obtain a licence, this would remove the basis for the Judicial Review."

Paragraph 8.8 of the report recommended consideration of the option of removal of numerical limits.

29. There then followed a period of consultation. A letter was sent to all holders of vehicle licences and driver licences in April 2003 inviting views by 30 May 2003. Sixty three of those responded favoured de-limitation, whereas 167 were against. The Chief Regulatory Services Officer made a written report dated 12 August 2003 which was before the Committee on 7 October that made the questioned decision. In it he set out the background resolution of the Committee on 14 January, the history of the earlier judicial review application and the results of the consultation with the trade. He continued at page 417:

"Two hundred and forty one copies of the consultation letter were returned with comments. Eleven letters detailing comments were also received."

Then a little later:

"The responses to the consultation letter are often complex and detailed and it is not therefore possible to provide a complete summary of all the views given. Not all the responses were relevant to the question of delimitation but of those who expressed a view 66 were in favour and 167 were against the delimitation of hackney carriage vehicle licences."

He then went into further detail about letters and petitions, some supporting one view, and some the other, then summarised the points that had been made in favour of each contention. Those that opposed the delimitation of numbers had made the follow points:

"• There are currently enough vehicles to meet the level of demand

• It will lead to increased traffic congestion in the city centre in particular which is compact and already congested

• It will lead to a further increase in the unacceptably high numbers of vehicles using taxi ranks resulting in further obstruction to traffic flows

• The increased numbers of vehicles and extensive waits at taxi ranks will increase pollution

• There will be an over supply of vehicles to meet demand

• It will wipe out financially many owners who have taken out loans in order to finance provision of the service to the public

• There will be a reduction in standards as the level of income will diminish and vehicle maintenance may suffer

• Drivers will be required to work longer hours putting the public at risk

• It will encourage part time working as people will only be able to earn a living for a few hours on Sunday and Monday morning

• Many existing drivers will be unable to continue in the trade and their experience will be lost

• When the numbers were increased in 1978 from 100 to 378 this ruined the trade and licences were handed back because they could not earn a living

• Drivers will not longer be using radio systems

• Fleet operators will increase their fleets to the detriment of the trade

• Delimitation would have the side effect of making a condition as to disabled accessible vehicles unlawful

• Delimitation should be delayed to await a Report from the Office of Fair Trading (see paragraph 3.4)."

Paragraph 3.4 says:

"The Office of Fair Trading is currently investigating the taxi trade. The Taxi Study being carried out is to examine whether consumers are best served by the regulations that restrict the number of taxi licences available in half the local authorities in England and Wales and will identify any other competition or consumer welfare issues. The investigation is expected to be completed by summer of this year."

There was somewhere a suggestion that the Committee decision should be deferred until the OFT report, but that suggestion was not followed. The OFT report eventually arrived later in the year and the recommendation at 1.16 is in these terms:

"We therefore recommend that the legislative provisions allowing licensing authorities to impose quantity controls should be repealed. In the meantime, we recommend that Local Authorities with quantity controls remove them."

30. We were told by Mr Bromley-Martin that that report has been rejected by the relevant Parliamentary Committee considering the matter, but it is of note that within the evidence the Council record that had it not been for these judicial review proceedings the question of de-regulation would in any event have been referred to the appropriate Council Committee for consideration of the Office of Fair Trading's observations.

31. Returning to the Chief Regulatory Services Officer's report, he continued at paragraph 2.9 with the arguments in favour of delimitation:

"• The demand for hackney carriages will increase as more become available and the numbers should be left to market forces

• Proper enforcement and regulation will maintain quality standards

• The provision of more vehicles will assist in addressing the excess demand on Friday and Saturday nights

• Drivers should be able to obtain vehicles without having to pay high rents

• The workings of the market will reduce the high level of fares passengers are currently charged

• The increased number of vehicles will reduce the restrictive practices adopted by some existing hackney carriage drivers

• Many local authorities do not restrict the numbers issued

• Cardiff is an expanding city and more hackney carriages are needed

• It will assist in reducing violent crime at the weekend by transporting people home rather than leaving them on the streets

• It will stop unlicensed vehicles picking up by reducing the need for them

• Need to release a limited number of licences in the first instance."

32. The report went on to say that many Local Authorities do not restrict the number of licences; only 45 per cent of authorities do that. It also said that there had been consultation with a gentleman called Mr Jim Button of the Public Health and Legal Information Unit who is said to be an acknowledged expert in taxi licensing. The report concluded with the following recommendation at page 423:

"9.1 It is recommended that the matter be considered.

9.2 Should it be considered appropriate in the circumstances which exist in Cardiff to delimit the number of hackney carriage vehicle licences then it is recommended that:

a. the decision of the Committee of 14 January 2003 authorising the issue of six licences by way of lottery be rescinded;

b. the limit on the number of hackney carriage proprietor licences be removed;

c. the grant of a vehicle licence be subject to the following conditions..."

- which are irrelevant for present purposes.

33. The Committee duly found:

"• From the Halcrow survey and report, and their own experience of Cardiff on a Friday and Saturday night, that there was an unmet demand for hackney carriage services in the city;

• The market for hackney carriage services will find its own sustainable level and number of vehicles;

• The local authority could maintain quality control over the services through introducing conditions as part of the vehicle licensing process;

• It recognised that the initial outlay of a new car could be prohibitive for some potential owners, and therefore a three year vehicle age limit would be introduced as part of the conditions of licence."

34. The essence of the complaint by Mr Bromley-Martin about the decision of 7 October 2003 is that three councillors were in ignorance of the following matters: (i) that a decision had been made on 14 January not to delimit the number of hackney carriage licences; (ii) advice by Halcrow not to delimit; and (iii) that the waiting list was inaccurately described.

35. The position of the respondent with regard to this which has given rise to an issue about whether, and if so from which side, further evidence should be produced to the court to assist in the state of mind of these three counsellors is as follows. The respondent does not seek to contradict the appellant's submission that the Committee should be treated as ignorant of matters not shown by the records as before the Committee and taken into account. The respondent's case is that it did not take into account any system of allocation, waiting list or otherwise on 7 October 2003. If it was a material consideration, contrary to Moses J's finding the respondent was in error: if it was not material evidence, knowledge or ignorance of it is irrelevant.

36. In my judgment, and bearing in mind the respondent's position, the answer to the appellant's three complaints seem to me to be as follows. As to the first point, that a decision had already been made on 14 January not to delimit the number of hackney carriage licences, first of all that is a decision that could be revisited by the Council at any time; and secondly, on examination of what was considered on 14 January 2003 there was, in my judgment, no considered decision on that issue on the merits. The matter was put before the Council members by the officials really on the basis that there would be no change from the practise that had obtained for many years in the past that there would be a limit on the number of licences which would be controlled in so far as the granting of further licences was concerned by unmet demand.

37. As to the second point, that the counsellors were kept in the dark about advice from Halcrow not to delimit, in my judgment Halcrow's advice on examination was nothing like as strong as Mr Bromley-Martin suggests. Indeed it was, I would say, more accurately described as equivocal. In any event there was reference to Halcrow in the decision of the Committee in October, and perhaps of much greater significance all the arguments for and against delimitation were carefully rehearsed in the official's report to the Council.

38. As to the third and final point that the waiting list was inaccurately described, in my judgment that contention is made out. It was not, as Moses J found, an accurate assessment of the true position, but it was, in my view, completely irrelevant to the decision that the Council had to take on 7 October.

39. Standing back for a moment from the particular facts of this case and moving to the general from the particular, it seems to me that the decision of 7 October falls to be examined on classic Wednesbury grounds. I can see nothing that the Council took into account that they should not have taken into account; nothing that they left out of account that they should have considered. Far from concluding that the decision was irrational, in my judgment it was an entirely rational one and one which they were fully entitled to reach.

40. For these reasons I would dismiss this appeal.

41. LORD JUSTICE BUXTON: I agree with everything that has fallen from my Lord.

42. In my view it was impossible to say that the Halcrow report reached a clear conclusion against delimitation. I agree that at the meeting of 14 January it was assumed that there would be a continuation of the previous policy of limiting licences to the extent that the law allowed. But it was open to the Council to change its mind on that point. Cogent reasons for at least considering the change of mind were given in the officer's report to the 8 April meeting which my Lord has already set out.

43. It has not been suggested that it was not open to the Council to act on that report; nor is it suggested that it was not open to them to act on it as they did by instituting a consultation on the issue of delimitation, the results of which they would consider at a further meeting. Unless, therefore, all of that was simply a sham and the Committee did not have an open mind, what they did then was a perfectly normal, indeed proper, exercise of local government functions. The only suggestion against that is that in the acknowledgment of service in which the Council argued for an adjournment of the first judicial review proceedings, it was said that it was "likely" to render proceedings academic because of the further consultation by the Council. That statement is very far from saying that a decision had already been taken. In truth, if the decision had already been taken, the use of the word "likely" would itself have been extremely misleading, and that is not a conclusion to which I would be likely come on a document that was verified by the signature of an officer of this court.

44. Granted that a review of policy was properly open to the Council, it is impossible to complain about the decision that was taken as a result of and after that review. I revert briefly to the points that my Lord has made. The first complaint was that all the counsellors at the meeting in October were ignorant of the errors found by the judge in relation to the waiting lists. But the waiting lists had by then passed into history. The decision had already been taken to look at the question of delimitation. The reason for that decision was as set out in the minutes of the meeting of 8 April, which were specifically before the Committee in October. The reason was not the assumption about the waiting list or absence of it. Secondly, the complaint that there was no reference to the Halcrow recommendation against delimitation made in January. As my Lord has demonstrated there was no such recommendation. Thirdly, the complaint that there was no reference to the decision of 14 January not to delimit. Again there was no such decision. The decision in respect of that was taken on 8 April: a decision that, as I have said, was specifically referred to councillors in the report to the October meeting.

45. I agree with my Lord that there is no basis at all for criticising the October decision on any public law ground and that this appeal must fail.

46. LORD PHILLIPS: I also agree.

47. In the course of his argument on behalf of the appellant, Mr Cummings, Mr Bromley-Martin QC made a submission that caused me some surprise. He submitted that the history of this case pointed inferentially to a determination on the part of the officials advising the licensing and Public Protection Committee of Cardiff County Council ("the Committee") or some members of the Committee or both to ensure that Mr Cummings did not receive the six additional licences that would be allocated to him if these were awarded according to the waiting list. Mr Cummings had managed to secure that he occupied the first six places in that waiting list. Such determination, so Mr Bromley-Martin submitted, was to be inferred from the fact that the officials inaccurately described the waiting list to the Committee; the decision of the Committee evidenced by the resolution of 8 April 2003 to consider delimitation of the issue of taxi licences and the decision of 7 October 2003 to delimit the grant of licences.

48. Mr Bromley-Martin made the suggestion of this inference in answer to the observation of the court that it was simply not credible that the radical decision to delimit the grant of taxi licences was motived or even influenced by the fact that Mr Cummings had challenged the decision to allocate the six new licences by lottery on the ground that the appropriate method of allocating these licences was by reference to the waiting list. If it were going to be suggested that the Council's decision was affected by bias against Mr Cummings this is something which should have been clearly pleaded. I can see no basis for inferring such bias. The evidence suggests that the reason why the Committee opted for delimitation of the licensing system, was simply that they concluded that removing the limits on those who could be licensed to operate taxi services would be in the interests of those using those services. I can see no basis for concluding that the fact that there had been issues as to the basis upon which additional licences should be awarded under the old limited scheme had any effect on the decision to delimit the grant of licences; even less can I see any basis for an inference of bias.

49. My conclusion is that there were no material facts of which the Committee was unaware when making its decision of 7 October 2003.

(Appeal dismissed; Appellant do pay Respondent's costs of the appeal, such costs to be assessed if not agreed; Appellant's application to appeal to the House of Lords refused; Appellant's application for an extension of the injunction pending a petition to the House of Lords refused).