Transport for London (TfL) imposed a licence condition which required private hire vehicle operators to provide a mechanism for passengers to speak with someone if they wished to make a complaint (a voice contact facility). The requirement was for the facility to be available at all times, and in relation to complaints in both emergency and non-emergency situations.
Uber and others challenged the lawfulness of this requirement on the basis that it constituted a disproportionate interference with the rights to freedom of establishment of operators contrary to Articles 49 and 54 of the Treaty on the Functioning of the European Union. The Court was therefore required to consider whether the requirement for a voice contact facility was proportionate to the customer service and safety aims that TfL put forward to justify it.
At first instance there was evidence before the Court that customers would benefit from being able to speak with a person for both emergency and non-emergency complaints, and that in many cases it would be difficult to distinguish between the two types of situations. Mitting J agreed that, for emergencies, there was no less intrusive measure than a voice contact facility which would still provide the same level of customer safety. However, he held that customers who were happy to book using the app would most likely be happy also to use it to register complaints in non-emergencies. The use of the app rather than a voice contact facility would be a less intrusive measure which would achieve the same benefits and TfL's insistence on a voice contact facility for all complaints was therefore disproportionate and in breach of EU law.
Upholding TfL's appeal, the Court of Appeal criticised the judge's reliance on the use of a voice contact facility for emergencies only as it had not been suggested by either party and there was no evidence that it would actually be practicable, or meaningfully less burdensome or costly than the use of such a facility for all types of complaints.
The Court of Appeal disagreed with the judge's finding that 'no useful purpose' would be served by a voice contact facility for non-emergency cases, especially in light of Uber's own evidence which showed that a substantial number of customers who used the app still preferred voice contact. A voice contact facility provided passenger benefits such as reassurance and speed of response and the judge had failed to explain why these were not legitimate objectives in a non-emergency situation.
Applying R (Lumsdon) v Legal Services Board, the Court of Appeal also ruled that, as the regulation of private hire vehicles is not an area of EU competence, the balancing exercise that the Court should conduct in assessing proportionality should be less intrusive. TfL should thus be accorded a wide margin of discretion as to the appropriate level of consumer protection and how this should be achieved. In substituting his view for TfL's, the judge had failed to respect that discretion and applied too intrusive a level of review.