Law Report: Taxi owners' legal challenge fails: Regina v Darlington Borough Council, Ex parte The Association of Darlington Taxi Owners and The Darlington Owner Drivers' Association. Queen's Bench Division (Mr Justice Auld). 12 January 1994

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An unincorporated association is not capable of applying for judicial review.

Mr Justice Auld set aside leave granted to apply for judicial review of the council's decisions to limit its concessionary fares scheme to wheelchair-accessible vehicles, to remove any limit on the number of licensed hackney carriages in its area and of a proposal by Darlington Transport Co Ltd to operate a taxi service.

The council operated a concessionary travel scheme for the benefit of pensioners, disabled persons and others in need. The scheme became an important source of income for some taxi drivers. Members of the associations were present at a council meeting on 11 January 1993 to discuss a proposal for wheelchair accessible taxis. After more meetings, attended by the associations, the council decided, on 11 February, to limit its scheme to wheelchair accessible taxis. In March, it decided not to limit to the number of licenced taxis.

On an ex parte application, the associations, both unincorporated, were granted leave and also interim relief in the form of a stay of the council's decisions. The council applied to set aside the leave on the grounds that the associations are not legal persons and thus the judicial review proceedings were not properly constituted, alternatively that there was material non-disclosure, the application was unarguable and the interim relief should be set aside.

Charles Bear (Beaumont & Son) for the associations; Michael Beloff QC and Neil Calver (Sharpe Pritchard for Council Solicitor) for the council.

MR JUSTICE AULD said that the general rule was that unincorporated associations could not sue or be sued in their own name. The question of capacity was one for dispositive decision at the leave or setting aside leave stage. It preceded and was distinct from locus or sufficient interest. Capacity, like locus, was a jurisdictional matter, but capacity was a matter of substantive law; locus was a procedural rule.

Capacity was not just a private law or contractual law concept. The question whether an initiator of proceedings was a person recognised by the law was likely to be of considerable importance on, for example, the matter of costs or the requirement of a cross-undertaking as to damages.

An individual member of an unincorporated association might issue proceedings as an applicant with 'sufficient interest'. However, no individual member of either association had applied as a 'representative' applicant with a sufficient interest.

Therefore, on the ground that the associations were not legal persons, and that the proceedings were not properly constituted, the leave and interim relief must be set aside.

Dealing with the remaining complaints, the council was not aware of the ex parte hearing and the associations' representatives were at fault for that.

The associations' grounds stated they had only three days' notice of the council's plans and did not disclose the total four-week period from the 11 January meeting. Leave would have been set aside on the ground of non-disclosure.

The fact that no Darlington taxi owner participating in the scheme provided a taxi capable of carrying a wheelchair had led to the council's view that the scheme was being abused and to great profit to taxi owners. It decided to vary the scheme so that all concessionaries, including the old and infirm, would still use taxis but only wheelchair accessible vehicles. It could not possibly be argued that its decision was irrational.

Further, the balance of convenience was heavily weighted against the grant of interim relief. If it was appropriate, a cross-undertaking as to damages or other suitable security should have been required.