The following letter was prepared by Taylor Vinters solicitors prior to the council meeting on 8th Feb 2008 on behalf of a number of independent punt operators.
6th February 2008
Punt Operation in the city of Cambridge
Strategy and resources Scrutiny Committee, 8 February 2008
We have been consulted by Mr Simon Godfrey, Mr Nick Maseychik, Mr Jonti Salisbury, Mr Tersoo Sugden, Mr Ashley Dalton, Mr Tim Campbell and Mr Jamie Collinson, all of whom are independent punt operators currently operating within the city of Cambridge. Although we are currently instructed only by these seven individuals, we are aware through them of a number of other individuals who are likely to instruct us if matters proceed further, and in particular if litigation should ensue.
We appreciate that this letter is being sent relatively close to the date of the relevant Committee Meeting; this is in part due to the inadequacies, which we note are acknowledged in the report, of the consultation process.
Our clients do not object to appropriate regulation of punt operation, and of touting. The proposals in the Report to the Leader of the Council do however give rise to concerns both as to their appropriateness to achieve those ends, and as to their lawfulness.
- We note that the proposals are prompted in part by representations made by Scudamore's Punting Company Limited, the largest single operator. That company advertises on its website that it operates a fleet of "nearly 150 punts". The best available information is that there are between 200 and 250 punts being operated on the Cam on a commercial basis. We disregard College and privately owned punts. That company therefore has a dominant position in the relevant market, namely the provision of commercial punting services on the River Cam; this position was very substantially consolidated by its takeover of Tyrrells' Punting Company.
- We note that it is envisaged that one of the effects of the proposals will be to achieve a reduction in the number of commercial punts; and that the reduction will be particularly in the number of punts being operated by independent operators. We question whether control of the number of punts being operated, as opposed to the control of touting, is an aim which it is proper for the city Council, as opposed to the Conservators, to pursue; but in any event if what is sought is a disproportionate reduction in the number of independently operated punts, this will entail a reinforcement of the dominant position of the largest operator, Scudamore's. This cannot be a proper use of the city Council's powers, and is clearly contrary both to the public and consumer interest, and to the public policy enshrined in the Competition Act.
- ln addition, since it is large organisations which have staff available to act as touts whilst others are punting with customers, unlike independent operators, such a distortion of the market in favour of the large operators is unlikely to produce the desired affect of controlling touting.
- The city Council itself patently occupies a dominant position in the market for moorings and landing stages for punts on the Cam. This, pursuant to the Competition Act, imposes certain constraints on the Council's exercise of its private law rights as owner of that land. Whilst the city Council may (and indeed arguably as a steward of public funds should) charge for the use of its river frontage, it cannot be acceptable that a certain area of frontage at Quayside, used by the operator which is dominant in the market place, should alone be available free of charge.
- We note that there is no certainty as to when the La Mimosa Landing stage will be available for use by independent operators, and indeed that the city Council is currently in dispute with Scudamore's which we are told claims to have a tenancy within the protection of the Landlord and Tenant Act 1954 part ll. This is a major source of concern to independent operators, since it is at present proposed that the city Council take steps to prevent them form using other parts of the River frontage before this is resolved. Despite what is said at paragraph 6.4 of the Report we are instructed that (as commercial realism would have caused one to anticipate) the La Mimosa Landing Stage has not in reality been available to independent operators - as is implicitly recognised at paragraphs 6.6 and 6.7 of the Report.
- We would respectfully suggest that the appropriate sequence of events would be for the city Council to ensure that the La Mimosa Landing Stage is in reality available to independent operators before taking any steps to restrict punt operation elsewhere in the city. This will better protect the public, and consumer, interest by ensuring that a variety of operators are present in the Market Place. lt will also ensure that our clients are not deprived of their livelihood. We take the opportunity to point out that this comes within the scope of their right to peaceful enjoyment of their possessions, protected by Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which the city Council as a public authority is obliged under the Human Rights Act 1998 to respect.
We hope that the Leader of the Council will agree to act in the way recommended above. We appreciate that it may be necessary for the decision to be deferred to allow for a further - and if so we would trust a better - consultation process. Should a decision be taken which has the effect of assisting Scudamore's to consolidate its dominant position, and of squeezing out our clients from the market place, then they will have to look to the remedies available to them.
In view of the nature of the issues raised in this letter, and of the shortage of time, we are copying this letter to the Heads of the Legal and Property Departments at the city Council.