Urgent injunctive relief and the giving of notice to local authorities

A recent High Court ruling gives comfort to local authorities in cases where urgent injunctive relief is sought in the absence of any or any adequate prior notice. Isabella Tafur and David Matthias QC explain why.

Mr Justice Blair has dismissed an application for permission to bring judicial review proceedings in respect of a decision by Westminster Magistrates’ Court to uphold Westminster Council’s decision following a review hearing, to impose a number of conditions on the premises licence of Aura nightclub in R (oao Merlot 73 Ltd) v City of Westminster Magistrates’ Court [2013] EWHC 3416 (Admin).

As part of its application for judicial review, the claimant had applied for, and obtained urgent relief in the form of a stay of the Magistrates’ Court’s decision – despite not having put Westminster on notice of its intention to apply for such a stay. The effect of this stay was that the venue was able to continue to trade free of the conditions which had been imposed in order to address the serious concerns regarding the levels of crime and disorder associated with its operation.

The authors are aware of at least one other recent case in which urgent injunctive relief was granted against a local authority in the absence of any or any adequate prior notice. The comments of Blair J on the procedure by which applications for urgent relief should be made will provide some significant comfort to local government lawyers.

Background

Following an application for the review of Aura’s licence brought by the Metropolitan Police, the council’s licensing committee decided to impose a number of additional conditions on the premise licence. Those conditions were imposed to address serious concerns about the levels of crime and disorder associated with the venue. Three of those conditions (relating to the prohibition of glass, the last entry time and the playing of music after 3 am) were disputed by the owner of the premises, who appealed against the decision to the Magistrates’ Court. Following an eight-day hearing, the Magistrates’ Court dismissed the appeal in April 2013.

The application for permission for JR and for interim relief

The owner of the premises subsequently applied for permission to judicially review the Magistrates’ Court’s decision. This application was lodged with the court on a Friday afternoon, and the council was informed in an email that judicial review proceedings would be instigated on that same afternoon. However, that email did not mention that an urgent application for a stay of the Magistrates’ Court’s decision had also been made. The application papers, including the application for the stay were sent by courier to the council’s offices where they were received by reception staff at 5.28pm. The papers did not come to the legal department’s attention until Monday morning. On Monday afternoon, before the council had had an opportunity to submit any written representations to the court, a stay was granted by the court.

The council subsequently applied for the stay to be set aside, but it was not until some five months later that the council’s application was heard in court. During this time the venue had operated free from the disputed conditions. At the oral hearing, the council represented by the authors, expressed its very serious concerns both about the irregular manner in which the interim relief had been sought and obtained by the claimant, and about the amount of time that it had taken for the council to secure a hearing of its application to set aside the interim relief.

The discharge of the stay

In determining whether to discharge the stay, Blair J considered whether there was a serious issue to be tried and where the balance of convenience lay. He explained that in a case such as this one, the public interest also played a part in determining the balance of convenience (R v Ministry of Agriculture ex parte Monsanto plc [1999] QB 1161), and that the question of whether damages would be an adequate remedy did not arise.

The claimant argued that without the stay the business would not be viable and would have to close, with a consequent loss of jobs and investment. The council argued that taking into account the public interest in preventing further instances of crime and disorder, the balance of convenience lay in favour of discharging the stay. Blair J saw the force in the council’s arguments, and considered that there was a significant public interest in bringing into effect conditions imposed by the licensing sub-committee in a case in which concern had been identified as to the operation of the night club.

However, the Judge considered that in determining whether to discharge the stay, in the circumstances of this case, the determinative factor was whether there was a serious issue to be tried. He concluded that there was no such issue (see paragraphs 16 – 45 of the judgment). As such, he refused permission for judicial review and discharged the interim stay.

One of the principal arguments being advanced on behalf of the claimant was that in reaching his decision the district judge had “applied the wrong test”. The Judge explained that this argument was based on the district judge having said in his judgment that: “The real issue is whether crime and disorder was, at the time of the review, and still is at the time of this Appeal, reducing such as to render the decision of the Committee to modify the license as it did wrong” – which the claimant described as “a crude test which deflected the judge from a proper analysis.”

Dismissing that argument (at paragraphs 29 and 30 of the Judgment) Blair J. said “It is clear however that the judge carefully followed the decision in the Hope and Glory case. That case decides that although an appeal from the decision of a licensing authority to a magistrates court is a full rehearing on the evidence, and the court has to make its decision on the material before it, the licensing authority's decision is a relevant matter to be taken into consideration, and should only be reversed if the magistrates' court is satisfied that the original decision was wrong. … It is clear in my view that the (district) judge applied the correct test. I agree with Mr David Matthias QC for the council that the claimant's submission confuses what the judge identified as the real issue with what he applied as the test. …”.

Procedure for urgent interim relief

In his judgment Blair J emphasised that where a claimant makes an application for interim relief, it must be served on the defendant and interested parties, in accordance with the Practice Direction [2002] 1 WLR 811. Where an application is urgent, except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application. An obvious way to do this was through a telephone call or email to the person dealing with the matter.

Blair J pointed out that an email had been sent to the council’s legal department, informing it of the application for judicial review, but that it had not mentioned the application for urgent interim relief. He considered that the fact that the documents arrived in hard copy at the council offices later on the Friday evening was no substitute. The point of giving notice was to give the defendant or interested party a proper opportunity to make effective representations to the contrary (see National Commercial Ban Jamaica Ltd v Olint Corpn Ltd [2009] 1 WLR 1405). The judge considered it to be regrettable that PD25A had not been followed, recording that Philip Kolvin QC on behalf of the claimant had “rightly apologised for what had happened”.

Conclusion

Local authorities may derive comfort from the judge’s recognition of the importance of adequate notice being given of urgent applications, and from his underlining the importance of the Practice Direction [2002] 1 WLR which contains important directions on the correct procedure in claims for judicial review with regard to applications for interim relief. It explains that where urgent applications (for judicial review or interim relief) are made, the claimant must give notice of the application to the defendant and interested parties by post and fax (and now, surely, by necessary implication – email). It also provides that where manifestly inappropriate urgent applications are made, consideration will be given to making wasted costs orders against those representing claimants.

Whilst urgent applications may sometimes be necessary, local authorities should in every case be given proper notice and should not be deprived of the opportunity to make adequate representations prior to the court making a determination in respect of such applications.

Isabella Tafur and David Matthias QC are barristers at Francis Taylor Building.