Appealing to reason

A two-judge High Court has provided valuable guidance on who is entitled to appear as a respondent to an appeal of a licensing application decision, writes James Neill

In a landmark decision, The Queen on the application of The Chief Constable of Nottinghamshire Police and Nottingham Magistrates’ Court and Tesco Stores Limited, the High Court has disapproved the ruling of District Judge Purdy in the Candybar case, and held that interested parties, responsible authorities, etc., who have made relevant representations on a licensing application under the Licensing Act 2003, do not have the right to appear as respondents to any appeal. The statutory respondents are the licensing authority. It is only when a decision is made favourably to the licence holder, and that decision is appealed by those who made representations against it, that there is a respondent “in addition to the licensing authority” – and that is the licence holder.

This important judicial review lays to rest the difficulties arising up and down the country from there being a variety of different rulings on this issue, by a variety of magistrates’ courts, and a pressing need for an authoritative decision from the High Court. It was a case of sufficient importance as recognised by the single judge who gave permission for it to be assigned to a two-judge court presided over by a Lord Justice of Appeal. Accordingly, the court consisted of Moses LJ, and Hickinbottom J.

Notwithstanding the absence of any right to appear, the judges broadly accepted the agreed submissions of both parties that where the interests of justice require it, and where it can be demonstrated that it is necessary to promote the licensing objectives so to do, a magistrates’ court has a discretion to hear from any person on an appeal to it under the 2003 Act; and it may (though it is not obliged to) allow such a person to be represented and to cross-examine. Everything will depend on the circumstances of each individual case, and no hard and fast rules can be laid down. The interests of justice and the avoidance of unnecessary costs are important, if not paramount, considerations.

The case originated with an application for a premises licence for a Tesco Express store in Shakespeare Street, Nottingham, on which the police had made representations to the council that two (highly controversial) conditions should be attached to the licence. The council acceded to the police representations and imposed the two conditions.

Tesco appealed to the Magistrates’ Court; and, at a preliminary hearing, Craig Bayliss of Berwin Leighton Paisner vigorously (and successfully) resisted an application by the police to be joined as additional respondents. The district judge found that fairness and the interests of justice did not require the police to be joined. He accepted Bayliss’s argument that the police could easily liaise with the council and their case could just as easily be presented by the council’s legal representative, calling the police as witnesses as necessary. In essence, he followed the DCMS Guidance, at paragraphs 12.4 and 12.5.

The judicial review

The police judicially reviewed the judge’s decision. They failed in their principal submissions that the 2003 Act, properly construed, gave them an express right to be an additional respondent, because they had appeared as an “objector” (their word) before the licensing committee, and that it would be absurd that they should be excluded from an appeal. The High Court had no difficulty in rejecting that argument: the 2003 Act by its clear terms gave no such express right to anyone other than a licence holder whose success before the licensing authority was being appealed by someone who had made representations against it.

The police’s second submission also failed. They argued that the 2003 Act if not in express terms, then by necessary implication, gave them a right to appear. Moses LJ accepted and applied Tesco’s answer (Gerald Gouriet QC and Juan Lopez of Francis Taylor Building) that because the 2003 Act had specifically repealed section 22(3) of the Licensing Act 2004 (in which a right to appear as respondents was given to objectors who had appeared at the first instance application), then the necessary implication to be drawn from there being no parallel provision enacted in the 2003 legislation was that the Act did not intend those who made relevant representations to be carried forward as additional respondents on any appeal. If Parliament had wanted to, it could easily have re-enacted the terms of section 22(3) of the 1964 Act. It did not do so, and that must be taken to be deliberate.

The court also agreed with Gouriet that the appeal provisions of the new Act were best understood when seen in the context of the general provisions of Rule 34 of the MCA 1981, namely that statutory appeals to magistrates’ courts from decisions of local authorities should be commenced by way of complaint, and that the only defendant to a complaint in those circumstance is the local authority against whose decision complaint is made.
Costs ramifications

The High Court was at pains to emphasise that any additional persons permitted to be heard were not “parties”, and gave the clearest guidance, both in argument and in the judgment, that the hearing of persons other than the respondent should not be allowed to escalate the costs of the litigation. Duplication should be avoided, and there should only be one award of costs made against an unsuccessful party. It is implicit in the courts’ insistence that any ‘additional person’ permitted to be heard in the exercise of the magistrates’ court discretion does not become a ‘party’, that an award of costs against an unsuccessful appellant should be made in favour of the respondent council, and not the other person permitted to be heard.

If that is right, then it would seem to follow that such an additional person would not be liable to pay costs either. This is in accordance with the dictum of Lord Herchell in Boulter v The Justices of Kent [1897] AC 556, which Moses LJ mentioned in his judgement when approving the characterisation of licensing proceedings as not truly “adversarial”.

The decision of the High Court was to quash the district judge’s ruling; but only on the narrow ground that in the last four paragraphs of his judgment the district judge appeared to have misdirected himself in holding that the terms of schedule 5 to the 2003 Act in some way constrained him from exercising his discretion to hear from a person (other than the local authority) who had made relevant representations to the licensing authority. A fresh decision as to the role of the police will have to be made by the Magistrates’ Court hearing the substantive appeal, applying the guidance given by the High Court.

It is perhaps regrettable that such a short passage of an otherwise unimpeachable extempore judgment should cause the entirety of the decision to be quashed, because elsewhere in the decision the district judge had acknowledged the existence of such a discretion in clear and unambiguous terms. If there is a lesson to be learned, it may be that extempore judgments of this kind, on important issues, should be listened to with care, and a request made by the parties, if necessary, for any potential inconsistencies to be cleared up there and then, rather than come back to haunt High Court proceedings further down the line.

James Neill is a barrister at Francis Taylor Building