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Judge strikes out JR claim after claimant refuses to pay money into court

A judicial review claim brought by the “We Love Hackney” campaign against changes to Hackney Council’s licensing policy has been struck out after the campaign group refused to pay money into court to cover the council’s costs should the claim be unsuccessful.

Mrs Justice Farbey concluded that the campaign had "successful and resourceful backers" with the resources to cover the costs but they have decided not to.

In March, the High Court rejected an application by the “We Love Hackney Ltd” group for a Capped Costs Order (CCO) in its judicial review of Hackney Council’s decision to adopt a revised Statement of Licensing Policy which made changes to Special Policy Areas ("SPAs") within the borough and changed the core hours policy for licensed premises. The claim was the first judicial review to be brought against a Statement of Licensing Policy with reference to the Equality Act

The group argued that the claim qualified as “public interest proceedings” and should be protected by a CCO which limited the liability of the claimant for the defendant's costs of the judicial review proceedings to £35,000 and that any liability of the defendant for the claimant's costs should be capped to reasonable hours at the rates paid to counsel by the Government Legal Department (GLD) and the rates for solicitors charged by GLD.

However, the court said that it did not consider the proceedings to be public interest proceedings and that, even if they were, this would not be an appropriate case for a CCO because the claimant was formed by, among others, wealthy individuals with a commercial interest in the litigation.

“We Love Hackney” had claimed that the council revised plans - which generally restricted alcohol from being sold after midnight on Fridays and Saturdays in the Shoreditch and Dalston SPAs – represented an “unworkable and unreasonable restraint on operators who seek to apply for late night opening which will discourage innovation”.

Hackney had concluded that the high concentrations of licenced premises in parts of Shoreditch and Dalston had given rise to cumulative negative impact on its licensing objectives. The cumulative impacts specifically mentioned in the Hackney Licensing Policy Consultation document of 2017 were antisocial behaviour, public nuisance, crime, and noise intensified by a significant number of licensed premises concentrated in one area.

Applications for licences in those areas were made subject to a presumption that they will be refused unless the applicant can demonstrate that there will be no negative cumulative impact that is currently being experienced in those areas. It also extended the areas of the Shoreditch SPA (originally introduced in 2005) and confirmed the continuation of the SPA in Dalston, which was first introduced in 2013.

The “We Love Hackney” group – which claims to have more than 4000 members – campaigned against the proposed revisions during the decision-making process and then launched ajudicial review of the decision in October 2018, claiming that

a) The decision failed to recognise the interests of the groups with protected characteristics under the Equality Act 2010, particularly the LGBTQ+ community for whom the bars and clubs of Hackney are important cultural spaces.

and

b) that the report of the group director for neighbourhoods and housing to councillors did not fairly address competing views on the merits of the SLP and failed to draw the attention of councillors to material and relevant considerations.

Speaking after the claim was struck out, Cllr Caroline Selman, Hackney Council's Cabinet Member for community safety, policy, and the voluntary sector, said: "We have always said that our aim is to balance the needs of our exciting, vibrant nightlife with the needs of residents, who are entitled to a good night’s sleep. The policy was introduced after an extensive development process, during which we did a huge amount of listening, research and evidence gathering, and it is shaped by the views of visitors, licensees and local residents.

"We want to work with responsible licensees, who make a valuable contribution to the borough. The policy simply puts the onus on new applicants to demonstrate that they understand the pressures in each area and that by opening later their businesses will not have a negative impact to the relevant area. We are supporting them to demonstrate this and will continue to monitor the impact of the policy. Between August 2018 and April 2019, 23 licenses were approved within the SPA boundaries outside of the core hours, with another 38 elsewhere in the borough."

We Love Hackney Ltd and its solicitors Leigh Day have been contacted for comment.

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