A cautionary tale

Wine 26118355 s 146x219A recent case underlines the importance of complying with Court directions in case management hearings for licensing appeals, writes James Rankin.

A branch of Costcutter, situated in the Royal Borough of Greenwich had appealed the licensing authority’s (“LA”) decision not to vary the hours of its premises’ licence. A summons was issued to the respondent council for a Case Management Hearing (“CMH”) on 21/12/15. No summons was issued to the appellant and so Costcutter’s solicitors were unaware of the date until the LA solicitor contacted them by email on 17/12/15 in order to agree directions.

The appellant’s solicitors replied the same day saying that they were unaware of the date and that they had no instructions. On the morning of the CMH the LA contacted the practice manager by telephone to agree a position. It was agreed that the appeal would be adjourned to 25/1/16, and that the appellant’s solicitors would write a letter to the court indicating that they had no objection to the CMH being adjourned to that date. They did this, and also requested the court to serve a summons for the new date. The LA served a copy of the old summons for 21/12/15 on the appellants.

The CMH took place on the afternoon of 21/12/15. The solicitor for the LA explained that agreement had been reached between the parties and asked for the appeal to be adjourned to the agreed date of 25/1/16. The court did not issue a new summons to the appellant as requested. The practice manager did not enter the new hearing date in the “key date diary”.

As the 25/1/16 drew near, the LA again contacted the appellant's solicitors by email and DX. This was on 17/1/16 by a letter headed “CASE MANAGEMENT HEARING 25/1/16 BEXLEY MAGISTRATES’ COURT 2pm”. No response was received, and when the matter came before a district judge on that afternoon, and no one appeared for the appellant, the appeal was dismissed at the LA’s request.

Solicitors for the appellant found out on the following day that the appeal had been dismissed and applied for the appeal to be reinstated under the court’s common law powers to amend its decisions (Liverpool City Council v Pleroma Distribution Ltd [2002] EWHC 2467 (Admin).

The application to reinstate was heard on 3/5/16. The appellant argued that it was the fault of the court in not issuing a summons. They had lodged the appeal in time and paid the fee. It was the court’s duty to alert the appellant by way of summons of any hearing date. The letter of 21/12/15 agreeing to the adjournment was conditional upon a new summons being issued. The appellant’s solicitor gave evidence and explained that the circumstances surrounding his non-attendance were a “perfect storm”. He recounted personal circumstances; the Christmas break; that the email of 17/1/16 was not seen until 26/1/16; that no DX letter was ever received; that the practice manager was only that, and not a fee earner; that she would only enter the hearing date in the key date diary if it was confirmed by the court; and that he was a busy solicitor advocate who is often away from the office.

As counsel for the LA, I argued that all of the above fell far short of a Pleroma exception. The court had not acted without jurisdiction in dismissing the appeal, nor were there any material facts that had not been brought to the court’s attention. Solicitors had agreed an adjourned date and failed to attend. Attendance on 25/1/16 had not been conditional upon a summons being served by the court. It was incumbent upon those who sought to challenge local authority decisions to do so professionally and competently. The appellant's solicitor had done nothing to prosecute his appeal. He made no inquiry of either the court or the LA as to what had happened to the case on 21/12/16. It was not the LA’s duty to alert the appellant of the new date in circumstances where it had already been agreed. Nevertheless, the LA had written to the appellant on 17/1/16: why the letter had not arrived in the DX was a mystery; why the email had not been opened until 26/1/16 was hardly the fault of the LA.

The application to reinstate was dismissed by a lay bench. They found that there had been an over reliance by the appellant's solicitors upon notification from the court and that they had failed to proactively manage their appeal. Costs of £3,530 were awarded against the appellant.

James Rankin of Francis Taylor Building acted for the Royal Borough of Greenwich,