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Procedural defects and licence review proceedings: the Funky Mojoe case

licensing portrait1In the Funky Mojoe case the High Court has ruled that procedural defects did not invalidate licence review proceedings. Gary Grant explains why.

Introduction and issues

In an important judgment for all licensing practitioners on 18 February 2014 the High Court ruled that procedural defects do not automatically render licence review proceedings invalid. This is the first time the High Court has considered this recurring point in the context of the Licensing Act 2003. (The full Judgment title is R (D&D Bar Services Ltd) -v- Romford Magistrates Court and the London Borough of Redbridge [2014] EWHC 213 Admin).

The case concerned Funky Mojoe, a well-known nightclub in South Woodford, London much publicised in "The Only Way is Essex" television series. In April 2013, at a review hearing before the London Borough of Redbridge licensing sub-committee, its hours were slashed to ensure that it could not operate past midnight (see Institute of Licensing website for fuller details of the earlier magistrates' court appeal decision on 7 November 2013).

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The nightclub was located next to an apartment block where mainly elderly and retired residents lived. They had been subjected to many years of disturbance as a result of the club's operation into the early hours. At least two earlier review hearings had failed to address the problems.

In January 2013, the licensing authority launched a further review application following an escalation in violent incidents and continuing public nuisance issues. A Blue Notice advertising the review was displayed, in the usual way, at the premises pursuant to regulations 38 and 39 of The Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005 ("the Regulations"). However the Notice was "defective" - i.e. it did not comply with the strict terms of the Regulations - in two aspects:

  1. It did not contain the "grounds of the application for review" as required by regulation 39(c). Instead it simply recited the two licensing objectives engaged: "Prevention of crime and disorder" and "Prevention of public nuisance". The magistrates' court had little difficulty in concluding that merely stating the licensing objectives engaged does not amount to setting out the "grounds". “Grounds” are not defined in the Licensing Act 2003 but are akin to a summary of the facts on which the review application is based. 
  2. The final three lines of the Notice indicating where the full application could be inspected was printed in 14-font rather than the minimum 16-font specified in regulation 38(a)(i)(cc).

The operator's arguments

These defects in the Notice were raised by the operator during the original review proceedings and again on appeal before District Judge Gary Lucie sitting at Romford Magistrates' Court. The operator argued that the words of The Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005 were clear and "mandatory": the Notice "shall" state the grounds and "shall" be printed in 16-font at a minimum. Without strict compliance there was simply no discretion to proceed to consider the application : the non-compliance deprived the council of jurisdiction to consider the review application at a hearing. Both the licensing sub-committee and the District Judge rejected these arguments and held that the review proceedings and the sub-committee’s decision were valid despite the defects.

In High Court judicial review proceedings the operator continued to argue that the terms of these Regulations should be interpreted strictly and without flexibility - after all Parliament had not included a "slip-rule" in these Regulations in stark contrast to the accompanying Licensing Act 2003 (Hearings) Regulations  2005. The latter Hearing Regulations expressly state that proceedings shall not be void merely because of procedural irregularities so long as any prejudice is cured (see regulations 31 and 32). The absence of such a slip-rule in the Premises Licence Regulations, it was argued, suggested that Parliament intended non-compliance to be fatal to proceedings.

Further, the operator argued, section 52 of the Licensing Act 2003 indicates that a review hearing can only take place when the authority had complied with all the necessary procedural requirements. If it had not complied, then it could not proceed with a review hearing. So, it was submitted, this was one of those cases where Parliament had expressly stated the consequence of a failure to follow the regulations - the review application could not be considered and the process had to start again. In these circumstances the Court was not permitted to move on and consider other factors such as the public interest or the interests of justice.

The council's response

Before the High Court the London Borough of Redbridge argued to the contrary. The Council accepted that the Notice was defective, but argued that that was not the end of the matter. Contrary to the operator's submissions, the consequence of the irregularity was not expressly spelt out in the Licensing Act 2003. Following the leading authorities of R (Jeyeanthan) v Secretary of State [2000] 1 WLR 354 and R v Soneji [2006] 1 AC 340 (HL), it was for the Courts to divine Parliament's intention as to what consequence, if any, should follow from the irregularity based on the facts and justice of the individual case.

The Council argued that it was offensive to common-sense to conclude that Parliament had intended minor and inconsequential defects in a Notice to invalidate all subsequent review proceedings. This was particularly so when the defects had resulted in no discernible prejudice to the operator and no person was likely to have been misled or disadvantaged – which are very important factors to consider.

The Notice, although not perfect, had substantially complied with the Regulations and had served its purpose. After all, a Notice had gone up, it did notify the public that a review had been applied for and where the full application could be viewed. It did notify the public that the review was in relation to crime and disorder and public nuisance (albeit the summary grounds were not properly set out). The Notice was clearly legible (even though 3 lines were printed in 14-font rather than 16-font). Finally the notice did tell its readers how they could make representations if they so wished and some 22 residents had responded to the review application by making representations.

The council argued that in the instant case it would not serve the interests of justice or the public interest to hold that these defects invalidated these important review proceedings: that would be placing form over substance, an approach much deprecated in the modern judicial approach to procedural defects and their consequences. Licence reviews were "a key protection" designed to protect the public interest and the Court must not lose sight of the fact that these review proceedings were brought to protect vulnerable residents. In the words of Lord Woolf MR in the Jeyeanthan case:

“Procedural requirements are designed to further the interests of justice and any consequence which would achieve a contrary result should be treated with considerable reservation.”

The High Court decision

HHJ Blackett (the Judge Advocate General sitting as a High Court Judge) rejected the arguments of the operator and found in favour of the Council. He held:

"...in my view it could never have been the intention of Parliament that minor errors on a notice or advertisement for a licensing review should make any subsequent consideration of the licence void.  Such an approach would lead to absurd consequences.  It is clear that there must be substantial compliance with Regulations 38(1) (a) and 39 but the process should not be frustrated by minor errors. "

And concluded:

"It is a case which has been handled impeccably by the Licensing Sub Committee and the District Judge on appeal. The submission from the Claimant that the process should be invalidated solely because of two minor errors on a notice is entirely without merit."

The claim for judicial review was dismissed with costs awarded to the London Borough of Redbridge.

Discussion

Although several recent magistrates' court decisions have considered this issue (see for example Mu Mu Enterprises Ltd, Tinseltown and Akin v London Borough of Enfield) this is the first time the High Court has done so in the context of the Licensing Act 2003. 

This important case does not give carte blanche for councils to ignore or pay only scant regard to regulations under the Licensing Act 2003 (and these Premises Licence regulations are not limited to just review proceedings but cover most applications under the Licensing Act 2003). Where Parliament has indicated that certain procedures must be followed then they must be. However where errors are made then this case establishes that the defect is not necessarily fatal to those proceedings. The licensing authority and/or Courts must then move on to consider the all-important question of whether the consequence of the defect is to invalidate the proceedings so that they have to start again. Each case will turn on its own individual facts but where there has been substantial non-compliance and/or significant prejudice has resulted from the defect then it is likely to be fatal to proceedings. 

The primary incentive for local authorities to get it right may well be to avoid precisely the type of prolonged litigation experienced in the Funky Mojoe case. Commentators have pointed out that the practice of simply citing the licensing objectives on a Blue Notice is not unusual among many licensing authorities. However this should not be repeated in the future or else the local authority in question may find itself being challenged. (Two examples of good practice when drafting proper "grounds" to be included in the Notice, albeit in summary form, were noted by the magistrates' court to be those set out in a Notice produced for an earlier licence review involving Funky Mojoe, i.e.: "Prevention of crime and disorder: There have been several incidents of violence at this premises" and "Prevention of public nuisance : Noise from the premises and its customers as well as litter has been a nuisance to local residents").

However where, as in the instant case, there has been substantial compliance with procedural requirements and no substantial prejudice has resulted from the defect, then the courts are more likely to find that "to err is human", to elevate substance over form and hold that the subsequent proceedings are valid. 

Gary Grant of Francis Taylor Building, appeared in the High Court for the London Borough of Redbridge led by David Matthias QC and was instructed by Graham Keating of Legal Services and Alan Drake, Head of Community Protection and Enforcement.

(It is understood the operator is currently considering whether to apply for permission to appeal to the Court of Appeal).

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