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The wrong name

Licensing portrait1In a judgment that will be of interest to all practitioners involved in licensing appeals, the High Court has dismissed a nightclub’s judicial review. Gary Grant reports.

In Essence Bars (London) Ltd v Wimbledon Magistrates Court and Royal Borough of Kingston upon Thames [2014] EWHC 4334 (Admin) the High Court upheld the earlier decision of District Judge Henderson that he had no jurisdiction to hear the nightclub’s appeal against the revocation of its premises licence in the magistrates’ court. The decision followed a fully-argued and expedited “rolled-up” permission hearing.

The unusual circumstances of this case centred on the mis-identification of the Premises Licence Holder in the Complaint that instigated the statutory appeal to the magistrates’ court. The Complainant was stated to be “FL Trading Ltd” (“FL”). The narrative of the Complaint went on, wrongly, to indicate that the Complainant was “the premises licence holder”.

The actual premises licence holder was in fact an associated, but legally distinct, company named “Essence Bars (London) Ltd” (“Essence”). But they had not appealed within the 21-day statutory time limit for doing so. The Royal Borough of Kingston argued that the only power open to a magistrates’ court to amend a Complaint was contained in section 123 of the Magistrates’ Courts Act 1980 (“defects in process”), but that section had been construed narrowly in a succession of binding rulings in criminal cases. These cases established that a separate and distinct legal entity could not be substituted in summary proceedings after the expiry of the relevant time limit for instigating those proceedings. The High Court accepted the council’s submissions that those legal principles must also apply to licensing appeals in the magistrates’ court.

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The council argued that there was a public interest in decisions of licensing authorities made in order to promote the licensing objectives having effect as soon as possible. The right to instigate an appeal to the magistrates’ court (which usually suspends the final decision of the licensing authority from coming into effect) was limited by the Licensing Act 2003 to specific identified persons or entities and had to be lodged within 21 days. Those were simple requirements for an appellant to meet and should be strictly construed.

In the conclusion to his judgment Mr Justice Wilkie held:

“47. In my judgment, an appeal pursuant to Schedule 5 has to be brought by way of a complaint by a legal person. That legal person, however, has to have standing to bring the appeal as identified in paragraph 8A(2) a, b and c of Schedule 5. One of those characteristics, giving standing, is that the Appellant is the holder of the premises’ licence.

48. The notice of appeal reflects this scheme. It states that the complainant is the premises licence holder and intends to appeal. However the complainant is said to be FL, which is a separate legal person to the Claimant.

49. As the notice of appeal stood on 3rd November 2014, a legal person, FL, was “before the court” in the sense that it was the party intending to appeal, but had no standing to do so. The appeal, accordingly, was fundamentally flawed. The court had no jurisdiction to entertain an appeal against the decision sought to be appealed brought by the legal person which was “before the court”, in that sense, having given notice of intending to bring it.

50. At that stage, the only legal person “before the court” in that sense was FL. The only way that the Claimant, which satisfied the requirement giving standing to bring the appeal, of being the premises licence holder, could be “before the court”, to bring the appeal, was for the notice of appeal to be amended to substitute one legal entity, FL, with another, the Claimant. That would have amounted to a new Appellant being permitted to bring an appeal at a time when the strict time limit of 21 days for bringing such an appeal had expired.

51. In my judgment, the Claimant is wrong when it contends that the premises licence holder, the Claimant, was “before the court” as a valid Appellant, but had been misnamed as FL. Of course, naming FL as the complainant was an error. But FL is an existing legal personality, separate from the Claimant and, in my judgment, was mistakenly identified, by the solicitor, as the complainant because the solicitor did not realise that the premises licence holder was the claimant and not FL. In my judgment that cannot be construed as the Claimant always having been the Appellant, but misnamed as such. Rather, it was a misidentification of the person entitled to appeal. This resulted in the Appellant, or complainant, being identified as FL.

52. In my judgment, this court is bound by the three s.123 authorities to conclude that the DJMC was correct to conclude that he had no jurisdiction to hear the appeal brought by FL, because it was not the premises licence holder and had no standing. He was also bound to refuse to permit the notice of appeal to be amended to permit a different legal personality, the Claimant, to bring the appeal when the time for it to have done so had expired.

53. I refuse the Claimant permission to bring this judicial review.”

Mr Justice Wilkie, refused the Claimant permission to appeal further and ordered the Claimant to pay the council’s costs in full. The Claimant has indicated an intention to apply directly to the Court of Appeal for permission to appeal.

Gary Grant of Francis Taylor Building appeared for the Royal Borough of Kingston-upon-Thames instructed by Saima Khan (South London Legal Partnership) and David Kingstone (Environmental Health Manager). Gary can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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