Court directions and appeals against licence revocations

A modern slavery appeal has been summarily dismissed for non-compliance with court directions. Gary Grant explains why.

In a rare procedural step, Hastings Magistrates’ Court has summarily dismissed an appeal against the revocation of a premises licence following the failure by the appellant to comply with court directions requiring him to serve his evidence on the respondent, Rother District Council. The case highlights a novel yet effective procedure open to licensing authorities faced with recalcitrant appellants abusing their statutory right to appeal licensing decisions in the magistrates’ courts.

Facts

The Chilli Tree restaurant in Bexhill-on-Sea was twice inspected by Sussex Police and Home Office Immigration Officers in October 2017 and January 2018. In the first visit, three workers without the right to work in the UK were discovered. On the second visit, two illegal workers were found, including the same individual found working at the restaurant on the previous visit. Some staff were being paid little or no wages but instead had their visa application fees or other expenses paid by the restaurant owner. Additionally, a 15 year old girl was found working behind the bar without the necessary Child Employment Licence in place.

The review application

The licensing authority, acting as a responsible authority, applied to Rother District Council to review The Chilli Tree’s premises licence. The restaurant’s owner, Mr Saleh Uddin, turned up at the review hearing in May 2018 with a bundle of documents he had failed to disclose in line with the council’s direction that he must do so at least 3 days before the review hearing. The licensing sub-committee considered the evidence to be irrelevant and, in any event, served too late to be fairly admitted. Mr Uddin made various complaints about the constitution of the licensing sub-committee and the lawfulness of the two immigration inspections. His premises licence was revoked by the licensing sub-committee.

Mr Uddin then appealed this decision to the magistrates’ court and continued operating in the meantime as he was entitled to do.

Mr Uddin also thought it appropriate to lodge formal complaints to various professional bodies about the role played by the council’s legal officers and members (complaints that were later dismissed as entirely baseless).

The appeal proceedings

The appeal was first listed in Hastings Magistrates’ Court for a Case Management Hearing on 1 August 2018. Although Mr Uddin later claimed to have been present in the Court building, he failed to attend court when called by the usher. The Case Management Hearing was re-listed for 15 August 2018 when Mr Uddin attended unrepresented. The two-day appeal hearing itself was fixed for the end of November 2018. Directions were given by the Court to enable the appeal to be prepared efficiently. These included a direction that Mr Uddin serve a document summarising the legal and factual issues in the appeal by 29 August and serve all his evidence on the council by 12 September. Despite warning letters sent by the council to Mr Uddin clearly warning him of the potential consequences of non-compliance with these directions, the appellant failed to serve either the summary of issues or any of his evidence by the deadlines set down or, indeed, at all. Instead he sent the council a long-list of largely irrelevant disclosure requests.

The application to dismiss

Rother District Council had the matter listed before District Judge Teresa Szagun sitting at Hasting Magistrates’ Court on 26 September 2018. They applied to the District Judge to summarily dismiss the appeal and proposed the following procedure, which the Court followed, to ensure procedural fairness and compliance with the principles approved by the Court of Appeal on the conduct of licensing appeals in Hope and Glory [2011] EWCA Civ 31:

1. The Court considers the council’s written evidence, but limited to the original application for review and Rother District Council’s (comprehensive and well-reasoned) decision notice.
2. Since Mr Uddin had produced no evidence, he had nothing to place before the Court.
3. The original applicant for the Review, Rother District Council’s licensing officer Mrs Melanie Robson, was in court and swore on oath as to the truth of the contents of the original review application.
4. Mr Uddin could question the licensing officer.
5. Both parties were permitted to make oral submissions to the Court on issues of fact and law, although the burden of demonstrating the council’s decision “is wrong” lay on Mr Uddin as the Appellant.

The council pointed out that in other civil cases, the County Court and High Court had a power to strike out claims if a party failed to comply with court directions (see CPR 3.4). Although the Civil Procedure Rules did not apply to licensing appeals in the magistrates’ court they could provide a “good guide” to appropriate and fair procedures in some circumstances (see Cleary [2006] EWHC 1869 (Admin) at paragraph 34). It was right that the magistrates’ court also effectively managed its own processes in the interests of justice.

The District Judge’s ruling

Having followed the summary procedure proposed by the council, District Judge Szagun dismissed the appeal and so the revocation of The Chilli Tree’s premises licence took immediate effect. She also ordered Mr Uddin to pay the council’s costs to date in full.

In the course of her oral judgment, and during argument, DJ Szagun noted that Mr Uddin had a track record of failing to comply with directions made in the interests of justice and designed to ensure an efficient hearing of the appeal. He appeared to be using the statutory appeal process primarily as a stratagem to permit his restaurant to continue to sell alcohol in the interim period until the full appeal was heard. He had conspicuously failed to demonstrate his intention to properly pursue his appeal through to the final hearing scheduled for November 2018. The council had properly put Mr Uddin on clear notice that if he did not comply with the Court’s directions they would apply to summarily dismiss the appeal on this occasion. Mr Uddin should have instructed lawyers to assist him prepare for the appeal (as both the Court and council had previously recommended) and he could not simply rely on his self-representation or claims of impecuniosity as an excuse to ignore court directions.

Conclusion

Many local authorities are faced with appellants who appeal adverse licensing decisions without any real intention of pursuing that appeal through to a final hearing in the magistrates’ court. They often do so for the commercial gain that will flow from being able to operate in the lengthy interim period between the council’s decision and the full appeal hearing being determined. However, where appeals are pursued with a flagrant disregard to court directions, this case demonstrates that local authorities can take a robust and pro-active stance in bringing those proceedings to a swift and successful end. This in turn ensures the council’s original decision will take effect sooner rather than later and the costs of preparing for a full appeal hearing avoided. Local authorities should be prepared to fight fire with fire when faced with difficult appellants abusing the appeal system and ignoring court directions at the expense of the wider public interest.

Gary Grant, Barrister of Francis Taylor Building, acted for Rother District Council instructed by Andy Eaton (FIOL), Deputy Legal Services Manager for Wealden and Rother District Councils.