Defending decisions taken in line with adopted licensing policies
Last month a High Court judge handed down an important judgment on the approach to departures from licensing policy. Josef Cannon KC looks at the lessons from the ruling.
The case before Mr Justice Linden is about taxi licensing but its implications are wider, and are likely to touch on the question of when, and in what circumstances, it will be appropriate to reach a decision on a licensing question which is different from that indicated by policy.
Six hackney carriage drivers appealed against the decision of Welwyn Hatfield Borough Council to refuse to renew their vehicle licences beyond the 8th anniversary of the first registration of the vehicles concerned, in line with their lawfully-adopted policy. A District Judge in the magistrates’ court allowed their appeals on the (general) basis that each had been affected by the COVID-19 pandemic and lockdowns and as such an extension of 12 months was warranted. Curiously, in each case, that 12-month period had already elapsed by the time of the DJ’s decision but she allowed the appeals nonetheless, describing her decision as a ‘Pyrrhic victory’ for the appellants. The Council appealed by way of Case Stated.
On 23 December 2024 Mr. Justice Linden allowed the Council’s appeal, and overturned the District Judge’s decision. The appeals were all dismissed:
- The DJ had asked herself the wrong question: it was not what the magistrates’ court would have done had it been taking the initial decision, but what it should do now, in light of all it had heard; and that included the fact, in this case, that the 12-month extension had already elapsed.
- Relying on the first instance dicta in Hope & Glory, the de novo nature of the jurisdiction meant that a decision could be wrong when it was first taken, but shown to be the right outcome by the time of the appeal, as well as the reverse (right at the time of the decision, but wrong by the time of the appeal).
- In respect of the policy, it was for an appellant to justify his case for a departure from policy, recognising that a policy, however strictly drafted, must always permit of exceptions. But that question must be judged in the light of all the factors, including the purposes of the policy, and the effect on those purposes if a departure were sanctioned.
- The pandemic was not, in and of itself, justification for departing from the policy. What was potentially relevant was any effect of that pandemic on the question at hand (for example, had there been reduced use of the vehicles during that period?). That was to be judged, in each case, on the evidence available, and in the light of the countervailing factors identified above.
- In that context the financial impact of the pandemic on the appellants was not likely to be relevant: it was “not immediately obvious” how that would go to the purpose of the policy, and might be likely to undermine those purposes if used as a reason to depart from the policy.
In the great tradition of Christmas, there is always a small disappointment: because the Respondents did not attend to argue their case at court, instead sending in written submissions, the case is not strictly citeable in the senior courts. It is nonetheless likely to be highly persuasive authority for the proper approach to such questions in future.
Josef Cannon KC is a barrister at Cornerstone Barristers. He acted for the successful Appellant, instructed by Samantha Sheriff of WHBC Legal Services.
