England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)

		Royal Courts of Justice Strand London WC2 Monday, 11th March 2002

Monday, 11th March 2002

1. LORD JUSTICE SCHIEMANN: Before us is an appeal from Collins J in relation to a licensing matter which is perhaps of some general importance. It concerns costs and the jurisdiction of magistrates to award costs under section 193B of the Licensing Act 1964, a provision which was inserted by the Licensing Act 1988. It reads in subsection (1):

"On the hearing of any application under this Act relating to licensed premises or a seamen's canteen, the licensing justices may make such order as they think just and reasonable for the payment of costs to the applicant by any person opposing the application or by the applicant to any such person."

2. The claimants before Collins J sought judicial review of a decision of licensing justices to award costs against them in relation to their proposed opposition to an application which came before the justices for decision on 12th October 2001. The facts of the matter and the arguments appear, in substance, from the careful judgment of Collins J, from which most of the following is taken.
3. On 7th July 2001 the Licensing Justices granted a new justices' on-licence to individuals, whom the judge called the "interested parties", in respect of some premises in Harlow known as Gads. Those premises, it seems, were operated as a lap dancing club. Shortly thereafter the interested parties applied to the licensing justices for a Special Hours Certificate pursuant to section 77 of the Licensing Act 1964. The application itself was made pursuant to rule 3 of the Licensing Special Hours Certificate Rules 1982. Rule 3(1) reads:

"At least [twenty one] days before applying to the licensing justices for a special hours certificate [under section 77 or 77A of the Licensing Act 1964]... the applicant shall give notice in writing to the chief officer of police for the area in which the premises to which the application relates are situated and to the clerk to the licensing justices of his intention to make the application."

4. There are then requirements to display notices of the intention to apply so that the public can know about it, and to advertise it to alert any person who might wish to object to the application so that such objection can be made.
5. Rule 3A of the same rules deal with what must be done by a person who intends to object. It reads:

"A person intending to oppose an application for the grant of a special hour's certificate under section 77 of the Act... shall give notice in writing of his intention to the applicant and to the clerk to the licensing justices, specifying in general terms the grounds of the opposition, not later than seven days before the commencement of the licensing session at which the application is to be made and unless notice has been so given the licensing justices shall not entertain the objection."

6. It is to be noted that in both rules 3 and 3A the requirement is to give notice of intention; in the case of rule 3 of the intention to apply; and in the case of rule 3A of the intention to oppose.
7. The actual application is dealt with by the justices at the relevant sessions or, if adjourned, at the adjourned sessions. There was, in the present case, an adjournment until 12th October. That was an adjournment which had been procured without the attendance of either party because they had been notified that the justices would not be able to hear the application on 4th August, and the matter had been put over to 12th October by consent.
8. There was, before Collins J, an affidavit by the solicitor for the interested parties, in which he stated that, at all times up to and including the late morning of 11th October, it was his understanding that a full hearing would proceed, and at approximately 12.30 pm, by fax, he received his first notification that the objections were not to be pursued. The fax read as follows:

"... we write to confirm that we have been instructed by our clients Luminar Leisure Limited to withdraw their objection to the above application, which is listed for hearing on 12th October 2000."

9. The interested parties' solicitor indicated that they would nonetheless propose to apply for an order for costs against the claimants. The claimants attended the hearing by counsel, but solely for the purpose of contesting any award of costs. They were not, as they made clear, attending in opposition to any application for the special hours certificate, but merely to contest the application for costs which they knew was going to be made.
10. The justices, as I have indicated, decided, in principle, to award costs. After reciting the names of the objectors and of the applicants, their formal order, so far as the application was concerned, goes on:

"And the objectors having lodged notice of objection to the application the matter today came before this Committee for determination.

And the objectors by way of letter dated 11th October 2000 withdrew their objection to this application.

The committee therefore granted the application for the section 77 certificate."

11. The justices, in their grounds for contesting the claim, said this: "The attention of the Licensing Committee was drawn to section 193B of the Licensing Act 1964 and the power of the committee to order costs. The committee considered that the fact that the objectors had purported to withdraw their objection did not mean that they ceased to be 'persons opposing the application' for the purposes of section 193B." The learned judge said, correctly, that the point before him was a very short point. He said this, at paragraph 20 and onwards:

"It depends upon the construction of section 193B. Mr Saunders has relied on the history of the legislation, pointing out that until 1988, when section 193B was inserted, there was no power in justices to award costs at all. Furthermore, there is a very limited power which only relates to applications relating to licenced premises or seamen's canteens... Accordingly, it is not a general power for Licensing Justices to award costs and it is to be noted that there is no such power in relation, for example, to an application for a liquor licence. Thus, the application made by the interested parties for the on-licence would not have entitled them to an award for costs even if there had been objectors and thus costs had been incurred in meeting the objection. It is... a limited power.

21. Mr Saunders has also drawn attention to the manner in which the regulations deal with the need to apply and to oppose in each case. As I have already indicated, the 1982 Rules talk about giving notice of an intention to make an application and an intention to oppose. The supposition is that the actual application will be when it is heard before the Licensing Justices. Equally, it is submitted the actual opposition will take place when the matter is heard before the justices. Of course, rules cannot in any way determine the construction of primary legislation, but they can be expected prima facie to be consistent, and when one sees in the primary legislation the words 'on the hearing of any application under this Act relating to the licensed premises', one immediately thinks that what Parliament was intending was that the costs should be awardable, and only awardable, if there was a hearing.

22. Thus, if one may put it the other way round, if an applicant for a Special Hours Certificate withdrew his application at the last moment, leaving the interested party who had intended to oppose nothing to oppose, he equally would not be able to obtain his costs of work done in mounting his objection, even if that objection may have led the applicant to decide to abandon his attempt to obtain the Special Hours Certificate, because in those circumstances there would have been no hearing since the application would have been withdrawn and abandoned. So, it as it seems to me, it should work the other way round on the language, and it is only a person opposing on the hearing who is entitled to costs."

12. Then he says at paragraph 28:

"One sees the arguments that can be deployed both ways, but I have to come back to the statutory language which, in my judgment, is clear and indicates that Parliament intended a very limited power which only applied if opposition was taken to the full extent by an attendance at the hearing. In that case, of course, costs could be awarded, not limited to costs incurred at the hearing, but also extending to the costs involved in preparing for the hearing to meet the opposition which was made."

13. Mr Carter-Manning has, I think, accepted the force of the point that the equity of the situation, as it were, runs both ways in the sense that the rules for the applicant who withdraws should be the same as the rules for the opposer who withdraws. In any event that seems to me what one would expect, and there is nothing in the subsection to indicate that different regimes apply to both of them.
14. On the present occasion (and I understand this is quite usual in relation to a case which is expected to be opposed) it was not expected that (if I can use neutral language for the moment) the full hearing of the application should take place on the first day of the sessions when they are all listed. But it seems to me conceptually desirable to start off by considering the situation as it might be if it had actually come on on that day. As it seems to me, if that had happened and there had been a withdrawal of the objection on the day before, the justices would not have had power under the Act to award costs. The application would have been heard on the first day of the sessions and there would not have been anybody opposing the application. Similarly, if the application had been withdrawn, there would not have been an application to hear. In a way the situation is rather clearer if one considers the position of an application withdrawn, because it seems to me that in those circumstances subsection (1) cannot even arguably come into play. The argument the other way is slightly stronger where it is the opposition, not the application, which is withdrawn. One sees that the argument can be made that someone starts opposing the application when he first indicates his intention to oppose (to use the wording of the regulations) and that in real life (to use a favourite expression of Mr Carter-Manning for which I have sympathy) they are regarded as opposing the application by the person who is making the application and everybody is gearing up accordingly. But nonetheless the grammar of the sentence seems to me to point to the conclusion to which the judge came. Mr Carter-Manning said that even if one took that view in relation to a hearing which took place on the first day of sessions there was in the present case, and typically so, according to him, an adjournment; and so the hearing of the application may be regarded as having begun on 4th August.
15. I disagree. The subsection talks about the hearing of any application. It seems to me that, applying those words to the factual situation before us, the hearing of the present application took place on 12th October and in those circumstances there was not at that time any person opposing the application.
16. In my judgment the judge was correct to come to the conclusion which he did, and I would dismiss this appeal.
17. LORD JUSTICE THORPE: I agree.
18. MR JUSTICE NEUBERGER: I also agree. I start with the natural meaning of section 193B(1) of the Licensing Act 1964. It appears to me that the words "any person opposing the application" naturally refer only to a person opposing at the hearing of the application referred to in the opening of that subsection. I accept that is a little surprising in its limitation, at least to a lawyer more familiar with the practice of the civil courts, as opposed to that of the licencing justices. I also accept that, despite the more natural meaning of the word "opposing" it would be possible, in appropriate circumstances, to give a wider meaning to the subsection. Nonetheless, I am satisfied, essentially for the reasons given by my Lord and indeed by the judge below, that that would not be an appropriate course to take here.
19. First, the result of the natural meaning is not so absurd or unlikely that the court should strain particularly hard to arrive at another construction. Second, licensing cases are, as Mr Saunders points out for the respondent, not to be approached in the same way as normal civil cases (see the observations of Scott Baker J in R v Crown Court of Stafford ex parte Wilf Gilbert (Staffs) Ltd [1999] 2 All ER 955 at 959G-H). Third, as my Lord has pointed out, if the application for the licence is withdrawn at the last minute it seems impossible, on any reasonable construction of the subsection, to arrive at the conclusion that an opponent to the application could recover his costs because there would be no "hearing" of the application. That seems to be a strong point in favour of the more natural, if narrow, construction.
20. Finally, I think that so to construe section 193B(1) fits better with the wording of the Rules, albeit, as the judge pointed out, they cannot control the construction of the Act. Nonetheless, that point provides at least some comfort to the conclusion which I have reached.
21. In those circumstances I, too, would dismiss this appeal.
(Appeal dismissed; Appellants do pay the Respondents their costs of the appeal, such costs to be subject to detailed assessment by a costs judge; application for permission to appeal to the House of Lords refused).