England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL against an order made on 11 May 2009 by Stadlen J

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/01/2010

Lord Justice Wall:

1. I heard this application on 5^th November 2009. At that point I had unfortunately not had the opportunity fully to read the papers. What I decided to do, therefore, was to hear counsel for the applicant and to reserve judgment. I had intended to hand down judgment in the Michaelmas term, but was prevented from doing so by pressure of other work. I would like, accordingly to apologise to the applicant for the fact that I have not been able to give the application my full attention until today.
2. This is a renewed application by In the Pink Limited (the applicant) for permission to appeal against an order made on 11 May 2009 by Stadlen J dismissing the applicant's application for judicial review of a decision made by the Leeds Magistrates Court (the justices). The judge dismissed the application on terms that the case was to be remitted back to the justices to enable them to amend their decision and the conditions they had imposed in order to reflect their intention when making their decision. The judge refused permission to appeal to this court, and permission to appeal was refused on paper (with detailed reasons) by Sir Richard Buxton on 11 September 2009.
3. The applicant seeks to have the decision of the justices quashed, and an order that the justices reconsider the matter and reach a reasoned decision according to law.
4. I am content to take the relevant background facts from the decision of the judge [2009] EWHC 1850) Admin: -

2. The claimants (the applicant in this court) are the owners and operators of the nightclub known as The Birdcage situated at 52 Boar Lane, Leeds. On 28 August 2005 the Leeds City Council licensing authority granted the claimants a premises licence in respect of The Birdcage authorising:

3. (i) sale by retail of alcohol for consumption on the premises every day between the hours of 11.00 am and 5.00 am.

4. (ii) Provision of facilities for dancing every day between the hours of 11.00 am and 6.00 am.

5. (iii) Provision of dance every day between the hours of 11.00 am and 6.00 am.

6. (iv) Provision of recorded music every day between the hours of 11 am and 6 am.

7. (v) Anything of a similar description every day between the hours of 11.00 am and 6.00 am.

8. (vi) Facilities for entertainment of a similar description every day between the hours of 11.00 am and 6.00 am.

9. At 12.30 am on 5 March 2006 Inspector John Hampshire of the West Yorkshire Police issued, pursuant to section 161 of The Licensing Act 2003, a closure order to Christopher Edwards, the managing director of the claimants, closing The Birdcage. This followed an incident in which there had been violence between a couple involving the use of a glass which had resulted in serious injury. The making of the closure order triggered the provisions of sections 165 and 167 of The Licensing Act 2003, the former relating to the consideration of a closure order by the Magistrates' Court and the latter a review of the premises licence following such a closure order.

10. On 8 March 2006 the Leeds District Magistrates' Court held a hearing to consider the closure order and decided not to exercise any of its powers under section 165(2).

11. On 3 April 2006 the Leeds City Council licensing authority held a review of the premises licence relating to The Birdcage and made the following decisions:

12. 1. To suspend the licence for a period of two weeks.

13. 2. To modify the conditions to the licence to restrict:

14. (a) The hours between which the premises were open to the public as follows. Wednesday and Thursday, 11.00 am to 2.00 am. Friday to Saturday 11.00 am to 2.30 am. Sunday 11.00 am to 2.00 am.

15. (b) The hours for the sale and consumption of alcohol and all other licensable activities, except recorded music, to Wednesday and Thursday 11.00 am to 1.00 am, Friday to Saturday 11.00 am to 1.30 am. Sunday 11.00 am to 1.00 am.

16. (c) The hours for the provision of recorded music to Wednesday and Thursday 11.00 am to 2.00 am. Friday to Saturday 11.00 am to 2.30 am Sunday 11.00 am to 2.00 am.

17. (d) The capacity of the premises to 500.

18. (e) The prohibition of drinks promotions.

19. (f) Increase the number of door staff on Fridays and Saturdays to ten of whom two should be female.

20. (g) Adopt a cooling down period where the volume of the music was reduced during a one-hour period to the premises closure.

21. Against that decision the claimants appealed to the defendant, the Leeds District Magistrates' Court. That appeal was heard between 21 and 23 October 2008. The explanation for the very long gap between the decision of the licensing authority in April 2006 and the hearing of the appeal in October 2008 is attributable to the fact that the claimants had in the meanwhile applied for judicial review against the police closure order on 30 May 2006, albeit that application was subsequently withdrawn on 19 October 2007, the claimants agreeing to pay the police costs in the sum of nearly £5,000.

22. The defendant magistrates handed down their decision on 6 November 2008. Having determined that a period of suspension was inappropriate, they considered that the imposition of the following conditions were necessary to further the aims of the licensing objectives. Accordingly they substituted for the decision of the licensing authority, the variation of the licensing conditions in the following terms:

"1. Hours for the Sale and Consumption of alcohol and all other licensable activities (except recorded music) as follows:

Wednesday and Thursday 11.00 pm to 1.00 am.

Friday and Saturday 11.00 pm to 1.30 am

Sunday 11.00 pm to 1.00 am.

Recorded Music

Wednesday and Thursday 11.00 pm to 2.00 am.

Friday and Saturday 11.00-pm to 2.30 am.

Sunday 11.00 pm to 2.00 am.

2. The capacity of the premises to be limited to 500 customers.

3. There will be one of member of door staff for every 75 customers.

4. At least one member of door staff to be female.

5. No inclusive drink promotions at any time.

6. Time led drink promotions to be between 8.00 pm and 10.00 pm on Wednesdays and Thursdays and the price should be no less than 50 per cent of the establishment's normal price.

7. No other reduced price promotions on any other night.

8. Adopt a cooling down period where the music volume shall be reduced for one hour prior to the closing of the premises.

9. All glasses to be made of toughened glass or plastic.

These conditions will come into operation on 1 December 2008."

5. As Sir Richard Buxton pointed out, the order as drawn was plainly defective. The judge, in paragraph 25 of the judgment, himself started: -

23. It was apparent on the face of the written decision of the magistrates, as set out above, that, unlike the decision of the licensing authority, the conditions which they imposed in substitution for those imposed by the licensing authority did not expressly stipulate closing times for the premises. There was thus no equivalent condition laid down by the magistrates to that laid down by the licensing authority which modified the conditions to the licence to restrict "the hours between which the premises are open to the public.

28. Correspondence followed, and the applicant applied for judicial review of the justices' decision. On 13 January 2009, Mr. Glen Cooper, a legal adviser to the justices, wrote to the applicant setting out what the justices had intended to achieve. However, before the judge, counsel for the applicant submitted; (1) that the original decision was clearly deficient by its failure to state the hours within which the club was permitted to be open; (2) that the original decision was erroneous and/or irrational and/or perverse in that it provided for the cessation of the sale or consumption of alcohol at the same time; (3) that the effect of the decision providing for the cessation of the sale and consumption of alcohol at the same time was to prevent drinking up, which was contrary to licensing policy; and (4) that these errors and deficiencies were evinced by the fact that the interested party was driven to write to the defendants seeking clarification of these matters. He also submitted; (5) that the provision in the decision providing for the cessation of the sale and consumption of alcohol at the same time could not be described as a mere typographical error or an incorrect statement of the claimant's true intention; (6) that an order that is to be incorporated into a licence should be clear and unequivocal; (7) that those significant deficiencies and errors could not be remedied by the contents of the letter of 13 January 2009; (8) that the effect of that letter was not to clarify the defendant's decision but to change it in material respects. Thus it did not fall within the slip-rule. Finally he submitted that the letter from Mr Cooper was not a decision of the defendants. It did not provide reasons for any change or justifying the decision. The letter contained the observations of the magistrates' legal advisers, rather than the decision making court itself, and the matters set out in the letter appeared to have been determined by only two members of the original court (of three), possibly separately.

6. In these circumstances, counsel argued that the court should allow the application, quash the decision of the justices, and make a mandatory order requiring them to reconsider their decision and determine the applicant's appeal according to law.
7. The justices were not represented before the judge, but the Leeds City Council (the Council) was joined as an interested party. The Council argued that the procedure identified in English v. Emery Reimbold and Strick Limited [2002] 1 WLR 2409 and Re T (Contact: Alienation: Permission to Appeal [2003] 1 FLR 531 should be followed, and that the decision should be remitted to the justices to enable them to amend the terms of their decision and the conditions so as reflect their true intentions. The judge accepted that submission. In paragraphs 48 to 52 of the judgment, he expressed himself in the following way:-

48. In those circumstances, it seems to me that the position is analogous to that of the case considered by the Court of Appeal in Islington London Borough Council v Honeygan-Green [2008] 1 WLR 1350 (a decision which the judge had earlier discussed). Although that was a case considering the effect of two of the rules in the CPR and although the magistrates were here exercising what has been described as administrative function in hearing an appeal from a licensing authority, as a matter of principle it does not seem to me that there is any reason to conclude that the principles applied by the Court of Appeal in the judgment of Keene LJ should not apply in a situation such as this.

49. It is clear from Mr Cooper's letter and (subsequent) e-mail that the language of the conditions in the written reasons did not reflect the true intentions of all three magistrates, that what they did intend was that the closing time should be one hour later on each day than the time at which the sale of alcohol was to come to an end and that, contrary to what appeared in express terms in their written reasons, it was their intention that, whereas the sale of alcohol was to conclude at 1.00 am on Wednesday, Thursday and Sunday and 1.30 am on Friday and Saturday, the consumption of alcohol was to be permitted for a further hour on each of those days during the cooling down period referred to in condition 8 while the music volume was being reduced for one hour prior to the closing of the premises. It is also clear, as Mr Bell picked up in his letter, from that last passage in paragraph 8 that the magistrates had indeed intended that there should be a closing time as part of their conditions and that that closing time should be one hour later on each day than the end of the time for the sale of alcohol.

50. It is right, and Mr Mason (for the applicant) was entitled to rely on the fact, that in terms condition 1 was expressly providing that the consumption of alcohol was to terminate at 1.00 am and 1.30 am respectively on the relevant days, so that the intention of the magistrates actually given effect to would be inconsistent with the express terms of that part of the decision and the conditions.

51. Nonetheless, it seems to me, looking at this realistically, that it is quite plain that this was simply an oversight on part of the magistrates. Even without the letter from Mr Cooper, it seems to me that the inference to be drawn when one looks at all the conditions together, coupled with the reasoning process which precedes it, that the intention was that there should indeed be a closing time an hour later than the final time for selling alcohol and that the cooling down period referred to in condition 8 was intended to include a drinking up time as well.

52. In my judgment, even if I were wrong in the conclusion that I have made, it would be wrong as a matter of discretion to allow a substantive quashing of the order with the effect that the magistrates would need to have a substantive rehearing to consider the question of the time up to which alcohol could be consumed and the time at which the premises were be closed since it is perfectly plain, in my judgment, both from the written decisions and from the letter and the e-mail of Mr Cooper, that the magistrates have already reached a clear view on that points and nothing would be served in a rehearing of those issues at great expense all round.

8. The judge then went on to deal with a number of individual grounds on which the applicant sought to impugn the justices' decision. Having done so, the judge concluded:-

105. It is plain that the magistrates were very concerned by what they regarded as irresponsible drinks promotions being pursued at the club. It is not difficult to see why they were concerned. Having referred to the submission that the promotions were managed and controlled, the magistrates pointed out that the only obvious controls were the promotions on Fridays and Saturday when drinks were half price for specified times and that despite rigorous questioning it was not possible to elicit how the promotions were managed on Wednesdays and Thursdays and that they were told that five specific drinks were sold at 80p and 90p on respective nights until supplies run out but it was not possible to ascertain the quantities available for sale. On Sundays all drinks were sold for £1.50 each all night which meant that for a modest expenditure a considerable volume of alcohol could be consumed. Given their finding that they were satisfied from the evidence that people were attending the club to consume and were being served an excessive amount of alcohol and their agreement with the police findings in identifying a link between the amount of the alcohol consumed and the amount of crime and violence committed, it seems to me that the submission that it was irrational or perverse for the magistrates to impose the conditions that they did in relation to promotions is wholly unsustainable. Indeed, it is the more so when one has regard to the fact that at the hearing in front of the local authority licensing committee Mr Bell on behalf of the claimant again made the concession of offering that there should be no time led or all inclusive drinks promotions at any time at all on any day. Against that concession the submission that the conditions imposed by the magistrates were irrational or perverse seems to me unsustainable.

106. In those circumstances, in my judgment, the claim for judicial review must fail, save to the limited extent which I indicated at the beginning of this judgment, that in my judgment it is right that the case should be remitted to the magistrates in order to enable them to amend their decision so as to make the conditions reflect the intentions which they have indicated they had. It is important that that should be done with expedition so that it is then possible for the licence to be amended to reflect the amended conditions.

9. In refusing permission to appeal on paper, Sir Richard Buxton stated that the Administrative Court had wide power to correct errors in a proportionate way. Sir Richard's view was that the course chosen by the judge was plainly preferable to a remission of the case for the justices formally to repeat the correction that they had already made. The applicant had had a full and proper hearing, and there was no breach of ECHR Article 6. The intention of the justices had been plain.
10. In renewing the application in this court, Mr Mason repeated the submission that despite its wide powers to correct errors, the Administrative Court in the instant case had not itself corrected what were acknowledged to be errors on the part of the justices. What the court had done was to remit the matter to the justices for them to correct their error. This was not permissible. If the justices had no power to correct their own order, the Administrative Court did not have the power to correct the error. The only permissible solution was for the justices' order to be quashed and the case re-heard.

Conclusion

11. Having now had the opportunity to read all the papers and to consider Mr. Mason's careful argument, I find myself in complete agreement with the judge and Sir Richard Buxton. The justices' true intentions are plain enough, and to borrow the words of the overriding objective it would in my judgment be both unjust and disproportionate for the justices' decision to be quashed in order to enable it to be retaken. In my judgment, the law is flexible enough to achieve the result properly directed by the judge.
12. It follows that the application for permission to appeal will be refused.