England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
HIS HONOUR JUDGE MACKIE QC
CO/3285/2009

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/04/2011

Lord Justice Etherton :

Introduction

1. This is an appeal from the order dated 10 June 2010 of HH Judge Mackie QC, sitting as a High Court Judge of the Queen's Bench Division. By that order he dismissed the appellant's claim for judicial review of the decision of Highbury Corner Magistrates Court of 5 January 2009, which dismissed the appellant's appeal from the decision on 28 July 2008 of the Second respondent, the London Borough of Islington ("the Council"), reducing the hours of operation of the appellant's nightclub.
2. The appeal raises two principal issues, both of which turn on the Council's implementation of the provisions of the Licensing Act 2003 ("the Licensing Act"). The first is whether the Council's licensing sub-committee, which decided to amend the appellant's licence on 28 July 2008, had the delegated authority to do so. The second is whether the licensing officer who decided that a representation which had been received by the Council from a member of the public was not frivolous or vexatious and should be brought before the licensing sub-committee had delegated authority to make that decision. The appellant contends that neither the sub-committee nor the licensing officer respectively had authority to make those decisions.

The factual background

3. The appellant owns a nightclub, Orleans ("the club"), which he has been running for about 15 years. Prior to the decisions under challenge, it had a 24 hour licence. On 3 June 2008, a police constable, PC Usher, applied to the Council for a review of the club's licence. During the following 28 days consultation period Mr Nialle Forde, one of the Council's licensing officers, received from a member of the public a complaint about the opening hours and customer behaviour at the Club and a representation supporting the review. Mr Forde decided that was not a frivolous or vexatious representation and that it was a "relevant representation" within section 52(7) of the Licensing Act.
4. On 28 July 2008 the licensing sub-committee considered the matter and decided by a majority of two to one to amend the club's licence and reduce the hours of operation from 24 hours a day to 12 noon to 3.30 am. On 5 August 2008 the sub-committee's decision was communicated in writing to the appellant.
5. On 26 August 2008 the appellant lodged a notice of appeal in the Highbury Corner Magistrates Court. On 5 January 2009 the District Judge upheld the licensing sub-committee's decision and dismissed the appeal.
6. On 3 April 2009 the appellant commenced proceedings for judicial review of the decision of the Magistrates Court. The nub of the claim was that the decision of the licensing sub-committee was a nullity because the power to make the decision was purportedly delegated to the sub-committee pursuant to provisions of the Licensing Act, but those provisions were not in force at the time of the purported delegation; and, so far as concerns Mr Forde, no power had been delegated to him to perform any function pursuant to section 52(7) of the Licensing Act. The judicial review claim was heard by Judge Mackie on 21 May 2010. He delivered his judgment on 10 June 2010, when he dismissed the claim.
7. The first respondent played no part in the judicial review proceedings, and has played no part on this appeal.

The legal framework

8. The Licensing Act received Royal Assent on 10 July 2003. Section 201(2) provided that its provisions would come into force in accordance with provision made by order.
9. Section 3(1) defines "a licensing authority" to include a council of a London borough. Section 6(1) of the Act provides that each licensing authority must establish a licensing committee consisting of at least ten, but not more than fifteen, members of the authority.
10. Section 7, which is headed "Exercise and delegation of functions", provides in sub-section (1) as follows:

"All matters relating to the discharge by a licensing authority of its licensing functions are, by virtue of this subsection, referred to its licensing committee and, accordingly, that committee must discharge those functions on behalf of the authority."

11. Section 9(1) permits the licensing committee to establish one or more sub-committees, consisting of three members of the committee.
12. Section 10, which is headed "Sub-delegation of functions by licensing committee etc" provides as follows, so far as relevant to this appeal:

"(1) A licensing committee may arrange for the discharge of any functions exercisable by it --

(a) by a sub-committee established by it, or

(b) subject to subsection (4), by an officer of the licensing authority.

(2) Where arrangements are made under subsection (1)(a), then, subject to subsections (4) and (5), the sub-committee may in turn arrange for the discharge of the function concerned by an officer of the licensing authority

(3) Arrangements under subsection (1) or (2) may provide for more than one sub-committee or officer to discharge the same function concurrently."

13. Section 51(1) provides that an interested party or a responsible authority may apply to the relevant licensing authority for a review of the licence. Section 51(4) allows the relevant licensing authority at any time to reject any ground for review specified in an application if it is satisfied that the ground is not relevant to one or more of the licensing objectives or, in the case of an application made by a person other than a responsible authority, that it is frivolous or vexatious or a repetition.
14. Section 52(2) provides that the authority must, before determining an application for review, hold a hearing to consider it and any relevant representations. Section 52(3) obliges the authority, having regard to the application and any relevant representations, to take such of the steps mentioned in subsection (4) as it considers necessary for the promotion of the licensing objectives. Those steps include modifying the conditions of the licence. Section 52(7) provides that "relevant representations" are representations that are relevant to one or more of the licensing objectives and that meet the requirements of subsection (8). Those requirements include the following:

"If [the representations] are made by an interested party (who is not also a responsible authority) they are not, in the opinion of the relevant licensing authority, frivolous or vexatious."

15. Section 182 provides that the Secretary of State must issue guidance to licensing authorities on the discharge of their duties under the Licensing Act.
16. Schedule 6 contains provisions for "Minor and Consequential Amendments". It provides in paragraph 58 for the insertion of a new sub-section (15) to section 101 of the Local Government Act 1972 ("the LGA") as follows:

"(15) Nothing in this section applies in relation to any function under the Licensing Act 2003 of a licensing authority (within the meaning of that Act)."

17. Schedule 8 contains transitional provisions.
18. Those provisions came into force on different dates. Sections 3 to 5 came into force on 16 December 2003. Sections 6 and 9(1) came into force on 10 September 2004. Sections 7 and 10 came into force on 7 February 2005. Sections 51 and 52, which govern the licence review process which took place in the summer of 2008, came into force on 24 November 2005. That was also the date on which paragraph 58 of schedule 6, inserting the new sub-section 101(15) of the LGA, came into force.
19. Written guidance was issued by the Secretary of State pursuant to section 182 of the Licensing Act in July 2004 ("the Guidance").
20. Two further statutory provisions are material to this appeal. One is section 101 of the LGA, which provides as follows, so far as material:

"(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions —

(a) by a committee, a sub-committee or an officer of the authority…

(2) Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority and where by virtue of this section any functions of a local authority are discharged by a sub-committee of the authority, then, unless the local authority or the committee otherwise direct, the sub-committee may arrange for the discharge of any of their functions by an officer of the authority."

21. As I have said, the new sub-section (15) to section 101 of the LGA, set out in paragraph 58 of schedule 6 to the Licensing Act, came into force on 24 November 2005.
22. The other statutory provision is section 13 of the Interpretation Act 1978 ("IA"), which is headed "Anticipatory exercise of powers". It provides:

"Where an Act which (or any provision of which) does not come into force immediately on its passing confers power to make subordinate legislation, or to make appointments, give notices, prescribe forms or do any other thing for the purposes of the Act, then, unless the contrary intention appears, the power may be exercised, and any instrument made thereunder may be made so as to come into force, at any time after the passing of the Act so far as may be necessary or expedient for the purpose:

(a) of bringing the Act or any provision of the Act into force; or

(b) of giving full effect to the Act or any such provision at or after the time when it comes into force."

The appellant's complaint

23. At its meeting on 26 January 2005 the Council's licensing committee, which had been established at a meeting of the Council on 5 January 2005, resolved to delegate various licensing functions under the Licensing Act to sub-committees and to the Assistant Director Environment Conservation (Public Protection) ("the Assistant Director"). They included the consideration of applications to review licences for club premises. Decisions as to whether a complaint was irrelevant or frivolous or vexatious were delegated to the Assistant Director. The principal point of the appellant is that neither section 7 of the Licensing Act, by which the licensing authority's licensing functions are automatically referred to its licensing committee, nor section 10 of the Act, which empowers the licensing committee to arrange for the discharge of any its functions by licensing sub-committees and officers, were in force on 26 January 2005. Those provisions only came into force on 7 February 2005. Sections 51 and 52 did not come into force until 24 November 2005.
24. The appellant says that the consequence is that, on 26 January 2005, the Council's licensing committee had no functions which it could lawfully delegate, and, in any event, no power then existed for the licensing committee to arrange for its functions to be discharged by sub-committees and officers. The purported delegation of its functions on that day were, accordingly, ultra vires and a nullity. The appellant contends that it therefore follows that the licensing sub-committee had no lawful authority on 28 July 2008 to amend the appellant's licence, and its decision to do so was a nullity. He further says that, in any event, the power to decide what was or was not a frivolous or vexatious representation for the purposes of section 52(8) of the Licensing Act was delegated to the Assistant Director alone, and not to any other officer or officers such as Mr Forde.

The judgment

25. The grounds on which the Judge dismissed the appellant's claim for judicial review may be briefly summarised as follows. First, at the time that the Council's licensing committee purported to delegate functions to sub-committees in the mistaken belief that it had power to do so under the Licensing Act, it in fact had power under section 101 of the LGA to do what it thought it had power to do under the Licensing Act. Accordingly, section 101 of the LGA could and would, if necessary, have validated the decision.
26. Secondly, IA section 13 enabled the Council's licensing committee to appoint sub-committees and to delegate functions to them at any time after the passing of the Licensing Act as the "doing of any other thing" within section 13. The Judge rejected the submission of the appellant that the provisions for bringing the various parts of the Licensing Act into force revealed a contrary intention.
27. Thirdly, the Judge considered that the scheme of delegation was retrospectively validated by its adoption and ratification by the Council's licensing committee on the occasion of each of its meetings in May 2005, May 2006, May 2007 and May 2008, when the committee approved the establishment of licensing sub-committees with specific members, and the meeting proceeded on the basis that the scheme of delegation had already been lawfully put into effect.
28. So far as concerns Mr Forde's authority to carry out delegated functions under section 52(7) of the Licensing Act, the Judge said that it was unimaginable that the members of the licensing committee would have expected the Assistant Director personally to sift and distinguish the actual from the potentially frivolous and vexatious material. He quoted Turner J in Prytherch v Conwy Borough Council CO/1354/2001 (19.10.2001) at [15], and concluded that the informal delegation of the task by the Assistant Director to Mr Forde was appropriate and lawful. The Judge observed, moreover, that it had not even been suggested that the relevant representation was frivolous or vexatious, which made that aspect of the challenge purposeless.
29. Finally, by way of general concluding comment, the Judge said the fact that there had been no suggestion that events had unfolded to the particular prejudice of the applicant since "he ha[d] not been affected by some unfairness of approach or by consideration of irrelevant matters or even, in truth, by some accident of timing" confirmed his view that the application must be refused.

The appeal

30. Ms Helen Mountfield QC appeared for the appellant on the hearing of the appeal. In addition to her able oral submissions, she adopted generally all the written submissions made by Ms Jenni Richards, the appellant's counsel before the Judge, in Ms Richards' detailed and comprehensive skeleton argument prepared for this appeal.
31. The appellant's central point is that on 26 January 2005, when the licensing committee purported to delegate its functions, those functions had not yet been vested in the licensing committee, let alone any power of delegation. The power to set up the licensing committee and to establish sub-committees arose when sections 6 and 9(1) came into force on 10 September 2004. It was section 7, however, which vested functions in the licensing committee. Section 7 vested those functions in the licensing committee automatically when section 7 came into force on 7 February 2005: the delegation did not depend upon any act or resolution of the Council itself. Ms Mountfield pointed out, moreover, that it is apparent from the officer's report for the Council meeting on 5 January 2005 that the Council's officers were fully aware that "the start date for the process of transfer to the new system of licensing" would not begin until 7 February 2005, and so presumably were all the Council members who received that report. The appellant submits that the Judge simply failed to address the significance of section 7(1), and, in particular, that as at 26 January 2005 the Council's licensing committee had no functions it was able to delegate because none had been transferred to the licensing committee itself. Indeed, as at that date those functions did not then exist. The only functions the Council itself then had under the Licensing Act were the establishment of a licensing committee (section 6) and formulating a licensing policy (section 5). The power of review under sections 51 and 52 did not come into force until 24 November 2005.
32. Those considerations compendiously comprise the appellant's first point on the inapplicability of section 101(2) of the LGA. His second point is that the licensing committee never intended to exercise, and never thought it was exercising, the powers of delegation conferred by section 101(2). On 26 January 2005 the licensing committee thought it was exercising, and attempted to exercise, the statutory power of delegation under the Licensing Act. The appellant submits that the Council, having purported to exercise specific statutory powers under the Licensing Act, cannot subsequently rely upon the provisions of the LGA. Ms Mountfield cited, in support of that proposition, R (JK) v Haringey LBC [2009] EWHC 1392 (Admin) (18.12.2009) especially at [42] (HH Judge Birtles) and R v Sefton MBC ex p British Association of Shooting and Conservation Ltd [1998] EWHC Admin 2 (19.4.2000) especially at [30] (Moses J).
33. The appellant submits that point is underscored by the fact that different considerations could arise under section 10 of the Licensing Act, on the one hand, and section 101 of the LGA, on the other hand. There are express limitations in the Licensing Act as to the functions that can be delegated. Further, the power of delegation under section 10 is subject to the duty under section 4(3)(b) of the Licensing Act to have regard to the Guidance. Paragraph 13.76 of the Guidance stipulates that "[w]here licensing functions are not automatically transferred to licensing committees, the functions must be carried out by the licensing authority as a whole and not by its executive."
34. Thirdly, the Appellant contends that the existence of detailed provisions under the Licensing Act and the Guidance as to licensing functions and delegation excludes, by necessary implication, any ability of the Council to rely on the LGA. Ms Mountfield cited in support of that proposition Crédit Suisse v Waltham Forest LBC [1997] QB 362 at 374 (Neill LJ) and 377 (Hobhouse LJ).
35. Fourthly, Ms Mountfield placed reliance on the provision in paragraph 58 of schedule 6 to the Licensing Act for the insertion of the new sub-section 101(15) to the LGA. She submitted that, when that amendment came into force on 24 November 2005, it automatically revoked any previous exercise of the power of delegation under section 101 in relation to the future exercise of functions under the Licensing Act. She also submitted that, even before the amendment came into force, paragraph 58 of schedule 6 fell within the words "Subject to any express provision contained in … any Act passed after this Act" in section 101(1) of the LGA and so excluded the possibility of any use by the Council of the powers of delegation under section 101.
36. Turning to IA section 13, the appellant's first point, as with section 101 of the LGA, is that as at 26 January 2005 the licensing committee could not have delegated its functions to sub-committees or officers because it had no functions itself. Section 7 had not then been brought into force, and the Council itself did not then have any of the functions under the Licensing Act which were intended to be delegated. The appellant submits that, before there could be an anticipatory exercise of the section 10 power of sub-delegation, there had to be a primary delegation of functions to the licensing committee, but that was not the case on 26 January 2005.
37. Secondly, the appellant submits that the phrase in section 13 on which the Council relies - "to do any other thing for the purposes of the Act" - does not extend to the delegation of substantive functions. It is said that, applying the ejusdem generis principle, that is not of the same class as the power to make subordinate legislation, or to make appointments, give notices or prescribe forms. That class, the appellant contends, is limited to machinery.
38. Thirdly, the appellant submits that there was no necessity or expediency, as required by IA section 13, for the delegation of the functions of the licensing committee on 26 January 2005 bearing in mind that the statutory power of delegation under the Licensing Act would be available on 7 February 2005 and, so far as concerns the power of review, sections 51 and 52 of the Licensing Act would not come into force until 24 November 2005.
39. Fourthly, the appellant submits that the scheme for bringing the Licensing Act into force by order and in carefully planned stages, its detailed transitional provisions and its comprehensiveness, including the publication and duty to follow guidance issued by the Secretary of State, amount to a "contrary intention" within IA section 13.
40. The appellant also submits that the Judge was wrong to conclude ([39)] that the Licensing Committee in its meetings on 26 May 2005, 17 May 2006, 22 May 2007 and 22 May 2008 "repeatedly adopted and ratified the scheme of delegation". Ms Mountfield's short point on this aspect that it is legally impossible to ratify an act which is ultra vires and so a nullity. She relies, for that proposition, on Co-operative Retail Services Ltd v Taff-Ely Borough Council (1979) 39 P &CR 223 at 239 and 251.
41. Turning to Mr Forde's role, it is not in dispute that the complaint and representation which he received from a member of the public was, for the purposes of section 52 of the Licensing Act, and in particular section 52(8)(c), a representation made by "an interested party" (being a local resident) who was not also "a responsible authority". The only question was whether it was a "relevant representation", as defined by section 52(7) and (8). That turned on whether it was frivolous of vexatious: section 52 (8). If it was not, then the Council had to take it into account as a "relevant representation" as required by section 52(2) and (3). If it was frivolous or vexatious, the Council was bound to ignore it. Ms Mountfield submitted that the decision whether or not a representation is a "relevant representation" is a core part of the decision-making process on a review under section 52 of the Licensing Act.
42. The appellant says that Mr Forde did not have delegated authority to make that decision for the following reasons.
43. First, on 26 January 2005, when the licensing committee purported to delegate the function of deciding what amounts to a relevant representation, it did not have the power to do so because sections 7 and 10 of the Licensing Act were not in force.
44. Secondly, on 26 January 2005 the licensing committee purported to delegate that particular function to the Assistant Director alone and not to any other officer. They could have delegated to several officers pursuant to section 10(3) of the Licensing Act, as was made clear and indeed was recommended in the Guidance, but they chose not to do so. The Assistant Director purported to sub-delegate to Mr Forde on 16 March 2007, but she had no power to do so: only the licensing committee and sub-committees had the power to arrange for the discharge of licensing functions by officers.
45. Further, the appellant submits that it is not open to the Council to rely upon an alleged implied informal delegation. In the first place, it is said that possibility is inconsistent with the statutory scheme as a whole, including the express statutory powers of delegation to more than one officer. Ms Mountfield cited in that regard DPP v Haw [2007] EWHC 1931 (Admin) at [33] and [34] (Lord Phillips CJ). Further, it is said that the Judge's reliance on Prytherch v Conwy Borough Council was misplaced. The observations in that case were concerned with whether it could have been intended that "the head of a department" would exercise functions personally. In the present case the delegation was not to the head of a department (i.e. to the Director); it was the delegation of a particular function to the Assistant Director (of whom there are usually several). Moreover, Ms Mountfield, citing the observations of Hooper J in R v St Edmundsbury Borough Council ex p. Walton [1999] EWHC Admin 298, submitted that, in view of the importance of the function purportedly delegated to Mr Forde, such a delegation would have to be made formally.
46. The appellant emphasises that the point on Mr Forde's power is not a sterile one. Ms Mountfield said that, since Mr Forde had no authority to decide whether the complaint from the member of the public was frivolous or vexatious, no one with authority to do so ever considered that question.
47. The Judge's order for costs is also challenged, whether or not the appeal succeeds on the other grounds. Mr Gary Grant, junior counsel for the Council, specifically requested the Judge to make an order for costs in favour of the Council which would include the Council's costs of preparing for and attendance at the permission hearing. The appellant says that it is unclear whether or not the Judge's costs order did include pre-permission costs; but, if it did, then the Judge made an error of principle since he failed to follow the guidance of the Court of Appeal in Davey v Aylesbury Vale DC [2007] EWCA Civ 1166 at [10], [21], [31] and [33] and R (Roudham and Larling Parish Council) v Breckland Council [2008] EWCA Civ 714 at [27] and [30]. In particular, reliance is placed on the following statement of principles by Sedley LJ in Davey at [21]:

"(1) On the conclusion of full judicial review proceedings in a defendant's favour, the nature and purpose of the particular claim is relevant to the exercise of the judge's discretion as to costs. In contrast to a judicial review claim brought wholly or mainly for commercial or proprietary reasons, a claim brought partly or wholly in the public interest, albeit unsuccessful, may properly result in a restricted or no order for costs.

(2) If awarding costs against the claimant, the judge should consider whether they are to include preparation costs in addition to acknowledgment costs. It will be for the defendant to justify these. There may be no sufficient reason why such costs, if incurred, should be recoverable.

(3) It is highly desirable that these questions should be dealt with by the trial judge and left to the costs judge only in relation to the reasonableness of individual items.

(4) If at the conclusion of such proceedings the judge makes an undifferentiated order for costs in a defendant's favour

(a) the order has to be regarded as including any reasonably incurred preparation costs; but

(b) Practice Statement (Judicial Review: Costs) [2004] 1 WLR 1760 should be read so as to exclude any costs of opposing the grant of permission in open court, which should be dealt with on the Mount Cook Ltd principles [2004] 2 P&CR 405."

48. The appellant also places particular reliance on the following passages in the judgment of Buxton LJ in Roudham:

"27. For our purposes, the important rule is in principle (2) [of Sedley LJ's statement in [21] of Davey], that when "preparation" costs are sought in addition to "acknowledgment" costs (those I apprehend being the costs of settling the short form acknowledgment) it will be for the defendant to justify those costs, which may well not be recoverable."

"29… In future, and in accordance with principle (3) of the Sedley-Clarke principles, it will be important that the permission judge, who is far better placed than anyone else to decide what needed reasonably to be said in response to a claim, should himself apply the Davey approach to claims for "acknowledgment" and "preparation" costs: bearing in mind what has already been said about giving fair weight to the work necessary before even a short form acknowledgment can be confidently settled."

49. The Appellant says that the Judge failed to apply that guidance or to reach a clear or reasoned conclusion on costs. He failed to make clear whether he was awarding the Council its pre-permission costs, and, if he did make such an award, he failed to give any reason for awarding the Council the costs of attendance at, and participation in, the permission hearing .

Discussion

50. There is a short answer to the appellant's argument that the Council's amendment of the club's licence on 28 July 2008 was a nullity because neither section 7 nor section 10 of the Licensing Act was in force when the licensing committee purported to delegate its functions on 26 January 2005. The evidence shows that, after sections 7 and 10 came into force but prior to 28 July 2008, the licensing committee resolved to delegate to sub-committees its functions under the Licensing Act, including the power of review under sections 51 and 52. In May of 2005, 2006, 2007 and 2008 the licensing committee passed resolutions establishing the licensing sub-committees for the ensuing year and their terms of reference. The minutes of the meeting of the licensing committee on 22 May 2008, which is the relevant meeting for the purpose of this appeal, recorded that it was resolved: "That four Licensing Sub-Committees be established for 2008/09 with the terms of reference set out in para 3A of [the report to the committee of the Director of Corporate Resources]". The relevant paragraphs of that report are as follows:

"3.1 Licensing Sub-Committees are established under the Licensing Act 2003 to exercise all licensing functions as defined by the Act and all licensing functions under the Gambling Act 2005 and any other related matters which may lawfully be delegated to it.

3.2 The Licensing Committee will appoint a number of Sub-Committees to determine applications for licences in respect of licensed premises, entertainments, licences required under the Gambling Act 2005 and late night refreshment premises."

51. Ms Mountfield submitted that those documents do not disclose that the licensing committee was exercising its powers of delegation afresh; and, if it was, the only powers delegated to the sub-committee were those expressly stated in paragraph 3.2 of the report, which did not include the power of review under sections 51 and 52 of the Licensing Act.
52. That is taking a far too narrow and unrealistic view of what the licensing committee was seeking to achieve by its resolution. The resolution itself is quite clear that it was establishing four sub-committees with the members identified in the minutes of the meeting. It is equally clear, set against the statutory background and previous resolutions of the licensing committee, and particularly paragraph 3.1 of the report to the meeting on 22 May 2008, that the licensing committee was not reserving to itself any licensing functions conferred by section 7 of the Licensing Act, but was delegating all those functions to the licensing sub-committees. By necessary implication, it was delegating not merely the obligation to decide applications for licences but also the obligation to review them.
53. Although Ms Mountfield described the point as one concerned with ratification, what was done at the licensing committee's meeting on 22 May 2008 did not purport to be, and was not, a ratification of the delegation that had taken place over four years earlier on 26 January 2005. The licencing committee was passing a resolution establishing and empowering sub-committees for the future discharge of licensing functions.
54. So far as concerns the delegation of authority to Mr Forde, there is, again, a short answer to the appellant's case that the review decision of the licensing committee on 28 July 2008 was invalid because there had been no valid delegation of functions under the Licensing Act to the Assistant Director or the Assistant Director's staff on 26 January 2005 and, even if there was a valid delegation to the Assistant Director, he had no authority to sub-delegate to a licensing officer such as Mr Forde.
55. The obligation of the licensing authority on the review of a licence under section 52 of the Licensing Act to take into account only "relevant" representations, as defined in section 52(7) and (8), and in particular to ignore representations made by an interested party (who is not also a responsible authority) which are frivolous or vexatious, enables the authority to carry out its review obligations in an efficient and cost effective manner.
56. The appellant was refused permission to argue in the judicial review claim that the amendment of the club's licence was flawed by procedural unfairness. As I understand it, the argument which the appellant wished to present was that he would have made representations to the licensing sub-committee that the complaint from the member of the public was frivolous or vexatious because the complainant's address showed that that he could not have witnessed or encountered the matters of which he complained; but, because the complaint was anonymised by the Council and did not show the complainant's address, the appellant did not learn the material facts until too late. As a result of being refused permission to rely on that ground, no argument was run before the Judge, and there is no evidence before this Court, that the representation made by the interested party in respect of the club was frivolous or vexatious. In short, no case was made before the Judge and none is made in the grounds of appeal to this court that the decision of the licensing sub-committee on 28 July 2008 was vitiated by taking into account something which should not have taken into account, whether because it was vexatious or frivolous or otherwise irrelevant. In the absence of any such argument, it is difficult to see the legal basis for contending that the review decision of the licensing sub-committee to amend the appellant's licence on 28 July 2008 was a nullity, even if the appellant is correct about Mr Forde's lack of authority.
57. If that is not correct, then in exercise of the Court's discretion I would in any event refuse to quash the decision of the licensing sub-committee to amend the club's licence. As Ms Mountfield pointed out, the Court's discretion not to quash a decision which was ultra vires is very narrow and exceptional: Berkeley v Secretary of State for the Environment [2001] AC 603 at 608 (Lord Bingham) and 616 (Lord Hoffmann). In the absence, however, of any argument or evidence that on 28 July 2008 the licensing sub-committee took into account something that was frivolous or vexatious or otherwise irrelevant, I regard this as an appropriate case for the exercise of the discretion. Mr Nigel Giffin QC, for the Council, aptly described the complaint about Mr Forde's role as one of "arid technicality". Like the defect in R (Reckless) –v- Kent Police Authority [2010] EWCA Civ 1277, it goes "to form" rather than substance: see Dillon LJ at [54].
58. The appeal on the substantive issues must therefore fail. I have considered whether I should express a view about the elaborate and extensive arguments we have heard on section 101 of the LGA and section 13 of the Interpretation Act. They raise important and not entirely straightforward issues, and I have concluded that they are better left to a case in which it is necessary to decide them.
59. So far as concerns the appeal in relation to costs, the relevant part of the Judge's order was –"that the Claimant do pay the Second Defendant's costs of the proceedings, to be subject to detailed assessment if not agreed." Although Mr Grant had specifically submitted to the Judge that the order for costs should include the Council's costs of preparing for and attendance at the permission hearing, neither the order nor the Judge's judgment made any reference to those costs.
60. Mr Grant and his solicitor did not attend the permission hearing as a result of a request from the Court. Mr Giffin pointed out, however, that Mr Grant's attendance resulted in some of the grounds of claim being disallowed, and was of assistance to the court.
61. The principles applicable to this issue were set out in the Court of Appeal's judgments in Davey v Aylesbury Vale DC. Mr Giffin did not argue the contrary. The fourth principle in the judgment of Sedley LJ at [21] is that, if at the conclusion of judicial review proceedings the judge makes an undifferentiated order for costs in a defendant's favour, there should be regarded as excluded any costs of opposing the grant of permission in open court. I see no reason why that principle should not apply in the present case. If the Council considered that the order or the judgment mistakenly failed to give effect to the Judge's intention, the Council could and should have applied to the Judge for a correction so as to give effect to the Davey principle. Accordingly, the Judge's order for costs is to be interpreted as excluding the Council's costs of preparing for and attendance at the permission hearing, and so the appeal in relation to costs does not arise.

Conclusion

62. For the reasons I have given, I would dismiss this appeal.

Sir David Keene

63. I agree.

Lord Justice Longmore:

64. I also agree.