QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|ZAHARIS GONIS and DARRELL GIRVAN||(CLAIMANT)|
|WESTMINSTER CITY COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR T SPENCER (instructed by Director of Legal & Administrative Services, London, SW1E 6QP) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Where the council are satisfied that premises in the City are being used as a sex establishment without a licence in breach of Schedule 3 they may serve a closure notice in respect of those premises."
There is then provision for service of the closure notice to which I will return because it bears upon the third of the questions which I have to determine. Section 4(1) provides that:
"Subject to subsection (2) below [which is immaterial] the council may, not less than 14 days and no later than 6 months after the service of a closure notice make a complaint to a justice of the peace acting for the petty sessions area in which the premises are situated for a closure order in respect of that closure notice."
"Service of a summons issued by a justice of the peace on a person other than a corporation may be effected-
(c) by sending it in post in a letter addressed to him at his last known or usual place of abode."
Subsection (5) provides that:
"Any summons or other document served in manner authorised by the preceding provisions of this rule shall, for the purposes of any enactment other than the Act of 1980 or these Rules requiring a summons or other document to be served in any particular manner, be deemed to have been as effectively served as if it had been served in that manner."
Rule 99 therefore provided an alternative method of service. On the district judge's findings in this case it was complied with. It is therefore unnecessary to consider the argument whether or not service under the mechanisms described in section 8 of the 1996 Act was mandatory or whether it simply provided for a number of alternative methods. Rule 99 makes it plain that section 8 is subject to the provisions for service by post. Service by post is therefore good and the second argument therefore falls.
"(i) at least one person having control of or an interest in the business carried on in the premises.
(ii) the occupier of any other part of the building in which the premises are situated and to which, in the opinion of the council, access would be impeded if an order under section 4(5)(a) below were made in respect of the premises."
Subsection 3(2)(b) provides that a closure may be served on any other person having an interest in the premises. Section 4(3) requires a summons to be served upon all persons upon whom a closure notice was served under section 3(2)(a)(i), but subsection (4) provides that:
"Where a summons issued under subsection (3) above is served a notice stating the date, time and place at which the complaint will be heard shall be served on all persons upon whom the closure notice was served under section 3(2)(a)(ii) and (b) above."
Thus the statutory scheme requires that notice of the issue of the summons be served on a person having an interest in the premises upon whom no closure notice was required to be served, if the closure notice was in fact served on him.
"If, on hearing the complaint, the court is satisfied that --
(a) the closure notice was properly served."
(there then follows the requirements of substance which give rise to the complaint)
"... it may make an order under this section."
Section 4(4) imposes a mandatory requirement where a summons is issued under subsection (3) for the service of a notice stating the date, time and place at which the complaint will be heard, to be served upon, amongst others, persons upon whom the closure notice has been served, including those upon whom it had been served in the exercise of discretion under section 3(2)(b).
The fundamental question which should have been posed before the district judge was whether or not a failure to comply with that requirement rendered the proceedings before him a nullity or required him to adjourn the proceedings so that notice could be served by one of the means specified in section 8 or rule 99 upon Porterre SA.
As to whether or not the proceedings were a nullity without service of such a notice, useful guidance was given by the Court of Appeal in Westminster City Council v Mendoza  EWCA Civ 216. In paragraph 32 of his judgment the Lord Chief Justice observed, having referred to observations made by him in London and Clydeside Estates Ltd v Aberdeen DC  1 WLR 182:
"I sought to emphasise that the fact that a procedural requirement states that something shall be done does not mean that if it is not, that the result is a nullity. It is very important to look at the intention of the legislation in assessing the requirement. It may be an obligation which is clearly set out, but the consequences of not complying with the obligation depend very much upon what is the statutory intent of the legislation as a whole. In this case, as I have sought to make clear, the purpose of the legislation so far as the occupiers of the basement were concerned is clear. "
The facts concerned an occupier of premises likely to be affected by service of the notice upon whom service of the closure notice was required by section 3(2)(a)(ii).
"It was to give them an opportunity to be heard. That opportunity could be achieved by any service on those persons which enabled them to take part in those proceedings if they wished so to do."
In paragraph 33 the Lord Chief Justice observed that the legislation sought to draw a proper balance between the interest of those who occupied premises and the public interest, and stated:
"It is important not to achieve any result which causes injustice to occupiers, but equally it is important to come to an interpretation which does not frustrate the City of Westminster in the interests of the public to enforce the legislation with which we are here concerned."
At paragraph 51 May LJ, concurring, observed:
"It seems to me that the requirement of section 4(5)(a) that, on the hearing of the complaint, the court has to be satisfied that the closure notice was properly served means what it says. It has to have been properly served on those upon whom it ought to have been served. I agree with the Lord Chief Justice that it is unhelpful to ask whether these provisions are mandatory or directory. Plainly the hearing of the complaint cannot properly proceed if those who ought to have been served have not been served, nor, importantly, if they have not been given due notice of the hearing of the complaint."