England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		26th April 2006

1. MR JUSTICE GIBBS: This is an application for permission by the claimant, as I shall call them, namely TC Projects Ltd, for judicial review of a decision of the Newcastle Justices made on 14 March 2006. This hearing was directed to be a hearing of the application for permission, to be followed, if appropriate, by the substantive hearing of the judicial review claim. By agreement between all the parties, I have proceeded to hear full argument on the claim itself since it concerns two discrete inter-related points.
2. The defendants are the Newcastle Justices. They have indicated that they do not wish to be heard by this court. The proceedings under review concerned the claimant's application for a casino licence to the defendants. There were two sets of objectors, the claimant and an organisation known as Stanley Casinos Limited. They have indicated to the court that they do not wish to make submissions in opposition to this claim. Accordingly, therefore, the effective contest in this claim is between the claimant and Grosvenor Casinos Limited, one of the interested parties, to whom I shall refer simply as "the interested party".
3. On 20 January 2006 the claimant applied for a casino licence to the Newcastle Justices. That application was governed by the provisions of Schedule 2 to the Gaming Act 1968, and in particular by paragraph 6 of that schedule. The schedule itself provides:

"(1) Not later than fourteen days after the making of any such application to the licensing authority, the applicant shall cause notice of the making of the application to be published by means of an advertisement in a paper circulating in the licensing authority's area.

(2) A notice published in pursuance of this paragraph shall specify the name of the applicant, the name of the club and the location of the relevant premises, shall indicate whether the application is for a bingo club licence or for a licence under this Act other than a bingo club licence, and shall state that any person who desires to object to the grant of a licence should send to the proper officer of the licensing authority, before such date (not being earlier than fourteen days after the publication of the advertisement) as may be specified in the notice, two copies of a brief statement in writing of the grounds of his objection."

4. The claimant's notice pursuant to that paragraph was published in the Newcastle Journal on 26 January 2006. It contained these words:

"Any person who desires to object to the grant of the licence should send to the clerk of the said gaming licensing committee before 9 February 2006 two copies of a brief statement in writing of the grounds of his objection."

5. I should perhaps add, although it is of limited consequence in the case, that the claimant had requested the Newcastle Journal to publish the notice on 25 January 2006. Had they done so, a significant amount of litigation might have been saved.
6. At the directions hearing, which took place on 14 March 2006, two objectors, namely the interested party and Stanley Casinos Limited, contended that the date specified in the notice should have been no earlier than 10 February 2006, ie one day later. It was submitted, therefore, and successfully submitted, that the defect in the notice rendered the proceedings a nullity and/or deprived the justices of jurisdiction to hear the application. The justices agreed with that submission, and it is the justices' decision in that regard that is challenged before this court.
7. The claimant submits by way of written argument, and by way of detailed submissions from Mr Howell QC before this court, that the notice in fact complied with the statutory requirement. A simple argument is advanced in support of this. 9 February was in fact the 14th day after publication of the advertisement. It cannot therefore by definition be a date earlier than 14 days after the publication.
8. The submission made by the interested party, so Mr Howell argues, that 14 clear days should elapse between the date of the publication of notice and the date specified in the notice cannot be sustained. It is true that, as Mr Howell concedes, there is a category of case in which 14 days may as a general rule be construed as 14 clear days. That category comprises those provisions which specify a minimum period that must elapse before something may be done. However, it is submitted that that is quite different from the situation in this case in which an objector is given a particular period within which to advance an objection.
9. The interested party's argument on the principle of reductio ad absurdum on the basis of substituting, by way of example, one day for the 14 days in the statutory provision is, it is argued by Mr Howell, simply not applicable to the facts of this case; it does not arise. Alternatively, Mr Howell submits that, even taking the example of one day, an objector would not in fact be deprived of the opportunity of putting forward an objection, although, as he concedes, it would of course be absurd for statute to provide such a short objection period.
10. Mr de Haan elaborates the arguments in favour of requiring 14 clear days' notice. Those arguments are set out in the statement of Mr David Clifton, which have been filed on behalf of the interested party and which I have read with care. Mr de Haan submits that, by specifying 9 February, the claimant was effectively giving the public only 13 days in which to object. The message conveyed was that 8 February was the last day upon which an objection could be sent. In principle, it is submitted that, in an important public notice giving the opportunity to object to the grant of a licence, 14 days should mean 14 clear days. He has referred me to legislation that preceded the Schedule under consideration, which makes it unequivocally clear on any view that at least 14 clear days was required under that previous legislation, and submits that there is no reason to think that the intention of Parliament was to alter that position by the substituted present statutory provisions.
11. The submission is made that a 14-day period is in itself a short one for objections and should not be further truncated. For those principal reasons, and others developed in oral argument, the submission is made on behalf of the interested party that the notice was defective.
12. Further submissions were made on the assumption that the notice was defective. I hope I will be forgiven for not repeating extensively the arguments of counsel on that second issue.
13. In brief, however, Mr Howell submits that, even if the date specified was a day too early, the justices should not consider themselves as having been deprived of jurisdiction to determine the claimant's application. He submits that, whatever the position might have been in the past where such defects arose, the modern approach to such defects would be to consider the justice of the case, and as to whether, in particular, it can have been the intention of Parliament that the defect in question would be fatal to the proceedings. Based on such a test, Mr Howell submits that the answer to that must be a resounding "no".
14. Mr de Haan, on the contrary, refers the court to the older case law which makes it clear that the procedural provisions in the relevant schedule, and those which preceded it, should be regarded as a comprehensive code. He submits that, subject to certain very limited exceptions, a breach of that code should be fatal to the proceedings. He points out that proceedings such as these can easily be discontinued and fresh proceedings commenced, having regard to the fact that the licensing sessions take place quarterly, at least, in the course of each year.
15. Mr de Haan concedes that the modern approach to procedural defects is significantly more liberal than that which applied at the time of the earlier decisions, but submits that, even applying modern principles, the failure in this case is significant enough to render the proceedings a nullity.
16. I turn now to the statutory provisions insofar as they are material to the present application.
17. By paragraph 2A of the Schedule, it is provided as follows.

"(1) Each licensing authority shall for each year fix a day on each of the months of-

(a) January, April, July and October if the authority is in England or Wales ...

as a day on which, subject to paragraphs 7 and 13 of this Schedule, they will hold a meeting for the purpose of considering any application for the grant or renewal of a licence under this Act then awaiting consideration."

18. Sub-paragraph (2) provides for the holding of additional meetings. Sub-paragraph (3) provides for a certificate of consent to be issued for the purposes of an application for a licence. That certificate is required to identify a fit and proper person to hold the licence, and the provisions in that paragraph set out in detail the qualities of such a person. By paragraph 5 it is provided that an application for the grant of a licence under the Act may be made at any time.
19. By sub-paragraph (3) it is provided as follows:

"(3) Not later than seven days after the date on which the application is made, the applicant shall send a copy of the application-

(a) to the Board;

(b) to the appropriate officer of police;

(c) to the appropriate local authority;

(d) to the appropriate fire and rescue authority, if that authority is not the same body as the appropriate local authority; and

(e) to the appropriate collector of duty."

It is not here suggested that there was any failure in performance of that duty.

20. Paragraph 6 is the paragraph upon which this application turns and I have already quoted it in full earlier in the judgment.

However, in addition to that provision, paragraph 6 contains the following:

"(3) Not later than fourteen days before the date specified in the notice in accordance with the preceding sub-paragraph the applicant shall cause a like notice to be displayed outside the entrance to the relevant premises; and the applicant shall take such steps as he reasonably can to keep that notice so displayed until that date.

(4) A notice published or displayed under this paragraph shall not include any matter which is not required by the preceding provisions of this paragraph to be included in it."

That part of paragraph 6 was complied with because the notice was put up on 25 January.

21. Paragraph 7 provides for notice to be given by the licensing authority for the consideration of the application. That notice is to contain in writing the date, time and place of the meeting of the authority at which the application will be considered. Importantly, it is provided by that paragraph that notice be sent to the following:

"(a) to the applicant;

(b) to all the persons and bodies specified in paragraph 5(3) of this Schedule; and

(c) if the proper officer has received from any other person an objection in writing which has not been withdrawn and the address of that person is known to the proper officer, to that person."

22. It is significant here to note, first, that the persons and bodies specified in paragraph 5(3) are statutory consultees already mentioned in this judgment; and secondly that notice of the meeting has to be sent by the proper officer to objectors, whether or not their objection was sent before the date specified in the notice under paragraph 6.
23. Provision is also made for the display of a further public notice of the hearing. By paragraph 14 it is provided as follows:

"(2) Except as provided by the preceding sub-paragraph, on any such application any of the following persons, that is to say-

(a) the applicant;

(b) any person from whom an objection in writing which has not been withdrawn was received by the proper officer of the licensing authority before the date on which he sent to the applicant the notice required by paragraph 7(2) ... or (as the case may be) the copy of that objection required to be sent to him by paragraph 13(5) of this Schedule; and

(c) the person making any other objection which the authority have decided under paragraph 15 of this Schedule that they will hear,

shall be entitled to be heard either in person or by counsel or a solicitor ..."

24. It is to be noted that the effect of this last provision is that any objector within sub-paragraph 2(b) is required to be heard on the application, whether or not that objection was lodged within the time specified in the paragraph 6 notice.
25. Paragraph 15 provides a more general discretion to allow the authority to entertain an objection received subsequent to the notice being sent. No doubt such discretion would be exercised in the interests of justice, provision being made by paragraph 15(b) to safeguard the interests of the applicant in the face of late objections.
26. I have considered with care the arguments put forward on both sides and I deal with the first issue: was the date specified in the claimant's notice a day too early? I approach that question initially in this way: the notice was published on 26 January 2006. For this purpose I disregard that day. The 9 February 2006 was the date specified in the notice before which objections should be sent. The 9 February 2006 was in fact the 14th day after 26 January and disregarding 26 January. The notice in abbreviated terms is required to state that "any person ... should send ... before such date (not being earlier than 14 days after the publication of the advertisement) as may be specified in the notice, two copies ... of the grounds of his objection".
27. It seems to me that 9 February is a date which complies with that statutory provision. It is not "earlier" than 14 days after 26 January. It is actually 14 days after 26 January. I am reinforced in this view by the fact that here the date specified was not in the context of a period on expiration of which an act may be done. In such cases I accept that the period is usually, although not invariably, measured in terms of clear days. That is to ensure that the person deriving benefit from the delay may enjoy the clear and full advantage of it.
28. In other categories of case, however, of which this is one, in my judgment the period is generally, although not invariably, considered as excluding the first day of the period, but including the final day. That approach, adopted in this case, would mean that the date specified complied with paragraph 6 (see Halsbury's Laws Vol 45, para 235 under the title, "Period within which an act must be done". See also remarks at the commencement of the judgment of Lord Parker CJ in R v Long [1960] 1 QB 681 at page 683).
29. I therefore hold that the defendant was in error in declaring the proceedings a nullity or finding that they had no jurisdiction in the matter. However, extensive and helpful argument has been deployed before me on the second issue, ie if the date of the notice was a day too early, were the justices deprived of jurisdiction to determine the claimant's application? It seems to me useful, therefore, to give my view on the second issue, which of course arises only if I am wrong on the first.
30. Earlier decisions under previous legislation have described the statutory provisions as a comprehensive code, any significant breach of which would render the process a nullity and/or deprive the court of jurisdiction to hear the application in which the breach arises (see for example R v Leicester Gaming Committee ex parte Shine [1971] 1 WLR 1216 at page 1220, a judgment of Lord Widgery CJ).
31. Exceptions were made in very limited circumstances where there had been substantial performance and where the defect consisted of a slight error or mischance (see the judgment of Lord Denning in R v Newcastle-upon-Tyne Gaming and Licensing Committee ex parte White Hart Enterprises Limited [1977] 3 All ER 961).
32. It may be that the specification of a period for objection, which is too short by one day, could be described at any rate in many circumstances as more than a slight error or mischance. But I accept the submission of Mr Howell that times have changed. A new approach was hinted at by Wien J in R v Bournemouth Gaming Licensing Committee ex parte Dominion Leisure Limited, a case heard on 18 October 1978 (reference 295/78 at page 11, letter D). He posed the question whether the court would still be bound by earlier relevant decisions under more recent approaches to these matters.
33. There is no doubt that the law has significantly changed in relation to procedural breaches. Not least of the authoritative examples of the new approach are the cases of R v Sekhon and Others [2003] 1 WLR 1655, and the case of R v Secretary of State for the Home Department ex parte Jeyeanthan and Others [2000] 1 WLR 354. It may be helpful to cite from the latter decision, to which reference has been made by both counsel, part of the leading judgment of Lord Woolf:

"What should be the approach to procedural irregularities?

The issue is of general importance and has implications for the failure to observe procedural requirements outside the field of immigration. The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as 'shall' or 'must' is used.

A requirement to use a form is more likely to be treated as a mandatory requirement where the form contains a notice designed to ensure that a member of the public is informed of his or her rights, such as a notice of a right to appeal. In the case of a right to appeal, if, notwithstanding the absence of the notice, the member of the public exercises his or her right of appeal, the failure to use the form usually ceases to be of any significance irrespective of the outcome of the appeal. This can confidently be said to accord with the intention of the author of the requirement.

There are cases where it has been held that even if there has been no prejudice to the recipient because, for example, the recipient was aware of the right of appeal but did not do so, the non-compliance is still fatal. The explanation for these decisions is that the draconian consequence is imposed as a deterrent against not observing the requirement. However even where this is the situation the consequences may differ if this would not be in the interests of the person who was to be informed of his rights.

Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances..."

There then follows a list of cases in which the issue was considered, and some further examples given by Lord Woolf.

34. In this case, the statutory provisions use words equivalent to "shall" or "must". No express mention is to be found in the statute of the consequences of non-compliance. Approaching this case with those remarks in mind and with the modern approach to defects in procedure generally in mind, I come to the following views.

(1) The purpose of the legislation now being considered was substantially, although not fully, achieved by the specification in the notice of a date which was one day too early.

(2) It is an important consideration, although not the only one, that, in theory at any rate, a member of the public might have been discouraged from exercising a right to object.

(3) No member of the public can be shown to have been so discouraged. No objectors have emerged in fact in response either to the newspaper notice or the site notice.

(4) It is, on the facts, highly improbable that a genuine objector would have been deterred from advancing his or her objection on 9 February, having discovered his right on that day.

(5) In the again highly unlikely event of a genuine objector finding out about the proposed application on 9 February, it is overwhelmingly probable that that objector would have pursued the objection notwithstanding the terms of the notice. Had he done so, he would have been permitted to. I have to enter one caveat to that last proposition. He would have been entitled to advance his objection by right, up to the date of notification of the hearing of the claimant's application. Thereafter, it would have been a matter of discretion for the justices. Despite all best endeavours by counsel and others on both sides, it has not been possible to find the date upon which notice of hearing was given to the parties. It is likely to have been after 9 February, but no one can be absolutely sure.

(6) The shortfall of one day was not deliberate and not even significantly culpable on the part of the claimant. It arose apparently from an error on the part of the paper in which the advertisement was reserved.

(7) Notwithstanding the importance of giving objectors proper right to object, the situation which arises in this case is, in my judgment, significantly different from that which arises where notice is given to a litigant of a right of appeal. In such a case, the court, and the process of litigation, is properly concerned with the preservation or restoration of the individual rights of the litigant which have either been refused or removed, or are likely to be refused or removed, by a finding against him in those proceedings. A significant distinction, in my judgment, can be drawn between the position of such a litigant and that of a potential objector to a licence.

35. In conclusion, the points just enumerated arise on the particular facts of this case. Therefore the view that I have formed about them is not necessarily intended as a guide to the effect of procedural defects in other situations. It is plain from the extract from the judgment of Lord Woolf cited above that the Tribunal in a particular case must approach it in the context of the individual facts and circumstances of that case. It may well be that procedural defects more serious than this, particularly if they are deliberate or flagrant defects, will be significant enough to deprive the Tribunal in question of jurisdiction. In my judgment, however, the defect in this case does not approach that degree or status. It can properly be regarded as a defect which has prejudiced nobody and probably never gave rise even to the real possibility of prejudicing anybody.
36. For all those reasons I conclude the second issue in favour of the claimant, as well as the first. I therefore grant the application for permission and grant the substantive claim for judicial review.
37. MR HOWELL: My Lord, I would like your Lordship to make a quashing order in respect of the magistrates' decision, which is the consequence. My Lord, I would also invite your Lordship to make an order for costs in favour of the claimant against the interested party. A schedule of costs has been delivered. I do not think my learned friend has any problems with that.
38. MR JUSTICE GIBBS: Mr de Haan, do you have any problems with the principle or detail of that?
39. MR DE HAAN: The detail obviously. In terms of the principle I would make these remarks. Your Lordship rightly remarked at the beginning that if a couple of days either side had been allowed, one would not be here because to some extent the claimants are the author of their own misfortune.
40. The other point I would make is that this was an important point in the public interest, because these date points are very relevant and do raise their heads in these proceedings. My Lord, as far as the quantum is concerned, I would only say that it is twice the amount of the schedule that was put in by the interested party here. It does seem quite high, I think.
41. MR JUSTICE GIBBS: I think I have had the schedule delivered to me.
42. MR DE HAAN: Your Lordship should have both.
43. MR JUSTICE GIBBS: Yes, I do. Are there any particular items to which you take objection, apart from the general point about the size. The claimant's costs are generally rather greater than a defendant or an interested party.
44. MR DE HAAN: In principle, yes. Perhaps not as great in the circumstances. Would your Lordship give me a moment?
45. MR JUSTICE GIBBS: Yes.
46. MR DE HAAN: My Lord, I am not going to be very popular with my learned friend. Counsel's fees, I am instructed, are quite high in comparison with those of the interested party.
47. MR JUSTICE GIBBS: Yes. Any other matters?
48. MR DE HAAN: My Lord, no.
49. MR JUSTICE GIBBS: Essentially this is always done on the basis of a broad brush approach. I am sure that, particularly at this stage, Mr Howell's fees are considered more than good value for money. But nevertheless I shall assess the overall total at £40,000.