Essence Bars (London) Ltd (or was it?!) -v- Royal Borough of Kingston upon Thames - an Appeal Court decision

On Tuesday (3/2/16) the Court of Appeal published their judgment following a hearing and submission in December.

The case concerned an Appeal against a decision of  Royal Borough of Kingston upon Thames (‘the Licensing Authority’) to revoke the licence of a nightclub in their area called ‘Essence’.

Following a summary review hearing which took place in 2014 the Licensing Authority, at which the licence was revoked, an appeal was instigated.  The Complainant in the documents was referred to as “FL Trading Ltd” (‘FL’).  This was a mistake.  FL were not, as stated in the Complaint, the premises licence holder (PLH) and had no right to appeal.  The PLH was in fact “Essence Bars (London) Ltd” (“Essence”) a wholly owned subsidiary of FL.

The appeal process including who can appeal and by what time the appeal must be made are described in the Licensing Act 2003.  After the appeal deadline had expired, the lawyers on behalf of Licensing Authority took issue with the named Complainant stating they had no right to appeal and that the appeal should be dismissed.

Although the Complaint was in the name of FL, it went on to state:

“TAKE NOTICE that the Complainant, the premises licence holder of the premise licence for the premises ”Essence” [address given] intends to appeal…”

Application under the provisions of s.123 of the Magistrates’ Court Act 1980 on behalf of the premises to amend the proceedings to name Essence as the Complainant were rejected by the Court, an issue which was eventually heard by the Court of Appeal. 

In essence (pun intended!) the premises argued that the point taken by the Licensing Authority was technical in nature and that it is highly undesirable that summary proceedings should be complicated or frustrated by the taking of technical points.  The Licensing Authority cited a number of criminal cases which dealt with misnamed defendants setting, in their opinion, a precedent which forbid the change proposed by the premises to substitute Essence for FL. 

The Court of Appeal felt that the Courts below had made mistakes in the application of s.123 and remitted the case back to the Magistrates for re-consideration.  The two questions the Court stated the Magistrates should consider were:

(1) “The first question will be to determine whether, on the facts of the this case, the document misdescribed the name of the premises licence holder who was the appellant. Complainant, or whether notwithstanding the reference in it to ”the complainant, the premise licence holder”, in the circumstance of this case the identity of  the appellant is FL”.

(2) "The second question arise only if it is found that the mistake is one as to description rather than one as to identity.  It is whether the other party, here the licensing authority, was not in any reasonable doubt about the identity of the appellant applying…”  Beatson LJ para 72. [2016] EWCA Civ 63

Why is this decision newsworthy?  The interpretation of s.123 proposed by the appellants, especially in licensing appeals, could have wide ranging impacts for all appeals.  Beatson LJ further stated in his judgement:

“The logical consequence of Mr Bromley-Martin’s [Counsel for the Appellant] submissions in their widest form is that in a licensing appeal section 123 would have a much larger scope, notwithstanding the express decision by Parliament to limit those entitled to appeal and the wider public interest functions of licensing authorities in order to promote the licensing objectives of preventing crime, disorder and public nuisance, promoting public safety and protecting children from harm. It would mean that the section is to be construed broadly in a case where the defect in process affects an applicant/complainant, regardless of whether the defects are minor or fundamental, and would largely remove the need for any such party to comply with any rule or procedure in the magistrates’ court. In the present context it would also mean that the limitation period set out in paragraph 9 of Schedule 5 to the 2003 Act can be circumvented. This could have the effect of allowing an appeal which appears to be brought by a corporate entity with no right of appeal under paragraph 8A of Schedule 5 to proceed.  As against this, it can be said that in a case where the appellant’s identity must be apparent to the respondent to the appeal, to take this point is to take a point of mere technicality which has no merit.”  Beatson LJ para 48 [2016] EWCA Civ 63