Funky Mojoe spoils Tinsletown's party!

The highly anticipated judgment in connection with the South Woodford London Night Club, Funky Mojoe, has been released and looks at the importance of procedural defects within the Review procedure.

The premises was subject to Review proceedings and as per regulations pursuant to the Licensing Act 2003 a Notice was displayed on the site however, it was argued by the operator that the notice was defective in that it did not comply strictly with  the terms of the regulation in two ways:

1. The grounds of the Review were not stipulated in sufficient detail; and
2. The final three lines of the Notice were printed in a smaller font than that specified in regulation 38(a)(i)(cc).

On the first Appeal to the Magistrates’ Court, the grounds for Review were found to be adequate, however, it was considered that the font size was mandatory and therefore required strict compliance. The Licensing Authority (London Borough of Redbridge) argued that such a small error should not be fatal to the proceedings and indeed that it was offensive to common sense to conclude that Parliament had intended minor or inconsequential defects in a notice to invalidate all subsequent Review proceedings particularly if no discernable prejudice arose to the operator. 

The case proceeded to the High Court and today judgment was released by HHJ Blackett who rejected the arguments of the operator and found in favour of the London Borough of Redbridge he held:

“In my view could never have been the intention of Parliament that minor errors on a notice or advertisement for a Licensing Review should make any subsequent consideration of a Licence void.  Such an approach would lead to absurd consequences. It is clear that there must be substantial compliance with regulations 38(1)(a) and 39 but the process should not be frustrated by minor errors.”

This will now become the lead case on the issue of procedural irregularities, however, from the information available to date would not appear to release Licensing Authorities from their obligations under the Licensing Act 2003. Procedures must still be followed; however, if errors are made they may not be fatal to the proceedings. The question which will need to be asked is whether the consequence of the defect is such that it should invalidate proceedings and this will depend upon the prejudice which has resulted to each party flowing from the defect. Arguably, the same position exists in connection with the reciting of the grounds for review and may see more Licensing Authorities stating, for example "Prevention of crime and disorder: several incidents of violence at this premises" so as to err on the side of caution.

It is believed that the operator is currently considering whether to apply for permission to appeal to the Court of Appeal so this may not be the end of the story. Furthermore, a detailed assessment of the whole of the judgment once released will be required so as to ascertain where the line may lay between no prejudice and prejudice which is so substantial so as to void the proceedings.

We will continue to update you as more information becomes available.