Memet Aldemir v Cornwall Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 13 September 2019 |
| Neutral Citation | [2019] EWHC 2407 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1083/2019 |
| Date | 13 September 2019 |
[2019] EWHC 2407 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING AT BRISTOL CIVIL AND FAMILY JUSTICE CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Swift
Case No: CO/1083/2019
Mr. Philip Kolvin QC AND David Dadds Solicitor Advocate (instructed by DADDS LLP) for the Claimant
Susan Cavender (instructed by CORNWALL COUNCIL, LEGAL SERVICES) for the Defendant
Hearing date: 5th July 2019
A. Introduction
This is an appeal by way of case stated from a decision of the Cornwall Magistrates' Court sitting at Bodmin. The decision under appeal is dated 21 November 2018 and was made by District Judge Diana Baker following a hearing on 19 – 20 November 2018.
The primary issue in this appeal is whether magistrates acting pursuant to their appeal jurisdiction under section 181 of the Licensing Act 2003 have the power to make non-party costs award i.e. awards of costs against persons who are not the parties to the appeals before them. In this case District Judge Baker made such an order against the Appellant in these proceedings, Mr Memet Aldemir (“Mr Aldemir”)
The appeal before District Judge Baker was against a decision taken by Cornwall Council (“the Council”) on 25 April 2018. (In fact, the decision was taken by the Council's Licensing Sub-Committee, but in this judgment, for sake of simplicity, I shall refer to the decision as a decision of the Council.) On that occasion, and following review proceedings under section 51 of the Licensing Act 2003 (“the 2003 Act”), the Council in exercise of its power under section 52 of the 2003 Act, revoked the premises licence previously granted to Eden Bar Newquay Ltd (“EBNL”) pursuant to the provisions of the 2003 Act. EBNL operated premises at 1 Beach Road in Newquay, known as Eden Bar (“Eden Bar”). The sole shareholder in and director of EBNL was Mr Aldemir's brother Nimetullah Aldemir. Nimetullah Aldemir is resident in Cyprus.
Although the precise details are not clear, it appears that as at April 2018, the Beach Road premises were owned by Mr Aldemir, and leased by him to EBNL. Mr Aldemir also owned the fixtures and fittings used on the premises; he was employed by EBNL as its general manager. Finally, for the purposes of section 15 of the 2003 Act, he was the designated premises supervisor for Eden Bar. By reason of section 19 of the 2003 Act, the position of designated premises supervisor is critical. Section 19 provides that where a premises licence authorises the supply of alcohol, the licence must contain each of two mandatory conditions: first that no supply of alcohol may be made either at a time when there is no designated premises supervisor in respect of the premises licence, or if the designated premises supervisor does not hold a personal licence, or if his personal licence is suspended; second that every supply of alcohol must be made or authorised by a person who holds a personal licence. A personal licence is one issued under section 110 of the 2003 Act which authorises the person concerned to supply or authorise the supply of alcohol in accordance with a premises licence. By section 14 of the 2003 Act “supply of alcohol” includes retail sale of alcohol.
Section 181 of and Schedule 5 to the 2003 Act establish various rights of appeal against decisions of licensing authorities. Following the decision of the Council under section 52 of the 2003 Act, EBNL had a right of appeal under paragraph 8 of Schedule 5. By paragraph 9 of Schedule 5, the appeal is to a Magistrates' Court. EBNL commenced its appeal by a Notice of Appeal dated 14 May 2018. At a preliminary hearing in August 2018, the date for the hearing of EBNL's appeal was fixed for 19 – 21 November 2018. In the meantime, the Council had heard and refused an application to transfer the premises licence from EBNL to Max Leisure Ltd. That decision was the subject of an appeal initiated by Max Leisure Ltd on 17 August 2018. However, that appeal was withdrawn on 10 October 2018. Mr Aldemir is the sole director of Max Leisure Limited.
The appeal to the Magistrates' Court under section 181 of the 2003 Act is an appeal by way of rehearing. At the appeal hearing in November 2018, District Judge Baker considered a significant amount of evidence and heard evidence from eight witnesses. The events that had led to the Council's decision to revoke the premises licence had comprised: (a) an incident involving Mr Aldemir on 4 August 2017 which had resulted in his conviction for an offence under section 4 of the Public Order Act 1986 (fear or provocation of violence); and (b) evidence from the police of various and frequent breaches of licence conditions. District Judge Baker considered the merits of these matters for herself. Her conclusion was that the incident that had taken place on 4 August 2017 was “appalling”, and that Mr Aldemir had been the aggressor in an unprovoked and sustained attack. She concluded that the Council had reached correct conclusions about the various licence breaches; she rejected the argument made on EBNL's behalf that the Council had not reached a decision by a fair process. As to Mr Aldermir's behaviour following the Council's decision, District Judge Baker stated as follows:
“His behaviour post the review has been violent on a number of occasions and caused significant disorder. His interference with due process is evidenced in the statement of Colin Fowler. I have watched the video clip taken by Mr Aldemir of one of the alleged victims of an assault by him, who purports to say that the two were in fact playfighting and that Mr Aldemir was asked to knock out his tooth. Such an explanation is not corroborated by the video evidence, and is in my view without total credibility. I fear the taking of the clip is a further attempt to interfere with the due process. The clip is contrived and the alleged victim appears uncomfortable.
Mr Aldemir's attitude towards authority is of extreme concern. His lack of co-operation with the police and his unbalanced attitude towards Inspector Meredith causes me further concern.
I am satisfied the sub-committee made the correct decision on the facts before them and that the continued behaviour of Mr Aldemir adds weight to that decision.
Mr Aldemir's manipulative behaviour, disrespectful attitude and his apparent belief that he is above the law causes me to seriously reflect on whether the new lease and transfer of the business is in fact a bona fide transaction made at arm's length.”
The references to the “new lease” and “transfer of business” are to agreements, both dated 18 November 2018, which were shown to the District Judge at the hearing. By those agreements Mr Aldemir (a) leased the premises used by Eden Bar to Newquays Ltd; and (b) sold to Newquays Ltd the goodwill of the Eden Bar business and the trade fixtures and fittings used in the premises. The District Judge was told that the directors of Newquays Ltd were Emma Redhead and Kevin Wills. At the hearing, it was contended that the change in circumstances meant that the decision to revoke the premises licence should itself be overturned. District Judge Baker disagreed. She was far from convinced that the 18 November 2019 documentation was genuine. Not even the solicitor advocate who appeared for EBNL on the appeal appeared to be certain whether the documents were in final form or were merely drafts. The District Judge further anticipated that it was likely that in the event of default under the lease, the premises would revert to Mr Aldemir. Her conclusion on the appeal was as follows:
“When I consider:
1. Mr Aldemir's character;
2. His manipulation of due process;
3. The delays in the proceedings;
4. His application to transfer the licence to another company entirely operated by him;
5. The hastily drafted documentation that does not appear to have been properly executed and even if correctly executed does not in fact transfer ownership until a defined completion date that is not yet in force;
6. The directors' naivety and lack of licensing experience,
the Appellant has failed to satisfy me that the current situation (in force for only three weeks) would allow me to grant the appeal on the changed circumstances.
The Appeal is therefore refused on all grounds raised by the Appellant.”
It is more than apparent from the judgment that District Judge Baker was entirely unimpressed by Mr Aldemir's conduct of the proceedings. At the Case Management Hearing prior to the appeal, the Court had been told that Mr Aldemir would give evidence at the appeal hearing. That was not at all surprising given his involvement in the August 2017 incident which had been central to the Council's decision to revoke the licence. In fact, Mr Aldemir did not give evidence at the appeal hearing, even though it appears that he was at court and was seen in the company of others who did give evidence in support of the appeal. The explanation given for why Mr Aldemir did not give evidence was the suggestion that it would be “inappropriate” because the business had been transferred to Newquays Ltd. It is as apparent to me as it was to the District Judge that this explanation is entirely contrived. Mr Aldemir's behaviour had been central to the decision to revoke the premises licence, that behaviour together with the possibility that, notwithstanding the transactions with Newquays Ltd which had (so it was said) been completed the day before the commencement of the appeal hearing, he might in future be involved in the business of running Eden Bar, were clearly matters of central relevance to the appeal. It is obvious that Mr Aldemir was simply seeking to dodge these matters and his own responsibility for them.
Having dismissed the appeal, District Judge Baker was then asked to make an order for costs....
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