R Merlot 73 Ltd v City of Westminster Magistrates Court The Lord Mayor and the Citizens of the City of Westminster (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blair |
| Judgment Date | 08 November 2013 |
| Neutral Citation | [2013] EWHC 3416 (Admin) |
| Docket Number | Case No: CO/5615/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 November 2013 |
[2013] EWHC 3416 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Blair
Case No: CO/5615/2013
and
Mr Philip Kolvin QC (instructed by Jeffrey Green Russell) for the Claimant
Mr David Matthias QC and Ms Isabella Tafur (instructed by Westminster City Council) for the Interested Party
Approved Judgment
Hearing date: 31 October 2013
These proceedings arise out of licensing conditions imposed on Aura, which is a nightclub in St James' Street, London SW1. Pursuant to an order made on 20 August 2013 by Nicola Davies J, two matters arise for decision. The first is the claimant's application for permission to apply for judicial review of a decision of District Judge Fanning given in the Westminster Magistrates Court on 9 April 2013. The application for permission has been ordered to be heard at the same time as an application by the interested party, Westminster City Council, to discharge a stay of the district judge's decision granted on the papers by Silber J on 13 May 2013 pending determination of the permission application.
The facts are as follows. Aura was acquired by the claimant company in 2010. The club is run by Mr Alberto Barbieri who has a financial stake in the business, and who has given several statements in support of the company's application. On 16 August 2012, the Licensing Sub-Committee of Westminster City Council ("the Committee") reviewed the club's licence at the instigation of the police who were concerned about incidents of crime and disorder associated with the club. The police application was supported by Westminster City Council as licensing authority, the Environmental Health Authority (again Westminster City Council), a local resident, and the St James Conservation Trust.
The police were seeking revocation of the licence, but the Committee did not go so far as to take that step. What it did was to impose eighteen additional conditions, most of which were proposed by the club. None of these are in dispute. However the Committee also imposed three other conditions to which the claimant company took (and continues to take) objection. These are:
1. No drinks shall be served in glass containers at any time;
2. Recorded music may be played 0900 to 0300 Monday to Sunday;
3. There shall be no admittance to the premises after 0000 (in other words midnight).
By s.181 and schedule 5 of the Licensing Act 2003, an appeal lies from decisions of a licensing authority to the magistrates' court. Pending appeal, the decision does not come into effect. The claimant company brought an appeal which was heard by the district judge over eight days. The judge heard evidence, viewed a considerable volume of CCTV footage, visited the premises, and had lengthy written and oral submissions from counsel for the company and Westminster respectively. On 9 April 2013, he handed down a judgment in writing dismissing the appeal.
The notice issue
On 8 and 9 May 2013, the claimant's lawyer told the council's lawyer of its intention to bring judicial review proceedings. It is not suggested that there was any mention of its intention to apply for a stay. On 10 May 2013, the claimant company began these proceedings. The claim form was filed at the Administrative Court Office at about 3.45pm on 10 May 2013, which was a Friday. As well as the Claim Form, there was an application for urgent consideration by which the claimant sought interim relief in the form of a stay of the decision of the magistrates' court so far as it related to the three conditions. The application was made on the basis that if a stay was not granted, the claim would become academic, because the claimant company would become insolvent.
At 16.33pm that Friday afternoon, the claimant's lawyer emailed the lawyer at Westminster City Council who was dealing with the matter. It said that an application for judicial review was being lodged, and that a hard copy would be sent by courier. However, no mention was made of the application for interim relief, and a copy of the claim was not attached to the email. The papers arrived at the council's offices at 5.28pm, and were signed for by someone at the desk.
The matter came to the attention of those responsible at the council on 13 May 2013, which was a Monday. A representative contacted the Administrative Court Office asking that it was not determined for seven days to allow the council time to respond. The claimant says that in those circumstances, no harm was done by the earlier lack of notice because the council had the opportunity to make representations. I do not accept that submission. Had the application for interim relief been drawn to the council's attention on Friday, or earlier when it was being prepared, the council would have had a proper opportunity to put its objections into writing, or otherwise made sure that they got to the judge.
The stay that was granted had the usual provision enabling the defendant to apply to vary or discharge the order. Normally, this should have enabled the matter to be brought promptly back to court on an inter partes basis. However, as explained in the evidence of Mr Peter Large, Head of Legal Services at the council, no doubt because of the pressure of work in the Administrative Court, it has taken a considerable time for this matter to come on for hearing. In sum, the council submits that by failing to give it proper notice of the application for interim relief, the claimant company has in effect obtained six months free of conditions imposed on the operation of the club because of concerns as to crime and disorder. Nor, it is submitted, was there any particular urgency in the application, a month having gone by since the decision of the district judge dismissing the appeal.
Where a claimant makes an application for interim relief, it must be served on the defendant and interested parties (Practice Direction [2002] 1 WLR 811). As regards urgent applications, CPR PD25A paragraph 4.3(3) provides that except in cases where secrecy is essential (which is not the case here) the applicant should take steps to notify the respondent informally of the application. An obvious way to do that is by phone or email to the person dealing with the matter if known (as it was here). In this case, that did not happen. The email that was sent mentioned only the judicial review proceedings, with no mention of the application for interim relief, and without attaching the relevant documents to the email. The fact that they arrived in hard copy at the desk of the council offices later on the Friday evening was no substitute. The point of giving notice is to give the defendant or interested party a proper opportunity to make effective representations to the contrary (see National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] 1 WLR 1405 at [13], and Fordham, Judicial Review Handbook, 6 th ed, para 20.1.8 where the cases are usefully collected). On behalf of the claimant, Mr Philip Kolvin QC rightly apologised for what had happened, and said that there had been no intention to proceed in an underhand manner. I accept that, but it is regrettable that PD25A was not followed in this case.
The continuation of the stay
So far as the stay is concerned, the question at this hearing is whether the stay granted on 13 May 2013 should be continued. Pending determination of the application for permission, or further order, the order stays the decision of the district judge given on 9 April 2013 dismissing the claimant's appeal against the imposition of the conditions imposed by the licensing sub-committee on 16 August 2012. The effect is that the license continues without the three conditions that the claimant company objects to. In determining whether the stay should be continued, the parties were agreed that the question is whether the claim for judicial review raises a serious issue to be tried, and if so, where the balance of convenience, including the wider public interest, lies. In a case like this, the public interest also plays its part in determining the balance of convenience (see R v Ministry of Agriculture ex parte Monsanto plc [1999] QB 1161 at 1173E). The question whether damages would be an adequate remedy does not arise in this case.
The essence of the claimant's argument is that the effect of the conditions is to render the business unviable as a night club. The imposition of the conditions will cause the business to close with the consequent loss of jobs and the investment that has been made in it. Although it accepts that crime and disorder have been associated with the club in the past, it submits that steps have been taken to address the problem, which is a diminishing one. It submits that the evidence shows no deterioration since 13 May 2013 since the stay was imposed. Accordingly, it submits, the balance of convenience is strongly in favour of continuing the stay until the judicial review is determined.
The council contends that the situation is serious and has continued to cause concern. It has produced evidence from a police officer detailing three incidents in June and July 2013—that is, since the stay was imposed—at least one of which was a serious one. Further, it submits that the only evidence that the business would be rendered unviable is assertion on the part of Mr Barbieri. No evidence has been...
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