R Tc Projects Ltd v Newcastle Justices Grosvenor Casinos Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GIBBS |
| Judgment Date | 26 April 2006 |
| Neutral Citation | [2006] EWHC 1018 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 April 2006 |
| Docket Number | CO/2618/2006 |
[2006] EWHC 1018 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
MR JUSTICE GIBBS
CO/2618/2006
MR JOHN HOWELL QC (instructed by Berwin Leighton Paisner) appeared on behalf of the CLAIMANT
MR KEVIN DE HAAN QC (instructed by Joelson Wilson) appeared on behalf of the 1ST INTERESTED PARTY
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.
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".
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."
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."
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.
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.
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.
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.
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.
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.
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.
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.
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".
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.
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.
I turn now to the statutory provisions insofar as they are material to the present application.
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."
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.
By sub-paragraph (3) it is provided as follows:
"(3) Not later than...
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Akin v Stratford Magistrates Court
...Whale submitted that the case relied on by the District Judge TC Projects Ltd, R (on the application of) v Newcastle Justices & Ors [2006] EWHC 1018 (Admin) did not support the District Judge's approach because the procedural defect there was far less serious. The defect there was a notice ......