R (Bushell and Others) v Newcastle Licensing Justices and another
| Jurisdiction | UK Non-devolved |
| Judge | LORD SCOTT OF FOSCOTE,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD HOFFMANN,LORD WALKER OF GESTINGTHORPE,LORD RODGER OF EARLSFERRY |
| Judgment Date | 15 February 2006 |
| Neutral Citation | [2006] UKHL 7 |
| Court | House of Lords |
| Date | 15 February 2006 |
[2006] UKHL 7
HOUSE OF LORDS
Appellate Committee
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
(on the application of Bushell and others)
and another
Appellants:
Susanna FitzGerald QC
Simon Colton
(Instructed by Mincoffs Solicitors LLP)
Respondents:
John Steel QC
Gerald Gouriet
James Rankin
(Instructed by Sintons Solicitors)
My Lords,
On 15 November 2002 the Newcastle City Council acquired a public house called Mim's Bar from its owners, Ultimate Leisure Group plc ("Ultimate"), for the purposes of a scheme of redevelopment, pursuant to section 227(1) of the Town and Country Planning Act 1990. Although the sale was by agreement, it was against the background of an as yet unconfirmed compulsory purchase order under section 226. The question in this appeal is whether the owners became entitled to apply for a special removal of the justices' on-licence pursuant to section 15 of the Licensing Act 1964:
"Special removals of old on-licences
(1) Where application is made for the special removal of an old on-licence from any premises in a licensing district to premises in the same district on the ground-
(a) that the premises for which the licence was granted are or are about to be pulled down or occupied under any Act for the improvement of highways, or for any other public purpose; or
(b) that the premises for which the licence was granted have been rendered unfit for use for the business carried on there under the licence by fire, tempest or other unforeseen and unavoidable calamity;
the provisions of sections 12 to 14 of this Act shall apply as they apply to a renewal, subject to the restrictions on removals imposed by Parts VI and VII of this Act and subject to subsections (3) and (4) of this section
(2) A removal to which those provisions apply as aforesaid is in this Act referred to as a special removal."
Ultimate applied to the transfer sessions for the licensing district of Newcastle held on 11 March 2003 for a special removal to premises called the Gresham Hotel which it had recently acquired in another part of Newcastle. The effect of the referential application of section 12 by section 15(1) meant that the grounds upon which the justices could refuse the removal were narrowly restricted. They could do so only on the grounds that the applicant was not a fit and proper person or that the premises had been ill-conducted or were structurally deficient or structurally unsuitable: see section 12(4).
After a lengthy adjournment for an unsuccessful challenge to their jurisdiction in judicial review proceedings before Owen J, the justices held that none of these grounds of objection had been made out and granted the application on 1 December 2003. In further judicial review proceedings brought by residents and supported by trade competitors in the area of the Gresham Hotel, Lightman J held that the justices had no jurisdiction under section 15 because, at the time the application came before the justices, the premises of Mim's Bar were not "occupied "or about to be "occupied" for a "public purpose" within the meaning of section 15(1)(a): [2004] EWHC 446 (Admin). He therefore quashed the removal and his order was affirmed by the Court of Appeal (Jacob and Maurice Kay LJJ and Sir Martin Nourse) on 24 June 2004: [2004] EWCA (Civ) 767. Ultimate now appeals to your Lordships' House.
Before coming to the substance of the matter, I must mention a preliminary objection which Mr Steel QC, on behalf of the respondent objectors, made to the hearing of the appeal. Since the decision of the Court of Appeal, the whole of the Licensing Act 1964 has been repealed by the Licensing Act 2003 with effect from 24 November 2005 (see section 199 and the 7 th Schedule and the Licensing Act 2003 (Commencement No. 7 and Transitional Provisions) Order 2005 SI 2005 No. 3056 (C.131)). Under the transitional provisions in the 8 th Schedule to the 2003 Act, the holder of an existing licence under the old Act could have applied to have it converted into a licence under the new Act. Their Lordships have heard no argument on whether Ultimate could have made such an application. Whether they had an existing licence to convert would of course have depended upon the outcome of this appeal. But no such application was made and the time for making one has now expired. So the subject-matter of the appeal, that is to say, the removed on-licence, has disappeared with the 1964 Act and no decision of the House can bring it back.
In these circumstances Mr Steel says that the appeal has become moot and the House should dismiss it without a hearing. But the appeal is not moot in the sense that its outcome can have no practical consequences for the parties. There remain two respects in which it may affect their rights and obligations. The first is in relation to the costs which Ultimate incurred or was ordered to pay in the hearings before Lightman J and the Court of Appeal and the costs of the appeal to this House. The second arises out of a cross-undertaking which one of the objectors, Rindberg Holding Company Ltd, gave in return for, first, an undertaking by Ultimate not to commence trading until an application for leave to apply for judicial review had been heard, and then, an order to stay the continuation of the hearing before the justices. Ultimate say that the delay caused them loss of profit and have started proceedings to enforce the cross-undertaking. But those proceedings would be doomed to failure if the House agreed that the justices had no jurisdiction under section 15 and dismissed the appeal.
The case therefore does not fall within the principle upon which the House has previously refused to entertain appeals when the outcome could have had no effect upon the position of the parties. For example, in Sun Life Assurance Co of Canada v Jervis [1944] AC 111, a dispute over a life insurance policy in which the insured had been successful in recovering the sum he claimed, the Court of Appeal gave the company leave to appeal upon an undertaking "to pay the costs as between solicitor and client in the House of Lords in any event and not to ask for the return of any money ordered to be paid by this order." The House declined to hear the appeal because, as Viscount Simon pointed out, neither side had any monetary interest in its outcome. It was an essential part of the reasoning of the Lord Chancellor that the terms upon which leave had been given disposed of the question of costs as well as the actual sum in dispute. Likewise in Ainsbury v Milligan [1987] 1 WLR 379, not only had the subject-matter of the dispute (a council house tenancy) ceased to exist but both parties were legally aided with nil contributions and so immune from any order as to costs.
But Mr Steel says that the House only gave leave to appeal because the case raised a point of general public importance and although the appeal has not become academic for the parties, the point of public importance has. If the House had known when it gave leave on 20 October 2004 that the question of the construction of section 15 of the 1964 Act would become academic, it would not have granted leave. Therefore it should not hear the appeal now.
Your Lordships indicated to Mr Steel in the course of argument that you did not accept the last stage in this reasoning and that you would proceed to hear the appeal. There is no rule of law or practice that the House will not proceed with an appeal because there has been a change of circumstances as a result of which the questions which remain in issue between the parties are no longer of general public importance. Unless the House has expressly restricted its leave to the particular issue, the appellant is even at liberty to abandon the point of general public importance and argue any point which is otherwise open to him but which, taken by itself, would never have justified the grant of leave: see Sirius International Insurance Co (Publ) v FAI General Insurance Ltd [2004] 1 WLR 3251. I would not like to exclude the possibility that the House may in its discretion decide to revoke its leave to appeal if it appears that subsequent events have made the prospective cost of the appeal disproportionate to the value or importance of the substantive question in dispute. But the grant of leave to appeal will ordinarily entitle an appellant to bring any genuine issue between the parties before the House.
I return therefore to the substantive appeal. The question is whether, after it acquired...
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