Essence Bars (London) Ltd (t/a Essence), R (on the application of) v Wimbledon Magistrates' Court & Anor

This is an appeal by Essence Bars (London) Ltd, trading as “Essence”, hereafter “the appellant”, the premises licence holder for a nightclub at premises at Bucklands Wharf, Thameside, Kingston upon Thames, against the order of Wilkie J sealed on 19 December 2014, reflecting his judgment after a “rolled up” hearing: [2014] EWHC 4334 (Admin). The club’s premises licence was revoked on 10 January 2014 after a summary review by the Royal Borough of Kingston upon Thames, hereafter “the licensing authority”, and an interested party in these proceedings. The Judge refused the appellant permission to apply for judicial review of the decision of District Judge (Magistrates’ Court) Henderson, sitting at the Wimbledon Magistrates’ Court, on 3 November 2014 that he had no jurisdiction to hear an appeal against the revocation of the club’s premises licence because no person entitled to appeal had done so within the statutory time limit.

The question before us concerns the effect of a mistake made in the notice of appeal pursuant to section 181 of the Licensing Act 2003 (“the 2003 Act”) against the revocation of the club’s premises licence by the licencing authority. The notice, set out in the next paragraph, named the premises licence holder’s holding company FL Trading Ltd (hereafter “FL”), rather than the appellant. The sole director of both FL and the appellant is Mr Franco Lumba. Is there power to amend a notice of complaint in civil proceedings in the magistrates’ court by substituting the name of the company which, as premises licence holder, has standing to appeal for the name of another company which does not have standing to appeal?

The document launching the appeal against the revocation of the club’s licence was filed on 22 January 2014. It is headed “Appeal by way of Complaint” and is signed by Lana Tricker of LT Law, described at the foot of the document as “Solicitors and authorised agent for and on behalf of the complainant”. The material part of the document states:

“TO: [the clerk of the relevant Magistrates’ Court]

TO: Legal Services, Royal Borough of Kingston upon Thames [address given]

COPY TO: Licensing Team, Royal Borough of Kingston upon Thames [address given]

COMPLAINANT FL Trading Ltd C/- Lana Tricker, LT Law [address of solicitor given]

RESPONDENT: Royal Borough of Kingston upon Thames [address given]

NOTICE OF APPEAL

TAKE NOTICE that the Complainant, the premises licence holder of the premises licence for the premises “Essence” [address given] intends to appeal … against the decision of the Royal Borough of Kingston upon Thames of 10^th January 2014 (received on 13 January 2013) revoking the premises licence…

Grounds of Appeal

1.

The respondent failed to take into account and have proper regard to the evidence submitted by the appellant.

… [grounds 2-6 omitted] …”

By paragraph 8A of Schedule 5 to the 2003 Act an appeal may be made against a decision following a review of a premises licence by the chief officer of police for the area, the holder of the premises licence, or a person who made representations in relation to the review of the licence. By paragraph 9, an appeal must be commenced within 21 days from notification of the decision appealed against. In the present case FL had not made representations in relation to the review of the licence.

On 27 October 2014, shortly before a preliminary hearing listed before the District Judge to consider submissions by Ms Tricker’s client about the certification that led to the review of the premises licence, the licensing authority took the point that there was no jurisdiction to hear the substantive appeal. It submitted that (a) FL, which was named as the complainant, had no standing to bring an appeal, (b) the premises licence holder, the appellant, had not appealed, and (c) the 21 day time limit for it to do so had long expired. An application was made under section 123 of the Magistrates’ Court Act 1980 (“the 1980 Act”) to amend the notice/complaint by substituting the name of the appellant (Essence) for that of FL. The District Judge considered that the application was made on behalf of FL. He held that he had no jurisdiction to hear the appeal as there was no power to allow an appeal by a different party, out of time. The court has an agreed note of the District Judge’s decision prepared by LT Law Solicitors, the solicitor to the appellant in these proceedings. The defendant court did not participate in the proceedings below or in this court.

In deciding that the magistrates’ court had no jurisdiction, the District Judge, for reasons summarised at [24] below, and later Wilkie J in the Administrative Court, followed three decisions of the Divisional Court concerning section 123 of the 1980 Act. Wilkie J’s reasons were essentially the same as those of the District Judge. He stated ([2014] EWHC 4334 (Admin) at [52]) that he was bound by the three decisions of the Divisional Court. They are discussed in Part IV of this judgment.

Wilkie J had earlier (see [47]) stated that an appeal pursuant to Schedule 5 of the 2003 Act had to be brought by way of a complaint by a legal person who has standing to do so. He held (at [49] – [50]) that the solicitor’s mistake in this case meant that the only person before the court was FL, and that it could not be said that the appellant was before the court but had been misnamed by the solicitor as FL. The solicitor did not realise that the appellant, Essence, and not FL was the premises licence holder. That could not be construed as Essence always having been the appellant but misnamed. It was, he stated, a misidentification of the person entitled to appeal. Accordingly, the person entitled to appeal had not appealed and there was no power to amend the complaint by substituting one legal entity, FL, with another legal entity, the appellant. Permission to appeal was granted by Lewison LJ who ordered that the case should be retained by the Court of Appeal.

The factual background and the law are stated clearly respectively in [3] – [16] and [17] – [25] of the judgment below which I summarise in Parts II and III below. It is submitted by Mr Bromley-Martin QC and Ms Le Fevre on behalf of the appellant that the Judge made significant errors of fact and law. Those of fact were that FL was before the court seeking to appeal in the sense of being the party intending to appeal and was the only legal person before the court, and that the only way the appellant could be brought before the court was for the notice of appeal to be amended: see paragraph 26 of their skeleton argument. Mr Bromley-Martin submitted that those errors of fact in turn led the court erroneously to conclude that it was bound by the three decisions, all of which relate solely to defendants in criminal cases being either wrongly “before the court” or not “before the court” at all.

By Part 3 of the Licensing Act 2003, premises licences are granted by the relevant licensing authority. Sections 53A-C of the 2003 Act provide for summary review of a premises licence upon application by the police where a senior member of the relevant police force certifies that in his opinion the premises are associated with serious crime or serious disorder or both. The licensing authority must convene a hearing within 48 hours of receipt of a summary review application to consider whether to impose one or more interim steps, including suspending the licence pending the determination of the application. The licensing authority must determine the application for summary review within 28 days after its receipt. The measures available to it include the power to revoke the licence.

Section 181 of the 2003 Act provides for appeals against decisions of licensing authorities and refers to Schedule 5, which makes provision for appeals against such decisions.

Paragraph 8A of Schedule 5 concerns summary review of a premises licence. It provides:

“(1)

This paragraph applies where a review of a premises licence is decided under Section 53A(2)(b) (review of premises licence following review notice).

(2)

An appeal may be made against that decision by –

(a)

the chief officer of police for the police area … in which the premises are situated,

(b)

the holder of the premises licence, or

(c)

any other person who made relevant representations in relation to the application.”

Paragraph 9 of Schedule 5 makes general provision about appeals under this part and provides, in so far as relevant, as follows:

“(1)

An appeal under this part must be made to a magistrates’ court.

(2)

An appeal under this part must be commenced by notice of appeal given by the appellant to the [designated officer] for the magistrates’ court within the period of 21 days beginning with the day on which the Appellant was notified by the licensing authority of the decision appealed against.

…”

Appeals brought under the Licensing Act 2003 are dealt with pursuant to sections 51-75 of the 1980 Act which concern “civil jurisdiction and procedure”. Section 51 concerns the issue of summons on complaint and provides:

“Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates’ court to answer to the complaint.”

Rule 34 of the Magistrates’ Court Rules 1981 provides:

“34.

Appeal to be by way of complaint

Where under any enactment an appeal lies to a magistrates’ court against the decision or order of a local authority or other body or person the appeal shall be by way of complaint for an order.”

Part V of the 1980 Act, containing sections 121-155 is headed “Miscellaneous and supplementary”. Section 123 provides:

“Defect in process

(1)

No objection shall be allowed to any information or complaint … for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the … complainant at the hearing of the information or complaint.

(2)

If it appears to a Magistrates’ Court that any variance between a summons or warrant and the evidence adduced on behalf of the prosecutor or complainant is such that the defendant has been misled by the variance, the court shall, on the application of the defendant, adjourn the hearing.”

I have stated that the document containing the notice of appeal in this case is headed “Appeal by way of Complaint”. Section 123 is the only provision under which it is possible to seek to amend an information or complaint including one in a notice of appeal or summons. It is that section which the District Judge was invited to invoke in order to permit the appeal to proceed with the name of the Claimant substituted for FL, the Claimant being the premises licence holder.

On 7 December 2013, the Metropolitan Police Force applied for a summary review of the licence for the premises in question. An acting police superintendent certified that the club was “associated with serious crime and serious disorder”. The licensing authority suspended the licence pending the determination of the police’s application for a summary review. FL made no representations in relation to the summary review.

The review hearing took place before the licensing sub-committee on 6 January 2014. On 10 January 2014 the licensing authority wrote to Essence Bars (London) Ltd stating that the licensing sub-committee had resolved that the premises licence for “Essence”, Bucklands Wharf, Thameside, Kingston upon Thames, be revoked in accordance with section 53C(3)(e) of the Licensing Act 2003. The letter was addressed to Essence “c/o Cox Costello & Home Ltd” at an address in Rickmansworth. It stated that the decision to revoke the licence did not take effect until the end of a 21 day period given for an appeal against the decision. It also informed Essence of the grounds upon which an appeal may be made.

On 22 January 2014, LT Law, who acted as solicitors for both Essence and FL, sent the clerk to the justices and the legal services department of the licensing authority a document entitled “appeal by way of complaint: Licensing Act 2003” in the terms I have set out at [4] above.

These proceedings, filed by the appellant, i.e. Essence, on 8 November 2014, are the second challenge by way of judicial review to the revocation of the appellant’s premises licence. There was an earlier challenge, filed on 3 April 2014, but on that occasion the claimant was FL rather than Essence. A number of grounds were advanced. They included the contentions that the power to certify that the club was “associated with serious crime and serious disorder” had been improperly delegated to an acting police superintendent and that there was apparent bias by the barrister who advised the licensing sub-committee at the review hearing. That judicial review is irrelevant to the present proceedings and it suffices to state (a) that the statutory appeal to the magistrates’ court was adjourned pending its outcome, and (b) that permission was refused at a renewed oral application on 18 June 2014.

Following the refusal of permission and the conclusion of the first judicial review, on 4 August 2014 there was a case management hearing in respect of the statutory appeal. It appears that at that stage it was not realised that FL had never been the premises licence holder of “Essence” and that the licence holder was in fact the appellant. Some of the witness statements on behalf of the licensing authority showed FL as the appellant. One showed Essence Bars (London) Ltd as the appellant.

Notwithstanding the outcome of the earlier judicial review, it was still being argued in the context of the appeal that the certification process was invalid because of improper delegation. Accordingly, a preliminary hearing was listed on 3 November 2014 to consider that contention. It was in its skeleton argument for the hearing dated 27 October that the licensing authority first raised the issue concerning the identity of the appellant. It argued that the magistrates’ court had no jurisdiction because FL and not Essence Bars (London) Ltd was the named appellant and instigated the appeal.

On 31 October LT Law wrote to the licensing authority’s solicitor about the identity point. LT Law accepted that the wrong name was on the complaint and stated that it was clear that this was an error all parties had made. The judicial review proceedings had been undertaken with all parties “believing that the premises licence holder was FL Trading Ltd, even you and your client” and the licensing authority’s summary grounds referred to the “claimant in the judicial review”, which was FL, as holding a premises licence in respect of the nightclub trading as Essence. The letter continued “whilst FL Trading Ltd is the 100% shareholder of Essence Bars (London) Ltd and whilst FL Trading Ltd, the company which instructs this office, was a party who made representations at the hearing before the Council and therefore would have a right of appeal against the decision in any event, we agree … that the appellant should be the premises licence holder”. The letter clearly stated that the solicitors were instructed by FL and did so at a time when it was known that FL was not the premises licence holder. It also stated that an application would be made to amend the complaint to rectify the error made by all parties until pointed out by the licensing authority’s counsel in his skeleton argument.

It was argued before the District Judge and the Judge that in practice and in reality the distinction between the two corporate entities is one without a meaningful difference and that the application under section 123 of the 1980 Act should be granted. After considering the relevant authorities at the hearing on 3 November, the District Judge concluded that he had no power to grant the appellant’s application to amend the complaint by substituting Essence Bars (London) Ltd for FL. Two of the authorities on which reliance was placed concerned civil proceedings, and the court in the third, Fernandez v Broad (10 July 1996) was not referred to the Divisional Court cases on section 123 of the 1980 Act. He stated that those cases established that where “it was not a question of misdescription, but separate companies with separate corporate functions … the court could not correct the name”. He recognised that those cases were criminal cases which have a different balance to consider. Paragraph 6 of the agreed note states:

“[I]t seems FL Trading Ltd are a different legal entity – who did not hold the relevant licence. Essence Bars (London) Ltd should have appealed. They did not and are now out of time. The principles which the Royal Borough of Kingston advances are binding on this Magistrates’ Court. I find I have no jurisdiction to hear the appeal as there is no power to allow the change of name out of time. Therefore I cannot hear the appeal and dismiss it.”

As I have stated, the claimant named in these proceedings is Essence Bars (London) Ltd, trading as “Essence”. On 12 November 2014, Laing J ordered that the claim be listed no later than 8 December 2014, if that was possible, for a “rolled-up” hearing because, notwithstanding the decision of the District Judge, the statutory appeal against the revocation of the licence remained listed for 8 – 11 December. In the event, the matter came before Wilkie J on 16 December.

A statement of the appellant’s solicitor, Lana Tricker, dated 27 November 2014, was before the Administrative Court. Ms Tricker stated that she acts and has acted “on behalf of the premises licence holder in the original summary review proceedings, the first application to apply for judicial review, the appeal from the decision revoking the licence and in these proceedings”: paragraph 2. Until she was informed recently by counsel for the licensing authority of the error in the notice of appeal/complaint, she:

“mistakenly believed the PLH [premises licence holder] to be FL Trading Ltd. The PLH is in fact Essence Bars (London) Ltd, which is in fact wholly owned by FL Trading Ltd. The directing mind of both companies is Mr Franco Lumba, from whom I receive my instructions.”

Ms Tricker stated that she instructed Mr Bromley-Martin to represent the premises licence holder during the summary review proceedings, and issued the notice of appeal by way of complaint against the revocation decision on behalf of the premises licence holder. She stated that she mistakenly named the premises licence holder as FL rather than Essence Bars (London) Ltd, but that she did “make it plain in the complaint that the appellant/complainant was the PLH”: statement, paragraph 5 and see [4] above. She also stated that, in the earlier judicial review, the PLH was mistakenly referred to as FL, and that mistake was also made by the licensing authority and the Metropolitan Police, which were both parties to those proceedings. In short, she stated that, at all stages all, including the licensing authority and their counsel, knew that she and their counsel were acting for the premises licence holder, and witness statements in the statutory appeal were exchanged between the parties on the basis that she was so acting: see paragraphs 7 – 10.

Wilkie J did not expressly refer to Ms Tricker’s statement. He did, however, state when summarising the appellant’s contentions ([2014] EWHC (Admin) 4334 at [43]) that “the mistake of the … solicitor was in erroneously naming the premises licence holder, the complainant, as FL whereas the correct name of the premises licence holder, and hence the complainant, was that of [the appellant]”. He also addressed the substance of what is contained in the statement (ibid. at [51]) when stating that, because the solicitor did not realise that the premises licence holder was the appellant and not FL, the notice/complaint could not be construed as the complainant always having been the appellant but misnamed. I summarised the remainder of his reasoning earlier in this judgment: see [7] above. It was essentially the same as that of the District Judge.

Since the judgment below, further evidence has been filed. There is a statement of David Kingstone, the licensing authority’s environmental health manager, dated 22 January 2015. He attended the licensing sub-committee hearing on 10 January, the hearings before the District Judge and that in the Administrative Court, and makes the following points:-

Ms Tricker filed a second statement dated 28 January 2015. In this statement:-

In this section of the judgment I first consider the significant difference in the legislation and procedural rules between the position in civil proceedings in the High Court and County Court and that in proceedings in magistrates’ courts. I then consider the three decisions of the Divisional Court concerning section 123 of the Magistrates’ Courts Act 1980 which the Judge considered bound him and the submission on behalf of the appellant that the Judge in the Administrative Court made significant errors of fact. In section V of this judgment I give my conclusions on the questions before the court; whether on the facts before the District Judge there was a mistake as to identity or a misdescription of the appellant/complainant and whether there was no reasonable doubt as to the identity of the appellant/complainant on the part of the licensing authority.

The Civil Procedure Rules permit the substitution of a party after a limitation period has expired. So did the prior regime under Order 20 rule 5 of the Rules of the Supreme Court. The material part of CPR 19.5 provides:

CPR 17.4(2) makes provision for amendments to statements of case after the end of a limitation period where the new claim “arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings”. By 17.4(3) there is power to amend to correct a mistake as to the name of a party, “but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question”. By 17.4(4) “the court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired”.

In that context, a distinction has been made between mistakes as to identity and mistakes as to name or nomenclature: see Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701, [2008] 1 WLR 585, where the Court of Appeal reviewed the authorities under Order 20 and CPR 17 and 19. It was recognised (see Adelson at [29] – [31], [43] and [53]) that this distinction is sometimes elusive, particularly where the issue concerns the name of a corporate entity within a group. But it was stated that “mistake as to name” is given a generous interpretation. Substitution or amendment will only be permitted where the true identity of the person intending to sue and the person intended to be sued is apparent to the latter although the wrong name has been used. Such a mistake can be demonstrated where the pleading gives a description of the parties but gives the party the wrong name: see the discussion of The Sardinia Sulcis [1991] 1 Lloyd’s Rep 201 in Adelson’s case at [38] – [40]. In the cases referred to in Adelson’s case it was possible to identify the intended defendant from a description in the document that was more or less specific to the particular case. The descriptions included references to the landlord of specified premises or the manufacturer of a specified drug which showed that person was the intended defendant. In all the cases, the mistake was not one which would cause reasonable doubt as to the identity of the party in question, and this was said to be a requirement.

It is to be recalled that the document instituting the appeal in this case, although stating in the list at the top of the document that the complainant is “FL Trading Ltd”, in the section of the document under the “Notice of Appeal” stated: “the complainant, the premises licence holder of the premises licence for the premises Essence at Bucklands Wharf …”. Mr Bromley-Martin relied heavily on the fact that second reference gave a description of the party which was appealing but gave the wrong name, a name that did not reflect that description. He submitted that the document read as a whole identified the complainant bringing the appeal as the premises licence holder for the premises and address specified but mistakenly named that person as “FL Trading Ltd”. As to whether the mistake was one which might cause reasonable doubt as to the identity of the complainant, he relied on the fact that the premises licence holder of the identified premises licence was the appellant was a matter of public record and known to the licensing authority. He submitted that neither the licensing authority nor the magistrates’ court thought other than that the appeal was by the premises licence holder.

Mr Bromley-Martin accepted that it is clear that the CPR do not apply to proceedings in the magistrates’ court. That is seen from CPR Part 2.1. The court was not directed to any provision governing procedures in magistrates’ courts in the exercise of their civil jurisdiction conferring a power similar to those in CPR Parts 17.4 and 19.5. Mr Bromley-Martin, however, relied on the statement of May LJ in R (Cleary) v Highbury Corner Magistrates’ Court [2006] EWHC 1869 (Admin), [2007] 1 WLR 1272 at [34]) that in certain circumstances, although not applicable in magistrates’ courts, the provisions of the CPR seemed to him to be a good guide as to what is necessary and proportionate.

The procedural regime in licensing cases is contained in the 1980 and 2003 Acts and the 1981 Regulations. Section 123 of the 1980 Act is a provision specifically dealing with defects in process. It might be thought that the natural meaning of the words of section 123(1) of the 1980 Act is that no objection to an information or complaint, such as the appeal by way of complaint in this case, for any defect of substance or form in the complaint shall be taken. The defect in the present case is the reference to FL rather than to Essence Bars (London) Ltd, and it is broadly on the basis of that construction that Mr Bromley-Martin QC relied. The three Divisional Court cases which I consider below, however, show that there are formidable difficulties with this submission because they give section 123 a narrow construction.

Section 123(2) appears to be concerned with prejudice to a defendant, and is not drafted so as obviously to be relevant to appeals or to a situation such as the present one, where it is said that the respondent to an appeal, the licensing authority has been misled by a variance between the complaint instituting the appeal and the evidence adduced on behalf of the appellant.

I turn to the three Divisional Court cases. They are: Marco (Croydon Ltd) t/a A and J Bull Containers v Metropolitan Police [1984] RTR 24, R v Greater Manchester JJ, ex p. Aldi GmbH and Co KG (1994) 159 JP 717 and Sainsbury’s Supermarkets Ltd v HM Courts Service (South West Region, Devon and Cornwall Area) [2006] EWHC 1749 (Admin). These cases all involved a prosecutor proceeding against the wrong member of a corporate group when another member of the group could have been charged appropriately, but the corporate entity chosen in fact had a defence.

In Marco’s case, an information preferred on 19 February 1982 charged “AJ Bull Ltd” with causing an unlighted builder’s skip to be on a road on 25 September 1981 during hours of darkness contrary to section 139(4) of the Highways Act 1980. The skip had on it the name “A & J Bull” but it was in fact the property of “Marco (Croydon Ltd) t/a A & J Bull Containers”. Before the information was preferred, the prosecution had in their possession a delivery note in which the name of the owner was stated correctly. The information gave no description of the intended defendant as in the cases about Order 20 and the CPR to which I referred at [34] above. Section 127 of the 1980 Act provides that, save where otherwise provided, a magistrates’ court shall not try an information or hear a complaint unless it is laid or made within 6 months of the date of the offence committed. In Marco’s case that period expired on 25 March 1982. At a hearing on 11 June 1982 the magistrates granted an application to amend the name of the intended defendant on the ground that there was no mistake of identity, only a misstatement of the defendant’s name.

The Divisional Court allowed the appeal against conviction. It held that the prosecution, misled by the name on the skip, issued the summons in the name of the wrong company, that is to say the wrong person, and there was no jurisdiction to amend the information. Cases where the proceedings concerned a natural person whose name was mistakenly stated rather than a company, but where the right person received the summons and was before the court, were distinguished. Those cases were stated to be ones in which the prosecutor correctly identified the intended defendant but misstated his name. The court thus applied a similar distinction to the one in the cases on Order 20 and the provisions of the CPR to which I have referred. Glidewell J stated that in the case stated in Marco’s case the justices’ accurately stated the question of law but did not apply it correctly.

Marco’s case was followed in ex p. Aldi and the Sainsbury’s Supermarkets case. Divisional Courts allowed appeals from magistrates’ courts permitting amendments respectively to a summons and an information. Both cases concerned prosecutions by trading standards officers: in ex p. Aldi an information regarding an offence under consumer protection legislation; in the Sainsbury’s Supermarkets case a summons under the Food Safety Act 1990. In ex p. Aldi, the information was laid against the corporate entity which was a wholesaler when it should have been laid against the owner of the store in question, another corporate entity in the Aldi group. In the Sainsbury’s Supermarkets case, the Information was laid against “J Sainsbury’s plc (trading as Sainsbury’s Supermarkets Ltd)”, neither of which existed, although the incorporated companies had names broadly similar to those. In neither case was it stated in the judgments whether the intended defendant was or was not identified by a description.

In one sense, the case for allowing an amendment pursuant to section 123 in those cases was stronger than it is in the present case because the prosecutor made an error about the intended defendant, not itself. In this case, the error concerned the client of the solicitor who made it. It was about a member of the corporate group she represented. There is no evidence from Mr Lumba, the sole shareholder of the two companies involved, but Ms Tricker’s evidence is that he did not mistakenly think FL was the premises licence holder. In another sense, the case for allowing an amendment pursuant to section 123 in those cases was weaker than it is in this case because they concerned substituting a new defendant in criminal proceedings after the time limit for such proceedings had expired. In that context, it might be said that it is understandable that section 123 be given a restrictive application. But for the reasons given at [47] below I do not consider that it should be construed differently where the mistake is that of an appellant rather than a prosecutor.

Two points emerge from these cases. The first is that an error as to the identity of the defendant named which impacts on the jurisdiction to hear or determine a case is irremediable in the absence of express and specific powers that provide a remedy. The second is that, where there is a mistake as to identity, section 123 is not to be construed broadly to enable an amendment substituting the person who should have been named in the information or summons for the person that was in fact named after the expiry of the relevant limitation period. In those cases it appeared that no one was misled by the error. Perhaps for that reason, Glidewell J in Marco’s caseand Butler-Sloss LJ in ex p. Aldi regarded the point taken as one of pure technicality and without merit. Notwithstanding that, however, they construed section 123 narrowly and refused to regard the naming of a different corporate persona as a misdescription of the same person. In ex p. Aldi, Latham J stated (at 729A and E) that section 123 is a restricted power and that it is clear that it gives no power to have an amended information charging out of time an offence against a different defendant because it is a power only directed to dealing with problems relating to the defendant before the court.

That section 123 should be construed narrowly is also indicated by the statement of Lord Bingham in R v Clarke [2008] UKHL 8 at [19], a case in which a failure to sign a bill of indictment was held to have deprived the Crown Court of jurisdiction to try defendants accused of serious offences of violence. In that case, the House of Lords approved the distinction made between mistakes which are mere procedural irregularities, which may not need any amendment or which may remedied by amendment, and fundamental errors including those which impact on the jurisdiction of the court to hear or determine a case, which are irremediable in the absence of an express and specific power which provides a remedy, such as those in CPR Parts 17.4 and 19.5, to which I have referred.

Mr Bromley-Martin submitted that, for three reasons, the principle established by the Divisional Court cases on section 123 has no application to the circumstances of this case. First, those cases all relate solely to defendants in criminal cases being either wrongly “before the court” or not “before the court” at all. They do not concern civil/administrative law proceedings. Secondly, the decisions are inconsistent with or at least do not sit comfortably with what he described as the established principle that it is highly undesirable that summary proceedings should be complicated or frustrated by the taking of technical points such as this, a principle reflected in section 123 of the 1980 Act and applied in Fernandez v Broad, 10 July 1996. Thirdly, he submitted those cases do not concern complainants/appellants or situations in which the capacity, status or description of the person involved was stated correctly on the relevant document, as it is here where the notice/complaint states that it is the premises licence holder who is appealing.

I have stated that the case for a restrictive approach to be applied where the amendment is to substitute a new defendant after the end of the relevant limitation period can appear stronger than in other cases. But I do not consider that the position can be fundamentally different where the defect in process concerns an appellant and not a defendant in criminal proceedings. Section 123 is not confined to defects in process affecting a defendant. It is in the part of the 1980 Act dealing with process and it is clear that appeals under the 2003 Act are dealt with pursuant to the provisions in the 1980 Act concerning “civil jurisdiction and procedure” in sections 51 – 75, so that section 123 applies to defects in process in such appeals.

The logical consequence of Mr Bromley-Martin’s submissions in their widest form is that in a licensing appeal section 123 would have a much larger scope, notwithstanding the express decision by Parliament to limit those entitled to appeal and the wider public interest functions of licensing authorities in order to promote the licensing objectives of preventing crime, disorder and public nuisance, promoting public safety and protecting children from harm. It would mean that the section is to be construed broadly in a case where the defect in process affects an applicant/complainant, regardless of whether the defects are minor or fundamental, and would largely remove the need for any such party to comply with any rule or procedure in the magistrates’ court. In the present context it would also mean that the limitation period set out in paragraph 9 of Schedule 5 to the 2003 Act can be circumvented. This could have the effect of allowing an appeal which appears to be brought by a corporate entity with no right of appeal under paragraph 8A of Schedule 5 to proceed. As against this, it can be said that in a case where the appellant’s identity must be apparent to the respondent to the appeal, to take this point is to take a point of mere technicality which has no merit.

I discuss whether the mistake in this case was one which must have been apparent to the licensing authority below. But, assuming for the present that it was, characterising the point as “technical” does not get Mr Bromley-Martin home. As I have noted, Glidewell J and Butler-Sloss LJ so described the errors in Marco and Aldi’s cases, but the amendment was held to be outwith the jurisdiction of the magistrates. It also has to be remembered, as Lord Bingham stated in Clarke, that although:

“technicality is always distasteful when it appears to contradict the merits of a case, the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime, a certain degree of formality is not out of place”.

While in the circumstances of the case now before the court the state is not exercising its coercive power to put a citizen on trial for a serious crime, the coercive power of the state has been exercised to regulate those engaged in businesses involving the sale of alcohol, a context in which significant public interest factors are in play. Unlike the position in litigation in civil proceedings considered in Adelson and the other cases on the CPR and RSC, the public law regulation of such areas of business and the licensing requirements affect third parties and the wider public interest. Parliament has made provision specifying who can appeal against a licensing decision and the time in which appeals against such a decision must be commenced. The Administrative Court has taken a strict approach to the 21 day statutory time limit for lodging appeals against licensing decisions. In Stockton on Tees BC v Latif [2009] EWHC 228 (Admin) it held that there is no jurisdiction to extend the statutory time limit. It would, to say the least, be curious to achieve such an extension by construing section 123 in the way for which Mr Bromley-Martin contends.

I next turn to the submissions based on the proposition that it is undesirable for summary proceedings to be frustrated by technical points and the Divisional Court’s decision in Fernandez v Broad. That caseconcerned proceedings in the magistrates’ court for statutory nuisance for which ultimately the penalty for non-compliance was a fine. The defendant, Mr Fernandez, was correctly identified by name in the oral information supplied to the court and in the summons sent by the court to secure his attendance. He attended court. The defect in process in that case was that, after correctly naming him and giving his correct address, the summons also stated that the statutory nuisance complained of was that “the state of the premises is prejudicial to health as stated in the attached schedule and that you, the said council, are the owners of the premises” (emphasis added). Mr Fernandez’s representatives first submitted that the reference to the council as the owners meant the summons was defective on the day of the hearing. The magistrates accepted the submission and dismissed the summons as being fundamentally flawed.

The Divisional Court allowed the prosecutor’s appeal and permitted an amendment under section 123. Smith J accepted that if the information was so flawed that no offence was disclosed, there would be no jurisdiction and the information would be dismissed. But if the information is sufficient to found jurisdiction but contains insufficient detail or is misleading so that a defendant does not know how to defend himself, the court might require the prosecutor to amend and grant an adjournment or, where the defects are less serious, to correct them informally without an adjournment. She concluded that in that case it was perfectly clear that the words “the said Council” were “mere surplusage” and the words could be deleted pursuant to section 123. She stated that it was plain from section 123 that the intention of Parliament was that technical points should not be taken in summary proceedings.

Other than the deprecation of reliance on technical points (which itself must be considered in the light of what Lord Bingham stated in Clarke’s case), I do not consider that the appellant is in fact assisted by Fernandez v Broad. Its circumstances are clearly distinguishable from those of the three decisions of the Divisional Court followed by the Judge in this case. It is also clearly distinguishable from the facts of the present case. First, the defendant in that case (who was a natural person rather than a corporate entity) was neither misidentified nor misnamed in the summons. Secondly, it was not a case where the time limit for bringing proceedings had expired. Thirdly, there is no discussion of either Marco’s case or ex p. Aldi and it is not clear whether they were in fact before by the court. In any event, it appears that Smith J recognised that the power to amend an information or summons by the use of section 123 depended upon the uncorrected information being such as to confer jurisdiction on the court in the first place. The cases of Marco, ex p. Aldi and Sainsbury’s Supermarkets show that where the wrong corporate persona is identified as the defendant and named, and is before the court, there is no such jurisdiction.

The third reason Mr Bromley-Martin submitted the Divisional Court cases are distinguishable from this case is that those cases did not concern situations in which the capacity or description of the person involved was correctly stated in the information or summons being considered. In this case, he submitted it was clear on the face of the document that the appellant/complainant was the premises licence holder. I have noted that in Marco’s case Glidewell J accepted that the justices’ formulation of the test was accurate and that they only fell into error in their application of it. Glidewell J thus accepted that there was jurisdiction to correct where there was a misstatement of the relevant name rather than a mistake of identity.

The reference in the present case in one part of the document to the complainant as “the premises licence holder” is a distinguishing factor from Marco’s case and the other two cases. But is that single reference after the initial reference in the document to the complainant as FL Trading Ltd with no reference to its capacity or status sufficient to mean that the identity of the complainant is the premises licence holder which was unnamed or misdescribed? Is it, alternatively, consistent with Mr Grant’s submission that the complainant was FL which mistakenly purported to be the premises licence holder? If the latter, there would still have been a mistake of identity rather than of description, which it is clear from the Divisional Court cases does not suffice. Neither would it in civil proceedings: see the cases on CPR Parts 17 and 19 and Order 20 discussed earlier in this judgment.

The restrictive approach to section 123 of the 1980 Act and the statements in civil proceedings that the phrase “mistake as to name” be given a “generous interpretation” should be noted. Notwithstanding that generally restrictive interpretation, Glidewell J’s acceptance that section 123 can be used where there is a misdescription or mistake as to name provides support for also giving a generous interpretation in the context of section 123.

The difference remains, however, that the rules governing civil proceedings expressly provide for substitution or amendment after the end of the relevant limitation period. The rules governing proceedings in the magistrates’ court do not.In civil proceedings, before the introduction of Order 20 the position was that once a person had acquired the benefit of a statute of limitations he was entitled to insist on retaining that benefit and the court would not deprive him of that benefit: Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703 at 717. In a case where the matter falls for decision before the end of the period, such as Fernandez v Broad, there is no case for a more restrictive approach in magistrates’ courts proceedings. Does the position differ thereafter? The strict approach taken to the statutory time limit for lodging appeals against licensing decisions (see the reference to Latif’s case above) suggests it does. But the approach by the Divisional Court to the test formulated by the justices in Marco’s case points the other way.

I consider that the resolution of this matter is not straightforward, and that there are strong arguments for each solution. But I have concluded that provided the following requirements are met the position should not differ where the matter falls for decision after the end of the period. The first requirement, which I have discussed, is that it is clear there is no mistake as to identity. It was that requirement that was not met in the Divisional Court cases. The second requirement is that the other party is not in any reasonable doubt about this.The public nature of the document and the fact that the third parties and the public are affected are strong reasons for saying that it is necessary that there be no reasonable doubt by the respondent and all relevant parties as to the identity of the party whose name has been mistakenly stated in the document, in the present context the appellant complainant. Mr Bromley-Martin, who relied on the analogy of the approach in civil proceedings, did not suggest that, in the present context, if the true identity of the appellant is not apparent to the respondent or there is reasonable doubt as to this, the mistake can be corrected.

There are therefore two questions in this case. They are whether, on the facts before the District Judge, there was no mistake as to identity, and whether it can be said that there was no reasonable doubt as to the identity of the appellant/complainant in this case on the part of the respondent licensing authority, the magistrates’ court or the wider public. Did the District Judge fall into error in not approaching the case in this way?

Before turning to those questions, I consider Mr Bromley-Martin’s submission that the Judge made significant errors of fact in concluding that FL was before the court and the appellant, i.e. Essence, was not because it was clear that the appellant/complainant was the premises licence holder. He relied on the evidence in Ms Tricker’s statement, but that statement was made on 27 November 2014, over three weeks after the District Judge’s decision. In this part of his case, he thus seeks to challenge the District Judge’s ruling and the Administrative Court’s conclusion by reference to evidence that was not before the magistrates’ court. It is important to recall that the supervisory jurisdiction by way of judicial review involves a challenge to the legality of the decision of the inferior court, here the magistrates’ court. The magistrates’ court made its decision as to jurisdiction on the basis of the material that was before it. There was no evidence before it as to the nature of Ms Tricker’s mistake or as to the licensing authority’s state of mind.

What was before the magistrates’ court was the appeal/complaint document, and the skeleton arguments for the preliminary hearing on 3 November and possibly LT Law’s letter dated 31 October 2014 to the licensing authority. In my judgment, leaving aside the submission about the impact of the description in the document of the appellant/complainant as the premises licence holder, those documents provided sufficient material for the District Judge to conclude that the legal persona before the court was FL. The list at the top of the appeal/complaint document identified the complainant as FL Trading Ltd with no qualification. The section of the document headed “Notice of Appeal” stated “the complainant, the premises licence holder” which, referring back to the list at the top of the document, was understood as FL. There was no evidence to the contrary.

Moreover, the position taken by Ms Tricker before the hearing on 3 November 2014, after she knew that the licensing authority was going to raise the identity of the appellant/complainant as a preliminary issue, does not support the submission that it was clear at that stage that she was acting for the premises licence holder and not FL. Her letter dated 31 October to the licensing authority stated that FL was the company which instructed her firm and stated that FL had made representations at the hearing before the licensing sub-committee and therefore had a right of appeal. The latter turned out not to be true and is no longer pursued. What is significant is that there was no contention, even at that late stage, that she was instructed by the premises licence holder, let alone by the appellant (Essence). The firm’s application before the court pursuant to section 123 did not proceed on the basis that Essence was before the court. It proceeded on the basis that it was FL which was before the court but that FL should be substituted by Essence.

It is also clear from the agreed note of the hearing that the District Judge considered he was hearing an application by the appellant, FL, to substitute a different name because Essence, the premises licence holder, had not appealed in time. For these reasons, the fundamental premise upon which Mr Bromley-Martin’s submission that the judges below made significant errors of fact is, in my judgment, unfounded.

I turn to the two questions in this case and the requirements I mentioned at [58] - [59] above. It was not suggested that, if the mistake is one of identity, there is jurisdiction to correct the name. The submission was that the District Judge and the Judge in the Administrative Court erred in concluding that they were bound by the Divisional Court cases on section 123 to conclude that this was a case of mistake of identity rather than a case of misdescription.

The present case is (see [40] and [54] above) distinguishable from the Divisional Court cases on section 123 of the 1980 Act because of the reference in the notice to the description of the appellant/complainant as well as the use of a corporate name. It has been recognised (see [34] above) that in cases concerning corporate entities the distinction between misdescription and mistaken identity is particularly elusive, but there is no indication in the Divisional Court cases, in particular in Marco’s case, that there is an automatic rule that a mistake concerning a corporate entity is a mistake of identity or that where a name and a description is used it is the former rather than the latter which identifies the parties in question. The approach to this issue has been more developed in cases involving civil proceedings, and in particular in Adelson’s case. But, particularly where the relevant limitation period has not expired, I see no reason for not adopting a similarly generous interpretation to the meaning of “mistake as to name”. It follows that the boundaries of the distinction between such a mistake and a “mistake as to identity” should be determined accordingly.

It is also important that in Marco’s case, although the relevant time for laying an information had expired by the date of the hearing before the magistrates, the court accepted (albeit only by accepting that the justices’ formulation of the test was correct) that had the mistake been one as to the name of the intended defendant it would have been possible to correct it. That suggests that the fact that the period has expired is not conclusive where the correct legal person is before the court but misnamed or misdescribed.

I first consider the decision of the District Judge. There was ongoing confusion as to the position at the time of the hearing before him. That confusion is shown, for example, by the statement of LT Law in its letter dated 31 October 2014, after the licensing authority had taken the point, that FL was the company which instructed it and with no reference to its being instructed by the premises licence holder. The confusion, together with the absence of evidence, may explain the District Judge’s decision. Nevertheless, his conclusion that the mere fact that there were two corporate entities involved meant that there was a mistake of identity which could not be corrected pursuant to the powers in section 123 was, in my judgment, an error.

The Administrative Court considered that the District Judge’s conclusion was not arguably flawed in law, although the position it took was more nuanced. The Judge concluded (see [7] and [28] above) that because the solicitor did not realise that the appellant, Essence, and not FL was the premises licence holder, the document could not be construed as Essence always having been the appellant but misnamed. That approach appears to assume that the name used identifies the entity in question rather than constituting a description of an entity identified by its capacity or function. Here the function or capacity was “premises licence holder”. In the other cases discussed above the court was concerned with “landlord”, “manufacturer” or “store-owner”.

Notwithstanding the more nuanced approach in the Administrative Court, that court failed to recognise the error that was made in the Magistrates’ Court. Moreover, the approach of the Judge does not give the term “mistake as to name” a generous interpretation as suggested in some of the authorities provided that the other party is not in any reasonable doubt as to the identity of the relevant person. In my judgment, it does not follow that where a name and a description are both used in a document that it is necessarily the former rather than the latter which identifies the party in question unless the maker of the mistake realises that the named person is not the person who satisfies the description.

For the reasons I have given, I consider that the decision of the District Judge should be set aside and the matter be remitted to the Magistrates’ Court. On the question of remission, I have seen the judgment of Sir Robin Jacob in draft, but respectfully disagree. The four points he makes at [86] – [89] below are undoubtedly powerful points. I do not, however, consider that they are conclusive.

It was not clear to the solicitor who lodged the appeal that FL had no standing to appeal: see the letter dated 31 October 2014, to which I have referred at [23] above, which asserted it did. That letter was written after the licensing authority had taken the point. It also stated that it was FL which instructed the firm. This and the licensing authority’s letter to the appellant revoking the licence are part of the background against which the notice of appeal has to be considered, taking account of the fact that in interpreting public documents evidence of background has a more limited part to play than in contracts: see e.g. Trump International Golf Club Scotland Ltd v The Scottish Ministers [2015] UKSC 74 at [33] – [34], [43] and [66]. Even in the case of contracts, in standard form or security documents it is the wording of the document which is paramount: see the discussion in Lewison, The Interpretation of Contracts 6^th ed. (2015) 3.18.

I do not consider that the notice of appeal itself makes it ineluctably clear that the entity appealing was Essence, the appellant in these proceedings, as opposed to it being FL who, as Mr Grant submitted, was mistakenly identified as the premises licence holder. Nor do I consider that, adopting the Divisional Court’s approach to section 123, it can be said to be ineluctably clear that the licensing authority was not in any reasonable doubt about the identity of the appellant/complainant.

There will be two questions to be decided by construing the document and the relevant background. The first question will be to determine whether, on the facts of this case, the document misdescribed the name of the premises licence holder who was the appellant/complainant, or whether notwithstanding the reference in it to “the complainant, the premises licence holder”, in the circumstances of this case the identity of the appellant is FL. The second question arises only if it is found that the mistake is one as to description rather than one as to identity. It is whether the other party, here the licensing authority, was not in any reasonable doubt about the identity of the appellant applying the approach of the Divisional Court to the test formulated by the justices in Marco’s case and noting the analogy of the cases involving the CPR.

Both questions will be for the Magistrates’ Court to decide objectively in all the circumstances of the case. Those include the fact that the licensing authority sent the notice of the decision to Essence Bars (London) Ltd and that on the facts of this case FL did not have a right of appeal, notwithstanding the position taken in the letter dated 31 October 2014. In these circumstances, it might be difficult for the licensing authority to establish that it had a reasonable doubt as to the identity of the appellant/complainant. That, however, is a matter for the finder of fact to determine.

For these reasons, if my Lords agree I would allow the appeal against the decision of the Administrative Court, set aside the decision of the District Judge, and remit the matter to the Magistrates’ Court for redetermination in the light of this judgment and the evidence before it.

I agree that the appeal should be allowed and the case remitted to the Magistrates Court; and I add a few words in the light of the judgment of Sir Robin Jacob.

I would accept that if the identity of ‘the appellant’ were clear from the terms of the notice of appeal and the material background, then there would be no need to amend the notice of appeal or to consider the effect of s.123 of the 1980 Act. I am however very doubtful that this was the case here; and am clear that once a party has to invoke s.123 then the approach indicated by Beatson LJ, by reference to, and in the light of, the authorities he refers to, is correct.

I agree the appeal should be allowed but by rather different reasoning. I do not however agree that the matter should be remitted to the Magistrates Court for a redetermination. I do not think there is anything which needs redetermination.

Schedule 5 paragraph 8A(2) of the Licensing Act 2003 as amended provides that just three types of person can appeal. It says:

“(2)

An appeal may be made against that decision [i.e. a review of a premises licence] by:

(a)

the chief officer of police …

(b)

the holder of the premises licence, or

(c)

any other person who made relevant representations ….”

It is clear that unless you are one of these persons you cannot appeal – hardly a surprising conclusion. Outsiders cannot appeal.

The time for appealing is strictly limited by paragraph 9(2). It says:

“(2)

An appeal … must be commenced by notice of appeal given by the appellant …within the period of 21 days beginning with the day on which the appellant was notified by the licensing authority of the decision appealed against.”

There is no provision for extension of this time period.

So there can only be an appeal if two conditions are satisfied, that the appeal is by a person entitled to appeal and that it is within time.

In the present case the notice of appeal was within time. The key question is who was it by? Was it FL Trading or Essence? If it was FL then it was by a person not entitled to appeal. So any amendment to substitute Essence as the named appellant would be to permit an appeal out of time, which is not allowed.

It follows that all attention must be focussed on the meaning of the notice of appeal, the inquiry being to discern whether on its true construction, Essence was the appellant.

The following are the relevant passages of the notice of appeal:

“COMPLAINANT FL Trading Limited [address of the solicitor given]”

“TAKE NOTICE that the Complainant, the premises licence holder of the premises licence for the premises “Essence ” [address given] intends to appeal …. against the decision of the Royal Borough of Kingston upon Thames of 10^th January 2014 (received on 13 January 2013) revoking the premises licence…”

Grounds of Appeal

1.

The respondent failed to take into account and have proper regard to the evidence submitted by the appellant.”

The question of construction turns on what the reasonable reader with the relevant background knowledge would understand from the words used in their context. That context clearly includes the matter referred to in the Notice of Appeal. Would the reasonable reader conclude that although FL is named as the complainant, not only does this not make sense but also that it is entirely clear that the intended complainant must be Essence. Would he or she say that not only was FL obviously named by mistake but that clearly and unambiguously Essence was the person intended to be named, just as if Essence had been named but spelt at “Essense.”

I have concluded that this is so. There is a combination of points which taken together point inevitably – ineluctably – to this conclusion. Nothing else makes sense.

The first point is that FL manifestly has no standing to appeal – it is not one of the three classes entitled to appeal. So why would it be appealing?

The second is that FL is not, as stated in the Notice of Appeal, the premises licence holder. Essence is. Clearly there is a mistake here.

The third is that decision letter referred in the Notice of Appeal is addressed to Essence with no mention of FL. Essence was the person notified by the licensing authority of the decision and it was that notification which set time running under para. 9(2).

And fourthly the Notice of Appeal says as its first ground of appeal that the respondent failed to take into account and have proper regard to the evidence submitted by “the appellant.” But FL had not submitted any evidence – it was only Essence which had submitted any evidence.

If you take all these things together you are driven to conclude that FL has been named by some mistake and that the document should have named Essence. You know who the author really meant to be the appellant.

It follows as matter of construction that it was Essence which was from the outset the appellant. Accordingly the appeal was both in time and by a party entitled to appeal.

It will be seen that I have reached this decision without reference to the evidence from the solicitor for Essence as to her mistake and without reference to the evidence from the Council. It is not relevant to the question of construction which turns solely on the language of the Notice of Appeal at the date on which it was filed, the documents referred to in it, and how the reasonable reader would ascertain the meaning of the document in context.

Also, for the same reason, I do not find any of the authorities cited by either side, nor the CPR, relevant.

It follows from my construction of the Notice of Appeal that it does not need amendment. Nor is there anything which needs re-determination and the appeal on the merits can simply proceed. However, since my Lords differ from me the matter must be remitted to the magistrates.