Gonis & Anor, R (on the application of) v Westminster City Council

J U D G M E N T

1. MR JUSTICE MITTING: This is an appeal by way of case stated from a decision of Bow Street Magistrates' Court on 28 May 2003 to make a closure order in respect of premises at the corner of Peter Street and Berwick Street W1 under section 4(6) of the City of Westminster Act 1996.

2. The uncontested facts before the district judge were that those premises had been operating illegally as an unlicensed sex establishment since at least May 2000, and that other measures to attempt to produce an end to illegal activity on those premises had failed.

3. Four questions were argued before the judge, all of a technical nature, all concerning documents that were, or were said to be, required to be served under the procedures laid down in the Act. The first question was whether the court could be satisfied whether the complaint had been made in time. The second was whether the summons was bad due to differences in description, in the summons and the closure notice, of the premises. That point is not taken before this court and I make no further reference to it. The third question was whether or not the summons had been properly served upon the appellant, Zaharis Gonis, and the fourth question is whether or not notice of the proceedings was required to have been given and, if given, had properly been given to an entity, if it existed, with the name Porterre SA.

4. As to the first issue, the district judge decided that the complaint, which bore the date 28 February 2003, had been properly made upon that date. He rejected the submission made on behalf of the appellant, Darrell Girvan, that he should be suspicious about the document, because it had been prepared with the date already typed upon it. He expressed himself as being satisfied that the complaint was timely because there was no evidence to suggest to the contrary. Before this court it is suggested that he should have adjourned that question so as to permit research to be undertaken into the court's own records.

5. That issue arises out of the statutory requirement under the 1996 Act to make a complaint within a period of six months of service of the closure notice. It is therefore necessary to examine this aspect of the statutory scheme. Section 3(1) provides that:

"Where the council are satisfied that premises in the City are being used as a sex establishment without a licence in breach of Schedule 3 they may serve a closure notice in respect of those premises."

There is then provision for service of the closure notice to which I will return because it bears upon the third of the questions which I have to determine. Section 4(1) provides that:

"Subject to subsection (2) below [which is immaterial] the council may, not less than 14 days and no later than 6 months after the service of a closure notice make a complaint to a justice of the peace acting for the petty sessions area in which the premises are situated for a closure order in respect of that closure notice."

6. It was common ground before the district judge that a closure notice had been lawfully served on 3 September 2002. Thus, if the date of complaint was the date which the document making the complaint bore (28 February 2003), the making of the complaint was undoubtedly in time. The district judge's conclusion of fact that he was satisfied that a complaint was timely because there was no evidence to suggest to the contrary, is one with which this court cannot possibly interfere. It is a conclusion he was entitled to reach. He was under no obligation to adjourn the proceedings to permit research to be undertaken of the court's records. If he had done, he would have discovered a summons signed by the district judge and dated 28 February 2003. The suggestion that the complaint was not made in time carries with it the implication that the summons too was mis-dated and that the district judge, whose duty it was to consider the matter judicially, either knowingly or mistakenly signed a document bearing a false date. Those suggestions seem to me to be entirely far fetched. The district judge was plainly entitled to come to the conclusion which he reached.

7. The second complaint is that the summons was not properly served upon the first appellant, Zaharis Gonis. Section 4(3) permits a Justice of the Peace to issue a summons directed to all persons upon whom the closure notice was served under section 3(2)(a)(i); that is to say upon at least one person having control or an interest in the business carried on in the premises. There is no doubt, as a matter of procedural fairness, that service of a summons upon such a person is required for the proceedings to be effective.

8. Section 8 of the 1996 Act prescribes means by which a summons may be served. They include sending by pre-paid registered letter or the recorded delivery service a letter addressed to the relevant person. As the district judge found, the summons was sent by first-class post. He observed that service by that means did not comply with section 8(1)(c), but, nonetheless, held that service was effective. It appears that his attention was not drawn to rule 99(1) of the Magistrates Court Rules 1981 which provides at subrule (1)(c) that:

"Service of a summons issued by a justice of the peace on a person other than a corporation may be effected-

(c) by sending it in post in a letter addressed to him at his last known or usual place of abode."

Subsection (5) provides that:

"Any summons or other document served in manner authorised by the preceding provisions of this rule shall, for the purposes of any enactment other than the Act of 1980 or these Rules requiring a summons or other document to be served in any particular manner, be deemed to have been as effectively served as if it had been served in that manner."

Rule 99 therefore provided an alternative method of service. On the district judge's findings in this case it was complied with. It is therefore unnecessary to consider the argument whether or not service under the mechanisms described in section 8 of the 1996 Act was mandatory or whether it simply provided for a number of alternative methods. Rule 99 makes it plain that section 8 is subject to the provisions for service by post. Service by post is therefore good and the second argument therefore falls.

9. The third submission is that notice of the proceedings were not given to Porterre SA. Therefore, it is submitted, the proceedings were either a nullity or, alternatively, the district judge, in the exercise of his power to adjourn, was bound to adjourn so that if he did not do so he committed an error of law or behaved with procedural impropriety such that his decision should be quashed.

10. The district judge's findings on this matter were that the council undertook enquiries of the Land Registry to identify the owner of the premises. They record the proprietor as Porterre SA, c/o 20 Gildredge Road, Eastbourne, East Sussex, BN21 4RP. The district judge noted that the council attempted to serve notice concerning the summons on that entity by sending a notice of the summons by recorded delivery to the Eastbourne address. That elicited a reply from Messrs Mayo & Perkins, a firm of solicitors, who returned the summons stating that they did not act for Porterre and had not done so for several years. The district judge noted that no evidence was produced at the hearing as to what Porterre SA was.

11. The solicitor for the appellants invited him to assume that it was some kind of entity incorporated outside England and Wales. He accepted that may well have been the case, but, in the absence of evidence, he declined to make that assumption. Having declined to make that assumption he then directed himself that there was good service in accordance with section 8(1)(c) of the 1966 Act.

12. To understand this issue, it is necessary to refer to other sections of the 1996 Act. Section 3(2) requires a closure notice to be served on two categories of people. Under (a)(i):

"(i) at least one person having control of or an interest in the business carried on in the premises.

(ii) the occupier of any other part of the building in which the premises are situated and to which, in the opinion of the council, access would be impeded if an order under section 4(5)(a) below were made in respect of the premises."

Subsection 3(2)(b) provides that a closure may be served on any other person having an interest in the premises. Section 4(3) requires a summons to be served upon all persons upon whom a closure notice was served under section 3(2)(a)(i), but subsection (4) provides that:

"Where a summons issued under subsection (3) above is served a notice stating the date, time and place at which the complaint will be heard shall be served on all persons upon whom the closure notice was served under section 3(2)(a)(ii) and (b) above."

Thus the statutory scheme requires that notice of the issue of the summons be served on a person having an interest in the premises upon whom no closure notice was required to be served, if the closure notice was in fact served on him.

13. The power of the court to make a closure order is contained in section 4(5), which provides that:

"If, on hearing the complaint, the court is satisfied that --

(a) the closure notice was properly served."

(there then follows the requirements of substance which give rise to the complaint)

"... it may make an order under this section."

14. As I read that provision, it simply means that the court can make a closure order provided that it is satisfied that the closure notice was properly served upon those persons upon whom it had to be served under section 3(2)(a). There is no requirement in section 4(5)(a) for the court to be satisfied that a closure notice, not required to be served under section 3(2)(b), was properly served. But, even if that is wrong, there is no suggestion in this case that the closure notice was not properly served upon Porterre SA because, as the district judge found, it was served on the owner and occupier by leaving it at the premises. Thus, on any view, the preliminary requirement, subject to which a closure order can be made, was satisfied in this case.

Section 4(4) imposes a mandatory requirement where a summons is issued under subsection (3) for the service of a notice stating the date, time and place at which the complaint will be heard, to be served upon, amongst others, persons upon whom the closure notice has been served, including those upon whom it had been served in the exercise of discretion under section 3(2)(b).

The fundamental question which should have been posed before the district judge was whether or not a failure to comply with that requirement rendered the proceedings before him a nullity or required him to adjourn the proceedings so that notice could be served by one of the means specified in section 8 or rule 99 upon Porterre SA.

As to whether or not the proceedings were a nullity without service of such a notice, useful guidance was given by the Court of Appeal in Westminster City Council v Mendoza [2001] EWCA Civ 216. In paragraph 32 of his judgment the Lord Chief Justice observed, having referred to observations made by him in London and Clydeside Estates Ltd v Aberdeen DC [1980] 1 WLR 182:

"I sought to emphasise that the fact that a procedural requirement states that something shall be done does not mean that if it is not, that the result is a nullity. It is very important to look at the intention of the legislation in assessing the requirement. It may be an obligation which is clearly set out, but the consequences of not complying with the obligation depend very much upon what is the statutory intent of the legislation as a whole. In this case, as I have sought to make clear, the purpose of the legislation so far as the occupiers of the basement were concerned is clear. "

The facts concerned an occupier of premises likely to be affected by service of the notice upon whom service of the closure notice was required by section 3(2)(a)(ii).

"It was to give them an opportunity to be heard. That opportunity could be achieved by any service on those persons which enabled them to take part in those proceedings if they wished so to do."

In paragraph 33 the Lord Chief Justice observed that the legislation sought to draw a proper balance between the interest of those who occupied premises and the public interest, and stated:

"It is important not to achieve any result which causes injustice to occupiers, but equally it is important to come to an interpretation which does not frustrate the City of Westminster in the interests of the public to enforce the legislation with which we are here concerned."

At paragraph 51 May LJ, concurring, observed:

"It seems to me that the requirement of section 4(5)(a) that, on the hearing of the complaint, the court has to be satisfied that the closure notice was properly served means what it says. It has to have been properly served on those upon whom it ought to have been served. I agree with the Lord Chief Justice that it is unhelpful to ask whether these provisions are mandatory or directory. Plainly the hearing of the complaint cannot properly proceed if those who ought to have been served have not been served, nor, importantly, if they have not been given due notice of the hearing of the complaint."

15. In that passage, in my view, May LJ was there referring to the circumstances specified in section 3(2)(a)(i) and (ii) and not those specified in section 3(2)(b). The statute only requires service on those identified in 3(2)(a)(i) and (ii). It is only upon them that the closure notice ought to have been served. Only if there is a failure of service upon them could the complaint not properly have proceeded.

16. Given that there was no such failure here, the argument addressed to the district judge, that there had not been proper service on Porterre SA, was immaterial. The proceedings before him were not a nullity. He was entitled, in the exercise of his discretion, not to adjourn them to achieve service by different means upon Porterre SA.

17. There is a further reason why this court could not entertain any application based upon failure to give notice of the proceedings to Porterre SA. That is that Porterre SA are not a party to these proceedings. If Porterre SA exists, it has not sought to apply for judicial review. It is only its interests that are capable of being affected by failure to serve notice upon it. Neither of the two personal appellants before the district judge, nor the applicants in this court, have any right to complain on behalf of Porterre SA about procedural failings in relation to its interests.

18. For those reasons this application for judicial review is dismissed.

19. MR SPENCER: There is an application for costs which I have shown my learned friend. There are two appellants before this court. It is right to say both of them are men of straw.

20. MR JUSTICE MITTING: Do you seek the order in that sum in any event?

21. MR SPENCER: Yes please.

22. MR WHITEHOUSE: My Lord, I would seek detailed assessment in this case, the reason being that the Council have not complied with section 13 of the Costs Practice direction and served upon the court, I am assuming -- they have not served upon us -- a schedule of their costs 24 hours before the hearing. There are no useful representations that I can make without instructions from my instructing solicitors as to whether these costs are appropriate or proportionate. There is authority I can take your Lordship to.

23. MR JUSTICE MITTING: If you have not been served with the notice in time you have not had the opportunity to consider them.

24. MR SPENCER: That is right, my Lord.

25. MR JUSTICE MITTING: You cannot resist an order for costs subject to detailed assessment.

26. MR WHITEHOUSE: I cannot say they are not entitled to them, simply that we have not had opportunity to digest them and make representations.

27. MR JUSTICE MITTING: I order that the applicant do pay the defendant's costs subject to detailed assessment if not agreed.