Rindberg Holding Company Ltd. v The Newcastle Upon Tyne Justices & Ors

In a judgment handed down on the morning of 24 June 2004, the Court of Appeal upheld an earlier decision of Lightman J quashing on an application for judicial review a decision of licensing justices to grant a licence by special removal for the Gresham Hotel, Osborne Road, Newcastle upon Tyne (“the Gresham”).

The Gresham is owned by the second defendant, Ultimate Leisure Group Plc (“Ultimate”). The special removal had been granted to Ultimate on 1 December 2003. The present claimant, Rindberg Holding Company Ltd (“Rindberg”) is a commercial rival of Ultimate and was one of many objectors to the grant. Rindberg participated in the proceedings before Lightman J and the Court of Appeal as an interested party in support of the claim and, as I understand it, was involved in funding the claim. Ultimate was a defendant in those proceedings and was the unsuccessful appellant in the Court of Appeal.

The order of Lightman J quashing the special removal and remitting the matter for reconsideration by the licensing justices had been stayed pending the Court of Appeal's judgment. The Court of Appeal decided that the special removal should simply be quashed and not remitted, leaving it to Ultimate to make a fresh application. No stay was sought in respect of the judgment of the Court of Appeal. The effect was that the Gresham, which had been trading since December 2003, thereafter lacked a licence necessary for its operation unless and until a special removal or other licence was granted on a fresh application.

On the afternoon of 24 June, pursuant to an application made the previous day, the Newcastle upon Tyne Magistrates' Court granted Ultimate a series of three “occasional licences”, each of three weeks in length and running in total from 24 June to 25 August. The occasional licences enabled the Gresham to continue trading pending consideration of a fresh application for a special removal licence which Ultimate undertook to file in time for the licensing justices' session on 11 August. By the present proceedings Rindberg seeks to have the occasional licences quashed, contending that the application for the licences was an abuse of process and that the magistrates erred in law in entertaining the applications and granting the licences.

It is necessary for me to provide a little more detail about the previous proceedings, though reference should be made to the judgments of Lightman J and the Court of Appeal for a full account. When I refer to the “previous proceedings”, I mean those immediately preceding this case. The Gresham has generated a substantial amount of earlier litigation to which I do not have to refer.

Special removal is one of the routes by which premises can be granted an on-licence under the Licensing Act 1964. As the Court of Appeal observed, the material provisions remain those of the 1964 Act, even though that Act is shortly to be replaced by the Licensing Act 2003. Special removal involves the removal of a licence from the premises for which it was granted to other premises. One of the premises owed by Ultimate was a small public house called Mims Bar. Ultimate sought to have the licence removed from Mims Bar to the Gresham. It appears that this was because of difficulties that had been encountered in attempts to obtain a licence by way of a new application or other routes. The potential grounds of objection to a special removal are much more limited.

Section 15(1) of the 1964 Act provides:

“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 .... the provisions of section 12 .... of this Act shall apply as they apply to a renewal....”

Under section 12 the justices may only refuse such an application on the grounds that (a) the applicant is not a fit and proper person, or (b) the licensed premises have been ill-conducted or the premises to be licensed are structurally deficient or structurally unsuitable.

The basic facts relevant to the application under section 15(1) were that Mims Bar had closed for business and was subject to a compulsory purchase order in connection with a proposed regeneration scheme. The compulsory purchase order was made by the council in August 2002, but was subject to a public inquiry in January to February 2003 and was confirmed by the Secretary of State only in June 2003. It was held by Lightman J and the Court of Appeal that the relevant date for the purposes of section 15(1) was in February or March 2003, the date of the application or when the matter first came before the justices, and that the conditions of section 15(1) were not met as at that date.

In quashing the decision on that basis, Jacob LJ, with whom the other members of the court expressed agreement, referred to the fact that Ultimate was free to make a fresh application and stated in paragraph 29:

“We are told that the Mims premises have now been pulled down and it may be that on such an application the justices will find that section 15(1)(a) has been satisfied.”

Occasional Licences -- the Statutory Framework

The power to grant occasional licences is conferred by section 180 of the 1964 Act as amended. Its material provisions are:

“(1)

Justices of the peace may, on the application of the holder of a justices' on-licence, grant him a licence (in this Act referred to as an 'occasional licence') authorising the sale by him of any intoxicating liquor to which his justices' on-licence extends at such place other than the premises in respect of which his justices' on-licence was granted, during such period not exceeding three weeks at one time, and between such hours, as may be specified in the occasional licence, but an occasional licence shall not authorise the sale of intoxicating liquor thereunder --

(a)in any area in Wales and Monmouthshire in which section 66(1) of this Act for the time being applies, or any Sunday, or

(b)on Christmas Day, Good Friday, or any day appointed for public fast or thanksgiving.

(2)

Subject to the following provisions of this section, the justices shall not hear an application for an occasional licence unless satisfied that the applicant has served on the chief officer of police at least twenty-four hours' notice of his intention to apply for it, stating the name and address of the applicant, the place and occasion for which it is required, the period for which he requires it to be in force, and the hours to be specified in it.”

It is to be noted that this is a stand-alone procedure which differs materially from that of normal licensing applications. The application is made to the magistrates' court and not specifically to the licensing justices. The only notice required to be given is to the police. An occasional licence can be granted on 24 hours' notice. A licence can indeed be granted without a hearing, provided 28 days' notice is given, although I have not thought it necessary to quote the relevant subsections of section 180 which deal with that. The licence is of a short duration (not exceeding three weeks). It may be granted for premises that are already licensed and the rules about permitted hours do not apply.

The statutory provisions can be traced back to section 13 of the Revenue Act 1862, although there have been changes in the procedures and in the period of time for which an occasional licence can be granted.

Of the authorities relating to section 180 the most important for present purposes is The Queen v Bow Street Stipendiary Magistrates, ex parte Commissioner of Police of the Metropolis [1983] 2 All ER 915, a judgment of Glidewell J. The headnote reads:

“The licensee was the holder of a justices' on-licence for each of two sets of premises. One of those licences expired on 4 April 1982 but the licensee forgot to apply for a renewal, although if he had it would have been granted unopposed. When the licensee discovered the failure to apply for renewal of the licence and that in consequence the sale of liquor on the premises had become unlawful, he made an application for late renewal of the on-licence and in the meantime, to enable the lawful sale of liquor on the premises pending the hearing of that application, he applied to the justices under s180 of the Licensing Act 1964, as the holder of an on-licence elsewhere, for an occasional licence in respect of the premises for a period of three weeks. The stipendiary magistrate granted him two occasional licences for the premises under s180(1), each of three weeks' duration, to run consecutively. The police applied for a declaration that the magistrate's decision was wrong in law, contending that an 'occasional licence' under s180 could only be granted in respect of a particular event or function.”

Glidewell J held that:

“The words 'occasional licence' in s180(1) of the 1964 Act and 'occasion' in s180(2) referred to the existence of circumstances which gave rise to the need for a licence to sell liquor at premises other than those for which the applicant held a valid on-licence, and did not refer only to a particular event or function for which a licence was required. Accordingly, where an applicant who was the holder of an on-licence elsewhere had forgotten to apply for a renewal of an on-licence for premises, circumstances existed which entitled the justices to grant an occasional licence for those premises since an occasional licence was necessary to make the sale of liquor on the premises lawful until the on-licence was renewed. It followed that the magistrate had been entitled to grant the occasional licences ....”

At page 917 H-J Glidewell J observed:

“There is no doubt at all, and it is the experience of all counsel whom I have heard as well as my own so far as my experience of these matters goes, that in the vast majority of cases a licence under this section or its predecessor, is a licence granted for the sale of intoxicating liquor at or on the occasion of some event or function, such as a sporting event, a festival, a dance or a dinner. The event or function, it is clear, may take place only on one day or may extend over a number of days, that matters not. But that the occasion in such circumstances can be described as relating to or as being the event or function I have no doubt. What I have to decide is whether the words are restricted in their meaning to events or functions, or whether the words have a somewhat wider meaning.”

He then engaged in a survey of the legislative history and various authorities. At page 920A-B he concluded:

“In the end it seems to me that this is largely a matter of impression. As I have said, there is nothing in sub-s(1) of s180 which limits the discretion which the magistrates may exercise, and I have come to the conclusion that the principal argument advanced by counsel for [the licensee] and counsel as amicus curiae is correct. In other words, 'occasion' is to be defined in relation to s180 as meaning the circumstances which give rise to the need, or the alleged need, for the sale at premises other than those for which the applicant holds an on-licence of intoxicating liquor.

If that be right, as in my judgment it is, then the magistrate in this case was entitled to do as he did, and the application for a declaration must therefore fail.”

Glidewell J went on to consider two subsidiary points. First, he dealt with the suggestion that the application had not in terms specified the occasion for which the licence was required. He said in relation to that that the requirement would be satisfied by the use of wording such as “the occasion is the occasion of having failed or forgotten to apply for a renewal of the licence”. What was needed was to tell the police why the application was being made at all. He then concluded at page 920E-G:

“The second matter is this: to an extent all counsel placed arguments before me based on policy. I have not sought to base my decision one way or another on policy. But I will say this, that I am dealing with a case in which, I emphasise, there is no question of objection to this applicant, [the licensee], of any sort whatever. Nobody suggested for a minute that he was not conducting his premises properly. If there were objection, it would be a totally different case. The police would be entitled to object and the justices would be justified in refusing the licence. But, where there is no objection, the only purpose for which the annual on-licence is required to be renewed is really a revenue-gathering purpose. And, if it is relevant to consider policy, then there is a lot to be said for the argument that it is to be assumed that Parliament intended some provision to be made for circumstances where the applicant has forgotten to apply for a renewal. Whether Parliament indeed has considered this in terms, I know not. What I have found is that the wording that Parliament has chosen to use in s180 is wide enough to cover that situation.”

The Grant of the Occasional Licences in this case

I have mentioned that the Court of Appeal judgment was handed down on 24 June and that until that date the Gresham continued to trade under the licence granted by way of special removal. Lightman J's order quashing that grant had been stayed pending the Court of Appeal judgment.

On 17 June the Court of Appeal's draft judgment was made available to Ultimate's lawyers, subject to the usual confidentiality restrictions. Ultimate's solicitors faxed to the clerk to Jacob LJ requesting permission to inform their client of the contents of the draft judgment substantially in advance of the date of hand-down because “the effect of the judgment may cause our client to have to close the premises, which will involve laying off a number of staff, and cancelling contracts with suppliers”. Permission was given for the contents of the judgment to be communicated not before 10am on 22 June, which was a Monday. The e-mail from the Lord Justice's clerk granting such permission was copied to the other parties. It asked Ultimate's solicitors also to ensure that the other parties received a copy of the faxed request so that they knew the full details. Through inadvertence this was not done until the point was raised in the course of the present proceedings. Although that is to be deprecated, given the importance of even-handedness in these matters, I do not attach any more sinister significance to it. In my view it cannot affect the lawfulness of the magistrates' decision impugned in the present proceedings.

In the event, Ultimate sought to avoid the effects of closure by applying for the occasional licences. It appears that instructions to make an application were given before 22 June. A witness statement of Mr Grunert, Ultimate's solicitor, makes clear that contingency plans were discussed with the client on the assumption that the Court of Appeal judgment would uphold the order of Lightman J quashing the special removal, and that the solicitors were instructed to make an application, even if it would have to be withdrawn in the event of the judgment going in Ultimate's favour. There is nothing to show a failure to respect the confidentiality restriction.

Ultimate's solicitors then checked with the police that if an application were lodged, the police would be unlikely to object to it. They also checked with the clerk at the magistrates' court that an application made with sufficient notice could be heard by the magistrates at 2.15pm on 24 June. It appears that an inquiry had already been made on 17 June of the owner of the property adjoining the Gresham as to whether the owner and tenants would consent to the granting of an occasional licence in the event that an application were made. Two tenants had responded on 18 June to the effect that they would consent, though the point is made by Mr Gouriet that if one examines the terms of the letter of request the consent should be seen as not extending to the grant of three consecutive occasional licences as actually occurred.

The application for the occasional licences was served on the police and the magistrates' court on the morning of Tuesday 23 June within the statutory deadline to enable the hearing to take place on 24 June. The application form stated under the heading “Description of Function”:

“An occasional licence to cover the premises until such time as a hearing can be convened for the consideration of an application by the operators for a special removal of a suitable licence.”

On the morning of Wednesday 24 June, the Court of Appeal's judgment was handed down. Leave to appeal to the House of Lords was refused. No application was made for a stay pending a petition to the House of Lords for leave to appeal. It seems that an intention to seek a stay had originally been signified by Ultimate's solicitors, but on 23 June Ultimate's solicitors informed Rindberg's solicitors that a stay was not now being sought. Words were used along the lines of “we will take our medicine”.

On the afternoon of the same day, following the handing down of the Court of Appeal's judgment, the magistrates heard the application for occasional licences. The application had not been mentioned at the time of the handing down of the Court of Appeal judgment. No notice of it had been given to Rindberg. There is no such notice requirement in the legislation. Nevertheless, Rindberg's solicitors came to hear of it at lunchtime before the hearing and, by good fortune, it proved possible at very short notice to instruct leading counsel, Mr John Steel, to attend the hearing on behalf of Rindberg to oppose the application. He had a very real familiarity with the matter, having appeared on behalf of the objector claimants in the proceedings before Lightman J and the Court of Appeal. The magistrates allowed Mr Steel to make submissions. So in the event they heard detailed argument for and against the grant of the occasional licences and they knew all about the background of the previous proceedings leading to the Court of Appeal judgment that morning. They also heard evidence from the licensee of the Gresham, who was cross-examined by Mr Steel. At the end of his closing submissions, the advocate for Ultimate (according to the note of the hearing) “asked that the status quo be preserved while a further application be made”, and referred to the importance of the decision. The magistrates retired for thirty minutes before returning to court and granting the licences sought. The note of the reasons they gave orally corresponds with the written reasons subsequently made available. The written reasons state:

“We are dealing with a request for three consecutive occasional licences (21 days each) for the Gresham Hotel.

There have been no problems at the Gresham since December 2003. Mr Steel used the term 'ambush' in making these applications. We consider it to be good management planning, to cover all eventualities, and prepare their next move.

This bench often deals with similar requests from Registered Clubs and licensed premises where they have forgotten to renew their certificate or licence and apply for occasional licences to allow them to continue until renewal.

The police have raised no objection on this occasion and we usually grant occasional licences subject to police objections and considering all the points put to us today we grant these applications for occasional licences.”

The Claimant's Submissions

Mr Gouriet provided the court in advance with a substantial skeleton argument which he has made clear today he adheres to, although he has emphasised and to some extent expanded on certain of the points in that skeleton argument. I can conveniently summarise his submissions by reference to the scheme of the skeleton argument. He submits that whether one looks at the application for occasional licences as having been for the purpose of preserving the status quo or for the purpose of licensing the Gresham in anticipation of a grant of a licence yet to be applied for (a fresh special removal), the grant was unlawful.

As to preserving the status quo, he submits that the only status quo which could be preserved was that the Gresham was unlicensed. The consequence of the quashing of the licence by way of special removal and the absence of any stay on the quashing order was inevitably that the Gresham was thereafter unlicensed.

Insofar as the status quo is said to have derived from the validity of the special removal, it was for the Court of Appeal and not for the magistrates' court to determine whether or not to preserve that status quo, and in particular by a further stay on the quashing order.

It is further submitted that it was an abuse of process to bring proceedings by way of an application to the magistrates in order to obtain a remedy (the maintenance of the status quo) for which application was deliberately not made in the earlier proceedings before the Court of Appeal. It is said that each of the arguments addressed to the magistrates in support of the application for occasional licences could and should have been addressed instead to the Court of Appeal on an application for a further stay.

Mr Gouriet has drawn my attention to the statement of principles on the subject of abuse of process in the speech of Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1, 31. Mr Gouriet summarises matters as follows. The court should not attempt to define or categorise what may be an abuse of process. Bringing an action for a remedy that could or should have been sought in earlier proceedings may of itself be an abuse of process without any additional element. Mr Gouriet adds that it is more likely to be an abuse if a deliberate decision has been taken not to seek that remedy previously: see Williams v Hunt [1905] 1 KB 512. Where there are additional elements such as dishonesty or a collateral attack, that may make it more likely that there is an abuse. The overall assessment as to whether the conduct amounts to an abuse should be the result of a merits judgment based on all the circumstances of the case.

In relation to collateral attack, a further point that Mr Gouriet makes is that Lightman J and the Court of Appeal had been asked to withhold a quashing order altogether on the ground that the Mims Bar had by this time been pulled down and there could and would be a fresh application based on section 15 and the contention that the conditions for special removal had now been satisfied. That request was rejected. He submits that the application to the magistrates amounted to the making to them of the same request as had been refused by the court in the earlier proceedings.

Returning to the link between the application to the magistrates and the failure to apply for a stay of the quashing order, Mr Gouriet submits that there is no meaningful difference between asking the magistrates to preserve the status quo by way of occasional licences and asking the Court of Appeal to preserve the status quo by way of a stay of the quashing order. Ultimate was asking the magistrates for the same thing as they should have asked, but had failed to ask, the Court of Appeal -- indeed, the same thing as they had deliberately chosen not to ask from the Court of Appeal.

It is further submitted that the abuse was aggravated by a failure to disclose to the court or to the parties, including Rindberg, that written application for the occasional licences had been lodged with the magistrates' court on 23 June, the day before the handing down of the Court of Appeal judgment. By concealing the fact of the application, Ultimate deprived Rindberg of the opportunity of asking the Court of Appeal to stay the application for occasional licences as an abuse of process.

There were further submissions to the effect that the abuse was aggravated by what was said in correspondence which had the effect of misleading Rindberg and indeed the court. The Court of Appeal had been asked to relax the confidentiality restriction because the effect of the judgment might be to cause the premises to be closed. An intimation had been given that a stay would not be applied for and that Ultimate would “take its medicine”. It is difficult to see how Rindberg or the court can have been expected to conclude otherwise in the circumstances than that, following the Court of Appeal judgment, the Gresham being unlicensed was likely to close. Even if there was no deliberate misrepresentation, it is said that the likelihood of misapprehension must have been appreciated and that Ultimate was under a duty to correct it.

The actions of Ultimate are submitted to have amounted to a manipulation of the court's process to its own advantage and to the prejudice of Rindberg and interested parties.

The other aspect of the submissions advanced by Mr Gouriet is that the grant of occasional licences in the circumstances of this case was contrary to the policy and scheme of the 1964 Act, and was therefore unlawful. It is said that there is no provision in the 1964 Act for the privileges of a licence to be enjoyed in advance of a determination by a licensing committee. Reference is made in particular to section 27 of the 1964 Act, which provides that an application for a full licence does not come into force until the objectors' rights of appeal have been exhausted. It also makes provision in relation to a licence by way of ordinary removal where there is an appeal. It does not deal with special removal because no appeal lies against the grant of such a licence. What is said to be revealed by section 27 is the underlying principle that the benefits of a licence are not to be enjoyed by premises until there has been a final determination in relation to it, whether by the licensing justices or on appeal by the Crown Court. It is suggested that the scheme would be frustrated if all one had to do was to find a friendly local licensee to apply for an occasional licence to cover the premises pending an appeal.

In relation to the Bow Street case, Mr Gouriet does not seek to take issue with the principle laid down that occasional licences can be granted in circumstances extending beyond those of particular events or functions, but he submits that the case does not stand as authority that the grant of licences in the circumstances of the present case was lawful. He points out in particular what was said at the end of Glidewell J's judgment to the effect that the case would have been totally different had there been an objection to renewal. He also submits that the situation that arises on the expiry of a licence through failure to apply for renewal and the situation that arose in this case were fundamentally different. The occasional licences in this case do not purport to fill a gap in the way that was done in the Bow Street case. The hiatus there was simply a period before an unopposed application for a late renewal could be heard. By contrast, in the present case liquor has been sold at the Gresham under the authority of a licence, the grant of which has been quashed on a judicial review. What lies ahead is not a gap, the other side of which is the resurrection of that licence, but a determination in respect of a fresh application. The occasional licences in this case were granted not to fill a gap but in anticipation of the grant of a fresh licence. Moreover, no application had even been submitted for a fresh licence at the time when the magistrates granted the occasional licences. Very importantly, submits Mr Gouriet, there is substantial objection in this case to the licensing of the Gresham as a public house. There will be a strongly opposed application for the special removal that will be sought. My attention has been drawn, amongst other evidence, to a letter from Newcastle City Council expressing serious concerns about the suitability of the premises -- concerns that engage the limited grounds upon which special removal can be refused under section 15. So the grant of the occasional licences was, it is submitted, in anticipation of an application before the licensing justices which may fail. That makes the situation very different from that in the Bow Street case and engages policy considerations of a kind that it was unnecessary to address in that case.

As to broad policy, Mr Gouriet submits that occasional licences should not be granted by magistrates for the purpose of allowing premises to trade as licensed premises in advance of a hearing by licensing justices of an application for a justices on-licence in respect of those premises, the outcome of which is uncertain; otherwise the function of the licensing justices would usurped by the magistrates who may or may not have any knowledge of or training in licensing matters. In that connection Mr Gouriet has referred me to the provisions of Schedule 1 to the 1964 Act concerning the constitution and procedure of licensing justices, and the provisions of Schedule 2 concerning applications for justices' licences. He submits that if an occasional licence were permitted in these circumstances, it would be to short-circuit a process designed to protect a variety of interests. He also suggests that the procedure of occasional licences may be used in some cases to provide licensing cover for periods of a year or more which, it is to be inferred from the way the argument is put, is said to be an objectionable use of the section 180 procedure.

I have had the benefit of reading a skeleton argument lodged on behalf of Ultimate by Miss Fitzgerald QC. I did not think it necessary to call on her to address me orally. I have taken into account her submissions and they are in part reflected in my conclusions to which I now turn.

I propose to state my conclusions relatively briefly. I have reached a clear view on the issues. Having regard to the short-term nature of the occasional licences and the overall timetable, it is plainly more important to give an immediate decision than to take time over a more elaborately reasoned judgment.

First, I reject Mr Gouriet's argument that it was in some way improper or an abuse of process to make the application for occasional licences, or (as was also said in part of his written submissions to which I have not referred earlier) that the effect of the grant of the licences was to render nugatory the judgment of the Court of Appeal handed down that morning.

The Court of Appeal was concerned with the lawfulness of the licence by way of special removal. For reasons I have explained in summary form, it upheld Lightman J's finding that the special removal should be quashed because at the time of the application for special removal the relevant conditions were not met.

The Court of Appeal left open, however, the possibility of a fresh application for a special removal and, since the Mims Bar had been pulled down, recognised that on a fresh application the justices might find that the relevant conditions had been met. Once the existing special licence was quashed, it ceased to provide a lawful basis for continued trading by the Gresham. Plainly the Gresham then faced closure unless and until it could obtain an alternative licence. The possibility of closure and the need in that event to lay off staff and to give notice to contractors was a proper reason for asking the Court of Appeal to modify the confidentiality restriction in respect of the draft judgment. Closure, however, was not the only possibility. It was perfectly legitimate, in my view, for Ultimate to look for ways of enabling trading to continue lawfully.

One such way might have been a stay of the order of the Court of Appeal, just as the order of Lightman J had been stayed pending the determination of the appeal to the Court of Appeal. Had Ultimate wished to pursue the question of a stay, self-evidently it would have been a matter for the Court of Appeal. It was something plainly considered by Ultimate but in the event was not pursued, perhaps unsurprisingly. One might think that the chances of the Court of Appeal agreeing to a further stay pending the lodging of a petition to the House of Lords would have been low.

The other possibility was an application for occasional licences until a fresh application for a special removal could be considered. In my judgment, that was plainly not a matter for the Court of Appeal. It was not the subject matter of the case before the Court of Appeal and it did not in any way involve the continuation of the licence by special removal held by the Court of Appeal to have been unlawfully granted. On the contrary, it was premised on the quashing of that licence and therefore on giving full legal effect to the judgment of the Court of Appeal. It looked to the future and how to deal with the consequences of the judgment. Accordingly, it was, in my view, not necessary for Ultimate to draw to the attention of the Court of Appeal its intention to make such an application.

Mr Gouriet submits that it was the function of the Court of Appeal to determine whether the status quo should be maintained pending the hearing of a fresh application for a special removal. If one were concerned with the status quo in the sense of continuation in force of the existing special licence pending a petition for leave to appeal to the Hours of Lords, I would agree. But one is not concerned with that. When one is concerned with alternative ways of enabling the Gresham to continue trading between the quashing of the existing special licence and the hearing of a fresh application, I disagree. It was open to Ultimate to have recourse to other lawful methods of enabling trading to continue. Whether an occasional licence could and should be granted to cover the position was a matter for the magistrates, not for the Court of Appeal.

It follows that I also reject the argument that it was an abuse of process for Ultimate to make the application to the magistrates' court. In my view, this is not something that should have been raised in the proceedings before the Court of Appeal. It was something that could only be raised by way of an application to the magistrates' court.

Looking at all the circumstances, and bearing in mind what was said by Lord Bingham in Johnson v Gore Wood, I take the view that the present case gets nowhere near that of abuse. Equally, I reject the argument as to collateral attack, whether that was advanced separately from or as part of the argument on abuse. This was not an attempt to have the existing licence by special removal continued. As I have said, it dealt with the consequences of the quashing of that existing licence.

To my mind Ultimate was under no duty to notify Rindberg of the application for occasional licences. In the context of the extended dispute between the parties it is perhaps understandable why Ultimate did not give such notification. Despite the lack of direct notice, Rindberg came to hear about the application and was represented before the magistrates' court.

Insofar as it is said that Ultimate ought to have notified Rindberg so that Rindberg could have applied to the Court of Appeal to stop that application being made, the point is in my view misconceived. I have no doubt that the Court of Appeal would have declined to interfere in relation to a fresh application which was a matter for the magistrates' court and not for the Court of Appeal.

Accordingly, there was in my judgment an application properly made to the magistrates' court for the grant of occasional licences. The next question is whether the magistrates' decision to grant the licences was otherwise unlawful. As to that, I reject Mr Gouriet's submission that the grant of an occasional licence in circumstances of this kind is contrary to the policy and scheme of the 1964 Act. The width of the discretion conferred on magistrates by section 180 was emphasised by Glidewell J in the Bow Street case. He held that the occasion in respect of which a licence may be granted under that section is not limited to special events or functions but refers to the circumstances which give rise to the need for the sale of intoxicating liquor at premises other than those for which the claimant holds an on-licence. The section can properly cover the situation where a licensee has forgotten to apply for the renewal of a licence and a period of time will elapse before the renewal application can be determined. What happened in the Bow Street case and what was held to be lawful is only an example, though the written reasons given by the magistrates in the present case suggests that in their experience it is a relatively common situation.

I accept that the present situation is not identical to that which arose in the Bow Street case. Instead of the expiry of a lawful licence because of a failure to renew it, what happened here was the quashing of a licence because it was found to have been granted unlawfully. Instead of a renewal of an application, the licensee in this case had to make a fresh application. The situations are not, however, very different in substance. Until the judgment of the Court of Appeal was handed down, trading was carried on at the Gresham under a licence that was lawful on its face. Even when Lightman J found that it had been granted unlawfully, he stayed his quashing order so that trading could continue, pending the determination of the appeal. So the Court of Appeal judgment whereby the licence was quashed without any further stay brought about a result that was in practical terms akin to the expiry of a licence. That was the reality of the matter. To appreciate that, one does not have to get into the old case law about void and voidable decisions, or look at more recent cases concerning the legal effects that may arise even where a licence is subsequently quashed.

It seems to me that, just as in the case of a failure to renew, so here it was going to take a few weeks to seek to regularise the position for the longer term. It was a situation of a kind that fell well within the scope of section 180, as interpreted in the Bow Street case, and the power to grant occasional licences was capable in principle of being exercised in relation to it.

The skeleton argument of Miss Fitzgerald refers to a number of other authorities on section 180, most of which were considered in the Bow Street case and to dictionary definitions, a topic that was also covered in that case. For present purposes it is sufficient on this point to say that in my judgment the approach adopted by Glidewell J was compatible with existing authority, was eminently sensible and is one that I ought plainly to follow. Following it, I conclude that the present case falls within the scope of the principles laid down within it.

Mr Gouriet has put weight on the fact that under section 27 of the 1964 Act, where an application is made for a new licence, the licence does not come into force until the objectors' rights of appeal have been exhausted. I do not accept, however, that the grant of an occasional licence is equivalent to allowing the benefits of a full licence to be given in advance and can be said in that way to be contrary to the statutory scheme. Whether it is appropriate for magistrates to exercise their wide discretion under section 180 will depend on the particular circumstances. In the circumstances of this case it was not contrary to the policy or scheme of the Act to entertain the application or to grant the licences.

Another point made is that no fresh application had been submitted at the time of the grant of the occasional licences. I do not see why that should matter. There was in any event a clear intention -- indeed an undertaking -- to submit a fresh application.

I have referred to the submissions made by Mr Gouriet as to the existence of strong objections to the licensing of the Gresham as a public house and his point that the grant of occasional licences was therefore in anticipation of an application before the licensing justices which would be opposed and might fail. I note the limited grounds of relevant objection to a licence by way of special removal, but proceed on the basis that an application might indeed fail, having regard to the existence of objections to which my attention has been drawn. In my judgment, that does not make it unlawful to grant an occasional licence pending determination of the full application. The full application will have to be determined, as in any other case, on its merits in the light of all relevant evidence, including all objections that are placed before the licensing justices. It is not for the magistrates, considering an application under section 180 for an occasional licence, to pre-judge or predict the outcome of the full application. I do not suggest that it is irrelevant for them to take into account that the full application will be opposed and might fail. It was one of the points made to them in this case in submissions on behalf of Rindberg, and their written reasons record that all points made were considered. But the point does not take the case outside the scope of section 180 or preclude the grant of an occasional licence under it.

Under the statutory provisions governing occasional licences the police are given a special position. They must be served, they are entitled to object and, as observed in the last passage that I have quoted from the judgment in the Bow Street case, the magistrates would be justified in refusing a licence if there were police objections on the ground of the suitability of the licensee or his conduct of the premises. The passage in that judgment about objections does not, in my view, have any wider significance than that. The magistrates in this case noted the absence of police objections and were entitled to place weight on that consideration.

I specifically reject the argument that the magistrates in exercising their discretion under section 180 were usurping the function of the licensing justices. In my judgment, they were performing an entirely separate function -- a function vested by statute in them. They were determining whether it was appropriate to grant an occasional licence, or a series of occasional licences. They were not determining the matters that will fall to be determined by the licensing justices when a fresh application for special removal comes for a hearing before them.

For the reasons I have given, the magistrates were in my view entitled to hear and determine Ultimate's application for occasional licences and made no error of law in granting those licences. There is not and could not sensibly be any argument that the decision they reached was irrational. I do not need to concern myself with the question whether a series of consecutive occasional licences extending to a year or more would be lawful. To my mind a series of three to cover the period before a fresh application could be considered was plainly not unreasonable.

Accordingly, I reject the entirety of Rindberg's challenge. The claim is dismissed.

MISS FITZGERALD: Thank you very much indeed, my Lord. In those circumstances I would ask for our costs. My Lord, there is a schedule of costs which has been filed. My learned friend has a copy and I hope there is a copy before the court. First of all, I have to apologise because of the fact that it filed this morning rather than earlier, but it is before the court and my learned friend has a copy.

MR JUSTICE RICHARDS: Yes, I see. What do you say about the costs?

MR GOURIET: My Lord, I am told that it has just been handed to Miss Winskell who sits behind me and that she would like the opportunity to have a look at some matters and of coming back to the court.

MR JUSTICE RICHARDS: I see. When you say “coming back to the court”?

MR GOURIET: My Lord, summary assessment is in relation to a case which lasts a day or less.

MR JUSTICE RICHARDS: Yes.

MR GOURIET: As I stand now, I am not able to agree the grand total.

MR JUSTICE RICHARDS: Let us deal with the principle. You cannot in principle oppose the application for costs?

MR GOURIET: My Lord, no.

MR JUSTICE RICHARDS: We are only concerned with whether it should be summary or detailed assessment and, if summary, what the sum should be?

MR GOURIET: My Lord, yes.

MR JUSTICE RICHARDS: And you say that you have not had sufficient notice to be able to address me on that?

MR GOURIET: My Lord, no.

MR JUSTICE RICHARDS: If I gave you a few minutes, would that be sufficient or do you need more time? I have to say that my immediate reaction is that for a hearing of less than a day before this court the figures look very high.

MR GOURIET: My Lord, in the past Mr Green and Miss Winskell have been able to agree a sum. I hear whisperings behind me that there is a hope that agreement could be reached again, but as I stand --

MR JUSTICE RICHARDS: What I am minded to do, rather than get everybody back and incur yet more costs, is to order the claimant to pay the second defendant's costs, to be subject to detailed assessment if not agreed.

MR GOURIET: My Lord, thank you very much indeed.

MR JUSTICE RICHARDS: But I must hear Miss Fitzgerald on that. Would you oppose that, Miss Fitzgerald?

MISS FITZGERALD: No, I would not, my Lord. But I was going to say, could we have an extra bit in that there should be payment on account at this stage because detailed assessment could take some time. We understand there has been an order for security for costs made, so there is a pot of money sitting there. Perhaps if your Lordship ordered 50% of the amount as a payment on account, and then there could be detailed assessment at some later stage?

MR JUSTICE RICHARDS: Can you object to payment on account in the sum of £20,000?

MR GOURIET: I was asked to agree to a payment on account of £10,000.

MR JUSTICE RICHARDS: Let me have a look at these figures.

MR GOURIET: My Lord, no, I do not object to £20,000.

MR JUSTICE RICHARDS: What I will say, therefore, is that the claimant is to pay the second defendant's costs, to be subject to detailed assessment if not agreed; the claimant is to make a payment on account of those costs in the sum of £20,000, such payment to be made within seven days.