Hammersmith and Fulham, R (on the application of) v Food City Express Ltd.

MR JUSTICE STADLEN: This is an appeal by way of case stated, pursuant to Section 111 of the Magistrates' Court Act 1980, by the London Borough of Hammersmith and Fulham against a decision of District Judge Philips on 8 November 2007. On that day the district judge heard an appeal by the applicant Food City Express Ltd against a decision of the borough's licensing sub-committee held on 4 July 2007 by which the committee had allowed, only in part, an application for a premises licence. The decision under appeal was a decision by the district judge to remit the appeal back to the sub-committee for what he described as a true inter-partes oral hearing.

The background of this appeal is as follows. The respondent to this appeal Food City Express Ltd made an application to the borough for the variation of a premises licence which it held for its property at 28 Shepherd's Bush Green, London. The application was made to extend the existing opening hours in respect of the supply of alcohol - which were 0800 to 2300 hours Monday to Saturday and 1000 until 2230 hours on Sundays with a variation for Christmas Day and Good Friday - to Monday to Sunday 0000 hours to 2400 hours, in other words 24-hour opening.

Representations objecting to the application were received by the borough from the Metropolitan Police and the Public Protection Service of the council. As a result of those representations, the council convened a licensing sub-committee under the Licensing Act 2003 to consider the application.

The hearing was fixed for 4 July 2007. The respondent Food City Express Ltd was served with written notice of the hearing, including the date and time thereof, and indicated that a representative would attend. The representations received by the Metropolitan Police and the Public Protection Pollution Service were included in [the] sub-committee report. The respondent responded to those representations and sent a letter to the police, the Public Protection Pollution Service and the council as licensing authority on 17 June 2007. Those were included with the sub-committee report. When the allocated time to commence the hearing, of which the respondent had been notified, was reached the respondent had not appeared. The sub-committee allowed further time and waited for the respondent. After waiting ten minutes the sub-committee sought legal advice as to whether the application could be heard in the absence of the respondent. I shall refer to that advice below.

The respondent's representations were before the sub-committee and the sub-committee decided to continue with the oral hearing in the absence of the respondent. When I say "respondent" I mean respondent to this appeal. Food City Express Ltd was of course the applicant in front of the sub-committee.

The representative of the Metropolitan Police attended the sub-committee and made representations to the effect that the police maintained their objection to the grant of a 24-hour licence on the basis that it would cause public nuisance. They indicated that they would not object to an increase in hours for the supply of alcohol at the premises on Friday and Saturday until 1 am the following morning. The Public Protection Pollution Service withdrew its objection to the application and the sub-committee decided, as recorded in its decision letter, that having regard to all the relevant guidance and the representations and all other material considerations before it the sub-committee granted [to grant] the application to vary the hours but on only in part with conditions to allow the sale of alcohol between 0800 to 2300 Monday to Thursday, 0800 to 0000 Friday and Saturday and 1000 to 2230 on Sunday.

The respondent appealed against that decision. The matter came before the district judge. The grounds of appeal were: (1) the decision was made in the absence of the applicant; (2) there were no exceptional reasons to depart from the guidance issued under Section 182 of the Licensing Act 2003 to justify restricting the hours for the sale of alcohol from the normal trading hours; (3) there was no evidence to justify departing from paragraph 5.6 of the council's Statement of Licensing Policy; and (4) the conditions offered by the applicant were adequate to promote licensing objections.

As recorded in the case stated, it was agreed by the parties that (a) on 4 July 2007 a sub-committee of the London Borough of Hammersmith and Fulham convened under the Licensing Act 2003 to consider Food City Express's application at 10.30 am; (b) notice of the convening of the sub-committee was sent to Food City Express's agents who advised that Mr Mohammed Salim would attend the hearing to make all representations in support of his application; (c) the sub-committee convened at 10.30 am. Mr Salim was not in attendance and after waiting ten minutes the [sub-]committee were advised it was lawful to proceed in Mr Salim's absence. Mr Salim arrived in time to hear the decision of the sub-committee being handed down.

In the case stated the district judge said the following:

The district judge then identified the question for the opinion of the High Court as being:

In the decision letter by the council's sub-committee which was the subject of the appeal to the district judge the following was included:

It is necessary to have regard to the statutory framework governing applications before the sub-committee. Section 9 of the Licensing Act 2003 provides as follows:

Section 183 of the Act provides:

Pursuant to the powers conferred by Section 9 (2) and Section 183 (1), the Licensing Act 2003 (Hearings) Regulations 2005 was promulgated. Regulation 20 provides as follows:

Schedule 5, Part I, paragraph 1 of the Act makes provision for appeal. It provides:

Section 181 sets out the powers of the Magistrates' Court hearing such an appeal. It provides as follows:

The grounds of appeal against the district judge's decision include the following:

I should say that the respondent was not represented and did not appear before me. I was told by Miss Sheikh, who appeared on behalf of the appellant borough, that the respondent had been notified of the time and date of this hearing. No submissions or skeleton argument or evidence was received by the court from the respondent.

In the course of argument I raised with Miss Sheikh the question of whether Regulation 20 (2) imports with it a duty on the part of the relevant committee to consider whether it is necessary, in the public interest, to adjourn the hearing where a party who has not indicated that he does not intend to attend fails to do so or to be represented at the hearing. Although it is not necessary in order for me to decide this appeal to answer that question, in my judgment, there is such a duty.

It is not necessary to decide this point for two reasons. First, as was pointed out by Miss Sheikh, the sub-committee in its decision letter indicated or recorded, as I have set out, that having allowed the respondent further time to attend it then requested legal advice as to whether the application could be heard in its absence and recorded that the council's solicitor specifically drew its attention to Regulation 20 (2) including the reference in Regulation 20 (2) (a) to its power - its discretion - to adjourn where it considers it to be in the public interest. The reasons letter further records that the sub-committee decided to hold a hearing in the respondent's absence after noting that legal advice which had been given.

Miss Sheikh submitted, and I accept, that it is implicit in that that the sub-committee, in deciding not to have an adjournment but to hold the hearing in the respondent's absence, did take into account the question whether it was necessary in the public interest to adjourn the hearing to a specified date and must, by inference, have concluded that it was not.

I also raised in argument with Miss Sheikh the question as to what is meant by "fails to attend" in Regulation 20 (2). For example, such questions arise as to whether if a party is not present one second after the time which has been notified does that constitute a failure to attend such as to trigger the power of the authority under Regulation 20 (2) (b) to hold the hearing in the party's absence.

It is not necessary, in my judgment, to make any findings or to reach any conclusions on that question because the district judge in his case stated explicitly held in paragraph 6 that in law the sub-committee was entitled to act as it did. In other words, the district judge must, by inference, have held that the failure of the respondent to attend at the hearing - of which it had been notified both as to its date and as to its time - at the allocated time and then not to appear for ten minutes thereafter constituted a failure to attend within Regulation 20 (2). The contrary was not argued before me by the respondent who I have indicated was not represented and did not appear. Nor was the contrary suggested anywhere in the case stated by the district judge.

In those circumstances I have to proceed on the basis that the respondent failed to attend the hearing within the meaning of Regulation 20 (2) and accordingly that the sub-committee's discretion to hold the hearing in its absence - provided always that it did not consider it necessary in the public interest to adjourn - was triggered.

In argument, Miss Sheikh submitted that it is the established practice on appeals against decisions of licensing authorities heard by the Magistrates' Court that the hearing takes place as a re-hearing and in particular that there are - as a matter of general practice on such appeals where there are appeals in respect of findings of fact and where it is so desired by one party or the other - oral hearings, including oral evidence.

For the proposition that that practice - the existence of which I accept from Miss Sheikh - is lawful, Miss Sheikh relied on the decision of the Court of Appeal in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614. Although that was a decision under the Betting, Gaming and Lotteries Act 1963, Miss Sheikh submitted that the principles are the same when considering the nature of an appeal against a decision of a licensing authority pursuant to the Licensing Act 2003. In that case the Court of Appeal held, Lord Denning MR dissenting, that an appeal to Quarter Sessions against a refusal by a licensing committee was a re-hearing. Lord Justice Phillimore at page 639 G held:

Section 181 (2), on its face, provides the Magistrates' Court with a discretion whether to dismiss an appeal or to substitute for the decision appealed against any other decision that could have been made by the licensing authority or to remit the case to the licensing authority to dispose of it in accordance with the direction of the court. On its face therefore the submission that the district judge exceeded his jurisdiction - which was one of the grounds of appeal in remitting the case to the licensing authority - appears to be in conflict with the language of Section 181 (2). On analysis, in my judgment, the real sting of the council's complaint and the basis of its challenge to the decision of the district judge is not one based on excess of jurisdiction but rather one based on the wrongful exercise of discretion. Miss Sheikh submitted - and in my judgment rightly - that under Section 181 the Magistrates' Court has the power to hold a re-hearing, that is to say to consider evidence afresh.

The question therefore arises: what was the reason why the district judge declined to exercise that power and instead to exercise the power to remit the case back to the sub-committee?

In principle, it would not seem to me objectionable in a particular case for the magistrate to decide that having regard to all the circumstances of the case it is appropriate that factual disputes that have not been resolved should be resolved in the first instance by the primary finder of fact under the system, namely the local authority and, in this case, the sub-committee. That, after all, is the structure of the system that findings of fact are made in the first instance by the sub-committee or the authority. There is some hint that some such thought was in the district judge's mind because in paragraph 7 he said:

In my judgment it is clear from the totality of the case stated that the real reason why the district judge decided to exercise his decision to remit rather than to proceed by way of re-hearing was that in his view, as he put it, common sense had taught him after 18 years on the bench that - given London's traffic problems, parking problems and transport problems - ten minutes is not long enough to wait before proceeding in absence, particularly where a person's livelihood is involved.

In my judgment there is an apparent contradiction between the district judge's explicit holding that in law the sub-committee were entitled to act as it did and his decision - that notwithstanding - to exercise his discretion to remit the matter back to the sub-committee for rehearing on the basis that in his view they had exercised their discretion in a way that offended common sense.

Section 9 (3) of the Act provides that subject to any regulations promulgated pursuant to the Act each licensing committee may regulate its own procedure and that of its sub-committees. The only relevant regulation by which that general power to regulate its own procedures is qualified is Regulation 20 which explicitly confers a discretion on the committee or the authority to decide either to hold the hearing in the party's absence or to adjourn the hearing to a specified date, if it considers that to be necessary in the public interest, where the party who has been notified fails to attend.

In my judgment where, as is accepted by the district judge to have happened in this case, an authority or a sub-committee acts lawfully within Regulation 20 in deciding not to adjourn but to hold a hearing in the party's absence it is then for the authority to make up its own mind how to proceed. In effect, what the district judge in my judgment by his decision was doing was to say that although, as he found, the sub-committee had exercised its discretion to proceed in the absence of the respondent lawfully, nonetheless it was bound - by his decision to remit - to hear the application again. The effect of that, in my judgment, is to substitute for the lawful exercise of its discretion by the sub-committee the judge's own different exercise of the discretion that was not conferred on him but was conferred on the sub-committee.

Miss Sheikh submitted to me that if allowed to stand the effect of that decision would be to create uncertainty on the part of the council and its sub-committees in future hearings on future applications. It would not, for example, know whether if it proceeded after ten minutes with a hearing in the absence of the applicant or indeed any interested party - albeit that it was acting lawfully - the whole of its proceedings would be rendered nugatory and liable to a direction from the Magistrates' Court that there should be a re-hearing if the magistrate took a different view.

Further it was submitted by Miss Sheikh that the borough in those circumstances, through its sub-committee, would not know how long it had to wait before the magistrate would not exercise his power to remit. For example, she pointed out in paragraph 5 of his reasons the district judge referred to Ibrahim where Mr Justice Taylor described a 45-minute wait before commencing a criminal case in absentia as precipitate, the implication being - albeit not explicitly stated - that even a delay of 45 minutes might not be sufficient to protect the sub-committee against a decision by a magistrate that waiting that long, albeit lawfully, nonetheless made it liable to reconsider the application at a re-hearing because a magistrate took a different view.

So far as the Article 6 point is concerned, in my judgment, it is not necessary for me to determine the question of whether for a hearing to proceed ten minutes after the notified time if a party has not attended breaches of Article 6 of the Convention. The reason for that is that, in my judgment, it is clear that in circumstances such as this the Article 6 rights of the parties are protected provided that on an appeal to the Magistrates' Court the procedures required so as to be compliant with Article 6 are complied with. In this case there is no suggestion that such procedures were not complied with in front of the Magistrates' Court and no complaint to that effect is made.

In my judgment, although the district judge had a discretion and a power under Section 181 to remit the case to the sub-committee to dispose of it in accordance with directions that he might have given, on the facts of this particular case he exercised that discretion unlawfully by taking into account a matter which was an irrelevant matter, namely his own personal view as to whether ten minutes was too short to wait.

In my judgment what he should have done and what he should now do - or if not him some other magistrate - is to proceed to hear the appeal in the ordinary course. In paragraph 5 he stated:

When I come to look at the questions posed on the case stated, as I indicated in argument to Miss Sheikh, in my judgment they are unfortunately worded in that they do not really adequately address the legal challenge and the basis of the legal challenge mounted by the borough against his decision to remit. The true nature of the challenge, and in any event the correct nature of the challenge, was not whether the district judge had the power to remit under Section 181 but rather whether his exercise of his power or discretion to remit was exercised lawfully.

Accordingly, in answering these questions it is necessary for me to bear that in mind and to indicate what, in my view, is the effect of the error of law that he has made. Question 1:

Question 2:

In my judgment if the question had been "was I correct in deciding to remit the case to the licensing authority because of my view that given the prevailing road and rail problems in the borough ten minutes was insufficient time to wait before proceeding when the council was aware a representative of the company had signified an intention to attend?" my answer to that question would be "no, you were not correct. You did not act lawfully in exercising your discretion in that way." If question 2 can be read as meaning "was I correct in deciding to remit because I decided that given the prevailing road and rail problems in the borough ten minutes was insufficient time to wait?" then I would answer that question no.

Question 3:

I am not unsympathetic to the considerations which underlay the district judge's findings and decision. Had it been the case that because of being ten minutes late somebody whose livelihood depends upon a licence being granted, renewed or varied, was disentitled to a licence, a variation or a grant of it to which he would otherwise have been entitled, it would be a matter of concern if, in such circumstances, there were no redress. However in my judgment that does not arise in this situation because under Section 181 there is provision for an appeal at which somebody who has missed the hearing - whether for traffic reasons, child care reasons or other reasons - can have determined the merits of his application.

In those circumstances, in my judgment, where it is accepted that the local authority has acted lawfully on the particular facts of this case in proceeding to have the hearing in the absence of the respondent, there would be no injustice to the respondent in the matter having proceeded before the magistrate on appeal by way of a re-hearing at which it could have adduced such evidence as it wished and have had a determination on the merits of the facts by the magistrate.

For all those reasons in my judgment this appeal must be allowed.

MISS SHEIKH: If I could ask my Lord make an order for the matter to be remitted back.

MR JUSTICE STADLEN: In my judgment it seems to follow inevitably from my judgment that I should also order that this matter should now be referred back to the Magistrates' Court for it to proceed with the hearing of the appeal that was first before the district judge in November 2007.

MISS SHEIKH: I am very grateful. I have an application for costs.

MR JUSTICE STADLEN: Against whom?

MISS SHEIKH: That is precisely the point that I have debated with my instructing solicitor. In the end I took the view that I would simply put the matter to your Lordship to determine in your discretion as to what should be done. The case is against Food City Express in that they were the ones who appeared at the Magistrates' Court, and in the ordinary way it would be the respondent against whom we seek costs.

MR JUSTICE STADLEN: They have not resisted your appeal.

MISS SHEIKH: They have not.

MR JUSTICE STADLEN: It seems to me quite wrong to order that they should pay your costs. Can you think of anybody else who might?

MISS SHEIKH: I can. It could be the district judge or Treasury.

MR JUSTICE STADLEN: I do not suppose you mean the district judge personally.

MISS SHEIKH: Not the district judge personally, no.

MR JUSTICE STADLEN: What do you mean?

MISS SHEIKH: In some circumstances it can be the Treasury Solicitor.

MR JUSTICE STADLEN: I think if you want to make an application for costs against the Treasury Solicitor you would have to give the Treasury Solicitor notice.

MISS SHEIKH: I think that must be right. I put the application to your Lordship. I recognise the difficulties and I have discussed those with my instructing solicitor.

MR JUSTICE STADLEN: I think you have done very well, Miss Sheikh. I think that costs against the party who has not been represented or notified of this hearing would be perhaps a bridge too far.

MISS SHEIKH: They were notified for the record; not the Treasury Solicitor, they were not notified. That would have been a matter for the district judge if he had wished to involve them but no they are not.

MR JUSTICE STADLEN: No, I make no order to costs.