In the Pink Ltd, R (on the application of) v Leeds City Council

MR JUSTICE STADLEN: This is an application for judicial review of a decision made by the defendant, the Leeds District Magistrates' Court, on 6 November 2008 to impose conditions to the premises licence of The Birdcage nightclub in Leeds owned by the claimant, In The Pink Limited. Permission to proceed with the application was granted by Sullivan J (as he then was) on 12 December 2008 and the licence conditions were stayed until determination of the claim for judicial review.

The background to this claim is as follows. The claimants are the owners and operators of the nightclub known as The Birdcage situated at 52 Boar Lane, Leeds. On 28 August 2005 the Leeds City Council licensing authority granted the claimants a premises licence in respect of The Birdcage authorising:

(i) sale by retail of alcohol for consumption on the premises every day between the hours of 11.00 am and 5.00 am.

(ii) Provision of facilities for dancing every day between the hours of 11.00 am and 6.00 am.

(iii) Provision of dance every day between the hours of 11.00 am and 6.00 am.

(iv) Provision of recorded music every day between the hours of 11 am and 6 am.

(v) Anything of a similar description every day between the hours of 11.00 am and 6.00 am.

(vi) Facilities for entertainment of a similar description every day between the hours of 11.00 am and 6.00 am.

At 12.30 am on 5 March 2006 Inspector John Hampshire of the West Yorkshire Police issued, pursuant to section 161 of The Licensing Act 2003, a closure order to Christopher Edwards, the managing director of the claimants, closing The Birdcage. This followed an incident in which there had been violence between a couple involving the use of a glass which had resulted in serious injury. The making of the closure order triggered the provisions of sections 165 and 167 of The Licensing Act 2003, the former relating to the consideration of a closure order by the Magistrates' Court and the latter a review of the premises licence following such a closure order.

On 8 March 2006 the Leeds District Magistrates' Court held a hearing to consider the closure order and decided not to exercise any of its powers under section 165(2).

On 3 April 2006 the Leeds City Council licensing authority held a review of the premises licence relating to The Birdcage and made the following decisions:

1. To suspend the licence for a period of two weeks.

2. To modify the conditions to the licence to restrict:

(a) The hours between which the premises were open to the public as follows. Wednesday and Thursday, 11.00 am to 2.00 am. Friday to Saturday 11.00 am to 2.30 am. Sunday 11.00 am to 2.00 am.

(b) The hours for the sale and consumption of alcohol and all other licensable activities, except recorded music, to Wednesday and Thursday 11.00 am to 1.00 am, Friday to Saturday 11.00 am to 1.30 am. Sunday 11.00 am to 1.00 am.

(c) The hours for the provision of recorded music to Wednesday and Thursday 11.00 am to 2.00 am. Friday to Saturday 11.00 am to 2.30 am Sunday 11.00 am to 2.00 am.

(d) The capacity of the premises to 500.

(e) The prohibition of drinks promotions.

(f) Increase the number of door staff on Fridays and Saturdays to ten of whom two should be female.

(g) Adopt a cooling down period where the volume of the music was reduced during a one-hour period to the premises closure.

Against that decision the claimants appealed to the defendant, the Leeds District Magistrates' Court. That appeal was heard between 21 and 23 October 2008. The explanation for the very long gap between the decision of the licensing authority in April 2006 and the hearing of the appeal in October 2008 is attributable to the fact that the claimants had in the meanwhile applied for judicial review against the police closure order on 30 May 2006, albeit that application was subsequently withdrawn on 19 October 2007, the claimants agreeing to pay the police costs in the sum of nearly £5,000.

The defendant magistrates handed down their decision on 6 November 2008. Having determined that a period of suspension was inappropriate, they considered that the imposition of the following conditions was necessary to further the aims of the licensing objectives. Accordingly they substituted for the decision of the licensing authority, the variation of the licensing conditions in the following terms:

It was apparent on the face of the written decision of the magistrates, as set out above, that, unlike the decision of the licensing authority, the conditions which they imposed in substitution for those imposed by the licensing authority did not expressly stipulate closing times for the premises. There was thus no equivalent condition laid down by the magistrates to that laid down by the licensing authority which modified the conditions to the licence to restrict "the hours between which the premises are open to the public".

This was raised in a letter, dated 17 December 2008, by Mr Bell from the Regulatory and Enforcement Department of the Leeds City Council, who are the first interested party, and between whom and the claimants the arguments on this application were joined. The letter was written by Mr Bell to Mr Glenn Cooper, a legal adviser to the Leeds Magistrates' Court. The letter informed Mr Cooper that the claimants had succeeded in obtaining permission to seek judicial review of the decision of the Magistrates' Court of 6 November 2008 and informed him that the council had 35 days in which to prepare detailed grounds and witness evidence. The letter continued:

Mr Cooper replied, in a letter dated 13 January 2009, in the following terms:

I interpose here that it was a three member bench. There then follow three paragraphs with the headings underlined:

This gave rise to an initial debate between the parties as to the status of the written decisions of the Magistrates and the effect of the Cooper letter from which it appeared that there was a discrepancy between the form and wording of the conditions substituted by that decision, on the one hand, and the intentions of the magistrates in making those variations, at least so far as it emerged from the consultation by Mr Cooper of two out of the three members of the bench.

In supplemental written submissions, made in response to a request by me following oral argument, Mr Mason, who appeared on behalf of the claimant, submitted that the original decision is clearly deficient by its failure to state the hours within which the club was permitted to be open, and that the original decision was erroneous and/or irrational and/or perverse in that it provided for the cessation of the sale or consumption of alcohol at the same time, that being the third of the grounds set out in the detailed statement of grounds in support of the claim for judicial review by reference to which the decision of the magistrates was impugned by the claimants.

Mr Mason submitted that the effect of the decision providing for the cessation of the sale and consumption of alcohol at the same time was to prevent drinking up, which is contrary to licensing policy, and that these errors and deficiencies were evinced by the fact that the interested party was driven to write to the defendants seeking clarification of these matters. The provision in the decision providing for the cessation of the sale and consumption of alcohol at the same time cannot, he submitted, be described as a mere typographical error or an incorrect statement of the claimant's true intention. An order that is to be incorporated into a licence should be clear and unequivocal. He submitted that those significant deficiencies and errors could not be remedied by the contents of the letter of 13 January 2009. He submitted that the effect of that letter was not to clarify the defendant's decision but to change it in material respects. He said it did not fall within the slip-rule. Further, he submitted that the letter from Mr Cooper was not a decision of the defendants. It did not provide reasons for any change or justifying the decision. The letter contained the observations of the magistrates' legal advisers, rather than the decision making court itself, and the matters set out in the letter appeared to have been determined by only two members of the original court, possibly separately.

As to this latter point, on 26 March 2009 at 1.05 pm Mr Cooper sent a further e-mail in these terms to Miss Blackmore:

In her written submissions on this point Miss Boyd, who appeared on behalf of the interested party and who, like Mr Mason, had appeared at the appeal, made the following submissions. Where there is a concern that there has been an omission in a judgment such omission ought to be brought to the judge's attention: see English v Emery Reimbold and Strick Limited [2002] 1 WLR 2409 at 2419, paragraph 25D to E in the context of deficient reasons. There Lord Phillips of Worth Matravers MR, as he then was, said:

Ms Boyd relied also on the decision of Arden LJ in Re T (Contact: Alienation: Permission to Appeal) [2003] 1 FLR 531 at paragraph 41, where she said as follows:

Ms Boyd submitted that the council sought to follow this line of judicial authority by writing to the bench to seek clarification of what was intended by their decision to vary the hours of the premises' licence and, in particular, as to when the sale of alcohol should end and when the premises should close, neither counsel, I was told, having attended when judgment was handed down on 6 December 2008.

Ms Boyd submitted that it is clear from both English and Re T that the additional clarification of reasons is permissible, indeed actively encouraged, to avoid unnecessary appeals and that it must therefore follow that where the clarification being given is not as to the reasons but as to the effect of those reasons in terms of the order the proper course is to seek clarification from the court rather than rushing off to the High Court to have the decision quashed.

By analogy Miss Boyd relied also on the powers in the CPR, under CPR3.1(7), which provides that a power of the court under the rules to make an order includes a power to vary or revoke the order, and part 40.12(1), the slip-rule which provides that the court may at any time correct an accidental slip or omission in a judgment or order.

Miss Boyd submitted that, although the magistrates were exercising an administrative function when hearing the appeal from the licensing authority so that the proceedings were neither civil nor criminal in nature, (see Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624), the Magistrates' Court must have an inherent power akin to that provided in the CPR to vary an order it has made where to do so is simply to give effect to the court's intention.

In this regard she relied by analogy on the decision of Keene LJ in Islington LBC v Honeygan-Green [2008] 1 WLR 1350 at 1365, paragraph 49E and 1366 at paragraph 54F to G. That was a case in which in May 2006 Judge Marr-Johnson, having given summary judgment for a tenant granting a mandatory injunction ordering the landlord to grant a lease, gave the landlord permission to appeal. The judge had intended the appeal to go to the Court of Appeal, but the order contained no statement to that effect. The landlord lodged an appellant's notice in the High Court. By an amended order in June 2006 the judge named the Court of Appeal as the appeal court and by a further order in July 2006 he declared that the form of the May order had been issued in error and that the June order was the true order of the court.

On the landlord's application to set aside the July order, Judge Birtles held that neither CPR40.12(1) nor CPR 3.17 had enabled Judge Marr-Johnson to make the June order and therefore he set aside the June order, declared the May order to be the only valid order and made a costs order against the tenant.

On appeal, allowing the procedural appeal, the Court of Appeal held that His Honour Judge Marr-Johnson had had the power to make the June order amending the terms of the original May order under both CPR 3.17 and 40.12(1) so as to make those terms accord with the court's intention and accordingly Judge Birtle's decision on this point had been wrong.

Keene LJ said this at paragraph 49:

Relying on that authority by way of analogy, Miss Boyd submitted that the effect of the Cooper letter was to clarify the decision of the magistrates to ensure that it accorded with their intentions and that such an approach is not wrong in law.

She further submitted, but this was before becoming aware of the 26 March e-mail from Mr Cooper, that in relation to the point that at that stage only two of the three members of the court had been officially consulted regarding the intended effect of the decision of the court, there is no legal requirement that the bench must be unanimous in its decision making so that agreement by majority is sufficient.

In my view, Ms Boyd, on behalf of the council, is right in her submission that what has occurred is that the magistrates who made the decision have corrected their decision so as to give effect to their intention when they made it after Mr Bell drew their intention, through Mr Cooper, to the fact that they had not in terms specified a closing time for the premises and that the language of the condition as to the time when alcohol was to be served and consumed appeared to be at odds with the condition of a one hour cooling down period "prior to the closing of the premises".

There is, in any view, no doubt that the wording of the conditions as they appear in the written reasons was sloppily drafted and unsatisfactory. If the intention of the bench was that the sale of alcohol should stop one hour before the closure of the premises and that during that hour customers could finish their drinks while the music was turned down, in what was described as the cooling down period, that is not what they said in that decision. However, it is in my view clear that that is what they intended to order as appears from Mr Cooper's letter and the subsequent evidence that the third member of the court confirmed that that is what they all intended.

The letter on its own, in my view, would have been insufficient to justify a correction to the conditions. The fact that it recorded the views of a majority of the court as to what they intended is, in my view, irrelevant and insufficient. What is in issue is not what the order should be, which could be decided by a majority of the court, but rather what as a matter of historical fact the court as a whole actually intended by the order which it made in its written reasons in November 2008. That is a question of fact the answer to which turns on what was in the minds of all three members of the court who made the decision. Only if the amended order, as it is sought to be made by Miss Boyd, reflects what all three members of the court intended, assuming, as I do, that it was an unanimous decision, the contrary not having been suggested, can it legitimately be amended in retrospect in my view.

Technically my understanding of the parties' positions by the close of oral argument was that it was agreed that if I was against the claimant on all other points of attack on the decision of 6 November 2008, but was of the view that the magistrates did indeed intend that the variation of the conditions should be in the form set out in Mr Cooper's letter of 13 January 2009 rather than in the form in which it appears in the written decision, I should remit the decision of 6 November 2008 to the magistrates to enable them to amend the terms of their decision and the conditions so as to reflect their true intentions as set out in that letter.

There was some discussion as to what the position might have been if the licence had been already amended in terms to reflect the written decision and the written conditions in November 2008 and whether that would affect the conclusion that the right thing is for the magistrates to amend their conditions to reflect their true intentions if it could be shown, for example, that some third party might have acted in reliance on the conditions as they originally appeared. Again my understanding, based on what I was told, is that that is not the position in which we find ourselves and that the decision of the magistrates has not yet been implemented in a formal amendment of the terms of the licence.

In those circumstances, it seems to me that the position is analogous to that of the case considered by the Court of Appeal in Islington London Borough Council. Although that was a case considering the effect of two of the rules in the CPR and although the magistrates were here exercising what has been described as administrative function in hearing an appeal from a licensing authority, as a matter of principle it does not seem to me that there is any reason to conclude that the principles applied by the Court of Appeal in the judgment of Keene LJ should not apply in a situation such as this.

It is clear from Mr Cooper's letter and e-mail that the language of the conditions in the written reasons did not reflect the true intentions of all three magistrates, that what they did intend was that the closing time should be one hour later on each day than the time at which the sale of alcohol was to come to an end and that, contrary to what appeared in express terms in their written reasons, it was their intention that, whereas the sale of alcohol was to conclude at 1.00 am on Wednesday, Thursday and Sunday and 1.30 am on Friday and Saturday, the consumption of alcohol was to be permitted for a further hour on each of those days during the cooling down period referred to in condition 8 while the music volume was being reduced for one hour prior to the closing of the premises. It is also clear, as Mr Bell picked up in his letter, from that last passage in paragraph 8 that the magistrates had indeed intended that there should be a closing time as part of their conditions and that that closing time should be one hour later on each day than the end of the time for the sale of alcohol.

It is right, and Mr Mason was entitled to rely on the fact, that in terms condition 1 was expressly providing that the consumption of alcohol was to terminate at 1.00 am and 1.30 am respectively on the relevant days, so that the intention of the magistrates actually given effect to would be inconsistent with the express terms of that part of the decision and the conditions.

Nonetheless, it seems to me, looking at this realistically, that it is quite plain that this was simply an oversight on part of the magistrates. Even without the letter from Mr Cooper, it seems to me that the inference to be drawn when one looks at all the conditions together, coupled with the reasoning process which precedes it, that the intention was that there should indeed be a closing time an hour later than the final time for selling alcohol and that the cooling down period referred to in condition 8 was intended to include a drinking up time as well.

In my judgment, even if I were wrong in the conclusion that I have made, it would be wrong as a matter of discretion to allow a substantive quashing of the order with the effect that the magistrates would need to have a substantive rehearing to consider the question of the time up to which alcohol could be consumed and the time at which the premises were be closed since it is perfectly plain, in my judgment, both from the written decisions and from the letter and the e-mail of Mr Cooper, that the magistrates have already reached a clear view on that points and nothing would be served in a rehearing of those issues at great expense all round.

I now turn to deal with the individual grounds on which the decision of the magistrates is sought to be impugned by the claimant. They are set out in paragraph 10 of the detailed statement of grounds attached to the judicial review claim form. At the heart of the claim for judicial review is the broad complaint that no sufficient reasons were given by the magistrates for the imposition of the conditions which they imposed and, in particular, the condition limiting the hours during which alcohol could be sold at The Birdcage to 1.00 am on Wednesdays, Thursday and Sundays and 1.30 am on Fridays and Saturdays, and the failure to indicate why, and in what respect, the imposition of those conditions furthered the licensing objectives. This is reflected in the first ground relied on by the claimant which is in these terms, that in imposing the conditions the defendants "erred in that they failed to address adequately or at all why and in what respect their imposition furthered the licensing objectives."

Section 4(1) of the Licensing Act 2003 requires the licensing authority, in this case the defendant, to carry out its function with a view to promoting the licensing objectives. Those objectives are identified in section 4(2) as the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm.

It was submitted on behalf of the claimant, relying on the case of Ruiz Torija v Spain 19 EHRR 553 at 563 paragraph 30, that if the judgment of the court leaves it unclear whether a question in issue that is fundamental to the litigation has been addressed it will violate Article 6(1) of the Convention. Reliance was also placed on Helle v Finland [1997] 26 EHRR 159185 paragraph 60 for the proposition that the reasons must be sufficiently detailed that they address the essential issues.

It was submitted on behalf of the claimant that the question of the need for conditions by reference to the licensing objectives was addressed only by the magistrates in the context of allowing the appeal in relation to the suspension of the licence, whereas, in contrast, in respect of the conditions which they imposed on the licence there was no express reference in the decision to those licensing objectives or to the way in which those conditions furthered the objectives. Accordingly, it was submitted that the reasons were clearly deficient and contrary to the rules of natural justice and the European Convention.

So far as the rules of natural justice are concerned, reliance was placed on the decision of English v Emery Reimbold and Strick at paragraph 12 where Lord Phillips MR considered that the Strasbourg jurisprudence does not extend beyond the approach applied by the common law restrictions in relation to the provision of reasons.

In order to consider this ground it is necessary to quote certain extracts from the decision of the magistrates:

In informing the claimants of the decision of the local authority at the April hearing, the clerk to the licensing committee said the following about the decision reached by the committee:

It is thus readily apparent that in reaching its decision the committee of the local authority was very specifically addressing the licensing objectives and that it reached the conclusion that the variations to the conditions which it proposed were considered by it to be necessary in order to promote the licensing objectives in relation to crime and disorder which it had held had been undermined by the way in which The Birdcage was operating.

In the detailed grounds of the interested party for contesting the claim it is submitted that it was clear that the licensing committee felt that the premises' licence needed to be modified to further the objective of the preventing crime and disorder and that that is hardly surprising given that the index event that triggered the closure order resulted in a near fatality at the club, a bottlings incident. It was pointed out that the magistrates' decision makes a clear reference to the identification by the police of a link between the amount of alcohol consumed and the amount of crime and violence committed "and we the bench agree with these findings". There is a further reference made to furthering the aims of the licensing objectives and in particular regarding crime and disorder. The magistrates, it is pointed out, went on to state in unequivocal terms that they considered it would be correct to substitute the decision of the licensing authority with the following conditions.

It was submitted that it is clear upon a proper and comprehensive reading of the magistrates' decision that the alteration to hours of the operation of the club and the imposition of conditions were deemed necessary for the furtherance of the licensing objective to prevent crime and disorder and that it could not be suggested, and indeed was not suggested, by the claimants that they did not and could not understand why the magistrates had made the decision they did, or that they have suffered prejudice as a result of some alleged lack of reasoning. It was further submitted that the magistrates essentially followed in broad terms the licensing committee's decision for the reasons it gave, reliance being placed in that regard on the letter from Mr Cooper dated 13 January 2009.

It was submitted that it would be wrong for the decision of the magistrates to be analysed in minute detail, or gone through with a tooth comb, saying they have not mentioned this or they have not mentioned that, echoing the language of Lord Denham in Tickner v Mole Valley District Council, 2 April 1980, Court of Appeal transcript.

Further, in her skeleton argument on behalf of the council Ms Boyd placed reliance on the speech of Lord Brown of Eaton-under-Heywood in South Bucks DC v Porter (No 2) [2004] UKHL 33:

Ms Boyd submitted that there can be no genuine doubt as to why the magistrates decided the matter as they did when they imposed restrictions on the hours of operation and other conditions.

In relation to the submission of the claimant that the decision is defective for not making specific reference in the body of the decision as to why the conditions were imposed, Ms Boyd submitted that such an argument is misguided, in that the magistrates made a clear finding that "people are attending at this club to consume and are being served an excessive amount of alcohol", and that they expressly agreed in the next paragraph with the findings of the police, that "there is a link between the amount of alcohol consumed and the amount of crime and violence committed". It could not thus seriously be argued, she submitted, that because the magistrates did not add "and that is why we are going to impose conditions to curb drinks promotions/require glasses to be made of toughened glass or plastic/limit the capacity to 500/require one door staff to every 75 customers, and one female" that renders the decision devoid of intelligible and adequate reasons.

Ms Boyd also placed reliance on what she referred to as the nine Burnton propositions, a reference to the decision of Burnton LJ in R (Ashford Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region [2001] EWHC Admin 901, and in particular proposition (e) that it is unnecessary for a tribunal to set out the evidence and arguments before it or the facts found by it in detail, proposition (g), that in assessing the adequacy of reasons one must bear in mind that the decision will be considered by parties who know what the issues were, and proposition (h) that, nonetheless, the reasons must sufficiently inform the parties as to the findings of the tribunal.

In broad terms I accept the submissions on this point of Ms Boyd. In my view it is clear that the reason why the magistrates imposed the conditions that they did, and in particular the restrictions on opening times and times for the sale and consumption of alcohol, was that they agreed with the police findings as they described them, that there was an identified link between the amount of alcohol consumed and the amount of crime and violence committed and they were satisfied from the evidence that people were attending The Birdcage to consume and were being served excessive amounts of alcohol and that the conditions that they were imposing were designed to promote the licensing objectives, in particular in that they regarded them as necessary to promote the prevention of crime and disorder.

Although that link and that chain of reasoning is not repeated or explicitly identified in the paragraph in which the magistrates said that they considered it would be correct for them to substitute the decision of the licensing authority with the conditions that they then set out, it is, in my view, clear from the immediately preceding paragraph, which I have set out above, in which they gave as the reason for refusing to uphold the local authority's decision to suspend the licence for two weeks the fact that they did not agree that that course would further the aims of the licensing objectives and, in particular, with regard to crime and disorder, that the reason why they were proposing to vary the local authority's conditions was that by contrast they did consider that those conditions were necessary to further those aims of the licensing objectives by reducing crime in the ways set out in the various conditions, which were principally designed, so far as the restriction on the time for the sale and consumption of alcohol and closing hours and the prohibition on promotions, to reduce the amount of excess alcohol which they found was being consumed and for which purpose they found people were going to The Birdcage.

Although Mr Mason is quite right to point out that the chain of reasoning is not spelt out in that part of the decision, and in particular it is not spelt out how and why the curtailment in drinking hours or the prohibition of promotions was likely to further the licensing objectives, it is, in my judgment, clear from what they said earlier and the arguments and evidence which I was told were put before them that they considered that a combination of these two principal conditions would be likely to be necessary for the purpose of reducing the amount of alcohol consumed and thereby reducing the amount of crime and disorder flowing from the consumption of alcohol by persons in The Birdcage.

So far as the case of Ruiz is concerned, in my judgment that is of no assistance to the claimant. The facts of that case are wholly different from the facts of this case. That was a case in which there had been two issues originally raised: one on the merits and one a procedural defence based on a time bar. The complaint was that the relevant court in giving its decision and its reasons was silent as to the time bar point with the result that it was not possible to identify what, if any, consideration had been given to that issue.

In the decision of the court it was said:

In my judgment that case well illustrates the policy lying behind the need to give reasons, and it is, in my judgment, of no analogous support to the claimant in this case for the reasons which I have already set out. Accordingly, in my view, that first ground of challenge fails.

Having said that, and by way of preface to the second ground of challenge, it is right to say that specific consideration has been given, both in national guidance and in the guidance of the local authority concerned, to the ways in which the operation of licensing conditions can have an impact on the various licensing objectives. In broad terms Mr Mason complained that the lack of reasons was a material deficiency, in that it failed to enable the claimant to identify whether it had a legitimate ground for challenging the decision in failing to apply those guidelines, or, if not applying them, to give satisfactory and sufficient reasons as to why they were not applying them.

I have considered that very carefully. There is no doubt that the explicit reasoning in the decision is not as detailed as it could have been. But this seems to me an example of a case where one has to have a "reality check". This was a case in which there had been two hearings, one in front of the local authority and one in front of the magistrates, with a great deal of evidence over some considerable time and detailed submissions by counsel on both sides. Both sides knew what the issues were and where the battle lines were drawn. In my judgment there is no sensible argument that the claimant has been disadvantaged in formulating grounds for challenging the decision on its merits in judicial review by the lack of explicit detailed reasoning of the kind which Mr Mason contends should have been set out. It seems to me that when one considers what was the broad thrust of the arguments on both sides, and the broad thrust of the principal evidence, it is possible to identify what was the chain of reasoning of the magistrates.

I turn therefore to the second ground of attack by the claimants of the decision which was in these terms, that in imposing the conditions the defendants:

As appears from that formulation in the detailed statement of grounds, the principal point taken by the claimant was by reference not to national but to local policy and in particular to paragraph 6.22 of the defendant's policy which was in these terms:

It appears from the interested party's detailed grounds that at the hearing the council made reference to paragraph 6.24 of its policy which is in these terms:

The interested party submits that the magistrates were clearly not convinced that the claimant was able to be part of that night-time economy and promote the objectives of preventing crime and disorder unless hours were reduced and certain conditions imposed. The licensing committee, it was submitted, came to the same overall conclusion. There was nothing wrong, irrational or perverse in that conclusion so it was submitted. It was one which they were to entitled to reach, having heard three days of detailed evidence.

In my judgment it is also necessary to refer to 6.27 of the policy, which is in these terms:

In my judgment, paragraph 6.27 is of great importance. When paragraphs 6.22, 6.24 and 6.27 are read together it does not seem to me possible to argue that the conclusion reached by the magistrates was irrational or perverse in that it failed to implement the council's own policy, or that the decision to restrict the hours during which alcohol could be served and consumed was contrary to that local policy. It does not seem to me that when you take those three paragraphs together that local policy prohibits restricting the hours in which alcohol can be consumed in the way in which the magistrates did. In all circumstances it is plain, as it seems to me, that in considering what, if any, restrictions to impose, the local authority, and in this case the defendant, is not only entitled but obliged to promote the licensing objectives, including, in particular, that relating to crime and disorder. It seems to me to be clear that it is something that has to be treated on a case by case basis by either the local licensing authority or the Magistrates' Court having regard to the facts of any particular case.

On the facts of this particular case, having concluded that there was an established link between acts of violence and excessive drinking in The Birdcage and that excessive drinking was influenced by the length of time in which it was possible to consume alcohol on those premises, the magistrates were entitled within their discretion to reach the conclusion that the licensing objectives would be promoted and therefore that there would be no breach of the local policy in imposing a curtailment of the hours in which alcohol could be sold.

In reaching this conclusion I am, to say the least, fortified by the knowledge that in the hearing before the licensing committee in April 2006, as appears from the written account of that hearing, Mr Bell on behalf of the claimant explicitly offered to agree to what were described as the bar operating hours being curtailed as follows: Wednesday to Thursday and Sunday, 11.00 pm to 2.00 am and Friday to Saturday 11.00 pm to 2.30 am. While the words "operating hours" are ambiguous and in theory could apply either to the hours in which alcohol could be sold or also to the hours in which alcohol could be consumed as well as being sold, I was told that it was treated in front of the licensing authority as being limited to the hours at which it could be sold. If that is right, then the concession was not as extensive as the conditions which were subsequently imposed by the magistrates, in that they were an hour later than were imposed by the magistrates. Nonetheless, having regard to the fact that the original licence, which was being varied, allowed alcohol to be consumed from 11.00 pm until 5.00 am, it is plain that the concession offered by the claimant to the licensing authority of a curtailment until 2.00 am was a very significant one. In my judgment the decision of the magistrates to curtail it by an extra hour so far as sale is concerned, but not consumption, cannot sensibly be described as being contrary to the local policy or irrational or perverse.

In the light of that concession, on the contrary it seems to me a classic example of a fact sensitive judgment reached by a local bench having heard a lot of evidence and submissions and well within its margin of discretion. It is to be noted also in this context that the police had been arguing in front of the local authority for a restriction until 12.00 pm, something that was rejected both by the local authority and by the Magistrates' Court.

So far as the argument that there was a breach of national policy is concerned, as appears from what I have set out in the detailed statement of grounds of the claimant, this was not the principal ground relied on. Indeed, in argument before me it was raised only for the first time in reply where Mr Mason referred me to the case of DanielThwaites v Wirral Borough Magistrates' Court [2008] EWHC 838, a decision of Black J.

The relevant paragraph in the national guidance (paragraph 6.5) was set out in that judgment at paragraph 44. It is in these terms:

It is possible to see why it was that less reliance was place by the claimant on national than local policy. Paragraph 6.5 is referring to artificially early closing times and the effect of such artificially closing times on promoting rapid binge drinking close to closing times. In my judgment, that is not what occurred in this case. To have closing time at 2.00 am or 2.30 am and a final sale of alcohol time at 1.00 am or 1.30 am cannot be described as artificially early, nor such as so clearly to promote rapid binge drinking as to make the imposition of such conditions contrary to that national policy.

It is, in any event, plain from the terms of the decision to which I have referred that the magistrates had well in mind the proximity of The Birdcage to other facilities of the kind referred to in the policy. Accordingly, in my view, that second ground fails.

The next ground of challenge was in these terms.

As I have indicated, in my judgment, it is plain that the magistrates did not intend to impose a simultaneous time for the ending of sale and consumption of alcohol as appears from Mr Cooper's letter, as well, in any view, from the other matters to which have I have referred. On the basis that, in my judgment, it is right that the decision should accordingly be amended to reflect their true intention this ground of complaint does not arise.

The next complaint is that having found that the area immediately outside the club can attract undesirable people, the defendants:

In my judgment, there is nothing in this ground of challenge. Insofar as they refer to this point, it is plain, in my view, that the magistrates were referring to it as background to their conclusion that, given the excessive amounts of alcohol being consumed and served at The Birdcage and given the link between that amount of alcohol and the amount of crime and violence, it was desirable in the interests of minimising crime and disorder that conditions should be imposed. It was not clear to me on what basis the criticism made of the magistrates was one which could be said to render the conditions that it imposed unlawful.

Next it was said that the magistrates:

I do not see that there is any force in this complaint. It is plain for the reasons already given that the decision of the magistrates to impose the conditions that they did flowed from their conclusion as to the link between excessive amounts of alcohol being consumed and the levels of drunken disorder and violence and that followed the consideration of a great deal of evidence, indeed 300-pages of witness statement evidence I was told and the analysis of a large amount of statistics as to incidents of which the index offence that gave rise to the closure order in March 2006 was only one small part. In my judgment the decision which they reached cannot be impugned or said to be defective by reason of the attitude that the magistrates took in their approach to that index incident. It does not seem to me that it can sensibly be suggested that, without taking into account the question of who was responsible or to blame for the incident leading to the closure, it was irrational for the magistrates to impose the conditions they did having regard to the totality of the evidence before them.

The next ground was that the defendants:

I was somewhat troubled by this point but I am not satisfied that on its own it rendered the decision in relation to the conditions irrational or unlawful given the evidence and the findings of the link between the consumption of excess alcohol and violence. The magistrates were concerned with whether it was necessary for the promotion of licensing objectives to impose conditions on this club in the particular circumstances which they found obtained in relation to this club. In the light of the findings that they made, which in my view cannot be challenged, it cannot be said that their conclusions were irrational or defective by reason of this point of challenge. I was, in any event, told that there was no detailed evidence before the magistrates as to other clubs doing promotions after 11.00 pm.

Next, the complaint was that the magistrates:

In the revised skeleton argument on this point Mr Mason submitted that it was disproportionate and irrational to impose this condition, its effect being that the claimants could not open or remain open unless a female member of staff was working at all times on the door. This would present problems if, having obtained such a member of staff, she did not turn up for work or had to leave due to illness or simply walked off. The claimants would be unable to open at all or would have to close immediately which would cause large scale simultaneous migration and lead to resentment where people had paid to enter the club. It was also said that this policy was discriminatory.

In my judgment this is wholly unsustainable. It is plain that given the concern about incidents of violence linked with excessive alcohol it could not be said to be unreasonable to seek to ensure that there was available somebody who could be on hand who could deal with women who were suspected of or seen to be the worse for wear or in possession of potentially offensive weapons, not least having regard to the evidence which I was told existed that the claimants had been at pains to emphasise its female clientele. It seems to me that it cannot be argued that it is irrational to seek to ensure for the purpose of promoting the licensing objectives in relation to crime and disorder the presence of a woman who can provide in relation to female guests the same function as is provided by male members of staff in relation to male guests. In my judgment, it cannot be said that this was so disproportionate as to be irrational. In my judgment, complying with that condition is simply one of the business matters that a club of this kind has to take into account in the way in which it runs its business and makes its staff dispositions.

I now take out of order ground 6, which is that the defendants erred in their approach to the statistics produced by the police regarding incidents of crime. It is alleged that they appear simply to have adopted the headline figures without analysis as to whether such incidents actually relate to The Birdcage and the extent to which they are culpable. Such an approach, it was submitted, gives a distorted impression, takes into account a number of incidents where assailants reacted violently when they were detained for possession of drugs or were trying to enter the club when drunk in a negative sense when the reality is the opposite.

This is said in the detailed statement of grounds of resistance to amount to no more than a rerun of a point made both to the licensing committee and the magistrates rather than to be a ground for seeking judicial review. The interested party submits that the magistrates were of the view, having heard a great deal of submissions and a great deal of time having been spent on the statistics during the hearing, that the police evidence did not bear out the claimant's assertion that matters at the club were improving.

I have quoted the relevant findings in relation to statistics in the magistrates' reasoning above. It is also pertinent to note that this matter was also canvassed in detail and in front of the licensing committee where the following was recorded:

In circumstances, it is submitted in the local authority's detailed grounds of resistance, such as these, where the statistics support the overall conclusion that customers of the club are attending to consume and be served excessive amounts of alcohol, the magistrates are not required to go into the detail of 223 reported crimes relating to the club between March 2006 and September 2008 (82 being assaults) and come to concluded views on each of them. On this point the magistrates cannot reasonably be said to have erred. I accept those submissions. In my judgment there is nothing in this point.

The final ground of challenge was that the defendants erred and/or acted anti-competitively in limiting time led drinks promotions in respect of Wednesdays and Thursday and ordering that there be no other reduced price promotions on any other night.

In my judgment, there is nothing in this point either. It is plain that the magistrates were very concerned by what they regarded as irresponsible drinks promotions being pursued at the club. It is not difficult to see why they were concerned. Having referred to the submission that the promotions were managed and controlled, the magistrates pointed out that the only obvious controls were the promotions on Fridays and Saturday when drinks were half price for specified times and that despite rigorous questioning it was not possible to elicit how the promotions were managed on Wednesdays and Thursdays and that they were told that five specific drinks were sold at 80p and 90p on respective nights until supplies run out but it was not possible to ascertain the quantities available for sale. On Sundays all drinks were sold for £1.50 each all night which meant that for a modest expenditure a considerable volume of alcohol could be consumed. Given their finding that they were satisfied from the evidence that people were attending the club to consume and were being served an excessive amount of alcohol and their agreement with the police findings in identifying a link between the amount of the alcohol consumed and the amount of crime and violence committed, it seems to me that the submission that it was irrational or perverse for the magistrates to impose the conditions that they did in relation to promotions is wholly unsustainable. Indeed, it is the more so when one has regard to the fact that at the hearing in front of the local authority licensing committee Mr Bell on behalf of the claimant again made the concession of offering that there should be no time led or all inclusive drinks promotions at any time at all on any day. Against that concession the submission that the conditions imposed by the magistrates were irrational or perverse seems to me unsustainable.

In those circumstances, in my judgment, the claim for judicial review must fail, save to the limited extent which I indicated at the beginning of this judgment, that in my judgment it is right that the case should be remitted to the magistrates in order to enable them to amend their decision so as to make the conditions reflect the intentions which they have indicated they had. It is important that that should be done with expedition so that it is then possible for the licence to be amended to reflect the amended conditions.

MR JUSTICE STADLEN: Are there any matters that flow from that?

MS BOYD: My Lord, just the specific, obviously, wording of the order, which we can discuss, and, my Lord, obviously there is an application for the interested party's costs, the principle of which I understand is not resisted. My Lord, a schedule was sent to the court prior to the previous hearing on -- back in March. That, obviously, has some additional sums. If I may hand up my hand amended version which I have shown to my learned friend. There is one further amendment. If I just show that to my learned friend. (Pause). (Handed). My Lord, if I can run through the additional sums which you can see are written in red ink.

MR JUSTICE STADLEN: Before you go into that, can I ask, first of all, is this contested?

MR MASON: My Lord, can I make any position known? I indicated that if we were unsuccessful, then, in principle, the interested party were entitled to their costs. My only observation is that, albeit to a limited extent, the matter is being remitted back to the magistrates. The issue upon which it has been remitted amounted to a significant part of the hearing and I would, in fact, invite my Lord to consider whether or not the interested party should only in those circumstances recover part of their costs. Subject to that, I have no submissions in relation to quantum.

MR JUSTICE STADLEN: So you are happy with the quantum?

MR MASON: In relation to quantum.

MR JUSTICE STADLEN: I don't need to trouble you on principle. It seems to me that I am remitting it only on the basis that the -- not that the claimant has succeeded in any of its substantive arguments, but only on the basis that it is necessary for the decision to be amended to reflect the intentions of the magistrates as communicated by Mr Cooper's letter. Accordingly, in my judgment, there is no reason why the ordinary order of costs following the event should not apply. I am told by Mr Mason that no objection is taken to the quantum. Accordingly, in the interests of saving further costs to the parties on an assessment, I assess the costs in the amount of £14,782.10 and direct that the defendant -- that the claimant pay the first interested party's costs in that amount.

Thank you very much. The wording of the order?

MS BOYD: My Lord, yes. Clearly the first part is that the claim ought to be dismissed. I think my Lord summarises it succinctly in the final paragraph of my Lord's judgment, that the bench ought to reconvene to consider the specific wording of the conditions it intended to impose in accordance with the letter of Mr Cooper dated, and my Lord we ought to --

MR JUSTICE STADLEN: The kind of language I had in mind, was that the claim for judicial review is dismissed on terms that the case is remitted to the magistrates to enable them to amend their reasons and their conditions and their decision so as to render it -- so as to render it in a form which reflected their intentions when making the decision as set out in the letter of Mr Cooper dated 13 January 2009. Does that do it?

MS BOYD: Yes.

MR JUSTICE STADLEN: Are you content with that, Mr Mason?

MR MASON: My Lord, I am.

MR JUSTICE STADLEN: Thank you very much. Is there anything else?

MR MASON: My Lord, there is for my part. My Lord, on behalf of the claimants I seek permission to appeal. In my submission there is a compelling reason in this case, in that this case raises, or my Lord's decision raises, an important point of law that has a widespread application to other cases. My Lord has determined that there is a power by a body exercising administrative function to effectively to amend its decision either in accordance or analogous to either the slip-rule or the court's wider discretion.

In my submission, there is no authority in relation to that proposition. There is only authority in relation to courts where they were exercising a purely judicial function. So, in my submission, it raises an important point that does have an important application in respect of this case because if my Lord is wrong and the body is functus officio and there is in no power either to amend or vary that decision, then clearly it cannot be remitted back as my Lord has directed.

MR JUSTICE STADLEN: So you just seek to permission to appeal on that limited ground, not on any other ground?

MR MASON: My Lord, on that limited ground.

MS BOYD: My Lord, the authorities are clear as to the proper course of action that ought to take place in such circumstances where there is, as my Lord indicated, an issue taken with reasons and their sufficiency. And what the authorities tell us in plain terms is that the party who has the issue with the reasoning ought to either raise it when judgment is given and prior to the order being drawn up, or, as in these circumstances, where neither counsel attended or there is a concern over that reasoning the party ought to approach the bench and ask for those reasons. Now, had the claimant done that it would have elicited the letter sent by Mr Cooper and it ought to, if it had taken a sensible position, come to the conclusion that, actually, we will not get past the permission stage, because had it done that it is my submission that they would not have got that far. Therefore the point about are they functus or not, is really an academic one because the reality is that they would never have succeeded in terms of their substantive challenge. And in those circumstances, my Lord, I think any challenge to your decision is going to ultimately end in precisely the same position.

MR MASON: My Lord, our position is that if they have no power to vary or change their order then we could not apply back to them.

MR JUSTICE STADLEN: Why would they have no power to vary their order?

MR MASON: Because once they had made their decision that is it. Their position, we submit, is not the same as the court.

MR JUSTICE STADLEN: Why is it different from the court?

MS BOYD: Clearly the court is governed by the Civil Procedure Rules. It is only if those rules apply in respect of the Magistrates' Court exercising an administrative function, we say it doesn't, or, alternatively, there is some analogous position and we say there is not. But what we say is that it is clearly an important point of law which we would invite the court to give permission upon.

MR JUSTICE STADLEN: Thank you very much. No.

Permission to appeal is sought only on one limited ground which is to challenge that part of my decision which held that the magistrates had the power to amend their decision to reflect their true intentions. Permission is not sought in respect of any other of my findings or any other part of my judgment. In my judgment there is no prospect of such an appeal being successful. If you want to apply for permission to appeal you must go to the Court of Appeal.

Thank you very much indeed. Thank you both very much for your submissions.