Copyright Canary City, R (on the application of) v Thames Magistrates' Court

MR JUSTICE OUSELEY: Copyright Canary City Limited, the claimant, seeks to quash the decision of District Judge Dawson at the Thames Magistrates' Court refusing an adjournment of its appeal against the revocation of the claimant's premises licence by the London Borough of Tower Hamlets and the consequent dismissal of its appeal. Copyright Canary City Limited trades as Mango's Nightclub. It had a premises licence under the Licensing Act 2003 for 110 Pennington Street London E1 from the London Borough of Tower Hamlets, the interested party. This licence authorised the sale of alcohol, the provision of entertainment, and late night refreshment. Mr Sharma is the owner of the claimant and the manager of Mango's. Residents sought to have the licence reviewed because of the problems they said were created for them by the customers or would be customers of the nightclub.

The licensing committee of Tower Hamlets London Borough Council revoked the premises licence on 8 May 2009 after a meeting on 28 April 2009 at which residents and representatives of Mango's were heard. Mr Sharma attended, but the representations were provided and questions were answered by counsel. The licensing committee concluded that unacceptable behaviour by customers and would be customers had caused discomfort and nuisance to local residents which further conditions would not resolve.

The claimant appealed against that decision on 20 May 2009 to the Thames Magistrates' Court. The appeal had the effect of suspending the revocation of the licence and Mango's continued to trade.

On 26 June 2009 Thames Magistrates' Court issued directions for the management of the case. There is no document recording that order but it appears that the parties were ordered to serve or to exchange evidence by 9 November 2009 and the claimant was to provide a bundle of documents by that same date in preparation for the hearing over two days due to take place on 23 and 24 November 2009.

On 3 July 2009 the claimant sought and the interested party agreed to an adjournment of that hearing because of difficulties with the attendance of some of the claimant's witnesses. The appeal was then fixed for 19 and 21 January 2010.

No bundle of documents was lodged by the claimant either by 9 November 2009 or by 5 January 2010, the equivalent period before the refixed hearing. No witness statements were served by the claimant nor was the claimant ready to exchange witness statements either by 5 January 2010 or by 19 January 2010. No bundle of documents was ever served, and although it now appears some progress had been made with them no witness statements were ever ready for exchange. It now appears six witnesses were to be called for the claimant, including Mr Sharma.

On 19 January 2010 the claimant, through counsel, applied for an adjournment of the hearing, not for a day or so but for a longer but unspecified period. The witness statement of Mr Sharma dated 10 October 2010 said that his solicitor sent a letter to the court on 15 January 2010 seeking an adjournment, but no letter has been produced and it does not appear that one was in fact sent. No witnesses for the claimant were present at the hearing on 19 January 2010. Mr Sharma had decided that they should be stood down before knowing what the outcome of his application for an adjournment would be, and had given instructions that they be stood down.

The basis for an application for the adjournment was that Mr Sharma was unable to attend for medical reasons. The application was based on two medical notes. One was from the NHS Trust near where Mr Sharma lived to Mr Sharma's GP referring to a lower back injury caused by a fall at home on 11 January 2010 which had led Mr Sharma to attend the local accident and emergency unit. This note said:

The second note was dated 13 January. It was from the GP. It said that Mr Sharma was suffering from:

The claimant did not provide any further evidence to the District Judge in support of the application for a adjournment, either directly or indirectly, as to how severe Mr Sharma's pain still was after taking the prescribed pain killers for at least a further five days. There was no evidence of immobility or other treatments such as bed rest being required. As at 19 January 2010 the certificate was either expiring on that day or had only one day to run. There was no update on Mr Sharma's condition for better or worse. Even taking the certificate as expiring on 20 January it did not cover the second day fixed for the appeal.

Tower Hamlets did not consent to the application for an adjournment. It is said in the note by the claimant's counsel that Tower Hamlets did not oppose it, either adopting a neutral or even helpful stance. The District Judge in the record of his review of his decision said that Tower Hamlets had opposed the application.

District Judge Dawson refused the adjournment. He was troubled by the nature of the medical evidence and by the failure of the claimant to provide a bundle of documents or any witness statements and by the absence of all the claimant's witnesses for the first day of the appeal.

The claimant applied for a review of his decision and on 21 January 2010 the District Judge refused the review. He gave written reasons. He noted that the application was in fact opposed by Tower Hamlets. He referred to the medical evidence to which I have referred and then said that he had acquired into the state of the case generally. No explanation was given to him about the failure to prepare the documents, save that the claimant's counsel said that the parties may have had some vague understanding. He noted that no other witnesses on behalf of the claimant had been brought to court, despite the claimant agreeing that the case required two days and that that time had been set aside on the basis that such other witnesses would be called. It was also the unavailability of other witnesses to Mr Sharma that had caused the adjournment from the November date. The District Judge then said this:

The District Judge concluded his decision refusing the review, adding that his basis of the refusal of the adjournment was:

Mr Southey QC for the claimant submits that the refusal of an adjournment was unlawful and unfair. The District Judge could not reject the evidence from the medical notes that Mr Sharma could not attend without concluding that he had chosen not to attend despite the contrary advice from his GP. There was no rational basis for such a conclusion on the District Judge's part. The District Judge was not a doctor and was not qualified to gainsay the GP's opinion, short and lacking in specifics though it might be. The District Judge was not in a position to judge what degree of problem there might be, or to criticise the GP's opinion in the way that he did. He had even made remarks suggesting that Mr Sharma could come to court and if necessary lie down. If the main witness, who was also the person who could give instruction about the conduct of the case and instructions in response to the evidence of residents or by others called by Tower Hamlets, could not attend for good reason then it was unfair not to adjourn the hearing so he could do so in a matter of such importance to the existence of his business. If the District Judge was suspicious about the medical evidence, and he did not suggest it was a forgery, he could have adjourned for a brief period to enable better evidence to be obtained or for the position to be checked.

Mr Southey relied upon Teinaz v Wadsworth London Borough Council [2002] EWCA Civ 1040. An Employment Tribunal had refused an adjournment in what Mr Southey said were very similar circumstances to these. Its decision had been over turned by the ET as wrong in law and the ET decision had been upheld by the Court of Appeal. A rather terse medical note said that Mr Teinaz, the applicant before the ET, had been suffering from severe stress and had been advised not to attend. The ET faced similar problems in the backwardness of preparations for the hearing. One of the ET's reasons for refusing the adjournment, in a series of comments critical of the medical opinion, was that Dr Teinaz had "chosen" not to attend. The Court of Appeal held that there was no evidence of that, and as the note had advised him not to attend it could not be said that he had chosen not to attend.

Peter Gibson LJ made some helpful general observations which I accept are applicable to this case. First, the power of the ET and of this court is to review the exercise by the District Judge of his discretion in relation to the grant or refusal of an adjournment on limited grounds. These limited grounds include irrationality and taking irrelevant factors into account. I would accept Mr Southey's submission that reaching a decision for which there was no evidential basis would be another ground of successful challenge. Peter Gibson LJ continued in paragraph 20:

Mr Southey said, as was indeed the case, that this applied here because the refusal of the adjournment led inevitably immediately to the dismissal of the appeal.

At paragraph 21 Peter Gibson LJ said this:

Guidance was also given as to practical steps which a tribunal or court could take where they were concerned about the inadequacy of medical evidence. The court could give directions, for example, for further evidence to be obtained or a medical examination by the opposing party to be carried out. However, Peter Gibson LJ added that a court would not necessarily err in law if it did not do so, but there were these practical steps which could resolve the problems of an application for an adjournment based on uncertain medical grounds.

Mr Southey also contended, contrary to what Mr Collard for Tower Hamlets submitted, that the District Judge, in paragraph 13 of his reasons on review, did not give alternative reasons so that if the medical ground had involved an error of law the others still stood as a sufficient basis for the refusal of the adjournment. He submitted that the reasons were cumulative so that if one part was flawed it would not be possible to say how the District Judge would have decided the adjournment application.

In my judgment, since this is a question of review, the lawfulness of the reasons for adjournment has to be judged by reference to the material before the District Judge in the circumstances confronting him. These were obviously very much in his mind. First, the District Judge was faced with a second application to adjourn. Adjournments in these circumstances greatly advantage the appellant because it enables premises to continue trading.

Second, the continuing suspension of the licence would be to the considerable disadvantage of local residents if the allegations of unacceptable behaviour which persuaded the licencing committee to revoke the licence were justified. There was therefore also rather more than just the claimant's private interest at stake.

Third, the claimant's application was not that the hearing should start on 21 January, nor was it for some other adjustment to the timetable enabling Mr Sharma to give evidence on the 21st, whilst the appeal was opened and the claimant's other witnesses were heard on the 19th. The application was for an adjournment for a longer period, obviously inconveniencing the Tower Hamlets witnesses, especially local witnesses, who had been lined up for 21 January. I emphasise the unspecified length of the adjournment sought, because the medical note did not say Mr Sharma would be unable to attend on the 21st. 19 January was also either the last day or the last day but one of the week covered by the medical note, and as I have said there was no evidence updating the court on Mr Sharma's medical condition or prognosis as at 19 January.

Fourth, the District Judge was obviously entitled to consider what the position would have been had Mr Sharma been fit and present. The claimant had served no bundles of documents in breach of the court order, even taking the date for service of those documents as 5 January 2010. There was only a vague and unsatisfactory explanation for this. There was no evidence that Mr Sharma's fall on 11 January had prevented the bundle of documents being prepared and served, even at or shortly before the hearing. It does not appear to have even been suggested that the fall prevented the bundle of documents being prepared and his instructions are not obviously necessary for its completion, and there was no evidence that the fall or pain prevented him giving any instructions that were necessary.

The witness statements had not been exchanged or served. There was no suggestion that this was because the Tower Hamlets statements were not ready but the claimant's were; rather, the claimant's witness statements were not ready for exchange, although Tower Hamlets' were. The reason the claimant's were not ready, if given to the District Judge, related to some new development of the nearby premises of News International. The significance of this in preventing the exchange of all the material explaining how the premises were managed and functioned and countering the level of nuisance as experienced by local residents was distinctly unclear, if that explanation was proffered at all.

The need for the input of Mr Sharma into finalising the witness statements of others was unclear, but there was no evidence that he could not have given any necessary instructions, even while in pain or unable to attend court himself. His own witness statement ought to have been completed before his fall on 11 January and again there was no evidence before the District Judge that his fall or pain prevented instructions being given on its conclusion. The medical evidence could not, did not, and was not intended to deal with the wholesale lack of preparation for the case.

Although this court has been shown the state of the witness statements as at 19 January, the District Judge was not shown where they had got to. The District Judge's conclusion in paragraph 13 B of his reasons for refusing the review, namely that the appellant had demonstrated that the appeal was not being pursued efficiently and expeditiously, was wholly justified and the inference he drew that the appeal was not meritoriously based was one which was obviously open to him.

The District Judge then rightly pointed out that even if nothing had been done in compliance with the case management directions, the claimant could have served material on the day of the hearing itself to show that there was substance in the appeal and that the claimant was progressing the appeal, albeit inefficiently, rather than merely dragging his feet for his own advantage.

But not merely had the claimant not done that, without producing any evidence that the fall had prevented that, worse still, Mr Sharma had not procured the attendance of any of his other witnesses, including those whose inability to attend in November had caused the first adjournment. It appears that the District Judge thought that they had simply not attended. It does not appear that the District Judge was told that Mr Sharma had taken it upon himself to give instructions or require instructions to be given after his fall that the witnesses be stood down when he decided that the claimant should apply for an adjournment. It would obviously not have helped the claimant's case to let the District Judge know that he was being presented with a fait accompli or that his hand was being forced in quite so high handed a manner.

It is quite clear that the District Judge was fully entitled to regard the claimant's complete unpreparedness to proceed on the 19th as telling, pointing to a want of merit in the appeal and a want of intention to proceed, instead dragging his feet for commercial advantage. That is again what underlies his comment at paragraph 13 C. The inference he also from this, that the appeal was unlikely to be meritoriously based, was one he was entitled to draw.

All those factors told against the grant of the adjournment. The nature of the District Judge's reasoning has to be understood in those circumstances. It would be wrong to see the District Judge's reasoning in paragraph 13 of his written reasons as containing two or three alternative and equally sufficient bases for the refusal of the adjournment. The District Judge does not treat them as alternatives, but presents the three factors together as a single reason, as he does in the later summary paragraph to which I have referred. Mr Southey says that they were cumulative reasons, but to my mind the District Judge does not say how he would have reacted if the preparation had been as he found it to be, but he was faced with clear medical evidence about Mr Sharma's condition. His reasoning certainly does not rule out the refusal of an adjournment in those circumstances.

In reality, the District Judge's thinking on each aspect was reinforced by what he found on the other aspects. The want of preparedness made the absence of witnesses more troubling and vice versa. To him they were all part of a pattern of delaying an unmeritorious appeal. That was a view he was entitled to come to. It was obvious that the medical note for one week covering at most only one day of the trial, already nearly a week old and with no supporting or up to date evidence, had to be examined carefully. What he concluded on the merits of the appeal and the want of preparedness affected how he dealt with the medical note. In my view that is an entirely lawful approach for him to adopt.

I accept however that if he had erred in law in his approach to the medical evidence taken as a whole or had ignored material factors or had acted without evidence in relation to the medical note his decision cannot be maintained by a reference to an alternative, self-standing basis, because he does not make that position clear.

I turn, then, to the way in which the District Judge approached the medical evidence. The medical notes, as I have made clear, were the only evidence before the District Judge in relation to Mr Sharma's condition. Before I turn to them it is instructive to see what was not provided and the District Judge considered this as part of his analysis of what had been provided. The claimant did not provide any information or evidence, directly or indirectly, as could easily have been done, about Mr Sharma's current physical circumstances: for example, about what it was that made him unable to attend court, whether drowsiness from medicines to immobilising pain to a need for bed rest or to pain in travel. The claimant did not provide on 19 January any update as to Mr Sharma's condition or prognosis. His condition had last been reported on on 13 January for a one week period which expired either on the 19th or 20th, and did not cover the 21st. The District Judge was entitled not to regard an inability/ability to attend as a stark distinction which would occur at the end of the week. The note plainly showed that Mr Sharma would be progressing to fitness over the period covered by the note and by day six/seven Mr Sharma's condition could realistically have been expected to have improved significantly, given that he would be back to full fitness by day eight/nine, 21 January.

The circumstances in which there was no other evidence provided beyond these notes specifying the problems or updating the court as to Mr Sharma's medical position are also important. The court, as the claimant knew well, was facing a second application for an adjournment benefiting the claimant commercially, with no preparation for the case clearly having been done. The District Judge was entitled to expect the application for an adjournment to be promoted seriously by the claimant, to be properly and substantially evidenced, for the claimant to be cooperative in relation to the trial timetable and to be ready with explanations for all the failures that had occurred. It is all very well Mr Southey saying, as I accept, that Mr Sharma was going to be the main witness and the giver of instructions, but that would suggest a clear obligation, as well as an ability, to explain fully why he could not attend on the 19th or 21st. Likewise, given what Mr Southey says is the importance of the business to Mr Sharma it is surprising, as the District Judge had concluded, that the appeal, if meritorious, had not been pursued which vigour and efficiency, with all done that could be done, even if done late, save for the presence of Mr Sharma.

In the light of those observations, which were well present to the mind of the District Judge, I turn to what it was that the District Judge in fact had. What he had were the two notes, and the GP note was the important one. It expired on either 19th or 20th January and did not cover the 21st. Even taken at face value, it did not warrant much of an adjournment and would not have warranted not starting on the 19th if the other witnesses had been ready; the case could have been opened and the other claimant's witnesses heard. On that basis it would not have warranted any adjournment of the appeal, but merely an adjustment to the timetable to enable Mr Sharma to attend on the 21st. But that is not what was sought.

On any view, the 19th was very close to the end of the period covered by the note, during which time Mr Sharma had received treatment and could reasonably have been expected to have improved meanwhile and on that note to have improved so that he was nearly fit. Mr Southey suggests that notes of this sort are often only given for 7 days without carrying any implication that thereafter the subject of them will be fit. If that is so, it adds emphasis to the significance of the absence of any update to the prognosis of the condition, as the note neared expiry.

The note did not explain the effect of the pain or the painkillers, and why it meant that Mr Sharma could not attend so that the court could make some judgment of its own about the degree of the problem and the steps which it might take that could assist. The District Judge referred to some of those which could be taken, even if his comment about lying on the floor was inappropriate, if he made it.

The medical note has to be seen as evidence from a professional for the benefit of the court in a serious application for an adjournment. The District Judge was entitled to conclude that the medical note fell well short of offering real assistance on this issue. He was right to point out that even on 13 January Mr Sharma had not been so immobile that he could not get his doctor, and if he could get to his doctor why, five days later, could he not actually get to court? The nature of the problem was not clear; whether transport, sitting, standing, concentration or any other aspect. The District Judge was right to point out that the medical note refers to no other treatment being necessary than pain killers, and is entirely silent as to any need for bed rest, or sitting, or problems with movement having taken pain killers. It does not mention any problem with any side effect from medication, such as drowsiness or difficulty in concentration.

Even taken by itself this note is of very doubtful value in supporting an adjournment and a District Judge, faced with this bland, uninformative and rather dated note in the circumstances confronting him was, in my judgment, entitled to treat it, six days later, as flimsy and without merit. He was entitled to conclude that it could not now bear the weight necessary to warrant this adjournment in these circumstances. He did not misinterpret the note. He pointed to its omissions, to its tellingly short period and to what it did not explain. These are all matters which Mr Sharma could have dealt with. The District Judge was not just entitled to do so, he was obliged to consider carefully all those matters in the interests of justice for both parties to the appeal and to look at the document with some scrutiny.

I accept that the District Judge thought that Mr Sharma could have attended on the 19th, perhaps with difficulties which the court could cope with, in contrast to the GP, who said on the 13th that he would be unable to attend court for one week. The word "unable" on the note is simply contrasted with "able" as if there were no question of any degree of difficulty. The District Judge was not obliged to ignore what the medical note did not say or to ignore issues of degree as the medical note neared the end of the period it covered and there was no update. He was obliged in the interests of justice, as I have said, to scrutinise the terms of the note with some exactitude for what it did and did not say and for its continued relevance to an application on the 19th, either the day it expired or the day before it expired. He was not obliged to accept the statement that Mr Sharma was unable to attend on one day of the hearing as ruling out consideration of its date, duration, prognosis, the limited treatment which was being given to Mr Sharma, its vagueness and the want of other material updating Mr Sharma's condition.

Unlike the Employment Tribunal in Teinaz, the District Judge did not substitute his own view of Mr Sharma's medical condition or the effect of clear, if terse, medical advice. He considered the value of the note as evidence of the degree of Mr Sharma's inability to attend on the 19th in relation to whether it could warrant the adjournment in the circumstances in which the judge found himself. He concluded in reality that the medical note was simply too insubstantial to warrant the adjournment. In his view there should have been better and up to date evidence of the nature of the inability to attend and a more advanced case on the merits if there was substance in the application to adjournment. That, in my judgment, was a view to which he was entitled to come and involves no error of law.

Once he had decided to refuse the adjournment the claimant did not contend that the appeal should continue rather than be dismissed in the absence of any evidence to sustain it. Nor is this in substance challenged here. The challenge to the dismissal of the appeal is founded on the challenge to the refusal of the adjournment.

In my judgment that refusal was not unlawful. Accordingly this application for judicial review is dismissed.

MR COLLARD: I am grateful, my Lord. I seek on behalf of the interested party the costs of this hearing and of the permission hearing which were reserved on the date of that hearing on 18 June 2010. The costs of this hearing are --

MR JUSTICE OUSELEY: Is there a schedule?

MR COLLARD: There is a schedule which is being submitted to the court which needs a little bit of updating.

MR JUSTICE OUSELEY: Where will I find it?

MR COLLARD: It was submitted on Tuesday, but I can hand another copy up.

MR JUSTICE OUSELEY: I don't think I have a copy. I am afraid I am going to have to have another one.

MR COLLARD: I will also hand in a copy of the previous hearing. I am afraid there have been adjustments.

MR JUSTICE OUSELEY: It is Stadlen J.

MR COLLARD: Yes, he reserved the costs and said that they must follow today's costs.

MR JUSTICE OUSELEY: He reserved them or said costs in the case?

MR COLLARD: He reserved them to today.

MR JUSTICE OUSELEY: Right. What is the position in relation to the costs of the acknowledgment of service?

MR COLLARD: They were dealt with when permission was refused on the papers and that order would still stand because it is not being overturned today.

MR JUSTICE OUSELEY: Now the renewed application was successful.

MR COLLARD: The renewed application was successful, yes, because it was found to be arguable.

MR JUSTICE OUSELEY: Yes. You are--

MR COLLARD: Seeking costs of today for £2244.25 and for the previous hearing of £1139.75.

MR JUSTICE OUSELEY: Yes. What do you say about that. Sorry, you are?

MISS WILLIAMS: Miss Williams.

MR JUSTICE OUSELEY: Miss Williams, sorry.

MISS WILLIAMS: There is only one observation, that is in relation to the fee of today's hearing. Some what illogically a fee of £685 was noted for yesterday's hearing and the same fee for today's hearing. My simple submission is that is a rather substantial amount for today.

MR COLLARD: That is correct. That is because there is a straightforward fee for any judicial review hearing. Clearly yesterday's fee of £685 is more than reasonable, it is a very low sum and today it occupies the morning and is just the fixed fee. Both I would say are very reasonable, particularly when taken in comparison to the fees which would have been sought by the claimants.

MR JUSTICE OUSELEY: Yes.

MR COLLARD: So that would be a fee of £1370 for the judicial review hearing.

MR JUSTICE OUSELEY: I understand the point you make, Miss Williams, but within a costs bill there are swings and roundabouts, as I think there are in relation to those fees. You cannot take advantages of the swings alone. There will be an order for payment by the claimant of the defendant's costs in the sum of £2244.25 plus £1139.75.

MR COLLARD: I am grateful, my Lord.

MISS WILLIAMS: The other matter is that the claimant seeks leave to appeal in this matter on the basis that there is a real prospect of success in relation on the case of Teinaz v Wandsworth Borough Council.

MR JUSTICE OUSELEY: I am going to refuse leave. I think in the end when the case is examined fully -- which I have had the opportunity to do -- and the weaknesses in your client's case are exposed, I don't think you would have a chance of persuading the Court of Appeal otherwise, so I shall refuse you permission. I will give you this: if you want an extension of time until after receiving the transcript I will give you that, because you will not have a transcript until October.

MISS WILLIAMS: My Lord, I will be grateful.

MR JUSTICE OUSELEY: So I will extend time for applying to the Court of Appeal until 14 days after you received approved transcript, or 14 October, whichever is later.