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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Essence Bars (London) Ltd (t/a Essence), R (on the application of) v Wimbledon Magistrates' Court & Anor  EWCA Civ 63 (03 February 2016)
Cite as:  WLR(D) 59,  CP Rep 18,  WLR 3265,  1 WLR 3265,  EWCA Civ 63
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ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon. Mr Justice Wilkie
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SIMON
SIR ROBIN JACOB
| The Queen on the application of Essence Bars (London) Limited t/a Essence
|- and -
|Wimbledon Magistrates' Court
Royal Borough of Kingston upon Thames
The Respondent did not appear and was not represented
Gary Grant (instructed by South London Legal Partnership) for the Interested Party
Hearing date: 17 December 2015
Further submissions: 18 and 23 December 2015
Crown Copyright ©
Lord Justice Beatson :
"TO: [the clerk of the relevant Magistrates' Court]
TO: Legal Services, Royal Borough of Kingston upon Thames [address given]
COPY TO: Licensing Team, Royal Borough of Kingston upon Thames [address given]
COMPLAINANT FL Trading Ltd C/- Lana Tricker, LT Law [address of solicitor given]
RESPONDENT: Royal Borough of Kingston upon Thames [address given]
NOTICE OF APPEAL
TAKE NOTICE that the Complainant, the premises licence holder of the premises licence for the premises "Essence" [address given] intends to appeal against the decision of the Royal Borough of Kingston upon Thames of 10th January 2014 (received on 13 January 2013) revoking the premises licence
Grounds of Appeal
1. The respondent failed to take into account and have proper regard to the evidence submitted by the appellant.
[grounds 2-6 omitted] "
II. The law
"(1) This paragraph applies where a review of a premises licence is decided under Section 53A(2)(b) (review of premises licence following review notice).
(2) An appeal may be made against that decision by
(a) the chief officer of police for the police area in which the premises are situated,
(b) the holder of the premises licence, or
(c) any other person who made relevant representations in relation to the application."
"(1) An appeal under this part must be made to a magistrates' court.
(2) An appeal under this part must be commenced by notice of appeal given by the appellant to the [designated officer] for the magistrates' court within the period of 21 days beginning with the day on which the Appellant was notified by the licensing authority of the decision appealed against.
"Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates' court to answer to the complaint."
"34. Appeal to be by way of complaint
Where under any enactment an appeal lies to a magistrates' court against the decision or order of a local authority or other body or person the appeal shall be by way of complaint for an order."
"Defect in process
(1) No objection shall be allowed to any information or complaint for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the complainant at the hearing of the information or complaint.
(2) If it appears to a Magistrates' Court that any variance between a summons or warrant and the evidence adduced on behalf of the prosecutor or complainant is such that the defendant has been misled by the variance, the court shall, on the application of the defendant, adjourn the hearing."
III. The factual background and the decisions below
"[I]t seems FL Trading Ltd are a different legal entity who did not hold the relevant licence. Essence Bars (London) Ltd should have appealed. They did not and are now out of time. The principles which the Royal Borough of Kingston advances are binding on this Magistrates' Court. I find I have no jurisdiction to hear the appeal as there is no power to allow the change of name out of time. Therefore I cannot hear the appeal and dismiss it."
"mistakenly believed the PLH [premises licence holder] to be FL Trading Ltd. The PLH is in fact Essence Bars (London) Ltd, which is in fact wholly owned by FL Trading Ltd. The directing mind of both companies is Mr Franco Lumba, from whom I receive my instructions."
i) No rebuttal statement to Ms Tricker's evidence was submitted before the Administrative Court because the statement appeared to be irrelevant to the legal issues involved, which concerned whether a court could amend a complaint under section 123 to confer jurisdiction on a party who had not been the initial complainant: paragraph 3.
ii) It is not clear how Ms Tricker felt able to attest that "everyone" party to the appeal hearings "knew" that she and her counsel were acting for the premises licence holder. The licensing authority did not identify the error in the complaint or in the first judicial review proceedings, where FL was named as the claimant. It was only in October 2014, after the licensing authority checked its records and took advice from counsel, that it became aware that FL was not the premises licence holder and had not made a representation in the review application: paragraph 6.
iii) Contrary to Ms Tricker's assumption, the licensing authority and its legal representatives believed that Ms Tricker was acting in the magistrates' court and the earlier proceedings at all times for the complainant named on the notice of appeal by way of complaint, that is for FL: paragraph 8.
iv) The District Judge must also have been under this impression because, in the agreed note of his ruling, the case is entitled FL Trading Ltd v Royal Borough of Kingston upon Thames, and paragraph 2 refers to the "the appellant's apply under section 123 " and also states that "Essence Bars (London) Ltd should have appealed. They did not ".
i) She described the suggestion that the licensing authority and its representatives believed that the appellant was FL acting in the mistaken belief that it was the premises licence holder as "disingenuous" and one that no reasonable person could believe. She stated that this is so because she received her oral instructions to act on behalf of the premises licence holder from Mr Lumba, the sole directing mind of the premises licence holder. The mistake of putting the name of FL as the complainant was hers and not one that was made or could have been made by FL because inter alia a company cannot make a mistake about its own identity, and Mr Lumba did not mistakenly believe that FL was the premises licence holder.
ii) She stated that the licensing authority knew that Mr Bromley-Martin and she could only have been representing the premises licence holder at the summary review proceedings. Those proceedings took place in accordance with rules of procedure which accord rights to be heard only to the holder of the premises licence, the applicant, and other persons who make representations.
iii) As to the suggestion that the section 123 application was made by FL she stated (paragraph 4) that the idea that the wrongly named company, not being the premises licence holder and not having itself made a mistake, would come to the magistrates' court to ask that some other company should have the latter's name added does not make sense.
(2) The court may add or substitute a party only if
(a) the relevant limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.
(3) The addition or substitution of a party is necessary only if the court is satisfied that
(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
"technicality is always distasteful when it appears to contradict the merits of a case, the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime, a certain degree of formality is not out of place".
While in the circumstances of the case now before the court the state is not exercising its coercive power to put a citizen on trial for a serious crime, the coercive power of the state has been exercised to regulate those engaged in businesses involving the sale of alcohol, a context in which significant public interest factors are in play. Unlike the position in litigation in civil proceedings considered in Adelson and the other cases on the CPR and RSC, the public law regulation of such areas of business and the licensing requirements affect third parties and the wider public interest. Parliament has made provision specifying who can appeal against a licensing decision and the time in which appeals against such a decision must be commenced. The Administrative Court has taken a strict approach to the 21 day statutory time limit for lodging appeals against licensing decisions. In Stockton on Tees BC v Latif  EWHC 228 (Admin) it held that there is no jurisdiction to extend the statutory time limit. It would, to say the least, be curious to achieve such an extension by construing section 123 in the way for which Mr Bromley-Martin contends.
Lord Justice Simon:
Sir Robin Jacob:
"(2) An appeal may be made against that decision [i.e. a review of a premises licence] by:
(a) the chief officer of police
(b) the holder of the premises licence, or
(c) any other person who made relevant representations ."
It is clear that unless you are one of these persons you cannot appeal hardly a surprising conclusion. Outsiders cannot appeal.
"(2) An appeal must be commenced by notice of appeal given by the appellant within the period of 21 days beginning with the day on which the appellant was notified by the licensing authority of the decision appealed against."
There is no provision for extension of this time period.
"COMPLAINANT FL Trading Limited [address of the solicitor given]"
"TAKE NOTICE that the Complainant, the premises licence holder of the premises licence for the premises "Essence " [address given] intends to appeal . against the decision of the Royal Borough of Kingston upon Thames of 10th January 2014 (received on 13 January 2013) revoking the premises licence "
Grounds of Appeal
1. The respondent failed to take into account and have proper regard to the evidence submitted by the appellant."