Luminar Leisure Ltd & Anor, R (on the application of) v Licensing Justices For North West Essex & Ors

At the permission stage, a statutory construction argument need only have a realistic prospect of success. A provision may be arguable where its wording is grammatically capable of bearing the proposed meaning, even if the lower court considered it clear. Public ramifications may justify permission where the prospects are no more than even. The merits of the construction and the proper exercise of any resulting discretion remain for the substantive appeal.

Applicants obtained a special hours certificate from licensing justices after an objector withdrew before the contested hearing. The justices awarded the applicants their costs against the objector. On judicial review, Collins J quashed the award, holding that section 193B(1) of the Licensing Act 1964 gave a limited power applying only where opposition continued to the hearing.

The applicants sought permission to appeal. The central issue was whether the statutory reference to a person opposing an application could include a person who had acted as an opponent but withdrew before the hearing.

Permission to appeal granted. The judgment was concerned with permission, not the final construction of section 193B(1) of the Licensing Act 1964.

1. Collins J had treated the statutory language as clear and had concluded that the licensing justices lacked jurisdiction to award costs unless opposition was pursued by attendance at the hearing.
2. Lord Justice Sedley held that the phrase referring to a person opposing the application was not, as a matter of grammar, inexorably limited to a person appearing at the hearing. It was capable of including a person who had cast himself in the role of opponent but withdrew at the last minute.
3. That argument had a realistic prospect of success. Its force could also be assessed against the general approach of the law to costs following judicial proceedings. These matters justified granting permission without determining the proper construction.
4. The court recognised that the proposed construction could potentially affect both strategic objectors who withdrew after imposing substantial costs and genuine local objectors who lacked the resources to attend. If the construction ultimately succeeded, the justices’ discretion to make a costs order would require consideration. Any guidance on that discretion was left for the substantive appeal.

The public ramifications of the statutory question would themselves have supported permission even if the prospects had been no more than even.

• Court of Appeal (Civil Division): Permission to appeal granted.
• High Court, Queen’s Bench Division, Administrative Court: Collins J quashed the licensing justices’ costs award for want of jurisdiction.