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

Section 193B(1) of the Licensing Act 1964 gives licensing justices a limited power to award costs on the hearing of an application relating to licensed premises. The expression person opposing the application refers to opposition at that hearing, rather than merely giving prior notice of an intention to oppose. Accordingly, where an objector withdraws before the application is heard, the justices have no jurisdiction to award costs against that objector. The same construction applies where the applicant withdraws before the hearing. Procedural rules concerning notices of intention may support the statutory construction, but cannot control the meaning of the primary legislation.

Interested parties applied for a special hours certificate under section 77 of the Licensing Act 1964. Luminar Leisure Ltd had notified the parties and the clerk of its intention to oppose, but withdrew its objection shortly before the adjourned hearing. Luminar attended only to contest a proposed costs order.

The licensing justices considered that a person who had lodged an objection remained a person opposing the application for the purposes of section 193B(1), and awarded costs. Collins J quashed that decision. The issue before the Court of Appeal was whether costs could be awarded when the objection had been withdrawn before the application was heard.

1. Appeal dismissed. The Court of Appeal unanimously upheld Collins J's conclusion that the licensing justices had no power to award costs.
2. Section 193B(1) of the Licensing Act 1964 confers a limited jurisdiction. Its language links the costs power to the hearing of an application and to a person opposing the application at that hearing.
3. The notice requirements in rules 3 and 3A of the Licensing Special Hours Certificate Rules 1982 distinguish between an intention to apply and an intention to oppose. They support the conclusion that actual opposition takes place at the hearing, although the rules cannot determine the construction of the Act.
4. The position should operate consistently for applicants and objectors. If an applicant withdrew before the hearing, an objector could not recover costs because there would be no hearing of the application. The same principle applied to Luminar's withdrawal.
5. The adjournment did not mean that the hearing had begun on the earlier date. The relevant hearing took place on 12 October, when there was no person opposing the application.
6. Neuberger J added that licensing proceedings should not necessarily be approached in the same way as ordinary civil proceedings, referring to R v Crown Court of Stafford ex parte Wilf Gilbert (Staffs) Ltd [1999] 2 All ER 955.

Permission to appeal to the House of Lords was refused. The appellants were ordered to pay the respondents' costs of the appeal, subject to detailed assessment.

• Court of Appeal (Civil Division): Appeal from Collins J dismissed. The Court held that costs could not be awarded under section 193B(1) where the objection had been withdrawn before the application was heard.
• Administrative Court, Queen's Bench Division: Collins J quashed the licensing justices' costs decision.