Gonis & Anor, R (on the application of) v Westminster City Council

A procedural requirement in a statutory scheme does not automatically make proceedings a nullity when breached. The court must determine the legislative purpose and intended consequence. In closure-order proceedings, proper service on persons within the mandatory statutory categories is required. Failure to notify a person served under a discretionary provision does not invalidate proceedings where the mandatory service requirements were met. A summons served by ordinary post was effective under rule 99 of the Magistrates Court Rules 1981.

The claimants appealed by way of case stated from Bow Street Magistrates’ Court’s decision to make a closure order under section 4(6) of the City of Westminster Act 1996 concerning premises operated as an unlicensed sex establishment.

The appeal concerned the timeliness of the complaint, service of the summons on one claimant, and notice of the proceedings to Porterre SA, identified as the proprietor. The central issues were whether any procedural failure invalidated the proceedings or required an adjournment.

1. The complaint was made in time. The district judge was entitled to conclude that it had been made on 28 February 2003, within six months after service of the closure notice, and was not required to adjourn for further record research.

2. Service of the summons was effective. Rule 99(1)(c) of the Magistrates Court Rules 1981 permitted service by post, and rule 99(5) made that service as effective as service in the manner required by another enactment.

3. Section 4(5)(a) of the City of Westminster Act 1996 required proper service of the closure notice on persons within the mandatory categories in section 3(2)(a). It did not require proper service on a person within the discretionary category in section 3(2)(b).

4. Applying the guidance in Westminster City Council v Mendoza [2001] EWCA Civ 216, breach of the requirement to notify a person served under section 3(2)(b) did not make the proceedings a nullity where the mandatory service requirements had been fulfilled. The district judge was entitled not to adjourn.

5. The claimants could not complain on behalf of Porterre SA, which was not a party. The application was dismissed, with costs subject to detailed assessment if not agreed.

• High Court (Administrative Court): The application by way of case stated from Bow Street Magistrates’ Court was dismissed.