Norwich Crown Court & Ors v Luminar Leisure

A special hours certificate cannot lawfully be used to extend licensing hours for premises that are, in substance, a late-night drinking venue. The statutory inquiry concerns the licensee’s bona fide use or intended use, not whether every customer uses the facilities. But the inquiry necessarily includes the licensee’s subjective intention and objective expectation that customers will resort primarily for music and dancing and substantial refreshment, with liquor ancillary. Some drink-only customers, or periods when not every facility is simultaneously available, do not by themselves defeat the application. The assessment is made across the whole day’s licensing hours. Facilities that are merely available, while the extra hour is expected to attract customers principally for drinking, are insufficient.

A manager of Lloyd’s No 1 Cafe-Bar appealed to the Norwich Crown Court against the refusal of licensing justices to grant a special hours certificate under the Licensing Act 1964. The Crown Court allowed the appeal and granted the certificate. Luminar Leisure, a trade competitor and objector, successfully sought judicial review. Stanley Burnton J quashed the Crown Court’s order and remitted the matter for a rehearing.

The Court of Appeal considered whether the statutory conditions depended merely on the licensee providing suitable facilities, or whether they also required a bona fide purpose and expectation that customers would use the premises primarily for music, dancing and substantial refreshment, with the sale of liquor ancillary.

Appeal dismissed. Laws LJ delivered the leading judgment, with Longmore LJ and Peter Gibson LJ agreeing. The Administrative Court had correctly quashed the Crown Court’s decision.

1. Under section 77 of the Licensing Act 1964, “use” and “intended use” refer to use or intended use by the licensee, rather than direct use of the facilities by customers. That distinction does not make customer behaviour irrelevant. The licensee could not act bona fide unless the licensee subjectively intended, and objectively expected, customers to resort to the premises primarily for the statutory purposes.
2. The fact that some customers are interested only in buying drink does not itself invalidate a certificate. Nor is it necessary for music, dancing and substantial refreshment to be available simultaneously at every point during the permitted hours. Those qualifications do not permit the statutory facilities to be merely nominal.
3. Whether the sale of liquor is ancillary must be assessed by reference to the whole day’s licensing hours, because the special hours certificate replaces the ordinary on-licence as the authority for the sale of liquor. It is insufficient that liquor is ancillary during other parts of the day if, during the additional hour, the licensee expects customers to resort primarily only to drink.
4. The power under section 77 cannot be used to license a “late night pub”. The Crown Court had focused only on customers who used the food, music or dancing facilities. On its own findings, the premises were predominantly a drinking venue after the relevant evening period, making the statutory preconditions difficult, perhaps impossible, to satisfy.

The Crown Court’s decision was accordingly quashed. Because no respondent’s notice sought a mandatory order requiring dismissal of the appeal, the parties were given a further opportunity to address the proper form of relief.

• Court of Appeal (Civil Division): On 7 April 2004, the court upheld the Administrative Court’s decision and quashed the Norwich Crown Court’s grant of the special hours certificate. The parties were invited to make further submissions on the appropriate relief. [2004] EWCA Civ 281
• Administrative Court: On 3 October 2003, Stanley Burnton J granted judicial review, quashed the Norwich Crown Court’s order and remitted the appeal for rehearing.
• Norwich Crown Court: On 19 December 2002, the court allowed the appeal against the licensing justices’ refusal and granted the special hours certificate.
• Licensing justices: On 10 May 2002, the justices refused the application for a special hours certificate.