Hammersmith and Fulham, R (on the application of) v Food City Express Ltd.

Where a party fails to attend a licensing hearing, the licensing authority may proceed in its absence under regulation 20 of the Licensing Act 2003 (Hearings) Regulations 2005, provided it considers whether an adjournment is necessary in the public interest. An appellate magistrates’ court may rehear the matter or remit it under section 181 of the Licensing Act 2003. It must not remit merely because it would have exercised the licensing authority’s discretion differently. The statutory appeal may protect the absent party’s Article 6 rights, including where the original hearing proceeded after a short delay, provided the appeal is effective and Convention-compliant. A decision to remit based on the appellate judge’s personal view that the authority should have waited longer is an unlawful exercise of discretion.

Food City Express Ltd applied to vary its premises licence to permit 24-hour alcohol sales. The licensing sub-committee heard the application in the company’s absence after waiting ten minutes, and granted only a limited variation. On appeal, District Judge Philips accepted that the sub-committee had acted lawfully but considered the ten-minute wait insufficient in light of local traffic and transport difficulties. He remitted the matter to the sub-committee for a further oral inter partes hearing and considered that Article 6 required a longer wait.

The borough appealed by way of case stated under section 111 of the Magistrates' Court Act 1980. The central issues were the magistrates’ power and discretion under section 181 of the Licensing Act 2003, and the effect of Article 6.

1. The appeal was allowed. The matter was referred back to the Magistrates’ Court to hear the appeal originally before the district judge.

2. Regulation 20 of the Licensing Act 2003 (Hearings) Regulations 2005 permitted the sub-committee to hold the hearing in the applicant’s absence once the applicant had failed to attend. Regulation 20(2) also imposed a duty to consider whether an adjournment was necessary in the public interest. The sub-committee’s decision letter, read with the legal advice it received, showed that it had considered that issue.

3. Section 181 of the Licensing Act 2003 gave the Magistrates’ Court power to dismiss the appeal, substitute another decision, or remit the case. It also permitted a rehearing in which evidence could be considered afresh. The Court of Appeal’s decision in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 supported that understanding of a licensing appeal.

4. The district judge’s error was not lack of jurisdiction. It was an unlawful exercise of discretion. Having accepted that the sub-committee had acted lawfully, he could not substitute his own view that ten minutes was too short and thereby require the sub-committee to rehear the application. He should have proceeded with the appeal in the ordinary course.

5. The Article 6 question did not require determination in the abstract. The applicant’s rights were protected by an effective appeal to the Magistrates’ Court, at which it could present evidence and have the merits determined. On that basis, Article 6 did not require a longer wait by the licensing sub-committee in the circumstances of this case.

1. Magistrates’ Court: District Judge Philips remitted the licensing appeal to the sub-committee for a further oral inter partes hearing after holding that the ten-minute wait was insufficient and that Article 6 required a longer period.
2. High Court (Administrative Court): The appeal by way of case stated was allowed. The matter was referred back to the Magistrates’ Court for the original appeal to be heard.