Raphael (t/a Orleans), R (on the application of) v Highbury Corner Magistrates Court & Anor (Rev 1)

Under the Licensing Act 2003, a later resolution by a licensing committee can constitute a fresh delegation of all licensing functions, including licence reviews, where the relevant delegation provisions are then in force. An earlier defective delegation does not make the later decision a nullity.

A challenge to an officer’s screening of representations does not justify quashing unless there is a case that an irrelevant, frivolous or vexatious representation affected the decision. The discretion to refuse relief for an ultra vires defect remains narrow and exceptional, but may apply where the defect is purely formal and causes no demonstrated substantive unfairness. An undifferentiated judicial review costs order excludes costs of opposing permission in open court.

The appellant operated a nightclub with a 24-hour licence. Following a police application for review and a supporting public representation, the London Borough of Islington’s licensing sub-committee reduced the permitted hours on 28 July 2008. Highbury Corner Magistrates Court dismissed the appellant’s appeal on 5 January 2009. The Administrative Court, presided over by HH Judge Mackie QC, dismissed the judicial review claim on 10 June 2010.

The appeal concerned whether the sub-committee had valid delegated authority, whether a licensing officer could decide that the public representation was not frivolous or vexatious under the Licensing Act 2003, and whether the costs order included costs relating to the permission hearing.

1. Substantive appeal dismissed. The licensing sub-committee’s decision to reduce the club’s hours was not a nullity.
2. Although the original delegation resolution was made before sections 7 and 10 of the Licensing Act 2003 came into force, the licensing committee passed a fresh resolution on 22 May 2008 establishing and empowering sub-committees for the future discharge of licensing functions. Read in its statutory context, and particularly against the reference to all licensing functions, that resolution delegated licence-review functions under sections 51 and 52 by necessary implication. It was a new delegation, not a ratification of the earlier resolution. [50]-[53]
3. The statutory requirement to consider only relevant representations, and to disregard frivolous or vexatious representations, enabled the authority to conduct reviews efficiently. No argument or evidence showed that the representation was frivolous, vexatious or otherwise irrelevant, or that the sub-committee had relied on material which it should have excluded. There was therefore no sufficient legal basis for treating the review decision as a nullity, even assuming that the officer lacked authority. [55]-[56]
4. The discretion to refuse relief against an ultra vires decision is narrow and exceptional, as explained in Berkeley v Secretary of State for the Environment [2001] AC 603. It was appropriate here because the alleged defect was an arid technicality going to form rather than substance, analogous to the defect in R (Reckless) v Kent Police Authority [2010] EWCA Civ 1277. [57]
5. The court left the arguments on section 101 of the Local Government Act 1972 and section 13 of the Interpretation Act 1978 for a case in which they required determination. Applying Davey v Aylesbury Vale DC [2007] EWCA Civ 1166, the undifferentiated costs order was construed as excluding the Council’s costs of preparing for and attending the permission hearing. [58]-[61]

1. Court of Appeal (Civil Division): Dismissed the appeal against the Administrative Court’s order. [2011] EWCA Civ 462
2. Administrative Court: HH Judge Mackie QC dismissed the judicial review claim on 10 June 2010.
3. Highbury Corner Magistrates Court: Dismissed the appellant’s appeal from the licensing sub-committee’s decision on 5 January 2009.
4. London Borough of Islington: The licensing sub-committee reduced the nightclub’s permitted hours on 28 July 2008.