White v Lynch

Music is incidental to non-regulated activities only where its nature and volume do not make entertainment, dancing or listening the principal activity. The court may consider whether the music encourages dancing and whether ordinary conversation remains possible.

An undertaking preventing amplified music after a specified time may prohibit all music played through a sound system, depending on its wording and the parties’ correspondence. A contempt breach requires a knowing and deliberate act constituting the breach, but not an intention to breach the undertaking. A permanent injunction may impose an objective sound limit where the evidence shows that incidental music would remain below that limit.

The claimant, the freehold owner of premises above and adjoining a restaurant, sought permanent injunctive relief requiring the defendant to comply with planning, licensing and lease restrictions concerning customer departure times and amplified or live music. The claimant also sought the defendant’s committal for contempt for allegedly breaching an undertaking given in earlier interim proceedings.

The principal issues were whether music played after 23.00 was incidental music under the Licensing Act 2003, how the undertaking should be construed, whether contempt was established, whether rent had been waived on a daily or quarterly basis, and what permanent relief was appropriate.

1. Committal and statutory characterisation of the music. The music played during the early part of the evening, when customers were eating and conversing, was incidental to non-regulated activities. The later music was played to entertain customers, encouraged dancing and made ordinary conversation difficult. It was therefore regulated entertainment within Schedule 1 to the Licensing Act 2003, rather than incidental music.
2. Construction of the undertaking. The undertaking referred to no amplified or live music after 23.00. Although the court initially considered that an interpretation permitting incidental music might accord better with commercial expectations, the correspondence showed that the parties had intended to prohibit all music after that time. In any event, the music actually played was not incidental and breached the undertaking.
3. Contempt. Applying Miller v Scorey [1996] 1 WLR 1122, it was unnecessary to prove an intention to breach the undertaking. It was sufficient that the defendant knowingly and deliberately performed the acts constituting the breach. Breaches were established on the relevant dates, subject to the stated exceptions. However, the defendant had relied on legal advice and there had been no noise complaints during 2011. Imprisonment and a fine were therefore inappropriate, and the breaches were taken into account on costs.
4. Permanent relief. The court would not impose an arbitrary limit that unlawfully restricted music which the statute permitted. It could, however, impose an objective limit where the evidence showed that incidental music would not exceed it. A permanent injunction was granted requiring a limiter to ensure that sound measured at the specified position did not exceed 85 dBA Leq over one minute, subject to the other conditions sought and permission to apply to vary the limit on 21 days’ notice.
5. No order was made requiring customers to leave by midnight. The claimant’s application to commit succeeded technically, but no costs were awarded on it. Further costs were reserved for determination or agreement.

High Court (Queen’s Bench Division): an interim injunction was granted by Mitting J on 17 December 2010. A consent order dated 25 January 2011 discharged that order while preserving specified undertakings. Edwards-Stuart J granted permanent injunctive relief, determined the committal application, and reserved certain costs issues.