Essence Bars (London) Ltd (t/a Essence) v Wimbledon Magistrates Court & Anor

An appeal under Schedule 5 to the Licensing Act 2003 must be brought by a legal person who has statutory standing, including the premises licence holder. Naming a different, existing legal person is a mistake as to identity, not a mere misnomer. Section 123 of the Magistrates’ Courts Act 1980 is a restricted power dealing with defects in process. It cannot be used, after expiry of the statutory time limit, to substitute a new appellant for the person who commenced the appeal. The magistrates’ court therefore lacks jurisdiction over an appeal brought by a person without standing.

The claimant was the premises licence holder for licensed premises in Kingston upon Thames. Following a summary review, the licensing authority revoked the licence and notified the claimant of a 21-day appeal period under Schedule 5 to the Licensing Act 2003.

A notice of appeal was instead lodged in the name of FL Trading Limited, a separate company which was not the licence holder. After the time limit expired, the claimant applied to substitute itself for FL. The District Judge refused the amendment and dismissed the statutory appeal for want of jurisdiction. The claimant sought judicial review of that decision.

1. Judicial review refused. Permission to bring the claim was refused.

2. An appeal under Schedule 5 to the Licensing Act 2003 must be brought by a legal person. That person must also possess the relevant statutory standing. For a summary review, one qualifying appellant is the holder of the premises licence.

3. The notice of appeal named FL Trading Limited as the complainant and proposed appellant. FL was a separate legal person from the claimant and was not the premises licence holder. It was therefore a person before the court without standing, and the appeal was fundamentally flawed.

4. The mistake was one of identity, rather than a mistake in the name of the correct appellant. Substituting the claimant for FL would have introduced a different legal person as appellant after the 21-day time limit had expired.

5. Section 123 of the Magistrates’ Courts Act 1980 was the only available power to amend the complaint or notice of appeal. The authorities concerning that provision established that it could not be used to amend process so as to charge or bring proceedings against a different legal person out of time. The District Judge was bound to refuse the substitution and had no jurisdiction to hear FL’s appeal.

The judgment itself states that the District Judge (Magistrates’ Court) dismissed the statutory appeal on 3 November 2014 after refusing substitution of the claimant for FL Trading Limited. The Administrative Court refused permission for judicial review.