Essence Bars (London) Ltd (t/a Essence), R (on the application of) v Wimbledon Magistrates' Court & Anor

A notice of appeal in magistrates’ court proceedings may be corrected where the intended appellant is before the court but has been misnamed or misdescribed. A mistake as to identity cannot be cured by substituting a different legal person after the statutory time limit. Section 123 of the Magistrates’ Court Act 1980 applies to licensing appeals, but must be construed narrowly. It cannot bypass statutory standing or the 21-day appeal period. The court must determine objectively whether the document identifies the correct appellant and whether the respondent was in no reasonable doubt about that identity.

The appellant’s premises licence for a nightclub was revoked following a summary review under the Licensing Act 2003. A notice of appeal by way of complaint named FL Trading Ltd, although Essence Bars (London) Ltd was the premises licence holder and the only company with standing under Schedule 5. The District Judge held that section 123 of the Magistrates’ Court Act 1980 could not permit substitution after the 21-day period. Wilkie J refused permission for judicial review, holding that the District Judge was bound by Divisional Court authority: [2014] EWHC 4334 (Admin). The central issue was whether the notice contained a curable misdescription or an incurable mistake as to the identity of the appellant.

Beatson LJ delivered the leading judgment, with Simon LJ agreeing. Sir Robin Jacob LJ concurred in allowing the appeal but differed on the need for remission.

1. Outcome. The appeal was allowed. The District Judge’s decision was set aside and the matter was remitted to the Magistrates’ Court for redetermination.
2. Appeals under the Licensing Act 2003 are dealt with under the provisions of the Magistrates’ Court Act 1980 concerning civil jurisdiction and procedure. Section 123 therefore applies to defects in an appeal by way of complaint. Its scope is nevertheless restricted. It cannot be construed so broadly that statutory standing and the 21-day appeal period become ineffective.
3. The court distinguished a mistake as to identity from a mistake as to name or description. If the wrong legal person is before the court, section 123 cannot be used to substitute the person who should have appealed. If the intended legal person is before the court but is misnamed or misdescribed, correction may be possible. The expression mistake as to name should receive a generous interpretation, provided there is no reasonable doubt about the person intended.
4. After the statutory period has expired, the relevant inquiry is whether there was no mistake as to identity and whether the respondent and other relevant parties were not in any reasonable doubt about the appellant’s identity. The inquiry is objective and turns on the notice, its context and the material properly before the Magistrates’ Court. The court relied on the distinction discussed in Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701, the Divisional Court authorities on section 123, and the jurisdictional distinction approved in R v Clarke [2008] UKHL 8. Fernandez v Broad was distinguishable because it concerned surplus wording where jurisdiction already existed.
5. The lower courts erred by treating the existence of two corporate entities as conclusive of a mistake of identity and by failing to consider whether the notice described the appellant by reference to its capacity as premises licence holder. The Magistrates’ Court must decide whether the notice misdescribed the licence holder or identified FL, and, if it was a misdescription, whether the licensing authority was in no reasonable doubt about the identity of the appellant.
6. Jacob LJ considered that the notice, construed objectively, identified Essence from the outset and required no amendment or remission. That reasoning was not the majority basis for the order.

• Court of Appeal (Civil Division): appeal allowed; the District Judge’s decision was set aside and the matter was remitted to the Magistrates’ Court: [2016] EWCA Civ 63 .
• High Court of Justice, Queen’s Bench Division, Administrative Court: Wilkie J refused permission for judicial review of the District Judge’s decision and held that the court was bound by the Divisional Court authorities: [2014] EWHC 4334 (Admin) .