News: Magistrate Court Appeals: Another Nail In The Candy Bar Coffin?

  • Date: 01/12/2008
  • Author/Solicitor: Piers Warne

As you may be aware one of the more controversial parts of the Licensing Act 2003 relates to who can appear in their own right at an Appeal against the decision of the Licensing Authority.

Who can join an appeal if an applicant appeals a decision of the Licensing Authority? The "Candy Bar" decision from District Judge Purdy in the Westminster Magistrates Court was one of the first decisions on the matter and permitted any party who made representations at the original hearing to appear in their own right as a respondent to an Appeal, however there is now another decision that supports the opposite view.

District Judge Cooper in the Ipswich Magistrates Court has said when an applicant appeals against the decision of the Licensing Sub-Committee it is the Licensing Committee only who are respondents to the Appeal.

District Judge Cooper considered that, when dealing with matters by way of complaint, the Court only has the powers provided by the particular enactment under which the Appeal is made. He said that the Magistrates Court had no inherent jurisdiction to allow interested parties to be joined to appeals because they had not been included in the relevant part of the statute as respondents.

District Judge Cooper then said that, whilst on the face of his decision it would appear that the interests of those parties who could not be able to appear at a hearing in their own right (albeit that this is limited to his Court only) had been restricted, the reality is that it is for the Licensing Authority to bear in mind the opinions of the interested parties in dealing with the Appeal. Therefore it would often be incumbent upon Local Authorities to call interested parties as witnesses to give evidence to support the decision of the Licensing Authority. In addition, even if they were not called as live witnesses, their written representations would probably need to be produced by the Licensing Authority as evidence.

District Judge Cooper did recognise that the Local Authorities should have the right if they felt that their original decision was wrong in law or in fact, to compromise the Appeal. Clearly the Authorities should have some regard to the concerns and rights of the interested parties in making such a decision. The "spectre" of maladministration, were it to arise with the Licensing Authority engaging in "back stairs skull duggery" with the applicant, would be subject to complaint to the relevant Ombudsman and/or Judicial Review and therefore District Judge Cooper was satisfied that parties' rights were protected even if the law (as it does in this case) did not permit them to become a party in their own right.

Whether the pendulum swings further in favour of the Tandridge and Ipswich's Decisions remains to be seen and it will take a High Court, with the greatest of respect to the District Judge Cooper, to finally decide the issue. However, it is another decision that will need to be weighed in the balance if either you are thinking of attempting to join an Appeal or face an application from another party to join an Appeal or you are involved in.