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Losing Your Mojoe

December 3, 2013
Licensing

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p>A bar known for appearing in The Only Way is Essex has just lost a battle over the imposition of restrictions on its closing hours. Gary Grant explains why.?

On 7 November 2013, following a long-running licensing saga, District Judge Lucie finally rejected the appeal of Funky Mojoe, a well-known Essex nightclub popularised in ‘The Only Way is Essex’, against the decision of the London Borough of Redbridge to drastically cut its licensable hours to ensure it could no longer operate past midnight.?

The case is of interest for two reasons. Firstly, the extensive and possibly unprecedented history of litigation involving the venue over the past five years, ever since it opened next door to an apartment block for retired and elderly persons aged from 60 to 100 years old. Secondly, for the series of legal rulings made by the District Judge which, although not binding on other courts, may well be of wider interest to licensing practitioners.?

Since the club opened its doors in 2008, proceedings involving Funky Mojoe have included three licence review hearings, two compromised Magistrates? Court appeals and two sets of High Court proceedings (to date). However, the recent decision of District Judge Lucie, following a five-day appeal hearing at Romford Magistrates’ Court, represents the first time a court has considered the substantive merits of the case.?

The most recent review was launched by the licensing authority in January 2013 following a series of incidents of crime and disorder including street battles involving Funky Mojoe?s customers. In one instance a car deliberately ploughed through a crowd of people outside the club. In addition to the crime and disorder, the vulnerable residents living nearby had long complained of the serious and prolonged public nuisance caused by the operation of the club into the early hours of the morning, which severely impacted on the quality of their lives.

The review hearing
The review hearing was listed before the licensing sub-committee in April 2013 and heard over two days. At the start of that hearing, lawyers for the venue made a series of legal applications to the council seeking to derail, or at least delay, the review proceedings. These included:?

  • An application for an adjournment on the basis that although certain papers were served three weeks before the hearing date, the instructed lawyer could not be expected to consider them as he was about to embark on a holiday
  • A submission that the council had no jurisdiction to consider the review application since the formal Notice advertising the review was defective because it failed to comply with the requirements of the Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005 (‘the Regulations’) in that: (a) the ‘Grounds’ for the review were not set out in the Notice, which only referred to the licensing objectives engaged; (b) three lines of the Notice were typed in 14-font rather than the required 16-font; (c) the Notice referred to two separate Premises Licences
  • Since two separate premises licences existed for the premises, but the club only operated under one of them, it was impermissible to also review the second ‘shadow licence’?

 

The sub-committee rejected all these submissions. The lawyer then acting for the club declined to participate any further in the hearing and left the building. These legal submissions were renewed on appeal before the Magistrates? Court at a preliminary hearing (the High Court having previously declined to rule on these issues on the basis that the Magistrates? Court was the proper tribunal to consider these points of law). A summary of the District Judge’s rulings now follows:

Adjournment
It was argued by the club that the refusal to adjourn the review proceedings to allow their lawyer to consider the additional paperwork was a breach of natural justice and deprived the club of its right to a fair hearing. The District Judge rejected this submission and ruled:?

  • A lawyer?s holiday commitments were not a good reason to adjourn a review hearing to permit him to consider evidence served in good time. The evidence could easily have been dealt with in short order. The lawyer could (and arguably should) have delegated the task of considering the evidence to other lawyers in his firm or instructed external counsel if he was unable to do the necessary work himself
  • The sub-committee gave considerable thought to the issue, considered all of the relevant facts, weighed them appropriately and gave a reasoned decision why they refused the application for an adjournment in the overall interests of justice. They were fully entitled to come to the reasonable decision they did and the appeal court would not interfere in those circumstances
  • In any event, since the Magistrates? Court appeal is a ‘de novo’ (i.e. fresh) hearing this would cure any potential injustice as the club was able to fully argue its case calling whatever evidence it considered relevant to its appeal.
  • Further, it would be wrong in principle for the Magistrates? Court to give less weight to the decision of the sub-committee because a licence holder chose not to participate in that hearing.?


Defective Notice
The District Judge accepted that the notice advertising the review was defective in two particulars:?

1. It was insufficient for the notice merely to cite the licensing objectives. A summary of the grounds for the review is required by the regulations (albeit a necessarily short summary).

2. The font size error was clearly in breach of the regulations.?

However and importantly, the court accepted the submissions of the council that non-compliance with regulations is not the end of the matter. Following the leading decision of the House of Lords in?R v Soneji?[2006] 1 AC 340 (and associated cases), when deciding whether the non-compliance with the statutory requirements deprived the council of jurisdiction to consider the review, and/or rendered any decision a nullity, the court is required to look at the consequences of that non-compliance. What did Parliament intend should happen in these circumstances? The court accepted the council?s submissions that the court must look at the following factors among others (derived from the authorities) :?

  • Was there substantial performance of the statutory requirement? In this case there was ? the review?was?fully advertised, albeit with errors.
  • Was there any real, rather than hypothetical, prejudice or injustice? In this case there was none ? indeed the lack of detail on the Notice was likely to have worked to the club?s benefit, if it made any difference at all. Similarly there was not a shred of evidence that a person who could read a Notice written in 16-font could not also read the three lines mistakenly written in 14-font.
  • Where does the public interest lie? Reviews are a key protection for the public. The judge held that there was a strong public interest in this case being dealt with on its substantive merits without further delays.
  • How would the overall interests of justice be served? In the absence of any evidence of substantial prejudice or injustice to the licence holder, the non-compliance did not come anywhere near the degree or status that would go to the jurisdiction on the committee. ?

 

The court therefore rejected the club?s submissions and held that, despite the defects in the notice, the council did indeed have jurisdiction to consider the review application and make its decision. The court also found that on the facts of this case it was perfectly proper to review both the premises licences relating to the club and include them both in the same advertising notice.

Comment
There have been a series of recent Magistrates? cases that have gone the other way and held that procedural defects in licensing reviews are fatal to those proceedings (see the?Mu Mu?and?Tinseltown?cases). Each case will of course turn on its own facts, but the decision in?Funky Mojoewill be welcomed by licensing authorities as an example of where a court can be persuaded to elevate substance over form. It is unnecessary to state that every effort must be made by authorities to fully comply with regulations, but this case demonstrates that not every slip-up inevitably results in a disaster.

Conclusion
On the substantive appeal, the court held that although incidents of crime and disorder had decreased in the interim period between the review hearing and the appeal (a not uncommon phenomenon when a venue is on its best behaviour), the public nuisance caused by the operation of Funky Mojoe was severe and was continuing right up to the appeal hearing. The compelling evidence of the residents and council officers was to be preferred to the expert evidence called by the club.?

The council?s decision to reduce the club?s licensable hours to 23:30hrs at the weekend (from 02:30hrs) and 23:00hrs during the week was the correct one and the appeal was dismissed. However, given the cut in hours, the court no longer felt that a suspension of the licence was necessary. The club was also ordered to pay the council?s costs of defending the appeal in the sum of ?72,000. The Licence Holder has applied to the High Court for permission to apply for judicial review.

Gary Grant?of?Francis Taylor Building?appeared for the London Borough of Redbridge, instructed by Graham Keating of Legal Services and Alan Drake, the Head of Community Protection and Enforcement.

You can submit your comments on this case at RHE’s UK Licensing forum.