Harpers Leisure International Ltd, R (on the application of) v Chief Constable of Surrey & Anor [2009] EWHC 2160 (Admin)

[2009] EWHC 2160 (Admin)

Case No CO/12296/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 13th July 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE CHARLES

Between

THE QUEEN ON THE APPLICATION OF HARPERS LEISURE INTERNATIONAL LIMITEDClaimant

Between

CHIEF CONSTABLE OF SURREYDefendant

GUILDFORD BOROUGH COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

Mr K de Haan QC (instructed by Jeffrey Green Russell) appeared for Claimant

Mr P Kolvin QC (instructed by Guildford Borough Council) appeared for Second Defendant

for The First Defendant did not attend and was not represented

J U D G M E N T

[1]MR JUSTICE CHARLES: This is a challenge brought by way of judicial review relating to a decision of a sub-committee of a licensing authority concerning a premises licence. The claimant company and its managing director are the claimants. The defendants are the Chief Constable of Surrey and the Guildford Borough Council.

[2]The general background is that under the Licensing Act 2003, a review of a premises licence granted to the claimant was instigated by the police. The second defendant, the Guildford Borough Council, represent the licensing authority.

[3]The claim form raised a number of issues. Included within them was a challenge to the decision of the police to bring the review before the relevant sub-committee. There was also a challenge to the decision of the sub-committee to the effect that it did not have power to stay the proceedings for review that were brought before it. There were also other grounds, including a challenge to the decision relating to a refusal to adjourn on the basis that it was asserted that information had been provided very late in the day, and that the relief being sought by the police was not made clear until very late in the day.

[4]On the papers, Lloyd Jones J refused permission. In respect of the first ground, namely the challenge to the decision of the police to instigate the process. He was of the view that that was unarguable. As was their right, the claimants renewed their application for permission to a hearing in court. On that occasion, Burton J granted permission to move by way of judicial review, but did so on a limited basis. For present purposes, he did not give permission to the claimants to challenge the underlying decision of the police to instigate the review. He gave permission for review of the decision made by the sub-committee to refuse to stay the proceedings on the ground that they were an abuse of process, on the basis that the sub-committee were of the view that they did not have any such power. So full square within the permission is the question whether or not the sub-committee had power to stay an application for review brought before them on the basis that it is an abuse of process.

[5]The underlying basis of the argument, and thus its merits as put to the sub-committee, was to the effect that the police had failed to have proper consultation with the claimants, and in doing so had acted in breach of protocols which are available on the relevant website of the licensing authority.

[6]The argument before the sub-committee and the grounds for review set out the sequence of events and communications between, on the one hand, the claimants and on the other the police, leading up to the decision to bring the review. Additionally, there is complaint made as to the late delivery of evidence and a failure to specify what the police were inviting the sub-committee to do on the review.

[7]To my mind, it is not entirely clear whether Burton J had in mind that that second limb of the argument would be before the court, but it seems to me that nothing turns on this for present purposes. The initial point for me to consider is whether or not the sub-committee were correct in their conclusion that they did not have the relevant power.

[8]Before turning to examine that issue in a little more detail, to my mind it is relevant to note the following. Whether it is called a power to stay or a power to strike out, what it is said the sub-committee had power to do is to bring an end to the relevant process once and for all. One sees that, for example, in the notes to section 49 of the Supreme Court Act in the White Book and in a decision in the bundle before, Re Saluja

[2007] 2 All ER 905

relating to a decision by the General Medical Council in disciplinary proceedings. It is a decision of Goldring J, and the point I make appears at page 906 in the headnote and in paragraphs 44 and 45 of the judgment. I also pause to note that Goldring J proceeded on the basis that the principles applied in English criminal law fell to be applied in that case.

[9]So what was being sought by the claimants was a final and complete end to the process, and thus a decision from the sub-committee that they were not prepared to proceed further and they should decline to exercise their jurisdiction.

[10]At the heart of the arguments advanced by the claimants is an assertion that the police had acted unfairly towards them and in breach of a legitimate expectation that they had as to being consulted constructively about points being raised relating to the premises licence. That duty to act fairly falls to be considered against the background that the removal or modification of a premises licence can have very serious effects so far as the holder of that licence is concerned. With that, I have no quarrel. Nor do, as I understand it, the defendants in this case. The quarrel lies as to whether or not, as was alleged, the police did so act and, as I have already recorded, Lloyd Jones J formed the view that he considered it unarguable that the police had acted in this case in breach of their public law duties.

[11]I make this point at this stage because it seems to me that it demonstrates that the claimants, as a corporate and individual member of the public, has a right, well recognised in law, to challenge decisions of the relevant public body (here the police) and therefore have an avenue to the court to protect them from oppression, unfairness, and breach of legitimate expectation. The claimants here have been refused permission to mount that attack by the route of judicial review, but seek to argue essentially the same points in the context of an application to stay or strike out under the heading "abuse of process".

[12]It is common ground, in my judgment correctly, between the parties that the jurisdictional question is one which falls to be decided as a matter of statutory construction, because the licensing authority has no inherent powers as such but the relevant power can be conferred either expressly or by implication by the relevant statutory provisions.

[13]I therefore turn to look at the statutory scheme. It is a new one introduced by the Licensing Act 2003. Section 1(1) of the Act defines "licensable activities":

"(1) For the purposes of this Act the following are licensable activities -- (a) the sale by retail of alcohol, (b) the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club, (c) the provision of regulated entertainment, and (d) the provision of late night refreshment."

Section 3 defines "Licensing authorities", and that need not be set out. The most relevant sections in this context are as follows:

"4. General duties of licensing authorities (1) A licensing authority must carry out its functions under this Act ('licensing functions') with a view to promoting the licensing objectives. (2) The licensing objectives are -- (a) the prevention of crime and disorder; (b) public safety; (c) the prevention of public nuisance; and (d) the protection of children from harm. (3) In carrying out its licensing functions, a licensing authority must also have regard to -- (a) its licensing statement published under section 5, and (b) any guidance issued by the Secretary of State under section 182 . . . 6. Licensing committees (1) Each licensing authority must establish a licensing committee consisting of at least ten, but not more than fifteen, members of the authority . . . 7. Exercise and delegation of functions (1) All matters relating to the discharge by a licensing authority of its licensing functions are, by virtue of this subsection, referred to its licensing committee and, accordingly, that committee must discharge those functions on behalf of the authority . . . 9. Proceedings of licensing committee (1) A licensing committee may establish one or more sub-committees consisting of three members of the committee. (2) Regulations may make provision about -- (a) the proceedings of licensing committees and their sub-committees (including provision about the validity of proceedings and the quorum for meetings), (b) public access to the meetings of those committees and sub-committees, (c) the publicity to be given to those meetings, (d) the agendas and records to be produced in respect of those meetings, and (e) public access to such agendas and records and other information about those meetings. (3) Subject to any such regulations, each licensing committee may regulate its own procedure and that of its sub-committees . . . 10. Sub-delegation of functions by licensing committee etc (1) A licensing committee may arrange for the discharge of any functions exercisable by it -- (a) by a sub-committee established by it, or (b) subject to subsection (4), by an officer of the licensing authority . . . 13. Authorised persons, interested parties and responsible authorities . . . (3) 'Interested party' means any of the following -- (a) a person living in the vicinity of the premises, (b) a body representing persons who live in that vicinity, (c) a person involved in a business in that vicinity, (d) a body representing persons involved in such businesses. (4) 'Responsible authority' means any of the following -- (a) the chief officer of police for any police area in which the premises are situated, (b) the fire authority for any area in which the premises are situated, (c) the enforcing authority within the meaning given by section 18 of the Health and Safety at Work etc Act 1974 for any area in which the premises are situated, (d) the local planning authority within the meaning given by the Town and Country Planning Act 1990 (c.8) for any area in which the premises are situated, (e) the local authority by which statutory functions are exercisable in any area in which the premises are situated in relation to minimising or preventing the risk of pollution of the environment or of harm to human health, (f) a body which -- (i) represents those who, in relation to any such area, are responsible for, or interested in, matters relating to the protection of children from harm, and (ii) is recognised by the licensing authority for that area for the purposes of this section as being competent to advise it on such matters, (g) any licensing authority (other than the relevant licensing authority) in whose area part of the premises is situated, (h) in relation to a vessel . . . 18. Determination of application for premises licence (1) This section applies where the relevant licensing authority -- (a) receives an application for a premises licence made in accordance with section 17, and (b) is satisfied that the applicant has complied with any requirement imposed on him under subsection (5) of that section. (2) Subject to subsection (3), the authority must grant the licence in accordance with the application subject only to -- (a) such conditions as are consistent with the operating schedule accompanying the application, and (b) any conditions which must under section 19, 20 or 21 be included in the licence. (3) Where relevant representations are made, the authority must -- (a) hold a hearing to consider them, unless the authority, the applicant and each person who has made such representations agree that a hearing is unnecessary, and (b) having regard to the representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives . . . (6) For the purposes of this section, 'relevant representations' means representations which -- (a) are about the likely effect of the grant of the premises licence on the promotion of the licensing objectives, (b) meet the requirements of subsection (7), (c) if they relate to the identity of the person named in the application as the proposed premises supervisor, meet the requirements of subsection (9), and (d) are not excluded representations by virtue of section 32 (restriction on making representations following issue of provisional statement). (7) The requirements of this subsection are -- (a) that the representations were made by an interested party or responsible authority within the period prescribed under section 17(5)(c), (b) that they have not been withdrawn, and (c) in the case of representations made by an interested party (who is not also a responsible authority), that they are not, in the opinion of the relevant licensing authority, frivolous or vexatious."

[14]The sections dealing with review are sections 51 and 52, which state:

"51. Application for review of premises licence (1) Where a premises licence has effect, an interested party or a responsible authority may apply to the relevant licensing authority for a review of the licence. (2) Subsection (1) is subject to regulations under section 54 (form etc of applications etc). (3) The Secretary of State must by regulations under this section -- (a) require the applicant to give a notice containing details of the application to the holder of the premises licence and each responsible authority within such period as may be prescribed; (b) require the authority to advertise the application and invite representations about it to be made to the authority by interested parties and responsible authorities; (c) prescribe the period during which representations may be made by the holder of the premises licence, any responsible authority or any interested party; (d) require any notice under paragraph (a) or advertisement under paragraph (b) to specify that period. (4) The relevant licensing authority may, at any time, reject any ground for review specified in an application under this section if it is satisfied -- (a) that the ground is not relevant to one or more of the licensing objectives, or (b) in the case of an application made by a person other than a responsible authority, that -- (i) the ground is frivolous or vexatious, or (ii) the ground is a repetition. (5) For this purpose a ground for review is a repetition if -- (a) it is identical or substantially similar to -- (i) a ground for review specified in an earlier application for review made in respect of the same premises licence and determined under section 52, or (ii) representations considered by the relevant licensing authority in accordance with section 18, before it determined the application for the premises licence under that section, or (iii) representations which would have been so considered but for the fact that they were excluded representations by virtue of section 32, and (b) a reasonable interval has not elapsed since that earlier application for review or the grant of the licence (as the case may be). (6) Where the authority rejects a ground for review under subsection (4)(b), it must notify the applicant of its decision and, if the ground was rejected because it was frivolous or vexatious, the authority must notify him of its reasons for making that decision. (7) The application is to be treated as rejected to the extent that any of the grounds for review are rejected under subsection (4). Accordingly the requirements imposed under subsection (3)(a) and (b) and by section 52 (so far as not already met) apply only to so much (if any) of the application as has not been rejected. 52. Determination of application for review (1) This section applies where -- (a) the relevant licensing authority receives an application made in accordance with section 51, (b) the applicant has complied with any requirement imposed on him under subsection (3)(a) or (d) of that section, and (c) the authority has complied with any requirement imposed on it under subsection (3)(b) or (d) of that section. (2) Before determining the application, the authority must hold a hearing to consider it and any relevant representations. (3) The authority must, having regard to the application and any relevant representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives. (4) The steps are -- (a) to modify the conditions of the licence; (b) to exclude a licensable activity from the scope of the licence; (c) to remove the designated premises supervisor; (d) to suspend the licence for a period not exceeding three months; (e) to revoke the licence; and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added. (5) Subsection (3) is subject to sections 19, 20 and 21 (requirement to include certain conditions in premises licences). (6) Where the authority takes a step mentioned in subsection (4)(a) or (b), it may provide that the modification or exclusion is to have effect for only such period (not exceeding three months) as it may specify. (7) In this section 'relevant representations' means representations which -- (a) are relevant to one or more of the licensing objectives, and (b) meet the requirements of subsection (8). (8) The requirements are -- (a) that the representations are made -- (i) by the holder of the premises licence, a responsible authority or an interested party, and (ii) within the period prescribed under section 51(3)(c), (b) that they have not been withdrawn, and (c) if they are made by an interested party (who is not also a responsible authority), that they are not, in the opinion of the relevant licensing authority, frivolous or vexatious. (9) Where the relevant licensing authority determines that any representations are frivolous or vexatious, it must notify the person who made them of the reasons for that determination. (10) Where a licensing authority determines an application for review under this section it must notify the determination and its reasons for making it to -- (a) the holder of the licence, (b) the applicant, (c) any person who made relevant representations, and (d) the chief officer of police for the police area (or each police area) in which the premises are situated. (11) A determination under this section does not have effect -- (a) until the end of the period given for appealing against the decision, or (b) if the decision is appealed against, until the appeal is disposed of. "

So far as an appeal is concerned, that is covered by section 181, which reads:

"181. Appeals against decisions of licensing authorities (1) Schedule 5 (which makes provision for appeals against decisions of licensing authorities) has effect. (2) On an appeal in accordance with that Schedule against a decision of a licensing authority, a Magistrates' Court may -- (a) dismiss the appeal, (b) substitute for the decision appealed against any other decision which could have been made by the licensing authority, or (c) remit the case to the licensing authority to dispose of it in accordance with the direction of the court and may make such order as to costs as it thinks fit."

Also there is provision in the Act in sections 182(1) and (2) and 183 as to the making of regulations:

"182. Guidance (1) The Secretary of State must issue guidance ('the licensing guidance') to licensing authorities on the discharge of their functions under this Act. (2) But the Secretary of State may not issue the licensing guidance unless a draft of it has been laid before, and approved by resolution of, each House of Parliament. (3) The Secretary of State may, from time to time, revise the licensing guidance . . . 183. Hearings (1) Regulations may prescribe the procedure to be followed in relation to a hearing held by a licensing authority under this Act and, in particular, may -- (a) require a licensing authority to give notice of hearings to such persons as may be prescribed; (b) make provision for expedited procedures in urgent cases; (c) make provision about the rules of evidence which are to apply to hearings; (d) make provision about the legal representation at hearings of the parties to it; (e) prescribe the period within which an application, in relation to which a hearing has been held, must be determined or any other step in the procedure must be taken. (2) But a licensing authority may not make any order as to the costs incurred by a party in connection with a hearing under this Act."

The appeal provisions are also found in Schedule 5, paragraphs 8 and 9(1), but it seems to me that they need not be set out.

[15]There is common ground between the parties that although this is not referred to expressly in the statute, the appeal to the Magistrates' Court is by way of a complete rehearing which starts again. As to that, again it is common ground necessarily that some of the procedure adopted before the sub-committee of the licensing authority would not be followed because it would not be appropriate for that appeal. This arises from a difference in process, which can be seen in the relevant regulations, which are the Licensing Act 2003 (Hearings) Regulations 2005, and in particular regulations 21 to 23 which provide:

"21. Subject to the provisions of these Regulations, the authority shall determine the procedure to be followed at the hearing. 22. At the beginning of the hearing, the authority shall explain to the parties the procedure which it proposes to follow at the hearing and shall consider any request made by a party under regulation 8(2) for permission for another person to appear at the hearing, such permission shall not be unreasonably withheld. 23. A hearing shall take the form of a discussion led by the authority and cross-examination shall not be permitted unless the authority considers that cross-examination is required for it to consider the representations, application or notice as the case may require."

In particular, as can be seen from regulation 23, it is provided that the hearing should take the form of a discussion led by the authority and that it is the authority who will decide whether there should be any cross-examination. The process therefore has an inquisitorial aspect, but also an adversarial aspect to it.

[16]Other regulations that are relevant and should be set out at this point the judgment are regulations 11, 12, 13, 14 and 15, 17 and 18:

"11(1) Subject to regulation 13, an authority may extend a time limit provided for in these Regulations for a specified period where it considers this to be necessary in the public interest. (2) Where the authority has extended a time limit it must forthwith give a notice to the parties stating the period of the extension and the reasons for it. 12(1) Subject to regulation 13, an authority may -- (a) adjourn a hearing to a specified date, or (b) arrange for a hearing to be held on specified additional dates where it considers this to be necessary for its consideration of any representations or notice made by a party. (2) Where an authority has adjourned a hearing to a specified date it must forthwith notify the parties of the date, time and place to which the hearing has been adjourned. (3) Where an authority has arranged for a hearing to be held on a specified additional date it must forthwith notify the parties of the additional date on which and time and place at which the hearing is to be held. 13. An authority may not exercise its powers under regulations 11 and 12 in such a way that the effect will be that -- (a) an application will be treated as granted or rejected under paragraph 4(4), 7(3), 16(4), 19(3) or 26(4) of Schedule 8 (transitional provision etc); or (b) it would fail to reach a determination on the review under section 167 (review of premises licence following closure order) within the period specified in subsection (3) of that section. Hearing to be public 14(1) Subject to paragraph (2), the hearing shall take place in public. (2) The licensing authority may exclude the public from all or part of a hearing where it considers that the public interest in so doing outweighs the public interest in the hearing, or that part of the hearing, taking place in public. (3) For the purposes of paragraph (2), a party and any person assisting or representing a party may be treated as a member of the public. Right of attendance, assistance and representation 15. Subject to regulations 14(2) and 25, a party may attend the hearing and may be assisted or represented by any person whether or not that person is legally qualified . . . 17. Members of the authority may ask any question of any party or other person appearing at the hearing. 18. In considering any representations or notice made by a party the authority may take into account documentary or other information produced by a party in support of their application, representations or notice (as applicable) either before the hearing or, with the consent of all the other parties, at the hearing."

[17]The claimants draw my attention in particular to section 9(3) of the Act, which is the subsection which provides that, subject to any regulations, each licensing committee may regulate its own procedure and that of its sub-committees. They also draw to my attention the following:(1) that the sub-committee must hold an oral hearing;

(2) it must normally sit in public;

(3) it is subject to strict time limits;

(4) it may, however, extend the time limits;

(5) it does have a power to adjourn;

(6) it must permit the parties to be represented;

(7) it may permit cross-examination;

(8) it may exclude persons from the hearing for disruptive behaviour;

(9) in practice, licensing sub-committees are assisted by a lawyer employed by the licensing authority;

(10) they need to keep a record of proceedings;

(11) the proceedings have an adversarial element. Thus, it is said, and I would not dispute, there is a fair degree of formality set out within the Act and the relevant regulations underlying and leading to the discussion that must take place, pursuant to the regulations, between the sub-committee and the relevant parties.

[18]As I indicated earlier, a theme of the argument put forward on behalf of the claimants is founded on the proposition that judicial, as well as quasi-judicial, and administrative bodies have a duty to act fairly. The manner in which that duty is performed depends on the circumstances in question. As here, the relevant sub-committee is dealing with a review and thus the potential removal of an existing right, which can be said to be a power of commercial life or death over the licence holder. The duty to act fairly and

Article 6 of the Convention

is clearly engaged and needs to be tested rigorously.

[19]To my mind, the correct common ground between the parties -- namely that whether or not the sub-committee have the relevant power to stay is a matter of statutory construction -- means that this argument and the argument attached to it that to act fairly this sub-committee, and indeed other decision-makers in similar circumstances, must have a power to bring the process before them to a dead stop by reference to abuse of process is not correct. If it had been correct, the detailed examination of the relevant statutory provision to see whether or not the relevant power could be implied would largely be unnecessary.

[20]It is therefore, in my judgment, important to look at the relevant statutory provisions, having regard to the underlying purpose of the Act and the scheme of the Act. It seems to me that the submission made in written submissions on behalf of the defendant to that effect is correct and well-founded in authorities cited, namely R (on the application of Bermingham) v Director of the Serious Fraud Office

[2007] 2 WLR 635

at paragraph 97, and British Waterways Board v Severn Trent Water Limited

[2001] 1 WLR 613

at paragraph 31.

[21]As I have indicated, the claimants place weight on section 9(3) and argue that a power to regulate procedure could include a power to effectively stop the process altogether before the merits are examined. However, to my mind correctly, they do not argue that on the true construction of this Act, that subsection expressly confers a power to stay or strike out. Rather, they say that that is the peg upon which the power can be hung and its presence is part of the process of looking at the Act as a whole to see whether or not the power can be implied.

[22]The second defendant in their written submissions poses a number of tests by reference to the approach to construction of statutes to see whether or not the relevant power is implied. Two of them can, I think, be taken together. First, does the statutory language justify any such implication? Second, is the specific language of the Act inconsistent with the general abuse of process jurisdiction? In this context, they point to the express provisions contained in section 51, and in particular subsection (4) which expressly confers a power on the licensing authority to reject any ground for review, and thus to stop it in its tracks on two bases: firstly, if the ground is not relevant to one or more of the licensing objectives; and secondly, in the case of an application made by a person other than a responsible authority that(1) the ground is frivolous or vexatious, or

(2) the ground is a repetition. From that, it is argued that Parliament has addressed this issue as to when a sub-committee of the licensing authority can stay, strike out or reject any ground, or indeed all of the grounds, for a review and that that is a powerful indication that a wider and different power should not be implied.

[23]The claimants argue that the fact that a specific provision is made in a statute for specific purposes does not mean that a general power is to be excluded or not to be implied. In that context I was referred to R v Leicester Crown Court ex parte Phipps

[1997] EWHC Admin 253

, which is a case in which specific provision was made relating to consolidation of proceedings which did not cover the matter in issue, but the court held that the general powers of the Crown Court relating to consolidation could be exercised. The point, it seems to me, is somewhat different to the present one and more accurately focussed on whether the expressed provision suspended the existing general power, but I would not dispute that it is possible to imply into a statute a more general power over and above a specific power that is expressly conferred. The issue is whether or not it is appropriate to do so in the context of this case.

[24]To my mind, having regard to the underlying purpose of the statute and the structure of the statute, no such general power should be implied. In my view, the point raised by the second defendant in this case by reference to section 51(4) is a powerful one, because it demonstrates that Parliament was identifying circumstances in which grounds could be rejected, whether the process was instigated by a responsible authority or by individuals. It identified relevance and then, in the context of individuals, well known powers to bring proceedings to a grinding halt, namely that a ground is frivolous or vexatious or repetitive, and "repetition" is defined for the purposes of the statute.

[25]It is argued that Parliament made express provision relating to costs, namely in section 183(2), and that that is an indication that when Parliament wished to exclude some general power which may or may not be vested in the Tribunal, it said so. But to my mind, that does not point to a conclusion other than one that Parliament, within section 51, addressed and answered, the circumstances in which a licensing authority would be able to refuse to proceed with an application brought before it. That view, to my mind, is strengthened within the structure of the Act when one turns to section 52(11), which makes it clear that any determination of the sub-committee has no effect until the end of the period for appealing and, if the decision is appealed, until the appeal is disposed of. There Parliament, it seems to me, has specifically addressed an issue which sometimes arises for decision, as to whether or not decisions of a Tribunal such as this one come into effect pending an appeal if no express stay is imposed, either by the relevant appellate court or this court. To my mind the imposition of a stay until the appellate process is completed is a pointer against the sub-committee having the power the claimants asked it to exercise.

[26]Also, it seems to me that this statute needs to be construed and applied against a background which would be well known to Parliament, namely that the responsible authorities, as defined, effectively all have relevant statutory duties to perform which are relevant to the granting and the continuation of premises licences. Parliament would also know that their decision making processes are subject to control, applying tests at public law. Parliament would therefore know and must be taken to have passed the statute against the background that the matters that are complained of by these claimants and similar matters relating to the decision making process to bring proceedings or to continue proceedings are open to challenge at public law.

[27]I have asked myself whether Parliament intended in this context to create a dual track system. To my mind, the answer is that it did not. The issues that arise in the context of a public law challenge are ones governed, obviously, by public law issues. It seems to me that it would be surprising if Parliament had intended that members of the sub-committee, with the benefit of advice from a lawyer, would have to deal with issues based on public law challenge. The claimants argue, by reference to authorities in the criminal field, that that is something done by criminal courts, but have not been able to point to an example that that is something done by other courts. To my mind, that is a powerful pointer away from a conclusion that a power to stay or strike out for abuse should be implied when the application is made by a responsible authority.

[28]Further, and to my mind of importance, is that, albeit that the process put in place has a number of formal aspects, at heart, as demonstrated by the provision that the proceedings should take place by reference to a discussion promoted by the sub-committee, and as argued on behalf of the second defendant, the process is intended to be one which has significant areas of informality, an investigatory aspect, and one in which the position of the licence holders is protected by the provisions relating to an appeal and a stay which would fall to be governed by the process adopted in the Magistrates' Court and a stay pending the appeal.

[29]Other questions raised as an approach to construction in the second defendant's skeleton are: Do the express powers of the Act lead to a conclusion that the implied powers contended for must be implied in order to enable the authority to carry out its express function? To that question, the answer, to my mind, is plainly "No". Next: Would it defeat the intention of Parliament if the power was not implied? Again, to my mind, the answer is plainly "No" for the reasons I have given. Next: Is the integrity of the regime sufficiently protected by other powers? For the reasons I have given, the answer, to my mind, is "Yes". Next: Can the power be complied with without difficulty? To my mind, the answer to that is "No", and I give an example arising from an exchange in argument this morning as to what the impact of a stay or strike out would be. The answer initially given was that it would mean that the police should regroup, carry out a proper consultation process, and after that, if they thought it appropriate, start again. That would not be a consequence, it seems to me, of an application to strike out or to stay which, as I have said, is to bring a final end to proceedings. Therefore, it seems to me that it is easy to see why Parliament has chosen to provide that the proceedings should be brought to a final end on the basis that grounds put forward are not relevant, or that, if they are put forward by individuals, they are frivolous or vexatious or a repetition, but it is not easy, in my judgment, to see how the consequences of the power that the claimants assert exists, if exercised, would fit with the scheme of the legislation.

[30]I do not think I need deal with the other specific questions raised in the skeleton argument to be asked and answered on whether or not a power should be implied, because to my mind I have effectively covered them in the comments I have already made.

[31]In short, it seems to me that, having regard to the underlying purpose and scheme of this legislation and the express provisions of the statute in their context, the sub-committee were correct in their view that they did not have the power to stay or strike out the proceedings for reasons other than those set out in section 51.

[32]A further point which was raised during the course of argument was, even assuming that there was a wider power, whether it would be correct for the sub-committee to exercise it in reliance upon public law grounds or in a public law attack. That raised the question of whether public law grounds could be introduced as a collateral matter when the subject matter is an infringement of private rights. So far as the criminal process is concerned, it seems to me that the authorities show that it has been introduced. But to my mind it is extremely doubtful that if there was a wide power such as the claimants assert, it would be correct for a sub-committee of the licensing authority or, it seems to me, any other body exercising a jurisdiction within the Licensing Act, to deal with what is a public law attack on the basis that it is a collateral matter introduced into its consideration for the infringement of private rights. This is because what is being sought is not a consideration of public law rights within the arguments relating to the private rights, but a process by which the procedure relating to the determination of the private rights is brought to an end without a consideration of its merits. Those are necessarily preliminary views, because they have not been fully argued.

[33]In the skeleton argument I was also invited to consider whether or not the Magistrates' Court on an appeal would have a power to stay or strike out on the basis that the bringing of the proceedings was an abuse of process. The preliminary view I have just expressed may have some relevance to that. It seemed to me that it was not possible for me, in the context of these proceedings, without any representation from the Magistrates' Court, or indeed any earlier decision of the Magistrates' Court, to express a view one way or another as to whether or not they would have the relevant power. The preliminary views I have expressed are on the basis that, if there was arguably such a power, a question arises whether or not it would be appropriate to consider its existence and exercise it, or to take a stance that the underlying points should be dealt with by way of a challenge in the Administrative Court to the decision-making process of the relevant public body.

[34]For the reasons I have given, therefore, I must dismiss this claim.

[35]MR KOLVIN: My Lord, I am extremely grateful. I do have an application for costs. I do not know if my Lord wishes to deal with principle and then deal with quantum. A schedule has been prepared. I do not know if it has made its way up to you.

MR JUSTICE CHARLES: I know I have it somewhere.

[37]MR KOLVIN: I will hand one up. (Handed). My Lord, the claim is in the sum of £28,156. I do not know if my Lord has seen the claimant's costs schedule.

MR JUSTICE CHARLES: I have not.

[39]MR KOLVIN: The claimant has submitted a schedule in the sum of £33,477, so ours is £5,000 less than theirs.

MR JUSTICE CHARLES: Let us deal with the principle first.

[41]MR DE HAAN: My Lord, I cannot say anything on principle. On the issue of quantum, the costs of both parties seem to be pretty well on a par. I always defer to my instructing solicitors in these matters anyway, and there is nothing I wish to challenge in relation to the items.

MR JUSTICE CHARLES: I will order costs in the figure that you set out in your schedule.

[43]MR KOLVIN: I am extremely grateful, my Lord.