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R (Hope and Glory Public House Limited) v City of Westminster Magistrates' Court [2011] EWCA Civ 31

On 26th January 2011, the Court of Appeal upheld the decision of Burton J in Hope and Glory.

The background to the case was that on an application for review, Westminster City Council had curtailed the exterior drinking hours of the Endurance public house. The licensee appealed and the appeal came before District Judge Snow, who considered the proper approach on appeals from licensing decisions. He said that he would not lightly reverse the decision and only do so if satisfied that it was wrong. He then went on to dismiss the appeal.

The licensee applied for permission to judicially review the decision. Burton J dismissed the application, holding that the District Judge had been quite right in his approach. In so saying, he held himself bound by the decision of the High Court in Stepney Borough Council v Joffe [1949] 1 KB 599 and the Court of Appeal in Sagnata Investments v Norwich Corporation [1971] 2 QB 614, the leading topics on the subject. A note in Paterson's Licensing Acts cast doubt on the applicability of those decisions in a modern environment, but that cut no ice with Burton J.

Challenging that decision, the Appellant argued that Sagnata was distinguishable as a case dealing primarily with the application of policy, and that in any case Article 6 of the European Convention on Human Rights made it unfair and unlawful to require an appellant to prove that a decision was wrong, rather than starting with a level playing field. The Court of Appeal unhesitatingly dismissed both arguments. As to the first, Sagnata is of general application and, in any case, Stepney was not a policy case. As to the second, nothing in domestic or European case law made it unlawful to ask a party to prove a case. The appeal procedure was, said the Court of Appeal, fully Article 6 compliant.

The upshot is that it is for the Appellant to discharge the onus of satisfying the appeal court that the decision below was wrong, so it is for that party to go first. As to the weight to be attached to the decision below, this depends on a number of factors, including the nature of the issue, the nature and quality of the authority's reasons and the nature and quality of the evidence on appeal.

Finally, although it did not affect the result, the Court doubted District Judge Snow's finding that it was not for him to consider the way in which the authority approached its decision or the process which it adopted. While matters of process were the normal province of the Administrative Court on judicial review, this did not necessarily mean that they should not be taken into account by the magistrates' court. However, the Court of Appeal expressly refrained from making a conclusive finding on the issue.

While Hope and Glory really only reiterates ancient authority, it is fair to say that it is likely to exert significant influence with magistrates in the process and substance of appellate decision-making. There can no longer be any debate as to the principles to be applied on appeal as a result of the Court of Appeal's judgment.

Hope and Glory obviously places a premium on well-reasoned decisions. The Court stated in terms that "the fuller and clearer the reasons, the more force they are likely to carry." Authorities who take the trouble, as they ought, to explain to the parties what evidence they have accepted and rejected, what findings they have made and which submissions they found the most persuasive will find their decisions treated with respect. Those who don't take that trouble may find that their decision obtains only token weight in the licensing balance. That salutary message alone is an important outcome of the case.

David Matthias QC and Emma Dring acted for Westminster City Council.

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