Westminster Council to face Soho sex shops at Supreme Court – The Lawyer 13th March 2014 13.03.14
Licensing, Public Law and Judicial Review
Westminster City Council is taking its fight against Soho’s sex shops to the Supreme Court, despite being refused permission at the Court of Appeal (CoA) last year.
Landmark Chambers’ Natalie Lieven QC and Jaqueline Lean lost the appeal for Westminster City Council over the amount it should pay to local sex shops after charging them too much in licence fees (29 May 2013).
The council was refused leave to appeal, but it has now successfully applied directly to the Supreme Court and will fight the seven sex shop respondents again over the settling of the overcharged fees.
The battle will see Lieven and Lean, instructed by council licensing appeals manager Hayley Davies, face off against Cornerstone Barristers’ Philip Kolvin QC. Kolvin is instructed by Gosschalks partner Stephen Dillon for the sex shops, including Harmony and Simply Pleasure.
A May 2012 High Court judgment handed down by Mr Justice Keith sided with the sex shops to say that new regulations set in 2009 meant the shops had been incorrectly landed with a £29,102 annual bill.
Keith J said: “The Council has not, since 28 December 2009, been permitted to take into account the cost of investigating and prosecuting persons, firms or companies who operate sex establishments within [the Council’s] area without a licence.”
In the 16 May 2012 judgment and a second on 12 June that year Keith J ordered the council to pay the difference between the payments it had received and the amount it should have been charging. The council was also ordered to pay indemnified costs with interest because it had turned down an offer from the respondents.
The council accepted it was wrong to charge the amount it did but refused to accept the costs and restitution charged to it, and took the case to the CoA the following year.
However in May 2013 Master of the Rolls Lord Dyson, Lady Justice Black and Lord Justice Beatson upheld the High Court judgment.
Lieven argued that the judge had been mistaken to order that the amount to be repaid to the shops should be calculated on a cumulative year by year basis rather than a rolling one.
She also argued that the council should not have been punished for failing to accept the respondents’ offer.
Giving the leading judgment, Beatson J said: “I find no misdirection in the way the judge dealt with the issue of costs. I would therefore dismiss the appeal.”
Despite this, the council has been granted permission to appeal after going directly to the Supreme Court. No date has yet been listed for the case.
Both sides have stayed loyal to the same counsel, who have represented them since the beginning of the case.
The legal line-up
For the appellant Westminster City Council
Landmark Chambers’ Nathalie Lieven QC and Jaqueline Lean instructed by Westminster City Council licensing appeals manager Hayley Davies
For the respondents (1) Timothy Martin Hemming (t/a Simply Pleasure Ltd)
(2) James Alan Poulton, (3) Harmony Ltd. (4) Gatisle Ltd t/a Janus, (5) Winart Publications Ltd, (6) Darker Enterprises Ltd, (7) Swish Publications Ltd
Cornerstone Barristers’ Philip Kolvin QC instructed by Gosschalks partner Stephen Dillon