Essence: A triumph of substance over form

In Essence Bars (London) Ltd (t/a Essence) v Wimbledon Magistrates' Court [2016] EWCA Civ 63, in the context
of a licensing appeal but with implications for any kind
of statutory appeal to the magistrates' court, the Court of Appeal took a liberal approach to the rules governing the amendment of a complainant's name in the complaint.

The case initially concerned an appeal under the Licensing Act 2003 against the decision of the Royal Borough of Kingston
upon Thames, in its capacity as licensing authority, to revoke
the licence of a nightclub called Essence. Importantly, the 2003 Act limits the right of appeal
to the magistrates' court to particular persons or entities (including the premises licence holder) and indicates that the appeal must be filed within 21 days of notification of the decision in question.

Distinct legal entity

In this case the complainant
was named as 'FL Trading Ltd'
(F) in the complaint and was also incorrectly described as 'the premises licence holder'. In fact,
F was the parent company of the real premises licence holder, a legally distinct company called 'Essence Bars (London) Ltd' (E).
F therefore had no right to bring the appeal and E had failed to appeal within the 21-day time limit. As a result, the council argued that the magistrates' court had no jurisdiction to hear the substantive appeal, meaning that it should be dismissed.

In response to this, an application was made under section 123 of the Magistrates' Court Act 1980 to amend the complaint by substituting the name of the complainant (E) for that of F. However, the district judge considered that there was no power to allow an appeal by a different party, out of time, and therefore he had no jurisdiction to hear the appeal.

In reaching this conclusion, the district judge, and also Mr Justice Wilkie on the subsequent judicial review, felt bound by various rulings (all in a criminal context) in which the Divisional Court had indicated that section 123 should be narrowly construed. Specifically, these authorities established that it was not possible to substitute a distinct legal entity in summary proceedings where the time limit for instigating those proceedings had expired. Following a judicial review of
the district judge's ruling on the interpretation of section 123,
an appeal was made to the Court of Appeal.

Scope of section 123

The Court of Appeal (with the leading judgment given by Lord Justice Beatson) was of the view that the case law on which the district judge had relied could be distinguished from the position in Essence. The criminal cases
all involved a prosecutor proceeding against the wrong member of a corporate group, where another member of the group could have been charged appropriately but the corporate entity chosen in fact had a defence. However, the position here was distinguishable because the complaint included a description of E as well as the use of a corporate name.

Further, there was no rule that a mistake regarding a corporate entity was automatically a mistake of identity or that where a name and description were used, it was the former which identified the party in question. Rather, it was appropriate to apply the broad interpretation in the Civil Procedure Rules (CPR) of the phrase 'mistake as to name' in the context of the substitution of parties (CPR 19.5) and the amendment of statements
of case (CPR 17.4) after the limitation period had expired.

Moreover, there was no reason that the approach should be any different in circumstances where the period for appealing had expired, as long as there was no mistake as to identity and the other party was not in any reasonable doubt in that regard.

Consequently, the matter was referred back to the magistrates' court to determine whether:

• On the facts the complaint misdescribed the name of the premises licence holder who was the complainant,
  or whether, despite the misdescription, the identity of the complainant is F; or

• The other party, here the licensing authority, was not in any reasonable doubt about the identity of the complainant (only applicable if the mistake is one of description rather than identity).

The implications of the Court
of Appeal's decision were summarised by Beatson LJ. In short, the scope of section 123 has been widened significantly, even though, in the licensing context, parliament had chosen to limit those entitled to appeal and the wider public interest functions of licensing authorities in order to promote the licensing objectives of preventing crime, disorder, and public nuisance; promoting public safety; and protecting children from harm.

More broadly, a respondent would now be ill-advised to take a purely technical point
on the misstatement of a complainant's name where there was not reasonable doubt as to the complainant's identity.

Leo Charalambides, pictured, is a barrister practising regulatory and public law at Francis Taylor Building and Katherine Barnes is a pupil barrister @FTB_law www.ftbchambers.co.uk