IN THE MATTER OF AN APPLICATION BY FRANCIS O’LOUGHLIN

Application for certiorari to quash a decision – whether the court had jurisdiction relating to the hearing of an application for the grant of a licence and to make a provisional grant of a licence.

The applicant, the owner and licensee of licensed premises in Martinstown, sought to be heard as an objector to an application brought by notice of the respondents in respect of premises some 300 metres from his premises in Martinstown. At hearing the judge held that the objection was out of time and could not be entertained. He did however hear extensive argument from the objector’s counsel on the issue of the validity of notices published by the respondents and the judge’s jurisdiction to hear the application.

The crucial issue between the parties concerned the contents of notices published in the newspapers.¹ The respondents had published notices of their intended application in an issue of the Ballymena Observer dated 5 April 1984 and of the Irish News dated 4 April 1984. The date of opening of the court sitting, however, was given as 3 May 1984. Whilst the correct date (which was 2 May 1984) was published in the Ballymena Observer the subsisting licence was said to be for the premises at Kisaboy, Charlemont, County Antrim. The correct address of the premises which appeared in all other notices was Kisaboy, Charlemont, County Armagh. The objector contended that both these matters rendered the notices defective and that the licensing court did not have jurisdiction to hear the application for a licence. On behalf of the respondents it was advanced that the contents of the form prescribed by the County Court Rules² stand upon a different footing than the requirements contained in Schedule 1 of the Act itself. It was contended that the court could invoke the provisions of Order 43 rule 14 and accept the notices notwithstanding any errors contained in them where it might not be able to do so in respect of a matter prescribed in paragraphs 1 or 3 of Schedule 1 of the Licensing Act (Northern Ireland) 1971. The County Court Judge held that the errors in this case were verbal or technical and that in the exercise of his discretion these could be accordingly amended and would not prejudice the application before the court. On appeal to the Court of Appeal.

Held.

¹    Paragraph 2 of Schedule 1 of the Licensing Act (Northern Ireland) 1971 states that the notices shall specify the kind of premises for which the licence is sought and the name and address of the owner of the premises and shall be in such form and without prejudice to paragraph 3, shall contain such other information as may be prescribed by county court rules.

²    Rule 2(1) of the County Court Rules (Northern Ireland 1980

(1)    requires the Notice of Application to be in accordance with Form 194 and Rule 2(10) provides and if published in the newspaper shall be required … to include a reference to the requirement that any person only residing or carrying on the business in the premises in the vicinity of the premises for which a licence is sought who intends to object to the grant of a licence must … serve a Notice of Intention to object upon the applicant … not less than one week before the time of the opening of the court sitting and where appropriate state that a subsisting licence is to be surrendered in the court giving particulars thereof.

1.    The learned judge was entitled to regard the errors in the case as verbal or technical. His decision on this point was an exercise of his discretion. Certain types of error which might vitiate the exercise of a discretion in a case of this nature are

(i) where the judge has acted upon some wrong principle of law;

(ii) where he had no material before him upon which he could properly exercise his discretion as he did;

(iii) where he has taken into account considerations which he should not have done or has disregarded relevant considerations.

2.    The respondent’s argument was correct. The contents of the notices constitute a matter which was not “on a par” with the other requirements imposed upon an applicant for a licence. There is a clear distinction between a requirement laying down the time when notices are to be served and the persons upon whom they are to be served and a provision prescribing the contents of those notices.

3.    A mistake in the date could probably be regarded as a technical error and the lateness of the applicant’s objection was not caused by it. However the objector was not manifestly misled. The errors could be correctly regarded as verbal or technical.

Application for certiorari refused.

CA [1985] NI 421, [1985] 6 NIJB 101