Funky Mojoe - Read Sarah Clover's Comments on the Case

On Friday 21st February, the long awaited judgment in D&D Bar Services Ltd v Romford Magistrates' Court and London Borough of Redbridge ( aka "Funky Mojoe") was finally handed down.

It cannot come as a huge surprise that His Honour Judge Blackett decided to put down the runaway horses named Tinseltown and MuMu that had been running amok round the country since December 2012. According to the arguments employed in those magistrates' decisions, as distilled, edified and forcefully put by Philip Kolvin QC and Jeremy Phillips, any breach of regulatory requirements in a review application was fatal. From the greatest to the least, any error whatsoever in the compilation and promulgation of a review application would render any attempt at a hearing a nullity. Numerous appeals in the magistrates have been won on just such a premise.

There is a multitude of choices and possibilities as to how to get such an application wrong. If the applicants themselves manage to navigate their part perfectly, and complete the form without error; identify the subject of the review correctly; disseminate the application impeccably to all who need to see it, all at exactly the right time, then it is the turn of the Council to avoid all the pitfalls of notification and advertisement. Notices must be the right shade of blue; they must appear in all the right places, in the right sized font, and, again, at the right time. The chances of getting it all 100% right, 100% of the time in our busy world is, frankly, something a little North of nil.  And so, Licensing Authorities, and Responsible Authorities, particularly the Police, have lived either in fear or blissful ignorance of the possibilities of making a mistake for the last eighteen months, and many others have been very busy.

It is all over. Or is it? The importance of his decision was emphatically pressed upon this Judge, tasked with this vital role of restoring order to the chaos. He was left in no doubt that the Licensing world was hanging on his every word; eager to know if they must continue to exist in licensing Utopia, or whether they could afford to be human from time to time.

He wasn't having any of it:

"I completely disagree with Mr Kolvin's submission that this case raises a matter of great importance under the Licensing Act 2003."

Seriously? It was a surprising announcement from which many who have been waiting anxiously for this decision will respectfully dissent.

He said:

"It is like so many other licensing cases, one which turns on its facts."

Sad echoes of "93 Feet East". Very few licensing cases, in the Supervisory Courts,
have actually turned on their own facts - or perhaps it is just that we are so starved of definitive and authoritative pronouncement on the ragtag of the Licensing Act that we fall ravenously on every scrap of goodness that we can gnaw from every binding word that drops from on high.

This case has been eagerly awaited, but could have done so much more.

It comes as no great shock, in reality, that the Learned Judge found that not every regulatory failure would always nullify review proceedings. That much, as a matter of practicality, could have been predicted. This was a floodgate that the higher Court was always likely to find needed closing. What is eyebrow raising, however, is the limitation which this judgment has placed upon itself and, therefore, how far licensing practitioners have been abandoned to their own devices in determining in future when a regulatory failure will invalidate a review. The answer appears to be: "Sometimes - but not every time." To which the obvious response is: "When?"

There is very little in the judgment to assist. The first problem is the Learned Judge's insistence that his judgment related exclusively to the facts before him, and the second problem is that those facts were so extremely thin. Of all the cases that have troubled the licensing authorities with demonstrations of imperfection in a licensing review, this has to be one of the least dramatic.

The complaint about the Funky Mojoe review application was that the notice advertising the review did not comply with the regulations in two particulars; it did not specify the grounds of review (it listed licensing objectives without any further explanation), and part of the notice at the bottom, (explaining how the application could be inspected), was written in 14 point font, and not the required 16 point font.
This case was the perfect setting for an argument that any breach, however minor, was fatal due to the terms of the statute, but it is so far at one end of the scale as to give no guidance whatsoever as to how other breaches further up the scale are to be judged.

The Learned Judge said:

"It could never have been in the intention of Parliament that minor errors on a notice or advertisement for a licensing review should make any subsequent consideration of the licence void. Such an approach would lead to absurd consequences."

So be it. This case gave an example of just such an absurd consequence. Everyone who can read is probably able to read 14 point as well as 16 point, and anyone who cared could have found out more about this review without breaking a sweat. Not only was there no conceivable prejudice arising, but even a slight stretch to understand what the problem was. That didn't matter for the pure, black letter law argument, and that was the whole point of the Kolvin/Phillips approach, which had the bright, shining, undeniable attraction of certainty - which no other possible approach has:

"Mr Kolvin suggested that regulations which are mandatory make compliance easier so that there can be no doubt that unless they are complied with to the absolute letter, then the process is invalid."

"That may be so", said the Judge. It certainly is so, and although it may be extremely painful, at least everyone knows exactly where they stand, and how much pain they are in, all of the time. The letter of the regulations is clear. Compliance or otherwise is clear. Everyone is clear. Never again.

The Learned Judge has not even ventured out, for the assistance and guidance of the daily practitioner, from the strict bounds of the facts before him concerning "minor errors on a notice or advertisement for a licensing review." There are many more ways of messing up a review application than merely in the notice or advert - how are we to approach that wider panoply of potential errors? Not just the written representation of it, but the service of it, and the displaying of it at premises, and the period for consultation, and so on. What matters? What does not? We can assume that the Learned Judge's comments about "minor irregularities" were intended to apply to physical procedural errors as well as written ones, but if so, why not say so? It is without doubt that this Judge was determined to say not a single thing that could be taken more widely than the particular case before him, and this is highly regrettable, and, as with "93 Feet East", a real missed opportunity to benefit the Licensing world.

Mr Matthias QC (paragraph 18) has reinforced the weight of the burden now on our shoulders by inviting the  Learned Judge to conclude that:

"It is important to look at the consequences of any breach or failure and then impute what Parliament intended".

Imputing what Parliament intends is an onerous responsibility indeed for any licensing practitioner on any day of the week with a "y" in it. Most of us, I daresay, (with the exception of those who make a living directly out of the guessing), would have vastly preferred it if the Act itself, or at least the Courts had given more of a clue as to what Parliament intended, rather than being required to work it out daily, on a case by case basis. No-one, of course, can ever be expected to know for certain, and it sometimes even appears doubtful whether Parliament itself could hazard a guess. Nevertheless, this is the dubious pleasure which we can all anticipate, in any given review, from hereonin. Look forward to representations which begin: "The Will of
Parliament in my personal case is doubtless..".

For the avoidance of all doubt, this judgment is clearly not authority for any argument that compliance with regulations is unnecessary or unimportant. It is clear that the
Learned Judge was not inviting a free-for-all.  He said as much:

"It is clear that there must be substantial compliance with Regulations 38(1)(a) and 39.".

Presumably, there can be no doubt that it is clear that there must be substantial compliance with all the other Regulations too, and it is inexplicable why that much at least could not be clearly stated.

"But" (the Judge went on) "The process should not be frustrated by minor errors."

He reaffirmed this finding:

"District Judge Lucie considered the errors in the notice to be minor irregularities", and His Honour Judge Blackett clearly agreed.

So much for that exposition, but words like "substantial compliance", "minor errors" and "minor irregularities" take us very little further forward at all, in that they do not give any guidance whatsoever as to where the line is to be drawn. What is "substantial?" What is "minor"? Generally, it is a matter for personal opinion, and ultimately, it is a matter for the courts. That was the place that most Licensing authorities, at least, were hoping to avoid.

There is the added complication that an error which might be entirely without consequence in one situation could, in a different situation have profound adverse impacts. Without the strict, bright line of "get it right or die", there are no rules at all. At best, we can understand, perhaps, from this judgment, which endorses the earlier jurisprudence on the same topic, that there is a sliding scale of regulatory breaches, at the most trivial end of which we can all shrug shoulders and get on with it, and at the most serious end of which, we all have to sit up and take notice. More than that is not clear at all.

The cases that have always been cited as the antidote to the Funky
Mojoe/Tinseltown/MuMu approach have always been Jeyeanthan 2000 1 WLR 354 and Soneji 2006 1 AC 340. These were specifically endorsed in Funky Mojoe, as would be expected from this particular outcome, and so it is reasonable to look to those cases for further help and guidance as to the correct approach to regulatory irregularities.

It is often stated that Jeyeanthan and Soneji underline the "prejudice" approach - whereby a regulatory breach has significance if, and only if, the person of the receiving end of the breach can demonstrate that they have been prejudiced by it in some way. That isn't strictly true. Prejudice is a factor, but only one factor.

The starting point for the House of Lords in Soneji was even earlier caselaw still:

Lord Hailsham LC in London & Clydesdale Estates Limited v Aberdeen District
Council [1980] 1 WLR 182 at pages 188\90 said:

"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail."

This looks like an unpromising start, and smacks of the Funky Mojoe argument. It
clearly doesn't end up that way, but it does underline the fact that at no stage is it being suggested by any Court at any time that it is perfectly all right to ignore or casually mess up statutory regulations.

The Soneji judgment continued to cite Lord Hailsham:

"But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act."

That does not appear to be very comforting at all. Having helpfully set out just how
wide this spectrum of non-compliance can be, and that most cases will probably fall somewhere in the middle zone most fruitful for disagreement, Lord Hailsham, (approved and endorsed in both Jeyeanthan and Soneji), appears here to be inviting the authority and the subject of the regulation, if they can't agree, to go and fight about it in the courts. And that was what many were hoping to avoid.

This analysis does underline that prejudice is not the only concern. Here, Lord
Hailsham makes no reference to it at all. His view was that where a breach is "outrageous and flagrant", then the faulty regulatory action simply has no impact on the person being enforced against at all. The recipient can safely ignore it, whether they have been prejudiced or not - the regulatory authority cannot expect to get away with it.

Perhaps we can add helpfully to our sliding scale by suggesting that the more flagrant and outrageous the breach of regulations is in itself, the less need there is to show that it has actually prejudiced anyone. The less flagrant and significant the breach itself seems to be, the more significant it might seem that someone has actually been detrimentally prejudiced by it, and to what degree.  There is no particular authority for this, certainly not in Funky Mojoe, but it seems like a common sense formulation.

Another question is begged, which has not been answered in any of the cases, including Funky Mojoe. Where such a significant breach has been found - either because it is flagrant and outrageous, or prejudicial, or a sufficient combination of the two to be of significance, what is to be the consequence? Does a breach like that mean that the application is null and void ab initio, and that there can be no valid Committee hearing or decision based upon it? Or can the Committee, as the tribunal tasked to reach a decision on how significant the breach is in the first place, impose some kind of cure or compensation for the breach - say, an adjournment, or an extended consultation period, or similar? It is not clear that there are any clues to that in the Funky Mojoe decision. We only know that reviews are not invalidated where breaches are minor and trivial.

Lord Steyn in Soneji stated:

"In such cases, though language like 'mandatory,' 'directory,' 'void,' 'voidable,'
'nullity,' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition."

The bed of Procrustes is certainly not very comfortable, but is has the single advantage, if a little brutal, that everything fits every time. The legal alternative we now face after Funky Mojoe in deciding our regulatory breaches seems more like the beds that Goldilocks was confronted with: imperfect; some more wrong than others, and the ultimate decision entirely down to her personal preference.

The older case of Ravichandran / Jeyeanthan 2000 1 WLR 354 offers the last hope for guidance, for now:

Lord Woolf MR:

"What Should Be The Approach to Procedural Irregularities

The issue is of general importance and has implications for the failure to observe procedural requirements outside the field of immigration. The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as 'shall' or 'must' is used.

Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances " [Emphasis added]

Can we pretend to be surprised? This has the interesting consequence, certainly in
licensing hearings, that the Committee may be faced with the possibility of deciding that the review application was invalid, because of regulatory breaches, which are significant, and that therefore, they have no power to decide anything at all. There is a contradiction inherent in that which is going to create all sorts of interesting situations.

There was just a little more help from Jeyeanthan:

Woolf MR:

"Bearing in mind Lord Hailsham's helpful guidance I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test: The questions which are likely to arise are as follows:

(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question).

(b) Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question). I treat the grant of an extension of time for compliance as a waiver.

(c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question).

Which questions arise will depend upon the facts of the case and the nature of the particular requirement."

Much as we always appreciate a bulleted checklist, this is not really narrowing down the issues to any more manageable proportions. It leaves everything open still. Was there substantial compliance? Should there have been? What does that mean anyway?
Does it matter? What shall we do about it?

And this really does take us right back to the beginning. All we know now is that regulatory compliance matters, but sometimes more so, and sometimes less. Some breaches of regulatory requirements must prompt action, of some description, and some need not. On more than that, apparently, we will still have to agree to disagree.

Sarah Clover
Kings Chambers
24th February 2014