Westminster City Council v Mendoza, Court of Appeal - Civil Division, February 14, 2001, [2001] EWCA Civ 216,[2001] EHLR 16,[2001] NPC 56

Issuing Organization:Civil Division
Actores:Westminster City Council v Mendoza
Resolution Date:February 14, 2001
 
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C/2000/0541

Neutral Citation Number: [2001] EWCA Civ 216

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

(KENNEDY LJ & BUTTERFIELD J)

Royal Courts of Justice

The Strand

London

Wednesday 14 February 2001

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(The Lord Woolf of Barnes)

LORD JUSTICE MAY

and

LORD JUSTICE JONATHAN PARKER

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B E T W E E N:

WESTMINSTER CITY COUNCIL

Appellant

and

STEPHEN MENDOZA

Respondent

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(Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4A 2HD

Telephone 0201 7421 4040

Official Shorthand Writers to the Court)

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MR CHARLES SALTER (instructed by Messrs Wilson Barca, London W1V 5AH) appeared on behalf of THE APPELLANT

MR TIMOTHY SPENCER (instructed by Director of Legal Services, Westminster City Council, London SW1E 6QP) appeared on behalf of THE RESPONDENT

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J U D G M E N TSMITH BERNAL

Wednesday 14 February 2001

1. THE LORD CHIEF JUSTICE: This is an appeal by Stephen Mendoza against a decision of the Divisional Court dated 31 March 2000. The Divisional Court allowed the appeal by case stated of the Westminster City Council and remitted the matter to the Metropolitan Stipendiary Magistrate for further consideration in relation to his decision which was the subject of the appeal to the Divisional Court. Permission for this appeal, which is a second appeal, was given by Lord Justice Simon Brown on 7 June 2000. In doing so, he considered the points were properly arguable and of some importance.

2. The appeal to this court raises issues as to the requirement as to service contained in the City of Westminster Act 1996. That Act enables the city to obtain closure orders against sex establishments.

The Background

3. The facts leading to the decision of the magistrate are set out clearly in the case stated. On 6 January 1999, Stephen Mendoza appeared to answer a summons issued on behalf of the City Council. The hearing did not take place on that date but was adjourned; the reason was apparently lack of time. However, that hearing resulted in the City Council becoming aware that the basement of the premises concerned, namely the ground floor of 6 Walkers Court, London W1, were occupied by others. The City Council therefore served promptly the two occupiers of the basement. When the matter came before the magistrate again, initially on 29 March 1999, it was argued that there had been no satisfactory service which complied with the requirements of the Act on the occupiers of the basement, and in those circumstances the proceedings could not be pursued, notwithstanding that the premises on the ground floor were still being used as a sex establishment.

4. The case stated sets out the findings of the magistrate in these terms:

``....

3. ....

a) A Closure Notice in a form which appeared to comply with the provisions of Section 3 City of Westminster Act 1996 was served upon [Mr Mendoza] by an officer of the appellant on 10 June 1998.

b) The Notice alleged that premises situated at the Ground Floor, 6 Walkers Court, Soho, London W1 were being used as a sex establishment .... otherwise than under the authority of a licence granted under Schedule 3 to Local Government (Miscellaneous Provisions) Act 1982 as amended.

c) The Closure Notice specified that in order to remedy the .... breach of the .... Schedule 3, 'the premises' must be closed to the public immediately or the use of 'the premises' as a sex establishment must be discontinued immediately.

d) At the time of the service of the notice .... the Ground Floor, .... was occupied by [Mr Mendoza].

e) At 10 June and until the hearing of the matter, there were occupiers of the basement of the premises 6 Walkers Court, namely one Janjeva and one Scott, both of whom used parts of the basement respectively for the storage of fruit.

f) Throughout the period in question, access to the parts of the basement referred to could only be gained via the ground floor premises and use of the same front door as gave access to the ground floor premises.

g) The use of the parts of the basement premises for the purpose so described, in continuation of previous occupation, followed advice from the solicitor to [Mr Mendoza] who had perceived that the presence of the occupiers of the basement of the premises would place difficulties in the way of the [City Council] enforcing the law.

h) Although the occupation at 10 June 1998 may have been induced by the motive described, the advice underlying it was not improper and the occupation was genuine de facto occupation.

i) Despite numerous visits by police officers and officers of the [City Council] to the premises, 6 Walkers Court, in the weeks and months prior to service of the Closure Notice, none of those persons had become aware of the presence of occupiers of the basement.

j) At the moment the Closure Notice came to be drafted, the officers of the [City Council] responsible for that drafting and all other officers of the [County Council] were genuinely unaware of the presence of occupiers in the basement of 6 Walkers Court.

k) No steps were taken to effect service of the Closure Notice or of the summons issued as a result of the failure of [Mr Mendoza] to comply therewith upon the occupiers of the basement.

i) At the time of service of the Closure Notice, the officer effecting service in addition to serving [Mr Mendoza] personally, left an additional notice attached by selotape to the entrance door to the ground floor premises, such notice being addressed to 'Owner/Occupier'.

m) Because of the nature of the whole building, 6 Walkers Court, access of the occupiers to their respective parts of the basement within the building would be impeded by the closure of the ground floor premises and/or the making of a Closure Order.''

5. The stipendiary magistrate records that he made the following findings of law as a result of the findings of fact to which I have referred:

``a) The failure of the [City Council] to effect service of the Closure Notice upon persons who were in fact in occupation of parts of the premises of the building amounted to prima facie non-compliance with Section 4(5)(a) of City of Westminster Act 1996.

b) That comparison of Section 3 and Section 4(9) of City of Westminster Act did not entitle the [City Council] to a conclusion in its favour that the occupiers were not occupiers of a separate part of the building but co-occupiers of the subject premises.

....

d) Accordingly, notice of the intended action had to be given to the occupiers under Section 3(2)(a)(ii).

e) The additional notice affixed to the premises and addressed to the owner/occupier referred to in factual finding 3(l) above did not meet that requirement.

....

h) The requirement of service contained in Section 3(2)(a)(ii) of City of Westminster Act 1996 having not been met, the court could not be satisfied pursuant to Section 4(5)(a) of the Act that the Closure Notice had been properly served.

i) Such failure to comply with an express provision was fatal to the proceedings and the failure to comply was not cured by subsequent service upon the occupiers nor by their appearance as interveners in the proceedings and their representation by counsel in those proceedings.

j) Although the consequence of the failure to serve a secondary party being to cause the proceedings against the principal party to fail was prima facie a strange one, that was the consequence that arose from the drafting of this legislation.

k) Even if the notice and the proceedings had been properly served upon the occupiers of the basement, given the actual occupation of the basement, the only order which Section 4(9) of City of Westminster Act would have permitted the court to make would have been one for discontinuance under Section 4(6)(b) of the Act.''

6. The judgment of the Divisional Court in this matter deals not only with the appeal in the present case, but an appeal in another case. For that reason it is not helpful to refer to the judgment, but I do not intend any disrespect in that regard. It is also clear that the argument which took...

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