H&W case clarifies legal responsibility

By Peter Coulson

- Last updated on GMT

Related tags: Premises licence, Law, High court

Coulson: responsibility of premises licence holder clarified
Coulson: responsibility of premises licence holder clarified
Last week's High Court victory for Hall & Woodhouse has clarified the position on the direct responsibility of the licence holder for offences committed by others, says Peter Coulson.

Last week's High Court victory for Hall & Woodhouse — gained in spite of considerable misgivings from the British Beer & Pub Association and their legal advisers — has clarified the position on the direct responsibility of the licence holder for offences committed by others.

It has not, of course, removed all the legal duties and obligations, especially those that are clearly covered by the Act itself. But it removes the idea, firmly held by the council in question, that the licence holder has automatic responsibility for whatever takes place on the premises, if it breaches licence conditions or is unlawful.

Many operating companies and breweries, for their own reasons, decide to hold the licence in their own names, even if they have tenants or lessees in position who carry out the day-to-day running of the premises.

It is the tenants who carry on the licensable activities in their own right, in accordance with the premises licence. But it is not necessary for the premises licence holders themselves directly to carry them out, or to undertake responsibility for them. In fact, a number of people can breach the licensing laws: the licence itself merely authorises the activity in question to be carried out.

I have not seen the full transcript yet, but I understand it was a robust judgment that did not leave the issues open to doubt. However, I do remember discussing the question of who should hold the licence with many people before and during transition, and I was never in any doubt that it was unnecessary for the actual operator of the premises to be the licence holder and vice versa. So I am pleased that the High Court has scotched the idea that the holder must always be in the hot seat.

Obviously, where the holder of the premises licence is also the licensee and runs the pub in his own right, he cannot use this judgment to exonerate himself in all cases. There will still be examples where his management (or lack of it) is seen as a contributing factor, or he knowingly allowed the conduct to be carried on.

Incidentally, credit where it is due: the solicitors for Hall & Woodhouse are licensing experts Horsey Lightly Fynn who instructed Philip Kolvin QC.

The BBPA and their lawyers were not directly involved.

Q&A

Ban on banners

Q. I have been contacted by my local council regarding a complaint on the banners and signage on my pub. They are saying it is illegal to display these banners anywhere on the pub or its surroundings. If this is correct, how come everyone else is displaying the same sort of banners in my village and throughout the country? Do you have any advice?

A. Promotional banners and signage come under the planning regulations and in many council areas, especially in conservation areas, their use is strictly controlled. As they are, by their very nature, quite prominent, it is likely they will be noticed sooner rather than later and the attention of the planning officers may be drawn to their existence.

While it is true that they spring up in many places, as people vie for the attention of customers, when they are spotted there may be a visit from a planning official pointing out the legal requirements for permission to erect or place any signs on or adjacent to buildings. Permission does not just cover fixed structures but also banners, A-boards and other promotional material.

It is a fact that permission for such items is often a matter for negotiation in some areas, so there could well be some examples which seems to breach the rules. But finally it is within the council's power to say no, although there is machinery for appeal in certain cases.

Drinks on credit

Q. I know that you have covered this point before in relation to credit cards, but what is the current position if someone asks for credit? Is it illegal for me to allow a regular customer to pay for drinks when he next comes in, if he is short of money at the time?

A. The provisions in the old Licensing Act on the question of paying for drinks at the time of sale have not been replicated in the 2003 Act, so in the absence of any kind of prohibition it is reasonable to assume that credit sales of all kinds are allowed on licensed premises, not just those made with a credit or debit card.

The Government presumably decided that the risk of people drinking "beyond their means" is not one to be covered by the licensing laws. This would effectively make the slate legal and you do not risk prosecution or legal action by making some allowances in certain cases.

That is a decision that you can make, bearing in mind the problems it may create with reconciling the till and bar takings.

However, on the other side it is quite within a landlord's rights to insist on payment at the time of sale, and a customer cannot resist the request to pay up on the spot, even if he is having a meal as well.

Transfer delay

Q. We organised the transfer of a designated premises supervisor (DPS) for premises licence in London some time ago and sent off the relevant paperwork, but two months on, we have not heard anything. The licence still states the old DPS. Is this legal or can we be prosecuted?

A. It is somewhat ironic that the same council holding every licensee to the strictest possible timescale with regard to applications, temporary event notices and the like seems to think it can delay for months something that is required to be completed in days!

There is nothing you can do about it. They are above the law! But you cannot be penalised for their continuing default. As long as you have sent off the relevant notices, your side of the licensing procedure has been completed. You will just have to place a notice near the existing licence summary stating who the new DPS is. This should be sufficient in cases of query from the police or local licensing officer.

Related topics: Licensing law

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