Landlord and tenant — Landlord and Tenant Act 1954 — Whether premises used as a restaurant — Whether premises protected
The appellant
held a five-year term of a public house from the respondents. When he took the
premises it was a traditional public house; he carried out substantial
extensions including a new kitchen. The premises were provided with a
dining-room and customers could book tables in advance; there was a substantial
a la carte menu and food orders were taken at the bar. Meals could be
eaten at tables in the bar area or in the dining room. The appellant’s
application for a new tenancy under Part II of the Landlord and Tenant Act 1954
was dismissed in the county court on the ground that his original tenancy was
not protected by the Act by reason of the exception in section 43(1)(d)(i)
as substituted by the Finance Act 1959: the premises were not restaurant
premises. On appeal the appellant contended that by reason of the proviso to
that subparagraph, which refers to premises used for a business which comprises
the carrying on of a restaurant, the whole of his premises fell outside the
exception in section 43(1)(d)(i) and was protected by the 1954 Act.
section 43(1)(d)(i). Although the public house as a whole could not be
described as restaurant premises, the Act did not so require. The appellant
provided in the premises the facilities of a restaurant and the activities in
the premises comprised overall the carrying on of a restaurant business within
the meaning of the proviso.
The following
case is referred to in this report.
Benmax
v Austin Motor Co Ltd [1955] AC 370; [1955]
2 WLR 418; [1955] 1 All ER 326, HL
This was an
appeal by Michael Graham Taylor from the decision of Mr Recorder Adrian D
Palmer QC, who on September 25 1992 in Bath County Court had dismissed the
appellant’s application under Part II of the Landlord and Tenant Act 1954 for a
new tenancy of the Wheatsheaf Public House, Combe Hay, Bath, which had been
opposed by the respondent landlords, Courage Ltd.
Jonathan Brock
(instructed by Charles Russell) appeared for the appellant; Edward Cole
(instructed by Osborne Clarke, of Bristol) represented the respondents.
Giving the
first judgment, DILLON LJ said: This is an appeal by the applicant in
these proceedings, Mr Michael Graham Taylor, against a decision of Mr Adrian
Palmer QC, sitting as a deputy county court judge, given in Bath County Court
on September 25 1992.
The matter
arises under the Landlord and Tenant Act 1954 as amended. Mr Taylor was the
lessee, holding under a five-year lease, from the respondents, Courage Ltd, of
premises known as the Wheatsheaf Public House, Combe Hay, near Bath. These are
licensed premises. Mr Taylor claims that he is entitled to the protection of
the 1954 Act in respect of the premises. Accordingly, after the expiration of
his original five-year term and after giving the requisite notice, he applied
to the court for a new tenancy of the premises under the Act.
The
respondents dispute his right to a new tenancy under the Act since the premises
are licensed premises. Accordingly, there was a direction that the issue of
whether the applicant’s tenancy is one to which Part II of the Act applies be
tried as a preliminary issue. The judgment of the deputy judge from which the
appeal is brought was a reserved judgment delivered after the trial of that
preliminary issue. The judge held that Mr Taylor’s tenancy is not one protected
by Part II of the Act and he accordingly dismissed Mr Taylor’s application for
a new tenancy.
In view of the
dates the relevant statutory provision is section 43(1)(d)(i) as
substituted by the Finance Act 1959. This provides:
This Part of
this Act does not apply —
. . .
(d) to a tenancy of premises licensed for the sale
of intoxicating liquor for consumption on the premises, other than . . .
(i) premises which are structurally adapted to
be used, and are bona fide used, for a business which comprises one or both of
the following, namely, the reception of guests and travellers desiring to sleep
on the premises and the carrying on of a restaurant, being a business a
substantial proportion of which consists of transactions other than the sale of
intoxicating liquor.
That provision
has since been replaced for the future by the Landlord and Tenant (Licensed
Premises) Act 1990.
In the
original 1954 Act, section 43(1)(d)(i), kept within the Act licensed
premises where:
(i) the excise licence for the time being in
force is a licence the duty in respect of which is the reduced duty payable
under paragraph 3, 5, 6, 10, 11 or 12 of the Fourth Schedule to the Customs and
Excise Act, 1952, or a licence granted on the provisional payment of reduced
duty with a view to subsequent adjustment to the duty payable under the said
paragraph 3 or the said paragraph 6;
The
substitution of the new subpara (i) was because of the repeal
1952. But the change is not of substance, because one of the categories of
premises in which the reduced duty was payable under the Fourth Schedule was
licensed premises which are structurally adapted to be used and are bona
fide used either for the purpose of the reception of guests and travellers
desiring to sleep on the premises or as a restaurant.
It is of
course the wording in the section as substituted in 1959 which the court has to
construe and apply in these proceedings.
In many cases
difficulty has arisen over the final proviso in section 43(1)(d)(i):
. . . being a
business a substantial proportion of which consists of transactions other than
the sale of intoxicating liquor.
That
difficulty does not arise in the present case since it is accepted that
comfortably over 50% of the takings of this business come from food as opposed
to drink, even if soft drinks and coffee are lumped in with intoxicating liquor
under the heading ‘drink’. I agree with Mr Jonathan Brock, for the appellant,
that this proportion of food to drink is a very relevant consideration.
The question
turns on the words in the section,
premises
which are . . . used, for a business which comprises . . . the carrying on of a
restaurant . . .
The Wheatsheaf
Inn does not provide sleeping accommodation.
We have been
referred to a passage in the Hansard Report of the Parliamentary Debates (House
of Lords) on the original 1954 Bill, where the Government minister, Lord
Mancroft, in seeking to explain what lay under the previous 43(1)(d)(i), said
that:
licensed
restaurants and hotels are in Part II but the ordinary public-house is outside
it.
I do not
dispute that in any way, but it does not help in applying the words of the Act
in a case such as the present.
The facts are
carefully summarised in the judge’s judgment. Mr Brock has criticised the
judge’s summary of the facts on the ground that certain of the facts he has
stated are inaccurate or are expressed so as to carry the wrong emphasis and
that he has failed to refer to other passages in the fairly brief evidence
which Mr Taylor gave. The judge is, of course, not obliged to restate in his
judgment all the evidence which was given and I have no doubt that he was fully
aware of the totality of Mr Taylor’s evidence as he had noted it. Moreover, the
criticisms which Mr Brock has made of the judge’s statement of the facts as he
has found them in his judgment are, in my view, and with all respect to Mr
Brock, verging on mere nit-picking. Mr Taylor’s right to security of tenure
cannot depend, for instance, on whether the chairs in the dining-room, to which
I shall have to refer, are the same as or merely similar to the chairs in the
area by the entrance to the Wheatsheaf Public House.
This is a case
in which there is basically no dispute as to the facts. The integrity of Mr
Taylor or of any other witness is not in question. The well-established
authorities to the effect that this court will not interfere with the finding
of the judge who has seen and heard the witnesses, where a question of the
integrity of a witness arises, are thus irrelevant to the present case. The
issue here is one of what is the correct inference to be drawn from facts not
in dispute in applying the terms of the section to the facts of the case. That
is a question on which this court is in as good a position as the judge to form
a view on the facts and draw the appropriate inferences: see Benmax v Austin
Motor Co Ltd [1955] 1 All ER 326.
The only
qualification I would make to that is that the judge had a view of the premises
and we have not. But the premises are very simple and we have had plans and
coloured photographs and the benefit of an explanation by counsel, which is not
disputed, on how the photographs fit in with the plans. I do not think,
therefore, that we are really disadvantaged in comparison with the judge. I
therefore simply summarise the facts to make this judgment intelligible and on
the basis that they are more fully and accurately set out in the judge’s
judgment.
At the time
when Mr Taylor took his lease, the Wheatsheaf Public House was a traditional
public house and plainly not within the 1954 Act. The front of the house had
two bays, and the entrance was at the left-hand side of the right-hand bay.
Inside was an entrance area with seats, tables and a large fireplace. To the
left of that in the left-hand bay, if you look at the building, was a lounge.
Beyond both was a bar servery which supplied drinks and pub grub to be consumed
on the premises. To the left was a small food-preparation area to provide the
pub grub. It was a typical public house and plainly outside the Act.
Mr Taylor
carried out, however, substantial extensions to the building. In particular,
the length was doubled to form two extra bays, built on in keeping with the
style of the facade of the original building. This was to form a dining-room.
Behind the dining-room a substantial kitchen was built. The former
food-preparation area at the left was converted into ladies’ lavatories.
The entrance
for customers is where it was and, on going in, the customer will find that the
entrance area and the lounge to the left are much as they were. The bar servery
is still at the back, but set further back and with more space in the area
between it and the new kitchen. If the customer turns right at the back of the
entrance area, he will be able to go through an opening into the dining-room.
This contains half a dozen dining tables of different sizes capable of seating
respectively four, six or eight customers. They are wide enough for customers
to be able to sit facing each other as they eat their food. There is a counter
where cutlery is kept and a display cabinet containing the cold puddings.
Tables are
laid up if booked in advance or as required. The tables are apparently normally
fully booked in advance on Friday and Saturday nights. The menu for the day is
chalked up on a blackboard on the wall by the bar servery. What is on offer for
the day is shown under the headings ‘A la Carte’, ‘Bar Food’ and ‘Vegetarian’.
There may be another heading in respect of puddings, though apple pie is likely
to be the only hot pudding. There is a wine list kept at the bar servery and a
customer, whether he is taking from the a la carte menu or having bar
food, can, if he wishes, order a bottle of wine from a selection of some 17 or
18 wines, depending on whether you are regarding champagne as a wine to take
with your meal.
I should refer
to the menus. There is a list provided for us of the dishes on the a la
carte menu. About nine or so of these would be available on any particular
day. They include such things as: best Scotch fillet steak, rossini style or
garni; Dover sole filled with scallops, prawns, tomatoes, white wine and herbs;
Aberdeen Angus sirloin steak served with green pepper sauce; halibut maison
poached and coated in white wine sauce with prawns; wild duck breast cured with
honey and sea salt and served with a black cherry sauce; tender breast of
chicken poached in white wine and served with a coarse grain mustard sauce. I
do not propose to read the whole list. We were told that all dishes on the a
la carte list are cooked to order from fresh ingredients and all are served
with vegetables.
There is then,
in accordance with modern necessities, a vegetarian menu which is, not
surprisingly, cheaper than the a la carte menu, and there is a list of
dishes under the heading ‘Bar Food’. This starts with garlic bread, soup of the
day served with roll and butter, Cheddar ploughman’s, Stilton ploughman’s,
Brussels pate served with salad, roll and butter, and there are various other
salad dishes. But it goes on to things like beef casseroled with ale, served
with vegetables; fresh-baked steak and kidney pie served with vegetables;
pigeon breasts marinated in orange and red wine, pan fried and served with
salad (when pigeon breasts are available); fresh fillet of plaice, lightly
battered and deep fried, served with vegetables and salad garnish; breast of
chicken filled with cream cheese and prawns, breadcrumbed, shallow fried and
served with garlic butter. So the bar food includes some matters which are
considerably more complicated than the mere soup of the day or Cheddar
ploughman’s.
All orders for
food or drink are placed at the bar servery. The customer then goes to his
table and his food is brought to him by a waitress when ready. Orders are thus
taken at the bar rather than at the tables in order to save waiting staff.
There are more kitchen staff than waiting staff. But orders for puddings may be
given to a waitress as she clears the table after the first course, as an
alternative to going back to the bar servery to order puddings. Coffee can also
be ordered.
In present
conditions there are many public houses which have both a bar where drinks and
pub grub are served and a restaurant in a separate room, where two- or
three-course meals are served to customers at dining tables by waitresses or
waiters, with wine or other drinks as required. There can be no doubt at all
that these public houses satisfy the test of the words in the section,
premises
which are . . . used, for a business which comprises . . . the carrying on of a
restaurant . . .
and are within
the protection of the 1954 Act. So far as my own experience goes, such public
houses were by no means unknown in 1954.
There is no
doubt that as the result of the extension of the Wheatsheaf Public House by Mr
Taylor, with the landlords’ approval, the premises are structurally adapted to
be used in the way just indicated, which would be within the protection of the
Act. The question is whether the difference between that way of using the
premises and the way in which the premises are, on the evidence, actually used
is crucial and deprives Mr Taylor of the protection of the Act.
That
difference comes down to this. Tables in the dining-room are, as I have said,
laid up if booked in advance or as required. In other words, if a customer
arrives with a party and wants a meal at a table in the dining-room and there
is a table unbooked, it will be laid up for him. But at times when there are
tables in the dining-room which are unoccupied and unbooked, a customer who has
ordered only bar food will be allowed to sit at a dining-room table to eat it
and sip his drink, or a group, for example, who had ordered only pints of beer
would be free to sit at an empty dining-room table and chat while they drank
their beer. Conversely, customers who ordered meals from the a la carte menu
would be allowed, if they wished and there was space available, to take their
meals at the tables in the entrance area and the lounge, subject to the
restriction that, as I interpret the photograph of the entrance area, the
tables there are small bar tables rather than dining tables and thus not wide
enough to allow two customers to take their meals face to face, especially as,
while bar food is served on one plate, the vegetables for orders from the a
la carte menu are supplied in separate dishes, with the plate on which the
dish ordered is served.
The judge took
the view that what the Wheatsheaf provided was one overall service. So far as
the service of the food is concerned that is correct in that the system of
service is the same whether the customer has ordered bar food or from the a
la carte menu with a bottle of wine. The customer will then sit to eat his
meal where he chooses out of the seats and/or tables that are unoccupied and
unbooked.
The crucial
paragraph in the judge’s judgment is at p8N of the bundle. He sets out the
questions that arise. He says:
In the
result, I consider that we have here a public house which serves a wide range
of food to a no doubt appreciative clientele. But it provides one overall
service. In my judgment, it is impossible to say that a visitor eating a meal
in the bar is sitting in a public house, while a visitor eating the same meal
in the dining-room is sitting in a restaurant. Rather, they are both enjoying
the same service, but have simply chosen different seats. There is certainly
the carrying on of a successful public house business. However, I regret that I
cannot identify anything which can properly be said to be the carrying on of a
restaurant.
If you look at
the Wheatsheaf as a whole, you would not say this is a restaurant and nothing
but a restaurant. But, on the wording of the Act, the premises do not have to,
in order to qualify for protection, satisfy the test of being a restaurant and
nothing but a restaurant. If you look at the business as a whole, it would not
properly be described as the business of a restaurant and nothing but a
restaurant. Equally you could not say that the dining-room is a restaurant
separate from the rest of the premises and to be used only by those eating
meals, or possibly by those eating meals from the a la carte menu and
not by those merely consuming their drinks.
But if the
premises are looked at as a whole, and account is taken of the nature of the
food provided both under the a la carte and the bar food menus and the
great extent to which the takings are provided by food as opposed to drink, I
would hold that Mr Taylor provides in the premises the facilities of a
restaurant and the activities in the premises comprise overall the carrying on
of a restaurant. I do not think it essential that restaurant customers should
be confined to a particular area from which all others are excluded.
Accordingly, I
would for my part allow this appeal and set aside the order of the judge, and I
would make a declaration that the applicant’s tenancy is one to which Part II
of the 1954 Act applies.
Agreeing, STUART-SMITH
LJ said: If the question to be answered is whether Mr Taylor is running a
public house or a restaurant, I think the answer would be that he is running a
public house, but that is not the question posed by section 43(1)(d)(i)
of the Landlord and Tenant Act 1954. That section provides that the relevant
provisions of the Act do not apply to a tenancy of premises licensed for the
sale of intoxicating liquor for the consumption on the premises other than:
(i) premises which are structurally adapted to be
used, and are bona fide used, for a business which comprises . . . the carrying
on of a restaurant, being a business a substantial proportion of which consists
of transactions other than the sale of intoxicating liquor.
The word
‘comprises’ in that section in the context means ‘includes’.
The judge held
that the premises had been structurally adapted and that a substantial
proportion of the business consisted of transactions other than the sale of
intoxicating liquor. In fact, well over 50% of the takings were attributable to
the sale of food. This fact alone is a material consideration in the issue in
this case.
There is no
question of Mr Taylor’s bona fides. The only question was whether he was
carrying on in the premises the business of a restaurant. It is plain that the
licensee of a public house can carry on a restaurant business as well as
carrying on what might be described as an ordinary public house business, the
principle function of which is the sale of intoxicating liquors.
The Oxford
English Dictionary definition of ‘restaurant’ is:
[An establishment]
where refreshments or meals may be obtained.
In the context
of section 43 that is too wide a definition since it would be apt to include
the ordinary public house where sandwiches and snacks and what is colloquially
known as ‘bar food’ or ‘pub grub’ is sold at the bar. In ordinary parlance this
could not be described as a restaurant business. Although I do not think the
word can be defined more closely, there are, in my view, certain
characteristics, some or all of which one would expect to find in a restaurant.
First, the food must be consumed on the premises and not taken away and eaten
elsewhere. Second, it is eaten off a plate using cutlery. Third, it is eaten
sitting down, either at a table or a counter. There will often be waitress
service to a greater or lesser degree, though it is possible to have a
self-service restaurant. The available dishes will be more complex than bar
food, usually served with vegetables. They will often be cooked to order rather
than pre-prepared. The meal is likely to consist of more than one course. There
is likely to be available a choice of wines, at least if the restaurant is
licensed. I do not say this is an exclusive or an exhaustive list, but if these
characteristics are all present, then I think that most people would describe
the business as one of running a restaurant.
All these
characteristics are present at the Wheatsheaf. Why, then, did the judge
describe Mr Taylor as not carrying on a restaurant business? The essence of the judge’s findings is to be
found at p8M — and I read a little earlier than Dillon LJ did — when he says:
Nevertheless,
it must be relevant at least to consider the degree of delineation between the
alleged restaurants and the remainder of the business. And looking at the
Wheatsheaf, one has to be struck by the substantial, if not complete absence
of delineation. The menu, the ordering system, the staffing arrangements,
the service arrangements, the payment arrangements and the furniture are the
same throughout the premises. In my assessment, it is quite impossible to
delineate an area within the Wheatsheaf and say: That is the restaurant.
He then goes
on to refer to a number of points made by Mr Edward Cole, the third of which
was:
In essence,
visitors to the Wheatsheaf all receive the same food, drink and service. They
simply choose the area in which to sit, according to their individual
preference.
Then I do not
need to repeat the paragraph which Dillon LJ has already read.
There are, I
think, three crucial factors in this conclusion: first, the absence of
delineation; second, the fact that the furniture is the same throughout the
public areas; and, third, the fact that all visitors receive the same food,
drink and service. It is quite plain from his evidence that Mr Taylor regarded
the area delineated on the plan as ‘dining-room’ as the restaurant and he so
referred to it. If this room had a door marked ‘restaurant’ and only those who
ordered from the a la carte menu were served there and they could not
choose to take their meal elsewhere, it would, in my judgment, be unarguable
that Mr Taylor was running a restaurant business. I cannot see that the fact
that some customers may choose to eat their a la carte meal in the
lounge or the garden, as opposed to the dining-room, can prevent the business
being a restaurant. Nor do I think that the fact that a customer who is having
only a drink or a drink with bar food is able, if there is room, to sit at a
table in the dining-room affects the position either.
The judge was
in fact wrong in describing the furniture as the same throughout the premises.
In an earlier passage, he had said:
The chairs in
the dining room are identical to the chairs elsewhere in the Wheatsheaf. The
tables may be of a slightly different shape and size, but are of the same
overall type.
Even that, in
my judgment, does not give an accurate impression. There is a significant
difference between the tables and chairs in the dining-room and those in the
rest of the premises. The former are typical dining tables which can perhaps be
described as refectory. The chairs are all upright chairs with backs and in the
rest of the premises the tables are much smaller. They are much more convenient
for drinks only and bar food, rather than for a number of people sitting down
to a meal including knives and forks, and some of the tables, at least, seem to
be appreciably lower than those in the dining-room. The seating in the rest of
the premises consists of settles, stools and some chairs, which may well be the
same as those in the dining-room.
I agree with
Dillon LJ that the question in this case cannot depend on nice questions of the
nature of the furniture, but the judge plainly attached considerable importance
to the fact that, in his view, there was little to choose between the various parts
of the public premises. To my mind the photographs of the dining-room is
precisely what one would expect of a restaurant in a public house. The
photograph of the bar and the lounge area are markedly different.
Third, I think
the judge was wrong to say that, in essence, visitors to the Wheatsheaf all
receive the same food, drink and service. They simply choose the area in which
to sit, according to their individual preferences. A customer who orders only a
drink gets it himself from the bar and sits where he likes. A customer who
orders only bar food as well as a drink gets ready-prepared food brought to him
in addition to his drink. But this food differs in price and complexity from
the a la carte menu. While there is obviously flexibility as to where meals
are consumed, there are occasions — notably on Friday and Saturday nights —
when the dining room is fully booked by those eating the a la carte
menu. Moreover, I cannot see that the fact that those having bar food have it
served to them by waitresses in the same way as those eating a la carte
can prevent the business being that of a restaurant. It merely means that there
is a somewhat higher standard of service to all customers who are eating there
than might be expected in a public house that had no restaurant.
There are also
some facts which I would regard as of some significance, which the judge
omitted from his resume. On busy nights there are two chefs employed in the
kitchen with three waitresses; there are two people only serving behind the
bar. If there is a telephone booking for the dining-room, the tables are laid
up in advance, and at weekends it is fully booked for the a la carte
diners. There is a wine list of reasonably good and moderately priced wines. It
is not a place for the wine connoisseur, but the list is typical of a small
restaurant serving good food and wine.
For these reasons
and those given by Dillon LJ, I agree that the learned judge fell into error
and drew the wrong inference from the facts established in this case. I also
would allow the appeal.
Also agreeing,
EVANS LJ said: Although we are differing from his conclusion on one of
the matters which he decided, I should like to pay tribute to the judgment of
Mr Recorder Palmer QC, sitting as a deputy county court judge. His judgment, if
I may say so, was meticulously careful and clear. His findings of primary fact,
almost without exception, are accepted by both parties, as is his decision on
all the matters other than the one raised by this appeal.
What comes
before us is a preliminary issue and therefore we have only a limited knowledge
of the background. Suffice it to say that the lease in question ran for five
years from June 1 1986. That lease followed a planning application which was
made in the name of the respondents and which was described in the following
terms:
Demolition of
existing single storey buildings: extension of [ground floor] bar areas, new
kitchen and restaurant area . . .
That work was
done at substantial expense and we were told that the greater part of that
expense was borne by Mr Taylor.
The lease came
to an end on May 31 1991 and the question has arisen whether the tenancy is
protected under the Landlord and Tenant Act 1954. The relevant provision is
section 43(1)(d) of that Act as amended by the Finance Act 1959, Second
Schedule, para 5. That section has in many respects what might be called a ‘period
flavour’ so far as its language is concerned, not least in the reference in
subpara (d)(iii) to:
premises
adapted to be used . . . as refreshment rooms at a railway station.
What is clear
for present purposes is that subpara (d)(i) makes it necessary to
identify a restaurant as opposed to, in the present case, a public-house
business. I have no hesitation in accepting that such a distinction exists. I
would, for my part at least, hold that that distinction must be applied in the
circumstances of today. It is common knowledge that many public houses today
provide food and meals on a scale which was not often found in 1954.
Mr Brock
developed a submission founded upon words used by Lord Mancroft in Parliament
when introducing the relevant provision and which included the description
‘ordinary public house’. I am not sure that I have fully understood Mr Brock’s
submission. He stresses the fact that circumstances have changed since 1954, as
they certainly have done and, if I understood his submission correctly, it may
have been to the effect that what was an ordinary public house in 1954, and
still is, is something different from the kind of business which is carried on
at the Wheatsheaf, making it, I suppose, some kind of extraordinary public
house. It seems to me that that submission is of no help at all, if I may say
so. If the question is whether the business of the Wheatsheaf is that of a
public house or something else, in particular a restaurant, then the answer is
clear, it is a public house, but one which provides extensive food and meal
services.
The question
which arises, which was correctly expressed by the learned judge, was simply:
‘Does the above operation’, meaning the business carried on at the Wheatsheaf,
‘include the carrying on of a restaurant?’
I readily accept that the word ‘restaurant’ implies something different
from what is commonly called ‘pub food’. To that question, posed in those
terms, it is difficult to avoid the conclusion that the business does include
the carrying on of a restaurant. In favour of that conclusion, the principal
factors seem to me to be these: a dining-room is provided which has appropriate
furnishings for a dining-room; the menu and the wine list are both of a high
standard; a limited amount of service is available at table; and it is possible
to book tables in advance. Against the conclusion are the facts that the
service is limited, some of the facilities are shared with bar customers, and
the same food and wine are available to all customers, including bar customers
if they so wish, subject only to
The learned
judge answered that question in a sentence which Dillon LJ has already read
from p8N of the judgment:
However, I
regret that I cannot identify anything which can properly be said to be the
carrying on of a restaurant.
That seems, if
I may say so, a strange conclusion to reach when it must be clear that there is
much to be said for the proposition that part of this business is the carrying
on of the business of a restaurant.
It seems to me
that the learned judge, with respect, in fact answered a rather different
question from the one which he had posed. He seems to have envisaged that it
was necessary for there to be a separate restaurant or for the restaurant
business to be a separate part of the whole business. A clue is given, perhaps,
by his one-sentence finding earlier in the same paragraph,
But it
provides one overall service.
In my
judgment, it is not necessary, as a matter of law, for the restaurant business
to be entirely separate from, whether physically or in respect of service, or
in any other way, the other business, that is to say bar custom carried on on
the same premises. Indeed, it is obvious that the two businesses, in
circumstances such as these, may overlap, in fact they almost inevitably will.
I would therefore hold that it is not necessary for the business of the
restaurant to be separate from the remainder of the business. It seems to me
that that conclusion permits us to interfere with the learned deputy county court
judge’s decision. I am reluctant to do so, in particular because he viewed the
premises and we have not done. But, on the other hand, as Dillon LJ has said,
what is essentially in issue is the correct inference to be drawn from primary
facts, which essentially are undisputed, and, above all, the correct
application of the statutory provisions to them.
For the
reasons I have indicated, I agree with Dillon and Stuart-Smith LJJ that the
present case does fall within the subsection and would therefore allow this
appeal.
DILLON LJ added: I would like to associate myself with Evans LJ’s tribute to
the care taken by the deputy judge in preparing his judgment.
Appeal
allowed with costs both here and below; application for leave to appeal to the
House of Lords refused.
