The Only Way is DPS
Designated Premises Supervisors named on licenses permitting the sale of alcohol may need to carefully review their role and responsibilities. Mark Banham from our Licensing Team looks at a recent court decision.
Designated Premises Supervisors (DPS) may need to carefully review their role, as the extent of their duties could be considered to go beyond those connected with the sale of alcohol under the Licensing Act 2003. The court has held a DPS personally liable for authorising and procuring acts of music copyright infringement where a nightclub had failed to obtain music licences.
A DPS is the individual named on a premises licence – the licence that permits the retail of alcohol at a public house, or club. They authorise the sale of alcohol at the premises, ensuring that the conditions on the premises licence and licensing objectives under the 2003 Act are met. They also provide an essential point of contact for police, fire officers and licensing authority officials.
However, the court decided that the DPS at the Miya Nightclub in Chelmsford Essex, made famous by the ITV show “The Only Way Is Essex”, had managerial duties that went beyond this and that it was her responsibility to ensure the requisite licences had been obtained from Phonographic Performance Limited (PPL) and PRS for Music (PRS) before playing recorded music. The court rejected the DPS’s defence that she was not the manager or had any proprietary interest in the club. They considered the Home Office’s guidance that the DPS “…is the key person who will usually be charge with the date to day management of the premises by the premises licence holder” and “will normally be the person who has been given the day to day responsibility for running the premises by the premises licence holder”. They decided that that meant that it would be unusual for a DPS not to be a person who had managerial control of the premises in order to meet the licensing objectives. In this particular case, this was supported by evidence which showed that she did act as manager of the club by booking DJs and promoters.
PPL and PRSL successfully obtained an injunction against the DPS to prevent her playing music in public without a licence. The DPS has also been ordered to personally pay the costs of the proceedings in an amount to be determined at a separate hearing in the new year. It is likely to be a significant sum. The Judgment is an important reminder of both the possibility of personal liability for copyright infringements and the potentially wide responsibilities of any person acting as a DPS. While in this case it seems that there was evidence that the DPS’s role at the club involved taking responsibility for booking entertainment, when she agreed to be DPS under the Premises Licence issued under the Licensing Act 2003 it may never have crossed her mind that she might also be taking on responsibility for ensuring that the Miya Nightclub was properly licensed in other respects