Delivery drivers and supply in the provision of late night refreshment

In a recent ruling a district judge has provided helpful clarity on the role of third party delivery drivers and the question of supply in the provision of late night refreshment under the Licensing Act 2003. Leo Charalambides and James Rankin examine the ruling.

On the 8th January 2023 the D operated a premises known as French Tacos on the Harrow Road, London W9. It was accepted by all parties that the D did not have an authorisation under the Licensing Act 2003 for the provision of late-night refreshment.

D accepted an order from the public for hot food via a third-party delivery app (Ubereats) at 00:08 – the order was placed by one of the City Council’s City Inspectors. D provided the hot food from a side window which was passed to the delivery driver. The hot food was passed by the delivery driver to the customer who had placed the order at a nearby address at 00:27.

The D was prosecuted under s 136 of the Licensing Act 2003 for the offence of unauthorised licensable activities. Schedule 2, para 1(a) states: 

“… a person ‘provides late night refreshment’ if – (a) at any time between the hours of 11:00pm and 5:00am, he supplies hot food or drink to members of the public, or a section of the public on or from any premises, whether for consumption on or off the premises …”  

It was accepted by the parties that hot food was supplied, it was supplied between 11pm and 5am and it was supplied to a member of the public. The issue for the Court was whether D made the supply from his premises. 

The D argued that by handing hot food to a delivery driver for onward delivery to customers he was not carrying out the licensable activity. It was argued that the supply was not made by the D from the premises but from the delivery driver’s e-bike at the customer's doorstep – when the food was handed over to the customer (cf. para 3.12 of the s 182 Guidance). The issue for the District Judge was to determine who made the supply. Was it the D from his premises or the delivery driver from his e-bike? 

In Westminster City Council v Andrabi (Westminster Magistrates’ Court) [24 October, 2024] District Judge Law found that as a matter of logic the legislation is tied to the producer of the food rather than the deliverer. The Judge accepted the Council's submission that the delivery driver is no more than a mere custodian just like a waiter or waitress (see R v Maginnis [1987] AC 303, HL at 309 A – B). 

The Judge found that the most obvious and ordinary meaning of the Sch 2, para 1(a) points to the food producer being the person who supplied the food. Thus, the Judge determined that the D made the supply from his premises and was guilty of an offence under s 136 of the Act. 

A copy of the carefully reasoned judgment can be viewed here.

Leo Charalambides is a barrister at Francis Taylor Building and appeared for Westminster City Council.

James Rankin, also of FTB, appeared for Mr Andrabi.