ARTHUR LOH KOK CHEONG AND ANOTHER v. APPEAL BOARD UNDER THE SMOKING (PUBLIC HEALTH) ORDINANCE AND ANOTHER

HCAL 16/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 16 OF 2008

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AND BETWEEN

HCAL 58/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 58 OF 2008

____________

____________

BETWEEN

____________

AND BETWEEN

HCAL 66/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 66 OF 2008

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____________

BETWEEN

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(Heard together)

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J U D G M E N T

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I.  Introduction

1.  In 2006 the Smoking (Public Health) Ordinance (Cap. 371) was amended to ban smoking in public, including in restaurants. But the Ordinance exempted “Qualified Establishments” from the operation of the ban until 1 July 2009. One such type of “Qualified Establishment” is a “Qualified Bar”. 

2.  In these proceedings, in effect, the central issue is whether the 3 establishments (respectively known as “Biztro”, “Bull and Bear” and “Sticky Fingers”) which are the subject matters of these consolidated proceedings are “Qualified Bars” within the meaning of the Ordinance.

3.  Each of the 3 establishments had previously been included in the Director of Health’s List of Qualified Establishments as “Qualified Bars”.  Following inspections, the Director determined that none of the establishments satisfied the statutory criteria of a “Qualified Bar”.  The Director therefore removed them from the List.

4.  Each of the 3 establishments then appealed to an Appeal Board set up under the Ordinance.  In each case, the Appeal Board confirmed the Director’s decision (in Biztro’s case, by a majority). 

5.  The 3 establishments now seek judicial review of the Appeal Board’s decisions in their respective cases.  Their case is essentially that the Appeal Board misconstrued (and so misapplied) the statutory criteria for a “Qualified Bar”.

6.  The difficulty in the application of the Ordinance arises because each of the establishments sell and serve both alcoholic drinks and meals.  But there was evidence that in the case of each establishment the monthly ratio of sales of intoxicating liquors to meals (whether considered in terms of cash or by volume) was significantly in favour of intoxicating liquors.

7.  Thus, for example, in the case of Bull and Bear, there was evidence that over a given period sales of meals was only 10.8% in cash terms (6.7% in volume terms) of overall sales of food and liquor.  Evidence to like effect was adduced before the Appeal Board in relation to Biztro and Sticky Fingers.

8.  Accordingly, the establishments contend that, by any commonsense yardstick, they are “bars” being “mainly used for the sale and consumption of liquor”.  The establishments emphatically deny that they are “primarily engaged in the sale and supply of meals”.  That the Appeal Board concluded otherwise (the establishments say) must mean that its decisions were irrational.

II.  Background

9.  A “Qualified Bar” is defined in Sched. 6, s. 4(1) of the Ordinance as follows:

“(1)   For the purposes of this Part, an establishment is a qualified bar if all the following requirements are complied with:-

(a)     the establishment is a bar as defined in section 2 of this Ordinance;

(b)     the establishment is permanently and completely partitioned off from any other establishment;

(c)     either:-

(i)      a liquor licence specifying the bar and no other premises as the licensed premises is in force in respect of the establishment;

....

(d)     no displayed name of the establishment contains ‘酒 家’, ‘酒樓’, ‘餐廳’, ‘卡拉 OK’, ‘網吧’, ‘restaurant’, ‘café’, ‘karaoke’, ‘internet’ or similar expressions; and

(e)     the establishment is not engaged primarily in the sale or supply of meals.”

10.  Section 2 of the Ordinance defines a bar to mean:

“Any place that is exclusively or mainly used for the sale and consumption of intoxicating liquor as defined in section 53(1) of the Dutiable Commodities Ordinance (Cap.109) [DCO].”

11.  Intoxicating liquors are defined in DCO s. 53(1) as spirits, liqueurs, wines, beer and all other liquors fit and intended for use as a beverage.  Liquor is defined as any liquid which contains more than 1.2% of ethyl alcohol by volume.

12.  There is no dispute that the 3 establishments meet the conditions in ss. 4(1)(b)-(d) of Sched. 6 of the Ordinance.  The dispute is instead over the requirements in ss. 4(1)(a) and (e) of Schedule 6. 

13.  The question is whether the 3 establishments are “Qualified Bars” within the Ordinance insofar as they:

(1)     are “exclusively or mainly used for the sale and consumption of intoxicating liquor”; and,

(2)     are “not engaged primarily in the sale or supply of meals”.

14.  Biztro holds a general restaurant licence and a liquor licence.

15.  It has a bar area.  But it also includes some 14 tables.  At the time of inspection, the tables appeared to be set for lunch dining purposes.

16.  Biztro is open from 12.00 to 22.30 on Mondays to Saturdays and 13.00 to 21.00 on Sundays and holidays.  Its promotional material reads:

“Stylish and contemporary, Biztro evokes the flavours and aromas of Mediterranean cooking, from roast chicken in a heady paprika, lemon and rosemary marinade to pungent seafood stew spiked with saffron, and Spanish paella from its birthplace, Valencia.

Apart from being a lovely venue for a quiet lunch and dinner, Biztro also serves delicious coffees and freshly baked pastries for afternoon tea.  And as the sun sets, Biztro captures the perfect ambience in which to enjoy dinner accompanied by delightful live music.”

17.  In the case of Biztro, the Appeal Board’s Reasons were expressed as follows:

“Members of the Board have different views.  One member was of the view that if a bar has branched out to becoming a restaurant, even only during certain period of its operating hours, it would be enjoying an undue privilege in comparison to other restaurants that are not exempted from the smoking ban.  By way of comparison, if a restaurant operate as a bona fide bar for a certain period during its operating time, it could not enjoy the benefit of a deferred smoking ban.  Another member of the Board agreed and further opined that Biztro did intend to and in fact operate another type of business during lunch hours, the provision of a wide variety of food throughout the day was a manifestation that this bar was basically operating as a restaurant during certain periods of the day.

The remaining member of the Board was of the view that the Director should have considered whether the establishment had met the specified requirements in a holistic manner, including the mode of operation of the establishment in other periods of the day.  On the basis of the information presented before the Board by both sides, this member was satisfied that as a whole Biztro was not engaged primarily in the sale or supply of food.”

18.  Bull and Bear holds a general restaurant licence and a liquor licence.

19.  It has a bar area.  But it also includes 10 tables which (at the time of inspection) appeared to be set for lunch dining purposes.

20.  On weekdays, the establishment offers breakfast from 8.00 to 12.00, lunch from 12.00 to 14.30, and dinner from 18.00 to 22.00.  On Sunday, food is served from 8.00 to 20.00.  There is a snack menu from 18.00 to midnight.

21.  In the case of Bull and Bear, the Appeal Board’s Reasons were expressed as follows:

“The Appeal Board opined that food items being served in Bull & Bear were more than what a bar would normally offer, in particular the ‘black angus steak’, ‘lamb chop’ and ‘chicken curry’.  The Appeal Board believed that the Appellant did make use of such particulars in the menu to attract customers as though Bull & Bear is entirely a restaurant-like premise.  The Appeal Board accepted the Respondent’s submission that if a bar turned itself into a restaurant during certain period(s) of time during its operational hours, it would be enjoying an undue privilege which is not available to restaurants in general.”

22.  Sticky Fingers holds a general restaurant licence and a liquor licence. 

23.  It has a bar area.  But it also includes a large seating area of around 23 tables which (at the time of the inspector’s visit) appeared to be set for lunch dining purposes.

24.  On a given day, the establishment offers a “Set Breakfast” from 7.00 to 11.30, a “Set Lunch” from 11.30 to 15.00, and a detailed “A-La-Carte Menu” from 11.00 am to 23.30.  A “Snack Menu” is available from 15.00 to 3.00 (in the morning).

25.  In the case of Sticky Fingers, the Appeal Board’s Reasons were expressed as follows:

“The Appeal Board was convinced that Sticky Fingers was offering a wide variety of food, which could be consumed independently as a meal throughout the whole day.  The Board considered that food items being sold in Sticky Fingers were much more than what a bar would normally do.  The Appeal Board also considered that, under the Ordinance, a qualified bar should not operate as restaurants on a smoking basis for certain parts of the day, lest creating an unlevel playing field within the industry.”

26.  Before the Appeal Board, the establishments all provided evidence of turnover (in cash and volume terms).

27.  I note that there have been inconsistent decisions by the Appeal Board in the past.  In some previous instances, involving different establishments, the Appeal Board has found the relevant premises to be “Qualified Bars” even though they also serve meals.  In those particular instances, the Appeal Board appears to have been persuaded that it was pertinent to consider whether overall sales of liquor by the establishments were significantly greater than sales of food.

III.     discussion

28.  In this section, I will first discuss the correct approach to applying the conditions that an establishment be “mainly used” for the sale and consumption of liquor and not engaged “primarily” in the sale and supply of meals. I shall then consider how the Appeal Board actually applied the conditions to the 3 establishments.  

A.  Condition that “mainly used for sale and consumption of intoxicating liquor”

29.  Mr. Paul Harris SC (appearing for the 3 establishments) suggests that the word “mainly” should be given its ordinary meaning.  Thus, where (as here) premises are used for the dual purposes of serving liquor and food, one must assess which purpose is as a matter of fact the “main” use of the premises.

30.  Inspectors typically visited the 3 establishments at lunchtime.  At such time, the establishments accept that they were serving liquor to some customers, meals to others, and combinations of liquor and food to yet others. 

31.  But (Mr. Harris points out) one must look at the whole picture of what an establishment does.  One cannot determine whether an establishment is a bar, simply because at a discrete period of the day (say, lunch or dinner time) it serves meals as well as alcohol.

32.  Here looking at the use of each of the 3 establishments as a whole, it is readily apparent (Mr. Harris submits) that they sell and serve significantly more liquor than food and so are “mainly used for the sale and consumption of ... liquor”.

33.  Mr. Harris cites Pilkington v. Ross [1914] 3 KB 321 in support of his contention that it is necessary to apply the natural and ordinary meaning of “mainly used” to what an establishment does as whole. 

34.  The case involved a violation of s.120 of the Children Act 1908.  Sub-section (1) of the Act prohibits premises which are licensed to serve alcohol from allowing a child “to be at any time in the bar of the licensed premises except during the hours of closing”.  Sub-section (5) of the Act defines “the bar of licensed premises” to mean “any open drinking bar or any part of the premises exclusively or mainly used for the sale and consumption of intoxicating liquor”. 

35.  A child was found in the kitchen of licensed premises.  The kitchen was used both for the sale of liquor and for domestic cooking.  The justices held that the kitchen was exclusively used for the purpose of trading liquor during certain parts of a day. They thought that the user of the kitchen for different purposes during other parts of a day did not preclude the kitchen from falling within the definition of a “bar” in s. 120(5) of the Act.

36.  The High Court upheld the magistrates. 

37.  Avory J pointed out (at 323) that:

“the justices intended to find that the user of the room as a whole was mainly for the sale and consumption of intoxicating liquor, and that they were not precluded from so finding by the mere fact that during certain portions fo the day the room was used for ordinary domestic purposes.”

38.  Rowlatt J stated (at 323-4):

“But I wish, speaking for myself, to guard against giving any countenance to the idea that for the purpose of ascertaining what is the main user of a room you can split the day up into parts and say that a room comes within the definition of a bar during certain parts of the day and does not come within that definition during others.  It seems to me that this definition contemplates a room either being one which is open to children or one which is forbidden to them at all times.  Any other construction would open the door to great danger to children, because in any case in which the justices had to go into the question whether a room was mainly used for sale of intoxicating drink it would be open to the licensed person to say ‘Although this is the bar-parlour of the public-house I can prove that at this particular time of day there never was anybody supplied with drink or consuming it there.’ ”

39.  Shearman J held (at 324):

“I think the language of sub-s.1 shows that what the justices have to consider is the regular and general user of the room.... [The words of sub-s.1] make it clear that it is intended to impress a regular character on each room in the premises, and to divide them into two classes, those which are prohibited to children and those which are not, and it is a question for the justices in each case to decide whether the room in which a child is found comes within the one class or the other.  In the present case, upon a fair construction of what the justices said, I think that they must be understood to have found that this particular room came within the prohibited class and that they were not prevented from finding that it did so because during certain portions of the day it was used as a kitchen.”

40.  For my part, I accept that the expression “mainly used” should be read in its natural and ordinary meaning.  I did not understand Mr. Abraham Chan (appearing for the Director) to be strongly arguing for some other primary method of construction.

41.  But what precisely is that natural and ordinary meaning?  It seems to me that, as used in the s. 2 definition, “mainly” must bear the sense of “for the most part; chiefly; principally”.  Compare, for example, Miller v. Owners of the Ship Ottilie [1944] 1 KB 188 (at 191) where, construing the expression “remunerated … mainly by shares in the profits” in the Workmen’s Compensation Act 1925, Luxmoore LJ consulted the Oxford Dictionary and gave a similar meaning to the word “mainly”.

42.  In stating the foregoing, I bear in mind a point made by Mr. Chan.

43.  Mr. Chan notes that the purpose of the Ordinance is to prohibit smoking in certain public areas, including “an indoor area in ... any restaurant premises”.  See the long title, s. 3(1), and Sched. 2 Part 1 of the Ordinance.  That is presumably to protect the public from the potentially harmful effects of inhaling smoke.

44.  Mr. Chan submits (and I agree) that, in principle, an exception to a prohibition should be construed narrowly.  Otherwise, there is the obvious danger of construing an exemption so widely as to render a prohibition ineffective for the carrying out of its purpose.

45.  Further, I accept Mr. Harris’ submission that, in evaluating whether or not an establishment falls within the s. 2 definition of “bar”, one must look at what the establishment does as a whole.  I believe that the approach endorsed in Pilkington v. Ross makes sense in the context of the Ordinance.  Under the Ordinance, an establishment cannot be regarded as a “bar” at one moment or moments in the day and something else at other times.

46.  But I do not think that it can be right to assess whether an establishment is “mainly used” for the sale and consumption of liquor principally by comparing, ex post facto, its actual sales of liquor and food in any given period.  I do not believe that such a restrictive approach is logical. 

47.  To understand why not, consider the following scenario.  X proposes to run a “bar”.  He opens an establishment serving liquor and food.  X does an uneven business.  Few customers come to X for drinks, although on occasion persons buy food from his premises.  Over some given period, X’s monthly cash sales of liquor sometimes exceed his sales of food and sometimes do not.  Is X’s establishment a “bar” within s. 2?  Does X’s establishment fluctuate from being a “bar” and not being one depending on the composition of its monthly sales?

48.  I think that it would be wrong to evaluate the nature of X’s business purely by reference to the sales which he has actually generated over some period.  That method by itself would be a capricious measure.

49.  The composition of sales (whether in cash or volume terms) may change monthly, depending on customers’ whims or financial climate. Even if the composition of sales has remained consistent over a period of time, possibly a long period of time, that is no guarantee that the composition may not subsequently change.

50.  For this reason, I doubt that the Legislature intended such a fickle measure as the actual composition of sales to be determinative of an establishment’s status.  An assessment of whether s. 2 applies should more logically be by reference to what an establishment holds itself out to be doing, rather than simply to how in dollar or value terms an establishment has performed.

51.  In the absence of clear words to such effect, I seriously doubt that the Legislature intended that the Director or the Appeal Board should engage in a detailed investigation of an establishment’s audited or unaudited sales figures in evaluating the nature of its main business. 

52.  On the contrary, it seems to me that a commonsense practical approach is more likely what the Legislature had in mind.  A person (such as the Director) assessing whether the s. 2 definition of “bar” is met needs to look at what as a matter of fact an establishment actually purports to be doing as a whole.  Having obtained an idea of the totality of activities in which an establishment is regularly engaged, the assessor then asks himself whether the establishment can reasonably be said to be “exclusively or mainly used for the sale and consumption of ... liquor”.

53.  Analysis of an establishment’s turnover (whether more food or more liquor in cash or volume terms) may corroborate an assessment of what an establishment holds itself out as doing in the course of its business hours.  But, for the reason I have given, I am not convinced that an analysis of turnover can be any determinative or conclusive factor in an objective assessment.

54.  In support of his argument that turnover was a key factor, Mr. Harris referred me to Berthelemy v. Neale [1952] 1 All ER 437 (CA). 

55.  There the question was whether the applicant ran a “shop” within the terms of the Leasehold Property (Temporary Provisions) Act 1951. He thus had to show that his premises were “occupied wholly or mainly for the purposes of a retail trade or business”.  He argued that the space occupied by various activities in his premises was a highly material factor.  The judge (the applicant complained) appeared to have decided the question against the applicant solely by reference to the income earned on various activities carried out in the premises.

56.  Sir Raymond Evershed MR upheld the judge, saying (at 438):

“I think, if I have posed the question correctly and have correctly stated the test, the answer in any case is to be supplied by the tribunal of fact on common-sense lines.  No doubt, the relative incomes gained by the different activities conducted on the premises is a most important (and, possibly, in some cases the most important) element for consideration, but it is not necessarily exhaustive.”

57.  In my view, the passage cited does not go far in assisting Mr. Harris.  As the Master of the Rolls recognised, one must take a “commonsense” approach. It all depends on the circumstances.  In some cases, turnover may be relevant or even highly relevant.  In other cases, it may be less relevant or “not necessarily exhaustive”.  Much depends on the context of a given statute.  For the reasons which I have mentioned, although I do not totally exclude its utility, I doubt that turnover can be a highly determinative factor in the context of the Ordinance.

58.  There may, of course, be hard cases.  But provided the Director or Appeal Board comes to some reasonable conclusion based on all the facts, the Court will be slow to say (especially in a judicial review) that an assessment reached is in error.  The Court must allow a margin of appreciation or deference to the person assessing whether the statutory exception applies to an establishment.

B.  Condition that “not primarily engaged in the sale and supply of meals”

59.  In respect of this condition, Mr. Harris again argues that the word “primarily” should be given its natural and ordinary meaning.

60.  One cannot (Mr. Harris stresses) deduce from the merely occasional lunchtime visits of inspectors to the 3 establishments that, throughout the day in the course of their business, the establishments are “primarily” engaged in the supply of meals.

61.  Again I would agree that the word “primarily” should be given an ordinary (as opposed to a strained) meaning.  Such ordinary meaning would (it seems to me) have the sense of “chiefly” or “principally”.  Much the same considerations apply here as those already mentioned in connection with “mainly used”. One looks at the whole of what an establishment does in order to determine whether or not it is “primarily engaged” in the supply of meals.

62.  Mr. Harris further submits that there must be some reason why both s. 4(1)(a) and (e) are in Sched. 6.  He suggests that s. 4(1)(e) serves 2 functions. 

63.  First, it excludes restaurants which serve very high value wines with meals. 

64.  Second, it acts as an anti-avoidance measure to ensure that restaurants cannot circumvent the ban by artificially inflating the price of their drinks or reducing the price of their meals.

65.  Mr. Harris says that, accordingly, the presence of s. 4(1)(e) strengthens his submission in relation to the expression “mainly used for sale and consumption of ... liquor”. One can (Mr. Harris contends) compare total sales of liquor with that of food.  But one cannot (Mr. Harris suggests) get around that comparison by artificially inflating or deflating prices because of the existence of s. 4(1)(e).

66.  I am not persuaded by this latter submission.  I find nothing in the text of s. 4(1) to support Mr. Harris’ suggestion of an anti-avoidance function.  Nor do I see anything to suggest that s. 4(1)(e) was solely targeted against restaurants serving very expensive wines.  Mr. Harris’ submission here strikes me as speculative. 

67.  Section 4(1)(a) is couched as a positive injunction, s. 4(1)(e) as a negative one. The former stipulates that “qualified bars” ought to be mainly used for the sale and consumption of liquor, whatever else they might do.  The latter emphasises that, above all, “qualified bars” should not be places which are primarily engaged in the supply of meals.  I am not sure that there is anything more subtle to the 2 conditions than that. I do not think that the existence of s. 4(1)(e) validates an approach of looking principally at the composition of an establishment’s turnover.

C.  The Appeal Board’s actual approach

68.  Consider now how the Appeal Board decided each case.  It seems to me that there are difficulties with the Appeal Board’s approach in each instance.

69.  First, it will be seen that the Appeal Board did not mention turnover in any of its 3 sets of Reasons.  That may presumably have been because the Appeal Board did not regard turnover composition as relevant or highly relevant.  But, if that were the thinking, given that the establishments’ cases mainly relied on the composition of their turnover, I believe that the Appeal Board should at least have made some explicit mention of the turnover argument and why it was being rejected. 

70.  Second, in the case of each establishment, the Appeal Board appears to have concentrated either on the type of food served within an establishment or what an establishment did at a discrete point of the day.  However generously read, the Reasons do not appear to assess what on the whole an establishment was purporting to do throughout the course of its business hours.

71.  It cannot be right to focus on the type of food that an establishment serves because neither s. 4(1)(a) nor s. 4(1)(e) prohibits the sale of some food.  Indeed, implicit in s. 4(1)(e) is a recognition that an establishment may supply meals, provided the establishment is not primarily engaged in so doing.  There is nothing in s. 4(1)(e) confining the food supplied to mere snack items to nibble on, such as potato crisps or peanuts.

72.  It cannot be right to focus on what an establishment does at any discrete time of day (as opposed to the entirety of its business hours), because (as I have mentioned) the proper approach is to consider and characterise what an establishment is actually doing as a whole.

73.  As a matter of logic, that an establishment serves certain foods at certain hours will not necessarily mean that it is “primarily” engaged in the supply of meals.  As I have stressed, one has to look at what an establishment does as a whole. 

74.  In the case of Biztro, one member of the panel majority focussed too narrowly on Biztro holding itself out as a restaurant “during certain period of its operating hours”.  The other majority member appears to have taken a more global view and to have had regard to “the provision of a wide variety of food throughout the day”.  I say “appears” because this second majority member’s reasoning is far from clear.  That latter member took the view that such provision of a wide variety of food was “a manifestation that this bar was basically operating as a restaurant during certain periods of the day”.  Thus, even this second majority member may in reality have only concentrated on what Biztro did at a specific period of time, rather than over the whole of its business hours.

75.  In the case of Bull and Bear, the Appeal Board seems to have focussed on the type of food served by the establishment: black Angus steak, lamb chop, chicken curry.  It then expressed the view that, “if a bar turned itself into a restaurant during certain period(s) of time,” it should not be entitled to exemption as a “Qualified Bar”.  In other words, the Appeal Board only evaluated what the establishment did over a certain period of time or times and did not (as it was required to do) evaluate the whole picture.

76.  In the case of Sticky Fingers, the Appeal Board again had regard to the type of food sold (“food items being sold … were much more than what a bar would normally do”).  It believed that the supply of food over certain parts of the day disqualified Sticky Fingers from being a “Qualified Bar”.  Again, reference was made to what the establishment did at a certain part of the day, rather than to characterising the entirety of what the establishment was doing.

77.  Third, the Appeal Board seems to have only considered whether or not the establishments were primarily engaged in the supply of food.  The Appeal Board’s Reasons do not say whether the establishments were mainly being used for the sale or consumption of liquor.

78.  It might be thought that, in light of the Appeal Board’s conclusions that the establishments were primarily engaged in the supply of meals, it must be the case that the establishments were not being mainly used for the sale and supply of liquor. 

79.  But, as we have seen, the Appeal Board’s Reasons were too narrowly focussed on certain periods only and so were flawed.  It is unknown whether, applying the correct test, the Appeal Board would still conclude that each establishment was primarily engaged in the supply of meals.  It is therefore not possible to say how the Appeal Board would find in the case of each establishment on the question of meeting the s. 2 definition of “Qualified Bar”.

80.  In summary, in all 3 cases, the Appeal Board took account of irrelevant matters and failed to take account of all relevant factors.  The Appeal Board’s Reasons in each case cannot stand. 

IV.  CONCLUSION

81.  The judicial review applications succeed.  In the case of each establishment, the Appeal Board’s upholding of the Director’s decision to remove the relevant establishment from the List of Qualified Establishments is quashed.

82.  This being a judicial review, I do not think that it is appropriate to substitute the Court’s views for those of the Appeal Board which I have just quashed.  Instead, the individual cases are to be remitted to the Appeal Board for re-consideration. 

83.  In the case of each establishment, pending a fresh decision by the Appeal Board or until further order, the effect of the Director’s decision to remove the establishment from the List of Qualified Establishments is stayed.

84.  There will be an Order Nisi that the Director pays the costs of the Applicants in each judicial review.  Such costs are to be taxed if not agreed.