Scottish Court of Session Decisions

By section 8 of the Public-Houses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. c. 35), it is provided, inter alia—“If any person shall be desirous of keeping … a public-house … for the sale therein of spirits, wine, beer, or other exciseable liquors, whether to be consumed on the premises or not, he shall previous to the granting to him of a certificate for that purpose, or the renewal of any such certificate already granted, truly fill up an application for such certificate in the form contained in the first part of Schedule B to this Act annexed, and shall truly answer the several queries therein contained.… And every such application shall be filled up in a fair and legible hand, and shall be signed by the applicant or his agent thereunto authorised, and shall be lodged by the applicant with such clerk of the peace or town-clerk, as the case may be, fourteen days at least before the general meeting of the justices of the peace or the magistrates for granting and renewing certificates.”

By section 11 of the same Act it is enacted that any person owning or occupying property in the neighbourhood of the house or premises, in respect of which any certificate or renewal of any certificate shall be applied for, may object to the granting or renewal of such certificate by lodging at any time not later than five days before the meeting of the licensing court a notice in writing specifying the grounds of his objection.

On 22nd March 1899 Francis M'Farlane presented an application to the Magistrates of Leith, in which he stated that he was desirous to obtain a certificate for licence for a public-house at 17 Charlotte Street, Leith, for the ensuing year, in terms of the Public-Houses Acts Amendment (Scotland) Act 1862, and Acts therein cited. This application had subjoined to it the queries contained in Schedule B annexed to the Public-Houses Acts Amendment (Scotland) Act 1862, and made reference to the answers to these queries which, it was stated, were truly made. One of these queries was as follows:—“Whether applicant has attained twenty-one years of age.” M'Farlane's answer to this query was “Yes.” The application was for a new certificate.

The application came before the Magistrates on 11th April 1899, and they pronounced a deliverance granting it. A certificate thereafter was issued to M'Farlane. On 4th May the certificate came up for confirmation before the Joint Licensing Committee for Leith district, who confirmed the certificate. At the meeting of the Confirmation Court an agent for certain objectors to the granting of the licence stated that he had reason to believe that M'Farlane was not twenty-one years of age.

On 10th July 1899 Joseph Bootland, auctioneer, Leith, and a number of other ratepayers in the burgh of Leith, who were owners or occupiers of property in the neighbourhood of 17 Charlotte Street, and who had appeared as objectors to the granting of the certificate in the Licensing Courts, raised an action against (1) Francis M'Farlane, (2) the Magistrates of Leith, (3) the Clerk to the Licensing Court of Leith burgh, (4) the Joint Licensing Committee for Leith District, and (5) the Clerk to the said Joint Licensing Committee. The action concluded (1) for reduction ( a) of the deliverance of the Magistrates granting the application, ( b) of the deliverance of the Confirmation Court confirming the certificate, and (c) of the certificate; and (2) for interdict against M'Farlane trafficking in exciseable liquors in the premises referred to.

The pursuers averred—“(Cond. 6) Since the Confirmation Court the pursuers have ascertained and now aver that the defender M'Farlane was born at Shotts on 10th September 1879, and has thus not completed his twentieth year. An extract of the said defender's birth is herewith produced and referred to.” They also averred that the defender's statement as to his age was in essentialibus of his application, and was made falsely and fraudulently with the

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purpose and effect of deceiving the magistrates, or at least that it was false.

The pursuers pleaded, inter alia—“(1) The said deliverances or judgments having been pronounced, and the said certificate obtained, by means of the false and fraudulent misrepresentation condescended on, decree of reduction should be granted as concluded for. (2) The said deliverances or judgments having been pronounced and the said certificate granted and confirmed under essential error on the part of the Magistrates and Joint Licensing Committee, induced by the defender M'Farlane's material misrepresentations, they fall to be reduced. (3) On a sound construction of the licensing statutes, and at common law, no person under twenty-one years of age can competently hold a public-house licence, and the defender M'Farlane being under that age the licence in his favour is illegal, and should be set aside.”

Francis M'Farlane lodged defences, in which he admitted that he was under twenty-one years of age, but alleged that he had good ground for believing and did believe that he was twenty—one at the date of his application.

He pleaded, inter alia—“(1) No title to sue. Justertii. (2) The action is incompetent, and ought therefore to be dismissed with expenses. (3) The pursuer's statements are irrelevant, and the action ought therefore to be dismissed with expenses. (5) The Magistrates' deliverance and the certificate following thereon being both legal and valid, and having been legally and validly granted to, and the certificate being now legally and validly held by, the defender, decree of absolvitor with expenses ought to be pronounced.”

On 20th January 1900 the Lord Ordinary ( Kyllachy) granted decree of reduction, declarator, and interdict in terms of the conclusions of the summons.

Opinion.—“This action concludes for reduction of a certificate granted to the defender for a public-house in Leith, at a Licensing Court held in April last (1899). The pursuers are certain persons who, as being proprietors or occupants of neighbouring premises, had right, under the licensing statutes, to appear and object, and in fact did so, but unsuccessfully.

There are several grounds of reduction but they all depend on this: that the defender was at the date of his application, and also of the certificate, between 19 and 20 years of age. In view of this fact, which is not disputed, it is contended by the pursuers (1) that minority is per se a disqualification for holding a licence, and that, accordingly, the licence is void; (2) that the applicant having represented himself as of full age, and thus obtained the licence by fraud, the certificate is, on that ground, reducible; and (3) that it being an express statutory condition that an applicant for a licence shall lodge a written application, answering ‘truly’ certain questions, of which one is whether he is over 21 years of age, and the applicant here having answered this last question falsely, such false answer vitiated the whole proceedings, making the certificate void, as granted in non-compliance with a statutory condition.

I am not prepared to hold that minority is itself a disqualification. It is certainly not so at common law. A minor may unquestionably carry on any business; and with respect to the statute no such disqualification is there expressed, or in my opinion implied. It is no doubt required that the magistrates shall have before them information on the subject of the applicant's age. I shall advert to that presently. But there is, so far as I can discover, nothing to prevent them, if they choose, granting a certificate to a minor.

Neither do I propose to hold that a certificate can be reduced (at all events at the instance of third parties) on the ground simply that the applicant made a false statement before the magistrates, or even a false statement which was prima facie important. In such a case it would, at the least, be necessary to aver and prove that the magistrates were in fact deceived, and that but for the deception the certificate would not have been granted. But apart from that difficulty, I desire to reserve my opinion as to how far, in what circumstances, and at whose instance, a reduction of a judgment, certificate, or other proceeding, judicial or administrative, can be brought successfully on such a ground.

But having given the matter somewhat anxious consideration, I am of opinion that the third ground urged by the pursuers is a good ground of reduction. There is no doubt that an application in the prescribed form is a statutory requisite. It is required in its present form by the 8th section of the Act of 1862 and the relative Schedule B. And I do not suppose it would be argued that without an application a certificate could be lawfully granted. But an application being requisite, it must, I apprehend, be an application in terms of the statute; and amongst other things which the statute prescribes is this, that the applicant shall ‘truly’ fill up a certain form, and shall ‘truly’ answer the several queries which the form propounds. An application therefore which omitted to answer the prescribed queries, or some of them, could hardly I think be considered an application under the statute; and that being so, it seems to be none the less essential that the queries if answered shall be ‘truly’ answered. In short, an application which either omits to answer the statutory queries, or which answers them not ‘truly’ but falsely, is not, in my judgment, for the purposes of the statute, an application at all. Assuming the omission to be observed, or the falsehood to be manifest, the magistrates would not, I apprehend, be bound or indeed entitled to consider the application. Nor would the clerk be bound to include it in the prescribed advertisement under section 9.

I do not overlook that some of the statutory queries relate to matters as to which truth or falsehood can perhaps hardly be predicated. Nor do I forget that it may perhaps be a question whether the word ‘truly’ as used in the statute means

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more than truly to the best of the applicant's knowledge. I fail, however, to see how even if that construction were admitted, it could avail the defender here. The defender's age is a factum proprium. He gives no explanation of his error. If he did not know his age, he had the means of knowing it; and if he did not use those means, he was not justified in making a statement as to which he did not know whether it was true or false.

As to the pursuers' title to sue, it does not seem to be necessary to consider whether the ground of action here being that the certificate is outside the statute, and therefore a nullity, an action such as the present would or would not be competent at the instance of any member of the public. That point has been argued, but it is enough—as it seems to me—to sustain the title of the present pursuers, that they are, as I said at the outset, persons who under the statute have a recognised interest and status as owners or occupants of neighbouring premises, and who in that character appeared as objectors to the granting of the certificate under challenge.

Nor, if I am right otherwise, do I require to say anything as to the exclusion of review and the finality clauses contained in the statute. In setting aside the certificate the Court does not in any sense review the Magistrates' decision; nor if that decision is outside the statute, can the finality clauses be appealed to.

“On the whole matter I am of opinion that the pursuers are entitled to decree in terms of the conclusions of their summons.”

The defender Francis M'Farlane reclaimed, and argued—The mere fact that one of the questions in the application was answered wrongly did not thereby make the proceedings and certificate null. The pursuer when he answered the question honestly believed that he was 21 years of age; he therefore answered “truly” according to his belief. The ground of the Lord Ordinary's judgment appeared to be that there was no application before the Court, because of this error as to age. This reading of the statute was too strained and strict. The application was null only when there had been no report as to the premises or no certificate as to the applicant's character in accordance with the latter part of section 8 of the Act of 1862. Statements of the kind made by the pursuer were not a relevant ground for reduction— Begg v. Begg, February 27, 1889, 16 R. 550. At any rate, in order to make the action relevant, it should have been stated in the condescendence that the Magistrates would not have given the applicant a certificate if they had known that the statement as to age was erroneous. This was not stated, and it was for the Magistrates themselves to take proceedings in order to deprive the defender of his licence if they had granted their certificate in error. But the Magistrates did not appear in this action although called as defenders, and it must therefore be assumed that they were willing that the defender should hold the licence even if he were under age. There was nothing in the mere fact that the licensee was under age against the licence being granted if the Magistrates were willing to grant it. The pursuers being members of the general public, had no title to sue an action of this kind.

Argued for the pursuers—The truth of the answers was one of the conditions on which the certificate was granted. The statute required the questions to be answered “truly.” “Truly” was twice used in the section, and the applicant was thus put on his guard and warned that he must answer with strict accuracy. The defender had been guilty of non-compliance with a statutory requirement and must take the consequences. If the truth of these answers was one of the conditions on which the licence was granted, it did not matter whether or not there was intention to deceive. The licence in this respect was in the same position as an insurance policy, as to which see Standard Life Assurance Company v. Weems, August 1, 1884, 11 R. (H.L.) 48. The pursuers had a good title to sue. They were not outsiders. Under section 11 of the Act of 1862 they had a statutory title to be parties to the cause.

At advising—