Scottish Court of Session Decisions

The Licensing (Scotland) Act 1903 (3 Edw. VII, c. 25), enacts—sec. 11—“ Certificates to Keep Inns', &c., to be Granted at Meetings—(1) At any general half-yearly meeting of a licensing court or at any adjournment thereof … it shall he lawful for the said court to grant certificates for the year or half-year next ensuing as the case may be … to such and so many persons as the court then assembled at such meeting shall think meet and convenient, to keep inns and hotels or public-houses within which exciseable liquors may under Excise licences be sold by retail to be drunk or consumed in the premises within the jurisdiction of such court: … Provided always that all such meetings shall be held with open doors, and that it shall not be competent to refuse the renewal of any certificate without hearing the party in support of the application for renewal in open court, if such party shall think fit to attend, and any certificate granted otherwise than at such meetings shall be void and of no effect.… “Section 19—“Any person or the agent of 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 less than five days before the general meeting of the licensing court, with the clerk to such court a notice in writing to that effect, signed by such person or his agent, specifying the grounds of such objection, which objection shall be heard at the then ensuing general meeting: … Provided always that no such objection shall be entertained unless it shall be proved or admitted that the person so objecting or his agent did, at least five days before such general meeting, deliver or cause to be delivered to the person applying for such certificate a copy of the aforesaid notice, or did forward to him by post, or did leave for him a copy thereof addressed to him at his place of abode as mentioned in his application, or, in the case of an application for the renewal of any certificate, at the licensed premises for which the application is made.…” Section 20—“It shall be lawful for the licensing court at any general meeting to hear and determine without the notice required by the immediately preceding section, any objections to be made verbally or in writing by any member of such court or by the procurator-fiscal, chief constable, or superintendent of police against the granting or renewing of any certificate.”

This was an action of reduction and declarator at the instance of Mrs Agnes Boyle or Walsh, formerly spirit merchant in Pollokshaws, and residing at 106 King Street there, against, inter alios, (1) the Provost and Magistrates of the said burgh as the licensing authority thereof under the Licensing (Scotland) Act 1903, and (2) the members of the Burgh Licensing Courts and the Justices of Peace for the county of Renfrew who attended and constituted the Licensing Appeal Court for the said burgh of Pollokshaws held at Paisley on 5th May 1904.

The pursuer craved reduction, of (1) a deliverance of the Magistrates of Pollokshaws made at a meeting for the granting and renewing of certificates for the sale of exciseable liquors under the Licensing (Scotland) Act 1903 held at Paisley on 12th April 1904, whereby the Magistrates refused the pursuer's application for a renewal of her certificate; (2) a deliverance of the other defenders sitting as the Court of Appeal for the said burgh.

The pursuer averred that she had held a public-house certificate for the premises at 81 King Street, Pollokshaws, since the death of her husband James Matthew Walsh on 22nd February 1902, and was entirely dependent for her support and that

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of her family upon the business; that she obtained the transfer from the Justices in the usual way a few days before the death of her husband, and renewals were granted to her without objection at the annual meetings of the Justices in April 1902 and April 1903.

She further averred—“(Cond. 2) … The deceased James Matthew Walsh purchased the business from the previous holder Alexander Finlayson. The price paid for the goodwill and fittings was £1050, and a transfer of the certificate was granted to said James Matthew Walsh in or about June 1900. The seller Alexander Finlayson had held the certificate for the long period of about fifty years, and his father had held it for some years before that. In addition to the £1050 for goodwill, the deceased paid A. Finlayson £47, 17s. for stock taken over, and he also spent considerable sums for additional fittings and alterations of a minor nature. (Cond. 3) No complaint was ever made against the management of the business by the licensing authorities or by the police, nor any objection taken to the renewal of the public-house certificate, and no complaint in regard to the suitability or the sanitary condition of the premises was ever made by the licensing authorities, the police, or the sanitary authorities prior to the Licensing Court of 12th April 1904. No notice of any objection to the application for renewal of the certificate was given to the pursuer prior to the meeting of the Court on said 12th April 1904. (Cond. 4) At the Licensing Court, on 12th April 1904, applications were made for the renewal of thirty-five public-house certificates in the burgh. The Magistrates dealt with various of these applications in four groups. The first group consisted of six applications, the second group consisted of ten, the third of five, and the fourth of eight applications. The remainder of the thirty-five were treated separately. The pursuer's application was in the third group of five. These were first all called together. Each of the applicants was then heard separately. When pursuer's agent moved for the renewal, Inspector Alexander Geddes, of the Renfrewshire County Police, verbally objected to the renewal on the ground that the premises were insanitary and the district congested. He did not, in stating the objections, give any explanation as to the alleged insanitary condition, and as to in what respect it consisted, but merely the pro forma objection, nor did he give any explanation as to the alleged congested condition of the district, and no questions were asked on these points by the Magistrates. The procurator-fiscal for the burgh was present but did not object. The said Alexander Geddes was not put on oath, and did not farther explain in what respect the premises were insanitary, and no evidence was led in support of either of said objections. After Inspector Geddes had verbally intimated his said objections, the pursuer's agent, in respect of the powers of the Licensing Court under the Act of 1903, sec. 42, sub.-sec. 3, informed the court that the pursuer would undertake, if her application were granted, to carry out any recommendation the court might make in regard to the sanitary arrangements of the premises, but his offer was disregarded. In point of fact, as the court knew nothing about the sanitary condition of the premises, and made no inquiry, they could make no recommendation. After hearing the agent for the pursuer, the members of the court, without calling for evidence, retired to consider the pursuer's application along with the four applications in the same group by other persons for renewal of certificates for other premises, and on returning to the court hall … Provost Robert Wilson, as chairman, intimated that the court refused two of the applications, including the pursuer's, on the ground that the premises were insanitary and the district congested, and her application was accordingly refused by the said court. No indication whatever was given, or has yet been given, in what respect pursuer's premises were insanitary. (Cond. 6) Said refusal to renew pursuer's licence was in pursuance of a preconceived determination of the Magistrates of Pollokshaws, adopted prior to the said Licensing Court. On 1st April 1904 the Town-Clerk, acting on behalf of the Magistrates, sent a letter to the pursuer and each of the other licence-holders in the following terms:—‘After full consideration of all circumstances, the Magistrates, at a meeting last night, were unanimously of opinion that the number of licensed premises in the burgh of Pollokshaws is greatly in excess of the reasonable requirements of the inhabitants. In view of this they have instructed me to write to all certificate holders in the burgh and inquire whether they have any scheme to propose or any suggestion to make whereby the number of licences may be reduced for the ensuing year. You are requested to let me have a reply to this communication not later than 7th inst.—Yours truly, Robert Bryce Walker, Town Clerk.’ The Magistrates in so acting and arriving at their unanimous opinion, and that before the statutory Licensing Court, exceeded their statutory powers and duties, acted illegally and to the pursuer's serious loss and prejudice. To this circular letter the Magistrates received a reply from the licence-holders collectively and from individual licence-holders personally. As their replies did not satisfy them, they arranged that Inspector Geddes should take objections to certain of the renewals in order to give them the opportunity of making the reduction on which they had determined. And at the said Licensing Court the Magistrates dealt with the applications without having any evidence before them that the district was over-supplied or which would enable them to discriminate among the various premises for the suppression of any of them, and in particular having no evidence before them that the pursuer's premises were insanitary, but disposed of the applications entirely on their own preconceived determination. (Cond. 9) The refusal to renew the pursuer's certificate was unwarranted, and the grounds given by the Magistrates

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were not such as they were entitled in law to proceed upon. Her premises were in the same condition, so far as sanitary arrangements are concerned, as they had been in for many years without any objection being taken thereto. The said defenders were bound, before proceeding upon such a ground to refuse a renewal of the pursuer's premises, to give her an opportunity of altering said premises to meet the requirements of the Magistrates. The action of the defenders was oppressive. Further, the defenders were not entitled to single out the pursuer's licence as they did and arbitrarily to refuse it on the ground that the district in which the pursuer's public-house was situated was congested. (Cond. 10) The pursuer duly appealed against the said defender's refusal to renew her licence to the Court of Appeal for the Burgh of Pollokshaws.… That appeal court, actuated by the same motives and in the pursuance of the same preconceived determination, refused to reverse the deliverance or judgment wrongfully come to by said Magistrates, and their deliverance is the second document sought to be reduced. There was no appearance for any objector in the appeal, and no evidence of any kind, or in support of any objection, was heard or suggested. No one having a right to appear did appear and lead evidence against the appeal, and the pursuer, as the appellant, had, prima facie, a right to have her appeal sustained, but notwithstanding thereof said appeal was refused.”

In answer the defenders averred that the whole actings of the Magistrates in regard to the pursuer's application were perfectly lawful and regular, and were entirely within their powers and discretion.

They further averred as follows:—(Ans. 4) “Admitted that at the said Licensing Court applications were made for the renewal of all the public-house certificates in Pollokshaws, being thirty-five in all. Admitted that the Magistrates, as a matter of convenience, dealt with the applications in the order of the groups into which they naturally fell, according to the locality of the premises. Explained that the names of the applicants in the group of which the pursuer was one were first called over to see that all the applicants were in attendance. Admitted that each of the said applicants was then heard separately in support of his or her application, and that the Magistrates then retired and considered each of the said cases separately. Admitted that when pursuer's agent moved for the renewal of her licence Inspector Geddes, acting on behalf of, and as authorised in writing by, the Chief-Constable of Renfrewshire, read to the Licensing Court objections taken by the said Chief-Constable to the granting of said renewal. The objections of the Chief-Constable were in writing and were in the hands of the said Inspector Geddes, who read them out to the Licensing Court. Inspector Geddes himself took no objections to the said application. The Chief-Constable was unable to be present in person, because five licensing courts were being held simultaneously in Renfrewshire upon the said date, and he was personally present at one of these other than Pollokshaws. There are only two superintendents of police in Renfrewshire, and they also were personally present at other licensing courts being held at the same time. In these circumstances the Chief Constable authorised and instructed (as he was entitled to do) the said Inspector Geddes, who is located in the burgh of Pollokshaws and discharges the duties of chief officer of police there, to state on his behalf to the said Licensing Court at Pollokshaws his (the Chief-Constable's) objections against the renewal of pursuer's certificate. The Chief-Constable was entitled to make any objections either verbally or in writing against the renewing of said certificate without previous notice, and the Licensing Court were entitled to hear and determine said objections. The objections taken by the Chief-Constable to the pursuer's application were that the premises were unsuitable from a sanitary point of view, and that the licence was not required in the district. It was within the power of the Magistrates to dispose of said objections without hearing evidence. The Magistrates had visited before the date in question all the licensed premises in the burgh, and were acquainted with the sanitary condition of the pursuer's premises. Admitted that after hearing the pursuer's agent and the objections taken by the Chief-Constable, and without evidence led, the Magistrates retired and considered the pursuer's application, and thereafter returned to the courtroom and announced their decision. Explained that when the Magistrates returned to the court, the clerk called over each application, and the chairman, as each was called, announced the judgment of the court separately in each instance. Admitted that the Magistrates refused the pursuer's application, on the grounds that the premises were insanitary, and that the licence was not required. Admitted that another application was also refused upon similar grounds. Explained that all the five premises in the said group were situated within a radius of 50 yards.”

The pursuer pleaded, inter alia—“(1) The refusal of the pursuer's application, and the affirmance thereof by the Court of Appeal, should be reduced or declared of no effect in respect the proceedings complained of were outwith the statutes and unlawful. (2) The deliverance of the Magistrates refusing the pursuer a renewal of her certificate ought to be reduced on one or other of the following grounds:—( a) Because the Magistrates had previously to the Licensing Court prejudged the application by forming a policy to reduce the number of certificates, and separatim, had acted thereon without judicially discriminating. ( c) Because the said Alexander Geddes (he not being a chief-constable or superintendent of police) was heard by the Magistrates without his having given notice of objection to the renewal of the pursuer's certificate.”

The defenders pleaded, inter alia—“(3) The whole actings of the said Magistrates

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in the matter libelled being lawful and regular, and being within their powers and discretion, the action is groundless, and these defenders should be assoilzied, with expenses. (4) The objections stated in the Licensing Court against pursuer's application being lawful and competent, the deliverance of the Magistrates is not open to reduction on the ground that said objections were heard by the Magistrates.”

On 24th December 1904 the Lord Ordinary ( Kyllachy) pronounced this interlocutor—“Finds that, apart from the pursuer's averments in condescendence 4 relating to the alleged departure by the Magistrates from the statutory enactments on receiving and entertaining an objection to the renewal of the pursuer's licence stated by Alexander Geddes therein designed, the pursuer has stated no relevant case for the interference of the Court; therefore repels the pursuer's pleas except so far as founded on said alleged illegal procedure, and in respect that the parties are at issue as to the facts regarding the said procedure, and are agreed that the same must be ascertained by a proof before further answer, allows to both parties a proof of their respective averments as to said matter as contained in condescendence 4 and the defenders' answer thereto, and to the pursuer a conjunct probation.”

The pursuer having reclaimed, the First Division, on 23rd February 1905, appointed the case to be argued before Seven Judges.

Argued for reclaimer—By section 42 (2) of the Licensing Act 1903 it was made illegal to alter licensed premises without the consent of the Licensing Court. The Magistrates here had taken an unfair advantage of that provision of the statute, as they had not made any complaint as to the state of the premises in question and so had prevented the pursuer from putting them right. The discretion of the Magistrates in refusing the renewal had not been judicially exercised. It did not appear what was the ground of discrimination. Proof of the ground of discrimination should be allowed. This the Lord Ordinary had refused. The case of Lundie v. Magistrates of Falkirk, October 31, 1890, 18 R. 60, 28 S.L.R. 72, relied on by the Lord Ordinary, was inapplicable, as the question here was not so much excess of jurisdiction as the nonjudicial exercise of a discretion. Moreover, Lundie's case was prior to several well-known English authorities on the point, viz., Sharp v. Wakefield [1891], A.C. 173, per Lord Chancellor, at p. 179; Rex v. Howard [1902], 2 K.B. 363; Raven v. Southampton Justices [1904], 1 K.B. 430. The pursuer's premises were free from sanitary defects, and the mere fact that the Magistrates had resolved that there were too many public-houses was not a good ground of discrimination— Evans v. Conway Justices, [1900] 2 QB 224.

Argued for the respondents—The Magistrates after careful consideration had come to the conclusion that this burgh was overlicensed, and their discretion as to that was absolute. There was sufficient ground of discrimination, viz., inadequacy of sanitary arrangements. The Magistrates had visited and carefully inspected all the public-houses in the locality. There was no collusive arrangement to take away the pursuer's licence. The Magistrates were entitled under the Act to refuse licences without specifying the grounds of their refusal. The English cases cited as to the discretion of the Justices were inapplicable, and in any event not binding in Scotland. The cases cited as to the powers of Quarter-Sessions in England were not in point, as the statutes regulating the matter were different from the Scottish Licensing Acts— Boulter v. Kent Justices [1897], A.C. 556. The Magistrates here had an absolute discretion, with which the Court would not interfere unless the procedure had been irregular or the discretion had been capriciously exercised— Lundie, cit. supra; Miller v. Campell, January 17, 1849, 11 D. 355; Cameron v. Magistrates of Glasgow, February 20, 1903, 5 F. 490, 40 S.L.R. 577.

At advising—