Scottish Court of Session Decisions

William Robertson, writer, Dumbarton, and The Public-House Trust (Dumbarton County District), Limited, pursuers, brought an action against (1) John Taylor and others, the Licensing Court of the Burgh of Clydebank, and (2) Henry Melville Napier and others, the Licensing Appeal Court of the Burgh of Clydebank, defenders, concluding for ( firstly) reduction of a deliverance or deliverances of the defenders first called,

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dated on or about 9th and 30th April 1918, refusing an application by William Robertson on behalf of the other pursuers for renewal of a public-house certificate for a public-house at Radnor Park, Clydebank, and for reduction of a deliverance of the defenders second called refusing an appeal against the deliverance above referred to; and ( Secondly), whether decree of reduction was pronounced or not, for declarator “( a) that it was illegal and ultra vires of the defenders first called, sitting as the half-yearly general meeting of the Licensing Court foresaid, in terms of the statute hereinafter libelled, to impose as a condition-precedent to consideration upon its merits of the said application at the instance of the pursuer William Robertson for the other pursuers for a renewal of the certificate aforesaid that he should produce balance sheets or copies of the balance sheets of the Radnor Park Branch of the business of the pursuers the said Public House Trust, Limited, for the five years bygone prior to the meeting of said Licensing Court, and showing the drawings of that branch and the net profits of that branch for each of the said five years; and ( b) that it was illegal and ultra vires of the said defenders, and incompetent on their part, to refuse a renewal of the said certificate upon the sole ground of the non-production of said balance sheets and/or accounts; and further ( thirdly), but only if it appear to our said Lords necessary and expedient, it ought and should be found and declared by decree foresaid that it was illegal and ultra vires of the defenders second called ( a) to refuse to consider upon its merits the appeal of the pursuer William Robertson, for and on behalf of the other pursuers, against the said ultra vires and illegal deliverance or deliverances of the said Licensing Court for the Burgh of Clydebank, and ( b) to refuse the said appeal upon the sole ground of the non-production of said balance sheets and/or accounts as aforesaid; ( fourthly) It ought and should be found and declared by decree foresaid that in pronouncing the said deliverance or deliverances dated 9th and/or 30th April 1918, the defenders first called, and in refusing the appeal of the pursuer William Robertson for the other pursuers the Public-House Trust, Limited, on 21st May 1918, as aforesaid, the defenders second called, acted contrary to their statutory duties to the prejudice of the pursuers; and ( fifthly) our said Lords ought and should remit to the defenders first called to hold a meeting or meetings of the Licensing Court for the Burgh of Clydebank, and to entertain and hear de novo the application of the pursuer William Robertson for the other pursuers The Public House Trust, Limited, for renewal of the said certificate, all as accords of law and in accordance with the provisions of the Licensing (Scotland) Act 1903, with such special directions as our said Lords may think fit to give.”

The facts of the case were thus narrated by the Lord Ordinary ( Ormidale) in an opinion delivered at an earlier stage of the case.

Opinion.—“The Public House Trust (Dumbarton County District), Limited (to which I shall afterwards refer as the Trust), carry on business as hotel and innkeepers, &c. Under its memorandum and articles of association the net profits arising out of its business, subject to the payment of a maximum dividend of 4 per cent. to the shareholders, are handed over to trustees to be applied by them to such objects of public utility or wellbeing, either local or general as the trustees in their discretion may determine.

Mr Ballantyne is the manager, and Mr William Robertson the secretary, of the Trust.

At the date of the proceedings complained of the Trust held four certificates for licensed premises in the Dumbarton County District, including one for the Radnor Park public-house in Clydebank, and it appears that grants have been made from year to year by the trustees for charitable and other purposes in the various localities in which their licensed premises are situated.

The certificate for the Radnor Park public-house was first granted in 1906, and renewal of it had been granted from year to year up to 1918.

In December 1917 the Magistrates of Clydebank, through their Town Clerk, requested the manager to furnish them with copies of the annual reports and balance sheets of the Trust for the past five years, with particulars of how the profits had been distributed among local charities or for other purposes. In response, copies of the annual reports and statements of accounts of the Trust were forwarded to the Magistrates. This did not satisfy the Magistrates, and they requested that they might have copies of the balance sheets of the Radnor Park branch showing the drawings and net profits of the branch. The Trust explained that they had no such balance sheets. In the course of a correspondence that followed the Magistrates insisted that as a matter of right they should be supplied with such balance sheets. This demand the Trust thought was unwarranted, and they did not comply with it.

So standing matters the Clerk to the Licensing Court of Clydebank, being the Town Clerk, on 26th March 1918 wrote to the secretary of the Trust, in whose name the certificates were granted, as follows:—‘Dear Sir—Licensing (Scotland) Act 1903—You are requested to attend the half-yearly meeting of the Licensing Court to be held in the Lesser Town Hall, Clydebank, on Tuesday, 9th April, at 11 a.m., when your application for renewal of licence will be considered, and the hours of opening and closing of licensed premises will also be considered with a view to uniformity of practice in the burgh.’

On 9th April Mr Robertson attended the Licensing Court. It is admitted that with respect to his application for a renewal of the Radnor Park public-house certificate no notice of objections by any person entitled to object, in terms of the Licensing (Scotland) Act 1903, section 19, had previously been given, and that on his application for

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renewal being called, no objection was stated by the Procurator-Fiscal, Chief Constable, or Superintendent of Police, in virtue of section 20 of the Act, but Mr Robertson was called upon by Mr Taylor, the Provost and Chairman of the Court, to produce the Trust's balance sheets and accounts of the Radnor Park business, and the case was continued to the 30th April that they might be produced. The entry in the register bears—‘Continued till Tuesday, 30th April, and applicant ordered to lodge balance sheets for the past five years, showing drawings, disbursements, and profits derived from Radnor Park premises on or before 23rd current, with details of how surplus profits were disposed of for local charities.’

On the 23rd April Mr Robertson lodged with the Clerk a note of the grants made out of the whole surplus profits of the Trust from 1909 to 1917, as also a note of the allocation thereof by the trustees.

On the 30th April no objections were taken to the conduct of the public-house or to Mr Robertson personally as licence-holder, but Mr Robertson was again required to produce the accounts as ordered, and on his declining to do so his application for a renewal was refused. [ On the evidence as to what occurred, v. opinions infra.]

Mr Robertson having appealed to the Licensing Appeal Court, his appeal was heard on 21st May. No objection was taken by anyone present to his application for a renewal, but his appeal was refused.

In the present action reduction is sought of the deliverances dated 9th and 30th April and 21st May.”

The pursuers pleaded, inter alia—“1. The pretended deliverances of the defenders first called as the Licensing Court for the Burgh of Clydebank and the said pretended deliverance of the Licensing Appeal Court for the Burgh of Clydebank being incompetent, ultra vires, and null and void, and, separatim, have been pronounced contrary to the provisions of the Licensing (Scotland) Act 1903, ought to be reduced as concluded for. 2. The defenders first called and the defenders second called having acted in pronouncing said deliverance incompetently and ultra vires in the respects condescended on, decree of declarator in terms of the declaratory conclusions should be pronounced. 3. The proceedings complained of being contrary to the provisions of the Licensing (Scotland) Act 1903, are illegal and ought to be set aside. 4. The demand of the Licensing Court for production of the Trust Company's accounts being illegal and oppressive, and, separatim, being ultra vires of the said Court, its deliverances should be set aside. 5. The members of said Court having met, considered, and decided the case contrary to the terms of the statute regulating the sitting of their Court, its deliverances were illegal and should be set aside. 6. The application of the pursuer William Robertson for renewal of the said certificate not having been competently dealt with or refused, the Court should remit to the Licensing Court for the Burgh of Clydebank to proceed as accords of law in the consideration of said application.”

The defenders pleaded—“… 2. The pursuers' averments, so far as material, being unfounded in fact, the defenders should be assoilzied. 3. The decisions of (1) the Licensing Court of the Burgh of Clydebank, and (2) the Licensing Appeal Court for the Burgh of Clydebank, being valid and competent the defenders should be assoilzied. 4. The proceedings having been legal, regular, and in conformity with the provisions of the Licensing (Scotland) Act 1903, the defenders should be assoilzied.”

On 12th March 1919 the Lord Ordinary, after a proof, pronounced the following interlocutor” Finds and declares in terms of the second, third, and fourth conclusions of the summons, and decerns: Remits to the defenders first called to hold a meeting or meetings of the Licensing Court for the Burgh of Clydebank, and to entertain and hear de novo the application of the pursuer William Robertson for the other pursuers The Public House Trust Limited for the renewal of his certificate, all as accords of law and in accordance with the provisions of the Licensing (Scotland) Act 1903, and that upon the 31st day of March 1919, after due notice and in the usual manner, with power to them to adjourn said meeting to a day or days, all in accordance with the provisions of the said Act.”

Opinion.—“By the interlocutor of the First Division, dated 21st January 1919, parties were allowed a proof of their respective averments on record.

The sole question which falls to be determined is what passed at the meetings of 9th April, 30th April, and 21st May. According to the pursuers' averments on record, all that Mr Robertson, their representative, was invited to do was to state why he should not produce the accounts and balance sheets showing the profits made from the business done at the Radnor Park public house, and how these profits had been disposed of.

What moved the Magistrates to require the production of these accounts was that while for the earlier years which followed upon the granting of a licence to the pursuers in 1906 a considerable sum had been disbursed upon objects of interest and benefit to the Clydebank community—Radnor Park having become in 1907 the 5th ward of the burgh of Clydebank—there had been a marked diminution in the amount of the sums so disbursed in the later years. The figures were—in 1907 £500, in 1908 £600, in 1909 £239, and diminishing to £110 in 1913, to £90 in 1916, and to £80 in 1917. In the view of the Magistrates there was no reason to suppose that the profits derived from the business had to a corresponding extent fallen away.

The annual statements or balance sheets issued by the pursuers had in fact disclosed the profits made by the Radnor Park business from 1907 to 1911. Thereafter there was a change made in the form of the balance sheets, which with the exception of that for 1914 did not as formerly specify the profits effeiring to the particular businesses carried on by the pursuers, but disclosed only the profits resulting generally

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from the whole businesses carried on. What the Magistrates wanted was such a statement as would let them know for 1912 and 1913 and for 1915, 1916, and 1917 the proflts and the disposal of the profits of the Radnor Park public-house taken by itself.

This information they said they were entitled to get, because of promises made that it would be supplied to them not only in 1911 but in 1906, when the licence was first granted—that in effect it was a condition of the licence being granted. Nothing is said on record about any promises having been made in 1906, and the pursuers deny that any such promises were at any time made. The certificate granted, and from year to year renewed, bears to be unconditional, and technically therefore the pursuers cannot be said, and were not said, to have been guilty of any breach of their licence.

Into the rights and wrongs of this controversy I do not propose to enter. This is not a Court of Appeal from the Licensing Courts. I shall only say that I think that the Magistrates' claim to have the information they desired and accounts disclosing it as a matter of right was unfortunate, because so far as I can judge they would have got the information as a matter of courtesy. On the other hand, I think it was equally unfortunate that the pursuers did not see their way to waive or reserve the point of right and give the information desired.

The question to be decided is what passed at the Licensing Courts—was the applicant heard in support of his application for the renewal of his certificate, and was he called upon to address himself to objections tabled to its renewal.

Mr Robertson admits that he was heard, but not with regard to any objections to the renewal of his certificate, but simply and solely with regard to his declinature to obtemper the order to produce the balance-sheets called for. He asserts that all that is now said to have been stated by the Magistrates in disposing of his application was stated by them as grounds to support and to justify their order.

I have come to think, though with some hesitation, that on a fair view of the proceedings this was so. The order of 9th April sounds the note which continued to be heard throughout the meetings of 30th April and 21st May—‘Produce the accounts or the renewal of your certificate will be refused.’

I refer to the correspondence which passed between the Town Clerk and the officials of the Trust Company and to the two letters from the Clerk of the Licensing Court, dated 26th March 1918, requiring the presence of Mr Robertson at the meeting of 9th April, and setting forth the grounds on which he was required to attend, the special ground on which he was required to attend, as distinguished from other licence-holders, being that he might produce the accounts.

On the 9th April the only matter discussed was the failure to produce the accounts. Mr Taylor, at that time Provost of Clydebank, now Member of Parliament for the Dumbarton Burghs, says—‘Very little passed at that meeting, but we told Mr Robertson that we would give him time to produce the information, and we told him the accounts we asked for. We knew from the note of grants how much was actually being spent in our district, but we did not know how much profit was actually being earned in the public-house in question.’

Bailie Hogg says—‘I was at the Court on 9th April 1918, and at that Court I moved that the case should be continued to allow Mr Robertson to produce a statement, and my reason for that motion was that Mr Robertson had spoken at considerable length, but so far he had not produced the balance sheet or shown the profits for Radnor Park, which was the only licence we were interested in …, and in order to give Mr Robertson a fair opportunity to provide the balance sheets I moved that we continue the case for a fortnight to allow Mr Robertson further time to bring these forward.’

The entry in the register bears that the application was continued, and applicant ordered to lodge balance-sheets … with details of how surplus profits were disposed of for local charities.’

So far it is clear that although Mr Robertson was heard, it was only in connection with his failure to produce the accounts. No other objection to the renewal of the certificate was suggested.

At the adjourned meeting on 30th April the only application dealt with was Mr Robertson's. The meeting was a prolonged one. There was a great deal said by Mr Robertson, and a very great deal by the Magistrates, and it is difficult to extract anything orderly out of the confused and chaotic wrangle that appears to have taken place, but at the end of it Mr Robertson's application was refused. In my opinion, as I have said, it was refused because Mr Robertson did not produce the accounts asked for.

Mr Taylor is asked—‘(Q) Beyond the question of the accounts and the question of the promise relative to the production of the accounts, was any subject discussed during the whole of that meeting?—(A) Except in regard to the production of the accounts and in regard to the promises that were made when the licence was granted, and the non-fulfilment of these promises, there was no other question.’

Bailie Hogg says in answer to the question—‘The issue between you and Mr Robertson was that very question whether you were entitled to know exactly what profits were made out of the Radnor public-house alone?—(A) That is what we wished to know. (Q) And that continued the issue right to the end?—(A) Right to the end;’ and again—‘The only reason why the Court was adjourned was to give Mr Robertson an opportunity to produce the accounts. (Q) And the purpose of the adjournment having failed, you refused the renewal?—(A) We refused the renewal because we thought there would be no hardship on the public. (Q) But, as you have told us, one of the

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reasons was the failure to produce the accounts?—(A) That may have been one of the reasons. We thought that Mr Robertson had a moral duty to produce the accounts, and also from the public point of view.’ Bailie M'Laughlin concurs in the evidence of Bailie Hogg.

It is said on record that after Mr Robertson had been heard on the competency of the Magistrates' request for information he was asked to speak on the merits. There is a conflict as to what occurred. As a matter of fact, after the wrangle had continued for some time, Bailie Hogg, thinking that Mr Robertson had finished what he had to say, moved that the application should be refused, when the Clerk intervened, and Mr Robertson was invited to continue his statement, and he did so. He did not break any new ground apparently, and took no notice of certain topics of public interest which it is said Bailie Hogg had referred to in making his motion. I am satisfied that he was not invited to speak ‘on the merits,’ and that the word ‘merits’ was never used. The Clerk Mr Hepburn is the only witness who says that he was. There is no reason at all to discredit Mr Hepburn, but he did not pretend to have a verbatim recollection of all that was said, and to the best of my judgment no fresh topic was stated from the Bench to which Mr Robertson was invited to address himself. His point was that the Magistrate could not, because of his declinature to produce the accounts, refuse his application for a renewal, and he seems to have cited authority in support of that argument. That the public interest was referred to is undoubted, but that, in my opinion, was to justify the order to produce the accounts. No separate or substantive ground for refusal founded on the public interest was put forward. What the Magistrates might have done if the accounts had been produced was an open question. I note that Bailie Hogg says that at the end of the discussion his view had remained the same as it was when he first made his motion—that was when, admittedly, the only question which had been considered by the Court was the right of the Magistrates to insist on the production of the accounts. He says with reference to what was stated by Mr Robertson in continuation—‘Mr Robertson's argument, to put it shortly, was to the effect that there was no objection before the Court which would allow them to refuse the renewal.’

At the meeting of the Appeal Court the position appears to me to have been precisely the same, and what passed at it confirms the opinion that I have formed that the substantive reason for refusing the renewal of the pursuers' certificate on the 30th April was Mr Robertson's declinature to produce the accounts called for, and nothing else. Mr Craig, the clerk, was asked more than once whether it was a valid ground for refusing renewal and he expressed the opinion that it was not. He says ‘it was pretty much put to me in this way whether they were entitled to insist as a matter of right on getting those accounts, and whether if they did not get these accounts they were entitled to refuse the licence.’

That was essentially the only question discussed according not only to Mr Craig but also to Mr Napier and Mr Shields. I gather that that was Mr Stewart's view also, but that he agreed with the Magistrates that they were entitled as matter of right to insist on getting the accounts. Mr Taylor said on 21st May that in his opinion it was a short-sighted policy to refuse the information asked for and that he did not see any reason why it should not be given, and that if the pursuers expected any renewals from the Licensing Bench it was reasonable information required by the Magistrates. Bailie Hogg depones—‘I then said that I considered that as this was a public company and not a private individual out for profit I could see no reason why they, seeing they posed as philanthropists, should not show their balance sheet and let not only the Magistrates but the public see what their profits were.’

At both Courts therefore the prime reason for refusing Mr Robertson's licence was his refusal to produce the balance sheets asked for, and while incidentally matters of public interest may have been referred to I am satisfied that they were so referred to merely in justification of the licensing authorities proceeding on the ground they did. That being so the Magistrates exceeded their statutory jurisdiction in respect that they failed in any reasonable sense of the term to hear Mr Robertson in support of his application for a renewal, and without hearing him refused his application.

The question of the exercise of the discretion vested in the licensing body does not in the view I take of the proven facts arise.”

The defenders reclaimed, and argued—The Lord Ordinary's interlocutor should be recalled. The conclusions of the summons in terms of which he had granted decree necessitated a finding in fact to the effect that the sole ground upon which the Licensing Court had proceeded was the nonproduction of the balance sheets. Upon the evidence it was impossible to reach such a conclusion. Further, it was not proved that the Licensing Court had made it a condition-precedent to the consideration of the pursuers' application that they should produce the balance sheets of the Radnor Park house. Further, the pursuers had been heard in support of the application for renewal as required by section 11 of the Licensing (Scotland) Act 1903 (3 Edw. VII, cap. 25). The Licensing Court could hear and determine objections stated by its members without giving notice of those objections—section 20. The objection taken by the Court was not to the non-production of the balance sheets but to the withholding of information as to the use made of the profits from the Radnor Park house. They were quite entitled to require that the pursuers who professed to expend profits in a particular way should satisfy the Bench that the profits had been so expended. Upon the evidence it was clear that such an accounting was what was required of the

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pursuers, and that that had been made clear to them. In answer, however, the pursuers merely addressed themselves to the legal argument that the Bench could not call for the accounts of that house. If they chose so to limit their answer and to withhold the information desired they must abide by the result, but they could not say they had not been heard. Baillie v. Wilson, 1917 S.C. 55, 54 S.L.R. 58, was distinguished, for there the applicant was not heard at all, neither was any statement of the objection made to him. Further, the Licensing Bench was not bound to put every point which might influence them to an applicant. No doubt overt facts and specific objections must be declared to the applicant but not general questions of policy which might influence the decision of the bench. Walsh v. Magistrates of Pollokshaws, 1905, 7 F. 1009, per Lord President Dunedin at p. 1017 and p. 1019, 42 S.L.R. 784, 1907 S.C. (H.L.) 1, 44 S.L.R. 64; Sharp v. Wakefield, [1891] AC 173; The Licensing (Consolidation) Act 1910 (10 Edw. VII and 1, Geo. V, cap. 24), section 16, were referred to.

Argued for the pursuers (respondents)—The pursuers had not been heard in support of the application for renewal. The bench had called for the production of the accounts of the Radnor Park house, and the refusal to produce had really ended the matter, although possibly a semblance of a hearing had been given. The Licensing Bench was not entitled to call for the production of these accounts, and the pursuers were entitled to refuse their production. That was the only objection tabled, and the pursuers could not be held to have been heard when they were only heard on an invalid objection. Baillie v. Wilson ( cit.) was exactly in point. Sharp v. Wakefield ( cit.) was referred to.

At advising—