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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart v Perth & Kinross Council For Judicial Review [2001] ScotCS 154 (15 June 2001)
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Cite as: [2001] ScotCS 154
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OUTER HOUSE, COURT OF SESSION

 

 

 

 

 

 

 

 

 

 

 

FURTHER OPINION OF LORD MACKAY OF DRUMADOON

in Petition of

 

DOUGLAS STEWART

Petitioner;

Against

 

PERTH AND KINROSS COUNCIL

Respondents:

for

Judicial Review of a decision of Perth and Kinross District Council dated 18 February 1994 to refuse to renew the Petitioner's Second-hand Motor Vehicle Dealer's Licence

________________

 

 

Petitioner: Henderson; Jardines

Respondents: Sutherland; Anderson Strathern, W.S.

15 June 2001

[1] Following the issue of my earlier opinion of 31 August 2000, a continued First Hearing took place. At the outset of that continued hearing, counsel for the parties intimated that they wished to address, by means of submissions, all of the issues outstanding between the parties, with the exception of the issue of mora. Mora is raised by the Respondents' eighth plea in law. Counsel for the Respondents intimated that if it proved necessary for the eighth plea in law to be determined, that could be done after a Second Hearing, which would, as I understood it, require the hearing of evidence. Counsel for both parties were also agreed that in the continued First Hearing, I should hear first the submissions on behalf of the Petitioner.

[2] Since the date of the original hearing, the pleadings have been amended in terms of a Minute of Amendment for the Petitioner (No. 13 of Process) and Answers for the Respondents (No. 14 of Process). By means of that amendment procedure, both parties have added averments referring to the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The Petitioner now avers that the refusal of his application for the renewal of his second-hand dealer's licence, on 18 February 1994, was in violation of his rights under Article 6(1) and Article 1 to the First Protocol to the Convention. He also founds on the provisions of section 3 of the Human Rights Act 1998. The Petitioner has also amended his claim for damages, by including averments seeking a decree for £800,000, with interest on that sum at 8 % per annum, from the date of service of the Petition. The Respondents, for their part, have met the Petitioner's claim for damages with an additional plea of prescription, founding on section 6 of the Prescription and Limitation (Scotland) Act 1973. Following that amendment procedure, the Petitioner now seeks (i) declarator that the decision of 18 February 1994 was ultra vires the Council, (ii) reduction of that decision and (iii) decree for damages of £800,000, payable by the Respondents.

[3] In my previous Opinion of 31 August 2000, I outlined the background to the dispute between the parties, summarised the grounds upon which this Petition proceeds and referred to the criminal proceedings against the Petitioner, which have been taken. I need not rehearse what I set out there. However, before I turn to deal with the submissions made during the continued First Hearing, it would be helpful if I set out the statutory background to the dispute between the parties. I also propose to summarise the factual history of the dispute between the parties, as that has emerged from the written pleadings, the productions lodged and, to the extent to which it is appropriate for me to rely on them, the terms of affidavits, which both parties have produced. I should, of course, make it clear that I have not found it appropriate to rely on anything stated in an affidavit, that remains a matter of dispute between the parties. It is also appropriate to record that, for possibly understandable reasons, the Minutes and other records of the Perth and Kinross District Council, which have been lodged as productions, do not constitute anything approaching a complete record of the documentation relevant to the Council's scheme for licensing second-hand motor vehicle dealers or to the issue and renewal of the second-hand dealer's licence that was granted to the petitioner.

Statutory Background

[4] Sections 24-27 of the Civic Government (Scotland) Act 1982 ("the 1982 Act") relate to the licensing and regulation of second-hand dealers. Within the area of a local authority, such licensing is optional. Section 9 of the 1982 Act lays down the procedure that requires to be followed by a local authority, when they wish to apply, within their own area, the provisions of sections 24-27. Section 9(2) of the 1982 Act provides that a licensing authority may resolve that as from a day specified in a resolution (which must be not less than 9 months after the date of the resolution) any relevant activity, including that carried out by second-hand dealers, should be licensed. Other subsections make provision as to the scope of such resolutions and the procedure to be followed in the making of resolutions, including publicising a local authority's intention to do so and the existence and terms of such resolutions as are made. The provisions of subsection (9) provide that a resolution under section 9(2) can be varied or rescinded by a subsequent resolution, made in like manner to the earlier resolution. The subsection also provides that a resolution varying or rescinding an earlier resolution shall take effect on such date as may be specified in it, being any date subsequent to the making of the resolution. In other words, with resolutions varying or rescinding an earlier resolution, there need not be the delay of nine months provided for in section 9(2).

[5] The provisions of sections 24(4) and (5) and paragraphs 5(1) and (2) to Schedule 1 of the 1982 Act are also of particular importance. It would be sensible that I set them out in full:-

Section 24

"24(4): Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority may, after consultation with the chief constable, attach conditions to a second-hard dealer's licence requiring the keeping of records in relation to the dealer's stock-in-trade; and conditions so attached may, without prejudice to the authority's power under this subsection, include provision as to -

(a) the information to be included in these records;

(b) their form;

(c) the premises where they are to be kept; and

(d) the period for which they are to be kept.

(5) A second-hand dealer acquiring a second-hand motor vehicle for the purposes of its re-sale in the course of his business shall keep a record of the mileage reading on the vehicle's odometer when he acquired it."

................

Paragraph 5 to Schedule 1

"5(1) Where an application for the grant or renewal of a licence has been made to a licensing authority they shall, in accordance with this paragraph -

(a) grant or renew the licence unconditionally;

(b) grant or renew the licence subject to conditions; or

(c) refuse to grant or renew the licence.

(2) The conditions referred to in sub-paragraph (1)(b) above shall be such reasonable conditions as the licensing authority think fit and, without prejudice to that generality, may include -

(a) conditions restricting the validity of a licence to an area or areas specified in the licence; and

(b) in relation to the grant of a licence, where that licence is intended to replace an existing licence, a condition requiring the holder of the existing licence to surrender it in accordance with paragraph 13 below."

[6] As the Perth and Kinross District Council sought to delegate certain responsibilities for licensing matters to committees and officials, it might also be helpful to recall that section 56(1) and (2) of the Local Government (Scotland) Act 1973 ("the 1973 Act") are in the following terms:-

"(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions by a committee of the authority, a sub-committee, an officer of the authority or by any other local authority in Scotland

(2) Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority."

Factual background

[7] According to a Minute of a meeting of the Policy and Resources Committee of the Council of Perth and Kinross District Council ("the Council"), held sometime during March 1983 (No. 7/10 of Process), that Committee considered Report 83/168, which had been prepared by the Council's Chief Executive (No. 7/9 of Process). The Report dealt with the implementation of the 1982 Act within the Council's local authority area. The Minute records that the Policy and Resources Committee resolved that the Chief Executive be instructed to report to the Council's Property and General Purposes Committee, on the licensing of inter alia second-hand dealers. Counsel for the Respondents understood that Minute to have been approved at a meeting of the full Council, on a subsequent, albeit unspecified date.

[8] On 29 February 1984, under reference to the Council's powers under the 1973 Act, the Policy and Resources Committee approved a revised Scheme of Delegation (No. 7/2 of Process). Although the subsequent Minute of the full Council, approving that decision of the Policy and Resources Committee, was not produced, parties accepted that this Scheme of Delegation came into force shortly after 29 February 1984. The Scheme of Delegation contained the following provisions:-

"PROPERTY AND GENERAL PURPOSES COMMITTEE

A. General Purposes

(a) Delegation to Committee

(i) Issue of licences and permits under the following Acts:-
    1. ....

....

(c) Civil Government (Scotland) Act, 1982 (Subject to the passing of a resolution under Section 9 and 45)

- Sex Shops

- Street traders

- Market operators.

(ii) Grant or refusal of applications for licences or permits under the following Acts, so far as not dealt with under 9(c)(iii) below:-

(a) ...

(e) Civic Government (Scotland) Act, 1982.

...

(b) Delegation to Official

(i) ...

(iii) Issue of licences or permits under the following Acts, subject in each case to satisfactory reports from the Police, Firemaster or Director of Environmental Health as appropriate:-

...

(e) Civic Government (Scotland) Act 1982 (subject to the passing of a Resolution under Section 9 of the Act) (including taxis and private hire cars and the drivers thereof, second-hand dealers, metal dealers, boat hirers, public entertainments, late hours catering and window cleaners) - Director of Administration.

..............."

It was agreed that the reference to 9(c)(iii) in 9.A. (a)(ii) was a typographical error and should have been a reference to 9.A. (b)(iii).

[9] On 30 April 1986 the District Council's committee structure was re-organised. A General Purposes Licensing (Sub-Committee) ("the Licensing Sub-Committee") was constituted to deal with all licensing matters. Thereafter, the determination of all applications for licences under the 1982 Act was dealt with by the Licensing Sub-Committee, save that an official of the Council also had power to grant such applications, subject to his receiving satisfactory reports from the Police, Trading Standards and other officials. An extract from a Scheme of Delegation, adopted either on 26 January 1994 or shortly thereafter, was also lodged as a production (No. 6/26) of Process). It confirmed that power had been delegated to the Licensing Sub-Committee to determine the Petitioner's application for renewal of his licence, which decision the Licensing Sub-Committee had taken on 18 February 1994.

[10] Returning in the chronology of events to 1984, on 28 March 1984 the Property and General Purposes Committee of the Council ("the Committee") considered a further Report (Report 84/246) relating to the 1982 Act, which had been prepared by the Chief Executive,. The Minute of that meeting (No. 7.4 of Process) records that the Committee resolved that a resolution be passed in terms of section 9 of the 1982 Act to license, amongst other activities, the activity of second-hand dealers. It is interesting to note that in a subsequent Report (Report 84/316, dated 25 April 1984) (No. 7/5 of Process), the Chief Executive interpreted the Committee's decision of 28 March 1984 as being a recommendation by the Committee that a section 9 resolution be passed by the Council. The Chief Executive's Report advised that the proposed resolution had been published in draft in two local newspapers. That had occurred on 3 April 1984. He commented on the representations received and recommended that the Council pass a resolution in terms of section 9 of the 1982 Act, to licence inter alia second-hand dealers engaged in various classes of the activity of second-hand dealers, including those dealing in motor vehicles.

[11] By resolution dated 2 May 1984, made in terms of the provisions of section 9 of the 1982 Act, the Council resolved inter alia to apply the provisions of sections 24 - 27 of the 1982 Act to second-hand dealers in motor vehicles. The resolution referred to second-hand dealers, as one of the activities to be regulated. It listed, under the heading "Classification of Activities", various types of second-hand goods, in which dealing takes place, including motor vehicles. The resolution provided that second-hand dealers in motor vehicles would be licensed and regulated under the 1982 Act, with effect from 1 February 1986. Counsel for the Petitioner accepted that the resolution dated 2 May 1984 had been competently made. The making of that resolution was subsequently advertised on 16 May 1984, in compliance with the provisions of section 9(8) of the 1982 Act. Its terms are set out in Council Minute 868 of 2 May 1984 (No. 6/1 of Process).

[12] On 4 December 1985, the Property and General Purposes Committee met. Their meeting was approximately two months before 1 February 1986, the date upon which the licensing scheme for second-hand dealers in motor vehicles was scheduled to come into effect. The members of the Committee had before them two further reports, prepared by the Chief Executive. Copies of those reports, 85/892 and 85/898, were lodged as productions (Nos. 6/4 and 6/5 of process). Report 85/892 recommended that the Council agree the licensing of all persons purchasing or selling second-hand goods, as defined under the headings set out in the Report. It also recommended the approval of draft conditions to regulate second-hand dealers in general. Report 85/898 recommended the approval of a set of draft conditions to regulate second-hand motor vehicle dealers. Those draft conditions were attached to the Report. The Minutes of the meeting of the Property and General Purposes Committee's meeting of 4 December 1985 (No. 6/3 of Process) contains two Minutes of relevance, * 488 and * 490. I set them out in full:

"*488. CIVIL GOVERNMENT (SCOTLAND) ACT, 1982 - SECOND-HAND DEALERS' LICENCES - CLASSIFICATION OF ACTIVITIES AND DRAFT CONDITIONS

There was submitted a report by the Chief Executive (85/892) on (1) the licensing of second-hand dealers with effect from 1st February 1986, (2) the proposed classification of activities for which licences be required and (3) conditions for such licences.

Resolved -

(i) All dealers purchasing or selling second-hand goods, as classified by the Council in report 85/892, within this District be required to be licensed with effect from 1st February 1986 and the Council accept for this purpose licences issued by other Authorities.

(ii) Dealers in stamps, postcards, coins and books be exempt from the licensing requirements in respect of individual items or lots purchased for less than £50 and where items are purchased in lots such dealers be not required to record individual details of each item purchased. This exemption be not applied in respect of any item which it is intended be offered for sale at more than £50.

(iii) The conditions to regulate second-hand dealers attached to report 85/892 be approved subject to (1) the deletion of condition 14 and condition 15(c) and (2) the insertion of the word 'reasonable' in line 2 of condition 15 between the words 'any' and 'order'.

(iv) The types of dealers requiring licences and the conditions be kept under review."

"*490. CIVIC GOVERNMENT (SCOTLAND) ACT, 1982 - SECOND-HAND DEALERS' LICENCES - LICENSING OF SECOND-HAND MOTOR VEHICLE DEALERS - DRAFT CONDITIONS

There was submitted a report by the Chief Executive (85/898) on the licensing of second-hand motor vehicle dealers with effect from 1st February 1986, and the proposed conditions for such licences.

Resolved -

(i) The conditions to regulate second-hand motor vehicle dealers attached to report 85/898 be approved subject to (1) the deletion of condition 6 and condition 7(c) and (2) the insertion of the word 'reasonable' in line 2 of condition 7 between the words 'any' and 'order'.

(ii) The conditions be kept under review."

I was informed that these two Minutes had been asterisked because they related to items of business that would be notified to the Council at their next council meeting, but would not require the formal approval of the Council.

[13] The classification of second hand-goods, within the Council resolution of 2 May 1984, is framed in slightly different terms to that found in Report 85/892 and referred to in part (i) of the Committee's resolution of 4 December 1985 (Minute *488). For example in the Council's resolution of 2 May 1984 there are references to the categories of Jewellery and Precious Stones, Furniture and Carpets, Paintings and Other Artistic Reproductions, Clothing and Fabrics, Television Sets and Domestic Appliances. None of these categories are specified in Report 85/892. On the other hand, Report 85/892 contains a reference to the category "Household effects and electrical goods", which is not included in the earlier resolution of the Council.

[14] Very little documentation was lodged, relating to the second-hand dealer's licence held by the Petitioner. It appears, however, that the Petitioner was first granted a second-hand motor vehicle dealer's licence in 1987. It also appears that an official dealt with the Petitioner's application. The licence expired on 31 July 1990, from which date it was renewed until 31 July 1993. Once again, the application appears to have been dealt with by an official.

[15] There was lodged, as one of the productions for the Petitioner, a pro-forma set of conditions headed "PERTH AND KINROSS DISTRICT COUNCIL - SECOND-HAND MOTOR VEHICLE DEALER'S LICENCE - CONDITIONS" (No. 6/6 of Process). This document is dated July 1988. Attached to the document is a specimen "USED VEHICLE PRE-SALES INSPECTION REPORT", to be used in connection with Condition 2.5 of the set of conditions, which I quote later. Although the production was dated some time after the date on which the Petitioner was first granted a licence, the hearing before me proceeded on the basis that the conditions attached to the Petitioner's licence, (a) when it was first granted, were probably as set out in No. 6/6 of Process and (b) when it was subsequently renewed, were definitely as set out in No. 6/6 of Process.

[16] In June 1993, the Petitioner applied to the Council for a further renewal of his licence. That application was dealt with by the Licensing Sub-Committee at various meetings. In considering this application, the members of the Licensing Sub-Committee had before them Report R3/807 (No. 6/8 of Process). The Report detailed complaints relating to the conduct of the Petitioner's second-hand motor vehicle business, which had been received by the District Council itself and by Tayside Regional Council. Correspondence relating to those complaints was attached to the Report. It is clear from a reading of the Report that part of the information it contains came from Trading Standards Officers employed by Tayside Regional Council.

[17] The Petitioner's application for renewal of his second-hand dealer's licence was finally determined by the Licensing Sub-Committee on 18 February 1994, after hearings before that Sub-Committee on 4 and 18 February 1994. At the hearing on 18 February 1994, the Sub-Committee heard evidence, including the evidence of the Petitioner. Having done so, the Sub-Committee held that the Petitioner was not a fit and proper person to hold a second-hand dealer's licence and refused his application for renewal. On 10 March 1994, the Council issued written reasons for the Sub-Committee's decision of 18 February 1994. It is clear from those reasons that the Sub-Committee's decision was based, at least in part, on their finding that the Petitioner had acted in breach of Condition 2.5(a) of the set of conditions dated July 1988 (No. 6/6 of Process).

[18] The Petitioner subsequently appealed to the Sheriff at Perth, against the refusal of his application for the renewal of his licence. That appeal was taken in terms of the provisions of paragraph 18 of Schedule 1 of the 1982 Act. The appeal was successful, to the extent that, by interlocutor dated 13 February 1995, the Sheriff remitted back to the Council the Petitioner's application for renewal of his licence and directed the Council to consider that application de novo. The Council, however, appealed the Sheriff's decision to the Court of Session. On 6 December 1995 the Council's appeal to the Court of Session was successful. The Inner House recalled the Sheriff's Interlocutor of 13 February 1995 and restored the determination of the Licensing Sub-Committee, refusing the application.

[19] By virtue of the provisions of paragraphs 8(5) and (6) of Schedule 1 to the 1982 Act, the Petitioner's licence, which had been due to expire on 31 July 1993, had remained in force until 6 December 1995, the date upon which the Council's appeal to the Court of Session was upheld. Since 6 December 1995, the Petitioner has not held a second-hand dealer's licence. As I discussed in my earlier Opinion, on 4 July 1997, the Petitioner was convicted at Perth Sheriff Court on a charge of contravening section 7(1) of the 1982 Act. The charge, libelled by way of summary complaint, was that between 24 April 1996 and 22 May 1996 the Petitioner had carried on business as a dealer in second-hand motor vehicles, whilst not having a second-hand dealer's licence, as required by section 24 of the 1982 Act. Following conviction, the Petitioner appealed against his conviction to the High Court of Justiciary. Although the necessary Stated Case was lodged as long ago as December 1997, the appeal has not yet been dealt with by the High Court. I was advised by counsel that when the appeal last called before the High Court, that Court took the view that it should await the outcome of these proceedings, before dealing with the appeal.

Submissions on behalf of Petitioner

[20] The submissions on behalf of the Petitioner were advanced under five general headings. Those submissions reflected the grounds for the Petition, which I summarised in paragraph [4] of my earlier Opinion, as amplified by the averments added by means of the recent Minute of Amendment. In the first place, it was argued that the provisions of the 1982 Act had not been complied with, when the scheme for licensing second-hand car dealers was purportedly amended on 4 December 1985, by the Property and General Purposes Committee of the Perth and Kinross District Council. Secondly, it was argued that the Council had never delegated to that Committee the power to enable the Committee to make, rescind or vary, on behalf of the Council, any resolution under section 9 of the 1982 Act. Thirdly, it was contended that when granting the petitioner a second-hand dealer's licence during 1987 and when renewing that licence during 1990, for the 3 year period to 31 July 1993, the official dealing with the applications, in the name of the Council, had imposed conditions on the Petitioner's licence that were ultra vires. Fourthly, it was argued that the Licensing Sub-Committee had acted outwith the statutory powers of the Council, when they refused the Petitioner's application for renewal of his licence at the hearing that took place on 18 February 1994. Finally, it was argued that the Petitioner's convention rights had been infringed on 18 February 1994 and that he was entitled to damages for the loss he has sustained as a consequence of that decision.

[21] Under the first general heading of his submissions, counsel for the Petitioner raised the issue of the effect, if any, of the two resolutions passed by the Property and General Purposes Committee on 4 December 1985. Counsel for the Petitioner argued that the Committee's resolution of 4 December 1985, under item of business *488, constituted one composite resolution, as opposed to four separate resolutions. He argued that this composite resolution required to be viewed as being either a variation or a rescission of the Council's section 9 resolution of 2 May 1984. He also argued that the Committee's resolution of 4 December 1985, under item of business *490, constituted a variation of the Council's section 9 resolution.

[22] Looking at the first of the Committee's resolutions in detail, namely that set out in Minute * 488, counsel for the petitioner drew attention to the fact that by reference to Report 85/892, the resolution set out 9 classes of the activity of second-hand dealers. That compared with the 22 classes of the same activity to be found in the Council's resolution of 2 May 1984. Counsel for the Petitioner acknowledged that the category relating to motor vehicles, incorporated into the Committee resolution, was drafted in identical terms to that found in the Council resolution of 2 May 1984. He argued, however, that the fact that the two resolutions defined the classes of the activity in different language required the Committee resolution to be treated as being an attempt to vary the Council resolution. He submitted that, in any event, the classes incorporated into the Committee resolution could well cover different goods to those covered by the classes set out in the Council resolution. He suggested, by way of example, that the class of "Jewellery and Precious Stones", to be found in the Council resolution, was not covered by any of the classes in the Committee resolution.

[23] Counsel argued that the Council had failed to comply with the provisions of the 1982 Act, when putting in place the licensing scheme for second-hand motor vehicle dealers, which had been in operation, since February 1986. He submitted that in passing their resolution of 4 December 1985, the Committee had not followed the procedure laid down in section 9 of the 1982 Act, because neither the statutory consultation nor the publicity procedures had been carried through.

[24] Counsel for the Petitioner submitted that the Council's scheme for licensing second-hand motor vehicle dealers, as operated between 1 February 1986 and 18 February 1994, must be viewed as having been based on the Committee's resolution. On that basis, he argued that over the period with which these proceedings were concerned, the Council had never had in place a valid licensing scheme for second-hand motor vehicle dealers.

[25] As I have indicated, counsel for the Petitioner argued that Resolution *488, passed on 4 December 1985, purported to vary the scheme of classification of second-hand goods and to attach conditions to the licences of all second-hand car dealers. He argued that on 4 December 1985 the Committee had no power to pass a resolution covering any of the four parts of the first of the resolutions it passed that day, namely Resolution *488. The Scheme of Delegation in force on 4 December 1985 did not cover the passing of section 9 resolutions. The Committee had had no power to make or to vary or to rescind a section 9 resolution. Nor, so he argued, did the Scheme of Delegation give the Committee any power to pass a resolution relating to standard conditions or indeed any power to impose any conditions, when issuing or renewing a licence, whether under reference to the provisions of section 24(4) or those in paragraph 5 to Schedule 1 of the 1982 Act. All that the Scheme of Delegation had delegated to the Committee was the power to grant or refuse licences. Likewise, all that had been delegated to an official of the Council was the power to grant licences. All questions relating to the imposition of conditions had been reserved to the Council itself. In practical terms, looking at the provisions of paragraph 5 to the Schedule 1, there had been delegated to the Committee the exercise of the Council's powers under paragraphs 5(1)(a) and 5(1)(c), but not those to be found in paragraph 5(1)(b). The delegation to an official was limited to the power to grant or renew licences unconditionally under paragraph 5(1)(a).

[26] On the issue of conditions, counsel for the Petitioner submitted that there were difficulties in reconciling the provisions of section 24(4) with those in paragraph 5(2) of Schedule 1 to the 1982 Act. He submitted that those two sets of provisions required to be read as providing for different types of condition. It was suggested that conditions, founded on the provisions of section 24(4), could be attached to licences, during their currency. On the other hand, the provisions of paragraph 5(2) of Schedule 1 could only be relied on, when licences were granted and renewed. Whether that distinction is valid or not, it was accepted by counsel for the Petitioner that a condition falling within the ambit of section 24(4) could be imposed on the grant or renewal of licences, provided that the necessary consultation had taken place with the Chief Constable.

[27] As far as the resolutions passed on 4 December 1985 were concerned, counsel for the Petitioner submitted that it was clear from reports 85/892 and 85/898 that the Committee understood that they were operating under the provisions in section 24(4). On the other hand, he acknowledged that the two sets of draft conditions approved that day went much further than conditions falling within the scope of section 24(4). In any event, the set of conditions dated July 1988 (No. 6/6 of Process) is in different terms to either of the sets of conditions approved by the Committee on 4 December 1985. Counsel for the Petitioner acknowledged that it would have been competent for the Council to have attached to the Petitioner's licence the set of conditions to be found in No. 6/6 of Process. He argued that it had not been open to the Committee or any official to have done so - either when the licence was first granted in 1987 or when it was renewed in 1990.

[28] Counsel for the petitioner referred to Stirling and Ferguson v John Hutcheson and Others (1874) 1 R 935 in support of his proposition that the failure of the Committee to advertise and consult upon the resolutions they passed on 4 December 1985 meant that their attempt to vary the scheme covered by the Council's resolution of 2 May 1984 had failed. However, he also argued that because the purported scheme that had been implemented and operated since 1 February 1986 had been based on the resolutions passed by the Committee on 4 December 1985, the Council and its committees and officials had never had the necessary authority to operate that scheme, because the scheme had not been based on valid section 9 resolutions. It was argued that if the Committee's two resolutions were invalid, as the Petitioner contended they were, it was not open to the Respondents or the Court to found on the Council's original section 9 resolution of 2 May 1984. The Committee's intervention, by means of the two resolutions passed on 4 December 1995, had prevented any scheme purportedly founded on the Council's resolution from coming into effect. Whilst the Council's scheme would have been competent, had the Committee done nothing, that was not the situation that had unfolded. It was argued that the existence, legal basis and terms of any scheme for the licensing of second-hand dealers required to be clear, for the simple reason that second-hand dealers, who do not comply with a valid scheme, are open to police investigation and prosecution. It was not possible to isolate the position of second-hand motor vehicle dealers, merely because the class of goods in which they dealt had been referred to in identical terms in the Council and Committee resolutions. What the Committee had attempted to do, by means of Resolution *488 of 2 December 1985, had been to reclassify the activities to be covered by the licensing scheme. That constituted a variation of the Council's resolution, even although there had been no alteration of the classification applying the scheme to second-hand dealers in motor vehicles.

[29] Moving onto the circumstances leading up to the Sub-Committee's decision of 18 February 1994, to refuse to renew the Petitioner's licence, counsel for the Petitioner submitted it was clear from the letter of 10 March 1994, setting out the reasons for the decision, that a court-type procedure had been adopted. Counsel accepted that in terms of the Scheme of Delegation in force in February 1994, it was for the Licensing Sub-Committee, rather than the Property and General Purposes Committee, to deal with the application for renewal. He also accepted that as a matter of competency it had been open to the Licensing Sub-Committee to refuse the application. He stressed, however, that the Licensing Sub-Committee's finding that the Petitioner was not a fit and proper person to hold a licence was based on evidence that the Petitioner had failed to comply with Condition 2.5(a). That condition provides:-

"2.5(a) If the licence holder intends to display for sale/sell any vehicle to a member of the public he must

(i) carry out an inspection and prepare a full Inspection Report on the vehicle prior to it being displaed for sale/sold and make a copy of the Report available for inspection by any prospective purchaser while the garage/showroom is open, in accordance with the sample inspection Report issued and in a style approved by the Council (see Appendix 2 and Note 3);

(ii) display a summary Information Sheet in a prominent position in the vehicle displayed for sale so that it is clearly visible indicating that the vehicle has been inspected, that a full Inspection Report may be consulted in the office/showroom prior to sale and that the purchaser will receive a copy of the Report at the time of the sale, in accordance with the sample Information Sheet issued and in a style approved by the Council (see Appendix 3);

(iii) complete all sections of the Inspection Report as appropriate and provide the purchaser with a copy of the Inspection Report, which should be signed by both the purchaser and the dealer and dated, at the time of sale; and

(iii) retain one copy of the above Inspection Report as part of his records for at least three years;".

Counsel submitted that the terms of Condition 2.5(a) were outwith the scope of the provisions of section 24(4) of the 1982 Act, in that they went further than being a condition requiring the keeping of records in relation to stock in trade. It was submitted that when framing Condition 2.5, the Council had taken into account the issue of consumer protection. It was submitted that section 24(4) was not concerned with consumer protection, having derived from the provisions of the Burgh Police (Scotland) Act 1896, relating to brokers and pawn brokers. As I understood it, the argument was that section 24(4) was directed at crime prevention, rather than consumer protection. As far as the detailed terms of Condition 2.5(a) are concerned, it was submitted that none of the individual heads of the condition could be founded on section 24(4) alone, for the reason that they all related to the provision of records to prospective customers. Section 24(4) was only concerned with the keeping of records of a dealer's stock in trade. Counsel for the Petitioner accepted that a condition such as Condition 2.5(a) could be imposed under paragraph 5 of Schedule 1, when an individual licence was granted or renewed. What could not be done, so he argued, was to impose such a condition across the board, by means of a resolution bearing to be made under reference to section 24(4). The imposition of such a condition by those means had been ultra vires the Council or any of their committees or their officials. Reference was made to Baker v Glasgow District Council 1981 SC 258. As a consequence, the Licensing Sub-Committee's decision that the Petitioner was not a fit and proper person to hold a licence had been based on his alleged failure to comply with a condition that was ultra vires. The point was also made that when the Petitioner's licence had been granted and renewed, whoever had dealt with the necessary applications had required to apply their mind to the provisions of paragraph 5 of Schedule 1 and in particular to the question as to whether the conditions being imposed were reasonable. Paragraph 5 did not grant an absolute power to impose conditions. Any conditions imposed required to be reasonable. There could be no guarantee that had happened, when a standard set of conditions had been used.

[30] On a separate tack, counsel for the Petitioner complained about the use that the Licensing Sub-Committee had made of information provided by Trading Standards Officers of Tayside Regional Council. Counsel submitted that in carrying out their duties, the Trading Standards Officers were acting under the provisions of the Trades Descriptions Act 1968 ("the 1968 Act"). Their powers derived from that Act, not the 1982 Act. Section 28(5)(b) of the 1968 Act provides:-

"(5) If any person discloses to any person -

any information with respect to any manufacturing process or trade secret obtained by him in premises which he has entered by virtue of this section; or

any information obtained by him in pursuance of this Act;

he shall be guilty of an offence unless the disclosure was made in or for the purpose of the performance by him or any other person of functions under this Act."

[31] The information supplied by the Trading Standards Officers of Tayside Regional Council to the Licensing Sub-Committee is detailed in the report that was before the Licensing Sub-Committee, when they reached their decision to refuse to renew the Petitioner's licence. The report includes information to the effect that inspection reports had not been displayed on some of the second-hand cars being offered for sale by the Petitioner. The absence of such inspection reports is prima facie evidence of a breach of Condition 2.5(a). Counsel for the Petitioner argued that it is clear from the report that some of its contents consisted of information obtained by Trading Standards Officers, in pursuance of the 1968 Act. As such it should not have been disclosed to the Council nor to any of their committees or officials, for none of them had any responsibility for functions under the 1968 Act. Counsel submitted that for the Licensing Sub-Committee to have sought and relied on such information from the Trading Standards Officers of Tayside Regional Council did not constitute "reasonable enquiries" for the purposes of paragraph 4(1) of the 1982 Act.

[32] Finally, counsel for the Petitioner argued that the whole procedure carried out by the Licensing Sub-Committee was in breach of the provisions of Article 6(1) and of Article 1 of the First Protocol to the Convention. Counsel argued that "reasonable enquiries" for the purposes of paragraph 4(1) of the Schedule 1 to the 1982 Act could not include a procedure, such as the "court-type" procedure followed by the Sub-Committee, which in his submission had conflicted with the provisions of Article 6(1) and also led to an infringement of the Petitioner's Convention rights under Article 1 of the First Protocol. Reliance was also placed on the provisions of section 3 of the Human Rights Act 1998, which provides that primary legislation must be read and given effect to in a way which is compatible with Convention rights. It was argued that section 3 required to be applied to the construction of 1982 Act for the purposes of the dispute between the parties. Such violations of the Petitioner's Convention rights as had occurred also gave rise to an entitlement to damages.

Submissions on behalf of Respondents

[33] In response to those submissions, counsel for the Respondents (who are, of course, the statutory successors to the Perth and Kinross District Council) began by founding on the maxim omnia praesumuntur legitimae facta donec probetur in contrarium - all things are done according to the law, until the contrary is proved. Reference was also made to Walker and Walker- 'The Law of Evidence in Scotland', at Para. 60(c). Counsel for the Respondents stressed that in the present proceedings, the onus was on the Petitioner to establish that the statutory scheme for the licensing of second-hand motor vehicle dealers had not be competently made and competently administered. In particular it was for the Petitioner to establish any contentions he put forward that the Committee, the Licensing Sub-Committee and officials had acted without the necessary legal authority.

[34] Turning to the general headings, under which the submissions on behalf of the petitioner had been made, he addressed together the first and second of these headings. On the question of delegation, counsel argued that when, in March 1983, the Council had approved the Minute of the meeting of the Policy and Resources Committee of the Council, which had also been held in March (No. 7/10 of Process), the Council had delegated to its Property and General Purposes Committee, with immediate effect, all matters relating to the licensing of second-hand dealers, including the exercise of the Council's statutory powers under section 9 of the 1982 Act. He argued that delegation still remained in force. It had never been revoked nor altered. From March 1983 the Property and General Purposes Committee (and more recently the Licensing Sub-Committee) had enjoyed the necessary powers to set up, vary and administer a scheme for the licensing of second-hand dealers, including second-hand motor vehicle dealers. In the present proceedings the Council founded on that delegation, back in March 1983.

[35] Counsel for the Respondents also submitted that it was clear, from Nos. 7/9 and 7/10 of Process (to which I referred earlier), that when, on 14 March 1984, the Council had approved Minute 750 of the Policy and Resources Committee's meeting of 28 February 1984, the Council had delegated to that Committee, inter alia, all matters relating to the licensing of second-hand dealers under the 1982 Act, including the passing of any section 9 resolutions that were required, the grant and refusal of applications for licences, the determination of conditions for such licences and the variation and suspension of licences, under the provisions of paragraphs 10 and 11 of Schedule 1 to the 1982 Act. Counsel submitted that the Council was entitled to regard the variation and suspension of licences as aspects of the grant or refusal of licences, and, as such, covered by the provisions of Para. 9.A.(a)(ii)(e) of the Scheme of Delegation, which I have quoted above. From 14 March 1984 onwards, according to counsel for the Respondents, it had not been necessary for the Council to pass any section 9 resolutions that were required for the operation of a scheme for the licensing of second-hand motor vehicle dealers. Counsel suggested that the Committee's Minute 767 of 28 March 1984 (No. 7/4 of Process) was "a mistake", as was now appreciated by the official who had drafted it. The only reason that the Committee had not proceeded to pass a section 9 resolution that day was that the resolution had still to be advertised. That advertisement took place two days later. Counsel for the Respondents explained that the only reason the section 9 resolution of 2 May 1984 was made by the Council, as opposed to the Committee, had been because it was more convenient to proceed on that basis, in order to allow time for the statutory period of 9 months to elapse, before the scheme for the licensing of street traders, market operators and window cleaners came into force on 1 February 1985. The section 9 resolution of 2 May 1984, of course, covered various activities, some of which were to be licensed with effect from 1 February 1985 and some, such as those of second-hand dealers, from 1 February 1986. Against that background, counsel for the Respondents argued that the Committee had had full authority to transact the items of business and pass the resolutions, referred to in Items *488 and *490 of the Minute of 4 December 1985 (No. 7/8 of Process).

[36] On the specific points made by counsel for the Petitioner, relating to the Committee resolution of 4 December 1985, under item of business *488, counsel for the Respondents argued that the resolution did not constitute a section 9 resolution, whatever may have been thought at the time by the officials who drafted Report 85/892 and the members of the Committee. That resolution did not, as a matter of fact, amount to a reclassification of activities for the purposes of the 1982 Act. Whilst the headings under which goods were classified in the Council resolution of 2 May 1984 were couched in different language to that adopted in the Committee resolution of 4 December 1985, no goods covered by the Council resolution of 2 May 1984 were not also covered by the Committee resolution of 4 December 1985 and vice versa. In any event, the heading relating to motor vehicles was drafted in identical terms in both resolutions. In these circumstances, even if the Committee resolution of 4 December 1985, under item of business *488, was a section 9 resolution, it had neither varied nor rescinded the Council's resolution of 2 May 1984, insofar as the latter resolution related to the licensing of second-hand motor vehicle dealers. It was, however, accepted that if the resolution of 4 December 1985 was a section 9 resolution, the correct procedure had not been followed when it was passed.

[37] Turning to the issue as to whether the Council, acting through their official, had had power to impose the conditions that were attached to the petitioner's licence, when it was renewed by an official with effect from 1 August 1990, counsel for the Respondents submitted that at that stage the official was exercising the Council's powers to impose conditions, as contained in both section 24(4) and paragraph 5 of Schedule 1 to the 1982 Act. Those statutory powers permitted the use of standard conditions, such as those set out in No. 6/6 of Process. Standard conditions are frequently used in the granting of licences under the 1982 Act. The conditions imposed were thus competent, founded as they were on the provisions of section 24(4) and paragraph 5 of Schedule 1 of the 1982 Act. The imposition of conditions was part of the function of the issue of the licences under the 1982 Act, that had been delegated to the official, in terms of the Scheme of Delegation in force in 1990. The possibility of imposing conditions and the terms of possible conditions were clearly relevant to the exercise of the statutory powers to grant or renew a licence. In these circumstances, it was entirely reasonable to proceed on the basis that the Council had intended that the official's delegated powers should include the power to impose conditions. No point was made in the pleadings in the present case, that when in July 1990 the official had renewed the Petitioner's licence, that official had acted unreasonably, in imposing the conditions that he did.

[38] Turning to the submissions made on behalf of the Petitioner, as to the enquires made by the Licensing Sub-Committee of the Trading Standards Officers, counsel for the Respondents referred to the provisions of paragraph 4 of Schedule 1 of the 1982 Act. Those provisions permit a licensing authority, in considering an application for the grant or renewal of a licence, to make such reasonable enquiries as they think fit and to include the results of these enquiries in matters they take into account in deciding the application in question. That is what had happened in the present case. It was clear from the contents of No. 6/8 of Process, that the bulk of the complaints against the Petitioner, which figured in the enquiries carried out by the Licensing Sub-Committee, were unsolicited complaints. They had been made by members of the public to Perth and Kinross District Council and the Trading Standards Department of Tayside Regional Council. The information the Trading Standards Officers had passed onto to Perth & Kinross District Council had not been obtained by them "in pursuance off" of the Trades Descriptions Act 1968 (cf. section 28(5)(b)). The information had been unsolicited, which members of the public had, on their own initiative, brought to the attention of Tayside Regional Council's Trading Standards Department. The Trading Standards Officers had not exercised any of their statutory powers in coming by the information. That was borne out by the fact that the Trading Standards Department of Tayside Regional Council had not formally objected to the renewal of the Petitioner's licence. All that the Trading Standards Department had done had been to inform Perth & Kinross District Council of the complaints they had received. In these circumstances, the information before the Licensing Sub-Committee was not tainted with any illegality. In any event, even if the provisions of section 28(5) had been breached, that did not prevent the Licensing Sub-Committee from taking into account the information that the Trading Standards Officers had passed on to them. Ignoring the information was not a course of action required by the terms of section 28(5). Copies of the information had been provided to the Petitioner, before the hearing before the Licensing Sub-Committee on 18 February 1984. At the hearing before the Licensing Sub-Committee, the Petitioner had been given ample opportunity to respond to the information. Paragraph 18(7) of Schedule 1 to the 1982 Act allowed the Petitioner's appeal to the Sheriff to be granted if the Perth & Kinross District Council had erred in law, based their decision on an incorrect material fact, acted contrary to natural justice or exercised their discretion in an unreasonable manner. Whilst not conceding that the District Council's decision was open to attack on any of these grounds, counsel for the Respondents stressed that the arguments based on the use of information from the Trading Standards Officer could have been advanced, during the statutory appeal to the Sheriff.

[39] As far as the submissions based on the provisions of the Convention were concerned, counsel for the Respondents founded on the provisions of section 22(4) of the Human Rights Act 1998. They provide that section 7(1)(b) of the 1998 Act does not apply to any act of a public authority taking place before section 7 came into force, except in proceedings brought at the instigation of a public authority. Section 7 came into force on 2 October 2000. The present proceedings were raised by the Petitioner in May 2000 and not by the Respondents. Accordingly, in the present proceedings, the petitioner was not entitled to found on any breach of his Article 6(1) convention rights or those under Article 1 of the First Protocol.

[40] On damages, as well as arguing that the Petitioner had not established any legal basis on which the Respondents were liable to pay damages, counsel for the Respondents renewed the attack on the Petitioner's pleadings, advanced at the earlier hearing. Damages were now claimed by the petitioner under three heads:- (1) loss of earnings from the second-hand car business, (2) legal expenses incurred by the petitioner and (3) damages for injury to the petitioner's health, associated with the loss of his licence, the criminal prosecution and conviction and the various court proceedings in which the petitioner has been involved. Counsel submitted that despite the amendment that had taken place since the last hearing, the Petitioner's averments remained irrelevant. Under head (1), the damages claimed were based on gross profit margins, as opposed to net earnings, the accepted measure for loss of earnings. Moreover, the averments were completely lacking in specification. It was not clear when the loss of earnings began. There was no specification, on a year by year basis, as to what level of lost earnings was being claimed. Any loss of earnings prior to 6 December 1995, the date when the Court of Session upheld the Respondents' appeal, was unquantified. References to lower and differing gross profit margins failed to provide proper specification of the pursuer's loss. The loss claimed since 1996 was expressed as being 15% or 20% of the estimated range of values of the petitioner's business of between £350,000 and £500,000, subject to a deduction of £200,000 to cover the value of the petitioner's house and premises. Once again, the Petitioner had made no effort to calculate his net annual loss.

[41] The claim for legal costs was irrelevant. It appeared to cover the legal costs that the petitioner had incurred in connection with the Sheriff Court appeal and the appeal to the Court of Session and the criminal prosecution. Such claims were irrelevant. No details were given of the costs incurred for the particular legal proceedings in which the Petitioner had been involved. As such, this particular head of claim was wholly irrelevant and lacking in specification.

[42] Finally there was the head of loss claiming damages for injury to health. That was founded on averments limited to the following:- "His health has been severely affected having deteriorated due to worry and he has received treatment for nerves and depression." No specification had been provided as to when the petitioner's health deteriorated, as to the nature of the medical conditions he had developed, as to how long these conditions had lasted and as to the treatment, if any, the Petitioner had received. It was not sufficient to aver that the Petitioner suffered from nerves and depression. It was essential to offer to prove that the Petitioner had developed and suffered from an established psychiatric illness. Reference was made to the Opinion of Lord Reed in Rorrison v West Lothian College and Lothian Regional Council, Unreported 21 July 1999.

[43] On prescription, counsel for the Respondents confined his submissions to the claim for solatium for damage to health. He submitted that claim had prescribed, by virtue of the provisions of section 6(1) of the Prescription and Limitation (Scotland) Act 1973. No attempt had been made by the petitioner to found on section 6(4).The present proceedings had not been raised until May 2000.

[44] Counsel for the Respondents also sought to advance certain submissions on the question of mora. As I have already observed, however, I was informed at the outset of the continued hearing that mora was not to be dealt with at that stage. It was suggested then that the issue would, if necessary, be considered at a subsequent hearing, at which evidence could be led. Standing the agreement, about which I was informed at the outset of hearing, it did not appear to me open to counsel for the Respondents to decide unilaterally that the plea of mora should now be determined by me. For that reason, and in view of the fact that counsel for the Petitioner argued strongly that the Petitioner had never acquiesced in the Sub-Committee's decision, I reserve my determination on that plea. In my view, that plea could only be determined after full submissions (and possibly also evidence), which I have not heard.

[45] Counsel for the Petitioner responded briefly to the submissions made by counsel for the Respondents. As far as the question of prescription is concerned, counsel for the Petitioner conceded that the claim for solatium could only survive if the refusal of the renewal of the petitioner's licence had given rise to violations of the Petitioner's Convention rights under Article 6(1) and Article 1 of the First Protocol of the Convention.

[46] Counsel for the Petitioner also argued that if the Licensing Sub-Committee had acted in a manner that was fundamentally invalid, their decision could be attacked in judicial review proceedings, notwithstanding the availability and indeed the unsuccessful prosecution of a statutory right of appeal. Reference was made to a passage in Judicial Review by Clyde and Edwards, Para. 12.15, and to Mensah v Secretary of State for Scotland 1992 SLT 177. On the question of delegation, counsel for the Petitioner stressed the difficulty that the Petitioner had experienced in finding out what powers the Perth and Kinross District Council had delegated to their committees and officials. He stressed that the 1983 delegation had not been mentioned in the criminal proceedings taken against the Petitioner. It was only at the outset of the present hearing that the respondents had lodged Minute 750 of the Policy and Resources Committee (No. 7/10 of Process), that was said to provide evidence of the delegation of statutory powers back in 1983. In any event, what Minute 750 recorded the Policy and Resources Committee as having decided, even if subsequently approved by full Council, did not constitute a scheme of delegation, in terms of which all matters relating to the licensing of second-hand dealers had been delegated, including the making of any section 9 resolutions that might be required. Counsel for the Petitioner submitted that such a construction of Minute 750 was difficult to reconcile with the terms of the Scheme of Delegation subsequently approved by both the Policy and Resources Committee and more importantly the Council itself in early 1984 (see No. 7/2 of Process) or the terms of Report 84/246 and Minute 767 of the Property and General Purposes Committee dated 28 March 1984 (Nos. 7/3 and 7/4 of Process). He submitted that the Respondents were seeking to justify their position ex post facto. He contended that the power delegated to the official to grant licences to second-hand dealers did not include the power to impose conditions. In any event, standard conditions required to be founded on the provisions of section 24(4), which the conditions imposed on the Petitioner's licence could not be. Counsel for the Petitioner made clear that he did not suggest that the Licensing Sub-Committee were bound to ignore information that had come their way. It was because the Licensing Sub-Committee had sought information from the Trading Standards Officers, that they were unable to use the information they subsequently received. On the question of damages, counsel for the Petitioner acknowledged that the averments could have been drafted to provide better specification. He explained that pending the final outcome of the appeal to the Sheriff, the Petitioner had continued trading. After December 1996, his expenses had exceeded his revenue. The Petitioner had sought to have matters resolved during the criminal proceedings, pending the outcome of which the police had not taken further action against him.

Decision

[47] Consideration of the submissions I heard at the continued hearing has not been assisted by the fact that it has not proved possible for parties to produce a full set of all the relevant documentation. Only a selection of the relevant records of Perth & Kinross District Council are before me. Minutes of certain important meetings of the Council are not produced. Only excerpts from other relevant Minutes are lodged. Very little documentation relating to the applications for the grant of and renewal of the Petitioner's licence is to hand. Linked to the state of the documentation is the fact that many of the events with which these proceedings are concerned took place over 15 years ago. As best I can, however, I have sought to piece together the history of events. With those preliminary observations, I turn to deal with the issues on which I received submissions. I deal with them in a slightly different order to that in which they were raised by counsel.

Scheme of Delegation

[48] I do not accept the Respondents' primary position on the issue of delegation. That was to the effect that in 1983, Perth & Kinross District Council had delegated to their Property and General Purposes Committee all responsibilities for the introduction and administration of licensing schemes under the 1982 Act, including the passing of any necessary section 9 resolutions. It was contended that delegation had remained in force until the District Council went out of existence. In my opinion, such a contention is not vouched by the documentation available. In particular it is not vouched by Minute 750 of the Policy and Resources Committee, dated March 1983 (No. 7/10 of Process). On the contrary, such a delegation would be difficult, if not impossible, to reconcile with the Scheme of Delegation, approved by the Policy and Resources Committee on 29 February 1994, and subsequently approved by the Council (No. 7/2 of Process). Nor would such a delegation, back in 1983, be consistent with the terms of Minute 767 of the Property and General Purposes Committee's meeting of 28 March 1994 and Minute 868 of the Council's meeting of 2 May 1984 (Nos. 7/5 and 7/6 of Process).

[49] The next question is whether, properly construed, the Scheme of Delegation, approved in early 1984, effectively delegated the power to make section 9 resolutions to the Property and General Purposes Committee of the District Council. Minute 868 of 2 May 1984 (No. 7/6 of Process) suggests that in 1984 the Council and their officials proceeded on the basis that the section 9 resolution making power remained with the Council. Such a construction of the terms of the Scheme of Delegation approved in February 1984 (No. 7/2 of Process) would be a perfectly understandable one. However, I have reached the view that the terms of the Scheme of Delegation indicate that the Council intended to delegate to their Policy and Resources Committee the exercise of the section 9 resolution making power in respect of licences under the 1982 Act, other than licences for street traders and market operators. In my opinion that follows from a comparison of the terms of Paragraphs 9.A. (a)(i)(c), 9.A. (a)(ii)(e) and 9.A. (b)(iii)(e) of the Scheme of Delegation adopted in 1984. The first and third of those paragraphs make reference to the passing of resolutions under section 9 of the 1982 Act, whereas the second paragraph does not. In other words, the delegation to the Committee of the power to issue licences to street traders and market operators, under sections 39 and 40 of the 1982 Act, was subject to the passing of resolutions by the Council under section 9 of the 1982 Act. Likewise, the delegation to officials of the issue of licences under the 1982 Act, was subject to the passing of a section 9 resolution by the Council. On the other hand, as far as the powers delegated to the Committee in terms of Paragraph 9.A. (a)(ii)(e) were concerned, the Council did not reserve to themselves the power to make any section 9 resolutions that were required.

Did a valid licensing scheme for second-hand motor vehicle dealers come into force on 1 February 1986?

[50] In my opinion it did. The scheme that came into force on 1 February 1986 was competently founded on the section 9 resolution made by Perth and Kinross District Council on 2 May 1984. Whatever the terms of the Scheme of Delegation, approved in February 1984, it remained competent for the Council to make a section 9 resolution applying the licensing provisions of the 1982 Act to second-hand dealers, engaging in such classes of the activity of second-hand dealers as their resolution might specify. The resolution of 2 May 1984 explicitly provided that second-hand dealers, who dealt in motor vehicles, would, with effect from 1 February 1986, require to be licensed by the District Council in accordance with the provisions of the 1982 Act and would be regulated by those provisions. No challenge was offered by the Petitioner as to the procedure followed by the Council in the making of that section 9 resolution nor as to the competency of the resolution itself.

[51] What was argued on behalf of the Petitioner was that the Council's resolution of 2 May 1984 had in effect been irrevocably superseded by the resolutions made by the Policy and Resources Committee on 4 December 1985 and referred to in Minutes *488 and *490 (No. 6/3 of Process). It is clear that some very woolly thinking went into the preparation of the Reports 85/892 and 85/898, which were before the Policy and Resources Committee on 4 December 1985. Likewise, the Minutes themselves could have been more carefully drafted. It is in particular very regrettable that the Committee was not fully advised about the existence and legal effect of the Council resolution of 2 May 1984 nor about the statutory provisions that require to be followed, in the making or variation of section 9 resolutions. It was, of course, conceded by counsel for the Respondents, that if either or both of the resolutions passed by the Property and Resources Committee on 4 December 1985 required to be viewed as variations of the Council's section 9 resolution, then the correct procedure had not been followed, when those resolutions were made.

[52] I deal first with the Committee resolution set out Minute *490, which relates to the conditions to be applied to licences for second-hand motor vehicle dealers. In my opinion, issues relating to the conditions to be applied to the licences of second -hand dealers do not require to be made the subject of section 9 resolutions. Such issues do not fall within the ambit of the provisions of section 9, which deal with the procedure for determining what activities, or classes of activity, are to be licensed and regulated under the 1982 Act. In such circumstances, the Committee resolution in Minute *490 was not a section 9 resolution.

[53] The position is more complicated as far the Committee resolution in Minute *488 is concerned. Although Minute *488 makes no mention of section 9 of the 1982 Act, part (i) of the resolution is drafted in language that one would expect to find in a section 9 resolution dealing with the licensing of second-hand dealers under the 1982 Act. Moreover, part (i) of the resolution refers to "second-hand goods, as classified by the Council in report 85/892". Specifying classes of the activity of second-hand dealers in goods and articles is an exercise that requires to be carried out, when a section 9 resolution relating to the licensing of second-hand dealers is made or varied. Moreover, when regard is had to the terms of Report 85/892, it is clear that the advice given to the members of the Policy and Resources Committee, in December 1995, was to the effect that they should pass a section 9 resolution. Indeed the Report explicitly stated that "(u)nder section 9 of the 1982 Act, the Council, in opting to licence second-hand dealers, must by resolution specify the particular class or classes which fall to be regulated by those provisions". The Report then proceeded to recommend that a licence be required to carry on business in what could only be described as a number of classes of the activity of second-hand dealers. In these circumstances, I have reached the view that Minute *488 must be viewed as recording the making of what was intended to be a section 9 resolution, at least as far as part (i) of the resolution was concerned.

[54] The next question which arises is what effect, if any, did the part (i) of that resolution have? In my view, it had none. That was not because of the terms of the resolution nor because, if it be the case, the classes of activity set out in the Committee's resolution covered exactly the same range of goods as were covered by the classes of activity specified in the Council's section 9 resolution of 2 May 1984. It was because the correct statutory procedure was not followed, before the resolution in Minute *488 was passed. That is the position, whether that Minute is construed as recording the making of four separate resolutions or merely one composite resolution. In material respects, the procedure laid down in section 9 was ignored. For that reason the Committee's resolution was procedurally ultra vires. It never could be and never has been a valid section 9 resolution. Accordingly, whether or not it was competent for the Committee to pass a valid section 9 resolution, they did not do so on 4 December 1995.

[55] In my opinion, if the Committee's resolution of 4 December 1985 is set aside, that takes matters back to the Council's resolution of 2 May 1984. Counsel for the petitioner accepted that the Council's resolution was competent. No suggestion was made that the correct procedure had not been complied with, when the resolution was passed. In these circumstances, I see no reason why the Council resolution should not be held to have provided a proper foundation for the scheme for licensing second-hand motor vehicle dealers, which the District Council administered between 1 February 1986 and the date when they handed over to the Respondents, their statutory responsibilities under the 1982 Act. In my opinion, accordingly, when the Petitioner sought the grant and subsequently the renewal of a second-dealer's licence in 1987 and 1990, the Council had in place a valid scheme for the issue of such licences under the provisions of the 1982 Act.

Conditions

[56] Turning to the issue of conditions, there is, as I have indicated, no requirement that they be dealt with by means of a section 9 resolution. Indeed, standing the complicated procedures that require to be followed before a section 9 resolution can be made or varied, there would appear to be a very strong argument that it would be inappropriate for issues relating to conditions to be dealt with by such a procedure. Whether the Council, as the licensing authority, was relying on the provisions of section 24(4) or of para. 5 of Schedule 1 to the 1982 Act, or on both statutory provisions, as the statutory foundations for the imposition of conditions, all that the Council (or a duly authorised committee or official) required to do, when imposing conditions, was comply with the terms of those statutory provisions. Section 24(4) requires consultation with the Chief Constable, before a licensing authority attaches conditions relating to the keeping of records relating to a second-hand dealer's stock in trade. Para. 5 of Schedule 1 restricts conditions to such reasonable conditions as the licensing authority think fit.

[57] As I have already observed, the productions lodged do not include a copy of the conditions that applied to the Petitioner's licence throughout the period that he held one. Parties were agreed, however, that I should proceed on the basis that the conditions that applied to the Petitioner's licence were those to be found in No. 6/6 of Process.

[58] As far as the scope of those conditions is concerned, I am not persuaded that they are open to challenge. Report 85/898 makes clear that the necessary consultation took place with the Chief Constable before the Committee resolution of 2 December 1985, under Minute * 490, was passed. The conditions approved on 2 December 1985, which fall within the ambit of section 24(4), namely Conditions 2(a), 2(b) and 2(c), were couched in slightly different language to that found in the corresponding conditions in No. 6/6 of Process, namely Conditions 2, 2.1, 2.2 and 2.3. There is, however, no suggestion that those latter conditions, in No. 6/6 of Process, are materially different in effect. On the contrary they are to identical effect as the earlier conditions.

[59] A further ground of attack was that the standard set of conditions approved on 2 December 1985 included conditions founded on section 24(4) as well as others founded on para. 5 of Schedule 1. That was undoubtedly so, although the Committee's resolution of 2 December 1985, set out in Minute *490, makes no reference to either section 24(4) or para. 5(1). I see no objection to a set of standard conditions being approved, which relied on both statutory provisions for their validity. I find no support in Baker v Glasgow District Council 1981 SC 258 for the proposition that it was ultra vires the Council or one of its committees to approve a set of conditions, partly based on the provisions of section 24(4) and partly dependent on para. 5 of Schedule 1 for their validity. Nor is there any valid objection in principle to the Committee having approved a standard set of conditions, which could, of course, have been departed from or varied, if the merits of a particular application warranted such a course of action. Moreover, there is neither averment nor evidence to suggest that the officials who handled the grant and renewal of the petitioner's licence up until 31 July 1993 were not entitled to impose the conditions that he did. Nor, for that matter, is there any suggestion that the petitioner took any objection to the conditions attached to his licence, either when it was originally granted or when it was renewed. In terms of para. 18 of Schedule 1, it was open to him to lodge an appeal to the sheriff against a decision granting or renewing his licence subject to conditions to which he objected. He did not do so. In these circumstances, I am not persuaded that there are any grounds for attacking the validity of any of the conditions that applied to the petitioner's licence, during the three year period to 31 July 1993 or indeed before then. The conditions attached to the Petitioner's licence found adequate statutory foundations within the provisions of section 24(4) and para. 5 of Schedule 1 to the 1982 Act.

Hearing on 18 February 1994

[60] As I have observed, counsel for the Petitioner argued that it was not open to the Licensing Sub-Committee at its meeting on 18 February 1994 to hold that the petitioner was not a fit and proper person to hold a licence on the basis of evidence that he had failed to comply with Condition 2.5(a). It follows from the views I have already expressed, that I disagree. In my opinion, the District Council had a valid system in force for the licensing of second-hand motor vehicle dealers from 1 February 1986. In particular there was such a licensing system in force, on 31 July 1990, when the petitioner's licence was renewed for the three year period from 1 August 1990. In my opinion, it was open to an official of the District Council to renew that licence and to do so subject to conditions, as are to be found in No. 6/6 of Process. In my opinion, the imposition of conditions was part and parcel of the grant and renewal of licences. Any other construction of the Scheme of Delegation would be absurd. If the conditions were validly imposed, then there can be no doubt that when the Licensing Sub-Committee met to consider the Petitioner's application to renew his licence, they were entitled to consider whether or not the Petitioner had abided by those conditions.

[61] I deal next with the argument that the Licensing Sub-Committee erred in law in seeking and relying on information from the Trading Standards Officers of Tayside Regional Council. As I have outlined, the argument proceeds on the basis that the provision of such information by the officers constituted a breach by them of the provisions for section 25(8) of the 1968 Act. I reject the argument for the reasons advanced by counsel for the respondents. The Trading Standards Officers did not solicit the information handed over to the Council. That information consisted of unsolicited complaints, volunteered to the Trading Standards Officers by members of the public. The Trading Standards Officers had not used their statutory powers in collecting that information. It is difficult to see how the officers of either the District Council or Tayside Regional Council could be criticised for exchanging such information. There was no statutory bar against their doing so. In my opinion, the Licensing Sub-Committee were perfectly entitled to seek information from the Tayside Regional Council and to have regard to all the information before them in deciding whether or not to renew the petitioner's licence. Their decision of 18 February 1984 is not open to attack, because they chose to do so.

Convention rights

[62] Turning to the submissions based on the provisions of Article 6(1) of the Convention and Article 1 to the First Schedule to the Convention, I consider that section 22(4) of the 1998 Act provides a complete answer to this branch of the Petitioner's case. These are proceedings initiated by the Petitioner, not by a public authority. The proceedings commenced before 2 October 2000. In these circumstances, it is not open to the Petitioner to invoke the provisions of section 7(1)(b) of the 1998 Act and seek to rely on alleged violations of the his Convention rights.

Damages

[63] On the question of damages, in relation to which the pleadings have been recast since the original hearing, I remain of the view that the Petitioner's pleadings are irrelevant. The averments as to loss are seriously lacking in specification. The wrong approach to loss of earnings has been adopted, in proceeding on the basis of gross as opposed to net figures. In any event the averments relating to loss of earnings do not provide the Respondents with fair notice of the claim being made. The claims for recovery of legal expenses and for compensation for adverse effect on the Petitioner's health are irrelevant for the reasons advanced by counsel for the Respondents. I refer also to what I said on the issue of damages in my earlier Opinion.

Prescription

[64] I should also indicate that had it been necessary for me to do so, I would also have sustained the Respondents' plea in law, in relation to prescription. That plea was directed to the claim for damages to the Petitioner's health. Counsel for the Petitioner accepted that particular claim was dependent on the Petitioner being able to rely on alleged violations of his Convention rights. As I have held that it is not open to the Petitioner to do, I need not say anything further in relation to that particular plea.

Pleas in law

[65] In my opinion therefore, the Petitioner is not entitled to any of the remedies he seeks. The case pled against the Respondents is irrelevant. In such circumstances, the Respondents are entitled to have their second, third, fifth and sixth pleas in law sustained and both of the Petitioner's pleas in law repelled. The Petition falls to be refused.

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