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Cite as: [2004] ScotCS 130

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City Leisure (Musselburgh) Ltd, Re Petition for Judicial Review [2004] ScotCS 130 (03 June 2004)

OUTER HOUSE, COURT OF SESSION

P590/04

OPINION OF LORD EMSLIE

in Petition of

CITY LEISURE (MUSSELBURGH) LIMITED

Petitioners;

for

Judicial Review of a decision of

East Lothian Licensing Board made on 23 March 2004

Respondents:

________________

Petitioners: Anderson, Q.C.; Ledingham Chalmers.

Respondents: Hajducki, Q.C.; Allan McDougall.

3 June 2004

[1] The petitioners are a company incorporated under the Companies Acts and have their registered office in Musselburgh. They hold an entertainment licence for premises known as Club Cube, Olivebank, Musselburgh, which permits the sale and supply of alcoholic liquor at those premises. The respondents are the Licensing Board for the area of East Lothian as established under Section 1 of the Licensing (Scotland) Act 1976.

[2] In February 2004, the petitioners submitted an application to the respondents for a regular extension of permitted hours for the sale and supply of alcoholic liquor at their Club Cube premises. That application covered the hours from 11 p.m. to 3 a.m. on the nights of Thursday to Sunday inclusive. On 23 March 2004, it came before the respondents at their quarterly meeting in Haddington. Up to a certain point at which the members of the respondent Board adjourned to consider their decision in private, as they were entitled to do under section 5(7) of the Act, what transpired at the meeting is not now significantly in dispute between the parties. However, the petitioners allege that the respondents' eventual decision to refuse the application was not taken in public, and that this rendered it unlawful. The respondents, on the other hand, refute that allegation and maintain that the decision was lawfully taken.
[3] Section 5(7) of the Act provides as follows:-

"Proceedings relating to matters mentioned in sub-section (2) above, including voting in connection therewith, shall be held in public, but a Licensing Board may retire to consider its decision in any such matter and the clerk of the Board shall accompany the Board when it so retires unless the Board otherwise directs."

Sub-section (2) lists a variety of decisions which a Licensing Board is not entitled to delegate, and item (e) on the list is "making a decision on an application for a regular extension of permitted hours".

[4] When this Petition came before Lady Paton for a First Hearing on 7 May 2004, it was agreed that the foregoing factual dispute between the parties should be the subject of a proof before answer at a Second Hearing under Rule of Court 58.10. At that Second Hearing, which has now taken place before me, evidence from representatives of the petitioners and the respondents was followed by submissions from senior counsel on both sides. Helpfully, the point at issue was acknowledged to be short and straightforward: if the respondents had acted in breach of section 5(7) of the Act, their decision of 23 March 2004 would require to be reduced; if not, then that decision must stand and the Petition should be refused.

[5] Two witnesses gave evidence for the petitioners, namely Alistair MacDonald, of MacDonald Licensing Limited, specialist licensing advisors to the petitioners and others, and Alfredo Alongi, a principal director of the petitioners with special responsibility for the Club Cube premises. For their part, the respondents led three witnesses, namely Keith McConnachie, clerk to the Board, Provost Patrick O'Brien, its chairman, and Councillor John Ross, one of its members (and the local member for that part of Musselburgh where Club Cube is situated). In broad terms the evidence of all of these witnesses confirmed the parties' substantial agreement as to what took place at the meeting. After hearing representations from the Police, who had formally objected to the petitioners' application on grounds of public order and safety (citing many incidents of violence and disturbance involving patrons of the premises over the preceding 12 months), the Board were addressed by Mr MacDonald on the petitioners' behalf. Mr MacDonald (assisted by Mr Alongi) then answered multiple questions put by Board members. On the motion of the local councillor, Mr Ross, the Board then adjourned for 20-30 minutes to deliberate in private before returning to the meeting hall. As previously indicated, it was at this point that the parties' sharp disagreement arose.

[6] According to Mr MacDonald, proceedings in the hall were recommenced by Councillor Ross, who moved that the application be refused. This motion was seconded by Councillor Talac. When the chairman then asked ".... if anyone was otherwise minded", or words to that effect, no-one indicated opposition or proposed any contrary motion. The chairman might equally, he said, have asked "... if everyone was in favour of the motion", and judging by the members' response the decision was taken by unanimous vote. There was, however, no formal vote or show of hands, and from Mr MacDonald's perspective there was no way of knowing whether the 13 Board members other than the proposer and seconder had approved, disapproved or abstained. Indeed, his impression was that a collective decision had already been taken outwith the presence of the petitioners and behind closed doors. Further, when shown the draft minutes of the meeting, he disputed the statement that following the chairman's question all members orally responded "Agreed". As he very fairly conceded, however, he and Mr Alongi were by then "in a pretty fragile state of mind", and he could not remember the exact form in which the chairman's enquiry was made. In cross-examination he also accepted that clearly no-one was going to make an alternative motion, and that it was "obvious that the members of the Board were unanimous at that stage" and had collectively assented. Moreover, Mr MacDonald agreed that he himself had reacted by asking for written reasons for the decision, and also by seeking a direction under section 64(9) of the Act to permit the petitioners to re-apply within the normal one-year exclusionary period. The latter motion was granted with the support of Councillor Meikle, and Mr MacDonald understood that a re-application within 3 months - perhaps at the Board's June meeting - would be entertained. When pressed to identify his criticism of the Board's procedure, Mr MacDonald suggested that individual members might perhaps have had private reservations on the issue, and that it was not clear that all 15 Board members had voted to refuse the application.

[7] Mr Alongi's evidence was substantially to the same effect, although (i) his recollection was of the chairman asking "Right, do we agree?" or "Are we all in agreement?" or simply "Agreed?"; (ii) he spoke of hearing the Board members saying something, and described this as "a vocal vote" or "a murmur" in response to the chairman's question. Like Mr MacDonald, he confirmed that, to his recollection, no unanimous oral response "Agreed" was forthcoming; that there was no show of hands; and that no actual vote took place. He also suggested that the decision was not clearly unanimous, citing in support Councillor Meikle's subsequent sympathy and support for a shortened re-application interval. He conceded, however, that everything happened very quickly. He could not recall the precise words used, and many other details were not clear in his mind.

[8] The evidence of the respondents' three witnesses was, with minor exceptions, along consistent lines. According to the recollection of Mr McConnachie, the clerk to the Board, the chairman called on the members to indicate their response to Councillor Ross' motion by using his accustomed formula "Is that agreed?" or words to the same effect. He then heard all the members around him (again in accordance with normal practice) saying "Agreed", and his impression was clearly one of unanimity. There was, he said, a clear chorus of agreement, and not just a murmur of assent. This was reflected in the draft minute which he prepared (no.7/2 of process), the accuracy of which had been informally approved by at least some of those who were present at the meeting. Had there been any dissent or counter-motion, Mr McConnachie confirmed, this would have resulted in a vote being taken, but in view of the members' clear assent no such necessity arose. Mr McConnachie went on to assert that no vote had been taken by the Board in private, and that what happened after their return to the hall was not merely confirmation of a decision already taken. When pressed, he conceded that he could not honestly say that all 13 councillors other than the proposer and seconder had actually said "Agreed", but to him it appeared that the whole Board had indicated unanimous agreement, and he would have expected others in the room to think likewise. When the decision was announced, Mr MacDonald moved for a statement of reasons, and also for a direction under section 64(9) of the Act. It was possible, Mr McConnachie agreed, that a re-application period of 3 months had been mentioned in that connection.
[9] Provost Patrick O'Brien stated that he had done what he always did, asking "Does everybody agree with the motion?" or "Are we agreed?". Thereafter, as usual, everyone said "Agreed". That was, he said, the procedure. The members always said "Agreed" unless they were otherwise minded. In his own words, he was "fairly satisfied" that no-one wanted to oppose the motion or abstain, explaining that he knew the other councillors to be "a fairly lively bunch" who could be expected to speak out if they did not agree with something. From where he sat, he was "fairly" or "one hundred per cent" sure that all members said that they agreed, and in his view it was highly unlikely that anyone else would not realise that the decision was unanimous. Had any disagreement been indicated, he would have noticed and an appropriate vote would have been taken. So far as the previous adjournment was concerned, Provost O'Brien confirmed that no decision had been taken in private, and was unable to understand how anyone could have gained a contrary impression.

[10] Finally, Councillor John Ross confirmed that after his motion for refusal was seconded, no alternative motion was proposed. The chairman asked members "Are we agreed?", or words akin to that, and the Board responded with general murmurs of approval or assent. Had there been any disagreement, the chairman would have taken a vote, but in the absence of any alternative proposal no such need arose. Mr Ross believed that the decision was unanimous and was announced as such, and confirmed that in his view the narrative in the draft minute was correct. As the proposer of the motion, he was most interested in what would happen, and was sure in his own mind that the members said "Agreed" in answer to the chairman's usual enquiry. From where he sat, he could see that everyone was agreeing. At the time, moreover, no-one suggested that the decision had not been properly taken. Mr MacDonald merely asked for reasons in writing before raising the matter of a section 64(9) direction. Finally, as regards the suggestion that a decision had already been taken in private, Mr Ross expressed the view that that would have been totally improper and did not happen. The discussion in private had left him with a clear view or impression that there was unanimity around the table for refusing the application, but his own motion and the Board's decision were not made until after the members returned to the hall.

[11] Against the background of that evidence, which I have summarised at some length to convey something of the flavour of the witnesses' views and recollections, senior counsel for the petitioners invited me to hold that the mandatory requirement of section 5(7) of the Act had not been complied with. Similar issues had arisen in previous cases, notably Simpson v Banff & Buchan District Licensing Board 1991 SLT 18 and McKay v Banff & Buchan Western Division Licensing Board 1991 SLT 20. Both were cases where, on the Board's return from private deliberations, the chairman had neither asked if there was any counter-motion nor whether the motion could be taken as carried unanimously. In such circumstances, both decisions had been set aside as contravening the statutory requirement under section 5(7) of the Act. Senior counsel laid particular stress on the following observations by Lord Dunpark in the former case at page 20:-

"Section 5(7) requires 'proceedings relating to matters mentioned in sub-section (2) above' to be held in public. Referring back to section 5(2), one finds a list of 'decisions' which Boards cannot delegate. In my opinion the effect of section 5(2) and (7) is that all these decisions and any voting thereon must be made in public; moreover, it must be luce clarius that such decisions are made in public. I do not consider that it can be said positively that this decision to suspend the respondents' license was made in public. What makes me suspicious of the possibility that this decision was taken in the back room is the fact that the chairman did not ask if there was a counter motion nor, more importantly, did he ask the other members of the Board if the motion to suspend could be taken as carried unanimously. If he had done that and no member had objected, then I am of opinion that the decision would have been taken in public, but he did not do that. As counsel for the respondents pointed out, if the motion to suspend had been put to the vote in public by the chairman, some members might have abstained." ...

"I am ... saying that the Board's decision must be taken in public in such a way that it is plain to the public how each member of the Board would have voted, if a formal vote had been necessary, so that the clerk of the Board may record the vote of each member of the Board. Accordingly, if this chairman had asked if there was any counter-motion and, in the absence of any, had asked if the motion to suspend, properly seconded, was unanimous and no member of the Board had stated their dissent or abstention, that would, in my opinion, have been the decision of the Board made in public. But this chairman did not do that and I am left with the possibility that this decision was not taken in public but had been taken in the back room. That is not good enough, for the reasons which I have given." ...

"I emphasise that I am not suggesting that it is necessary for each member of the Board to be asked to vote if there is no counter-motion, but I am saying that it is necessary for the chairman to ask if the resolution is unanimous in order that the clerk may record it as such, if there is no dissent or abstention."

In senior counsel's submission, the position in this case was very similar and could not be distinguished. It was not credible that each member had said "Agreed" in response to the chairman's enquiry and, in contrast to what Lord Dunpark had envisaged, that enquiry had neither invited any counter-motion nor addressed the question of unanimity. According to senior counsel, fairness demanded that the chairman must specifically ask if there was any counter-motion, and in this case that essential step was plainly absent. The omission of such a question cast doubt on the validity of the decision, giving rise to a suspicion that it had already been taken in private. The same suspicion arose from the chairman's question "Are we agreed?", and Councillor Ross' belief that unanimity had been reached during the adjournment provided the petitioners with further ammunition in this context. Furthermore, it was argued, a murmur of assent was not enough to comply with the statutory requirements. Justice had to be seen to be done, and in this instance no-one could know that the agreement of each member had actually been given.

[12] In reply, senior counsel for the respondents asked me to accept the evidence of his three witnesses. All were physically well placed to hear the response to the chairman's enquiry, and all had a real interest in noting what was said at that stage. All of them were clear that a unanimous decision had been reached. Significantly, at one point in his evidence, the petitioners' witness Mr MacDonald stated that it was "clear that a decision had been reached by unanimous vote", and Mr Alongi had also conceded that no-one appeared to disagree. There was no basis in the evidence for the petitioners' suspicion that the decision had previously been taken in private, and no reason to question or reject the emphatic evidence of the respondents' witnesses to the contrary. As regards the form of the chairman's question, no-one could now be sure exactly what words had been used. Interestingly, Mr MacDonald thought that the enquiry was as to "whether anyone was otherwise minded", and there was really no difference in substance between that and a question to the effect of "Are we all agreed?" or "Is that agreed?". In senior counsel's submission what mattered was that, on any view, the members had been given the opportunity to say that they disagreed or wished to make a contrary proposal. In such circumstances, nothing more was demanded of the chairman. Significantly, section 5(7) of the Act merely required the decision to be taken in public. It did not prescribe the use of any particular procedure or form of words. In this case, the terms of the chairman's enquiry were a fortiori of what Lord Dunpark had envisaged in the case of Simpson, since they were more open and effectively invited disclosure of any opposition or counter-motion. What had happened was more than sufficient to meet the statutory test. There was no suggestion that the members had not been given the opportunity to abstain or to oppose the motion, and there was no reason to hold that the decision had not been taken in public as required.

[13] Having carefully considered the evidence and the parties' competing submissions, I have little hesitation in concluding that the petitioners' attack on the validity of the respondents' decision is ill-founded and must be rejected. Under section 5(7) of the Act, the only relevant issue is whether the decision was or was not taken in public. The present Petition is squarely directed to that issue, and (other than in that limited context) does not raise any separate question regarding the precise form or clarity of what was decided. In my respectful opinion, Lord Dunpark's observations in the case of Simpson merely serve to underline the degree of informality which may be permitted in these matters. The only requirement is that, by one means or another, the Board must be seen to reach their decision in public. The members must no doubt have an opportunity to indicate dissent or to advance a contrary proposal if they wish, but, provided such an opportunity is given, their assent to an uncontradicted motion may be indicated according to whatever practice the chairman may habitually recognise.

[14] On the evidence led before me I am satisfied that no vote or decision was taken by members of the Board in private, not only on the basis of the respondents' witnesses' emphatic denial that this happened (which I see no reason to disbelieve), but also on consideration of what took place once the Board returned to the hall. Leaving aside the precise words used, which (not surprisingly) were a matter of some uncertainty at this stage, the procedure plainly involved (1) a formal proposal, duly seconded; (2) an enquiry by the chairman along the lines of whether that was agreed; (3) an opportunity for any of the "fairly lively bunch" to demur if they wished; and (4) a verbal indication of assent which the proposer, the chairman and the clerk all took to be unanimous. It is certain that nothing was said to the contrary, and in my opinion the chairman would have been entitled in such circumstances to rely on his knowledge of the Board members' conduct at meetings, and to interpret even silence on their part as indicating assent. However, it is not necessary for me to go that far, because on the evidence as a whole I hold it proved that the chairman's enquiry was in fact met by the members with a collective verbal response. It may be that owing to the tension of the occasion Mr MacDonald and Mr Alongi did not pick up every nuance of what was going on, but in the end they do appear to have understood that ex facie a unanimous decision had been taken. As it seems to me, their real concern was that certain individuals might still have harboured private reservations which, for whatever reason, they did not express, but in my judgement the existence of such reservations cannot avail the petitioners in circumstances where, as I have held, members were given a chance to oppose the motion if they wished but chose not to take it.

[15] I am fortified in the conclusion which I have reached by the fact that no complaint was made at the time that the decision was not intelligible or had not been properly taken. On the contrary, Mr MacDonald implicitly treated the decision as valid in asking for a statement of reasons, and in my judgement that is a powerful indication that he must have known and accepted that a decision in public had been taken following Councillor Ross' initial proposal.

[16] For all of these reasons I am unable to accept that, on the evidence, a breach of section 5(7) of the Act has been shown to have occurred. In my view, the suspicions voiced by Mr MacDonald and Mr Alongi are not sufficient to displace the clear picture of a unanimous decision in public which emerges from consideration of the evidence as a whole. I therefore sustain the second plea-in-law for the respondents, repel the pleas-in-law for the petitioners and refuse the Petition.