Scottish Court of Session Decisions

Pursuer: Skinner; Balfour + Manson LLP

Defender: Brown; Biggart Baillie

18 May 2010

[1] In this petition William Morrison Supermarkets Plc seek judicial review of the "actings of South Aberdeenshire Licencing Board in respect of whether the Petitioners have a duty to trade during the whole hours set out in their licence".

[2] The licence with which the petition is concerned was an off-sales licence issued to Somerfield Stores Limited ("Somerfield") in terms of the Licensing (Scotland) Act 1976 in respect of supermarket premises at North Deeside Road, Banchory. Somerfield applied to South Aberdeenshire Licensing Board ("the Respondents") for a premises licence in respect of these premises in terms of the Licensing (Scotland) Act 2005. An operating plan accompanying that application sought off-sales licensed hours from 10am to 10pm each day of the week. The Petitioners, subsequent as I understand it, to their acquisition of these supermarket premises, sought and obtained transfer of the application. That application was granted by the Respondents on 19 August 2009. The licensed hours granted were for off‑sales from 10am to 10pm each day.

[3] The following orders were sought by the Petitioners: (a) Declarator that in terms of the Licensing (Scotland) Act 2005 there is no legal duty upon the Petitioners to trade in the sale of alcohol at the premises throughout the licensed hours granted by the Respondents.

(b) Declarator that the decision of the Respondents to maintain a register for those premises not trading for the full hours laid down in their operating plan, and to have the premises monitored by Licensing Standards Officers and the Police with a view to a possible review of the licence, is unlawful.

(c) Interdict against the Respondents from reviewing or seeking to review the Petitioner's premises licence on the ground that, as they have not operated throughout the whole licensed hours granted by the Respondents, the Petitioners are in breach of a condition of their premises licence and for interdict ad interim.

[4] The factual background to this matter is set forth in the petition, was not in dispute between parties, and may be summarised as follows. As already noted that relevant licence is in respect of off-sales from 10am to 10pm each day. Grampian Police made a representation to the Respondents that the Petitioners did not propose to remain open for the sale of alcohol throughout the hours specified in the licence. That representation appears to have had some foundation because agents for the Petitioners wrote to the clerk to the Respondent's seeking clarification of the attitude of the Respondents if the hours traded in the premises were regularly less than those stated in the licence. The clerk to the Respondents responded to that request by letter dated 26 June 2009 and informed the Petitioners that the Respondents expected licence holders to remain open for the duration of the hours stipulated in the licence. This position was stated because of the interpretation the Respondents placed upon the relevant provision of the Licensing (Scotland) Act 2005. In the same letter the clerk to the Respondents also advised the Petitioners as follows; "I am instructed by the Board to maintain a separate record of these premises and they will be subject to monitoring by the Licensing Standards Officers and the Police after 1 September 2009. The applicant runs the risk of a review of the licence being triggered."

[5] Against that factual background the Petitioner seeks to put in issue, and obtain a judicial determination, of the construction of the relevant statutory provision, which I was informed is section 1(1) of the Licensing (Scotland) Act 2005. It is common ground between the Petitioners and the Respondents, that the issue of the interpretation of section 1(1) of the 2005 Act, the so‑called "duty to trade" argument, is a matter of considerable interest and indeed concern, amongst practitioners in licensing law, the holders of liquor licences and Licensing Boards. For this reason both parties to the petition made it clear at the outset that they would welcome a judicial decision on this issue.

[6] Notwithstanding the parties desire to obtain a judicial interpretation of the applicable statutory provision the Respondents stated three preliminary pleas in the following terms:

"(1) The respondents having taken no decision which is susceptible to review in the exercise of the supervisory jurisdiction the petition should be dismissed.

(2) The petitioner not presently being subject to any proposal to review its premises licence the petition is speculative and should be refused.

(3) The Petitioner having available to it an alternative statutory right of appeal against any review of its premises licence the petition is incompetent and should be refused."

I was informed that these preliminary pleas had been taken was some hesitation having regard to the terms of a decision of Lord Rodger of Earlsferry, then sitting in the Outer House, in First Leisure Trading v City of Glasgow Licensing Board 1996 SLT 1018. In that case, in circumstances similar to the present, Lord Rodger of Earlsferry entertained a petition for judicial review. As was however pointed out by counsel for the Respondents that decision was taken in the circumstance where there was a concession that the court had jurisdiction and where none of the aforementioned preliminary pleas were taken by the Respondents to that petition. That concession has not, obviously, been made in the present case. On that basis the decision in First Leisure Trading (supra) is distinguishable from the present case.

[7] Having regard to these submissions I formed the view that the appropriate course was to hear argument in relation to the three preliminary pleas before I heard any further argument relative to the substantive merits of the petition. This decision was taken on the rationale that the preliminary pleas struck at the competency of the petition and, if upheld, would dispense with the need for any further procedure in this petition.

[8] Counsel for the Petitioners very helpfully provided me with a written note of his submissions in relation to the preliminary pleas. In essence this amounted to an assertion that there was a reviewable decision, that being the Licensing Board's declared intention of monitoring the Petitioners' premises and, in the event of there being a failure to trade throughout the allotted hours, potentially instituting review of the licence. Counsel submitted that as a consequence of that action the present petition was neither hypothetical nor premature. He submitted that it was clear that the decision by the Board to embark on a course of action, monitoring the opening hours of the premises, which course he submitted was unlawful, raised a disputed question of construction of a statutory provision which, it was submitted, is of "immense practical importance," and "has an immediate and practical effect on how they should run their business."

[9] Although not expressly stated as an esto argument, counsel had a fall back position. This was a submission that I think I can characterise as follows. That judicial review, or more properly the supervisory jurisdiction of Court of Session, had reached a stage where it would entertain, and adjudicate upon, issues between parties otherwise amenable to judicial review, if the issues were of sufficient importance to merit judicial determination.

[10] I should note that in the course of his submission counsel referred to a number of authorities: McNaughton v McNaughton's Trustees 1953 SC 387, Chaplin's Trustees v Hoile (1980) 18 R 27, R (Garden & Leisure Group) Ltd v North Somerset Council [2003] EWHC 1605, Mitchells Butlers Retail Ltd v Aberdeen City Licensing Board 2005 SLT 13, and Air 2000 Ltd v Secretary of State for Transport (no 2) 1990 SLT 335. As counsel, I think, accepted in referring to those cases none were directly in point with the issues raised in the present petition. I do not consider that they advanced the argument presented.

[11] In response to these submissions counsel for the Respondents took the straightforward position that a decision by a Licensing Board in a situation such as the present was almost inevitably fact specific. Here the Licensing Board had indicated to the Petitioners no more than a view of how the Board might proceed in the event of Morrisons taking certain action in relation to trading. As at the date the Petition was presented no action had been taken by the Respondents. No action might ever be taken, it would depend on circumstances. The assertion that the Respondent had the power to instruct the police to monitor the Respondents premises was plainly incorrect. The police are an independent authority over whom the Respondents exercise no control. Further, and in any event, the course proposed by the Respondents was consistent with the statutory framework Parliament had devised to deal with situations such as that which had arisen, or may he developing, in the present case. That mechanism was to be found in the provisions of sections 36-40 of the Licensing (Scotland) Act 2005 which provide for the review of licenses. If a person considers that a condition to which a license is subject is being breached then an application for review may be made to the relevant Licensing Board (section 36(1) and (3)). A Licensing Board can itself institute a review (section 37). There must be a "review hearing" before the board, at which hearing the license holder, in this case the Petitioners, would be entitled to be heard (section 38). By virtue of these provisions the Petitioners' position, it was submitted, was protected. In the event that a review decision was regarded by the Petitioners as unsatisfactory there were mechanisms for appeal (section 131 and schedule 5). In these circumstances the current application was, it was submitted, premature.

[12] I pause to observe that counsel for the Petitioners had an argument that even if the appeal mechanism in the Act provided a method of challenging review decisions then there was potential for injustice to his clients because of the possibility of interim suspension of their licence pending hearing of the appeal which, while subject itself to appeal to the Sheriff Principal, might take some weeks to achieve. As a matter of fact I recognise that is a legitimate ground of concern to the Petitioners. However, Parliament must be taken to have been aware of this factor when the legislation was passed.

[13] I acknowledge that there may as a matter of practice be some scope for a degree flexibility in the approach to be taken to consideration of preliminary pleas in relation to judicial review, albeit that no authority touching on or supporting this proposition was cited to me. Nevertheless, in my view the historical parameters of the use of the supervisory jurisdiction must be observed. In that respect one area where the court has repeatedly made it clear that it will not adjudicate is where there is no immediate issue between parties or where the issue is, at the time the matter is brought before the court, hypothetical. It is not, in my view, sufficient to advance as justification for engaging the courts judicial review jurisdiction a plea that the matter at issue is of "immense practical importance" and may have "immediate and practical effect" on the way parties conduct their business. Another clear principle is that the court will not intervene if there is another legal avenue, a jurisdiction, in existence to adjudicate on the issue before the court. It seems to me that the present petition transgresses in relation to both these rules. Whilst clearly there is an issue, and no doubt an important issue, between parties, that issue has not yet, in my view, developed into a justiciable cause. As counsel for the Respondents pointed out it is possible that no justiciable issue might ever develop between the parties. Even if a justiciable cause does emerge, and I accept that that seems likely, Parliament has expressly provided a jurisdiction to deal with the issue which will arise. I consider it would be both inappropriate, and more forcefully wrong, to interfere with that jurisdiction.

[14] In the circumstances I am satisfied that the preliminary pleas are well taken in this case. I should indicate that I was invited by the Petitioners to express a view on the underlying substantive matter, that is the interpretation of section 1 (1) of the 2005 Act, even if I formed the viewed that the Respondents preliminary pleas fell to be upheld. It was submitted that even such an obiter view would be of assistance to the parties. I was not prepared to take that course. In my view the whole purpose of preliminary pleas is to avoid the necessity of the court adjudicating on matters which are not properly before them. In the circumstances I express no views on the substantive matter raised in this petition. I will uphold the Respondents first, second and third pleas-in-law to dismiss the Petition.