Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 62

P1439/15

OPINION OF LORD BOYD OF DUNCANSBY

In the Petition

Gordon Shearer

Petitioner;

for

Judicial Review of a Ruling by the Independent Betting Adjudication Service Ltd

Petitioner:  Nicoll;  Thorley Stephenson SSC

First Respondent:  Connal QC solicitor advocate;  Pinsent Masons LLP

Second Respondent:  No appearance;  Harper Macleod LLP

29 April 2016

[1]        The petitioner seeks permission under section 27B of the Court of Session Act 1988 to proceed with an application for judicial review.  By interlocutor dated 31 March 2016 Lady Wolffe refused permission without an oral hearing.  The petitioner sought a review of that decision under RC58.8.  I granted an oral hearing which I heard on 15 April 2016.  Answers were lodged by the first respondent who were represented at the permission hearing.  There were no answers and no appearance for the second respondent.

[2]        This judicial review arises out of a bet placed by the petitioner with the first respondent, Betvictor Ltd, formerly Victor Chandler International Ltd.  It is a company registered and operating from Gibraltar, subject to regulation by the Gibraltar Gambling Commission but having a licence from the Gambling Commission to provide online betting services to customers in the United Kingdom.  The second respondent is the Independent Betting Adjudication Service Ltd, a company registered in England and having a place of business there. 

[3]        On 24 December 2011 the petitioner placed a bet online with the first respondent on the outcome of a football game between Celtic and Kilmarnock.  The stake was £92,476 and the odds 1/18.  The dispute between the petitioner and the first respondent is whether the bet was on Celtic to win the match, as the petitioner contends, or only to win the second half, as the first respondent contends.  Celtic won the match 2 – 1 but only drew the second half 1 - 1.  The first respondent refused to pay out on the bet or refund the stake.

[4]        The first respondent’s terms and conditions provided for disputes to be adjudicated by the second respondent whose ruling is final.  The petitioner pursued the adjudication with the second respondent who issued a decision dated 10 July 2012 against the petitioner.  That decision was subject to an internal review by the second respondent.  Following that review by letter dated 21 August 2012 the second respondent adhered to its decision. 

[5]        The petitioner had a right of complaint to the Gibraltar Gambling Commission (GCC) and he followed that course.  On 21 May 2013 the GCC refused the complaint but advised the petitioner that there was a right of appeal to the Gambling Commissioner.  The petitioner appealed to the Gambling Commissioner who by letter dated 13 June 2013 declined to alter the finding of the GCC.  The petitioner considered a judicial review of that decision in Gibraltar but was advised that even if upheld all that would be achieved would be a requirement that the first respondent would be bound to enquire into the complaint.  It would not settle the legal issue.

[6]        The petitioner craves the following orders

“(1)      Reduction of the Ruling issued on or about 10.7.12 by the Second Respondent in terms of which it made a decision to adjudicate in favour of the First Respondent;

(2)        Reduction of the Review decision letter dated 21.8.12 by the Second Respondent;

(3)        Declarator that the Petitioner and the First Respondent entered into a binding contract for ‘Match Betting’ on the Celtic v Kilmarnock football game on 24.12.11 in which the term ‘Match Betting – Second Half’ did not form part of the contract and accordingly the First Respondent is bound to pay out on the bet;

(4)        Failing Declarator in terms of (3) above, ALTERNATIVELY for Declarator that the contract between the Petitioner and the First Respondent being void through lack of consensus, the First Respondent is bound to make return the stake of £92,476 to the Petitioner.”

Decision
[7]        I refuse permission to proceed.  I am not satisfied that the petitioner has demonstrated that the second respondent is subject to the jurisdiction of this court.  It is a company incorporated in England and having its place of business in England.  The adjudication was carried out in England.  Rule 2(l) of paragraph 8 of the Civil Jurisdictions and Judgements Act 1982 applies and provides that jurisdiction lies in the courts in the place where the company has its seat, ie England (see Bank of Scotland v Investment Management Regulatory Organisation Ltd 1989 SC 107). 

[8]        Mr Nicoll, who appeared for the petitioner referred me to the decision of the House of Lords in Tehrani v Secretary of State for the Home Department 2007 SC (HL) 1 and suggested that as the petitioner was domiciled in Scotland and the contract with the first respondent was completed in Scotland, the Scottish courts would have jurisdiction.  In my opinion Tehrani is of no assistance to the petitioner.  It concerns tribunals established by statute and dealing with immigration.  This is a private dispute between the petitioner and the first respondent arbitrated privately by the second respondent.  At paragraph 49 Lord Hope of Craighead refers to rule 2(m) of paragraph 8 to the 1982 Act and observes that a decision taken outside Scotland under the law of another part of the United Kingdom is not subject to the supervisory jurisdiction of the Court of Session even if the effects are felt in Scotland.  I am not told whether the betting contract was subject to English or Scots law but I suspect it is the former. 

[9]        That is sufficient to dispose of the matter since the only decisions that are sought to be reviewed are those of the second respondent.  However I should also make some brief remarks about some of the other issues that arose. 

[10]      The first respondent contends that the decision of the second respondent is now spent since the decision was appealed to the GCC.  Mr Nicoll submitted that the procedure before the GCC and subsequently the Gambling Commissioner was in effect a complaints procedure and did not affect the binding decision of the second respondent.  If that is correct then I would accept that the decision was not spent.  However the GCC is the first respondent’s regulator and if this matter was to go further the court would need to be satisfied that the GCC did not have the ability to determine the issue and direct the first respondent in regard to the dispute.  If it did then it may be that the operative decisions are those of the GCC and the Gambling Commissioner.  Such decisions would be for the courts in Gibraltar.

[11]      The first respondent also has a plea of mora, taciturnity and delay.  The decisions of the second respondent are in 2012 and relate to an alleged breach of contract in 2011.  (It should be noted that although the petition was lodged after the commencement of section 89 of the Courts Reform (Scotland) Act 2014 the transitional arrangements in article 4 of the Courts Reform (Scotland) Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2015/247 applied.  The petition was lodged before 22 December 2015 the decision having been deemed to have been taken on 22 September 2015.)

[12]      Even if, in calculating the time between the decisions complained of and the lodging of this petition, one takes into account the proceedings in Gibraltar there is still a period of nearly three years where little if anything happened.  Mr Nicoll explained that the petitioner had exhausted his funds pursuing the issue in Gibraltar and did not have the resources to privately fund an action in Scotland.  He required to obtain legal aid and find solicitors willing to take the case on.  Mr Connal replied that may be so but all the elements of the plea were made out.  I did not have full debate and do not require to decide this issue but in my opinion the plea of mora is one which the petitioner might find difficult to resist.

[13]      This is essentially a contractual dispute dressed up as a judicial review.  I accept that applying the tripartite test in West v Secretary of State for Scotland 1992 SC 385 that, on the assumption that the second respondent is subject to the jurisdiction of this court, a case can be made out that a decision by the second respondent could be reviewed on judicial review grounds.  Nevertheless the petition potentially raises issues as to how far the supervisory jurisdiction extends in cases which are essentially commercial in nature where the authority of the decision maker is conferred by contract. 

[14]      The complaint made by the petitioner is that the second respondent’s decision is wrong in law citing Wordie Property Company Ltd v Secretary of State for Scotland 1984 SLT 345.  Mr Nicoll submitted that it had asked itself the wrong question.  Other than that it is not suggested that any other of the traditional grounds of judicial review apply in this case.  Having regard to the pleadings and the supporting material I agree with Mr Connal that the issues raised are ones of mixed fact and law in a specialist area where the second respondent would be expected to apply a particular knowledge and expertise.  He noted that together with the decisions of the GCC and Gambling Commissioner in Gibraltar the matter had been considered on four separate occasions.  On each occasion the decision had been adverse to the petitioner.

[15]      This is not the place to conduct an analysis of the extent of judicial review in Scotland.  As I understand the law in England, judicial review would not be available to the petitioner since it does not raise any public law matter.  That of course is not relevant in a question as to whether this court can exercise its supervisory jurisdiction; Hope LP in West at p413.  However, if this matter were to proceed, I would expect the court to examine carefully the nature of the relationship between the parties, the scope of the second respondent’s authority and the nature of the decision that it took.

[16]      I have concluded that because the second respondent is not amenable to the jurisdiction of the Scottish courts that there are no real prospects of success.  Even if it were to proceed the petitioner would face some formidable hurdles.