DETERMINATION BY SHERIFF K. ROSS

B359/05 Donald Brown v Nithsdale District Licensing Board

DUMFRIES: 22 December 2005

Act: Maxwell Alt: Ritchie

The Sheriff, having heard parties' solicitors on the respondent's motion, made at the bar, that the application is incompetent and should be dismissed, continues consideration of same until 5 January 2006 at 10 a.m.

DUMFRIES: 5 January 2006

Act: Maxwell Alt: Ritchie

The Sheriff, having heard parties further on the respondent's motion to dismiss the application as incompetent, Refuses same; Grants warrant to re-serve a copy of the application and warrant on the Chief Constable of Dumfries and Galloway on a period of notice of 21 days and Ordains him to lodge answers within 14 days thereafter if advised; Ordains the respondents to lodge answers within fourteen days; Continues the cause to the procedural roll of 16 February 2005 at 10.00 a.m.; Refuses the applicant's motion for the expenses of the hearing of 22 December and Determines that the same shall be expenses in the cause

Note:

Introduction

On 21 October 2005 Nithsdale Divisional Licensing Board ("the Board") refused to renew the applicant's off-sales licence for premises at 76b Shakespeare Street, Dumfries. The present application is an appeal against that decision in terms of section 39 of the Licensing (Scotland) Act 1976 ("the 1976 Act"). It is made by summary application in terms of Part VII of the Act of Sederunt (Summary Applications, Applications and Appeals etc. Rules 1999 ("the 1999 Rules"). The initial writ was lodged on 22 November 2005. A warrant was granted for citation of the Board as respondents and a hearing was fixed for 22 December 2005. Service was accepted on behalf of the Board. On 19 December 2005 a copy of the initial writ and warrant was intimated by Sheriff Officer to the Chief Constable of Dumfries and Galloway.

The action called before me on 22 December 2005. The Board appeared and, through their solicitor, submitted that the application was incompetent. I was invited to dismiss it. The Chief Constable did not appear and was not represented. I was told, however, that he had sought the advice of the solicitor to Dumfries and Galloway Council, who also represented the Board, regarding the application and so was clearly aware that it had been made.

Parties' Submissions

The submission on behalf of the Board was shortly stated. The 1999 Rules required that the applicant shall serve a copy of the initial writ on the Chief Constable (rule 3.7.2(a)). Such service was mandatory and could only proceed on a judicial warrant (McAuley v Wigtown Divisional Licensing Board (2002) 23 SLLP 25, Ghani v Clydesdale District Licensing Board 1996 SLT 986, Russell v Ross 1980 SLT 10 and Binnie v City of Glasgow District Licensing Board 1979 SLT 286). No such warrant had been granted here. It was now too late to seek such a warrant (Russell v Ross). Nor could the failure to obtain such a warrant be remedied by an exercise of the dispensing power found in rule 2.3 of the 1999 Rules (McAuley, Perfect Swivel v City of Dundee District Licensing Board 1993 SLT 109, Russell v Ross, and Binnie). The solicitor for the Board also referred to Cummins, Licensing Law in Scotland (2^nd Edn.) at pages 338 to 340 where the cases she had referred to are reviewed.

The solicitor for the applicant accepted that the provisions of rule 3.7.2(a) were mandatory and that service on the Chief Constable required to be made. He also accepted, as he had to, that no warrant for such service had been obtained. He submitted however that the application and the warrant had been intimated to the Chief Constable. Any defect in service could be remedied, not by the application of rule 2.3 which he accepted did not apply to Part VII of the 1999 Rules in which rule 3.7.2 was found, but in terms of rule 2.16. The failure to obtain a warrant was an irregularity in service which might be remedied (Ghani). In all the other cases referred to by the solicitor for the Board either there had been no service at all or service had not complied with the terms of the existing rule (rule 3 of the Act of Sederunt (Appeals under the Licensing (Scotland) Act 1976) 1977 ("the 1977 Rules")). That provided for service "At the same time as the initial writ is lodged with the sheriff clerk or as soon as may be thereafter". The current rule 3.7.2 imposed no such timescale for service. The present case could be distinguished from McAuley where there had been no service or intimation at all; and there appeared to have been no argument presented to the sheriff based on the application of rule 2.16. McAuley should be approached with caution (commentary to the 1976 Act in the Parliament House Book, para E1.2.183). Rule 2.16 permitted the sheriff to order re-service of the initial writ where it appeared that there had been a failure or irregularity in citation or service. That was the position here. Absence of a warrant did not mean that there had been no service (Ghani and Sangha v Bute and Cowal Divisional Licensing Board 1990 SCLR 409). There was no prejudice to the Chief Constable arising from the failure or irregularity in not obtaining a warrant. He was aware of the application. He had taken legal advice on it. He had decided not to appear. A warrant to re-serve on him should be granted.

In response the solicitor for the Board submitted that rule 2.16 referred to re-service. There could be no re-service if there had been no service. Service required judicial authority (Ghani). Intimation without such authority was not service. I should infer that the Sheriff in McAuley must have been aware of rule 2.16 and Ghani and Sangha even although they are not referred to in the judgement.

Discussion and Decision

Appeals against decisions of licensing boards are allowed by section 39 of the 1976 Act. Section 19(9) permits the Court of Session to regulate the conduct of such proceedings by Act of Sederunt. Until 1999 such applications were governed by the Sheriff Court Summary Application Rules, 1993 ("the 1993 Rules"); and also by the 1977 Rules. Para 3 of the 1977 Rules was in the following terms:-

"At the same time as the initial writ is lodged with the sheriff clerk or as soon as may be thereafter, the appellant shall serve a copy of the initial writ -

(a)    on the clerk to the licensing board; and

(b)    if he was the applicant at the hearing before the licensing board, on all other parties who appeared (whether personally or by means of a representative) at the hearing;....."

The relevant statutory provisions which presently govern such proceedings are the 1999 Rules. Part VII of these rules applies to appeals under the 1976 Act. Rule 3.7.2 deals with service in the following terms:-

"The appellant shall serve a copy of the initial writ on-

(a) the clerk to the licensing board and the chief constable;....."

But Part I is also of relevance. It applies to summary applications generally of which appeals under the 1976 Act are one kind. That seems clear from the opinion of the Second Division in Ghani where at 988A-B it is stated:-

"In our opinion the provision contained in para 3 of the Act of Sederunt that the initial writ be "served" on parties who appeared at the hearing before the board clearly refers to "service" in the manner ordinarily adopted in summary procedure."

That procedure is now governed by Part I of the 1999 Rules. These prescribe, inter alia, the formalities to be followed for service and, in rule 2.16, allow for what may happen if there is any irregularity or failure of service. Rule 2.16 is as follows

"Where it appears to the sheriff that there has been any failure or irregularity in citation or service on a person, he may order the pursuer to re-serve the initial writ on such conditions as the sheriff thinks fit."

There is also in Part I a general dispensing power which applies only to Part I (and so not to the rules in Part VII). The relevant rule is rule 2.3(1) which states:-

"The sheriff may relieve a party from the consequences of failure to comply with a provision of this Part which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit."

There is no doubt that the requirement in rule 3.7.2(a) for service on the Chief Constable is mandatory. That was established for the similar 1977 rule (rule 3) in Binnie. But it is worth noting a difference between the corresponding rules. Rule 3 contained the provision that service should be "At the same time as the initial writ is lodged with the sheriff clerk or as soon as may be thereafter". That qualification is absent from rule 3.7.2. The difference is not without significance because the decision in Binnie was founded heavily on the failure to serve within that timescale. The solicitor concerned had obtained a warrant to serve the application and had requested a list of the parties who had appeared before the Board from its clerk. He had then gone on holiday without either attempting to make sure the information was available before his departure or making arrangements to serve the application on the relevant parties during his absence. By his return the application had called in court and a hearing on its competency (based on the failure to serve on some of the relevant parties) had been fixed. He served the application on these parties shortly before that hearing. The sheriff held that service had not been "as soon as may be" after the grant of the warrant to serve and dismissed the application. The First Division held that it could not be argued that the sheriff was not entitled to reach that conclusion. They categorised the provision as mandatory. But at page 287 the opinion of the court states:-

"There is no doubt that the solicitor's approach demonstrates that he considered only his own personal convenience. In particular although he had written to the clerk to the licensing board on 18 July 1978 for information about the objectors and had not had a reply by the time he was due to go on holiday he took no steps before going on holiday to press for an early reply and he took no steps whatever to secure that when the reply was received in his office other members of his firm would deal with it at once and take steps to comply with the requirements of s. 3."

In subsequent cases attempts have been made to put right a failure to serve such applications on either the Chief Constable or other relevant parties. In Russell v Ross (where para 3 of the 1977 Rules applied) no warrant for service was sought or obtained and no service was carried out. A plea to the competency based on this failure was repelled by the sheriff and a warrant to serve was granted. On appeal the Second Division held that the provision was mandatory and that the sheriff had no discretion to grant a warrant at the stage of the hearing on competency. In Sangha (again a case under the 1977 Rules) the application was intimated on the Chief Constable but not until forty eight days after the initial writ had been warranted. Before the sheriff the licensing board sought to argue that all parties had not been called because of the late intimation. There was no plea to the competency of the application. The sheriff rejected the plea of all parties not called and proceeded to deal with the appeal. In the course of that a plea to the competency was added by amendment but not insisted upon before the sheriff. On appeal to the Court of Session the issue of the competence of the appeal to the sheriff was raised but, as the Court decided the appeal on its merits, it was not necessary to decide the issue of competency (415A-E). However in the opinion of the court the Lord President observed (415D-E):-

"It is certainly not obvious that intimation of a copy of the initial writ to the chief constable did not amount to service on him for the purposes of paragraph 3 of the Act of Sederunt. There was a substantial delay, but the precise circumstances which gave rise to this delay are not explained in the averments. In the circumstances the sheriff can hardly be said to have erred in failing to sustain the respondents' plea to the competency of the appeal. In any event, since the point is not now of importance, we reserve our decision as to whether, if it had been moved and argued, the plea should have been sustained."

In Perfect Swivel Ltd (again the 1977 Rules applied) the initial writ was lodged with the sheriff clerk on 1 May 1990. (It is not clear from the report whether any warrant to serve on the Chief Constable was granted.) In any event it was not until 20 June 1990 that the copy writ was served on the Chief Constable. The sheriff held that this was not "at the same time as the initial writ is lodged with the sheriff clerk or as soon as may be thereafter" as the 1977 Rules provided. He also held that the dispensing power in the 1983 Ordinary Cause Rules (rule 1) did not apply to the 1977 Rules. On appeal the sheriff's decision was upheld.

In Ghani (the 1977 Rules again) a warrant was obtained for service on the clerk to the licensing board and a hearing appointed. A copy of the initial writ was also sent to the Chief Constable who appeared at the hearing. At the hearing it was argued on behalf of the Chief Constable that the application was incompetent as he had not been served with a copy of the initial writ, a warrant for service being essential for such service to be effective. The appellant argued that the warrant for service was contained in the 1977 Act of Sederunt and that, in any event, any defect in service was cured by the appearance of the Chief Constable. The alternative submission was based on rule 17 of the Summary Cause Rules, Sheriff Court 1977 which then regulated summary applications. It stated:-

"A party who appears or is represented may not object to the regularity of the service and the appearance shall be deemed to remedy any defect in service."

The sheriff repelled the plea to the competency. On appeal to the Court of Session it was held that "service" was in the manner ordinarily adopted in summary procedure. That required judicial authority (rather than any implied authority contained in the 1977 Rules) and a warrant to serve a copy of the initial writ on the Chief Constable. That has not been obtained and the initial writ had not been served on the Chief Constable "in the manner required by para 3". But the court went on to reject the contention of the licensing board that there had been no service at all and that therefore there was no defect which could be remedied by the Chief Constable's appearance. At 988 E-G Lord Morison, giving the opinion of the court said:-

"In our opinion the absence of a warrant obtained in respect of the chief constable did not mean that there was no service at all on him. Warrant to serve the writ on the board had been granted, and a copy of that warrant, which specified the time and date at which the writ was to be answered, was sent to the chief constable. The only requirement for service not complied with was that no judicial authority for service on the chief constable had been obtained. In our view this was clearly a deficiency in the procedure laid down for service and it was therefore cured by the chief constable's appearance. This result follows naturally from the fact that the only apparent purpose of the requirement to send a copy of the warrant is to inform the recipient how and when he is to appear, and if he is informed of this and dose appear he is in no way prejudiced by any failure to obtain judicial authority."

In the present case the Chief Constable received a copy of the initial writ and the warrant. That gave him notice of the proceedings and their nature and of the date on which they would call in court. The purpose of such intimation is clear. It is in the public interest that the Chief Constable should be able to comment on and, if appropriate, object to any licensing application or appeal. That is particularly the case in the circumstances here where the board's decision was based on a conviction of the applicant of a contravention of one of the provisions of the 1976 Act; and where the Chief Constable had been an objector before the board. He is uniquely qualified to inform the board, and, on appeal, the court, of the significance of any such conviction in relation to the applicant continuing to hold a licence. He appears to have received intimation of the application in sufficient time to allow him to take legal advice. His failure to appear in the appeal was, accordingly, informed.

The only case cited to me which was decided under the 1999 Rules was McAuley. All the other cases were decided under the 1977 Rules. All, including McAuley, relied on and followed Binnie. I am not sure that the ratio of Binnie necessarily applies to the 1999 Rules. It seems clear from the opinion of the court that it was adherence to the rule (para 3 of the 1977 Rules) which the court considered mandatory. That rule imposed strict requirements as to time. It was the failure to comply with these requirements which attracted the Court's attention and criticism. Such requirements are absent from the 1999 Rules. Sangha seems to doubt whether service on the Chief Constable, though some time after the granting of the warrant, could not amount to service. Both the language of the opinion in Binnie and the doubt expressed by the Lord President in Sangha suggest that Binnie may not apply to the different terms of rule 3.7.2 of the 1999 Rules; except, of course, that the rule is mandatory and must be adhered to.

What does rule 3.7.2 require? It requires service on the Chief Constable. He has received a copy of the initial writ and of the warrant which gives details of the time and place when the court will consider the application. Certainly there was no judicial authority for such intimation. That is almost identical to the circumstances in Ghani. So I do not think it can be said that there has been no service at all on the Chief Constable. In Ghani the lack of a judicial warrant ("a deficiency in the procedure laid down for service" as Lord Morison describes it) was cured by the appearance of the Chief Constable and the operation of rule 17 of the 1993 Rules. If the Chief Constable had appeared in the present proceedings it is difficult to see that the corresponding rule 2.17 would not have led to the same result. There seems no reason why rule 2.16 cannot apply to the same deficiency in procedure which can properly be described as a "failure or irregularity in citation or service". The rule is discretionary. Any failure or irregularity in compliance must be balanced against its effect. Prejudice to the person on whom service should have been made is an important consideration. But here there is none. The Chief Constable knew of the application and when it would call in court. He chose, no doubt on legal advice, not to appear; as he could easily have done. Ghani establishes that. He can hardly complain of prejudice if he chooses that course.

I decline to follow McAuley. It follows Binnie and the other cases under the 1977 Rules without any consideration of the changed wording of the 1999 Rules; and without, apparently, any consideration of what was said in either Ghani or Sangha. And, significantly, there was no intimation at all on the Chief Constable. So it is distinguishable on its facts.

In these circumstances I refuse the motion of the board to dismiss the application as incompetent. I will grant a warrant for re-service on the Chief Constable and assign a further date for the hearing of the application.