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Case Reference Number:
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B39/07
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SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY
JUDGMENT OF SHERIFF WILLIAM
HOLLIGAN
in causa
PURSUER ABDI HABIB, residing at 19
Dunvegan Avenue, Kirkcaldy, Fife, KY2 5AG
against
DEFENDERS CENTRAL FIFE AREA REGULATION SUB-COMMITTEE, Fife Council,
Fife House, North
Street, Glenrothes, Fife
Kirkcaldy 30 January 2008. The
sheriff, having resumed consideration of the cause, SUSTAINS the defenders'
objection to the leading of evidence; SUSTAINS
the defenders' third plea in law; repels the pursuer's pleas in law; REFUSES the appeal; FINDS the pursuer liable to the defenders in
the expenses of the action; ALLOWS an account thereof to be given in and Remits
the same when lodged to the Auditor of Court to tax and report.
NOTE
[1] This matter concerns a
late hours catering licence ("the licence") which the pursuer holds in relation
to premises known as Bar-B-Q King, 31 Whytescauseway,
Kirkcaldy ("the premises"). The licence
permits the pursuer to trade between the hours of 11.00 pm to 2.00 am on certain days of the week.
[2] By letter dated 27 December 2006 an application was made by Fife Constabulary ("the police
application") to vary the hours of the licence so as to restrict the closing hours
on the relevant evenings from 2.00am to 1.00am. The substance
of the police application was that the pursuer had been serving food after 2am. The Central Fife Regulation Sub-Committee ("the committee"), being a
committee of Fife Council, held a meeting on 10 January 2007 to consider the police application.
The decision of the committee was that the existing hours which required
closure at 1.00 am on Sunday to Thursday evenings and 2.00am on Friday and Saturday evening, be
varied to 1.00 am for each day of the week, all until the expiry of the licence on 31 January 2009. It is against that decision
the pursuer now appeals.
[3] The appeal proceeded
before me on 22 and 29 November 2007. I heard evidence from Mr Farzin Afshar,
the pursuer and Harriet Noble.
Mrs Walker objected to the hearing of evidence for reasons upon
which I will later expand. The appeal
had been adjourned on previous occasions because of the ill health of one of
the witnesses. The witnesses were now all in attendance. Rather than delay
matters further parties agreed that I should hear the evidence subject to
competency and relevancy. Mr Afshar
gave evidence first owing to ill health.
A joint minute of admissions was lodged as was a letter dated 15 February 2007 setting out the reasons for the decision of the committee ("the decision
letter").
[4] In relation to the
procedure before the committee, the committee had before it the police
application. It heard from Superintendent Ewing. The pursuer was present. He did not have legal representation. There was no evidence from the police
officers who visited the premises on the night in question. The pursuer produced a number of letters from
some of his employees: Harriet Noble,
Farzin Afshar and Colin Neilson.
I note that the decision letter makes reference to certain other
material to which I will refer, only to the extent that it appears to be relevant
to this appeal.
[5] Much of the evidence of
the witnesses was not in dispute. Food
is served from the premises: pizzas;
burgers and chips; kebabs. These food
items require various cooking appliances.
The core trading hours of the premises are 5.00 pm to 1.00 am during weekdays and 2.00 am on Friday and Saturday. The busiest time is from 12.30 am until 2.00 am during the weekend. Customers
often come to the premises from the nearby pubs and clubs. Food is generally cooked to order. The pursuer is primarily responsible for the
cooking of pizzas. In addition to those
serving behind the counter (including the pursuer and two witnesses) there
are drivers who deliver telephone orders.
At the relevant time, the only access to the premises was from the
street. There was a roller shutter for
the window on the main street and another for the door. For fire safety reasons, the shutter on the
door was not pulled down fully when there were people within the premises. It might be partially pulled down. The usual practice was for cooking to stop
5-10 minutes before closure of the premises.
The pursuer used to cook pizzas in advance of closure and customers arriving
shortly before closure would have to select a pizza from those already
cooked. The ovens took some
20 minutes or so to cool down and they could not be switched off until
they had cooled to a particular temperature.
They were usually switched off before 2.00 am. The staff were allowed food at or about 2.00 am which they ate in or about the premises. Harriet Noble and Farzin Afshar
would usually stand outside the shop at or about 2.00 am to have a
cigarette. If they were standing outside
and customers approached after 2.00 am they would tell the customers that
the premises were closed. The staff
would clean the premises in order to be ready for the next day's trading. Uniforms were available but it appears that
only Mr Afshar wore the uniform on any regular basis.
[6] Farzin Afshar and Harriet Noble
were working on the night of 9/10 December 2006. Both were present when the police
called. Harriet Noble said the
police arrived some time after 2.30 am.
The police said customers were being served at this time. Both Farzin Afshar and Harriet Nobel
said that they were not and that the staff were engaged in cleaning the
premises. Harriet Noble and
Farzin Afshar said there were no customers in the shop at the point when
the police arrived. Farzin Afshar
was cleaning the chip pan and Harriet Noble was cleaning the kebab
machine. There was a written statement
signed by Farzin Afshar. He
accepted he had prepared the statement.
It was put to him there were certain inconsistencies between that
statement and the evidence he was now giving in court, particularly in relation
to the presence of a particular driver. I did not consider that the
inconsistencies were significant. The pursuer was not in the front premises
when the police arrived and he did not see nor speak to the police.
Submissions for
the parties
[7] For the pursuer,
Mr McDonald stated that the appeal proceeded pursuant to
paragraph 18(7)(b) of the Civic Government (Scotland) Act 1982 ("the 1982 Act").
That provision permits the sheriff to uphold an appeal if he considers
that the licensing authority, in arriving at their decision, based their
decision on any incorrect material fact.
Paragraph 18(8) permits the sheriff to hear evidence by or on
behalf of any party to the appeal.
Paragraph 18(8) replicates similar provisions contained in the
Licensing (Scotland) Act 1976 ("the 1976 Act"), as amended by the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1990 ("the 1990 Act"). Prior
to the amendments brought about by the 1990 Act, the 1976 Act contained only
limited provisions allowing for the hearing of evidence. Mr McDonald referred to the case of Pancham Ltd v City of Glasgow District Licensing Board 1997 SLT(ShCt) 32 which is
one of the very few cases dealing with the question of the leading of
evidence. Indeed, Mr McDonald went
on to say that there seemed to be very little authority dealing with this
particular statutory provision. Given
that Parliament has given to the court the power to hear evidence it is open to
the court to review the facts. In Pancham Ltd, the sheriff did not admit
the evidence but it was clear that it was unnecessary for the sheriff to apply
his mind to that particular point.
Mr McDonald also referred to Carvana
v Glasgow Corporation 1976 SLT(Sh Ct) 3 and "Summary Applications and Suspensions" George Jamieson
page 229 on the question of the nature of the appeal before me. On the facts of this case the court can hear
evidence and review the decision of the committee and if the committee have got
their facts wrong then the court could allow the appeal. The evidential provision contained in
paragraph 18(8) is a safeguard. In
the hearing before the committee three letters were produced. The committee came to a view on their
interpretation of the facts. The
committee were at liberty to decide how they dealt with evidence but where they
have come to a wrong decision then the terms of the legislation allows the
court to correct any error they have made.
In this case the evidence was both relevant and competent. The evidence
from the witnesses was that the premises were not trading outwith the permitted
hours. I should accept this evidence and uphold the appeal. Mr McDonald also made reference to the
case of Donald v Stirling District Licensing Board 1992 SLT(Sh Ct) 75. On the face of it the decision might appear to be helpful but on
closer examination it turned very much on its facts.
[8] For the defenders,
Mrs Walker invited me to refuse the appeal. In the course of her submission Mrs Walker
referred me to the following authorities:
the 1982 Act; Din v City of Glasgow District Licensing Board
1996 SLT 363; Middleton v Dundee City Council 2001 SLT 287; Ward v City of Dundee Council 1999 SLT 56; Wardie Property Co Ltd v Secretary
of State for Scotland 1984 SLT 345; Ranachan
v Renfrew District Council 1991 SLT
625; Pancham Ltd v City of Glasgow District Licensing Board ;
Art Wells Ltd v Glasgow District Licensing Board 1988 SCLR 289; "Summary
Applications and Suspensions" Jamieson page 229; and Carvana v Glasgow Corporation. The committee's power to vary the conditions
attached to the licence was contained in paragraph 10 of Schedule 1
to the 1982 Act. In Mrs Walker'
submission the court can only look at the decision of the committee and have
regard to what was put before the committee.
If the committee were not entitled to reach the decision they did on the
basis of the information put before them the court could overturn the decision
but not otherwise. Mrs Walker
maintained her opposition to the leading of evidence. Mrs Walker agreed there was very little
authority dealing with when evidence may be admitted. She agreed that the case of Pancham Ltd was of very limited
assistance. The sole ground of appeal
now insisted upon is contained in paragraph 18(7)(b). The pursuer represented himself. The police officers who actually entered the
shop did not give evidence. The
Superintendent did give evidence as to what he said happened, to which the
pursuer made no objection. The letters from
the employees submitted by the pursuer were before the committee. There was evidence concerning the preparation
of food outwith the relevant hours. The
police application was the trigger bringing the matter before the
committee. It was therefore up to the
committee to make their enquiry. There
was no suggestion that the hearing was in any way unfair. In its decision letter the committee narrated
in paragraph 2 on page 1 the material before them and the reasoning
was properly set out at paragraph 4 of page 2. So far as any incorrect material fact was
concerned, the committee reached the view that the pursuer was trading when he
should not have been. The committee had
before them evidence of five other incidents. It was a matter for the committee. Mrs Walker referred to Art Wells Ltd, particularly at
page 297. There was evidence that
there were people standing outside the shop and within, consuming food. The pursuer offered an explanation. The committee drew the inference that the
pursuer was trading outwith the relevant hours.
The outcome would have been no different as to whether it was a finding
in fact or an inference (see again Art
Wells). It was a reasonable
inference given the time, some 45 minutes after the shop was supposed to
close. The pursuer had said that those
consuming food were staff members which means that there was no one
cleaning. In determining whether or not
to hear evidence in relation to an argument based upon an incorrect material
fact, the first step is to look at the reasons given by the committee. Whereas the defenders did not say there could
never be situations in which evidence could be led, if the pursuer was right
about his construction of this legislation then there would always be grounds
for a re-hearing. The correct approach
was that one should look at the reasons given by the committee. The appellant would then need to show that
there was prima facie an incorrect
material fact and only then would there be any justification for the hearing of
evidence. Mrs Walker gave the
example of a gambling licence where a board has decided that there are
six shops within the locality where in fact there are only three. In those circumstances, there would be a
justification for an evidential hearing.
An appeal under paragraph 18 is not a re-hearing. The court can only look at what was placed
before the committee. In
Mrs Walker's submission it is not an "open appeal" as that expression was
used by Mr Jamieson at page 229. In
short, Carvana was not correctly
decided or not applicable. If the court
was minded to allow the appeal there would be no purpose in having the matter
sent back. The court should make its own
decision.
[9] By way of reply,
Mr McDonald said this was not a case of inference. It is a case in which the primary facts were
in dispute. That fact was whether
customers were being served in the shop outwith the relevant hours.
[10] Both parties were agreed
that expenses should follow success.
Decision
[11] The starting point in this matter is the 1982 Act itself. The relevant parts of Paragraph 18 of
Schedule 1 provide:-
"18 (1) .......... a
person .......... may appeal to the sheriff against [the committee's] decision.
18 (7) The sheriff may uphold an appeal .......... only if
he considers that the [committee], in arriving at their decision -
(a) erred in law;
(b) based their decision on any
incorrect material fact;
(c) acted contrary to natural
justice; or
(d) exercised their discretion in
an unreasonable manner.
18 (8) In considering an appeal...the sheriff may hear
evidence by or on behalf of any party to the appeal."
[12] Paragraph 18 (8) says the sheriff "may" hear
evidence. The use of the word
"may" suggests a discretion and that the leading of evidence is not
an unqualified right. In order to answer
the question, in what circumstances may evidence be led, it is necessary to
look more closely into the nature of the appeal itself. As Mr
Jamieson points out in the paragraphs in his book to which I was referred, the
nature of an appeal varies. Some appeals
he describes as "open" appeals and others as "judicial
review" appeals. In general,
appeals range from a full examination of all relevant material and the making
of a decision based on that material, to examination of the legality of the
decision rather than the merits of the matter itself. Paragraph 18(1) states
that a party may "appeal" to the sheriff without saying, in terms,
what the nature of the appeal is. Mr
Jamieson refers to the decision of Sheriff MacPhail in the case of Carvana v Glasgow Corporation. In that case Sheriff MacPhail held that an
appeal under the Glasgow Consolidation (General Powers) Order Confirmation Act
1960 was by way of a rehearing. However the legislation with which I am dealing
is different from that considered by Sheriff Macphail. In my respectful view, the case is helpful in
identifying some of the relevant features which distinguish one category of
appeal from another. In the present
case, the grounds of review are set out in paragraph 18 (7) and they are limited.
The sheriff may uphold the appeal
"only" if he considers that one or more of the enumerated grounds are
set out. It seems to me that the grounds
of appeal have greater similarities to the grounds upon which a petition for
judicial review might be presented than an appeal upon which the whole merits
are re-examined in another forum.
[13] I return to the point Mr McDonald made comparing the provisions of
paragraph 18(8) with similar provisions in the 1976 Act. In fact the terms of section 39(5) are identical
to those in paragraph 18(8). As Mr McDonald
said, that was not always so. As
originally enacted, section 39(5) limited the leading of evidence to cases
based upon appeals where the decision was made upon an incorrect material fact
(section 39(4)(2)(b)). That restriction
clearly had consequences (Tennant Caledonian
Breweries Ltd v City of Aberdeen Licensing Board 1987 SLT (Sh Ct) 2). The section was amended by paragraph 11(3) of Schedule 8 to the
1990 Act. The result of the amendment is
that both section 39(5) and paragraph 18(8) are in the same terms. Both give discretion to the sheriff to hear
evidence. However the discretion is prefaced by the words "In considering
an appeal...". In my opinion, the
evidence must relate to one of the grounds of appeal, in this case, set out in
paragraph 18(7). It is not a general
right to lead evidence but a right which must be relevant to a particular
ground of appeal.
[14] Mr McDonald's argument is
founded upon an "incorrect material fact" which is, read short, that
the premises were open for business outwith permitted hours when, in fact, it
is said they were not. As paragraph
18(7) makes clear there must not only be a material fact but the committee must
have arrived at their decision on the basis of that fact. I do not think it was a matter of dispute
that whether the premises were open at the relevant time was anything other
than a material fact for the committee in arriving at their decision. However, it is helpful to look more closely
at the elements of a decision. Some
decisions are really matters of judgement.
For example, a conclusion that a person is not a fit and proper person
to hold a licence is based upon an assessment of relevant material which leads
to a particular judgement that a person is, or is not, fit to hold a licence. In reaching the conclusion, a committee may
rely upon a fact which is both wrong and material. If the fact that it is wrong is not accepted,
without paragraph 18(8) it is difficult to see how the error could be
established. In some of the authorities
to which I was referred it is clear that the sheriff cannot substitute his own
judgement for that of a committee or board. There is a distinction between
facts upon which a judgement is made and the judgement itself. The former can be corrected if the facts are
wrong, the latter is not so easily disturbed.
Having said that, a conclusion as to what is a fact and what is not, is
not always straight forward. In the absence
of admission, a fact must be proved. Evidence
is led to prove the existence of a fact. Notwithstanding that a tribunal of
fact determines factual issues on the balance of probabilities, once it has
done so, it will make what it describes as a finding in fact. Making the finding in fact may involve the
assessment of documentary and oral evidence and the credibility and reliability
of witnesses. The result is a finding in
fact but the process involves judgement, particularly where the evidence of
witnesses is concerned. It seems to me
that what Mr McDonald invites me to do is not to deal with an incorrect
material fact which appears in the decision but to rehear the case and reach my
own view on the material before me, material which was not before the
committee. I agree with Mrs Walker when she
says that if Mr McDonald is correct then there would always be grounds for a
rehearing. In this case the sole ground
of appeal is that the decision was based upon an incorrect material fact namely
that the premises were not open for business outwith the permitted hours. This is not a case of an element of the
fact-finding process being both incorrect and material but the decision
itself. The committee had before them
material upon which they were entitled to form a view. They heard from the
police superintendent and the pursuer and they also considered the written material
from some of the witnesses who gave evidence before me. They then proceeded to
reach a conclusion. It was not suggested
that the committee were not entitled to reach the view they did, rather that they
ought not to have reached that conclusion.
Nor was it suggested that the proceedings were in any way unfair. I do not consider that the evidence truly
relates to an incorrect material fact before the committee but rather that the
events themselves were otherwise than as the committee decided. In my opinion,
the committee were entitled to reach a conclusion upon the basis of the
material before them; it was for the committee to assess the material before
them. I do not consider the paragraph
18(7)(b) permits the pursuer, in effect,
to re-litigate the whole matter before me.
[15] I have recorded the
substance of the evidence led before me earlier in this judgment.I have
considered whether I ought to express any views on the evidence of the witnesses,
notwithstanding the conclusion I have reached.
Although the witnesses were cross-examined there was no evidence to
contradict what the witnesses said. The
police officers who made a visit to the premises did not give evidence, either
before the committee nor me. There is thus no contradictor to assist in
determining the credibility and reliability of the witnesses. I find it
difficult to express a view without there being any method by which the
evidence can be tested.
[16] For the reasons I have given
I shall therefore sustain the defenders' objection to the leading of evidence.
Absent such evidence the appeal must fail. As the defenders have been
successful they are entitled to their expenses.
