SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

B336/09

DECISION

by

SHERIFF PRINCIPAL R A DUNLOP QC

in the appeal of

TESCO STORES LIMITED

against

FALKIRK COUNCIL LICENSING BOARD

__________________

Mr Skinner, Advocate, instructed by Mr Cummins, Solicitor, Glasgow for the Appellants

Mr Gilmour, Solicitor, Falkirk Council for the Licensing Board

FALKIRK 24 August 2010 The Sheriff Principal, having heard parties on the application of the Licensing Board to extend the period specified in rule 3.34.3(1) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999, refuses same; having heard parties on further procedure in the appeal, directs that the draft stated case shall be deemed to have been issued as at the date hereof.

NOTE

[1] Section 131 of the Licensing (Scotland) Act 2005 (hereinafter referred to as "the 2005 Act") provides that certain decisions of a Licensing Board may be appealed to the sheriff principal. In terms of section 131(2) such an appeal "is to be made by way of stated case." The grounds on which a Licensing Board's decision may be appealed are set out in section 131(3) and section 131(5) specifies the various courses open to the sheriff principal where an appeal is upheld. Section 132 makes supplementary provisions with regard to appeals and sub-section (9) authorises further provision as to the procedure in any appeal to be prescribed by Act of Sederunt.

[2] By an Act of Sederunt of 2008 (SSI 2008/9) such provision was made by inserting in the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (hereinafter referred to as "the 1999 Rules") a new part 34 which sets out a number of procedural rules for appeals under the 2005 Act.

[3] Rule 3.34.2 provides that an appeal under section 131 must be by note of appeal lodged with the relevant sheriff clerk not later than 14 days after the date of the decision of the Licensing Board or, where a statement of reasons has been required, the date of issue of the statement of reasons.

[4] Rule 3.34.3(1) provides:

"The Licensing Board must, within 28 days of the lodging of a note of appeal, issue a draft case containing -

(a) findings in fact and law or, where appropriate, a narrative of the proceedings before them;

(b) appropriate questions of law;

(c) a note stating the reasons for their decision with particular reference to the grounds of appeal; and

(d) in an appeal where questions of admissibility or sufficiency of evidence have arisen, a description of the evidence led before them to which these questions relate."

[5] Rule 3.34.3(2) provides that the Clerk to the Licensing Board must send a copy of the draft stated case to the parties and there then follows further provision for adjustment and settling of the final case all within certain prescribed time limits.

[6] Rule 3.34.3(11) provides inter alia as follows:

"On cause shown the sheriff principal ... may extend any period specified in paragraph (1) ... for such period or periods as he considers reasonable."

[7] By letters dated 7 and 14 July 2010 the solicitor for Falkirk Council Licensing Board requested me to exercise the powers given to me in terms of rule 3.34.3(11) to extend certain periods in respect of two separate appeals. In each case the draft stated case had been issued well after the time limit prescribed by rule 3.34.3(1). In one of the cases a quite staggering period in excess of one year had been allowed to elapse before the draft stated case was issued. On considering the explanation for this woeful state of affairs I was not persuaded that good cause had been shown for the delay but offered the Licensing Board the opportunity of addressing me further on the matter. Thereafter questions arose as to the consequences for the appeal of a refusal to extend the period specified in rule 3.34.3(1) and a hearing was fixed for the purposes of considering that matter at which each of the appellants were represented. There being common representation for the appellants the hearing in each case was conjoined and this note is in identical terms to that issued in the other appeal.

[8] The solicitor for the Licensing Board was offered the opportunity of addressing me further on the question of whether I should exercise my discretion to extend the time limit specified in rule 3.34.3(1) but he did not add anything substantive to the explanation contained in his original letters while offering profuse apologies for the delay which had occurred. Suffice it to say that I was satisfied in each case the delay was wholly unjustifiable and indeed may properly be described as demonstrating gross maladministration, particularly in the case in which the time limit had been exceeded by over a year. In these circumstances I took the view that it would be quite wrong to exercise my discretion under rule 3.34.3(11) in favour of the Licensing Board and I declined to do so, not least because it would seem to endorse a delay which is unconscionable.

[9] In that state of affairs the question arises as to what happens to each of these two appeals. Both parties were at one in submitting that, upon a proper construction of the rules, the draft stated case could not be held to have been "issued" if the time specified in rule 3.34.3(1) had elapsed and had not been extended. Under reference to my own decision in Paterson v Kent 2007 SLT Sh.Ct. 8 and the authorities reviewed therein, counsel for the appellants submitted that the consequences of a failure to comply with a time limit depended on the purpose of the relevant provision and more generally the scope and object of the whole statutory scheme for appeals. It was submitted that the purpose of the rules in the instant case was to secure the expeditious disposal of appeals. This was particularly important in a licensing regime in which a decision of a Licensing Board continues to have effect despite an appeal, albeit subject to the ability of the appellants in certain situations (though not all) to apply for interim relief. Since decisions of a Licensing Board could have a material and detrimental effect on a business it was vital to the licensing regime that appeals were dealt with according to a strict timetable. It was submitted that rule 3.34.3(11) would be wholly devoid of content if there was no consequence flowing from the failure to comply with a time limit which the sheriff principal was unwilling to extend. The solicitor for the Licensing Board offered no detailed argument on this aspect of the case, simply contenting himself with the submission that the draft stated case which had been prepared had no legal effect unless the court sanctioned its lodging out of time.

[10] As to the consequences of a refusal to extend the period the solicitor for the Licensing Board contended that the appeal simply disappeared into a black hole and that the appellants required to seek their remedy elsewhere, presumably by way of a petition for judicial review before the Court of Session. By contrast, counsel for the appellants submitted that I was entitled to dispose of the appeal on the basis of the note of appeal, which was now the only document before the court. In other words the appeal ought to be allowed by default.

[11] I am bound to say that neither of these consequences presents an attractive proposition. In the first place it is quite wrong that a statutory appeal should be thwarted by the failure of a Licensing Board to fulfil the obligation incumbent upon them to produce a draft stated case and it is difficult to see why appellants should have to resort to an extra statutory remedy when Parliament has provided a clear statutory regime for appeals. On the other hand the provisions of section 131 make it clear that an appeal is to be by way of stated case on specified grounds and there is no warrant in the 2005 Act or explicit provision in the 1999 Rules for disposal of an appeal other than upon a consideration of a stated case. It is also questionable, in a matter which engages, or at least is capable of engaging, the public interest, whether an appeal could be allowed by default without some consideration of whether the statutory grounds upon which the decision of a Licensing Board may be appealed can be upheld. However it is unnecessary to reach a concluded view on this latter question and I reserve my opinion on it.

[12] In my opinion therefore the 1999 rules ought to be construed in a manner which supports the clear intention of the legislature that an appeal should proceed by way of stated case and only by stated case. Thus the position of the Licensing Board that the appeal somehow disappears into a black hole is untenable. In similar vein the common position adopted by the parties in relation to rule 3.34.3(11) is inconsistent with the intention of the legislature expressed in section 131. That the Licensing Board should comply with the time limits set out in the 1999 Rules, specifically for present purposes rule 3.34.3(1), is not in doubt and I trust that my comments in this note will have forcefully brought home to the Licensing Board the necessity of doing so. But it surely cannot be the case that the Licensing Board has a duty to issue a draft stated case within the time limit or not to issue it at all. On the contrary, even if they fail to meet the deadline, in my opinion they remain under a duty to issue a draft stated case, since a failure to perform that duty would be inimical to the right and manner of appeal provided for in section 131 (see the analogy of the example given by Lord Rodger of Earlsferry in the opening section of his speech in R v Soneji [2005] 3WLR 303). Such an approach in no way runs counter to what I accept is the clear objective of the rules that appeals of this nature ought to proceed expeditiously, no doubt for some of the reasons advanced by counsel for the appellants. But this objective suggests to me that attention ought more properly to be focussed on the means by which the duty of the Licensing Board is to be enforced rather than the consequences which flow from a failure of that duty.

[13] In Smith v Mental Health Tribunal for Scotland 2006 SLT 347 (discussed in Paterson v Kent sup.cit.) the obligation of the tribunal to comply with a time limit was enforced by judicial review and in my opinion that case offers clear support for the intervention of the court in circumstances not dissimilar to the present. I doubt however the necessity of resorting to judicial review in a case such as this where an appeal has been initiated by note of appeal and is still live. It is true that there is no provision in the rules for enforcing the performance of the duty of the Licensing Board, no doubt because, not unreasonably, it did not occur to those drafting the rules that a Licensing Board would fail to carry out its duty or at least fail to do so over such an extended period. It might be argued that, in light of the provisions of section 132(9), such lack can only be made good by an amendment of the rules and that until such amendment is made the only remedy open to the appellants is to seek judicial review. On the other hand, it seems to me that the preferable view is that it is open to the sheriff principal to regulate procedure in an appeal currently before him, even on a matter for which the rules make no provision, particularly if that is the only way in which the right of appeal can be effectively vindicated. Accordingly I see no reason why, on the motion of the appellants, the sheriff principal could not enforce compliance with the rules by ordaining the Licensing Board to issue a stated case within a certain period with all the usual consequences should they fail to obey.

[14] When one approaches the matter in this way it seems to me that rule 3.34.3(11) is simply part of the means by which the sheriff principal exercises control over the progress of the appeal. It enables him to extend to the Licensing Board a latitude of time in taking a step of procedure which seems reasonable in the particular circumstances of the case. But it is merely a mechanism for modifying the timetable and it has no greater significance than that. It follows that in my opinion the fundamental premise of the parties' submissions is flawed and that the "issue" of the draft stated case is not conditional on the extension of the period specified in rule 3.34.3(1).

[15] In the present case the Licensing Board have produced a draft stated case. Although they have taken an inordinate time to do so their inactivity has been matched by the appellants who have done nothing to challenge that delay or to take steps to bring the matter to the attention of the court and to have their appeal heard. I recognise that in one of the two appeals the appellants have had the benefit of a deemed grant of a premises licence but that does not alter the fact that they have in effect acquiesced in the delay. This does not excuse the conduct of the Licensing Board but it explains how this matter has only now come to the attention of the court. It is nevertheless a matter of concern that there has been such a delay and the absence of earlier intervention by the court is I think in large measure attributable to the view of the Licensing Board that they should only have recourse to rule 3.34.3(11) once they have drafted the stated case and seek to make progress with the appeal. In my view this approach is misconceived. The proper course for the Licensing Board, if they consider that for good reason they will be unable to comply with the time limits prescribed, is to apply to the sheriff principal under rule 3.34.3(11) for an extension of the time limit so that they then have a revised date within which they should issue the draft stated case. They may even require to make successive applications but, whatever the position, in that way the court is in control of the progress of the appeal and the Licensing Board is left in no doubt as to the date by which the draft stated case requires to be issued.

[16] As I have already indicated, the inactivity of the appellants has not assisted the expeditious progress of these appeals and what I have held to be an erroneous view of the effect of rule 3.34.3(11) has compounded the problem since the later stages of the procedure set out in rule 3.34.3 have not been formally worked through. It might be thought that the proper way to deal with that problem is to extend the time limits relevant to the later stages of the procedure. However, given the novelty of the arguments in this case and in order to get the appeals back on the rails, I think the preferable and simpler course is to treat the draft stated cases as having been issued on the date hereof with the result that the procedure stipulated by the remaining paragraphs of rule 3.34.3 ought to run its normal course from today's date.