Scottish Sheriff Court Decisions

B285/10 74/10

 

CITY OF EDINBURGH LICENSING BOARD/ISOBEL ELEANOR PONTON - SPORTS BAR

 

 

 

 

 

 

 

EDINBURGH, 31 August 2010 Sheriff Principal Bowen QC

 

Act: Barnes, Advocate, instructed by Levy & Macrae

Alt:: D Armstrong, QC instructed by City of Edinburgh Council, Legal Services

 

 

The Sheriff Principal, having resumed consideration of the cause, allows amendment of the Stated Case by addition of a question in law: "Is the appeal competent?"; allows the Minute of Amendment for the applicant to be received and marked No       of process, and allows the Grounds of Appeal to be amended in terms of said Minute; thereafter answers the new question of law in the affirmative and directs the appeal to proceed; continues the hearing of the appeal to a date to be afterwards fixed.

 

(signed) E Bowen

Sheriff Principal of Lothian and Borders

 

 

 

 

NOTE:

1. Section 131 of the Licensing (Scotland) Act 2005 makes provision for appeals to the Sheriff Principal and Sheriff against decisions of Licensing Boards. Part 1 of Schedule 5 lists the decisions which may be appealed to the Sheriff Principal, and set against that list is an identified list of "persons who can appeal". Sub-section (2) of section 131 provides that "An appeal under this section is to be made by way of stated case, at the instance of the appellant". The procedure thereafter is regulated by Part XXXIV of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 (SI 1999/929) as amended.

 

2. The proceedings before me seek to challenge a decision made on 25 January 2010 to suspend the premises license of the Sports Bar, 24 Portland Place, Edinburgh under the provisions of section 39(2) of the Act. Such a decision is appealable to the Sheriff Principal. In terms of schedule 5 the "Persons who can appeal" against such an order are identified as "the premises license holder".

 

3. The note of appeal lodged with the sheriff clerk on 1 February 2010 was in the terms prescribed in Form 33 of the 1999 Rules. The appellant was designed simply by her name and home address. Within the Grounds of Appeal it is stated that along with her husband and son she is an owner of the property trading as the Sports Bar; is proprietor of the business operating within the Bar and "holds a premises license" in respect of the Bar. It is now accepted that the appellant is in fact the designated premises manager within the meaning of section 19 of the 2005 Act. The premises license holder is the firm of Ponton, Ponton and Ponton of which the appellant is a partner along with her husband and son.

 

4. The appellant and the Board were represented at a hearing which took place before me on 11 February 2010. On that date I granted interim recall of the suspension of the license in terms of section 132(8) of the Act. No issue was taken with the competency of the appeal, nor was any question of competency raised in the Stated Case which was subsequently lodged and adjusted. The questions posed for the opinion of the court in that Case are

(1) Did the Board exercise its discretion in a reasonable manner in determining to suspend the license for four months with immediate effect?

(2) Is the period of suspension of four months disproportionate in all the circumstances considered by the Board?

 

5. When the case called before me for a hearing on 10 August Mr Armstrong QC for the Board moved the court to dismiss the appeal on the basis that the court had no jurisdiction to deal with the appeal as it was not competent. He indicated that if necessary he would seek to add a new question to the Stated Case namely: "Is the appeal competent?" He indicated however that on any view it was pars judicis for the court to notice questions of competency and that it was never too late for a question of fundamental competency to be raised. In that respect he referred to Macphail Sheriff Court Practice (3^rd Ed) paragraph 2.14 and to certain well recognised authorities on the subject.

 

6. In response Mr Barne, Advocate for the appellant indicated that he had instructions to represent both Mrs Ponton and the partnership. He submitted that having regard to the nature of the appeal, it was now too late for the point argued by counsel for the Board to be taken. The time to take it was before a case was stated. The Grounds of Appeal simply served to commence the proceedings which were now before the court in the form of a Stated Case. That had been acted upon in respect that interim suspension had been granted.

 

7. Counsel also founded on rule 3.34.7(2) of the 1999 rules which provides that: "In the hearing of an appeal, a party shall not be allowed to raise questions of law of which notice has not been given except on cause shown and subject to such conditions as to expenses or otherwise as the Sheriff Principal or as the case may be the Sheriff may consider appropriate". He submitted that this was the only route by which the Board could add the question which senior counsel proposed, and he opposed such a further question of law being added. In response to the suggestion that it was pars judicis for the court to raise questions of competency, counsel founded on paragraph 2.09 of Macphail. Whilst that paragraph begins by indicating that a sheriff was empowered to take notice of certain matters whether nor not they have been urged upon him, the statement was qualified by the observation "that such matters include any aspect of the litigation which may cause prejudice to a specific public interest, such as the public interest in the regular conduct of litigation". The paragraph went on to indicate that parties were free to waive any advantages designed for their benefit and stated that "It is thought...that where a party waives such an advantage as by failing to state a plea or objection, and does not thereby infringe any public interest or public policy or the interests of any party not called, it is not for the sheriff to take exception". Counsel submitted that there was no public interest in the competency of the present appeal being argued; to the contrary there was a real issue of substance which required to be determined on the merits of the case, and there was no public interest in the case being dismissed on a technicality.

 

8. At this point of the proceedings I expressed the preliminary view that it did not appear appropriate for the case to continue in name of an individual who did not have a statutory qualification to appeal. Counsel for the appellant thereupon tendered a Minute of Amendment in terms of which he sought to substitute the firm of Ponton, Ponton and Ponton in place of Mrs Ponton in the "Instance" of the Grounds of Appeal. Thereafter I was addressed in some detail by both counsel on the question of whether, in the circumstances, such a Minute of Amendment should be allowed. The argument centred largely on the question of whether substitution of one party for another was out of time.

 

9. I shall deal with these submissions only in outline because I have come to the conclusion, after full reflection, that the initial submissions advanced by Mr Barne on behalf of the appellant were well founded. These are proceedings by way of Stated Case. It was open to the respondents not to state a case because the party seeking it had no right to ask for it. Had they adopted that position they would have brought the error to the applicant's attention and the matter might have been rectified. It is, of course, possible that fresh Grounds of Appeal might not have been lodged within the 14 day period prescribed by Rule 3.34.2(1) of the 1999 Rules and a difficult question might have arisen at that stage as to whether the court had any discretion to allow an appeal outwith that time.

 

10. The respondents did not, however, refuse to state a case. Not only did they proceed to state one, but they raised no objection at the point where interim recall of suspension of the license was granted. There is now before the court a Stated Case in which the Board has sought my opinion on two questions. Neither of these questions is in any way related to matters on which the position of the appellant might have any bearing. The situation is thus one in which the respondents have failed to state an objection and I would have thought, in the light of the considerations indicated in paragraph 2.09 of Macphail namely that no public interest or public policy interests were affected, that a court would not have been disposed to dismiss the application ex proprio motu. So far as the respondents position is concerned in my view it is too late for them to take the point. They have stated a case which has been acted upon, and there is no reason why the court should not deal with the questions of law referred to it in terms of that case. In my view it would constitute an injustice to dismiss the appeal now.

 

11. In support of his motion to amend counsel for the appellant drew the distinction between the effect of time limits imposed by primary legislation and those which appeared in secondary legislation and rules of court. He pointed out that the requirement to mark an appeal under the 2005 Act within 14 days of the Licensing Board decision was contained in Rule 3.34.2 of the 1999 Rules rather than in the primary legislation. Macphail at paragraph 26.17 indicated the possibility of the court having a discretion to disregard a failure to comply with a time limit prevision which was "only directory and regulatory of procedure". Counsel developed his argument under reference to National Commercial Bank of Scotland v Assessor for Fife 1963 SC 197 (in particular the remarks of Lord Kilbrandon at page 205); Sinclair v Lothian Regional Council 1981 SLT Sh Ct 13; T v Secretary of State for Scotland 1987 SCLR 65 (Sheriff Principal Dick QC at page 71); Hume v Nursing and Midwifery Counsel 2007 SC 644; Y v The Law Society of Scotland 2009 SC 32; Holmes v The Nursing and Midwifery Counsel 2010 SC 246 and Vassie v The Standards Commission for Scotland (Sheriff Principal Kerr QC 30 May 2006 unreported). Counsel ultimately accepted that the position was not the same as one where authority was sought to allow a late appeal. The problem in this case was in the nature of a defective instance, a matter which was curable by amendment.

 

12. Counsel for the Board contended that the appeal as it stood was not competent; no competent appeal had been raised within the mandatory time limit; in general terms it was not possible to substitute the right pursuer for the wrong pursuer outside a time limit and the same should apply to statutory appeals. He argued that the court only had jurisdiction to deal with a Minute of Amendment when there was a competent appeal; that the time limit imposed in this case was mandatory and there was no common law power to dispense with it. He further argued that it was artificial to distinguish between a time limit contained in a statute and one contained in rules of court; the question was whether the rule was mandatory or directory/regulative of procedure.

 

13. In support of these propositions counsel referred to the Stair Memorial Encyclopaedia paragraph 774; Jamieson on Summary Applications and Suspensions paragraph 18.14; Macphail paragraph 26.09; Allen and Sons v the Corporation of Edinburgh 1909 SC 70; W Y v The Law Society of Scotland (2009 SC) 4.30 and Mucelli v Government of Albania 2009 1WLR 276. He sought to distinguish National Commercial Bank v Assessor for Fife, pointing out in particular that it was a case which involved the Court of Session exercising its power over its own rules.

 

14. I pause to observe only that the "rigid mandatory and directory distinction" was observed by Lord Steyn in R v Sonegi 2005 4 AllER 321 at 333 to have outlived its usefulness and that the emphasis in questions where a time limit had not been observed was to have regard to the consequence of non-compliance and the question of what Parliament had intended as a result. In my view a question of that nature does not arise in this case. The question - which appears to be both novel and likely to be of only transitory interest having regard to the provisions of section 194 of the Criminal Justice and the Licensing (Scotland) Act 2010 - is this: If a case is stated by a Licensing Board at the request of an applicant who had no statutory right to seek it, is it nevertheless competent for the matter to proceed? In the particular circumstances of this case I consider that the interests of justice require that it should.

 

15. For the sake of good order I shall allow the instance of the Grounds of Appeal to be amended in terms of the Minute of Amendment tendered by counsel for the appellant. I shall also allow amendment of the Stated Case by addition of the question "Is the appeal competent?" and answer that question in the affirmative.