CIGARO (GLASGOW) Ltd v CITY of GLASGOW DISTRICT LICENSING BOARD
| Jurisdiction | Scotland |
| Judgment Date | 08 December 1981 |
| Date | 08 December 1981 |
| Docket Number | No. 17. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Licensing laws—Gaming—Gaming licences—Appeal against refusal by licensing board of an application for a gaming licence—Whether Sheriff entitled to hear evidence in support of an appeal—Gaming Act 1968 (cap. 65), Sch. 2, para. 33 (1)1—Licensing (Scotland) Act 1976 (cap. 66), secs. 39 (4), (6), (7) and (8)2, 133 (4)§—Sheriff Courts (Scotland) Act 1907 (cap. 51), sec. 50§.
Natural justice—Summary appeal to Sheriff from decision of licensing board—Proceedings before the board alleged to have contravened the rules of natural justice—No averments of prejudice to the appellant—Relevancy.
A company applied to a licensing board for a gaming licence, other than a bingo licence, in respect of premises in Bath Street, Glasgow. Among a number of objectors to the application were three companies operating casinos in Glasgow. At a hearing before the licensing board, representations were made by counsel on behalf of the applicant and the objectors respectively. The licensing board thereafter refused the application on the ground that the demand for casino gambling was being met by the existing facilities. The applicant company appealed to the Sheriff by way of initial writ. After debate the Sheriff allowed a proof before answer with respect to certain of the applicant company's pleas in law,
34this having the effect of admitting to probation a number of matters which had been considered by the licensing board, together with a plea in law directed at an alleged breach by the licensing board of the rules of natural justice in the manner in which they had heard the application. The three objecting companies appealed to the Court of Session against the Sheriff's decision.Held that gaming licence applications should be disposed of by the Sheriff without hearing evidence and upon the record of the proceedings before the licensing board.
Observed that a breach of the rules of natural justice cannot relevantly be averred in the absence of averments of prejudice.
Cigaro (Glasgow) Limited applied to the City of Glasgow District Licensing Board for a gaming licence other than a bingo licence. Objections to the application were lodged by inter alia Chevalier Casino Limited, Regency Casino (Glasgow) Limited and Patmor Limited. At the hearing on the application, representations were made on behalf of the applicants and the various objectors, after which the board refused the application. The applicant company appealed to the Sheriff by way of initial writ. The writ contained the following averments;—"In particular esto they formed the view (as averred in para. 8 of said statement) that “the operators of the three existing casinos would no doubt provide additional tables for gaming when they considered that such additional facilities were necessary” and esto that was at least a major part of their reason for the refusal of an additional licence they proceeded to draw that conclusion in the absence of any supporting statements or evidence and therefore based their decision on an incorrect material fact. Accordingly, in terms of secs. 39 (4), (6) and 133 (4) of the Licensing (Scotland) Act 1976 the Court should exercise its discretion to hear evidence in this appeal. Further and in any event, the proceedings before the said Licensing Board were carried out (in accordance with their established practice) without hearing evidence and any motion so to proceed would have been refused by them. It is impossible for a Licensing Board to exercise a discretion reasonably and fairly without hearing evidence and even more so when there are (a) competing applications, (b) indications that they
should grant one more licence. The said proceedings contravene the rules of natural justice and the Court, in the circumstances, should hear all the relevant evidence before deciding this Appeal."The applicant's first two pleas in law were in the following terms:—(1) The proceedings before the said Licensing Board being in breach of the rules of natural justice, this Appeal should be allowed in terms of sec. 39 (4) (c) of the Licensing (Scotland) Act 1976. (2) The proceedings before the said Licensing Board having been insufficient to provide them with sufficient evidence upon which properly and fairly to exercise their discretion in their refusal of the application by these Appellants this Appeal should proceed by way of a Proof and not be limited to a Debate.
The three objecting companies were among a number of parties who entered the process as respondents. The relevancy of the parties' respective pleas was debated in Glasgow Sheriff Court and the Sheriff (MacPhail) allowed the appellants a proof before answer in respect of certain of their averments. The objecting companies appealed to the Court of Session, and the appeal was heard by the First Division on 26th November 1981.
The arguments advanced by the parties are summarised in the opinion of the Court.
At advising on 8th December 1981, the opinion of the Court was delivered by the Lord President.
LORD PRESIDENT (Emslie).—Cigaro (Glasgow) Limited applied to the City of Glasgow District Licensing Board for a gaming licence, other than a bingo licence, in respect of certain premises in Bath Street, Glasgow. Amongst objectors to the application were the operators of Glasgow's three casinos—three companies, each of which is a subsidiary of the Reo Stakis Organisation. At a hearing on 16th May 1980 the Licensing Board heard representations by counsel on behalf of the applicants, representations by counsel on behalf of the three casino operating companies, representations on behalf of another objector, and a reply on behalf of the applicants. The Board also had regard to the advice supplied by the Gaming Board in terms of paragraph 19 (1) of Schedule 2 to the Gaming Act 1968. The decision of the Licensing Board thereafter was to refuse the application, essentially upon the ground that the demand for casino gambling was being adequately met by the existing facilities. A similar application by County Properties and Development Ltd. for a gaming licence in respect of other premises was heard in a similar way on the same date. It was also refused for the same reason.
Both applicants appealed to the Sheriff by initial writ. In the case of the Cigaro (Glasgow) Ltd. appeal, the three casino operating companies pleaded that the appeal was incompetent and should be dismissed. They also pleaded that the appellants' averments being irrelevant and lacking in specification the appeal should be dismissed. After debate the Sheriff repelled the plea to competency, sustained the plea to relevancy in so far as it related to averments in support of the appellants' pleas 3, 4 and 9, which pleas he repelled, and quoad ultra allowed to the parties a proof before answer. So far as the appellants, Cigaro, are concerned this purported to permit proof of their averments in support of their pleas 1, 2, 5, 6, 7 and 8.
Against this decision of the Sheriff the three casino operating companies have appealed to this Court. Their submission was, firstly, that upon a proper construction of the statutory provisions...
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