Freddie Williams V. Ayrshire Council+william Hill
| Jurisdiction | Scotland |
| Judge | Lord McEwan,Lady Paton,Lord Menzies |
| Judgment Date | 28 November 2012 |
| Neutral Citation | [2012] CSIH 89 |
| Court | Court of Session |
| Published date | 28 November 2012 |
| Date | 28 November 2012 |
| Docket Number | XA91/12 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Menzies Lord McEwan | [2012] CSIH 89 XA91/12 OPINION OF THE COURT delivered by LADY PATON in causa FREDDIE WILLIAMS BOOKMAKERS Appellants; against EAST AYRSHIRE LICENSING BOARD First Respondents: and WILLIAM HILL ORGANISATION LTD Second Respondents: _______________ |
Non-participating party - First Respondents
Second Respondents: Blair, advocate; Harper Macleod
28 November 2012
Introduction
[1] Two points arise in this appeal concerning the proper construction of the Gambling Act 2005: first, whether an appeal lodged in a sheriffdom other than that in which the relevant betting premises were situated was a competent appeal; and secondly, whether the appeal was competent although lodged prior to the time-period prescribed by the Act.
The legislation
[2] The Gambling Act 2005 provides inter alia:
"s.164 Grant of application
(1) Where a licensing authority grant an application for a premises licence they shall as soon as is reasonably practicable-
(a) give notice of the grant to -
(i) the applicant,
(ii) the Commission,
(iii) any person who made representations about the application under section 161, ...
(2) A notice under subsection (1)(a)-
(a) must be in the prescribed form,
(b) if the licensing authority have attached a condition to the licence under section 169(1)(a) or excluded under section 169(1)(b) a condition that would otherwise have attached by virtue of section 168, must give the authority's reasons, and
(c) if representations were made about the application under section 161, must give the authority's response to the representations.
(3) In this section "prescribed" means-
(a) in relation to authorities in England and Wales, prescribed by
regulations made by the Secretary of State, and
(b) in relation to authorities in Scotland, prescribed by regulations made by the Scottish Ministers...
s.207 Process
(1) An appeal under section 206 in relation to premises must be instituted-
(a) in the magistrates' court for a local justice area in which the premises are wholly or partly situated,
(b) by notice of appeal given to the designated officer, and
(c) within the period of 21 days beginning with the day on which the
appellant receives notice of the decision against which the appeal is
brought...
(5) In relation to premises in Scotland-
(a) subsection (1)(a) shall have effect as if it referred to a sheriff within
whose sheriffdom the premises are wholly or partly situated,
(b) subsection (1)(b) shall not have effect,
(c) the reference in subsection (3) to the magistrates' court shall have effect as a reference to the sheriff, and
(d) the reference in subsection (3) to costs shall have effect as a reference to expenses."
The sequence of events
[3] On 7 February 2012, a licensing board (the first respondents) decided to grant the second respondents a licence for betting premises at 55/57 Glaisnock Street, Cumnock. The board advised parties orally of their decision, and subsequently issued a formal notice of their decision under cover of a letter dated 2 March 2012. Another bookmaker with premises at 2A Glaisnock Street (the appellants) sought to challenge that decision. On 28 February 2012, before receiving the formal notice, they lodged an appeal by way of summary application at Kilmarnock Sheriff Court. That court was selected per incuriam as East Ayrshire Council's headquarters were situated within its jurisdiction and many Council-related appeals were heard there. However Kilmarnock Sheriff Court lies within the Sheriffdom of North Strathclyde, whereas Cumnock (where the relevant betting premises were situated) lies within the Sheriffdom of South Strathclyde, Dumfries and Galloway.
[4] At a hearing before the sheriff, the second respondents contended that the appeal was incompetent as (a) it had been lodged in the wrong sheriffdom, and (b) it had been lodged prior to the 21 days following receipt of notice of the board's decision in terms of section 207(1)(c). The sheriff sustained the first argument, and rejected the second. The appellants appealed to the Court of Session in relation to the first argument. The second respondents cross-appealed in relation to the second.
Submissions for the appellants
[5] Counsel for the appellants accepted that the appeal had been initiated in the wrong sheriffdom. In terms of section 207 of the 2005 Act, the appeal should have been lodged in the sheriffdom of South Strathclyde, Dumfries and Galloway - for example, at Ayr Sheriff Court. However, on the basis of the principles set out in Petch v Gurney [1994] 3 All ER 731 at pages 736 to 738, and R v Secretary of State, ex parte Jayeanthan [2001] 1 WLR 354 at pages 359 to 361 (concerning mandatory and directory provisions) it was reasonable to infer that the purpose of the appeal provisions in the 2005 Act was to specify that appeals should be raised at sheriff court level only. The requirement to raise an appeal in a particular sheriffdom was of lesser importance, and existed simply to provide administrative and geographical convenience. All sheriff courts were to be regarded as parts of one system: Wilson v Hay 1977 SLT (Sh Ct) 52. Moreover there was a mechanism for transferring cases from one sheriff court to another, namely the Sheriff Court Summary Applications Rules 1999. Thus an appeal could be lodged at any sheriff court in Scotland (including, for example, Kirkwall Sheriff Court in Orkney). Parliament was not attempting to ensure that the sheriff had local knowledge, as an appeal...
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