Frome United Breweries Company v Bath Justices

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeThe Lord Chancellor,Lord Atkinson,Lord Sumner,Lord Carson
Judgment Date07 May 1926
Judgment citation (vLex)[1926] UKHL J0507-1

[1926] UKHL J0507-1

House of Lords

Lord Chancellor.

Lord Atkinson.

Lord Shaw.

Lord Sumner.

Lord Carson.

Frome United Breweries Company, Limited and Another
and
Keepers of the Peace and Justices for County Borough of Bath.

After hearing Counsel on Thursday, the 25th day of March last, upon the Petition and Appeal of the Frome United Breweries Company, Limited, whose Registered Office is situate at Vallis Way, Frome, in the County of Somerset, and Abel Cornelius Ashman of the "Seven Dials" Hotel in the City of Bath, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 19th of February 1925, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Keepers of the Peace and Justices in and for the County Borough of Bath, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 19th day of February 1925, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, Remitted back to the King's Bench Division of the High Court of Justice, with a Direction that the Order nisi be made absolute and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.

The Lord Chancellor .

My Lords,

1

Bath is a county borough, and accordingly the licensing justices of the borough for the purposes of the Licensing (Consolidation) Act, 1910, consist of a borough licensing committee appointed by the borough justices, and the compensation authority consists of the whole body of borough justices. The licensing justices held a meeting on the 22nd February 1924 and, acting under section 19 of the Act of 1910, referred to the compensation authority the question of the renewal of certain old on-licences, including the licence of the "Seven Dials" Hotel; and in accordance with the Act they made a report to the compensation authority, in which they stated the special circumstances connected with each of the referred houses. On the 9th May 1924 the licensing justices met and passed the following resolution:—

"That the clerk be instructed to write Mr. A. E. Withy asking whether he will be prepared to act for the licensing justices in opposing the renewals of licences referred to the Compensation Authority and in the event of his agreeing to act, to instruct him."

2

The solicitor named accepted the instructions, and at the principal meeting of the compensation authority, which was held on the 13th June 1924, he duly appeared for the licensing justices and opposed the renewal of the licence of the "Seven Dials," which was refused. The justices present at the principal meeting when this decision was reached, included three justices who had been present at the meeting of the licensing justices on the 9th May when the instructions to oppose the licence were given, as well as a fourth justice who had been present at their meeting on the 22nd February when the decision to refer the licence was taken. At the hearing on the 13th June objection was taken to these justices sitting and adjudicating, but the objection was overruled.

3

On the 15th July 1924 the King's Bench Division granted a rule nisi for a writ of Certiorari to remove the proceedings of the compensation authority into that Court on the ground that the four justices above referred to were disqualified by interest from adjudicating in the matter; but on argument the rule was discharged by a Divisional Court, and their decision was confirmed by the Court of Appeal, Lord Justice Atkin dissenting. The owners and licensee of the "Seven Dials" have now appealed to this House

4

My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of Courts of Justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called courts, have to act as judges of the rights of others. Thus in ( The Queen v. London County Council, Ex parte Akkersdyk L.R. 1892, 1 Q.B. 190), where a committee of the London County Council had recommended that a certain music and dancing licence should not be granted, and some members of the committee had instructed counsel to represent them before the County Council and to oppose the application for the licence, it was held that the presence at the hearing of those members of the committee who had instructed counsel to oppose the application vitiated the proceedings, and a rule for a mandamus to hear and determine the application according to law was made absolute. In an Irish case, Reg. v. Local Government Board (34 Irish Law Times Reports 196), where the authority concerned was the Local Government Board of Ireland, a similar decision was reached. Instances of the application of the like rule to licensing justices in England are R. v. Sunderland Justices (L.R. 1901, 2 K.B. 357) and Colchester Brewing Company v. Tendring Licensing Justices (L.R. 1916, 2 K.B. 126).

5

From the above rule it necessarily follows that a member of such a body as I have described cannot be both a party and a judge in the same dispute, and that if he has made himself a party he cannot sit or act as a judge, and if he does so the decision of the whole body will be vitiated. Thus, in The Queen v. Lee (1882, L.R. 9 Q.B.D. 394), where a member of the sanitary committee of a Town Council who had taken part in directing a prosecution sat and adjudicated upon the charge, the conviction was quashed; and similar decisions were given in Leeson v. General Council of Medical Education (1889, L.R. 43 C.D. 366), and in the above cited case of Ex parte Akkersdyk.

6

My Lords, it appears to me that these considerations are decisive of the present case. The Bath justices, when sitting as the compensation authority under the Licensing Act of 1910, may not be a court; but they are performing a judicial act, for it is their duty after hearing evidence and listening to arguments to pronounce a decision which may vitally affect the interests of the persons appearing before them. This being so, the justices who are members of the Authority are bound to act judicially and not to sit if they are subject to that which in Reg. v. Rand (L.R. 1 Q.B. 230) was referred to by Blackburn J. as a "real likelihood of bias"; and I cannot doubt that in the case of those three justices who took part in instructing a solicitor to oppose the renewal of the licence of the "Seven Dials" such a real likelihood of bias existed. It is said that the justices in question did not themselves instruct the solicitor, but only directed their clerk to do so; but this appears to me to be an unreal distinction. All the three justices passed and signed the resolution directing their clerk to instruct Mr. Withy to oppose the renewal of the licence, and he did accordingly as their representative appear before the compensation authority and oppose the renewal; and I fail to see how under these conditions the justices who had instructed him and whom he represented could be free from all suspicion of bias when sitting to adjudicate upon his argument.

7

My Lords, the Court of Appeal appears to have felt the force of these considerations, and Bankes, L.J. said in terms that, apart from the peculiar constitution of the compensation authority and the statutory provisions as to its powers, he would have had no hesitation in holding that the facts of the present case did disclose a real likelihood of bias; but nevertheless the majority of the Court held that the ordinary rule was excluded by the special terms of the statute. With the greatest respect for the opinion of the learned Lords Justices who took that view, I am unable to agree with it. It may be that the statute contemplates that members of the renewal authority,—in this case the borough licensing committee,—may sit as members of the compensation authority. Certainly there is no provision to the contrary; and section 6 (5) expressly provides that the justices of a non-county borough may appoint one of their number to act with reference to the renewal of a licence in the borough as a member of the county compensation authority. Possibly it was considered that the question which the licensing justices have to decide, namely, whether the renewal of certain licences shall be referred for consideration, is different from the question which has to be determined by the compensation authority, namely, whether the licences shall be renewed; and that a magistrate who has joined in referring a licence may nevertheless, when acting judicially on the evidence brought before the compensation authority, come to the conclusion that the same licence ought not to be refused. But, assuming this...

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