Jacpot Ltd v Gambling Regulatory Authority
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sumption |
| Judgment Date | 12 July 2018 |
| Neutral Citation | [2018] UKPC 16 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0032 of 2017 |
| Date | 12 July 2018 |
[2018] UKPC 16
Lord Sumption
Lord Hughes
Lord Hodge
Lord Lloyd-Jones
Lord Briggs
Privy Council Appeal No 0032 of 2017
Privy Council
Trinity Term
From the Supreme Court of Mauritius
Appellant
P Maxime Sauzier SC
S Dabee
(Instructed by Axiom Stone)
Respondent
James Guthrie QC
Yvan Jean-Louis
(Instructed by Royds Withy King)
Heard on 14 May 2018
This is an application by Jacpot Ltd for special leave to appeal from the dismissal by the Supreme Court of Mauritius of an application for judicial review. The decision challenged was a decision of the Gambling Regulatory Authority to revoke a number of licences previously issued to Jacpot, authorising them to provide specified facilities for gambling. The Supreme Court refused leave to appeal to the Judicial Committee on the ground that there was no appeal as of right and (implicitly) that the case was not a proper one for leave to be granted as a matter of discretion. On 19 December 2017 the Judicial Committee directed that that application should be determined at an oral hearing with the substantive appeal to follow if leave was granted. That direction was given on the express basis that the case provided the occasion for resolving a number of questions concerning the availability of an appeal as of right and the principles on which special leave should be granted by the Judicial Committee. The Board announced at the hearing that leave would be refused for reasons to be given later. These reasons now follow.
The Gambling Regulatory Authority is a statutory body charged by the Gambling Regulatory Authority Act 2007 with the licensing and regulation of gambling in Mauritius. Licences to provide facilities for gambling are issued by the Authority under section 96 of the Act. Section 96(4) of the Act provides:
“(4) No licence shall be issued unless the premises to which the licence relates are, in the opinion of the Commissioner of Police, suitable for the purposes for which the application is made.”
Under section 7(1)(a), the Board of the Authority has
“such powers as are necessary to enable it to effectively discharge its functions, and in particular to —
(a) issue, renew, suspend or revoke any licence;”
Section 99 provided for disciplinary action against licensees:
“(1) The Board may, at any time, refuse to renew, or suspend for such period as the Board may determine, or revoke or cancel from such date as the Board may determine, any licence where —
(a) any information furnished by the applicant for the issue or renewal of the licence was, at the time when the information was furnished, false in a material respect or was subject to a material omission;
…
(j) the licensee, or in the case of a company, any director, manager or officer of that company, is no longer a fit and proper person;
(k) the premises to which the licence relates cease, in the opinion of the Commissioner of Police, to be suitable for the purposes for which they were licensed;
…
(9) Notwithstanding subsection (1), the Board may impose a financial penalty not exceeding 50,000 rupees where a licensee does not comply with —
(a) any condition of the licence;
(b) any rule in respect of gambling, lottery game, sweepstake and other lotteries; or
(c) any guideline or direction issued by the Board.”
In 2011, Jacpot Ltd was the holder of a Gaming House “A” Licence for their premises at Rose Belle and of Gaming Machines Licences for 46 gaming machines at the same premises. On 25 October 2011, the Authority suspended Jacpot's Gaming House Licence with immediate effect on the grounds that it had failed to submit audited accounts as required by the Act and that the premises to which the licences related had ceased “in the opinion of the Commissioner of Police” to be suitable for the purpose for which they were licensed within section 99(1)(k) of the Act. The letter by which this was notified to Jacpot stated that the Commissioner of Police had reported
“increasing number of cases of Larceny/Larceny with violence, Assault and other altercations between security Officers and gamblers directly or indirectly resulting from the operations of Royal Game, Rose Belle. … seriously disrupting public peace and causing much inconvenience to the people residing in the neighbouring area, especially at night.”
On Jacpot's application, the Authority held a hearing on 21 November 2011, at which it was represented by Counsel. Counsel argued (i) that audited accounts had by then been submitted, albeit late, and (ii) that the Commissioner of Police should be required to give further particulars of his opinion that the premises were unsuitable. On the latter point, the Authority asked the Commissioner for clarification, and received a response by letter confirming the facts stated in his original opinion. On 15 December 2011, the Authority notified Jacpot of its decision to revoke the licences for the same reasons as those for which Jacpot had previously been suspended.
Jacpot then applied to the Supreme Court for judicial review. The application was heard on 30 June 2016. The transcript records that the grounds advanced were (i) that the late submission of accounts had by then been corrected; (ii) that Jacpot had not had the opportunity at the hearing before the Authority to challenge the Commissioner's opinion; and (iii) that the decision to revoke the licence, as opposed (for example) to imposing a civil penalty under section 99(9), was disproportionate. The Court dismissed the application on 27 July 2016 on the ground that the terms of the Act “left the Board with no other option than to accept and act on the opinion of the Commissioner of Police” as to the suitability of the premises, and that while the late submission of accounts might have been met with a penalty, this could make no difference in the light of the problem about the premises.
Article 81 of the Constitution of Mauritius provides, so far as relevant:
Article 81. Appeals to the Judicial Committee
“(1) An appeal shall lie from decision of the Court of Appeal or the Supreme Court to the Judicial Committee as of right in the following cases
…
(b) where the matter in dispute on the appeal to the Judicial Committee is of the value of 10,000 rupees or upward or where the appeal involves, directly or indirectly, a claim to or a question respecting property or a right of the value of 10,000 rupees or upwards, final decisions in any civil proceedings;
(2) An appeal shall lie from decision of the Court of Appeal or of the Supreme Court to the Judicial Committee with the leave of the Court in the following cases
(a) where in the opinion of the Court the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to the Judicial Committee, final decisions in any civil proceedings;
…
(5) Nothing in this section shall affect any right of the Judicial Committee to grant special leave to appeal from the decision of any court in any civil or criminal matter.”
Where an appeal is available as of right, an application for leave to appeal must nevertheless be made to the local court, so that it can verify that there is a right of appeal and deal with certain procedural matters. In the ordinary course, where leave has been wrongly refused by the local court in a non-criminal case, the Judicial Committee will grant special leave unless the substantive appeal is abusive or bound to fail: Crawford v Financial Services Institutions Ltd [2003] 1 WLR 2147, para 23.
Accordingly, the first question to be resolved on this application is whether an appeal is available as of right. The only basis proposed for such an appeal is article 81(1)(b) of the Constitution. Its application depends on (i) whether the present proceedings are “civil proceedings”; (ii) whether the decision is a “final decision”; and (iii) whether the matter in dispute is of the value of 10,000 rupees or more, or “involves, directly or indirectly, a claim to or a question respecting property or a right of the value of 10,000 rupees or upwards.” In relation to all three points, it is important to bear in mind that the absence of an appeal as of right is not the end of the road. It simply means that discretionary leave to appeal must be sought from the court in Mauritius and, failing that, special leave must be sought from the Judicial Committee. The right to apply for special leave is specifically reserved by section 81(5) of the Constitution. For this reason, the provisions governing appeals as of right are normally to be strictly construed.
Although parts of the substantive law of Mauritius are based on French law, its procedural law is generally grounded on English law and uses English law's basic legal taxonomies. As Lord Goff of Chieveley observed in In re State of Norway's Application (No 2) [1990] 1 AC 723, 795, in English law and other systems based on it, “civil matters embrace all matters which are not criminal”. This dichotomy is reflected throughout the Constitution of Mauritius, which repeatedly refers to civil or criminal matters in a...
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