Peerless Ltd v Gambling Regulatory Authority and Others (Mauritius)
| Jurisdiction | UK Non-devolved |
| Judge | Sir Paul Girvan |
| Judgment Date | 15 June 2015 |
| Neutral Citation | [2015] UKPC 29 |
| Date | 15 June 2015 |
| Docket Number | Appeal No 0049 of 2014 |
| Court | Privy Council |
[2015] UKPC 29
Privy Council
From the Supreme Court of Mauritius
Lady Hale
Lord Clarke
Lord Wilson
Lord Hughes
Sir Paul Girvan
Appeal No 0049 of 2014
Appellant
William Godwin Robert Strang (Instructed by Sheridans)
Respondents
Geoffrey Cox QC Yvan Jean-Louis Ben Walker-Nolan (Instructed by Royds LLP)
Heard on 25 March 2015
(giving the judgment of the Board)
This appeal, which is brought by leave of the Supreme Court of Mauritius, arises out of judicial review proceedings taken by Peerless Ltd, a Mauritius bookmaker ("the appellant"), against the respondent, the Gambling Regulatory Authority ("the GRA"), which is charged with the regulation and control of gambling activities in Mauritius. Its objectives are in part to promote public confidence in the integrity of the gambling industry in Mauritius and to ensure that gambling is conducted in a fair and transparent manner. The appellant was the holder of a licence granted by the GRA which was renewed from time to time and which permitted it to conduct fixed odds betting on football matches played abroad. The appellant's licence as renewed on 14 July 2010 was suspended and subsequently not renewed. The appellant by its judicial review proceedings sought to challenge the decisions of the GRA in respect of the suspension and non-renewal of the licence.
The appeal arises from the judgment of the Supreme Court given on 9 September 2013 refusing the appellant leave to apply for judicial review. The Supreme Court refused leave for three reasons. Firstly, the appellant failed to disclose material facts. Secondly, the appellant failed to exhibit full copies of the relevant licences in that it had omitted relevant conditions. Thirdly, notwithstanding the GRA's production of the full terms of the licence, the appellant persisted in its general denial of knowledge of the conditions imposed on the relevant betting licences. In essence the court refused leave by reason of the failure by the appellant to make full and frank disclosure of facts by reason of misleading statements made in the appellant's affidavits.
In January 2008 the GRA invited applications for licences to take bets on football matches played overseas. The appellant applied for a licence. By letter of 11 April 2008 it was informed that it would be offered a licence. A licence was duly granted to the appellant to operate as a bookmaker in respect of football matches taking place outside Mauritius as from 16 July 2008 to 15 July 2009 ("the 2008 licence").
The appellant was at the same time as the licence was granted given a copy of the conditions of the licence ("the 2008 conditions"). These conditions included a condition requiring the appellant to use software of international standard and approved by an international institution. It was required to have a computer system properly configured so as to link to the respondent's Central Electronic Monitoring System ("CEMS") on a date to be determined by the GRA. Condition 7 required the appellant to pay unclaimed winnings into the National Solidarity Fund ("the NSF") within seven days of the expiry of 45 days after the match result. Condition 8 required the licensee to submit to the GRA a certified statement of such payments at the time of payment.
The appellant chose as its software provider an English company called A Bet A Technology Ltd. The software did not provide for a report of unclaimed winnings on the expiry of 45 days after matches. Adaptation of the system to make such a report required a special reconfiguration. The appellant did not take steps to have that reconfiguration carried out. Nor did it take steps to establish manually the amounts of unclaimed winnings. It did not take any steps to pay over such winnings in accordance with conditions 7 and 8 until the GRA took steps to suspend the licence for non-compliance with the conditions in 2010. The unjustifiable explanation given by the appellant is that manual compilation would have been burdensome and time-consuming. The appellant asserted that it was waiting to reconfigure its software so as to provide automatic reporting of unpaid winnings in conjunction with a connection between the GRA's and the appellant's system after activation of the CEMS. The appellant alleges that it did engage with the GRA about connecting the appellant's computer system with that of the GRA. Although the Gambling Regulatory Authority Act 2007 ("the 2007 Act") required the GRA to set up and maintain a CEMS, it had failed to do so by the time of the events in 2010 giving rise to the appellant's judicial review claim.
On 16 July 2009 the GRA renewed the appellant's licence ("the 2009 licence"). No further conditions were sent with the renewal, but the appellant accepts that the 2008 conditions continued to apply.
On 16 July 2010 the GRA renewed the appellant's licence. By this time the appellant had still made no payment to the NSF of unclaimed winnings and had submitted no report to the GRA of any such payment. It is common case that on the 2010 renewal the GRA omitted to send the appellant a set of conditions as had been sent together with the 2008 licence. Other bookmakers did receive a set of new conditions. These incorporated the previous conditions used in 2008 (thus including conditions 7 and 8) and added two additional conditions, a new condition 3 (which reserved certain express powers to the GRA) and a new condition prohibiting the taking of bets from minors. The form of the 2010 conditions provided to the other bookmakers ended with a new warning that non-compliance with any condition of the licence, rules, regulations or provisions of the GRA might entail any action that the latter might deem fit.
On 21 February 2011 GRA officers along with officers of the police des jeux attended at the appellant's main office and handed over a letter wherein the GRA informed the appellant that it had suspended the appellant's licence with immediate effect for failing to pay unclaimed winnings to the NSF pursuant to section 99(1)(m) of the 2007 Act. The letter stated that the GRA was aware that the appellant was in possession of certain winnings receipts which had remained unclaimed for over 45 days.
Where the GRA considers that it should suspend a licence under section 99 of the 2007 Act, it has a power to act under either section 99(3) or section 99(4) of the Act. These provide:
"(3) The Board shall, subject to subsection (4), before suspension, revocation, or cancellation of a licence, by written notice inform the licensee of the reasons for the proposed suspension, revocation or cancellation and request the licensee to submit to the Board, within 14 days of the notification written reasons why the licence should not be suspended, revoked or cancelled.
(4) Where the Board is of opinion that a licence is to be suspended, revoked, or cancelled with immediate effect, written notice of the suspension, revocation or cancellation and the reasons therefor shall be given to the licensee forthwith, and the licensee shall be entitled to submit to the Board, within 14 days of the notification written reasons why the licence should be reinstated."
It is clear from the wording of the GRA's letter that it was proceeding under section 99(4). The appellant was one of five bookmakers whose licences were suspended on the same day for the same reason.
Having surrendered its licence to the GRA by letter of 25 February 2011, the appellant wrote to the GRA on 2 March 2011 stating that it had already been attending to the matter of unclaimed winnings at the time of its suspension. It informed the GRA that it had sent a cheque representing 1,577,772 Rupees (equivalent to some £30,000) representing unclaimed winnings for the period 2008–2010. It contended that the reason for suspension no longer existed; that the GRA could have acted under section 99(3) instead of resorting to immediate suspension; that the appellant had not been in breach of any other provisions of the licence or the Act; that it should have been given an opportunity to furnish an explanation; that it had made a very substantial investment to operate its business; that it employed 52 people; that it had paid betting tax duties of 12,082,274 Rupees (unclaimed winnings representing less than 14% of that sum) and that the appellant would prevent recurrence of the non-payment, would provide security of 50,000 Rupees and would send a weekly list of unclaimed winnings to the GRA.
The appellant and four other suspended bookmakers sought a meeting with the GRA. The GRA arranged a meeting on 6 May 2011, at which the appellant and the four other bookmakers made representations. As a result of the hearing, the licences of two bookmakers were reinstated. Two others were informed that the GRA was minded to revoke their licences and they were invited to show cause why that should not occur. The appellant was, however, told nothing. The GRA explains its conduct by saying that, having decided not to reinstate the appellant's licence, it had decided not to renew it instead of revoking it. The GRA accepts that none of this was communicated to the appellant and no reasons were given for its decision not to reinstate or not to renew the licence.
Having heard nothing from the GRA, the appellant applied on 14 July 2011 for renewal of the licence enclosing a cheque for the renewal fee. The GRA returned the cheque. It did not seek to give any explanation. In fact due to a postal problem the letter enclosing the cheque was never delivered to the appellant.
On 21 September 2011 the appellant applied for a judicial review.
It must be said at the outset that the conduct of the appellant and...
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