R v Barnsley Licensing Justices. ex parte Barnsley and District Licensed Victuallers' Association
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DEVLIN |
| Judgment Date | 18 May 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0518-1 |
| Date | 18 May 1960 |
| Court | Court of Appeal |
The Master of the Rolls
(Lord Evershed)
Lord Justice Ormerod and
Lord Justice Devlin
In The Supreme Court of Judicature
Court of Appeal
MR. CHRISTMAS HUMPHREYS, Q.C, and MR. H. C. BEAUMONT (instructed by Messrs, J. E. Lickfold & Sons, Agents for Mr. J. Donald Driver, Barnsley) appeared for the Appellants, Applicants in the Court below.
MR. JOHN THOMPSON. Q.C. and MR. J. McLUSKY (instructed by Messrs. Batchelor Pry Coulson & Burder, Agents for Mr. W. winter, Barnsley) appeared for the Respondents, Respondents below.
: This appeal from a judgment of the Divisional Court raises a question of difficulty and certainly poses for the Town at Barnsley some serious problems which the Court, I fear, cannot solve. The appeal is against an order rejecting an application by the Licensed Victuallers' Association for an order of certiorari to quash the decision of the Licensing justices of Barnsley, given in March of last year, whereby they granted to the Respondents in this case, the Barnsley Co-operative Society, Ltd., a spirits off-licence in a chemist's shop or drug store which already belonged to them, in the sense that they had a tenancy or lease of the premises and carried on thereon this chemist's business. They also had a wine off-licence for the same premises.
The problem has arisen for this reason: when the Justices sat on the 6th March, 1951, they were seven in number. Six of them were members of the Co-operative Society and the seventh was a lady whose husband was a member. The Chairman of the Bench, Alderman McVie, was one who had some months before offered himself as a candidate for election to the Board of Directors of the Society, in which enterprise, however, he was unsuccessful. It appears that he was the third of nine unsuccessful candidates. There was no evidence that he intended at the relevant date to offer himself again. It is right to say, as Mr. Christmas Humphreys has made clear, that in this case there has been no suggestion whatever that any of the seven Justices acted in fact with any improper or partial motive. What is Said is, first, that their "interest", as has been found, was such that, apart from any language in the Licensing Act, 1953, the common law disqualified them altogether from acting in the matter. Alternatively, it is said that even if the interest they had was one which might other-wise be regarded by the Court as protected by sub-section 5 of section 48 of the Act, still there was a real likelihood of bias which deprived them of any right to rely, as they might otherwise do, on the sub-section.
I leave aside for the moment the separate point which arose about Alderman McVie on which Mr. Justice Salmon fastened in his dissenting judgment.
The interest of the seven Justices, the members of the Society - I shall not henceforth distinguish between the six who were themselves members and the lady whose husband was a member - was that as shareholders and as members of the Society they were entitled to receive, according to the constitution and rules of the Society, certain dividends on the amount of their shares. In addition, by virtue of sub-rule 6 of rule 18, they were entitled to what is popularly called a "dividend" out of the remaining profits calculated in this fashion: The sub-rule says: "The remainder of the net profits after providing for the preceding charges" - and I, interpose to say that they include, for example, a provision for an educational fund - "shall be divided between the members who have made purchases of the Society during the period to which the division relates according to the amount of their purchases".
It will be noted that the dividend referred to in sub-rule 6 was not arithmetically related to the amount of the shareholding. It was arithmetically related to the amount of the purchases made, and all the members had similar dividends if they made the same amount of purchases, regardless of any difference there might be in respect of their shareholding. It is clear enough that there would have to be profits before such a dividend could be paid, we were informed - and it appears from the evidence - that at the relevant dates it worked in this fashion, that at certain periods (I believe, quarterly) there was paid, pursuant to sub-rule 6, to the members, a dividend, a division of profits, at the rate of is. 6d, for every 20s. worth of purchases. It would follow that if any member of the Society In fact purchased spirits at this drug store if a licence had been granted for the sale of those spirits) they would get a dividend which would consist of or include a sum at the rate of 1s. 6d, in 20s. for the sum paid to buy the spirits. Roughly, we were told - and no doubt the calculation is right - it meant that any member of the Society who bought a bottle of whisky at this store would get in his dividend a sum of 2s. 9d. in respect of that bottle of whisky.
One of the questions which must be considered is this. Does such a member of the Society get a discount on his purchase? Is he in the position of being able to buy at the Co-operative shop with which we are concerned a bottle of whisky at 2s, 9d, less them the ordinary man would have to pay if he bought a bottle of whisky in an ordinary retail establishment, or less than a man would pay who bought a bottle of whisky at this shop but who was not a member of the Society? For my part. - and I conceive this is a somewhat Important point - I conclude that it is not right to say that a member of the Society is able to buy from the Society's store whisky at 2s. 9d. per bottle less than the retail price. If the contrary was true it would perhaps be a determining factor in this case; for in such case there would be a pecuniary interest which had nothing to do with profits. But my view is that the interest which the Justices had in this matter cannot be put higher than that they were interested in the profits of any trace or business carried on upon the premises occupied by the Society, That is a pecuniary interest, and I say at once, that, apart from the section of the 1953 Act, to which I shall come almost at once, I should not doubt that, having that kind of interest, they would fall within the scope of the principle laid down In 1866 by Mr. Justice Blackburn in The Queen v. Rand and others. Law Reports, 1 Queen's Bench cases, page 230, which Mr. Humphreys has put in the forefront of his argument.
The facts in Rand's case need not be referred to in detail. It concerned a certain water undertaking, and it was suggested unsuccessfully that certain Justices were disqualified because they were interested in certain Bonds which had been issued in connexion with the water works. As the Court held they had in truth no pecuniary interest themselves in the subject-matter of the decision impugned, it was held they were not disqualified but the principle applicable in such cases is stated in clear language, often quoted, by Mr. Justice Blackburn in delivering the Judgment of the Court. He said: "There is no doubt that any pecuniary interest, however small, is the subject of enquiry, and does disqualify a person from acting as a judge in the matter; and if by any possibility these gentlemen, though mere trustees, could have been liable to costs, or to any pecuniary loss or gain in consequence of their being so, we should think the question different from what it is". As I have said, in that case the Court held that the persons in question were not disqualified.
That principle has often been affirmed and Mr. Humphreys cited the case of The Queen v. The Sunderland Justices decided in this Court in 1901, reported in 1901, 2 K.B.D., page 357, I need not take time to cite again the passage which Mr. Humphreys quoted, I do not forget that in 1901 the first of the Licensing Acts, the Act of 1872, had been passed, which is the ancestor of the present Act.
Having said that much, I turn next to the relevant section, section 48 of the Licensing Act, 1953, The first four subsections formulate the disqualifying circumstances. The first sub-section provides "No justice shall act for any purpose under this Act…. or be capable of being appointed or being a member of any committee therein"- that is, in any Borough or County -"who is, or is in partnership with, a brewer, distiller, maker of malt for sale or retailer of malt, or of any intoxicating liquor in that County or Borough". The second sub-section similarly disqualifies Justices who hold shares or stocks in a Company which carries on a business of the kind I have indicated. In that subsection there is, however, a proviso that a member disqualified by reason of being a stockholder may be reappointed if he makes dis-closure before his reappointment. The third sub-section similarly disqualifies one who, though not being himself a shareholder or stockholder at the time he is appointed, is beneficially interested in shares or stocks vested in somebody else's name. Again, there is a proviso which protects him in the case of his interest being so small that there is no reasonable ground for suggesting that he is not a proper person to be a member of the authority. It will be seen that so far the disqualifications formulated are disqualifications of persons who have a particular interest in particular businesses, whether or not the particular business, for example, brewery, in which they happen to have shares, has any direct concern with the application for the licence which comes before the Justices; in other words, they are quite general.
Sub-section 4, which is the vital one for this purpose, is, on the other hand, strictly limited to the premises the subject of the application for a licence. It...
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