R v Inner London Crown Court, ex parte Greenwich London Borough Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JAMES |
| Judgment Date | 07 November 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1107-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 1975 |
[1975] EWCA Civ J1107-1
In The Supreme Court of Judicature
Court of Appeal
The Master Of The Rolls (Lord Denning)
Lord Justice James and
Lord Justice Shaw
Mr. RICHARD HARVEY, Q. C., Mr. DAVID TUDOR-PRICE and Mr. ROGER SHAWCROSS (instructed by Messrs. Mincoff Sciense & Gold of Newcastle) on behalf of the Appellant Mr. Walker, and (instructed by Messrs. Philip Ross Elliston & Bieber) on behalf of the other Appellants.
Mr. RAYMOND SEARS, Q. C., and Mr. DAVID LAMMING (instructed by Messrs. Sharpe Pritchard & Co.) appeared on behalf of the Leeds City Council.
Mr. ROBIN SIMPSON, Q. C., and Miss. GILBERT (instructed by the Town Clerk) appeared on behalf of the London Borough of Greenwich.
Mr. ANDREW LEGGATT, Q. C., and Mr. COLIN SMITH (instructed by the Borough Solicitor) appeared on behalf of the London Borough of Lewisham.)
The question in these cases is whether premises used for playing "prize bingo" is a pleasure fair within the meaning of the Betting, Gaming and Lotteries Act 1963. If the premises are not a pleasure fair, a local authority can pass a resolution giving a "blanker refusal" prohibiting prize bingo to be played there, or anywhere else in the town. But if it is a pleasure fair, they cannot give a "blanket" refusal. They must hear the application separately and decide on its merits.
1 THE LEEDS CASE
Some years ago the Leeds City Council granted a permit for prize bingo to be played at premises called the Fraternity Bridge and Social Club, 568 Mean wood Road, Leeds. On 10th April, 1970, the Leeds City Council passed a "blanket" resolution saying that: "permits shall be neither granted nor renewed on or after 1st July, 1970, for the provision of amusements with prizes on any premises other than premises used, or to be used, wholly or mainly for the purpose of a "pleasure fair" consisting wholly or mainly of amusements".
On 7th June, 1970, (shortly before that blanket resolution came into operation) the occupier, Mr. Walker, was granted a permit for prize bingo on the premises. This permit was for three years. In consequence he equipped the premises at much expense for prize bingo and employed staff to run it.
On 1st July, 1970, as I have said, the "blanket" resolution came into effect.
On 2nd February, 1973. Mr. Walker applied for a renewal of the hermit. He said that the premises "are established and conducted for the purpose of amusements with prizes in the nature of prize bingo".
On 20th June, 1973the Council refused to renew the permit on the ground that it came within the "blanket" resolution of 10thApril, 1970. They said that his premises (used for prize bingo) was not a "pleasure fair".
Mr. Walker appealed to the Crown Court. On 10th October, 1973, the Recorder, Mr. Herrod, Q. C., allowed the appeal. He held that premises used for prize bingo was a "pleasure fair". He granted Mr. Walker a permit. Two months later, on 14th December, 1973, the Leeds City Council applied to the Divisional Court for certiorari to quash the Recorder's decision. On 9th July, 1974, the Divisional Court quashed his decision. They held that the user for prize bingo was not a pleasure fair: and that Mr. Walker was caught by the "blanket" resolution. The case is reported in 1974 1 W. L. R. 1275. So Mr. Walker would have to shut down the place and dismiss his staff. He had carried it on quite well and lawfully far four years; but he would have to shut it down. He appeals to this Court.
2 THE GREENWICH CASE
We are here concerned with Numbers 2a and 2b New Road, Greenwich. For many years they were used by Tesco as a self service grocery stores. Then in 1973 two partners, calling themselves Carousel planned to acquire the premises and convert them into a place for prize bingo. For this purpose they would need to get planning permission from the Greenwich Council (who were the planning authority): and also need to get permission for amusements with prizes. This permission would also have to be obtained from the Greenwich Council (who were the licensing authority for amusements with prizes).
The Council refused planning permission: but Carousel lodged an appeal to the Minister. They were quite confident that their appeal would be granted: because there had been similar cases where a local council had refused planning permission but the Minister, on appeal, had granted it. Their confidence was not misplaced. The Minister, in due course, did grant planning permission.
In 1973 the Council also refused permission for amusements with prizes. They refused it because three years before, on 29th July, 1970, the Council had passed a resolution that they would not grant any permits for amusements with prizes in respect of "premises which are not purpose built for the provision of public entertainment". These premises fell within that embargo: because they were purpose built for a retail shop, and not for public entertainment. Carousel appealed to the Crown Court. On 22nd October, 1973, the Crown Court allowed the appeal and granted Carousel a permit for amusements with prizes, together with £100 costs. That decision of the Crown Court was "final". The statute said so in terms. So Carousel were entitled to treat it as "final". And they did so. Carousel asked for the £100 awarded them for costs: and the Council did not dispute it. Carousel also went on with their plans to purchase the premises. In December 1973 they exchanged contracts to buy them for £80,050. They paid the deposit and many other outgoings. Everything went forward on the basis of "finality" until on 19th February, 1974, the Council wrote saying they were asking Counsel whether they could appeal against the decision of the Crown Court. The answer of Counsel must have been No, because there was, of course, no appeal. On 28th March, 1974 Carousel were granted planning permission, as they had expected. After all this had happened, eventually on 5th April, 1974, the Greenwich Council applied for certiorari to quash the decision of the Crown Court. That was 5½ months after the Crown Court gave its decision.
Carousel submitted that there was unreasonable delay in making the application and that, on that account, the Divisional Court should refuse the remedy. But the Divisional Court granted it. The case is reported in 1975 2 W. L. R. 310. They said that a person who applies for certiorari is given six months: and is prima facie entitled to take the whole of it. Lord Widgery said (at page 314):-"This six-months time limit which has been in the rules for nearly 100 years, is generally regarded throughout the country as being a limit within which an applicant can safely act… anyone seeking to resist it when less than six months has elapsed has got to make out his case and make out a strong case."
I am afraid that I cannot agree. It seems to put the remedy by certiorari on the same level as an appeal: and not only as an appeal, but as an appeal in which the appellant has virtually six months in which to give notice of appeal. This would be an extraordinary favour to grant. We all know that in appeals from a Judge of the High Court, the time limit is six weeks. In appeals from a decision of magistrates (whether by case stated or otherwise) the time limit is 14 days. These time limits are deliberately made short so that people can know where they stand. Can it really be supposed that a person - who has an order of the Crown Court in his favour - has to wait for six months before he can safely act on it? And, what is more, when the order is by statute expressly made "final", that is, without appeal to any higher Court?
The truth is, of course, that certiorari is not an appeal at all. It is an exercise by the High Court of its power to supervise inferior tribunals, see R. v. Northumberland Compensation Appeal Tribunal ex p. Shaw (1952) 1 K. B. at pages 346-7. The time limit of six months is not an entitlement. It is a maximum rarely to be exceeded. Short of six months, there is the overriding rule that the remedy by certiorari is discretionary. If a person comes to the High Court seeking certiorari to quash the decision of the Crown Court - or any other inferior tribunal for that matter - he should act promptly and before the other party has taken any step on the faith of the decision. Else he may find that the High Court will refuse him a remedy. If he has been guilty of anydelay at all, it is for him to get over it and not for the other side. In support, I would refer to The Queen v. Steward (1880) 5 Q. B. D. 179; 9 Q. B. D. 741, where five months had elapsed. And in Rex v. Glamorganshire Appeals Tribunal (ex parte Fricher) (1917) T. L. R. 152, Lord Reading, Chief Justice said:- "The applicant could not succeed because he had allowed more than two months to elapse before raising any objection to what had happened. If anything wrong had taken place, the party aggrieved should move at once." So also Rex v. Stafford Justices (1940) 2 K. B. at page 45 by Sir Wilfrid Greene, Master of the Rolls.
In the present case the Greenwich Council left it far too late to apply for certiorari to quash the decision of the Crown Court. On that ground alone I think the application of the Greenwich Council should have been refused.
3 THE LEWISHAM CASE
For some years now the premises at 155 Lewisham High Street have been used for prize bingo. The Lewisham Council granted a permit for the purpose.
On 18th April, 1973, the Lewisham Council passed a resolution that the Council do not grant or renew permits under section 49 of the...
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