Gambling Act 2005 Appeal

Freddie Williams Bookmakers v East Ayrshire Council & William Hill Organization Limited 

On 28th November 2012, Lady Paton delivered the Opinion of the Inner House in the matter of Freddie Williams Bookmakers v East Ayrshire Council & William Hill Organization Limited [2012] CSIH 89 which is understood to be first appeal in Scotland to the Court of Session under the Gambling Act 2005. The decision highlights the importance of following the strict requirements of the statute to the letter in progressing an appeal, in respect of both jurisdiction and the timing of lodging an appeal.

The background to the appeal is as follows. On 7th February 2012, the East Ayrshire Licensing Board ("the Board") granted a betting premises licence to William Hill Organization Limited ("WHOL") for premises in Cumnock. The appellants, Freddie Williams Bookmakers ("FWB"), had lodged representations to the Board objecting to the grant of the application and had appeared at the meeting of the Board on 7th February 2012. FWB operated a betting premises licence in another shop unit in Cumnock.

The Board advised WHOL and FWB of their decision to grant the application orally at the meeting on 7th February 2012 and subsequently issued their formal notice of their decision under cover of a letter dated 2nd March 2012. Prior to issue of that formal notice, on 28th February 2012, FWB appealed the decision of the Board by way of summary application to the Sheriff at Kilmarnock.

At the hearing on the summary application and answers, WHOL argued that the appeal by FWB was incompetent on two bases. Firstly, the appeal had been lodged in the wrong Sheriffdom and secondly that the appeal had been lodged prior to the commencement of the 21 day period following receipt of the formal notice of the Board's decision, under cover of the letter of 2nd March 2012.

Sheriff McDonald dismissed the appeal as incompetent on the first ground but refused to do so on the second ground. FWB appealed the decision of the Sheriff to the Inner House of the Court of Session on the first ground. WHOL crossed appealed on the second ground regarding the time limit. The Board took no part in either the hearing before the Sheriff or the appeal before the Inner House.

In the Opinion of the Court, delivered on 28th November 2012, the appeal by FWB was refused and the cross appeal by WHOL was upheld. In upholding the cross appeal, the Court determined that an appeal lodged "early" was incompetent, as the requirements of the 2005 Act were mandatory.

The decision of the Court requires, therefore, to be considered under two separate headings, namely the "jurisdiction issue" and the "timing issue".

The Jurisdiction Point

Section 207 of the Gambling Act 2005 requires that an appeal in relation to a premises must be instituted to a sheriff within whose sheriffdom the premises are wholly or partly situated.

The appeal to the Sheriff taken by FWB was to the Sheriffdom of North Strathclyde at Kilmarnock, founding jurisdiction on the basis that Kilmarnock Sheriff Court is the seat of the Board. The premises in respect of which the appeal was taken are located in Cumnock, which lies within the Sheriffdom of South Strathclyde, Dumfries and Galloway, with the relevant Court being Ayr Sheriff Court.

At the hearing of the summary application, the Sheriff accepted that the clear interpretation of section 207 of the 2005 Act was that the appeal must be raised in the correct jurisdiction, which in this matter was the Sheriffdom of South Strathclyde, Dumfries and Galloway. Accordingly by reason that the appeal had been taken in a court that did not have the necessary jurisdiction, the appeal was incompetent and without effect.

The Sheriff determined that she did not have discretion to dispense with this fatal error and therefore she could not remit the cause to the Sheriffdom of South Strathclyde, Dumfries and Galloway. The use of the word "must" sets out a mandatory requirement in the statute. Unlike cases referred to under the Licensing (Scotland) Act which contained a dispensing power "on cause shown", the Gambling Act 2005 contained no such power.

The Opinion of the Court endorsed the Sheriff's reasoning and added that whilst the Act of Sederunt (Summary Applications, Statutory Applications and Appeals) Rules 1999 as amended contained a general dispensing power, there was no reference to said Rules within the terms of the Gambling Act 2005. As such, secondary legislation (the 1999 Rules) could not affect or qualify primary legislation (the 2005 Act), as per Graham v John Tullis & Son (Plastics) Limited (No 1) 1992 SLT 507.

The appeal was therefore incompetent and the decision of the Sheriff at first instance was upheld.

The Timing Issue

As stated, the appeal by summary application was lodged on 28th February 2012 whereas the Board issued its formal notice of decision, which included reasons for said decision, under cover of a letter on 2nd March 2012.

Section 207(1)(c) provides that an appeal must be instituted "within the period of 21 days beginning with the day on which the appellant receives notice of the decision against which the appeal is brought".

WHOL argued that the 21 day period referred to did not commence until the formal notice, issued under cover of the letter of 2nd March 2012 was received by FWB and that the appeal must be taken during that period. The 21 day period could not therefore be running prior to 2nd March 2012, that is, on 28th February 2012 when the appeal was lodged at Kilmarnock.

The Sheriff had rejected this ground of challenge at first instance on the view that "notice" of the decision may mean the oral decision given at the Board meeting on 7th February 2012. The Sheriff expressed the view that Parliament did not intend to exclude parties that might lodge an appeal early.

The Court disagreed with the Sheriff and upheld WHOL's cross appeal on this point. The Court held that the meaning of the word "notice" must be read with section 164 of the 2005 Act which provides for "notice" to be given in the form prescribed by Scottish Ministers. It was more than a piece of paper. The prescribed notice included a note of the reasons of the Board for the decision.

The Court held, again, that the use of the word "must" is mandatory, not directory or permissive. The proper construction of the 2005 Act was that an appeal must be lodged at some time during the 21 day period following receipt of the notice – "neither before, nor after, but during it". The Court expressed the view that Parliament intended that the written reasons for the decision should be issued and known to everyone before any party is entitled to institute an appeal. This was considered to be a sensible and rational approach which will likely prevent unnecessary or misconceived appeals.

Therefore on the second issue, the appeal was also determined to be incompetent.

Comment

Whilst this judgment deals specifically with the wording of a particular statute, namely the Gambling Act 2005, it is likely to have a wider application. The judgment highlights the necessity to follow the process required under statute where mandatory wording is used. The Court expressed the view that such wording reflects the intention of Parliament and therefore requires to be given effect.

Harper Macleod LLP acted for William Hill Organization Limited at all stages in this process.