Scottish Court of Session Decisions

The Licensing (Scotland) Act 1903(3 Edw. VII, cap. 25), section 19, enacts—“Any person or the agent of any person owning or occupying property in the neighbourhood of the house or premises in respect of which any certificate or renewal of any certificate shall be applied for, may object to the granting or renewal of such certificate by lodging at any time, not less than five days before the general meeting of the Licensing Court, with the clerk to such Court, a notice in writing to that effect, signed by such person or his agent, specifying the grounds of such objection, which objection shall be heard at the then ensuing general meeting; and if such objection shall be considered of sufficient importance by the Court in such general meeting, and shall be proved to their satisfaction, the said certificate shall not be granted or renewed.…”

Alexander Goodall, wine and spirit merchant, 68 M'Alpine Street, Glasgow, pursuer, raised an action against (1) Sir Archibald M'Innes Shaw, the Lord Provost of Glasgow, and others, being the whole of the magistrates and members of the Licensing Court for Glasgow; (2) Sir Samuel Chisholm and others, being with the defenders first called the whole of the members of the Licensing Appeal Court for Glasgow; (3) the Clerk to the Licensing Court; (4) the Clerk to the Licensing Appeal Court; and (5) John Brown and others, persons in whose names objections had been lodged against the renewal of the pursuer's licence, defenders. The action was defended by (1) the members of the Licensing Court other than Sir Archibald M'Innes Shaw, and (2) the members of the Licensing Appeal Court with the same exception.

The pursuer sought reduction of (1) a determination of the Licensing Court refusing him a renewal of licence for premises situated at 68 M'Alpine Street, Glasgow, for the year from 28th May 1911, and (2) a determination of the Licensing Appeal Court refusing his appeal against the determination of the Licensing Court.

[A former application by the present pursuer for a renewal of his licence for the same premises for the year from 28th May 1907 had been granted by the Licensing Court, but on appeal refused by the Licensing Appeal Court, whose determination was however reduced by the Court (see Goodall v. Bilsland, 1909 SC 1152, 46 S.L.R. 555). Thereafter the pursuer's application for a new certificate at the Licensing Court in April 1908 was granted, and also his applications for renewals in the two succeeding years.]

The pursuer applied to the Licensing Court for a renewal of certificate for the year from 28th May 1911. Objections to the application were lodged by Mr Robert Kyle, solicitor, Glasgow (who was the agent for a society called the Vigilance Association), in the names of certain owners or occupiers of property in the neighbourhood. These objections set forth, inter alia—“1. There are more licensed premises in the neighbourhood where the said premises are situated than are necessary to meet the requirements of the inhabitants, as is shown by the following facts, viz.—that there is in the Broomielaw Ward, where the said premises are situated, one licence to every 92 persons, and that in the Brownfield area of the Broomielaw Ward, in which the present premises are situated, excluding the main thoroughfare of Argyle Street, there are 14 licences, while for the supplies of the necessities of life to the inhabitants there are 3 grocers, 1 butcher, 2 bakers, and 3 dairies. 2. The population in the Broomielaw Ward in 1905 was 7147, and in 1910 was 6460, showing a decrease of 687, and there has not been a proportionate reduction in the number of licences. 3. The physical, social, and moral tone of the district is very low, as is shown by the following facts, namely—that the death-rate in the Broomielaw Ward [and Brownfield area], especially of infants, was high in comparison with the rest of Glasgow, and that the percentage of irregularity in school attendance and of children requiring to be fed by the School Board is very high, and this condition of matters is largely due to the fact that there are more licences in the said ward than are meet and convenient. 4. In view of the facts above narrated, it is not meet and convenient that this application should be granted.”

The pursuer's application was refused, as stated above, by the Licensing Court and by the Licensing Appeal Court, and he brought this action of reduction.

The pursuer averred, inter alia—“(Cond. 6) For a number of years there has existed in Glasgow a society known as the Citizens' Vigilance Association. The sole or principal purpose of said Association is to oppose the granting and renewing of licences. For this purpose it has employed and employs law agents and others, whose charges and expenses have been and are defrayed from its funds. The operations of the said Association are controlled, and the funds for carrying on its operations are provided by the voluntary subscriptions of a few individuals holding extreme views on the liquor question, who believe, or profess to believe, that by obtaining a reduction in the number of licensed premises in the city they are advancing the cause of temperance. In conducting their campaign against licences the practice of the said Association is for a committee thereof to take up, prior to each half-yearly Licensing Court, consideration of the whole licensed premises in the city; to select and decide on the licences to be objected to at the ensuing Court; and to instruct their salaried law agent and other paid officials to take steps to obtain from parties owning or occupying premises in the neighbourhood of the particular

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licences to be objected to, ostensible mandates or letters of authority in order to give the Association's said law agent a colourable title to appear at the Licensing Courts and to press for the taking away of the licences. In pursuance of these instructions the said law agent or others, acting for and on behalf of the said Association, then proceed to search for parties who if they desired to object on their own account would have the necessary statutory qualification. Having obtained the signatures of a few such persons, who in many cases have no idea of the procedure to follow on their signature, or even of the purpose for which it is obtained, the said law agent then prepares and lodges in their names written objections. These are not the objections of the persons who sign the mandates, but are in reality the objections of the said Association. Thereafter the law agent of the Association takes complete charge of the proceedings and conducts the same to their conclusion, solely at the expense and in the interest of the Association, and without further reference to the parties in whose names the objections are professed to be made, none of whom appear or give evidence at the Licensing Court. Said parties are never at any time or in any sense clients of the said law agent. The said objections are not in reality bona fide objections to the licences within the meaning of section 19 of the said statute, but in substance constitute an attempt by the said Association to acquire a right to object and prosecute objections to licences which under the statute is a right personal to persons owning or occupying property in the neighbourhood of the licences to be objected to.… (Cond. 9) Prior to the Licensing Court for April 1911 the said Association procured, in the manner mentioned in article 6 of the condescendence, documents professing to be mandates in favour of the said Robert Kyle, and lodged objections to the renewal of 98 licences in the city, including that of the pursuer.… The whole of said objections were substantially in similar terms to those stated in the four heads of objections against pursuer's licence, with the exception that in some of the cases a fifth head of objection was added, namely—that the applicant was interested in another licence or other licences and could not therefore give that personal supervision to the licence objected to which the Court was entitled to demand. The names of the same parties were put forward as objectors to many of the licences.… (Cond. 12) At the said Licensing Court the total number of applications for licences amounted to 1631, of which 19 were for hotels, 1329 for public-houses, and 283 for grocers' licences. When the Court met on 11th April, the agent for the Vigilance Association appeared in support of the said 98 objections and made a general statement to the Court, in the course of which he referred to the views which had been urged upon the magistrates by … deputations, and he pressed for a large reduction in the number of licensed premises in the said three districts. Counsel for the applicants whose licences were objected to was then heard, and pointed out to the Court that, as was well known to them, the objections, although ostensibly in the names of the owners or occupiers of property in the district, were in reality the objections of the Vigilance Association, and maintained that these objections were incompetent and irrelevant, were not competently before, and ought not to be considered by, the Court. The Court refused to give effect to these contentions, and thereafter the various applicants for licences were called in their order [on the list]. In every case in which no objections were lodged or taken the renewal of the licence was immediately granted. In the cases in which objections had been lodged by the Vigilance Association as aforesaid, none of the nominal objectors in whose names objections were pretended to be taken appeared in Court, and no evidence of any kind was led on their behalf. In each case the Court reserved judgment. At the conclusion of the hearing on 11th April the members of the Court retired for a short interval, and on returning they announced that of the 35 licences in the Calton Ward to which objections had been lodged by the Vigilance Association as aforesaid, they had sustained the objections to 12 licences; that 2 applications were continued till the following day, and that the remainder of the 35 had been granted.… (Cond. 13) When the meeting of the Court was resumed on 12th April the procedure adopted was similar to that of the previous day. The individual cases objected to were dealt with separately, and again none of the nominal objectors appeared, and no evidence was submitted in support of the objections. At the conclusion of the hearing the members of the Court retired, and on returning announced that in the Broomielaw district 10 (including that of the pursuer) out of the 20 applications objected to had been refused and 10 granted.”

The pursuer pleaded, inter alia—“(1) The objections to the pursuer's application for a renewal of his licence certificate having been irrelevant and incompetent, et separatim not having been competently before the Court, the pursuer is entitled to decree in terms of the conclusions of the summons. (3) The said objections having been taken and insisted in for and on behalf of the said Citizens' Vigilance Association, and said Association having no right or title to appear as objectors to the renewal of pursuer's certificate, the pursuer is entitled to decree in terms of the conclusions of the summons. (4) The actings of the members of, and the proceedings of said Licensing Courts, as condescended on, having been irregular and illegal, and contrary to the principles of reason and justice, the pursuer is entitled to decree as concluded for.”

The defenders pleaded, inter alia—“(2) The pursuer's averments are irrelevant and insufficient to support the conclusions of

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the summons, and the action should accordingly be dismissed.”

On 14th March 1912 the Lord Ordinary ( Skerrington) pronounced this interlocutor—“… Sustains the second plea-in-law stated for the compearing defenders W. F. Russell and others, members of the Licensing Court, other than Sir Archibald M'Innes Shaw and the Clerk of said Court, and the second plea-in-law for W. F. Russell and others, members of the Licensing Appeal Court other than as aforesaid, and the Clerk of said Court: Dismisses the action and decerns.…”

Opinion.—“I have to dispose of a group of fifteen actions of reduction brought at the instance of wine and spirit merchants in Glasgow, who were refused a renewal of their licences for the year from 28th May 1911 by the Licensing Court or the Licensing Appeal Court for the City of Glasgow. In the meantime I shall confine myself to the action at the instance of Mr Goodall, who a few years ago successfully prosecuted a somewhat similar action which is reported as Goodall v. Bilsland, 1909 SC 1152. It appears from the report of that case that on 9th April 1907 the Glasgow Licensing Court granted Mr Goodall a renewal of his licence for a public-house for premises at 68 M'Alpine Street, Glasgow. The renewal was granted in spite of the objections of certain owners or occupiers of property in the neighbourhood who had been induced to sign mandates in favour of a Mr Kyle, authorising him to sign, lodge, and support objections to the renewal of Mr Goodall's licence. Mr Kyle was the paid solicitor of the Citizens' Vigilance Association, one of whose principal objects was to effect a reduction of the number of public-house licences in Glasgow. Mr Kyle appealed to the Licensing Appeal Court on behalf of his nominal clients and obtained a judgment refusing the renewal of Mr Goodall's licence. This latter judgment was set aside by the Court of Session upon the ground that the mandates in his favour did not authorise Mr Kyle to appeal from the Licensing Court to the Appeal Court, and also upon the separate ground that two members of the Appeal Court who voted had been absent from the Bench for a substantial part of the hearing. Mr Goodall's licence was renewed in the years 1908–1910. In the present action he alleges that at the Licensing Court held in April 1911 he was again subjected to opposition nominally at the instance of neighbours who had granted mandates to Mr Kyle, that the Licensing Court on 12th April refused to renew his licence, and that on 9th May the Licensing Appeal Court refused his appeal. He asks for reduction of these judgments.

“I. The first ground of reduction is based upon the alleged actings of the Vigilance Association and of Mr Kyle in promoting and carrying to a successful conclusion the opposition to the renewal of the pursuer's licence. The pursuer's averments as regards this somewhat delicate matter are so framed that they could not be sent to proof as they stand. He has made voluminous averments in condescendences 6–8 as to the usual practice of the Vigilance Association in promoting opposition to licences, while his averments in condescendence 9 as to what the Association actually did in this particular case are wanting in necessary specification. This defect could be easily amended, but I do not invite the pursuer (and the fourteen pursuers of similar actions) to incur the expense of rewriting their pleadings, and of precognoscing a number of witnesses. The pursuer's counsel explained that in the present action his client did not maintain (as he did in the former case, but unsuccessfully on the evidence) that the persons who signed the mandates in favour of Mr Kyle did not understand the meaning and effect of what they were doing. The pursuer's complaint, as explained by his counsel, is that the objections as framed and lodged by Mr Kyle on behalf of the objectors were the objections of the Vigilance Association and of no one else in respect that the nominal objectors had not authorised him to state these particular objections, and did not in their own minds object to the renewal of the pursuer's licence upon the particular grounds stated by Mr Kyle. I find nothing in section 19 of the Act of 1903 which forbids an owner or occupier who objects to having a public-house in his vicinity from instructing his solicitor to search for and allege every objection which can be honestly stated, even though such objection may be unknown to his client. On the other hand, I have great sympathy with the view presented by the pursuer's counsel to the effect that section 19 was designed to protect the interests of individuals, and that it is contrary to the intention of the statute that temperance reformers disguised as neighbours should appear and object to the granting or renewal of particular licences. Such reformers have ample opportunity by way of deputations and otherwise of impressing on the Licensing Magistrates their views on the general temperance question, and particularly their opinion that a certain district is over-licensed. Accordingly, if the question had arisen for the first time, I should have given the pursuer an opportunity of amending his pleadings by alleging with proper specification that the mandates were not intended (as they profess) to constitute Mr Kyle the law agent of the granters, but were intended to cover a secret and illegal assignation in his favour as agent of the Vigilance Association. In other words, they were mandates in rem suam, and were intended to confer upon Mr Kyle an irrevocable right to oppose the pursuer's licence in the interests and for the purposes of the Vigilance Association, and that in return for and in consideration of the expenses incurred and to be incurred by the Association in connection with the opposition. If the proceeding contemplated by the mandates had been an ordinary litigation which was to be carried on in name of the signatories, but in the interest of and by

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the Vigilance Association, these averments would not have affected the competency of the action, but would have been relevant merely to prove that the Association was the dominus litis and responsible for the expenses of a litigation in which it was truly the principal. The Vigilance Association, as assignee, might competently sue in name of its cedents. I should have thought, however, that in a question as to the valid exercise of a statutory privilege conferred upon certain specified classes of persons, the allegation was relevant that the right to object to a licence had been illegally transferred to a third party. I do not read the opinions of the Judges in the former case as expressing any different view of the law, but merely as declining to draw the inference in fact that the mandates were intended to accomplish more than their ostensible purpose-per Lord President, pp. 1165–7, per Lord Ordinary (Johnston), pp. 1173–4. Although, in the words of the Lord President, Mr Kyle ‘acted entirely as if the litigation were his own,’ his Lordship does not say that in his opinion the granters of the mandates so intended. It is, of course, open to the pursuer to ask the Court to draw a different inference from the facts in the present case, but as these facts seem to be substantially the same as in the former case, his prospect of success would probably not justify the expense of amending the record.

“II.—[ The Lord Ordinary here dealt with an objection regarding the Magistrates having received deputations. This was not insisted on in the Inner House.]

“III. The pursuer alleges that the objections to the renewal of his licence, which were framed and lodged by Mr Kyle on behalf of certain neighbours, ‘were not competent or relevant objections within the meaning of section 19 of the statute, and in any event were not competently before the Court, in respect that they were not specific objections to pursuer's licence, but general objections directed against alleged congestion of licensed premises in the district in which the pursuer's premises are situated.’ This ground of reduction resolves into a criticism of the objections on the record, to which the pursuer's counsel proposes to apply a stricter standard of relevancy than is applied now to pleadings in the Court of Session. He pointed out that the first three paragraphs simply go to support the opening statement that ‘There are more licensed premises in the neighbourhood where the said premises are situated than are necessary to meet the requirements of the inhabitants'; while the last paragraph states that ‘In view of the facts above narrated, it is not meet and convenient that this application should be granted.’ Logically there is here a non sequitur, because the pursuer's licensed house might be necessary for the accommodation of the public notwithstanding that the number of licensed houses in its neighbourhood was excessive. But I construe the objections as impliedly stating that the pursuer's licensed house was unnecessary owing to the number of similar houses available in the neighbourhood for the use of the public.

“IV. The next ground of reduction is founded upon the procedure adopted by the Licensing Courts in disposing of the applications for renewals of licences in the Broomielaw district where the pursuer's house is situated. The pursuer alleges that in every case in which no objection had been taken the renewal was immediately granted ‘without exception and without consideration,’ and that the Court reserved for subsequent consideration the applications to which objections, mostly on the ground of congestion, had been lodged. As it may be assumed that the policy of the Magistrates was to diminish the number of licensed houses, the victims of this policy fell, according to the procedure adopted, to be selected not from the whole body of licence-holders in the district, but from a black list of which the Vigilance Association were truly the authors. Further, it was impossible for the Magistrates to ‘exercise a judicial or impartial discretion in disposing of’ these objections without considering at the same time the position and advantages or disadvantages of the whole licensed houses in the district. The pursuer's counsel based his argument principally upon the dicta of Lord Alverstone, C.J., and of Lawrence, J., in Raven v. Southampton Justices, [1904] 1 KB 430. This case was commented upon by the Lord President in Walsh's case ( 7 F. pp. 1019–20), and is certainly not an authority in Scotland. While the dicta referred to are entitled to respect, there is also force in the reasoning of the dissenting Judge, Kennedy, J. I do not need to choose between these conflicting views, because I have no right and no duty to instruct the Licensing Courts as to the way in which they ought to exercise the discretionary powers committed to them by the statute. On this point it is sufficient to refer to the opinion of the Lord President in Walsh's case ( 7 F. pp. 1017–18) and to the authorities there cited. All I need say is that the procedure adopted does not strike me as being unjudicial and capricious. I therefore hold this ground of reduction to be irrelevant.

“The decision in Goodall's case rules all the other cases.…

“I accordingly dismiss all the actions as irrelevant.”

The pursuer reclaimed, and argued—(1) The objections were incompetent. They were really the objections of the Vigilance Association. (2) The general objection that the district was overlicensed was incompetent in the mouth of private objectors on a sound construction of section 19 of the Licensing (Scotland) Act 1903 (3 Edw. VII, cap. 25), and the objection was therefore irrelevant. That this was so was borne out by the terms of section 21. Review by the Court of Session was competent where objectors without a statutory title had been heard by the Licensing Court— Goodall v. Bilsland, 1909 SC 1152, Lord Johnston (Ordinary) at

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1173, 46 S.L.R. 555. The case of Walsh v. Magistrates of Pollokshaws, July 19, 1905, 7 F. 1009, 42 S.L.R. 784, aff. 1907 S.C. (H.L.) 1, 44 S.L.R. 64, was distinguishable because there there was a particular objection to the insanitary nature of the premises (referred to by the Lord President at p. 1018, and by Lord Davey in the House of Lords at p. 4), and the Magistrates were there acting under section 11, and in a ministerial and not in a judicial capacity. (3) When the only objection taken to licences was the general one that the district was overlicensed, the Magistrates were bound to give judicial consideration to all the applications for renewal, and the proper method of coming to a judicial determination as to what licences, if any, ought to be refused was to consider the whole of the licences objected to before giving a decision in any— Raven v. Southampton Justices, [1904] 1 KB 430; Rex v. Howard, [1902] 2 KB 363; Sharp v. Wakefield, [1891] AC 173. Here by at once granting the licences not objected to the Magistrates had accepted the black list selected by the Vigilance Association as a short leet from which to make rejections, and in any case had deprived themselves of the power to consider the licences as a whole. All the licences not objected to might have been more suitable for rejection if they had been considered than the pursuer's.

Argued for the defenders and respondents, the Licensing Court (whose argument was adopted on behalf of the Licensing Appeal Court)—(1) The fact that private objectors allowed the agent of the Vigilance Association to conduct their case did not render these objections incompetent— Goodall v. Bilsland (cit. sup.). (2) Section 19 of the Licensing Act 1903 did not confine the right of private objectors to specific objections, nor did it make general objections by such objectors incompetent. (3) The Magistrates had not proceeded on any black list of the Vigilance Association. They were entitled to grant the licences to which no objection had been taken. That did not preclude them from granting those objected to, and indeed many of those had been granted. Moreover, one applicant was not entitled to be heard on another's application ( Walsh ( cit. sup.), Lord Davey at p. 4), and consequently had no ground of complaint if another's application was disposed of before his was heard. The very fact that the Court had considered together all those objected to showed that it had acted judicially and not arbitrarily.

At advising—