![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Scottish Sheriff Court Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Habib v. Central Fife Area Regulation Sub Committee [2008] ScotSC 4 (30 January 2008) URL: https://www.bailii.org/scot/cases/ScotSC/2008/4.html Cite as: [2008] ScotSC 4 |
[New search]
[Context]
[Printable version]
[Help]
Case Reference Number: |
B39/07 |
in causa
PURSUER ABDI HABIB, residing at
against
DEFENDERS
Kirkcaldy 30 January 2008. The
sheriff, having resumed consideration of the cause, SUSTAINS the defenders'
objection to the leading of evidence; SUSTAINS
the defenders' third plea in law; repels the pursuer's pleas in law; REFUSES the appeal; FINDS the pursuer liable to the defenders in
the expenses of the action; ALLOWS an account thereof to be given in and Remits
the same when lodged to the Auditor of Court to tax and report.
NOTE
[1] This matter concerns a
late hours catering licence ("the licence") which the pursuer holds in relation
to premises known as Bar-B-Q King, 31 Whytescauseway,
Kirkcaldy ("the premises"). The licence
permits the pursuer to trade between the hours of
[2] By letter dated
[3] The appeal proceeded
before me on 22 and
[5] Much of the evidence of
the witnesses was not in dispute. Food
is served from the premises: pizzas;
burgers and chips; kebabs. These food
items require various cooking appliances.
The core trading hours of the premises are
[6] Farzin Afshar and Harriet Noble
were working on the night of 9/10 December 2006. Both were present when the police
called. Harriet Noble said the
police arrived some time after
Submissions for
the parties
[7] For the pursuer,
Mr McDonald stated that the appeal proceeded pursuant to
paragraph 18(7)(b) of the Civic Government (review
the facts. In Pancham Ltd, the sheriff did not admit
the evidence but it was clear that it was unnecessary for the sheriff to apply
his mind to that particular point.
Mr McDonald also referred to Carvana
v Glasgow Corporation 1976 SLT(
review
the decision of the committee and if the committee have got
their facts wrong then the court could allow the appeal. The evidential provision contained in
paragraph 18(8) is a safeguard. In
the hearing before the committee three letters were produced. The committee came to a view on their
interpretation of the facts. The
committee were at liberty to decide how they dealt with evidence but where they
have come to a wrong decision then the terms of the legislation allows the
court to correct any error they have made.
In this case the evidence was both relevant and competent. The evidence
from the witnesses was that the premises were not trading outwith the permitted
hours. I should accept this evidence and uphold the appeal. Mr McDonald also made reference to the
case of Donald v Stirling District Licensing Board 1992 SLT(
[10] Both parties were agreed
that expenses should follow success.
Decision
[11] The starting point in this matter is the 1982 Act itself. The relevant parts of Paragraph 18 of
Schedule 1 provide:-
"18 (1) .......... a
person .......... may appeal to the sheriff against [the committee's] decision.
18 (7) The sheriff may uphold an appeal .......... only if
he considers that the [committee], in arriving at their decision -
(a) erred in law;
(b) based their decision on any
incorrect material fact;
(c) acted contrary to natural
justice; or
(d) exercised their discretion in
an unreasonable manner.
18 (8) In considering an appeal...the sheriff may hear
evidence by or on behalf of any party to the appeal."
[12] Paragraph 18 (8) says the sheriff "may" hear
evidence. The use of the word
"may" suggests a discretion and that the leading of evidence is not
an unqualified right. In order to answer
the question, in what circumstances may evidence be led, it is necessary to
look more closely into the nature of the appeal itself. As Mr
Jamieson points out in the paragraphs in his book to which I was referred, the
nature of an appeal varies. Some appeals
he describes as "open" appeals and others as "judicial
review
" appeals. In general,
appeals range from a full examination of all relevant material and the making
of a decision based on that material, to examination of the legality of the
decision rather than the merits of the matter itself. Paragraph 18(1) states
that a party may "appeal" to the sheriff without saying, in terms,
what the nature of the appeal is. Mr
Jamieson refers to the decision of Sheriff MacPhail in the case of Carvana v Glasgow Corporation. In that case Sheriff MacPhail held that an
appeal under the Glasgow Consolidation (General Powers) Order Confirmation Act
1960 was by way of a rehearing. However the legislation with which I am dealing
is different from that considered by Sheriff Macphail. In my respectful view, the case is helpful in
identifying some of the relevant features which distinguish one category of
appeal from another. In the present
case, the grounds of
review
are set out in paragraph 18 (7) and they are limited.
The sheriff may uphold the appeal
"only" if he considers that one or more of the enumerated grounds are
set out. It seems to me that the grounds
of appeal have greater similarities to the grounds upon which a petition for
judicial review
might be presented than an appeal upon which the whole merits
are re-examined in another forum.
[13] I return to the point Mr McDonald made comparing the provisions of
paragraph 18(8) with similar provisions in the 1976 Act. In fact the terms of section 39(5) are identical
to those in paragraph 18(8). As Mr McDonald
said, that was not always so. As
originally enacted, section 39(5) limited the leading of evidence to cases
based upon appeals where the decision was made upon an incorrect material fact
(section 39(4)(2)(b)). That restriction
clearly had consequences (Tennant Caledonian
Breweries Ltd v City of Aberdeen Licensing Board 1987 SLT (Sh Ct) 2). The section was amended by paragraph 11(3) of Schedule 8 to the
1990 Act. The result of the amendment is
that both section 39(5) and paragraph 18(8) are in the same terms. Both give discretion to the sheriff to hear
evidence. However the discretion is prefaced by the words "In considering
an appeal...". In my opinion, the
evidence must relate to one of the grounds of appeal, in this case, set out in
paragraph 18(7). It is not a general
right to lead evidence but a right which must be relevant to a particular
ground of appeal.
[14] Mr McDonald's argument is
founded upon an "incorrect material fact" which is, read short, that
the premises were open for business outwith permitted hours when, in fact, it
is said they were not. As paragraph
18(7) makes clear there must not only be a material fact but the committee must
have arrived at their decision on the basis of that fact. I do not think it was a matter of dispute
that whether the premises were open at the relevant time was anything other
than a material fact for the committee in arriving at their decision. However, it is helpful to look more closely
at the elements of a decision. Some
decisions are really matters of judgement
.
For example, a conclusion that a person is not a fit and proper person
to hold a licence is based upon an assessment of relevant material which leads
to a particular
judgement
that a person is, or is not, fit to hold a licence. In reaching the conclusion, a committee may
rely upon a fact which is both wrong and material. If the fact that it is wrong is not accepted,
without paragraph 18(8) it is difficult to see how the error could be
established. In some of the authorities
to which I was referred it is clear that the sheriff cannot substitute his own
judgement
for that of a committee or board. There is a distinction between
facts upon which a
judgement
is made and the
judgement
itself. The former can be corrected if the facts are
wrong, the latter is not so easily disturbed.
Having said that, a conclusion as to what is a fact and what is not, is
not always straight forward. In the absence
of admission, a fact must be proved. Evidence
is led to prove the existence of a fact. Notwithstanding that a tribunal of
fact determines factual issues on the balance of probabilities, once it has
done so, it will make what it describes as a finding in fact. Making the finding in fact may involve the
assessment of documentary and oral evidence and the credibility and reliability
of witnesses. The result is a finding in
fact but the process involves
judgement, particularly where the evidence of
witnesses is concerned. It seems to me
that what Mr McDonald invites me to do is not to deal with an incorrect
material fact which appears in the decision but to rehear the case and reach my
own view on the material before me, material which was not before the
committee. I agree with Mrs Walker when she
says that if Mr McDonald is correct then there would always be grounds for a
rehearing. In this case the sole ground
of appeal is that the decision was based upon an incorrect material fact namely
that the premises were not open for business outwith the permitted hours. This is not a case of an element of the
fact-finding process being both incorrect and material but the decision
itself. The committee had before them
material upon which they were entitled to form a view. They heard from the
police superintendent and the pursuer and they also considered the written material
from some of the witnesses who gave evidence before me. They then proceeded to
reach a conclusion. It was not suggested
that the committee were not entitled to reach the view they did, rather that they
ought not to have reached that conclusion.
Nor was it suggested that the proceedings were in any way unfair. I do not consider that the evidence truly
relates to an incorrect material fact before the committee but rather that the
events themselves were otherwise than as the committee decided. In my opinion,
the committee were entitled to reach a conclusion upon the basis of the
material before them; it was for the committee to assess the material before
them. I do not consider the paragraph
18(7)(b) permits the pursuer, in effect,
to re-litigate the whole matter before me.
[15] I have recorded the
substance of the evidence led before me earlier in this judgment.I have
considered whether I ought to express any views on the evidence of the witnesses,
notwithstanding the conclusion I have reached.
Although the witnesses were cross-examined there was no evidence to
contradict what the witnesses said. The
police officers who made a visit to the premises did not give evidence, either
before the committee nor me. There is thus no contradictor to assist in
determining the credibility and reliability of the witnesses. I find it
difficult to express a view without there being any method by which the
evidence can be tested.
[16] For the reasons I have given
I shall therefore sustain the defenders' objection to the leading of evidence.
Absent such evidence the appeal must fail. As the defenders have been
successful they are entitled to their expenses.