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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Habib v. Central Fife Area Regulation Sub Committee [2008] ScotSC 4 (30 January 2008)
URL: http://www.bailii.org/scot/cases/ScotSC/2008/4.html
Cite as: [2008] ScotSC 4

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Case Reference Number:

B39/07

 

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

 

JUDGMENT OF SHERIFF WILLIAM HOLLIGAN

 

in causa

 

 

PURSUER ABDI HABIB, residing at 19 Dunvegan Avenue, Kirkcaldy, Fife, KY2 5AG

 

 

against

 

DEFENDERS CENTRAL FIFE AREA REGULATION SUB-COMMITTEE, Fife Council, Fife House, North Street, Glenrothes, Fife

 

 

 

 

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 11.00 pm to 2.00 am on certain days of the week.

 

[2] By letter dated 27 December 2006 an application was made by Fife Constabulary ("the police application") to vary the hours of the licence so as to restrict the closing hours on the relevant evenings from 2.00am to 1.00am. The substance of the police application was that the pursuer had been serving food after 2am. The Central Fife Regulation Sub-Committee ("the committee"), being a committee of Fife Council, held a meeting on 10 January 2007 to consider the police application. The decision of the committee was that the existing hours which required closure at 1.00 am on Sunday to Thursday evenings and 2.00am on Friday and Saturday evening, be varied to 1.00 am for each day of the week, all until the expiry of the licence on 31 January 2009. It is against that decision the pursuer now appeals.

 

[3] The appeal proceeded before me on 22 and 29 November 2007. I heard evidence from Mr Farzin Afshar, the pursuer and Harriet Noble. Mrs Walker objected to the hearing of evidence for reasons upon which I will later expand. The appeal had been adjourned on previous occasions because of the ill health of one of the witnesses. The witnesses were now all in attendance. Rather than delay matters further parties agreed that I should hear the evidence subject to competency and relevancy. Mr Afshar gave evidence first owing to ill health. A joint minute of admissions was lodged as was a letter dated 15 February 2007 setting out the reasons for the decision of the committee ("the decision letter").

 

[4] In relation to the procedure before the committee, the committee had before it the police application. It heard from Superintendent Ewing. The pursuer was present. He did not have legal representation. There was no evidence from the police officers who visited the premises on the night in question. The pursuer produced a number of letters from some of his employees: Harriet Noble, Farzin Afshar and Colin Neilson. I note that the decision letter makes reference to certain other material to which I will refer, only to the extent that it appears to be relevant to this appeal.

 

[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 5.00 pm to 1.00 am during weekdays and 2.00 am on Friday and Saturday. The busiest time is from 12.30 am until 2.00 am during the weekend. Customers often come to the premises from the nearby pubs and clubs. Food is generally cooked to order. The pursuer is primarily responsible for the cooking of pizzas. In addition to those serving behind the counter (including the pursuer and two witnesses) there are drivers who deliver telephone orders. At the relevant time, the only access to the premises was from the street. There was a roller shutter for the window on the main street and another for the door. For fire safety reasons, the shutter on the door was not pulled down fully when there were people within the premises. It might be partially pulled down. The usual practice was for cooking to stop 5-10 minutes before closure of the premises. The pursuer used to cook pizzas in advance of closure and customers arriving shortly before closure would have to select a pizza from those already cooked. The ovens took some 20 minutes or so to cool down and they could not be switched off until they had cooled to a particular temperature. They were usually switched off before 2.00 am. The staff were allowed food at or about 2.00 am which they ate in or about the premises. Harriet Noble and Farzin Afshar would usually stand outside the shop at or about 2.00 am to have a cigarette. If they were standing outside and customers approached after 2.00 am they would tell the customers that the premises were closed. The staff would clean the premises in order to be ready for the next day's trading. Uniforms were available but it appears that only Mr Afshar wore the uniform on any regular basis.

 

[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 2.30 am. The police said customers were being served at this time. Both Farzin Afshar and Harriet Nobel said that they were not and that the staff were engaged in cleaning the premises. Harriet Noble and Farzin Afshar said there were no customers in the shop at the point when the police arrived. Farzin Afshar was cleaning the chip pan and Harriet Noble was cleaning the kebab machine. There was a written statement signed by Farzin Afshar. He accepted he had prepared the statement. It was put to him there were certain inconsistencies between that statement and the evidence he was now giving in court, particularly in relation to the presence of a particular driver. I did not consider that the inconsistencies were significant. The pursuer was not in the front premises when the police arrived and he did not see nor speak to the police.

 

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 (Scotland) Act 1982 ("the 1982 Act"). That provision permits the sheriff to uphold an appeal if he considers that the licensing authority, in arriving at their decision, based their decision on any incorrect material fact. Paragraph 18(8) permits the sheriff to hear evidence by or on behalf of any party to the appeal. Paragraph 18(8) replicates similar provisions contained in the Licensing (Scotland) Act 1976 ("the 1976 Act"), as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 ("the 1990 Act"). Prior to the amendments brought about by the 1990 Act, the 1976 Act contained only limited provisions allowing for the hearing of evidence. Mr McDonald referred to the case of Pancham Ltd v City of Glasgow District Licensing Board 1997 SLT(ShCt) 32 which is one of the very few cases dealing with the question of the leading of evidence. Indeed, Mr McDonald went on to say that there seemed to be very little authority dealing with this particular statutory provision. Given that Parliament has given to the court the power to hear evidence it is open to the court to 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(Sh Ct) 3 and "Summary Applications and Suspensions" George Jamieson page 229 on the question of the nature of the appeal before me. On the facts of this case the court can hear evidence and 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(Sh Ct) 75. On the face of it the decision might appear to be helpful but on closer examination it turned very much on its facts.

 

[8] For the defenders, Mrs Walker invited me to refuse the appeal. In the course of her submission Mrs Walker referred me to the following authorities: the 1982 Act; Din v City of Glasgow District Licensing Board 1996 SLT 363; Middleton v Dundee City Council 2001 SLT 287; Ward v City of Dundee Council 1999 SLT 56; Wardie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345; Ranachan v Renfrew District Council 1991 SLT 625; Pancham Ltd v City of Glasgow District Licensing Board ; Art Wells Ltd v Glasgow District Licensing Board 1988 SCLR 289; "Summary Applications and Suspensions" Jamieson page 229; and Carvana v Glasgow Corporation. The committee's power to vary the conditions attached to the licence was contained in paragraph 10 of Schedule 1 to the 1982 Act. In Mrs Walker' submission the court can only look at the decision of the committee and have regard to what was put before the committee. If the committee were not entitled to reach the decision they did on the basis of the information put before them the court could overturn the decision but not otherwise. Mrs Walker maintained her opposition to the leading of evidence. Mrs Walker agreed there was very little authority dealing with when evidence may be admitted. She agreed that the case of Pancham Ltd was of very limited assistance. The sole ground of appeal now insisted upon is contained in paragraph 18(7)(b). The pursuer represented himself. The police officers who actually entered the shop did not give evidence. The Superintendent did give evidence as to what he said happened, to which the pursuer made no objection. The letters from the employees submitted by the pursuer were before the committee. There was evidence concerning the preparation of food outwith the relevant hours. The police application was the trigger bringing the matter before the committee. It was therefore up to the committee to make their enquiry. There was no suggestion that the hearing was in any way unfair. In its decision letter the committee narrated in paragraph 2 on page 1 the material before them and the reasoning was properly set out at paragraph 4 of page 2. So far as any incorrect material fact was concerned, the committee reached the view that the pursuer was trading when he should not have been. The committee had before them evidence of five other incidents. It was a matter for the committee. Mrs Walker referred to Art Wells Ltd, particularly at page 297. There was evidence that there were people standing outside the shop and within, consuming food. The pursuer offered an explanation. The committee drew the inference that the pursuer was trading outwith the relevant hours. The outcome would have been no different as to whether it was a finding in fact or an inference (see again Art Wells). It was a reasonable inference given the time, some 45 minutes after the shop was supposed to close. The pursuer had said that those consuming food were staff members which means that there was no one cleaning. In determining whether or not to hear evidence in relation to an argument based upon an incorrect material fact, the first step is to look at the reasons given by the committee. Whereas the defenders did not say there could never be situations in which evidence could be led, if the pursuer was right about his construction of this legislation then there would always be grounds for a re-hearing. The correct approach was that one should look at the reasons given by the committee. The appellant would then need to show that there was prima facie an incorrect material fact and only then would there be any justification for the hearing of evidence. Mrs Walker gave the example of a gambling licence where a board has decided that there are six shops within the locality where in fact there are only three. In those circumstances, there would be a justification for an evidential hearing. An appeal under paragraph 18 is not a re-hearing. The court can only look at what was placed before the committee. In Mrs Walker's submission it is not an "open appeal" as that expression was used by Mr Jamieson at page 229. In short, Carvana was not correctly decided or not applicable. If the court was minded to allow the appeal there would be no purpose in having the matter sent back. The court should make its own decision.

 

[9] By way of reply, Mr McDonald said this was not a case of inference. It is a case in which the primary facts were in dispute. That fact was whether customers were being served in the shop outwith the relevant hours.

 

[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.


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