Appellants: Skinner, advocate; Lindsays

Non-participating party - First Respondents

Second Respondents: Blair, advocate; Harper Macleod

28 November 2012

Introduction
[1] Two points arise in this appeal concerning the proper construction of the Gambling Act 2005: first, whether an appeal lodged in a sheriffdom other than that in which the relevant betting premises were situated was a competent appeal; and secondly, whether the appeal was competent although lodged prior to the time-period prescribed by the Act.

The legislation
[2] The Gambling Act 2005 provides inter alia:

"s.164 Grant of application

(1) Where a licensing authority grant an application for a premises licence they shall as soon as is reasonably practicable-

(a) give notice of the grant to -

(i) the applicant,

(ii) the Commission,

(iii) any person who made representations about the application under section 161, ...

(2) A notice under subsection (1)(a)-

(a) must be in the prescribed form,

(b) if the licensing authority have attached a condition to the licence under section 169(1)(a) or excluded under section 169(1)(b) a condition that would otherwise have attached by virtue of section 168, must give the authority's reasons, and

(c) if representations were made about the application under section 161, must give the authority's response to the representations.

(3) In this section "prescribed" means-

(a) in relation to authorities in England and Wales, prescribed by

regulations made by the Secretary of State, and

(b) in relation to authorities in Scotland, prescribed by regulations made by the Scottish Ministers...

s.207 Process

(1) An appeal under section 206 in relation to premises must be instituted-

(a) in the magistrates' court for a local justice area in which the premises are wholly or partly situated,

(b) by notice of appeal given to the designated officer, and

(c) 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...

(5) In relation to premises in Scotland-

(a) subsection (1)(a) shall have effect as if it referred to a sheriff within

whose sheriffdom the premises are wholly or partly situated,

(b) subsection (1)(b) shall not have effect,

(c) the reference in subsection (3) to the magistrates' court shall have effect as a reference to the sheriff, and

(d) the reference in subsection (3) to costs shall have effect as a reference to expenses."

The sequence of events
[3] On 7 February 2012, a licensing board (the first respondents) decided to grant the second respondents a licence for betting premises at 55/57 Glaisnock Street, Cumnock. The board advised parties orally of their decision, and subsequently issued a formal notice of their decision under cover of a letter dated 2 March 2012. Another bookmaker with premises at 2A Glaisnock Street (the appellants) sought to challenge that decision. On 28 February 2012, before receiving the formal notice, they lodged an appeal by way of summary application at Kilmarnock Sheriff Court. That court was selected per incuriam as East Ayrshire Council's headquarters were situated within its jurisdiction and many Council-related appeals were heard there. However Kilmarnock Sheriff Court lies within the Sheriffdom of North Strathclyde, whereas Cumnock (where the relevant betting premises were situated) lies within the Sheriffdom of South Strathclyde, Dumfries and Galloway.

[4] At a hearing before the sheriff, the second respondents contended that the appeal was incompetent as (a) it had been lodged in the wrong sheriffdom, and (b) it had been lodged prior to the 21 days following receipt of notice of the board's decision in terms of section 207(1)(c). The sheriff sustained the first argument, and rejected the second. The appellants appealed to the Court of Session in relation to the first argument. The second respondents cross-appealed in relation to the second.

Submissions for the appellants
[5] Counsel for the appellants accepted that the appeal had been initiated in the wrong sheriffdom. In terms of section 207 of the 2005 Act, the appeal should have been lodged in the sheriffdom of South Strathclyde, Dumfries and Galloway - for example, at Ayr Sheriff Court. However, on the basis of the principles set out in Petch v Gurney [1994] 3 All ER 731 at pages 736 to 738, and R v Secretary of State, ex parte Jayeanthan [2001] 1 WLR 354 at pages 359 to 361 (concerning mandatory and directory provisions) it was reasonable to infer that the purpose of the appeal provisions in the 2005 Act was to specify that appeals should be raised at sheriff court level only. The requirement to raise an appeal in a particular sheriffdom was of lesser importance, and existed simply to provide administrative and geographical convenience. All sheriff courts were to be regarded as parts of one system: Wilson v Hay 1977 SLT (Sh Ct) 52. Moreover there was a mechanism for transferring cases from one sheriff court to another, namely the Sheriff Court Summary Applications Rules 1999. Thus an appeal could be lodged at any sheriff court in Scotland (including, for example, Kirkwall Sheriff Court in Orkney). Parliament was not attempting to ensure that the sheriff had local knowledge, as an appeal could be lodged in quite disparate parts of a particular sheriffdom. Thus within the Sheriffdom of South Strathclyde, Dumfries and Galloway, an appeal could be lodged at various sheriff courts including Dumfries, Stranraer, and Kirkcudbright. A sheriff in Kirkcudbright was unlikely to have local knowledge about Cumnock. Furthermore, the statute simply provided that an appeal was to be "instituted" in a particular sheriffdom, not that it had to be dealt with, or determined, there. There was nothing in the statute to prevent the transfer of the appeal to another court, even to a court outwith the sheriffdom. All those factors suggested that the particular sheriffdom was not crucial. No prejudice had been suffered by anyone. There had been timeous intimation of the grounds on which the board's grant was challenged. The sheriff had therefore erred in holding that the appeal lodged at Kilmarnock Sheriff Court was incompetent.

Submissions for the second respondents
[6] Counsel for the second respondents referred to Jayeanthen, cit sup, Lord Woolf at page 62, and contended that there had not been substantial compliance with the statute. The action had been raised in the wrong sheriffdom. The non-compliance flew in the face of the plain words of the statute, and was not capable of being waived by a court. A court (or a party or an arbiter) without jurisdiction could not confer jurisdiction on itself or himself by waiver (Lamont v Lamont 1939 SC 484). It was not possible to consider what might be equitable, when section 207 laid down such a clear requirement. The statute could have made provision for transfer from one court to another, but it did not. The lodging of an appeal, and the manner in which that was done, was a unitary act. Where primary legislation made strict procedural provisions, secondary legislation (such as the 1999 Rules) could not cut across or override those provisions, unless it could be shown that the secondary legislation had been incorporated into the statute (Graham v John Tullis & Son (Plastics) Ltd (No 1) 1992 SLT 507; WY v Law Society of Scotland 2009 SC 430). That had not been done in the 2005 Act. There was nothing strange about the provisions. The legislation was UK-wide. The sheriff of the area in question was best qualified to deal with it.

[7] As for the cross-appeal and the question of "notice", two points were made. First, Parliament had provided a clear statutory code. The notice prescribed in sections 164 and 207 was no simple intimation or piece of paper: rather, it set out the board's reasoning. It provided a key part of the process, in that it made clear the board's reasons, and acted as a trigger for the lodging of an appeal (in contrast with the 1963 Act where the reasons were issued after an appeal had been lodged). Parliament had created a logical, expeditious system. "Notice" in section 206 referred back to sections 164 and 165, and to the regulations, all of which referred to the prescribed notice acting as a trigger for an appeal. The sheriff had therefore erred in her construction of "notice". Secondly, the appeal in the present case had not been lodged within the time-period prescribed by the statute: section 207(1)(c). A competent appeal could be lodged only within the time-frame specified: cf Petch, cit sup. The notice was an important document containing reasons which the parties had to consider and then, if so advised, lodge an appeal. Rules of court had not been incorporated in the 2005 Act (in contrast to the 1963 Act). There was no power by statute or common law which could be used to overcome the statutory provision. A notice not given in terms of the statutory timetable was simply not given. Questions of prejudice were irrelevant. The cross-appeal should therefore be allowed.

Reply for the appellants
[8] "Notice" was not defined in the Act. It would have been an easy matter for Parliament to provide a definition (if only a definition "written notice"). The word should therefore be given its ordinary meaning. Once a decision had been announced at the hearing, appeals were often lodged before the reasons for the decision were issued. There could be obvious causes for complaint, such as a breach of natural justice. There was no good reason why the unsuccessful party had to await the beginning of the 21-day period before lodging an appeal. Esto the 2005 Act did specify a particular time-frame within which to appeal, failure to comply with it by lodging an appeal earlier did not result in prejudice. The second respondents had known from the outset that an appeal was to be lodged, and the grounds for that appeal. All that section 207 did was to provide a longstop, beyond which an appeal could not be lodged.

Discussion
The sheriffdom
[9] The wording of section 207(1)(a) and (5)(a) of the Gambling Act 2005 is plain:

"An appeal ... in relation to premises must be instituted...in a sheriff [court] within whose sheriffdom the premises are wholly or partly situated."

That wording is in our view mandatory, not directory or permissive (cf Petch v Gurney [1994] 3 All ER 731 at page 736 e-h). While secondary legislation in the form of the Sheriff Court Summary Applications Rules 1999 enables cases to be transferred from any sheriff court in Scotland to any other sheriff court, those rules are not referred to or incorporated in the 2005 Act. We therefore agree with counsel for the second respondents that such secondary legislation cannot affect or qualify primary legislation such as the 2005 Act (Graham v John Tullis & Son (Plastics) Ltd (No 1) 1992 SLT 507; WY v Law Society of Scotland 2009 SC 430). In the result therefore it is our opinion that, on a proper construction of section 207(1)(a) and (5)(a), the appellants' appeal required to be lodged in a sheriff court in the Sheriffdom of South Strathclyde Dumfries and Galloway. The appeal lodged at Kilmarnock Sheriff Court has been lodged in a court which does not have the necessary jurisdiction (cf R v Home Secretary, ex part Jeyeanthan [2001] 1 WLR 354 at page 362C-F). Because of the specific and mandatory wording of the 2005 Act, it is our opinion that such a fundamental lack of jurisdiction cannot be cured by remitting the appeal to another sheriff court in terms of the 1999 Rules. The initial appeal is in our view incompetent and without effect, and the sheriff's decision in that regard cannot be criticised.

The time-frame within which to lodge the appeal
[10] The phrase "notice of the decision" in section 207(1)(c) should, in our opinion, be construed along with section 164. Section 164(2)(a) and (3) provides that notice of the grant of an application must be in a form prescribed by regulations made by the Scottish Ministers. That is the "notice" referred to in section 207(1)(c). Section 207(1)(c) therefore provides that an appeal "must" be instituted within the period of 21 days beginning with the day on which the appellant receives that "notice of the decision". In view of the precise language used (which again we consider, on a proper construction of the statute, to be mandatory rather than directory or permissive), the appeal must be lodged at some time within that 21-day period - that is, neither before, nor after, but during it (cf dicta at paragraph 74 of Mucelli v Government of Albania [2009] 1 WLR 276). In our opinion, Parliament intended that written reasons for the decision should be issued and known to everyone before any party should be entitled to institute an appeal. That appears to us to be a sensible and rational approach which is likely to prevent misconceived, ill-directed, or unnecessary appeals. Accordingly, as the appeal in the present case was lodged prior to the 21-day period, it is in our view incompetent for that reason also. To that extent, therefore, we disagree with the sheriff's decision.

Decision
[11] For the above reasons, the appeal is refused and the cross-appeal allowed. We understand from paragraph 55 of the sheriff's report dated 11 July 2012 that the sheriff's interlocutor of 1 May 2012 should read as follows:

"The sheriff, having heard parties' procurators on pursuer's opposed motion no.7/1 of process, refuses same; thereafter, on motion of the second defender, there being no objection thereto, sustains the second defender's first plea-in-law with respect to jurisdiction and competency, and dismisses the cause with expenses; finds the pursuer liable to the defender in the expenses of the cause as taxed; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report".

On the basis of that wording, we affirm the sheriff's interlocutor of 1 May 2012.