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Jolly v Hamilton DC
(IH (Ex Div)) Court of Session (Inner House, Extra Division)
21 June 1991

Reported

1992 S.L.T. 28
1992 S.C.L.R. 88

Subject: Licensing

Inference: Taxi procedure; opportunity for applicant to make representations; applicant unable to attend when opportunity offered; natural justice.

Abstract: The Civic Government (Scotland) Act 1982 Sch. 1 para. 4, requires a licensing authority to notify an applicant for a licence of the results of any inquiries which they intend to take into account in considering the application, and to give the applicant an opportunity to notify them of his views thereon within a period to be specified. An applicant may be given the opportunity to be heard by the authority.

Para. 18 of the Schedule permits an appeal to the sheriff but only where the appellant has followed all the procedures made available to him for stating his case to the licensing authority. A taxi driver applied to the licensing authority for renewal of his licence. He submitted his application on February 2, 1990 in the appropriate way and prior to the expiry of his then current licence. The applicant then went on holiday but made arrangements for correspondence in connection with the application to be dealt with by his employers.

The authority made certain inquiries and wrote to the applicant on February 15, 1990, giving him eight days to express his views on the matter. The authority were informed of the applicant's absence but refused to allow him an opportunity to make representations on his return, on the ground that no representations could be accepted out of time. The authority subsequently refused the application. The applicant appealed to the sheriff. The authority challenged the competency of the appeal, arguing that the applicant had failed to satisfy the requirements of para. 18. The sheriff repelled the plea to competency and allowed the appeal.

The authority appealed to the Court of Session.

Summary: Held, (affirming the sheriff), (1) that once the licensing authority learned that the statutory mechanism had not achieved its intended purpose they had a duty to consider whether or not in the known circumstances they should afford the applicant a fresh opportunity to present his views, whether in writing or orally; (2) that the authority had failed to exercise their discretion and had acted contrary to the intent of para. 4 and to the rules of natural justice; (3) that it could not be said that procedures had been "made available" to the applicant within para. 18(2); and appeal refused. (National Commercial Bank of Scotland v. Assessor for Fife 1963 S.C. 197, applied.)

Cases Cited

National Commercial Bank of Scotland Ltd v Assessor for Fife, 1963 S.C. 197; 1963 S.L.T. 329 (LVAC)

Legislation Cited

Civic Government (Scotland) Act 1982 s. 4
Civic Government (Scotland) Act 1982 Sch. 1 para. 4
Civic Government (Scotland) Act 1982 Sch. 1 para. 18(2)

History of the Case

Jolly v Hamilton DC, 1990 S.C.L.R. 824 (Sh Ct (South Strathclyde))

Affirmed by
Jolly v Hamilton DC, 1992 S.L.T. 28; 1992 S.C.L.R. 88 (IH (Ex Div))

Case Comments. Human rights; Licensing; Natural justice; Scotland; Taxis. Exhausting remedies. S.L.L.P. 2002, 21, 6,8

United Kingdom Statute 1982 c 45 Sch 1 Para 18

CIVIC GOVERNMENT (SCOTLAND) ACT 1982 CHAPTER 45
SCHEDULE 1 LICENSING--FURTHER PROVISIONS AS TO THE GENERAL SYSTEM
APPEALS

Para 18

(1) Subject to sub-paragraph (2) below, a person who may, under this Schedule, require a licensing authority to give him reasons for their decision may appeal to the sheriff against that decision.

(2) A person shall be entitled to appeal under this paragraph only if he has followed all such procedures under this Schedule for stating his case to the licensing authority as have been made available to him.

(3) A licensing authority may be a party to an appeal under this paragraph.

(4) An appeal under this paragraph shall be made by way of summary application and shall be lodged with the sheriff clerk within 28 days from the date of the decision appealed against.

(5) On good cause being shown, the sheriff may hear an appeal under this paragraph notwithstanding that it was not lodged within the time mentioned in sub-paragraph (4) above.

(6) For the purposes of an appeal under this paragraph, the sheriff may, in the case of a decision of a licensing authority for which reasons have not been given by the authority under paragraph 17 above, require the authority to give reasons for that decision, and the authority shall comply with such a requirement.

(7) The sheriff may uphold an appeal under this paragraph only if he considers that the licensing authority, 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.

(8 In considering an appeal under this paragraph, the sheriff may hear evidence by or on behalf of any party to the appeal.

(9) On upholding an appeal under this paragraph, the sheriff may--
(a) remit the case with the reasons for his decision to the licensing authority for reconsideration of their decision; or
(b) reverse or modify the decision of the authority,
and on remitting a case under sub-sub-paragraph (a) above, the sheriff may--
(i) specify a date by which the reconsideration by the authority must take place;
(ii) modify any procedural steps which otherwise would be required in relation to the matter by or under any enactment (including this Act).

(10) In considering an appeal under this paragraph against suspension of a licence the sheriff may, pending his decision on the appeal, order the recall of any order by the licensing authority under paragraph 11(10) above that the suspension be immediate or of any order made by the authority under paragraph 12 above but he shall not do so unless he is satisfied that all steps which in the circumstances were reasonable have been taken with a view to securing that notice of the appeal and an opportunity of being heard with respect to it have been given to the authority.

(11) The sheriff may include in his decision on an appeal under this paragraph such order as to the expenses of the appeal as he thinks proper.

(12) Any party to an appeal to the sheriff under this paragraph may appeal on a point of law from the sheriff's decision to the Court of Session within 28 days from the date of that decision.