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Cite as: 1909 1 SLT 376, 1909 SC 1152,  ScotCS CSIH_3
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19 March 1909
The Lord Ordinary has granted decree of reduction, and he has granted decree upon each and all of three separate grounds, the first ground being that for want of authority there really were no true proceedings in the Appeal Court at all, because, although proceedings were carried on in the name of parties who under the Act of Parliament had a right to carry on these proceedings, his Lordship holds that those parties never gave their authority, and that what was done for them was done by the paid agent of a voluntary society who are not given a title by the Act of Parliament to appear as objectors.
The second ground upon which the Lord Ordinary has reduced the proceedings is that several of the members of the Court who sat and adjudicated upon this occasion were members of this very Society—the Society which was directing the proceedings—and that accordingly the judgment for this reason was vitiated.
The third ground upon which his Lordship has also held that the proceedings were bad is that there being an inquiry before the Court of Appeal, conducted by means of witnesses, two at least of the members of the Court were absent during a large portion of the progress of the case, and then none the less proceeded to give judgment without having heard a good deal of the testimony that had been led.
I shall take each of those matters in their order. As regards the first, the facts which give rise to the contention are these: There is a society called the Vigilance Society which, in its documents of constitution, professes to be for the promotion of temperance, the suppression of drunkenness—I am not actually quoting, I am glossing the words—the due enforcement and proper observance in every sense of the licensing laws, and, in fine, the good government of the city of Glasgow. From the proof that has been led in this case it is quite evident that the Society is purely a society, in its action, for dealing with licensing matters in the interests of what it denominates the temperance cause. Now, I am not going for one moment into controversial matters of opinion. Persons are entitled to their own views upon this matter, just as other persons are entitled to views which differ. There is nothing illegal in persons thinking that the more you reduce licences the more you promote the cause of temperance. There is nothing illegal in thinking that the mere reducing of licences will have little effect in promoting the cause of temperance. There is nothing illegal in a set of people banding themselves together with a view to promote their views, and there is nothing illegal in their assisting by money contributions those litigants, if I may use the word—it is not precisely accurate, but it does well enough to express what I mean—to assist litigants who are appearing before the Licensing Courts and Appeal Courts as objectors to licences, assisting them with funds to carry on their cases. Accordingly, this Society did so.
Under the Act of Parliament, I need scarcely remind your Lordships, no general society has any title to appear directly. The title to object to licences is confined under the Act to certain specified people, one class of whom are people who live in the immediate vicinity of the premises for which a licence is sought. And accordingly one of the methods of this Society was that when a licence was applied for, whether it was a new licence or whether it was merely a renewal of an old licence, they sent out canvassers who sought in the immediate neighbourhood for persons who would be ready to object, and then, if they found such persons, they represented to them that if they would give them their names the Society would, if I may use the expression, see them through in the matter of expense.
More than that, once that was done it was quite evident that the whole conduct of the case, if I may so call it, was left entirely in the hands of the agent of the Society, who appeared in all or nearly all of such cases, who selected his witnesses, conducted the case, withdrew the case if he thought fit without consulting his clients, and indeed acted entirely as if the litigation were his own.
Now, in all of this there is nothing that I see illegal. But, at the same time, it is quite clear that if persons act in that way they must be careful to go precisely according to the lines of the Act of Parliament under which the proceedings are being taken, that is to say, they cannot by these means create in themselves a title which the Act of Parliament has not given them. Now, in the licences in question, which are dealt with by these cases, the practice followed was this: The agent for the Society sent out his emissaries, and found out a certain number of people who wished to object to the licences, and I am not for one moment questioning that these persons who wished to object were perfectly bona fide in doing so. He then proceeded to get a mandate, and the mandate—there is more than one in the case, but they are all in the same terms—was in this form:—“To Robert Kyle, Esq., writer”—(Robert Kyle being the paid agent of the Society)—“We hereby authorise you to sign and lodge on our behalf Objections to the granting of the Certificate for Licence for a public-house applied for by Alexander Goodall for premises at 68 M'Alpine Street at the forthcoming Licensing Court of the City and Royal Burgh of Glasgow, and to appear on our behalf in support of said objections.”
Accordingly, Mr Kyle did appear. He framed the objections for the parties. He arranged, as I say, about the whole of the witnesses, and he conducted the case. In all that, I think, he was entirely authorised by the terms of the mandate which I have just read. But the Licensing Court sat, and it granted the licence. Whereupon, acting upon the idea (which I do not doubt was in good faith too) that this mandate which I have just read covered not only proceedings at the Licensing Court but also proceedings at the Appeal Court, Mr Kyle, at his own hand, put in, in name of one or more of these objectors, a note of appeal to the Appeal Court. He then at the Appeal Court behaved in precisely the same way. An objection was made at the Appeal Court to Mr Kyle's appearance upon the ground that he was not a party at all, but that he was a mere creature of the Association. This mandate was produced, and the Appeal Court decided that they could not hear any more upon the matter. Proceedings went on, and the result was that the Appeal Court reversed the determination of the Licensing Court and refused the licence, and it is for reduction of that proceeding that this action is brought.
Now, the first question therefore that arises is—What is the true construction of this mandate? I cannot say that I have had any difficulty in coming to the conclusion that the mandate must be construed according to its own terms, and that the Licensing Court is the Licensing Court, and not the Appeal Court. I need not go through the Act to your Lordships, but all through there is no question that the Licensing Court and the Appeal Court are spoken of as different things. There is not the slightest confusion between the two. Nor is the one a branch of the other. The proceedings in the one are perfectly independent of the other. Even the meaning of the word “appeal” as there used is different from the ordinary sense of the term, such as, for instance, an appeal from the Sheriff Court to this Court, or an appeal taken from the Outer-House to the Inner-House by means of a reclaiming note, because there, of course, the Appeal Court deals with the material that has been before the Court below. But here there is no such thing. The case, in the strict sense of the word, is really not appealed; it is really reheard, and witnesses are examined again, and the whole thing begins de novo. And, accordingly, all through the statute there is never the slightest confusion between the one Court and the other.
Now, that being so, I agree with the Lord Ordinary that this was a mandate which, upon its terms, limited Mr Kyle's authority—I will not say limited, but never gave Mr Kyle authority—to do more than appear at the Licensing Court, and that, consequently, when he lodged an appeal in these parties' names, he did an entirely unauthorised act.
Well, now, what is the result of that? I think the result is that there were in law no proceedings at all, because what the Act says is this: After providing in the earlier sections for the way in which a Licensing Court is to be assembled and to listen to the applications and objections which are made—I need not remind your Lordships that every licence is a yearly matter, whether it is a new licence or a renewal of an old licence—section 22 says this: “If any member of a Licensing Court, or proprietor or occupier of any house and premises in respect whereof any such certificate shall be applied for”—now that is not in point in this case—“or if any proprietor or occupier of property in the neighbourhood of such house, who has objected before the Licensing Court to the granting or renewal of any such certificate, shall be dissatisfied with any proceeding of any Licensing Court assembled for granting certificates as aforesaid, whether in granting or refusing or otherwise disposing of any such application, it shall be lawful to such member of the Licensing Court, proprietor, or occupier, to appeal therefrom to the next Court of Appeal from such Licensing Court: Provided always that such appeal shall be lodged with the clerk to such Court of Appeal within ten days after such proceeding. …” Now, it is certain that within ten days of such proceeding there was no note of appeal lodged by the only persons qualified, namely the persons whom I have just mentioned.
Some of these persons, having objected, would have been qualified to lodge a note of appeal, but they did not do so, and the only thing that was done was that a note of appeal was lodged for them by an unauthorised person, Mr Kyle.
Now, that he was unauthorised there is no doubt, because he is asked about this. He says so quite frankly himself. He is asked this question:—“Before obtaining the mandate which purported to be signed by certain objectors, had you any communication, from beginning to end of the proceedings, with your alleged clients, either written or verbal?” And his answer is:—“I saw the objectors in Goodall's case at the Court, and I had a conversation with them. I am referring to the Appeal Court. I think that until that date I had never seen any of them.” Accordingly, the first interview he had with his clients was actually when the Appeal Court was going on. That, of course, was long after the ten days, and therefore you have it out of his own mouth that he never saw any of them, that consequently the question of verbal authorisation is out of the question, and that really his only authority was his mandate. I do not doubt that Mr Kyle had, in good faith, not adverted to the terms of his own mandate, and really thought it did authorise him to appear in the two Courts. But if it did not, it leaves him bereft of authority when he puts in that application.
Now, it is said, and it was argued very strenuously, that although Mr Kyle had no authority when he lodged the appeal his proceedings were homologated afterwards. Now, it is first of all necessary to see exactly what homologation in this case means. Homologation in this case means that, after the whole thing was over and when this case of reduction was raised, then the parties in whose names the appeal was taken are asked, in the action of reduction, whether they approved of everything that Mr Kyle did, and they said, “Oh, certainly we do.” Well, that is homologation of a very easy character. It is homologation—I am afraid it is not a very judicial expression, but it expresses it better than any other phrase—of “the heads I win tails you lose” character, because it is homologation after you perfectly well know that the case has been decided in your favour.
We had a great deal of argument as to the different circumstances in which homologation might arise, and the case was said to be assimilated to what is done in litigations. I do not think that those supposed analogies give one very much help. Of course, one knows perfectly well that an agent who is conducting a litigation for a client in, say, the Court of Session, does not go back to the client to get authority for each particular step in the litigation, as, for example, for each minute that is put in. In the Court of Session, in truth, there is very little difficulty upon the subject. But, I think, the very brocard that I am going to use shews that the view is that authority is always necessary—the brocard, I mean, that the counsel's gown covers his mandate. And the meaning of that brocard, I take it, is this, that once you have started a litigation in the Court of Session, whether as pursuer or defender, and instructed counsel, the very instruction of counsel would be held, as in law, a mandate for that counsel to take all ordinary steps in the progress of the case. And, accordingly, this question of authority—and consequently in default of authority homologation—really seems to me never to arise in the course of an ordinary litigation. It would be possible for such a case to be raised as upon questions coming from the Sheriff Court to the Court of Session. I think it will be time to decide those cases when they arise. No such cases have been decided so far. And therefore I do not think there is any standard to appeal to by way of analogy on this point.
Accordingly, my opinion is that, although a society of this sort is, as I say, quite entitled to assist people if they choose, if they really take upon themselves to do so they must see that they walk by the card. It seems to me that the gentleman here who got his licence was entitled to hold that licence unless within the ten days a note of appeal was lodged by a person authorised to lodge that note of appeal; that no such person was here in this case; and that consequently the whole proceedings were funditus null and void.
Now, as regards the second question. That is a question which one can easily see in the course of the proof developed a great deal of heat. The Lord Ordinary has found that several of the gentlemen composing the Court were disqualified. My own view is that that view of the case fails, because I do not think it is, as a matter of fact, proved that the gentlemen in question were actually members of the Society. There is nothing proved against them at all, except that it is proved that one of them in one case directly, and another of them in another case, through the medium of a firm of which he was a partner, gave a subscription to the funds of this Society. Now, I am not prepared to hold that every one who gives a subscription to the funds of a society becomes a member of that society. I should think it would very much astonish anybody who had ever given anything to the Salvation Army to find that he was a member of the Salvation Army; and there are many other cases which one may call to mind. And, of course, if that is so, that ends it. But I should like to say, as the matter has been discussed in the long and very careful note of the Lord Ordinary, that even if they had been members I should wish to reserve my judgment as to whether that would vitiate the proceedings. To my mind there is a very great distinction between being a mere member and being one of the operating officials of the Society. In other words, taking the facts as established in the proof, I have no doubt whatsoever that Bailie Battersby was truly disqualified, and never ought to have sat in the Court at all, and that he was most rightly interdicted by my brother
Lord Salvesen, because he was the organising secretary of the Society, and it is contrary to the idea of elementary justice that a man should get up cases and then proceed to adjudicate upon these cases upon the Bench. But it is a very different thing when you have a member of the Society who may not have anything to do with the practical campaign that is going on, and whose membership of the Society may really mean no more than this, that he is in sympathy with the general objects of the Society, but has not got any control over the particular things that the Society is doing, and, in particular, no control over the case that is going on. And, therefore, I must not be held as necessarily agreeing with the conclusion at which the Lord Ordinary has arrived, even if I were of opinion, which I am not, that these gentlemen were members of the Society.
Well, now, I come to the last point, and it, to my mind, is the only really important point in this case, because, as I say, the other things I do not think will occur again. This last point, however, is important, because it goes to the way in which these Appeal Courts are to be conducted. The Court is not, of course, a properly judicial body. The expression “Court” does not turn it into anything else than what it was before, namely, a licensing tribunal. None the less, of course, parties who are there have got to conduct matters in a judicial way, and not against all rules of judicial fairness. They are not in the same position, for instance, as Judges in a Court like this, because they are entitled to do what we are not entitled to do, namely, to please themselves in the matter of proof and supplement a defect of proof by their own local knowledge obtained in any manner whatsoever. They may go and look at things for themselves. They may find out things for themselves. We cannot do that. We are not entitled to go and investigate, for instance, a machine, and come to a conclusion by ourselves, apart from the witnesses, as to whether it was in a wrong state or whether it was not. They are entitled to do anything that is analogous to that. But none the less they are bound to exercise their office in a judicial spirit. And one of the things that is necessary for the judicial spirit is that you should hear the witnesses and hear the people who speak before you, and that, if you do not, you should not presume to give judgment. What would be said of a Judge who proceeded to give judgment in a case which he had never heard? And the person who is absent for a considerable portion of the evidence is just in the position of a person who has not heard the case. Of course, all this must be regarded from a common sense point of view. De minimis non curat lex. No one supposes that if one were out of the room for a minute, or two minutes, that the judgment to which he contributed would be vitiated by that fact. But here the absence was very considerable. With one of the gentlemen it was absence during the whole examination of the witnesses on one side; with another, it was not quite so much, but it was absence for a considerable time.
Well, now, I think it must go forth that in these Courts that must not be done. If gentlemen happen to be late with their trains, or anything of that sort, the remedy is exceedingly simple. It is only for the particular case which is going on, and in that case if they have been absent they must say that they decline to vote; and, if they do that, nobody will think that their mere presence in the Court beside their brethren will vitiate the determination to which these brethren come. But if they vote, and take part, consequently, in the total deliberation of the Court, then I am clearly of opinion that it does vitiate the whole proceedings, and that you cannot simply knock off these votes, and say the result would have been the same even if they had not voted. That, I think, is elementary, and goes upon the ground which has been held again and again, that, if one of the Judges is disqualified for a reason, say, of interest or relationship or so on, and takes part in the decision, he vitiates the whole decision, and does not merely disqualify his own vote, and for this very good reason that, in the deliberations of Judges, whoever they are, one Judge's view may have an effect upon another. Accordingly, upon this part of the case, I agree with the Lord Ordinary, and I hope it will serve as a rule for the future conduct of these cases, and that if people cannot be there during the time the witness is being examined and the case is debated, then they must refrain from voting upon that occasion.
Accordingly, upon the whole matter, my conclusion is that the reclaiming note should be refused, and the Lord Ordinary's judgment adhered to.
The Lord Ordinary's first ground of judgment is that the appeals against the renewal of the pursuers' certificates were not authorised by the parties in whose names they were presented, and therefore that there were no competent appeals before the Court. This question depends in the first instance on a construction of the mandate signed by the objectors in favour of Mr Kyle, for Mr Kyle had no other communication from these persons. In my opinion the mandate is not reasonably open to two interpretations. According to its terms it authorised the mandatory to sign and lodge, on behalf of the signatories, objections to the granting of the certificate of certain licences “at the forthcoming Licensing Court”; and to appear on their behalf in support of said objections. That was a limited mandate applicable to the Licensing Court only; and upon no fair construction can it be held to have authorised Mr Kyle to lodge an appeal against the granting of a certificate to an entirely different Court, which is described in the statute which now regulates the matter as the “Court of Appeal,” as distinguished from the Licensing Court, a distinction with which Mr Kyle, who drafted the mandate, was perfectly familiar. It was strenuously urged that the last words—“to appear on our behalf in support of said objections”—are absolutely general, and authorised Mr Kyle to lodge an appeal, and to appear at the Appeal Court. In my opinion, the apparent generality is controlled by the context; and I think it is almost too clear for argument that if the question had arisen between Mr Kyle and the objectors as to their liability for the expenses of the appeal, the mandate would have been conclusive against such liability.
It was said that the evidence of the objectors made it plain that they were all along quite willing that Mr Kyle should take any action that he thought fit in order to get the licences to which objections were lodged discontinued. I daresay they were, and that they might have given the necessary authority if they had been asked; but an intention which was never disclosed cannot, in my opinion, be appealed to as enlarging the scope of a written mandate; and I find no trace in the evidence of any of the objectors that the possibility of an appeal, in the event of their objections being unsuccessful in the Licensing Court, was ever present to their minds when they signed the mandate. Indeed, the fact appears to be that the objectors had scarcely any intelligent idea as to the meaning of the mandate which they signed, except that they understood in a vague way that it was essential to secure the removal of the licences to which some of them, at all events, had a genuine objection. It is unnecessary to consider whether a mandate obtained as this one was from persons who did not fully understand what it meant would have been a good mandate for Mr Kyle's appearance even in the Licensing Court, because his appearance there did not result in the licence being refused. Everyone of the objectors disclaimed the idea that he desired to make any attack upon the character or fitness of the licenceholder; and yet this was one of the objections which Mr Kyle took in pursuance of the mandate. I would only say on this part of the case that I disapprove of a mandate being obtained from persons entirely unacquainted with legal procedure without their having had fully explained to them the meaning and effect of the document they signed.
The statute provides that proprietors or occupiers of property in the neighbourhood of a licensed house who have objected before the Licensing Court to the granting or renewal of a certificate shall be entitled to appeal, provided that the appeal be lodged within ten days, and that the appellant shall find caution for expenses. An appeal in the names of the objectors was accordingly lodged by Mr Kyle, but it is now admitted that the appeal was lodged without communication with his supposed clients, none of whom seems to have known what was the result of the application to the Licensing Court. In my opinion this appeal was not a compliance with section 22 of the statute. Mr Kyle stated on behalf of the objectors that they were dissatisfied with the proceedings of the Licensing Court, and that they appealed therefrom. He had no warrant for making such statements. He might indeed believe that the persons who had authorised objections to a licence would in all probability not object to a further attempt being made to have the licence withdrawn; but if in his note of appeal he had stated the true facts it is plain that the appeal would not have been competently entertained. His duty was to have communicated with the objectors and obtained their authority to lodge the appeal, and the only reason why he did not take that step is that his true clients were the Citizens' Vigilance Association, from whom alone he took his instructions; and that the objectors' names were simply used because the Association had no locus standi of its own.
It was further urged that, assuming the appeal was not authorised either by the written mandate or by any larger verbal mandate previously given, Mr Kyle's action in taking it might be subsequently ratified by the persons in whose names it was presented, and that in point of fact they did so ratify it. I do not doubt that if within the appealing days Mr Kyle had obtained the objectors' authority to proceed with the appeal—which he had lodged without authority—such ratification would have met the initial defect; but it is a totally different proposition that a ratification long after the time for appealing has expired will draw back to the date of the unauthorised act as in a question with third parties. We are not concerned here with questions as between the principal and the agent; because as between these parties it does not, so far as I see, matter how long after the unauthorised act the ratification was obtained; but where the element of a time limit and the interests of third parties enter into the question totally different considerations may apply.
As regards the facts I do not think it is proved that Mr Kyle had any communication with his alleged clients prior to the decision of the Appeal Court. Some of them were cited as witnesses to attend that Court, but they were so cited at the instance of the agent for the licence-holder, and were never present in Court before the judgment was delivered. To say that because they were so cited they must have known of the appeal in their names, and must have approved of that appeal because they did not appear and disclaim it, is, I think, preposterous. No doubt they now say that they approved of all that Mr Kyle did, but it does not at all follow that their attitude would have been the same while the matter was still in dubio. In my opinion it is, however, unnecessary to go into questions of this kind, because I hold that such a ratification could never draw back so as to validate the originally unauthorised act after the time fixed by the statute for appealing had expired. I do not hesitate to say that an appeal lodged by a person who has no locus standi to appeal at all is a nullity, and it is made no better by the fact that that person falsely represents that the appeal is lodged by the instructions of others who had such a locus. Any other view would open wide the door to great abuse. A person who for his own reasons desired to get rid of a licence would only have to lodge objections in the names of a sufficient number of persons residing in the locality, and when the mandate was challenged, to prevail upon some one of them to express his approval of what he had done. There is sufficient laxity already in the conduct of cases in the Licensing Courts, and I see no reason why we should encourage greater laxity than at present exists, or dispense in any way with strict compliance with the statutory procedure. The number and character of the names attached to a note of objections must always exercise an influence upon the Court, and I think the Court has a right to assume that all these persons have duly authorised the proceedings to which their names are attached.
The cases cited by the reclaimers with one exception appear to me to present no difficulty whatever. They may be explained either on the footing that the agent acted with the implied authority of his client, or that he in fact had a general authority to act as he did. The exception is the English case of Bolton Partners v. Lambert . In that case an offer of purchase was made by the defendant to a person who was the agent of the plaintiffs, but was not authorised to make any contract for sale. The offer was accepted by the agent, but the defendant withdrew his offer, and it was only after this withdrawal that the plaintiffs ratified the acceptance of their agent. It was held that the ratification related back to the acceptance, and that therefore the withdrawal by the defendant was inoperative. It is unnecessary to consider whether that decision was right, although it was pointed out that it had been seriously questioned in a subsequent case in the Privy Council—Fleming. There are grounds on which it may be supported, more especially as the reason of the defendant's withdrawal of his offer did not proceed upon his knowledge that the agent who accepted it was unauthorised, but I do not think it is applicable to the present case. To use the words of Lord Selborne in Lyell v. Kennedy, there was here
“a jus tertii complete before ratification, as there was in Lord Audley v. Pollard and Bird v. Brown .” These cases are said by Lord Selborne to be good law, and if so, they have a direct application to the facts of the present case, although they have no application to a question between the self-constituted agent and the ratifying principal. I accordingly reach the conclusion that on this point also the reclaimers' argument fails.
If I am right so far, it is unnecessary to consider the other questions with which the Lord Ordinary has dealt, for if the appeal taken in name of the objecting owners and occupiers was a nullity, the grant of a licence in favour of the pursuer had become final, and the decision of the Licensing Court could not competently be reviewed. Whether there was such bias as would disqualify any member of the Court is a question of circumstances in each case; and as the decision on the special circumstances is not necessary here and can be of little value in a subsequent case, I do not think that we are called upon to determine it.
The third question, however, raises a pure question of law, because the facts are not in controversy. Two of the members of the Court who insisted in taking part in the decision were not present on the Bench while a substantial part of the evidence was being led, and I think it cannot be doubted that they were thereby disqualified from deciding the case. The parties cannot, of course, compel the members of the Court to give their attention to the case throughout the proceedings, but I think they are at all events entitled to have their bodily presence during substantially the whole time that the proceedings last. If, however, the votes of Mr Ross and Mr King are simply disallowed now the decision of the Court would stand, as there was still a majority in favour of refusing the licence. The Lord Ordinary, however, has held that just as the presence of a biased party on the Bench is enough to vitiate the proceedings where he takes part in the vote, so the presence on the Bench of a person who has not been present during substantially the whole hearing of the case has the same result. I agree with the Lord Ordinary that there can be no distinction in law. The decision is the decision of the whole Court; and as it cannot now be ascertained how far the votes of the other members of the Court were influenced by the arguments or example of the disqualified persons, it appears to me that the whole judgment is vitiated by their taking part in its deliberations. It was suggested that if this were affirmed any decision might be vitiated by a Justice who had heard only a part of the case insisting on sitting on the Bench and discussing the case with his colleagues. There appears to me to be no real substance in this argument, because the Court can readily protect itself against the intrusion of such disqualified persons, and, indeed, can much more readily do so than in the case of a person who is disqualified by bias. I am accordingly of opinion that the Lord Ordinary's third ground of judgment, which is expressed by his sustaining the fifth plea in law for the pursuer, ought also to be affirmed.
LORD M'LAREN and LORD PEARSON were absent.
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