Grosvenor Casinos Ltd v. The City Of Edinburgh Licensing Board

Factual and Procedural Background

The Plaintiff, Company A, applied for a new gaming (casino) licence for premises located at 121/125 Fountainbridge, The City. The Defendant, the City of The City (the licensing authority), refused the application on 26 June 2006. The refusal was made under the Gaming Act 1968, specifically referencing paragraph 18(1) of Schedule 2. The Plaintiff appealed this decision. During the appeal hearing, the Defendant sought to amend their grounds of refusal to paragraph 18(2)(b) of the same Schedule, claiming an error in the original Statement of Reasons. The Plaintiff opposed this late amendment. The court considered whether to permit the amendment and ultimately refused it. The appeal was conceded by the Defendant due to ambiguity in the Statement of Reasons, and the court was tasked with deciding whether to remit the matter to the Defendant for reconsideration or to direct the granting of the licence.

Legal Issues Presented

1. Whether the Defendant could amend their grounds of refusal from paragraph 18(1) to paragraph 18(2)(b) of Schedule 2 to the Gaming Act 1968 at the appeal stage.
2. Whether the court should remit the application back to the Defendant for reconsideration or direct the grant of the licence following the concession of the appeal.

Arguments of the Parties

Defendant's Arguments

• The original refusal under paragraph 18(1) was a mistake; the correct basis was paragraph 18(2)(b), concerning the sufficiency of existing gaming facilities to meet demand.
• The Statement of Reasons referred erroneously to paragraph 18(1), which should be corrected by amendment.
• If the amendment was refused, the Defendant would concede the appeal.

Objectors' Arguments

• The objectors accepted that the reference to paragraph 18(1) was an error and did not oppose the amendment.
• The submissions before the licensing board had concentrated on paragraph 18(2)(b).

Plaintiff's Arguments

• The amendment was too late and represented a complete change of position by the Defendant.
• The Statement of Reasons and the Defendant’s pleadings clearly referred to paragraph 18(1), and the Plaintiff had relied on this.
• The reference to "substantial unmet demand" in the Statement did not align with the paragraph 18(2)(b) test.
• The Plaintiff urged the court to direct the grant of the licence rather than remit the matter.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered whether to allow the Defendant to amend their grounds of refusal from paragraph 18(1) to paragraph 18(2)(b) of Schedule 2 to the Gaming Act 1968. The court confined itself to the Statement of Reasons and did not consider external transcripts, reasoning that the Statement was the best indicator of the Board’s decision basis. The Statement referred explicitly to paragraph 18(1), emphasizing the absence of "substantial unmet demand," and expressed concerns about stimulating additional demand. Although the provisions under paragraph 18 are related, the court was not convinced beyond reasonable doubt that the decision was based solely on paragraph 18(2)(b). Therefore, the court refused leave to amend.

Following the concession of the appeal by the Defendant, the court had to decide whether to remit the case for reconsideration or to direct the grant of the licence. The Plaintiff argued that the Board had failed twice and would likely fail again, advocating for a direct grant. The Defendant and objectors contended that the Board should reconsider the matter, denying any bias or breach of natural justice. The court considered the principle that courts should generally be slow to interfere with decisions of statutory bodies and noted that the merits had not been fully examined. It was not persuaded that the licence was bound to be granted on the merits. The court concluded that the ambiguity in the Statement of Reasons did not imply improper consideration by the Board but rather a failure to clearly express their reasons.

Accordingly, the court decided that remitting the matter to the Defendant for reconsideration was proper, expecting a clearer decision in the future and acknowledging the difficult position of the Plaintiff.

Holding and Implications

The court REFUSED LEAVE TO AMEND the grounds of refusal from paragraph 18(1) to paragraph 18(2)(b) of Schedule 2 to the Gaming Act 1968.

The court REMITTED the matter to the Defendant for reconsideration of the Plaintiff's application for a new gaming licence.

This decision means that the Defendant must reconsider the licence application and provide a clear and properly reasoned decision. No licence was granted by the court, and no new legal precedent was established. The ruling reinforces the principle that courts should generally defer to the discretion of statutory bodies unless there is clear error or injustice.