Jacques Scott & Company Ltd v Moxam

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Kerr, JJ.A.)
• Judgment Date: 30 November 1998
• Court: Court of Appeal (Cayman Islands)
• Date: 30 November 1998

Court of Appeal

(Zacca, P., Georges and Kerr, JJ.A.)

JACQUES SCOTT AND COMPANY LIMITED

and

MOXAM and LIQUOR LICENSING BOARD

P. Lamontagne, Q.C. for the appellant;

R.D. Alberga, Q.C. and J.C.B. Chapman for the first respondent;

The second respondent did not appear and was not represented.

Cases cited:

(1) -Julius v. Oxford (Bishop)ELR(1880), 5 App. Cas. 214; [1874–80] All E.R. Rep. 43, applied.

(2) -Sharp v. WakefieldELR, [1891] A.C. 173; sub nom. Sharpe v. Wakefield, [1886–90] All E.R. Rep. 651; (1891), 60 L.J.M.C. 73, distinguished.

Legislation construed:

Liquor Licensing (Distribution of Licences) Regulations, 1979, reg. 3: The relevant terms of this regulation are set out at page 332, lines 5–10.

Liquor Licensing Law (Laws of the Cayman Islands, 1963, cap. 87), s.4(1): The relevant terms of this sub-section are set out at page 327, lines 16–19.

s.12(1): The relevant terms of this sub-section are set out at page 327, lines 20–22.

s.13: The relevant terms of this section are set out at page 327, lines 24–32.

s.14(1): The relevant terms of this sub-section are set out at page 327, lines 33–36.

Liquor Licensing Law (1996 Revision) (Law 8 of 1985, revised 1996), s.5(1): The relevant terms of this sub-section are set out at page 328, lines 4–6.

s.8(1): The relevant terms of this sub-section are set out at page 328, lines 8–17.

s.9: The relevant terms of this section are set out at page 328, lines 19–34.

Liquor-licensing-Liquor Licensing Board-purpose of licensing control-commercial need for licensed premises relevant to whether situated where ‘of service to the public,’ for purposes of Liquor Licensing Law (1996 Revision), s.9(1)(d)-may refuse licence because locality already adequately served-relevant factors not limited to matters raised by s.9(2)

Liquor-licensing-Liquor Licensing Board-Board”s discretion to grant licence under Liquor Licensing Law (1996 Revision), s.5 arises only once criteria in ss. 8 and 9 met

Administrative Law-judicial review-matters of fact-court may not substitute own findings of fact for those of administrative body arrived at on reasonable assessment of evidence

The first respondent sought judicial review of the refusal by the Liquor Licensing Board to grant him a licence to sell packaged duty-free liquor.

The first respondent applied for a licence to sell packaged liquor to cruise-ship passengers from premises on the waterfront. The appellant, together with several other objectors, opposed the grant of the licence, on the grounds that the first respondent was involved in a campaign by a rival foreign-owned company to take over areas of the Cayman economy and that the demand for sales of this kind was already fully met. The Board refused to grant the licence on the basis that it was not satisfied, for the purposes of s.9(1)(d) of the Liquor Licensing Law (1996 Revision), that the premises in respect of which the licence was sought were situated in a location where they would be of service to the public, since no more licensed premises were needed in the area.

The Grand Court (Graham, J.) found that the Board had erred in refusing the licence, on the ground that the issue of commercial need for licensed premises had no bearing on whether s.9(1)(d) was satisfied, since only those matters set out in s.9(2), namely, public health and safety, planning and traffic, were relevant to that issue. It held, inter alia, that the Board”s discretion was limited by the wording of s.5 of the Law, in contrast to that of s.12 of the original Liquor Licensing Law, and that the Board had misdirected itself by referring to English authority on licensing. The Board”s decision was quashed and it was ordered to rehear

the application. The proceedings in the Grand Court are reported at 1998 CILR 178.

On appeal, the appellant submitted that (a) the Board”s power to grant licences was not limited in the way suggested by the Grand Court, since s.12 of the old Law and s.5 of the current Law had the same effect, namely to confer a discretion; (b) the provisions of ss. 8 and 9 of the Law were criteria to be met by the applicant before that discretion arose; (c) the Board had properly referred to authority highlighting the importance of the needs of the neighbourhood in exercising its discretion; and (d) the Grand Court had merely substituted its own assessment of the evidence presented to the Board for that of the Board, which it was not permitted to do in judicial review proceedings.

Held, restoring the decision of the Board:

The Liquor Licensing Board had properly refused to grant the first respondent a licence on the basis of its conclusion that the waterfront area did not need further licensed premises. The discretion conferred by s.5 of the Law was no more restricted than that contained in s.12 of the original Law, merely because different language was used, and reference to earlier Cayman or English licensing legislation was unhelpful in this regard, since the 1996 Revision operated in very different circumstances from those in the Islands in the 1950s or 19th century England. More recently, the Liquor Licensing (Distribution of Licenses) Regulations, 1979 showed that the number of existing licensed premises in relation to population could be relevant to whether premises were ‘of service to the public.’ The criteria listed in ss. 8 and 9 were prerequisites to the exercise of the Board”s discretion and were, for the most part, matters which did not require detailed analysis. On the issue of service to the public under s.9(1)(d), however, the Board was entitled to evaluate the evidence presented by the applicant and the objectors, and the Grand Court had no power to substitute its own opinion for the Board”s findings of fact made upon a reasonable assessment of the evidence. Its decision would therefore be restored (page 328, line 35 – page 329, line 17; page 329, line 39 – page 330, line 21; page 330, line 37 – page 331, line 10; page 331, line 31 – page 332, line 20).

GEORGES, J.A., delivering the judgment of the court: This is an
appeal from a judgment of the Grand Court setting aside a decision of the
20	Liquor Licensing Board (‘the Board’) refusing to grant an application by
the respondent, Renard Moxam, for a package licence in respect of an
outlet in the Anchorage Centre. The application was remitted to the Board
for rehearing.
The package licence sought was for the sale of unopened packages of
25	alcoholic beverages duty free to tourists only. Customers would select
purchases from samples at the outlet and the purchases would be delivered
to them on board ship from a bonded warehouse operated by the applicant.
The applicant already had a licence to operate a bonded warehouse.
Before the Board there were some 18 objectors opposing the grant of
30	the licence, including the appellant. The basis of their objections is
substantially set out in an affidavit dated August 25th, 1997 by Charles
Adams, Ritchie & Duckworth, Attorneys-at-Law, for the appellant. In
essence it was contended that (a) Mr. Moxam”s application was in fact an
application on behalf of Island Companies Ltd. (‘ICL’) and (b) ICL was
35	a foreign-controlled company in which Mr. Moxam owned 24% of the
shares and Nuance International Trading Ltd. owned 51%. Additionally,
the objectors stated that Nuance was the duty-free merchandising
subsidiary of Swiss Air. As such, it had a bulk-purchasing power which
would enable it to purchase stock at prices much lower than its
40	competitors-individual Cayman enterprises. It was argued that Nuance
could, as a result, sell at prices with which they could not compete. The
retail trade in Cayman should be reserved for local traders and not opened
up to large foreign conglomerates.
Mr. Moxam, the applicant, gave evidence in support of the

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