Moxam v Liquor Licensing Board

JurisdictionCayman Islands
JudgeGraham, J.
Judgment Date26 May 1998
CourtGrand Court (Cayman Islands)
Date26 May 1998
Moxam
and
Liquor Licensing Board

Graham, J.

Grand Court

Administrative law - Liquor licensing Board — Commercial need for licensed premises irrelevant to exercise of Board's discretion under Liquor Licensing Law (1996 Revision) — Natural justice — Chairman to ensure that objections to licence raised under Liquor Licensing Law (1996 Revision) s. 17(1) presented in fair and reasonable manner — Duty to prevent oppressive and improper cross—examination of applicant — Preliminary hearing to establish admissibility of evidence recommended.

Appearances:

Ian Boxall & Co. for the applicant

Charles Adams, Ritchie & Duckworth and Collins, Broadhurst & Furniss for the objectors

Government Legal Department for the Board

Graham, J.
1

On August 5th, 1996 Renard Moxam, the applicant, applied to the Liquor Licensing Board for the grant of a liquor licence under s.10 (1)(b) of the Liquor Licensing Law (1996 Revision). The application was for a “package licence,” that is to say, a licence to sell sealed packets of alcoholic liquor on a retail basis to cruise-ship passengers. That limitation on the terms of a normal liquor licence was accepted by the applicant and arises under s.10 (1)(b) of the Law.

2

The premises sought to be licensed are situated in the Anchorage Centre, George Town, Grand Cayman. This is a modern and impressive location in a prime part of the waterfront region of George Town, ideally designed to serve cruise-ship passengers in their perambulation around the many shops, which sell prestigious and expensive duty-free items of all descriptions. Objections to the application were lodged before the Board under s.17 (l) by a considerable number of trade competitors and other local business people. Due to a number of circumstances, great delays took place, including an adjournment pending the decision of the Grand Court on an appeal against the Immigration Board's decision to grant a licence to trade to Island Companies Ltd. in respect of a wholly owned subsidiary company with whom it was alleged this applicant was associated. In the event, this application was not heard until September 5th, 1997, one year after the application was made. This was most unfortunate.

3

It was claimed by the objectors that in view of the applicant's character, it was inappropriate for him to be granted a licence. Section 8 (1)(a) of the Law defines “character” as, in effect, the absence of previous convictions for 15 years prior to the making of the application. His “bad” character, in the sense that he had committed undetected crimes within the 15-year period, could, of course, be established by strictly admissible evidence, but such a claim would have to be dealt with very carefully, remembering that a higher standard than that of the “balance of probabilities” would have to be observed. I respectfully adopt the dicta of Lord Nicholls of Birkenhead in ( In re H (Minors) [1996] 1 A.C. at 586–587), in which the standard of proof in non-criminal proceedings is dealt with in an authoritative and helpful manner. Only evidence that was strictly admissible could be received.

4

Despite that, he was assailed by counsel, two particular counsel, as being the representative of a foreign-owned company which was seeking to take over large portions of the Cayman economy. How these objections were even considered by the Board is a matter of concern. Objector after objector gave sworn evidence of that type. In particular Mr. Pierre Lamontagne, Q.C., on behalf of Jacques Scott Ltd., and Mr. Wade DaCosta, on behalf of 18 other applicants, constantly attacked Mr. Moxam under the guise of a legitimate inquiry into his character. I have already defined the limited nature of character under s.8 (1)(a) of the Law. A good example of this type of evidence was: “We do not want to be hopeless strangers in our own land like Native Americans.” The Chairman made no attempt to restrain this type of evidence or the counsel seeking to present it. I will say more in relation to that topic at the end of my judgment and will further make suggestions as to how such events may be prevented in the future.

5

The real group of objectors was of the more traditional kind, such as Mr. Robert Hamaty and Mr. Stanley Wight. They both had interests in duty-free “package” outlets. They gave evidence as to the number of cruise-ship landings and the possible decline of such trade. They further gave evidence to the effect that the existing outlets for duty-free liquor on the waterfront already more than met the demand. This evidence was often couched in terms of the fear of further competition but was evaluated by the Board and in the written judgment of the legally qualified Chairman as demonstrating that the premises sought to be licensed were situated at a location where they would or would not be of service to the public. It was entirely within the province of the Chairman of the Board and its members to interpret that evidence in whatever manner they chose to do so, so long as it complied with s.9 of the Law.

6

The Board heard the evidence of Nadine Ann Marie Erskine, who carried out a survey on a number of cruise-ship passengers between the end of 1995 and the early part of 1996. They were asked if they might find it convenient to shop at the Anchorage Centre and to buy packaged intoxicating liquors from that location. 2,129 said “Yes” and 93 said “No.” The Board was not satisfied with her evidence, as she did not record the age or sex of the respondents, had no previous experience in market-research and, crucially, did not record the number of “Don't knows.” In the event, the Board rejected her evidence as unsatisfactory and as, having seen her, it was entitled to do. Had the evidence been better presented and more fully researched, the Board might have ascertained that a significant number of cruise-ship passengers would have found the proposed premises to be of service to them, they being the relevant “public” to be considered. The final passage of the Chairman's judgment, dated October 24th, 1997, reads:

“The premises in respect of which the application is made at the Anchorage Centre have not been previously licensed. Taking into account the evidence and the reported cases cited, the Board members are satisfied that the neighbourhood of the Anchorage Centre needs no more premises for duty-free package licences or package licences (s.10 (3) Liquor Licensing Law) other than those already licensed and it follows that the Board is not satisfied that the premises in respect of which the application is made are situated at a location where they will be of service to the public. Accordingly, the application is dismissed.” [Emphasis supplied.]

7

A letter was addressed to the Chairman on November 4th, 1997 asking for “written reasons for the decision reached.” This letter was written by Miss Sherri Bodden, the attorney for the applicant. The Chairman, rather surprisingly, replied to that letter instead of rejecting that request. He had delivered his judgment in full but chose to answer the letter from Miss. Bodden. That letter is dated November 6th, 1997, and reads:

“The reason that the Board found that the premises in respect of which applications were made were not: ‘situated at a location where they will be of service to the public’ (s.9 (1)(d)). And they refused it for the reason, and for no other, than that they thought the neighbourhood does not need it. See Lord Bramwell's speech in ( Sharp v. Wakefield [1886–90] All E.R. Rep. 651), which Senior Counsel, Mr. Ramon Alberga, Q.C., submitted applied to the Cayman Islands.”

8

This letter revealed the intellectual basis for the conclusion reached by the Board. It is that conclusion which is the subject of this application by Mr. Moxam for judicial review. On January 21st, 1998, I granted leave to seek such a review. The relief sought in the application is:

  • “(a) an order for certiorari to remove into the Grand Court of the Cayman Islands to quash the said decision of the Liquor Licensing Board whereby the Board refused the application for the grant of a package licence to the applicant;

  • (b) an order for mandamus to oblige the Board ‘to formally reconsider’ that decision in accordance with the Liquor Licensing Law (1996 Revision);

  • (c) a declaration that the refusal to grant the licence is void and/or unlawful and/or;

  • (d) a declaration that in the light of the only reason given by the Board for refusing the licence, the applicant was and is entitled to the grant of a package licence;

  • (e) damages;

    • (a) costs;

    • (b) further and other relief.”

The Law
9

The Liquor Licensing Law (1996 Revision) has a very different parentage to the English licensing legislation, as I will seek to demonstrate in this judgment. It is the history of this legislation, which provides the court with the most reliable guide to its interpretation in the absence of any preamble or memorandum of objects and reasons contained in the Law. The first relevant piece of legislation is the Liquor Licensing Law, promulgated on March 6th, 1955. Section 12(1) provided: “Subject to the provisions of this Law, the granting of a certificate [in effect the licence] shall be at the entire...

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