[QUEEN'S BENCH DIVISION]

REGINA v. COMMISSIONERS OF CUSTOMS AND EXCISE,

Ex parte COOK AND ANOTHER

Crown Practice - Mandamus - Commissioners of Customs and Excise - Acceptance of duty by payment not statutorily authorised - Betting premises licence - Difficulty of drafting - Whether order available.

Gaming - Betting - Duty - Betting premises licence - Statutory method of payment - Alternative method accepted by Minister - Whether mandamus to issue to enforce compliance with statute - Finance Act, 1969 (c. 32), s. 2, Sch. 8.¹

By section 2 of the Finance Act, 1969, an excise duty was imposed on off-course betting premises. By Schedule 8 to the Act, the duty was payable by an annual sum or two half-yearly instalments. As a result of difficulties encountered by bookmakers in paying the duty, representations were made to the Financial Secretary to the Treasury and on September 11 and 12, 1969, the Commissioners of Customs and Excise stated in press notices that officials were authorised to issue licences on receipt of one month's duty and 11 post-dated cheques with applications for a licence. The procedure was widely adopted by bookmakers and the Horserace Totalisator Board.

On applications by two bookmakers, who had complied with the Act by paying the tax in two instalments, for orders of mandamus requiring the Commissioners of Customs and Excise to enforce the provisions of section 2 of and Schedule 8 to the Act on the ground that because of the arrangement authorised by the Minister the number of their competitors was greater than it would otherwise have been, and that the terms of the statute were not being complied with regarding the payment of duty:-

Held, refusing the applications, that although there was no statutory authority for the Minister's action, yet, since the applicants were not seeking to enforce a specific right or duty owed to them, nor had they any interest over and above that of the community, and the ulterior motive of putting people out of business was not such an interest, they had not shown a degree of interest sufficient to support their applications.

The following cases are referred to in the judgment:

Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924; [1968] 1 All E.R. 694, C.A. and H.L.(E.).

Reg. v. Commissioners of Woods, Forests, Land, Works and Buildings, Ex parte Budge (1850) 15 Q.B. 761.

Reg v. Income Tax Special Purposes Commissioners (1888) 21 Q.B.D. 313.

Reg. v. Lewisham Union Guardians (1897) 1 Q.B. 498, D.C.

Reg. v. Lords Commissioners of the Treasury (1872) L.R. 7 Q.B. 387, D.C.

Rex v. Income Tax Special Purposes Commissioners, Ex parte Dr. Barnardo's Homes National Incorporated Association [1920] 1 K.B. 26, D.C.

1 Finance Act, 1969, s. 2: "(1) There shall be charged a duty of excise on a licence (to be known as a betting premises licence) authorising the use of premises for off-course betting. ... (3) ... the duty on a betting premises licence shall be - (a) in the case of premises which for rating purposes constitute or are comprised in a hereditament having a rateable value, three times that value; and (b) in any other case, £150."

Sched. 8, para. 1: "(1) The duty on betting premises licences shall be under the ... management of the commissioners, who may ... make regulations providing for any matter for which provision appears to them to be necessary, for the administration ... of the duty ..."

Para. 2: "An application for a betting premises licence ... shall ... be made to the commissioners not later than 14 days before - (a) October 1, 1969; or (b) the first day after that date on which the premises are to be used for off-course betting ..."

Para. 5: "(1) Where a betting premises licence is granted so as to have effect from the beginning of the licence-year or from a date in that year not later than the end of February ... the licence may at the option of the person liable for the duty be granted on payment of only half of the full duty; and in that case the second half shall be paid not later than the following March 1."

The following additional cases were cited in argument:

Marraco v. Richardson [1908] 2 K.B. 584, C.A.

Rex v. Inland Revenue Commissioners, Re Nathan (1884) 12 Q.B.D. 461, C.A.

APPLICATIONS for orders of mandamus.

The applicants, Herbert Leonard Cook and Edward Peter Stevenson, bookmakers, applied for orders of mandamus directed to the Commissioners of Customs and Excise, requiring them to exercise the jurisdiction conferred upon them by section 2 of and Schedule 8 to the Finance Act, 1969, and in particular to issue licences only to such applicants as had complied with the terms and provisions laid down in the Act and to collect such dues as were provided for in accordance with the terms contained in the Act by way of payment of half of the full duties and not otherwise. The grounds of application were that the commissioners had failed to carry out the duties imposed on them under the Act and had issued betting premises licences to other applicants in breach of the statutory duty imposed by Schedule 8 and had refused to collect the taxes within the terms of the Act.

The facts are more fully stated in the judgment of Lord Parker C.J.

W. R. Rees-Davies for the applicants.

Gordon Slynn for the Commissioners of Customs and Excise.

LORD PARKER C.J. In these proceedings, Mr. Rees-Davies moves on behalf of two applicants, Herbert Leonard Cook and Edward Peter Stevenson. They are both bookmakers, and they each apply for an order of mandamus directed to the Commissioners of Customs and Excise, and I read from the statement filed under R.S.C., Ord. 53, r. 1:

"requiring them to exercise the jurisdiction conferred upon them by section 2 of and Schedule 8 to the Finance Act, 1969, and in particular to issue licences only to such applicants as have complied with the terms and provisions laid down in the Act and to collect such dues as are provided for in accordance with the terms contained in the Act by way of payment of half of the full duties therein described and not otherwise."

The matter arises in this way. The Finance Act, 1969, imposed by section 2 a new tax on bookmakers, and it is, as is well known, a tax which has been resented by bookmakers. It is a heavy tax, and it takes the form of a duty of excise on a new form of licence in respect of off-course betting premises. By section 2 (3) the tax is to be:

"... (a) In the case of premises which for rating purposes constitute or are comprised in a hereditament having a rateable value, three times that value; and (b) in any other case, £150."

Schedule 8 to that Act deals with the collection of the tax, and paragraph 1 provides:

"(1) The duty on betting premises licences shall be under the care and management of the commissioners" - that is, the Commissioners of Customs and Excise - "who may (without prejudice to any other provision of this Schedule) make regulations providing for any matter for which provision appears to them to be necessary for the administration

or enforcement of the duty, or for the protection of the revenue in respect thereof."

Then paragraph 2 provides:

"An application for a betting premises licence in respect of any premises shall, in the case of a new licence, be made to the commissioners not later than 14 days before - (a) October 1, 1969. ..."

Then paragraph 5 provides:

"(1) Where a betting premises licence is granted so as to have effect from the beginning of the licence-year or from a date in that year not later than the end of February, and section 237 of the Customs and Excise Act, 1952, does not apply for the reduction of the duty payable on the licence, the licence may at the option of the person liable for the duty be granted on payment of only half of the full duty; and in that case the second half shall be paid not later than the following March 1. (2) If default is made in payment of the second half of the duty, the licence shall be of no effect so long as the default continues. (3) If after March 1, any sum remains unpaid in respect of the second half of the duty, that sum may be recovered as a debt due to the Crown."

Finally, it is to be observed that paragraph 7 provides:

"Section 234 of the Customs and Excise Act, 1952 (which relates to payment for excise licences by cheque), shall apply to the duty on a betting premises licence, but as if for the reference to a penalty of £50 there were substituted a reference to a penalty of £500."

It is accordingly quite clear that no one is entitled to a betting premises licence unless he has paid either the whole amount of the duty in advance or, under paragraph 5, half in advance and half on March 1.

This tax gave rise to a good deal of trouble, and in September representations were made to the Financial Secretary to the Treasury, and indeed to the Chancellor of the Exchequer, concerning the difficulties which would be encountered by bookmakers and by the Horserace Totalisator Board in complying with the provisions of schedule 8, even by paying half in the first place and half on March 1. On September 11, a press notice was issued, which said:

"The Financial Secretary said that the Chancellor had already been considering these points very carefully and had asked him to give the deputation the following assurances: (1) the customs are being authorised in principle to accept payment of the annual licence duty by monthly instalments. The precise arrangements to include safeguards against failure to pay the instalments regularly, would be discussed as a matter of urgency between the customs and representatives of the bookmakers."

On that day, or the next day, there were discussions with representatives of the bookmakers, and on September 12, a further press notice was issued which said:

"Following the meeting between the Financial Secretary to the Treasury and a deputation led by Lord Wigg on September 11, the Commissioners of Customs and Excise have discussed with representatives of the bookmaking interests the manner in which the betting premises licence duty is to be paid in monthly instalments, and

the following procedure has been agreed. When completing the licence application form received from the Collector of Customs and Excise the bookmakers should amend Part III of the form, second sentence, by deleting the words 'one half of' and adding to the final sentence 'together with 11 post-dated cheques, the first dated November 1, 1969, and the others dated the first day of each succeeding month.' The form should be returned to the collector with the 12 cheques, the first dated not later than October 1, 1969, and the others as indicated above. A licence will be issued by the collector on receipt of a properly completed application and the cheques."

Following that a letter was written to all bookmakers, and presumably to the Horserace Totalisator Board, offering to carry out that arrangement. As a result, as I understand it, some 11,000 bookmakers and the Horserace Totalisator Board have accepted that arrangement and have paid and are paying the tax in accordance with it. It is an arrangement which is open to all bookmakers, but certain of them, and in particular the applicants, have chosen not to avail themselves of these monthly payments, but have paid either the whole in advance or the half in advance with the intention of paying the other half on March 1.

It is in those circumstances that the applications are made, and Mr. Rees-Davies on their behalf says at the very outset that here is a statute, the law of the land, which just is not being complied with. There has been no amending Act. He says that it is, as he would put it, the word of the Minister which is being used to outweigh the law of the land, and in those circumstances his clients are entitled to an order of mandamus which, without going into the details of how it would have to be framed, is in effect a mandamus to the Commissioners of Customs and Excise to carry out their functions under the Act, and not under the word of any Minister.

At an early stage I asked Mr. Slynn on behalf of the commissioners whether there was any statutory authority for their action in the matter, and subject to an argument concerning section 234 of the Customs and Excise Act, 1952, Mr. Slynn, with his usual frankness, said there was no statutory authority for their action.

I will deal at once with section 234 (1), which provides:

"Any government department or local authority having power to grant an excise licence may, if they think fit, grant the licence upon receipt of a cheque for the amount of the duty payable thereon."

As I understand Mr. Slynn's argument, it amounts to this, that that subsection would empower the commissioners to accept cheques, singular including the plural, and that there is no reason why those cheques should not be post-dated, or an arrangement made that they are not to be presented for a fixed period; that on well known legal principles if there was failure to pay by cheque, or indeed the cheque was paid, then the failure or payment will rank as at the date when the cheque was given. On that argument he would seek to say that what was done by the commissioners here was covered by statutory authority.

I am quite unable to accept Mr. Slynn's argument on that part of the case; it does not seem to me that the result he contends for can possibly be derived from the wording of section 234 (1). Moreover, it would only apply as a valid argument to some of the 11,000 bookmakers who have availed themselves of the monthly payments in the present case, because

in an appreciable number of cases they have paid cash and not paid by cheque.

Accordingly, one approaches this case on the basis, and I confess for my part an alarming basis, that the word of the Minister is outweighing the law of the land. However, having said that, one moves on to the far more difficult question whether mandamus will lie. It is sometimes said as a general proposition that mandamus will not lie against the Crown or an officer or servant of the Crown. I think we all know in this day and age that that as a general proposition is quite untrue. There have been many cases, of which the most recent is Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997 in which a mandamus was issued to a Minister. Indeed, that has always been the case, as can be seen since as long ago as 1850 when in Reg. v. Commissioners of Woods, Forests, Land, Works and Buildings, Ex parte Budge (1850) 15 Q.B. 761, Sir Frederick Thesiger expressed the proposition in argument in this form, at p. 768:

"Whenever a person, whether filling an office under the Crown or not, has a statutory duty towards another person, a mandamus will lie to compel him to perform it."

Those words of Sir Frederick Thesiger were in fact adopted by Cockburn C.J.

There are, of course, cases in which it has been held that a servant or officer of the Crown may have as his only duty a duty towards the Crown. That, indeed, was the deciding factor in Reg. v. Lords Commissioners of the Treasury (1872) L.R. 7 Q.B. 387; but equally there are other cases, for example, Rex v. Income Tax Special Purposes Commissioners, Ex parte Dr. Barnado's Homes National Incorporated Association [1920] 1 K.B. 26, and the well known case of Reg. v. Income Tax Special Purpose Commissioners (1888) 21 Q.B. 313, which show quite clearly that where by statute an officer or servant of the Crown has also a duty towards a member of the public, then provided that member of the public has a sufficient interest, mandamus will lie.

Accordingly, so far as I am concerned, the only and real point as I see it in this case is whether it can be said that the applicants have the necessary interest. In regard to mandamus, this has always been dealt with on a very strict basis, and in Reg. v. Lewisham Union Guardians (1897) 1 Q.B. 498, it was stated by Wright J., who was an authority on these matters, at p. 500:

"Certainly, so long as I have had anything to do with applications for a mandamus I have always understood that the applicant, in order to entitle himself to a mandamus, must first of all show that he has a legal specific right to ask for the interference of the court."

Quite clearly the applicants have no such specific right as individuals. They are not complaining that a licence was not issued to them. They are not complaining that they were not offered the same terms as other bookmakers in regard to monthly payments. They are not seeking to enforce any specific right or, put another way, any specific duty owed to them.

The matter does not end there, because it might be sufficient if they were able to show that they had some interest, although not a direct personal interest, over and above the interests of the community as a whole. That is what Mr. Rees-Davies seeks to do. The way he puts it

is this, that these statutory provisions were designed to curtail the activities of bookmakers, that Parliament had it in mind that by imposing this heavy duty, making it payable either as a whole in advance or by half yearly instalments, a perceptible number of bookmakers would be put out of business, or rather I should say would result in the closing of betting premises.

Mr. Rees-Davies goes on to say that his clients' real interest is that by this arrangement invoked by the commissioners, their competitors are greater in number than they otherwise would have been, and he has produced affidavits from bookmakers to say that if they had not had a chance of paying by the month, they would probably have gone out of business.

As it seems to me, there are two answers in regard to that. First, it is quite clear that the Finance Act, 1969, is, as its title shows, only concerned with the collection of tax; any question of control of bookmakers, tightening up regulations concerning bookmakers, preventing more betting premises from being set up, are matters with which the Act is not concerned, but come into the realm of the Betting Acts, in particular the Betting, Gaming and Lotteries Act, 1963. Secondly, as it seems to me, in any event the interest, or the motive, which is moving this application is what I would term an ulterior motive, a motive of putting people out of business and nothing more.

Without referring to the authorities, it is sufficient, I think, to refer to a passage, dealing with Crown proceedings, in Halsbury's Laws of England, 3rd ed. (1955), vol. 11, p. 105, para. 196:

"But the mere fact that a person is interested in the performance of a duty as a member of a class of persons, all of whom may be regarded as equally interested, but himself having no particular ground for claiming performance, or that he has some ulterior purpose to serve, but no immediate interest on his own or any other person's behalf, will not be sufficient grounds for granting a mandamus."

Accordingly, in my judgment the applicants have not shown the degree of interest which alone would be sufficient to support the applications.

I would only add this, that if that hurdle had been surmounted, I would endeavour in the exercise of the court's discretion to enable mandamus in some form to go. But once one gets into the realm of drafting the order, I can forsee very great difficulties, and it may be that in the end it would have to be limited to conduct of the commissioners in the future, which would, I think, at earliest be March 1.

WILLIS J. I agree.

BRIDGE J. I also agree.

Solicitors: Tackley, Fan & Read; Solicitor Customs and Excise.

J. W.