England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CIVIL DIVISION
(MR JUSTICE RICHARDS)

		Royal Courts of Justice Strand London, WC2
		12th July 2005

1. THE MASTER OF THE ROLLS: This is an appeal from the judgment of Richards J dated 1st October 2004 (the neutral citation number of which is [2004] EWHC 2164 (QB) dismissing a claim for an injunction and damages for breach of contract. The claim was brought by the former jockey Graham Bradley against the Jockey Club in respect of the conduct of disciplinary proceedings against him.
2. Permission to appeal was granted by the Vice Chancellor Sir Andrew Morritt and Clarke LJ on a renewed oral application on 16th February 2005, on the ground that there was a compelling reason for the Court of Appeal to clarify the correct approach of the court in determining the increasing number of claims of this kind. I would like to say at the outset that the judgment of Richards J -- which was reserved and which extends to 119 paragraphs -- is of the highest quality. I am surprised that it has not been reported at least in one of the specialist law reports.

The Facts

3. Mr Bradley was an extremely successful steeplechase jockey, licensed by the Jockey Club from 1982 until his retirement in 1999. He has been called one of the most stylish jockeys of his era. On retirement as a jockey he earned his living as a bloodstock agent. In the early 80s he met and became a close friend of a fellow jockey, Barrie Wright (I am going to adopt initials for Barry Wright and others because there are a confusing number of Wrights in the story. Barrie Wright will be BW).
4. In 1984, through BW, he met a major gambler in the racing world Brian Brendan Wright ("BBW"), no relation of BW, and thereafter BBW's son Brian Anthony Wright ("BAW"), his son-in-law Paul Shannon ("PS"), and another man Ian Kiernan ("IK"). BBW, BAW, PS and IK were members of a gambling organisation. Concerns were raised in the Jockey Club about the activities of BBW. Mr Bradley was asked at a Licensing Committee meeting on 21st June 1999 about his association with BBW and told the Jockey Club that he had done nothing wrong.
5. In 2001 BAW, PS and IK were convicted of offences of importing or supplying cocaine. BBW did not stand trial, having moved to northern Cyprus. BW was also prosecuted. He was charged with involvement in a conspiracy to import cocaine. Mr Bradley volunteered to appear as a witness at his trial at Southampton Crown Court in order to support his defence that the money that he had received from BBW had related solely to the provision of inside racing information for gambling purposes.
6. On 28th September 2001 Mr Bradley gave evidence. Under cross-examination, he confirmed that he too had received money and presents from BBW in the 1990s for sensitive and privileged information about horses; information which the yards and owners he was riding for were not expecting him to divulge. He stated that he did so in common with "every jockey in the country". He admitted that several members of BBW's betting organisation had his telephone numbers. BW was acquitted.
7. The Jockey Club gave Mr Bradley notice on 18th June 2002 that it intended to enquire inter alia into matters revealed by his evidence. He was invited to submit to the Rules of Racing which would afford to him a right of appeal against any decision imposing a penalty. Mr Bradley accepted this invitation on the 4th September 2002. The charges to be considered at the inquiry related to various breaches of the Rules of Racing in force at the material time, including:

"(1) Rule 2004(iv)

by giving or offering to give on various dates during the term of his licence information concerning horses entered in races under the Rules of Racing in return for monetary consideration, other than the receipt of a reasonable fee for giving an interview to the Press or other legitimate news gathering organisation for the purposes of general publication . . .

(3) Rule 62(ii)(c)

by receiving presents in connection with a race on various occasions during the term of his licence from persons other than the Owner of the horse ridden by him in that race . . .

(4) Rule 220(vii)(b)

by providing false information to the Licensing Committee of the Jockey Club on 21 June 1999, namely statements to the effect that he . . . had never done anything wrong with Mr Brian Brendan Wright . . .

(5) Rule 220(viii)

by means of the statements mentioned above, endeavouring by an overt act to mislead the members of the Licensing Committee . . . "

There were a number of lesser charges which are of no relevance in the present context.

8. The Disciplinary Committee of the Jockey Club held the inquiry on 27th to 29th November 2002. The case against Mr Bradley was largely based on his evidence in the Crown Court. Mr Bradley was represented by counsel and gave evidence, explaining that his evidence in the Crown Court was an admission only that he had legitimately provided information to BBW between 1987 and 1990 about the horse he was riding at that time, Border Tinker, of which BBW was the beneficial, albeit not the nominal, owner. Any discrepancies were mistakes or dramatisation made under pressure.
9. By its decision dated 4th December 2002, the Jockey Club found Mr Bradley in breach of the Rules to which I have referred, and imposed a penalty of disqualification for eight years in respect of those breaches. This was expressed to be for the following principal reasons --

(a) The seriousness of the offences.

(b) The length of time covered by the breaches of Rules 62(ii)(c) and 204(iv) which the Disciplinary Committee found to have taken place from 1984 to 1999 inclusive.

(c) The requirement that the penalty should act as a deterrent to other jockeys.

10. The effect of disqualification was as follows. Under Rule 205 of the Rules of Racing:

"[A] disqualified person, so long as his disqualification lasts, shall not:

. . . (iv) enter any racecourse, stands, rooms, enclosures and other places owned or used by the Stewards;

(v) except with the permission of the Stewards . . . be employed in any racing stables;

(vi) deal in any capacity with a racehorse . . . "

Rule 220 further provides:

"(iv) No person shall without permission of the Stewards of The Jockey Club associate in connection with horseracing . . . with any person known to be disqualified . . . from any premises owned or licensed by the Stewards, whether or not constituting a breach of the . . . Rules of Racing."

11. Mr Bradley appealed to the Appeal Court on grounds which included an allegation of apparent bias, unfairness, errors in the application of the Rules of Racing, material new evidence, and the contention that the penalty or sanction imposed was disproportionate. The Appeal Board was chaired by Sir Edward Cazalet, a former High Court judge. It handed down its decision in two parts. The first, on 21st March 2003, ruled against Mr Bradley on the issues of apparent bias and breaches of Article 6 of the European Convention. The second part was handed down on 31st March 2003. This rejected Mr Bradley's appeal on liability and dealt with his appeal in relation to the penalty imposed.
12. The Appeal Board held that there had been ample material for a reasonable committee to find that Mr Bradley had admitted breaches of the Rules in his evidence in the Crown Court, and to reject the explanation of this evidence that he tendered. The Board further held that while the arrangement to supply information must have been well in place by the 1990s -- no later indeed than 1989 -- there was no evidence to support the Disciplinary Committee's finding that this practice started in 1984. The Appeal Board substituted for the 15-year period, during which this practice had been held to continue, a period of 10 years from 1989 to 1999. The Appeal Board considered the proportionality of the sentence in the light of their revised findings of fact and reduced the penalty imposed upon Mr Bradley from 8 years to 5 years' disqualification.
13. Mr Bradley issued these proceedings on 28th May 2003. The claim was advanced on two bases. The first was breach of contract. Mr Bradley contended that there had been a breach of implied terms in his agreement to submit to the Rules: namely, that the Jockey Club would carry out its disciplinary functions in accordance with the Rules reasonably and fairly and only impose a sentence proportionate to the facts proven or admitted. The other basis was that the decisions reached against him were in unlawful restraint of trade. The particulars of claim put that plea in this way:

"The appeal board held that the imposition of a disqualification order would debar Graham Bradley from dealing as a bloodstock agent. As such, the imposition of the disqualification order would operate in restraint of trade. Under the common law restraint of trade doctrine, it is not open to the Jockey Club to prevent Graham Bradley pursuing his trade as a bloodstock agent by the imposition of a disqualification order to an extent which is not justifiable or reasonable and proportionate in the interests of the parties and the public."

The Decision of the Appeal Board

14. The only relevant decision of the Appeal Board is that relating to the penalties imposed on Mr Bradley. The Board directed itself as follows in relation to the approach that it should adopt when considering the penalties imposed on Mr Bradley:

"Counsel are agreed that the test of proportionality which we must apply in this case is the definition stated by Lord Clyde in DeFreitas v Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at page 80 in the following terms whether:

(i) the legislative objective is sufficiently important to justify limiting a fundamental right;

(ii) the measures designed to meet the legislative objective are rationally connected to it; and

(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

In Colgan v The Kennel Club, Cooke J at paragraph 42 stated that:

'In order to apply the proportionality test here, it is necessary to replace the words 'the legislative objective' with 'the objective or objectives of the disciplinary procedures'.

In applying this test it is appropriate that we consider whether the objective of the disciplinary procedure is sufficiently important to justify limiting the fundamental right of Mr Bradley to work in his business. Put in more specific terms, this means that we had to consider the importance of protecting the integrity of racing against the impact on Mr Bradley of disqualifying him for such a period as puts his bloodstock business either in serious jeopardy or at an end. In determining what penalties we impose against these objectives, we look to a penalty that reflects three main elements: namely punishment, deterrence and prevention. We then have regard to subparagraphs (2) and (3) of the proportionality test set out above."

15. The Appeal Board adopted this approach in the light of a following general observations. I will incorporate, by reference, the passage in their decision that begins with the heading "The importance to racing of maintaining its integrity" and which continues until the end of paragraph 2(2) under the heading "Deterrents".
16. The Appeal Board set out in detail under the heading "Mitigation" the personal position of Mr Bradley and his family, including the following passage:

"The bloodstock business supports the family. His house is subject to £120,000 mortgage and he has no reserves of capital on which to rely. We were told that if a disqualification continues for any length of time, the business will not survive. We bear in mind that his business needs him now rather than in a few years time when he may be less active. He has put a lot of hard work into his business and of course he is deeply concerned that this should not be destroyed."

The conclusions of the Appeal Board are encapsulated in the following extracts from their decision:

"Mr Bradley's regular dealings over a period of ten years receiving presents and monetary reward must be seen as self standing. We have set out above how vital it is for integrity to be maintained if the continued well being of racing is to be preserved. We have indicated our concern at the extent of privileged information that was being passed to the Racing Organisation. The extent of the privileged information used to distort the betting market indicates to us that an element of deterrence is justified in the penalty even though Mr Leach has pointed out that there has only been one other established breach of these Rules since 1978 . . . .

Finally, for the reasons given above, we think that disqualification is the appropriate penalty. It follows that we do not think it appropriate to take up the alternative course of a qualified extension. Having regard to all these factors we have considered the criteria of proportionality. Having carried out that exercise we substitute five years disqualification for the eight years imposed by the Disciplinary Committee."

Richards J's Approach to His Task

17. Richards J dealt at length with the role of the court in a case such as this and conducted a careful analysis of the relevant authorities. I would commend the entirety of his analysis and, as his judgment is accessible on the website through the neutral citation number, I propose only to cite the key passages:

"37 that brings me to the nature of the court's supervisory jurisdiction over such a decision. The most important point, as it seems to me, is that it is supervisory. The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits. It is a review function, very similar to that of the court on judicial review. Indeed, given the difficulties that sometimes arise in drawing the precise boundary between the two, I would consider it surprising and unsatisfactory if a private law claim in relation to the decision of a domestic body required the court to adopt a materially different approach from a judicial review claim in relation to the decision of a public body. In each case the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . .

(40) . . . The supervisory role of the court should not involve any higher or more intensive standard of review when dealing with a non-contractual than a contractual claim . . .

(43) Of course, the issue in the present case is not one of procedural fairness but concerns the proportionality of the penalty imposed. To my mind, however, that underlines the importance of recognising that the court's role is supervisory rather than that of a primary decision-maker. The test of proportionality requires the striking of a balance between competing considerations. The application of the test in the context of penalty will not necessarily produce just one right answer: there is no single 'correct' decision. Different decision-makers may come up with different answers, all of them reached in an entirely proper application of the test. In the context of the European Convention on Human Rights it is recognised that, in determining whether an interference with fundamental rights is justified and, in particular, whether it is proportionate, the decision-maker has a discretionary area of judgment or margin of discretion. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests.

The same essential approach must apply in a non-ECHR context such as the present. It is for the primary decision-maker to strike the balance in determining whether the penalty is proportionate. The court's role, in the exercise of its supervisory jurisdiction, is to determine whether the decision reached falls within the limits of the decision-maker's discretionary area of judgment. If it does, the penalty is lawful; if it does not, the penalty is unlawful. It is not the role of the court to stand in the shoes of the primary decision-maker, strike the balance for itself, and determine on that basis what it considers the right penalty should be.

Mr Higginson, who was counsel for Mr Bradley, cited Daly v Secretary of State for the Home Department [2001] 2 AC 532 in support of his submissions on the correct approach of the court towards the issue of proportionality. I see nothing in Daly that is inconsistent with the views I have expressed above. The importance of the court limiting itself to a supervisory role of the kind I have described is reinforced in the present case by the fact that the Appeal Board includes members who are knowledgeable about the racing industry and are better placed than the court to decide on the importance of the Rules in question and decide the weight to be attached to breaches of those Rules. I treat the Appeal Board as the primary decision-maker since, although its function under Appendix J of the Rules of Racing is largely a review function, it is found that the penalty imposed by the Disciplinary Committee was disproportionate and, as it had power to do, substituted a penalty of its own as a proportionate penalty.

18. The grounds of appeal, which were not settled by Mr Glen QC who has represented Mr Bradley before us, included contentions that Richards J had erred in the following respects:

"(1) He erred in his assessment of the court's function in respect of its reviewing power, particularly in relation to a decision as to penalty.

(2) He wrongly held that in the context of modern law the court's jurisdiction is merely supervisory and not capable of extension to the role of primary decision-maker . . .

(4) He wrongly held that the court's jurisdiction in this respect was similar to that of a court on judicial review.

(5) He wrongly applied quasi-judicial review concepts and tests in the modern and different context of this case, being a review of a penalty imposed by a domestic tribunal in 2003.

(6) He erred in considering that he should not scrutinise and/or interfere with the decision of the Appeal Board of the Jockey Club directly and/or by stepping into its shoes."

As I understand it, it was these contentions which led the Vice Chancellor, Clarke LJ, to give permission to appeal in this case. These contentions have, however, been abandoned by Mr Glen who has made no challenge to the approach adopted by Richards J, as opposed to his conclusion as to the result of that approach. I have cited the relevant passages from the judgment of Richards J because I am satisfied that they correctly state the law and do so with a clarity that I could not hope to better.

The Remaining Issue

19. Yesterday Mr Glen filed with the court a written reply to the respondent's skeleton. This states that its effect is to narrow the issues and this statement is undoubtedly correct. Annexed to this document is a further document described as "Appendix dealing with background". This contains a mass of factual allegations which are not in evidence, have no relevance in relation to this appeal, and should not have been placed before the court. Mr Glen's reply essentially restricts Mr Bradley's grounds of appeal to an attack on the penalty imposed by the Appeal Board on the ground that it was disproportionate. The reply begins with the following propositions:

"Basically we say that this disqualification order is an excessive interference with the appellant's right to work because it ruins his business altogether. It is the duty of the High Court to protect his right to work. This is an important duty when the appellant faces a powerful club (on which it is estimated 100,000 people depend for their livelihood). . . . This sentence involves destruction of the appellant's business with consequent loss of start-up costs. The order is so wide-ranging that there is no real scope for any work with racehorses. The effect upon his proposed career as a bloodstock agent will be even longer than five years because the prospect of starting up again is uncertain to say the least."

20. Mr Glen developed his arguments on proportionality, both in his reply and in oral argument to us. His starting point was to contend that this court was as well placed to consider proportionality as the Appeal Board. I do not agree. Professional and trade regulatory and disciplinary bodies are usually better placed than is the court to evaluate the significance of breaches of the rules or standards of behaviour governing the professions or trades to which they relate.
21. Mr Glen went on, so it seemed to me, to illustrate the fallacy of his submissions by inviting us to draw conclusions which were in conflict with the findings of the Appeal Board. He suggested that the penalty imposed on Mr Bradley was influenced by his association with a man suspected of being a major criminal. This was notwithstanding the following statement by the Appeal Board:

"It is of the utmost importance that we make fully clear that we decide this case upon such evidence as has been presented by the parties and is admissible and relevant. We have not allowed ourselves to be influenced by any views, whether prejudicial, critical or otherwise, expressed by others, whether through the media or elsewhere about the alleged nature of Mr Bradley's conduct, or his alleged associates."

22. Then Mr Glen sought to persuade us that Mr Bradley's offences were of no great moment, and that they fell into a grey area as to what was and was not permissible. This was in stark conflict with the clear explanation by the Appeal Board as to why Mr Bradley's wrongdoing had such serious implications.
23. Next, Mr Glen submitted that the 1978 decision of the Disciplinary Committee in respect of a jockey called Francome was a comparable case which should have been followed in the case of Mr Bradley. A similar argument had been advanced before the Appeal Board. They rejected it, explaining over one and a half pages of their decision why Mr Francome's case was not comparable.
24. Mr Glen's submissions had one underlying theme. The court had a duty to protect Mr Bradley's right to work. Any penalty which destroyed his business was disproportionate. As a result of this, the maximum penalty which would have satisfied the requirement of proportionality was 12 months disqualification. I am not able to accept these submissions. Where an individual takes up a profession or occupation that depends critically upon the observance of certain rules, and then deliberately breaks those rules, he cannot be heard to contend that he has a vested right to continue to earn his living in that profession or occupation. Any disciplinary tribunal, or the court when exercising a supervisory jurisdiction, must give careful consideration to whether the circumstances require a penalty that will prevent the culprit from continuing to earn his living in his chosen profession or occupation. But a penalty which deprives him of that right may well be the only appropriate response to his offending.
25. The Appeal Board concluded that this was such a case. Richards J carefully reviewed the Appeal Board's decision on proportionality. He concluded:

"Having directed itself correctly and given prompt consideration to all relevant matters, the Board then carried out, as it was required to do, a careful balancing exercise looking on the one hand at the important purpose served by the Rules and the seriousness of the breaches of those Rules; and on the other hand at the mitigation and at the impact of disqualification upon the claimant and his family."

He concluded that the Board was fully entitled to conclude, as the final result of its balancing exercise, that a period of five years disqualification was a proportionate penalty. This conclusion was plainly correct.

26. Finally, Richards J attempted an independent assessment of the proportionate penalty. He concluded:

"Lest I am wrong about the nature of the court's function in reviewing the Appeal Board's decision, I have endeavoured to form a judgment about the period of disqualification that I would have thought appropriate had I been carrying out my own separate balancing exercise in the application of the principle of proportionality. It is not an easy or satisfactory task, since I do not have the same experience of the industry as did members of the Appeal Board and it is very difficult to put altogether out of mind the judgment reached by the Board itself on the issue. Doing the best I can, however, I do not think that I would have decided on any lesser period of disqualification as the proportionate penalty had I been standing in the shoes of the Board."

27. I can see no basis for dissenting from this view of judge. The last line of this judgment might have been its only one:

"This is a hopeless appeal. I would dismiss it."

28. LORD JUSTICE BUXTON: I agree. Once it had been decided, absolutely correctly, not to seek to challenge the basis upon which Richards J analysed the law relevant to this matter then, for the reasons given by the Master of the Rolls, the appeal was bound to fail.
29. I would venture to add only one footnote. Much was said on behalf of Mr Bradley, and much was relied on, on the basis of the case of Nagle v Fielden in 1966, it being suggested that that case had identified a "right to work" that was a relevant consideration when one was considering disciplinary control of the members of the particular profession. As my Lord has pointed out, it is paradoxical, to say the least, for someone who has broken the rules of his profession then to seek to claim that he has nonetheless a right in uncontrolled terms to practise it.
30. Secondly, and more generally, Nagle v Fielden went no further than to say that the court could intervene when there was a general and discriminatory rule preventing a certain category of people practising a profession irrespective of their behaviour, their competence, or their disciplinary record. That comes out very clearly, for instance, and only for instance, in the judgment of Salmon LJ (page 655E) where he compared the Jockey Club's rule excluding women from holding a licence to a rule preventing a man from holding a licence because of the colour of his hair. He described that, in my respectful judgment entirely rightly, as capricious, just as Phillips J had described the then rule of the Jockey Club as dictatorial.
31. That is clearly addressing a completely different circumstance from that which is involved when someone who is allowed into the profession breaks the rules of it. I think that the Court of Appeal in Nagle v Fielden would have been astonished to think that their general observations could be used to undermine disciplinary decisions that were otherwise perfectly lawful. The considerations ventilated in Nagle v Fielden have, of course, now been overtaken by legislation. The rule that was struck down in Nagle v Fielden would nowadays be regarded not only as wholly unlawful but also as completely laughable. The case is a valuable general reminder of the extent to which professions can control their entry, but it says little or nothing in respect of how professions should conduct their disciplinary functions. Both functions are to be controlled by the rules set out by Richards J, which were properly and fully applied by the Jockey Club in this case. I also would dismiss this appeal.
32. LORD JUSTICE SCOTT BAKER: I too would dismiss this appeal for the reasons given by the Master of the Rolls.

Order: Appeal dismissed. Costs awarded in favour of the respondent.