England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
RECORDER BEDINGFIELD
REF: 1UD65167

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/06/2013

Lord Justice Maurice Kay :

1. The Greyhound Board of Great Britain (the Board) exercises regulatory functions in relation to greyhound racing. It is not a statutory body. It is a private sector regulator constructed on contractual foundations but which, when exercising its disciplinary powers, is subject to requirements of fairness, whether or not they are expressed in the rules it has adopted. Mr Christopher Cronin was a greyhound trainer licensed under the Board's Rules of Racing (the Rules). In January 2010 the Board received a complaint that he had mistreated a litter of greyhound puppies. An investigation eventually resulted in proceedings under the Rules before the Disciplinary Committee (DC). Following a hearing in December 2010 Mr Cronin was found guilty of breaches of the Rules. He was given a severe reprimand, fined £750 and ordered to pay £10,000 towards the Board's costs. Although the Rules provide for an appeal to an Appeal Board (AB), Mr Cronin did not pursue one within the prescribed time or at all. Nor did he pay the fine or the costs. His licence expired by effluxion of time on 31 December 2010 without his making any application to renew it.
2. On 27 July 2011 the Board served a statutory demand in respect of the unpaid fine and costs. Mr Cronin did not pay them. Instead, on 30 September 2011, he commenced the present proceedings. Although he had been represented by solicitors and counsel in the disciplinary proceedings, he commenced these proceedings in the County Court as a litigant in person. In his claim form, Mr Cronin stated:

"The GBGB infringed my basic human rights on the grounds of:

1) the right to a fair trial;

2) a denial of natural justice in that they were biased and I was denied the right to be heard;

3) the right to work;

4) a statutory right of appeal;

5) ultra vires – the GBGB exceeded their powers in that the case was outside of their jurisdiction;

6) their findings were inconsistent with the general law;

7) irrational;

8) a failure to issue reasons for their findings."

The claim form was struck out by District Judge Collier who considered the case on paper. However, on 26 January 2012, Mr Cronin, still acting in person, persuaded District Judge Molineaux to reinstate his claim. The Board appealed and, on 12 March 2012, following a hearing at which both parties were represented by counsel, Mr Recorder Bedingfield allowed the appeal and the claim form was again struck out.

3. In order to appeal to this Court, Mr Cronin needed to satisfy the second appeals test. Following consideration of the papers, Sir Scott Baker refused permission to appeal, observing:

"Your claim against the GBGB does not disclose a cause of action. The absence of reasons did not prevent your appealing against the Disciplinary Committee's decision."

That was a reference to the right to appeal to the AB.

4. On 2 October 2012, a renewed application for permission to appeal was heard by Elias LJ. It is important to keep in mind the grounds of appeal which had been settled by counsel following the conclusion of proceedings in the County Court. They were as follows:

"(a) It was wholly and fundamentally wrong not to allow the Appellant to challenge the Respondent in the High Court as the District Judge had ruled in the interests of justice. The learned Recorder was wrong to interfere with that ruling and should not have allowed the appeal and/or interfered with that principle; and

(b) The Respondent should have given reasons for finding against him in a disciplinary inquiry as this fettered his route of appeal and interfered with his civil rights; and

(c) The learned Recorder's judgment makes no analytical sense and is misdirected, if not obscure, in many aspects of the judgment based on both the facts and law presented."

5. I find grounds (a) and (c) to be vague and less than intelligible and that may explain why Mr David Lock QC, who now leads a team including two junior counsel and an instructing solicitor, has put the "reasons" ground at the forefront of his submissions. It was not until a late stage in the course of the hearing of the appeal before us that an application was made for permission to amend the grounds of appeal. That application was refused for reasons to which I shall return later.
6. Following an oral renewal hearing, Elias LJ granted permission to appeal but it is not clear to me which ground or grounds moved him to do so. Indeed, it is apparent from his judgment that he was mainly influenced by a concern that Mr Cronin should not be denied the opportunity to take his case to trial. Elias LJ said:

"I am acutely conscious of the dilemma here of adding cost upon cost in these proceedings but it does seem to me that, one way or another, if he has a good claim, he should be allowed to pursue it in some form in the law courts. He would be able to start fresh proceedings to make clear what his case is, so I would hope that this case may not have to go to an appeal, that the … Board will concede the appeal – and although I can quite see there may be some difficulties with that unless some arrangement can be made about costs or perhaps making costs conditional on the ultimate outcome of any case that is heard. But that is for the parties. For the moment all I can do is say that I am concerned that if this appeal is not allowed then this man may be in a position where he is subject to bills of cost which he cannot pay and which, until paid, will bar him from carrying out his profession which is the only real business he knows."

7. It is apparent from earlier passages in his judgment that Elias LJ thought that the only arguable part of the claim as currently drafted was the reasons challenge and that, as District Judge Molineaux had indicated at the original hearing, Mr Cronin ought to have amended his claim so that, in the words of Elias LJ, "it would properly reflect the full case that he had to advance". However, no draft amended claim was produced before Mr Recorder Bedingfield or, for that matter, before Elias LJ. Nevertheless, at the renewal hearing, wide-ranging and very serious allegations were made about the conduct of the disciplinary proceedings. In the normal way, the Board was not represented at that hearing.
8. Since the hearing before Elias LJ, Mr Cronin's legal team have produced a quantity of new documentation, including two versions of proposed Particulars of Claim, in the later of which some of the more serious allegations are abandoned. Perhaps unsurprisingly, Elias LJ's sanguine hope that the Board would concede the appeal and enable Mr Cronin to go back to square one with amended Particulars of Claim did not bear fruit. The Board, in accordance with its entitlement, strenuously opposes the appeal. Unlike Elias LJ, we have had the opportunity of hearing both sides of this unfortunate dispute.

The ambit of the appeal

9. It is important to keep in mind that the appeal is against a striking out order. We are not concerned with whether Mr Cronin's claim is well-founded, only with whether it is arguable. On the other hand, its potential merit can be measured only by reference to the "reasons" challenge. As I have explained, the unamended grounds of appeal raise no other serious issue.

Discussion

10. The Disciplinary Inquiry was initiated by the Board pursuant to Rule 161. The procedure is governed by Rule 161 which contains detailed provisions. They do not include a requirement to give reasons for the ultimate decision. Following the hearing, the decision was confirmed to Mr Cronin by a letter dated 15 December 2010. It stated:

"I confirm that they found you in breach of [specified Rules] …

The Disciplinary Committee ordered under Rule 160(vi) that you be reprimanded, fined the sum of £750 and impose an order of £10,000 costs to be paid by you. In imposing this penalty the Disciplinary Committee took into account your exemplary record and the testimonials produced on your own behalf, but expressed their disappointment at your complete lack of acceptance and remorse concerning these events.

A summary to this effect will appear in the GBGB Calendar to be published on January 14^th 2011. The Disciplinary Committee request the fine to be paid by the 14^th of March 2011 … In the light of our discussion after the hearing on the 14^th December your representative … might wish to contact me to discuss this particular aspect further.

Failure to pay these monies will mean that you will be entered on to the Forfeit List … and possible civil proceedings to recover the monies owed …

Should you wish to appeal the Disciplinary Committee's decision you would be required to lodge your appeal within 28 days of the inquiry date and in accordance with the appeal procedure …"

11. We have been provided with transcripts of the hearing. It is apparent that the allegations were fiercely contested. The facts were disputed. One of the witnesses against Mr Cronin was his own veterinary surgeon. Both sides were represented by counsel. It is noticeable that the sanction did not ban Mr Cronin from his work as a trainer of greyhounds. It is also noticeable that the door was left open "to discuss this particular aspect" of the payment of the fine and costs but it does not seem that Mr Cronin availed himself of that possibility.
12. By Rule 163(ii), there is a right of appeal to the AB, the procedure for which is set out in Appendix III. The AB comprises between three and five members and it is chaired by a member or former member of the judiciary or by a senior barrister or solicitor. Appendix III provides, among other things, that any Notice of Appeal lodged outside the 28 day period "will not be considered"; that it must set out "the ground(s) of appeal and the substantive injustice of allowing the decision appealed against to stand" and "the facts upon which the appeal is based"; and that the appellant "shall lodge the sum of £750 as the appeal fee" (although there is a power to grant relief on the ground of hardship). The appeal "shall be by way of review of the Inquiry". Although paragraph 11 of Appendix III provides that the AB "shall not consider new evidence", paragraph 18 states that it "may hear oral evidence". Moreover, notwithstanding the strict time limit, there is a power to give a direction "lengthening or shortening any time limit". Thus, Appendix III is not without ambiguities. However, it contains this important provision in paragraph 21:

"The Appeal Board shall, upon the receipt of a request in writing … give written reasons for the decision … "

As I have related, Mr Cronin did not appeal to the AB. A request was made on his behalf in February 2011 for the Inquiry to be reopened (a procedure provided for by Rule 163) but this was not granted.

13. I now turn to the two crucial issues which arise on this appeal.

(1) A duty to give reasons?

14. The Board's primary case is that the DC was under no duty to give reasons for its decision, either pursuant to the Rules or as a matter of law. It seeks to rely on McInnes v Onslow-Fane [1978] 1 WLR 1520 which was concerned with a licensing decision by the British Boxing Board of Control. Megarry V-C held that, although appropriate requirements of natural justice and fairness were to be imported, (and I quote from the headnote):

"… since the case … was not one involving forfeiture of an existing right or deprivation of an existing position, and was equally not one where the plaintiff had any legitimate expectation that his application for a boxers' managers' licence would succeed, the board, while under a duty to reach an honest conclusion without bias and not in pursuance of any capricious policy, were under no obligation to give the plaintiff even the gist of their reasons for refusing … his application."

15. On behalf of Mr Cronin, Mr Lock submits that this approach must now be seen in the light of more recent authorities in which regulatory bodies (whether statutory or voluntary) which make decisions of a disciplinary nature, which decisions may have a profound impact on a person's ability to participate in his chosen occupation, are generally required, as a matter of procedural fairness, to provide reasons for their decisions. He refers to a number of authorities, the high watermark of which is Phipps v General Medical Council [2006] EWCA Civ 397. In his judgment, Wall LJ referred to the developing law – "what was exceptional in 2001 may well have become commonplace in 2006" (paragraph 73) – and did not confine his observations to statutory bodies (see, for example, paragraph 78).
16. Reminding myself that, at this stage, we are concerned only with the arguability and not with the ultimate correctness of Mr Cronin's case, I am satisfied that the absolutist stance of the Board is arguably wrong and that, at least at some stage in the procedure, a duty to give reasons arises. Even if an affected person has no wish to challenge an adverse decision, he may be entitled, as a matter of law, to such reasons. However, that is not the end of the matter.

(2) Overall fairness and the right to appeal

17. It is axiomatic that in a case such as this the ultimate concern is with the overall fairness of the available procedure. In Modahl v British Athletic Federation Ltd [2002] 1 WLR 1192, Latham LJ extracted the following principle from the opinion of the Privy Council in Calvin v Carr [1980] AC 574:

"… there was no absolute rule that defect in natural justice at an original hearing could or could not be cured by appeal proceedings, and that, where a person had joined an organisation or body and was deemed on the rules of that organisation in the context in which he joined to have agreed to accept what in the end was a fair decision notwithstanding some initial defect, the task of the courts was to decide whether in the end there had been a fair result reached by fair methods."

Later in his judgment, Latham LJ said (at paragraph 61):

"It seems to me that in cases such as this, where an apparently sensible appeal structure has been put in place, the court is entitled to approach the matter on the basis that the parties should have been taken to have agreed to accept what in the end is a fair decision. As Lord Wilberforce said [in Calvin v Carr], this does not mean that the fact that there has been an appeal will necessarily have produced a just result. The test which is appropriate is to ask whether, having regard to the course of the proceedings, there has been a fair result … The question in every case is the extent to which the deficiency alleged had produced overall unfairness."

18. This approach is also illustrated by Bradley v The Jockey Club [2004] EWHC 2164 QB in which Mr Bradley sought to challenge a disqualification which had been imposed on him by an internal Appeal Board which had reduced a disqualification from 8 years to 5 years. The rules of the Jockey Club provided that if the Disciplinary Committee imposed a penalty which was considered to be excessive, there was an express right of appeal to the Appeal Board on the ground that "the penalty or sanction imposed is disproportionate". At first instance, Richards J stated (at paragraph 57):

"In those circumstances I can see no basis for implying a term whereby the Jockey Club enters into a contractual undertaking to the effect that the Disciplinary Committee will impose only a proportionate penalty. There cannot be said to be an unexpressed intention to that effect: the evident intention is that any complaint about the proportionality of the penalty is to be pursued by way of appeal. Nor is such a term necessary for the efficacy of the contract: an appeal provides an effective remedy."

On appeal (2005 EWCA Civ 1056) Lord Phillips MR commended the entirety of Richards J's analysis (paragraph 17).

19. In the present case, Mr Cronin complains that he was in no position to pursue an appeal to the AB because he did not know the reasons for the decision of the DC. Without having been provided with the reasons, he claims that he was unable to formulate grounds of appeal in accordance with the Rules. Thus, it is said, he cannot be blamed for not having pursued an appeal and the potential availability of reasons following a determination by the AB is irrelevant.
20. I am wholly unpersuaded by this analysis. Even without being provided with reasons by the DC, Mr Cronin and his advisors must have been well aware that the stark conflicts of evidence had been resolved to his disadvantage. They had also had made available to them DVD recordings of the entire proceedings which were delivered with the decision letter of 15 December 2010. That, coupled with their knowledge of the proceedings, would have been sufficient material with which to commence an appeal. Thereafter, Mr Cronin or his advisors could have applied to the Chair of the AB pursuant to paragraph 12 of Appendix 3 for "any order, … any direction or instruction considered necessary for the proper conduct of the proceedings". As Mr Louis Weston submits on behalf of the Board, this could have included a direction or instruction that the DC provide reasons if possession of reasons were considered "necessary for the proper conduct of the proceedings". One way or another, all necessary material could have been placed before the AB on the hearing of an appeal. If the outcome of such an appeal had been unfavourable to Mr Cronin, he would have been entitled to written reasons for the decision of the AB by reference to paragraph 21 of Appendix 3. Thus, looking at the internal procedures as a whole, I do not consider it arguable that the initial absence of reasoning from the DC points to overall unfairness. Moreover, I cannot escape the conclusion that the reasons challenge to the decision of the DC is being used as a smokescreen. As I have related, although a request was made on Mr Cronin's behalf for the Inquiry before the DC to be reopened pursuant to Rule 163, for whatever reason he chose not to pursue an appeal. He simply allowed his licence to lapse at the end of 2010 and it was not until August 2011 when he applied to set aside the statutory demand which had been served on 27 July that he formulated a case against the decision of the DC. Even then, he did not complain about an absence of reasons. His complaints were to the effect that he had not been given the opportunity to give his version of events, that any appeal would have been fruitless and that "I still do not acknowledge that the members of the Committee are independent". If those allegations (unimpressive though they are) could be made in August in the context of an application to set aside a statutory demand, there is no reason why they could not have been made in support of a timely appeal to the AB following receipt of the decision of the DC.
21. I am entirely satisfied that the proposed reasons challenge is unsustainable having regard to the requirement of overall fairness and to the historical development of this litigation.
22. As I stated in paragraph 6, above, at a late stage in the course of the hearing of the appeal before us, we received and refused an application to amend and widen the grounds of appeal. No draft amended grounds of appeal were placed before us. Mr Weston referred us to correspondence which took place in the months following the grant of permission to appeal by Elias LJ. As I have recorded, this period of time saw the production of successive draft Particulars of Claim for use in any resumed proceedings at first instance but no attempt was made at that time to amend the present Grounds of Appeal. On 20 December 2012 the Board's solicitors wrote to Mr Cronin's solicitors in the following terms:

"We have now had the opportunity to meet with our client and take instructions.

We do not consider that your client's draft Particulars of Claim contain an arguable case and further make scandalous and unsubstantiated allegations. We note further that your draft Particulars of Claim contain allegations that are not contained in any Grounds of Appeal.

Our client does therefore intend to contest your client's appeal."

23. From that time at the latest, Mr Cronin was on notice that his Grounds of Appeal might have to be amended now that it was clear that the Board was in no mood to capitulate. In these circumstances, it would have been wholly unjust and prejudicial to the Board to permit an unpleaded amendment towards the end of the hearing before this Court on 9 May 2013. This being the case, it is unnecessary to address the proposed amended grounds as they were advanced orally before us.

Conclusions

24. For the reasons I have given I would dismiss this appeal which I regard as opportunistic.

Lord Justice Richards:

25. I agree.

Lord Justice Pitchford:

26. I also agree.