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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Moran & Ors v. O’Sullivan & Ors [2003] IEHC 35 (18 March 2003)
URL: http://www.bailii.org/ie/cases/IEHC/2003/35.html
Cite as: [2003] IEHC 35
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JUDICIAL REVIEW
159 JR/2003
BETWEEN
APPLICANTS
JUDGMENT of Ms. Justice Carroll delivered on the 18th day of March 2003.
The Appeals and Referral Committee (the Committee) being the first, second and third respondents are a committee of the Turf Club, represented by the fourth, fifth and sixth respondents as trustees. The Committee made a decision on 3rd March 2003 to suspend the Applicants' horse, David's Lad from competitive racing from 4th March 2003 for 42 days. This decision was made following an appeal from the decision of the Acting Stewards at Naas Racecourse on 23rd February 2003 to suspend the horse from competitive racing for the same period from 23rd February 2003 as a result of the poor performance of the horse in a competitive race at Naas on the same day. The horse was last the whole way round in a field of eight. The trainer, Mr. A. J. Martin was fined €1,000 and the jockey, Mr. T. Murphy, was suspended for seven race days. They are not challenging those penalties and are not part of this application.
The Applicants applied for and were granted liberty by order of Mr. Justice Quirke on 6th March 2003 to bring judicial review proceedings impugning the decision of the committee on the grounds that:-
1. The committee acted ultra vires in suspending David's Lad in the absence of any evidence of wrong doing on the part of the applicants. The Rules do not impose strict or vicarious liability on the Applicants with regard to wrongful conduct of the trainer or jockey.
An additional ground was added at the hearing of these proceedings, namely, that the Applicants were entitled to be notified of and be present and/or represented at the Acting Stewards inquiry on 23rd February 2003. Since they were not, it was
1. in breach of fair procedures and natural justice and
2. it deprived them of a two tier inquiry procedure as provided under the Rules, namely, an initial hearing before the Acting Stewards and a right of appeal to the Committee.
The Respondents in their statement of opposition claim that Mr. A. J. Martin the trainer was appointed by the Applicants as their authorised agent pursuant to the Rules and the Applicants are vicariously liable for his actions. The decision of the Committee was based on the finding that the racecourse was used as a training ground. It was not based on any finding of wrong doing against the applicants. The suspension of David's Lad was a consequence of the findings against Mr. Martin and Mr. Murphy under Rule 14 (iii) and Rule 87 (x). The suspension is not a sanction imposed on the owner. Any prejudicial effect is coincidental. The Applicants undertook to be bound by the Rules in force from time to time.
With regard to the additional ground allowed to the Applicants, the Respondents in their amended statement of opposition denied the Applicants were
entitled to be present at the Acting Stewards inquiry. The Applicants were not responsible for the running of the horse. They were represented by the trainer, their authorised agent, Mr. Martin.
The Respondents deny that the parties entitled to appeal under Rule 256 are necessarily required either under the rules or by natural justice to be notified of and to attend the stewards inquiry.
The Applicants exercised their right of appeal without condition or objection concerning non-appearance at the stewards inquiry. They are therefore now estopped from raising their non attendance at the inquiry in these proceedings, which were only taken because their appeal was unsuccessful.
The statutory framework in which the respondents operate was outlined in my judgment on the interlocutory application and bears repeating here.
The Racing Regulatory Body was established under Section 39 of the Irish Horse Racing Industry Act 1994 (the 1994 Act) as amended by the Horse and Greyhound Racing Act 2001 (the 2001 Act).
The Racing Regulatory Body is defined in Section 2 of the 1994 Act and means
(a) The Irish Turf Club in relation to flat racing
(b) The Irish National Hunt Steeplechase Committee in relation to national hunt racing and
(c) Both in relation to horse racing generally.
Its general functions are set out in paragraph 6 of the Schedule to the 2001 Act including to be solely and independently responsible for making and enforcing the Rules of Racing and also adequate on-course integrity services.
The Rules of Racing are defined in Section 2 of the 1994 Act and means
(a) in relation to flat racing the Rules of Racing as laid down by the Irish Turf Club and
(b) in relation to national hunt racing the Irish National Hunt Steeplechase Rules as laid down by the Irish National Hunt Steeplechase Committee.
The latter are the rules relevant in this case (referred to as the Rules).
"Integrity services" are defined in Section 2 and mean "those services at a racecourse provided at a race fixture or related to the running of it which are operated by or on behalf of the Racing Regulatory Body for the purpose of enforcing discipline and ensuring that horses are run fairly and properly."
The 2001 Act, Section 5, set up a new body known as Horse Racing Ireland which took over some of the functions of the Turf Club as from the 1st of May 2002. The general functions of the body are set out at Section 8.
Under the Rules (Rule 146) a person has to have a trainer's licence to train a horse belonging to someone who is not a relation (as defined) in order that the horse is qualified to run in races under the Rules.
A formal application for permission to train a horse has to be made to Horse Racing Ireland (Rule 148(vi)). Mr. Martin is the permitted trainer of the horse.
The owner of a horse must register as owner with Horse Racing Ireland (Rule 119). Where the horse is owned jointly by a syndicate one of the owners must be registered as "registered agent" entitled to exercise the powers of an owner (Rule 122(vi)). Mr. Edward Moran, the first named Applicant, was registered 21st November 1999 as the registered agent of the syndicate. He applied on 28th November 1999 for owner registration, undertaking to be bound by the Rules. On registration of a horse, the owner completes an "authority to act" appointing an authorised agent to deal with the horse for the purposes of the Rules
including the training and all aspects of running the horse. Mr. A.J. Martin is the authorised agent of the applicants having been appointed by Mr. Moran the registered agent on 30th November 1999.
Rule 212 provides "Every horse which runs in a race shall be run on its merits (i) The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure his/her horse is given a full opportunity to run or of obtaining the best possible place."
In the Instructions Section of the Rules at p. 209 under the heading "Running", it states "The Stewards of the Turf Club and INHS Committee wish to draw attention to Rule 212 and they warn all trainers and permit holders that they will not tolerate the practice of running horses in races in a condition to preclude their chances of winning and that they must not run horses in races solely for the purpose of giving them a school. The racecourse must not be used as a training ground and all horses, including those having their first run, must be ridden to attain the best possible place and they must not be deliberately eased before passing the winning post without good reason. Attention is also drawn to Rules 20 (xii) and 87 (x). Offenders shall be dealt with in accordance with the provisions of Rule 14.
Rule 13 provides "the Stewards have power to regulate control take cognisance of and adjudicate upon the conduct of all officials and all owners, nominators, trainers, riders, grooms and other person attendant on horses and all persons frequenting the stands or other places used for the purpose of the meeting." Rule 14 (i) deals with the power of the Stewards of a meeting to punish at their discretion (a) any person subject to their control with a fine not exceeding €4,000 for breach of the Rules and (b) any rider subject to their control with various punishments for breach of the Rules etc.
Under sub paragraph (ii) in certain cases where a punishment in excess of the limits laid down would be warranted, the Stewards may report the matter to the Committee to decide the matter. An appeal from that decision lies to the stewards of the governing bodies.
Lastly at sub paragraph (iii) "In any case where a horse is the subject of an inquiry whether in relation to the training running or riding or howsoever relating thereto the horse may, at the discretion of the stewards, be disqualified for such time not exceeding 60 days and for such race or races subsequent to the race in question as they shall determine."
A similar provision is made in Rule 87 (x).
Rule 148 (i) provides "(1) A trainer shall be responsible (except where otherwise provided in these rules) for everything connected with the running of a horse trained by him/her and shall be liable to any sanction available to the stewards unless the trainer provides a satisfactory explanation."
This rule was amended following the case of Bolger v. The Turf Club [2001] I.L.R.M. 250 by the addition of the words from "shall be liable" to "satisfactory explanation". In that case the jockey was suspended for eight days, the trainer was fined €1,000, the horse was banned for 30 days and no charge was made against the owner. The trainer sought to have the decision set aside. The case was based on the jockey's riding of the horse and it was accepted that there was no misconduct on the part of the trainer.
It was held that the Rules did not provide for strict or vicarious liability. Therefore in order for a breach of the rules to occur there had to be some fault on the part of the trainer. Since there was no evidence of any act or omission on the part of
the trainer a finding of fault, absent strict or vicarious liability, had no basis in fact, was irrational and in breach of the contract existing between the parties.
The first part of the case for the Applicants is that there was no entitlement for the Turf Club to impose any sanction on the Applicants because they were not guilty of any wrong doing. They were not vicariously liable for any acts of the jockey or trainer. There is nothing in the rules imposing strict liability on owners.
Under Rule 148 (i) there is strict liability now and the onus shifts to the trainer unless there is a satisfactory explanation. No where in the rules is there strict liability on the owner or vicarious liability imposed. A suspension of the horse is a sanction on the owners and they suffer a loss.
Rule 14 which speaks of fines and penalties is the language of the criminal law. Under Rule 14 (iii) the horse may be disqualified. This is in the context of a clause dealing with punishment.
Bolger's case (which resulted in the change of rule re the trainer) held that there was no strict liability or vicarious liability under the rules. No change has been made on the status of the owner. An offence must be made out for the imposition of a sanction and there is no scheme of vicarious or strict liability under the rules for the owner. There cannot be vicarious liability implied because that would be to import into disciplinary hearings a notion of agency. While in civil matters an agent may bind the principal, in disciplinary matters an agent cannot commit a principal to vicarious liability. The mere appointment of an agent does not impose any disciplinary or quasi disciplinary liability on the owner.
In Re The Solicitors Act 1954 (1960 I.R. 293 at 274) the power to strike off a solicitor is a disciplinary/punitive power but not a criminal cause or matter. It is a sanction of such severity that its consequences may be much more severe than a term
of imprisonment. In O'Laoire v. Medical Council (Unreported Keane J. 27th January 1995) it was held that where the consequences of erasure or suspension of a medical practitioner was at stake, the standard of proof appropriate in criminal cases should apply.
The disqualification of a horse is the imposition of a penalty or a punishment on the owners. It must be clear from the Rules that the actions of an agent will damnify the principle even if the principle is not involved.
The suggested offence was committed by the trainer and the jockey. The trainer was fined a €1,000; the jockey was suspended for seven days of domestic racing but the disqualification of the horse falls squarely on the owner. It cannot be done if the owner had no fault.
On the second point it was submitted on behalf of the Applicants that if a separate sanction is to be imposed on the owner, the owner should be brought in to the Acting Stewards inquiry to make submissions. It is no answer to say the authorised agent, who is the co-accused, is there.
Rule 256 provides for an appeal from the decision of the Acting Stewards to the Appeals and Referrals Committee by any owner trainer or rider of any horse running in the race or any person dealt with by the stewards ... Such appeal shall be by way of full re-hearing and the decision of the Committee shall be final. The Committee may confirm or reverse the decision of the Acting Stewards wholly or partly as they think fit but they cannot increase any penalty beyond the limits imposed on the stewards under Rule 14.
There is no appeal from the decision of the committee. If the owners were not brought into the acting stewards inquiry, there will not be two hearings, one at the first instance and one on appeal (c.f Stefan v. Minister for Justice [2002] 2 I.L.R.M.
134 which held the asylum process is a two tier process). In this case, because the primary hearing was flawed there was no two tiered approach.
For the Respondents it was submitted that Mr. Martin the trainer was appointed as authorised agent by Mr. Edward Moran, the first named Applicant, as registered agent of the members of the syndicate who are the Applicants. In applying for owner registration he undertook to be bound by the Rules in force from time to time. A trainer cannot take a horse into training into his/her care without the permission of Horse Racing Ireland (Rule 148 (vi)). Under Rule 20 (xxii) the Turf Club can arrange for entry into training establishments to make an inspection. Under Rule 147 (i) a trainer shall train in strict compliance with the rules. Under Rule 148 a trainer is responsible (except where otherwise provided in the rules) for everything connected with the running of a horse trained by him/her. The horse must run on its merits. (Rule 212). Then under Rule 14 (iii) a horse the subject of an inquiry may be disqualified for up to 60 days.
Therefore in horse racing only one person is authorised to train a horse. The trainer is pivotal to the running and training. It is not the owner. In the Bolger case there was no evidence the trainer was responsible although the horse did not run on its merits. The trainer was fined, €1,000. Macken J. decided there was no strict liability or vicarious liability so a penalty could not be imposed. Under the Rules of Racing there is no requirement that the owner attend a race meeting at which he has a runner. Whether he is there or not, is not within the scheme of things. When the inquiry was held at which the trainer and jockey were interviewed why the horse was last the whole way round the track, the presence of the owner was not necessary as he was not responsible for the training or riding.
The Acting Stewards were entitled under Rule 14 (i) to fine the trainer and suspend the jockey and under (iii) to suspend the horse as the racecourse was used as a training ground. The trainer is the authorised agent of the owner and the owner is therefore vicariously liable for the actions of the trainer.
The Applicants equate the suspension of the horse as equivalent to punishment for a criminal offence or disciplinary sanction. The consequences of not being allowed run David's Lad cannot be the equivalent of a prison sentence. There has not been any criminal offence or anything equating to a criminal offence committed by the owners. Since there is no criminal offence the ordinary law of agency applies. The Applicants left everything to the trainer.
In relation to the absence of the Applicants from the stewards inquiry, the Respondents submit that their authorised agent attended and gave evidence and this was sufficient. Alternatively they claim that by participating in the appeal from the stewards inquiry with separate representation, they consented to the jurisdiction of the committee and are therefore are now estopped from complaining about the stewards inquiry (see Corrigan v. The Irish Land Commission [1977] I.R. 317).
In considering this matter it seems to me that it must not be forgotten that racing is a sport, albeit that for many involved it is a professional sport. There is however no question of the Applicants livelihood being involved here. The Racing Regulatory Body which includes the Turf Club is concerned with ensuring that horses are run fairly and properly. It is central to the sport of racing that a horse should be run on its merits in a race. If not, as stated in Mr. Barry's affidavit, the competitive element essential to the sport is lost. Those who backed the horse lose their bet. If a horse is recorded as having performed poorly in its most recent race, it may be ignored by the public with consequentional impact on betting odds. It can be an
advantage for a horse to have a training run in a competitive setting as part of its build up to a major event. Such a training run can give a horse a competitive advantage over other horses. If it gains an unfair advantage over other horses due to the action of its trainer or jockey, it is unfair to permit the horse to benefit. The unfair advantage persists even if no fault is attributable to the owner.
All the owners agreed to be bound by the rules. It is provided in those rules under Rule 14 (iii) that if the horse is the subject of an inquiry whether in relation to training running or riding or howsoever related thereto, the horse may be disqualified for up to 60 days. Every owner knows or is supposed to know that rule. It occurs in the context of the power of the stewards to punish persons including trainers and jockeys by fines, or in the case of a jockey, suspension. In the Bolger case there was a punishment imposed on the trainer who had not committed any fault. In that context a specific provision in the rules for strict liability was necessary if a punishment were to be imposed. But it should be noted that the imposition of a fine on a trainer was a punishment relating to his profession.
In my opinion the disqualification of a horse under Rule 14 (iii) is not a punishment imposed on the owner but is a consequence arising out of the actions of the trainer and or jockey which necessarily arises in the interest of ensuring that races are run fairly and properly. It would make nonsense of a rule designed to keep racing fair if a horse could not be suspended unless the owner had been at fault in some way. The owner bears no opprobrium if his horse is suspended for a period. Every owner should know that the risk exists of suspension if, for some reason out of his control, his horse is the subject of a stewards inquiry.
The applicants therefore fail on the first ground because the suspension of a horse is not a punishment imposed on the owner.
As to the necessity to attend the stewards inquiry, since there is no punishment imposed on the owner and the owner is not involved in the disciplinary process, the ordinary rules of agency apply. As the authorised agent the trainer can make and in this case did make representations why there should be no suspension of the horse. The owners had the opportunity to make the same representation to the Committee. The procedure laid down in the Rules for a stewards inquiry followed by an appeal to the committee is not dependant on the owner taking part. In many cases the owner may not be present at the race. In this case the Applicants were not involved in the disciplinary procedure and no punishment was visited on them. I repeat again, the suspension of a horse was the consequence of an unfair advantage accruing to the horse by the actions of the trainer and the jockey. The suspension was independent of any wrong doing or involvement of the owner.
The alternative argument advanced by the Respondents is also valid. The applicant played a full part in the inquiry by the Committee without raising any question as to its jurisdiction. They are estopped from now challenging the result just because it went against them. Corrigan v. The Irish Land Commission [1977] I.R. 317 cited by the respondents is a case in point.
The applicants lose on this point too and the application is dismissed.