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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Connell & anor -v- The Turf Club & anor [2014] IEHC 175 (03 April 2014)
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Cite as: [2014] IEHC 175
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Judgment Title: O'Connell & anor -v- The Turf Club & anor Neutral Citation: [2014] IEHC 175 High Court Record Number: 2013 658 JR Date of Delivery: 03/04/2014 Court: High Court Composition of Court: Judgment by: McGovern J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 175 THE HIGH COURT [2013 No. 658 JR] BETWEEN EDWARD O’CONNELL AND JAMES LAMBE APPLICANTS AND
THE TURF CLUB RESPONDENT AND
THE ATTORNEY GENERAL NOTICE PARTY JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 3rd day of April, 2014 1. This application by way of judicial review comes before the court arising out of an inquiry conducted by the respondent into the conduct of a horserace at Downpatrick in Northern Ireland. The first named applicant is a jockey and the second named applicant is a racehorse trainer, both licensed to carry on their respective trades by the respondent. 2. It was alleged that a suspicious betting pattern, in particular, the placing of a Stg.£10,000 “lay bet” with the British bookmaker, Betfair, was evident relating to the running of a horse named ‘Yachvilli’ in a race held at Downpatrick on 21st September, 2011. The horse had been ridden by the first named applicant and trained by the second named applicant. It was further alleged that the first named applicant had failed to ride the horse in such a manner as to allow it to run to its maximum ability in the race, contrary to the Rules of Racing (the “Rules”). 3. The applicants were respectively interviewed by officers of the respondent on dates in October 2011, June 2012 and December 2012, in relation to these matters. By letters dated 16th July, 2013, the respondent advised the applicants that the respondent’s Referrals Committee (the “Committee”) would, on 3rd September, 2013, consider the allegations against the applicants and three other individuals alleged to have an involvement in the matters at issue. The applicants were served under cover of same with papers prepared by the respondent, including a case summary, ‘Topics of Inquiry’, setting out particulars of the alleged breaches of the Rules, other items of evidence (including copies of the race video and recordings of the race) and copies of the Rules that were alleged to have been breached. 4. By letter dated 28th August, 2013, the solicitors for the applicants informed the respondent of their intention to institute these proceedings. On 29th August, 2013, leave was granted by Charleton J. to apply for the following reliefs by way of judicial review:-
(ii) in the alternative, a declaration by way of judicial review that the Rules of Racing hereinafter particularised were made ultra vires the respondent and/or without jurisdiction and/or otherwise than in accordance with law: 19A, 19C, 20, 22, 25, 272, 273(xiii), 273(vi), 273(viii), 273(ix), 273(xiv)(5), 212(a)(i) and/or 212(a)(ii); (iii) if necessary, a declaration by way of judicial review that sections 39 and/or 45 and/or 62 of the Irish Horseracing Industry Act 1994, as amended, are invalid having regard to the provisions of the Constitution, and in particular, Article 15.2.1° thereof; (iv) if necessary, a declaration by way of judicial review that sections 39, 45 and/or 62 of the Irish Horseracing Industry Act 1994, as amended, are invalid having regard to the provisions of the Constitution, and in particular, Article 34.1 thereof; (v) a declaration that the allegation made contrary to Rule 273(ix) of the Rules of Racing amount to an allegation of an extraterritorial criminal offence in respect of which the respondent is precluded from conducting a trial by virtue of Article 38.1 of the Constitution. Legal Issues Arising 7. In the alternative, the applicants submit that sections 39 and 45 of the Act of 1994 should be declared invalid, pursuant to Article 15.2.1° of the Constitution, in failing to set out principles and policies to guide the exercise of the authority vested thereunder in the respondent, and in failing to impose sufficient constraints upon the purported ability of the respondent to issue secondary instruments, representing in toto an impermissible derogation of the legislative functions. 8. The applicants’ final point broadly concerns the purported impermissible exercise by the respondent, pursuant to sections 39, 45 and 62 of the Act of 1994, of a judicial function without apparent limitations. The applicants, on that basis, seek declarations that each of any of the impugned sections is repugnant to Articles 34.1 and 37 of the Constitution. 9. In response, the respondent submits that it does not exercise a public law function and is not amenable to judicial review. Rather, the respondent claims that it is a private voluntary association governed by the law of contract. As such, the respondent contends that there is no delegated legislative function, as alleged, or at all, nor did the Oireachtas countenance, in the Act of 1994, the transposition of the Rules into the form of secondary legislation. In the alternative, the respondent claims that the applicants are without locus standi to pursue this application, or that they are estopped from pursuing these proceedings on the basis that they had voluntarily consented to be bound by the Rules. 10. The notice party’s submissions are supportive of the position advanced on behalf of the respondent, contending that while Horseracing Ireland and its predecessor, Irish Horseracing, are bodies of a “quintessentially public character”, the respondent is essentially a private body and is not amenable to judicial review. In the alternative, the notice party submits that the Act of 1994 and Act of 2001 (taken together, the “Acts” set out sufficient principles and policies to guide the respondent in the exercise of its purported legislative function, and that any quasi-judicial function is sufficiently limited to be constitutionally permissible. 11. Therefore, it appears to me that the legal issues arising in this application are as follows:-
(b) Do the applicants have locus standi to bring these proceedings? (c) Are the applicants estopped from maintaining these proceedings, by reason of their having previously agreed to be bound by the Rules? (d) Does the respondent exercise a delegated legislative function? If so, is the exercise of this function limited to the furtherance of principles and policies set out in the Acts? (e) Does the respondent exercise a judicial function? If so, are these powers impermissibly broad in their scope? (f) Are there any other factors which should influence the court in exercising its discretion to grant relief by way of judicial review? (g) What form of relief, if any, is appropriate in this case? 12. While the pre-1994 jurisprudence clearly establishes that the respondent was not, at that time, amenable to judicial review, the applicant argues that the position has changed entirely by virtue of the enactment of the 1994 and 2001 Acts. Section 39 of the Act of 1994 establishes the Racing Regulatory Body which is given a number of general functions for the purposes of that Act which are expressed to be:-
(b) to make and enforce the Rules of Racing and in so doing to promote integrity and fair play in horseracing; (c) to provide adequate integrity services for horseracing and (d) to licence racecourses under the Rules of Racing.”
(b) the Irish National Hunt Steeplechase Committee in relation to national hunt racing or (c) both in relation to horseracing generally.”
(b) in relation to national hunt racing, the Irish National Hunt Steeplechase Rules as laid down by the Irish National Hunt Steeplechase Committee.” 14. The position is somewhat similar to that of the Irish Coursing Club described by Clarke J. in Greenband Investments v. Bruton & Ors. [2009] IEHC 67, where he said at p. 21 of his judgment:-
6.2 The same section also places some control over the constitution of the club which is, as of the date of the Act, required to be in the form set out in the schedule to that Act. In addition, changes to its constitution can only occur, by reason of s. 26(1), with the prior written consent of Bord na gCon. 6.3 However, it does not seem to me that those provisions change the essential legal character of the ICC. It remains a members club. It is true to say that, in the ordinary way, as was argued by counsel for Greenband, a members club is governed by its rules which amount to a contract between the members which contract can, in turn, be altered in whatever way the rules provide. That common feature of a typical members club is not, in one sense, to be found in the case of the ICC where the arrangements between the members are specified in a schedule to an Act of the Oireachtas and can only be altered by the agreement of a statutory body in the shape of Bord na gCon. However, it does not seem to me to be appropriate to characterise the ICC as a ‘creature of statue’. It is not set up by the 1958 Act. It is not continued in existence by that Act. Rather the 1958 Act confers powers on the ICC and regulates the terms of its constitution and amendments of that constitution. The 1958 Act does not, in my view, alter the fundamental fact that the ICC has no corporate existence conferred on it, and thus can only exist as a members club albeit a unusual one whose constitution is determined and regulated by statute...” 15. One cannot ignore the fact that horseracing is a sport, even if it is carried on professionally. As Macken J. observed in Bolger v. Osborne [2000] 1 ILRM 250 at p. 259, “... on its face, decision on whether or not a horse runs as fast as it can or ought, has little apparent public law issues attaching to it”. 16. Nevertheless, it seems to me that it is no longer possible to look at the position of the respondent through the prism of Murphy v. The Turf Club [1989] IR 171 as the respondent has now been incorporated into the Racing Regulatory Body which has been established under the Act of 1994. Within Part III of that Act, are provisions concerning appeals against sanctions of the Racing Regulatory Body which require that the appeals procedure be created in a manner so as to ensure that they are heard “... in a fair and impartial manner” (s. 45(2)). 17. The Racing Regulatory Body is, in my view, amenable to judicial review. It is established under the Act of 1994. Quite apart from the requirements of Part III of the Act, and in particular, s. 45, the Racing Regulatory Body may issue an Exclusion Notice against persons who have not entered into any contractual arrangement with the respondent (s. 62). There can be no doubt that a person affected by such an Exclusion Order would be entitled to challenge the Racing Regulatory Body in respect of any want of vires or fair procedures in the purported exercise of its jurisdiction. The Act of 1994 placed the traditional role of The Turf Club on a statutory footing. The precise character and implications of this development are at the core of the dispute between the parties and will be considered in detail infra. In the long title of the Act of 1994, that legislation’s purpose was stated, inter alia, as being:-
(a) to be solely and independently responsible for the making and enforcing of the Rules of Racing and ensuring the particular rules governing the functions referred to in paragraphs (a) and (b) of section 8(1) of the Horse and Greyhound Racing Act, 2001, are complied with, (b) to provide adequate on-course integrity services for horseracing by employing, licensing, monitoring and controlling the activities of horseracing officials including the following— (i) inspector of courses, (ii) clerks of courses, (iii) clerks of scales, (iv) handicappers, (v) starters, (vi) judges, (vii) veterinary officers, (viii) veterinary assistants, (ix) medical officers, (x) stewards secretaries, and (xi) security officers (c) to license racecourses under the Rules of Racing and all participants in racing including all classes of trainers, jockeys, jockeys' valets, jockeys' agents and stablestaff, (d) to make all decisions relating to doping control, forensics and handicapping in respect of horse-racing, and (e) to be responsible for the representation of Irish horseracing internationally in respect of its functions under this Act.” Locus Standi 21. The applicants in this case challenge the constitutionality of sections 39, 45 and 62 of the Act of 1994, as amended. It is clear that they are persons who could be affected by sections 39 and 45 of the Act. But it seems to me that they could also come within the ambit of s. 62, even though that section would also encompass people who had not entered into any contractual arrangement with the respondent. In East Donegal Co-Operative v. Attorney General [1970] I.R. 317 at 338, Walsh J. said:-
Estoppel 24. The second named applicant first sought to be licensed by the Turf Club some time around 1999, and on other occasions subsequently made further applications to be licensed by the respondent. On or about 25th January, 2011, he completed and signed an application form for the renewal of a Trainer’s Licence under the Rules of Racing and the INHS Rules and he agreed to be bound by the Rules of Racing and INHS Rules and instructions and orders currently in force, together with any further additions and alterations which may be enforced in the future. He also agreed to be bound by the Rules of the recognised Turf Authority concerned when racing horses abroad. So far as Turf Club fines were concerned, he authorised the respondent to debit his Horseracing Ireland account where necessary for that purpose. 25. In those circumstances, the respondent and notice party argue that the applicants are estopped from bringing this application as it effectively amounts to a repudiation of the agreement they entered into. The applicants, for their part, argue that they had no option but to sign up to these conditions if they wished to take part in horseracing in Ireland. In R. v. Jockey Club ex parte Aga Khan [1993] 1 WLR 909 at p. 928, Farquharson L.J. stated:-
Does the respondent exercise a delegated legislative function?
31. The applicants claim that the respondent was not assigned the function of making, for example, a rule to preserve “the good reputation of horseracing”. But this is clearly not so. Section 39 of the Act of 1994 allows the Racing Regulatory Body (and through it the respondent), inter alia, “to make and enforce the Rules of Racing and in so doing to promote integrity and fair play in horseracing” and “to provide adequate integrity services for horseracing”. 32. The power enjoyed by the Oireachtas to provide for delegated legislation was reiterated by Fennelly J. in Maher v. Minister for Agriculture [2001] 2 IR 139 at 245:-
34. In the context of the legislation and Rules impugned in this case, the purpose of the legislative provisions which are highlighted is clear; namely, to promote integrity and fair play in horseracing. Each of the impugned Rules is consistent with and serves that purpose. Article 34.1 of the Constitution 36. I find nothing in the Acts to indicate an intention on the part of the legislature to delegate legislative or judicial powers to the respondent as part of the Racing Regulatory Body. The courts in this jurisdiction and elsewhere have taken the view that the regulation of sporting activities should not, as a general rule, come within the remit of judicial scrutiny but is best left to those organisations themselves. The respondent and the notice party argue that the provisions of sections 39, 45 and 62 of the Act of 1994, as amended, do not confer or purport to confer any power or function to administer justice and therefore do no entail any breach of Article 34.1 of the Constitution. They also argue that neither the making nor the enforcement of the Rules of Racing entails the administration of justice and that neither the respondent nor any of its committees is engaged in such a process. But even if they are to be regarded as conferring functions and powers of a judicial nature, the respondent and notice party argue that they are, at most, limited functions and powers within the meaning of Article 37.1 and, accordingly, do not involve any breach of Article 34.1 of the Constitution. They make the same argument with respect to the exercise of powers in connection with the Rules. 37. In McDonald v. Bord na gCon (No. 2) [1956] I.R. 217, the Supreme Court adopted the identification by Kenny J. in the High Court of the characteristic features of the administration of justice. In State (Plunkett) v. Registrar Friendly Societies (No. 1) [1998] 1 I.R. 1, the Supreme Court confirmed that, “for an activity to qualify as being an administration of justice, each of the five McDonald tests must be satisfied”, per O’Flaherty J. at p. 5. In this case, the impugned sections of the Act and the powers exercised by the respondent under the Rules of Racing do not satisfy the McDonald test and do not amount to an “administration of justice”. It is a relevant consideration that each of the applicants agreed to be bound by the Rules. 38. While the applicants raise an issue that an allegation made contrary to Rules 273(ix) of the Rules of Racing amounts to an allegation of an extraterritorial criminal offence in respect of which the respondent is precluded from conducting a trial by virtue of Article 38.1 of the Constitution, that claim cannot succeed because there was no question of either of the applicants being tried on criminal charges. The respondent does not exercise a judicial function. Insofar as it is given powers by virtue of the Rules or the provisions of the Acts, the powers are not impermissibly broad in their scope. Conclusion 40. The circumstances that arise in this case are somewhat unusual. The respondent is not a creature of the legislation but pre-existed it and operates in a somewhat hybrid state as it has been incorporated in the Racing Regulation Body established under the Act of 1994. The challenge must be viewed against the background that the Rules of Racing pre-existed the legislation and have been operated throughout the island of Ireland for many years. Indeed, they are comparable to what is deemed best practice in many other countries. That is the general background. 41. The respondent is a sporting body exercising a regulatory function over the applicants, being interested persons who have voluntarily submitted to its jurisdiction. The inquiry giving rise to this legal challenge has its origin in an allegation against the applicants that they failed to ensure that a horse was ridden on its merits and that they conspired to prevent a horse from running to its maximum ability and/or to commit a fraudulent or corrupt practice in relation to racing in Ireland. It is difficult to see how this is something which comes within the ambit of public law. 42. For the reasons I have expressed earlier, I am satisfied that the respondent is of such a character as to be amendable to judicial review because of its incorporation into the Racing Regulatory Body by the Act of 1994. I am also satisfied that the applicants have locus standi to bring these proceedings and are not estopped from doing so. 43. Insofar as the respondent (through the Racing Regulatory Body) exercises a delegated legislative function, the exercise of this function is limited to the furtherance of principles and policies set out in the Acts and is necessary “to promote integrity and fair play in horseracing…” as provided for in s. 39 of the Act of 1994 and to give effect to the objectives of the Acts. 44. The respondent does not exercise a judicial function. 45. The applicants have not established any grounds for the relief claimed.
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