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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Connell & anor -v- The Turf Club [2015] IESC 57 (25 June 2015)
URL: http://www.bailii.org/ie/cases/IESC/2015/S57.html
Cite as: [2017] 2 IR 43, [2015] IESC 57
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Judgment
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THE SUPREME COURT 218/14 Denham C.J.
Edward O’Connell & James Lambe Applicants/Appellants and The Turf Club Respondent
Judgment of Mr Justice O’Donnell delivered on the 25th of June, 2015.
1. In July 2013 the respondent herein, the Turf Club of Ireland, notified the applicants/appellants, Edward O’Connell, a professional jockey, and James Lambe, a licensed racehorse trainer, that the Referrals Committee of the Turf Club would consider allegations of breaches of the Rules of Racing against them (and four other individuals) in connection with the placing of a bet of £10,000 as a lay bet with the British betting exchange/bookmaker, Betfair, on a horse called “Yachvilli”, in a race at Downpatrick racecourse in northern Ireland. The bet was that Yachvilli would lose the race and the allegations into which the Referrals Committee was to inquire were to the effect that either the jockey had communicated information as to the condition of the horse and its likelihood of winning the race, or had not permitted the horse to run to its true ability.
2. There is no doubt that at the core of the valuable business that is Irish horseracing, with, as this case shows, an international impact, is the essential requirement that races be fairly run. Accordingly, allegations such as those under investigation here are serious matters which require investigation and determination and which therefore, may have very serious consequences for persons like the applicants whose livelihood may be involved. 3. Before the Referrals Committee investigation could commence the applicants initiated judicial review proceedings, raising a number of challenges to the jurisdiction of the Turf Club to investigate and adjudicate upon the allegations. Leave was granted on the 29th of August 2013. In its response, the Turf Club raised a preliminary procedural objection contending that it was not amenable to judicial review. The applicants for their part maintained that the proceedings were subject to judicial review contending that the Turf Club was exercising statutory functions pursuant to the Irish Horseracing Industry Act 1994, as amended (“the 1994 Act”), in particular by the Horse and Greyhound Racing Act 2001 (“the 2001 Act”). Furthermore, the applicants contended that it followed from this contention that the Rules of Racing adopted by the Turf Club in its statutory role as a Racing Regulatory Body, were a form of subordinate legislation, and thus had to conform to the constitutional rule that the parent Act must set out sufficient principles and policies to allow the subordinate legislation to stay within the confines of the legislative grant of power. This rule follows from the provisions of Article 15.2.1 of the Irish Constitution which provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas. The applicants also contended that a decision by the Turf Club to suspend a person perhaps permanently from taking part in races under the Rules of Racing, was a power which affected a person’s livelihood, and was therefore the exercise of judicial function, under Article 34 of the Irish Constitution, consigned to the courts alone, and not falling within the Article 37 saver for limited functions of a judicial nature and was therefore unconstitutional. Accordingly, the proceedings raised fundamental jurisdictional matters but did not involve any consideration of the specific way in which the Turf Club or its Referrals Committee was proposing to approach the investigation in this case, or indeed, did conduct the investigation hearing and determination in fact. 4. Leave was granted by the High Court to seek judicial review on the grounds identified above, but the Court refused to restrain the holding of the inquiry considering that the balance of justice was in favour of letting the inquiry proceed. Accordingly, the inquiry and the proceedings were pursued in tandem, and the inquiry reached a determination shortly before the case was due to be heard in the High Court. In the event, the second applicant was acquitted fully, and accordingly had no practical need to pursue the specific relief sought. His involvement in the case was narrowed therefore to a consideration of the question of the costs incurred in commencing and prosecuting the proceedings to that point. The first named applicant was however found to have breached the Rules of Racing in a number of respects. In particular it was found that he had conspired to prevent Yachvilli from running to its maximum ability contrary to Rule 273(vi); had engaged in a corrupt and/or fraudulent practice in relation to racing in Ireland contrary to Rule 273(viii); and had failed to take on reasonable and permissible measures throughout the race in question to ensure that Yachvilli was given a full opportunity to win or obtain the best possible place contrary to Rule 212(a)(i). 5. The proceedings were heard in the High Court over three days in February 2014. In a judgment delivered on the 3rd of April of that year, McGovern J. held that the respondent was amenable to judicial review, that the first named applicant had locus standi to bring the proceedings, and that the applicants were not estopped or precluded from bringing the proceedings by reason of their prior agreement to be bound by the Rules of Racing. However, the High Court also held that the Rules of Racing were not ultra vires the respondent’s powers and that ss. 39, 45 and 62 of the 1994 Act were not invalid having regard to the Constitution. In effect, the High Court’s finding on this aspect was that in the aftermath of the 1994 Act, the Rules of Racing were subordinate legislation which required principles and policies to be set out in the principal Act (in this case the Acts of 1994 and 2001) but found that there were sufficient principles and policies to permit the Turf Club to properly adopt the Rules of Racing and in particular those under which adverse findings had been made against the first named applicant. 6. The applicants have appealed the adverse finding and the respondent for its part has cross-appealed the findings in relation to amenability to judicial review and estoppel. Accordingly, on this appeal there appear to be four interrelated issues:
(ii) Whether the applicants are entitled to bring proceedings; (iii) Whether the principles and policies test applies to the adoption of the Rules of Racing, and if so whether there are sufficient principles and policies in the 1994 Act to permit the lawful adoption of the Rules of Racing; (iv) Whether the determination by the Turf Club of matters relating to jockeys and licensed racehorse trainers amounts to administration of justice by a body other than the court contrary to Article 34 of the Constitution, and which is not a limited function of judicial nature permitted by Article 37? 7. As even the rudimentary outline of the facts in this case suggest, the sport of horse racing in Ireland is a substantial business with international impact. In this case horse racing involves, in common with other sports, the business of organising events, building and maintaining stadia, charging for admission, and in the case of larger sporting events perhaps, negotiating and exploiting broadcasting and other intellectual property rights. Horse racing is also a significant component in the gambling industry at one end, and is also closely connected to the thoroughbred breeding industry, in which Ireland is a world leader at the other, and as such is the subject of the both private and public law. Even in the case of the extraordinary amateur sporting achievement that is the Gaelic Athletic Association, the organisation and presentation of the major championships is a significant commercial undertaking with legal consequences. But, perhaps the paradox of modern sport that occupies so much of our time and attention, and generates so much business, is that at the heart of even the biggest sporting enterprise is a game. 8. All the modern sports are related to games played from time immemorial, whether of throwing or kicking a ball of different dimensions, striking it with a stick, running the fastest, or in this case, attempting to see who can ensure that an animal runs the fastest. It is the essence however of any game that it requires some rules. Otherwise it will not be possible to measure sporting excellence or demonstrate sporting skill. It is also the case that many of those rules are somewhat arbitrary, but sanctified by tradition. Why a team of 11, 13, 15 (or as was once the case in Gaelic sports, 17) players? Why a game of 70, 80 or 90 minutes? Why should some games end at the expiry of the time and others only when the ball goes dead? Why is a pass forward by player in rugby an occasion for loss of possession and accompanying groans, but one of the glories of American football? Why, as some have had reason to ruefully observe, is a second serve permitted in tennis but not in golf? There is no good answer to any of these questions. They are so because they are so. These rules are peculiarly inapt for judicial consideration, as Carroll J. and Hogan J., among others, have had occasion to observe. There must be rules for the organisation of any game, and accordingly there must a rule-making, and rule-enforcing, body. To some extent at least, the idiosyncrasies of the rules become part of the tradition valued by the game’s participants and spectators. 9. Traditions are important in general because they preserve what is valued beyond any single generation, and can be of particular importance in the field of sport. Games may be intrinsically trivial activities - the placing of a ball by action of foot or head across the line between two posts and under a third - but they capture the imagination not only because they showcase the athleticism of the human body and of animals but also because they distil so much of the human condition: courage; fortitude and grace under pressure; cowardice; mean-spiritedness and cynicism; the emergence of youthful talent; the slow decline of age resisted by determination; skill and experience;, the value of discipline; the excitement of unpredictable flamboyance; the collective strength of a team and the joy of irrepressible individualism; the fine line between triumph and tragedy; and the significant role of luck. Sport involves measurement, not just against the best of contemporary standards, but also against the inspirational stories of the past. It unquestionably matters when sportsman or woman walk for the first time on the Centre Court in Wimbledon, or onto the field of play at Croke Park or Semple stadium, approaches the first tee in a major championship or enter the parade ring at the Curragh, Cheltenham or Epsom Downs. These are the fields of dreams and memories. They follow in the footsteps of heroes, tragic victims and occasional villains. The Turf Club has, as a matter of tradition, been the rule-maker and rule-enforcer for the Rules of Racing in the field of flat racing for all of the island of Ireland. That, no doubt, is one of the traditions valued by its members and those involved in the sport more generally. There may be few heroes in the history of the Turf Club, but with its idiosyncrasies, traditions and controversies, it is, and was in 1994, an unmistakable feature of the racing world in Ireland. 10. The urge to organise and systematise games into sports was, in Ireland and elsewhere, a phenomenon of the late Victorian era, coinciding with a general increase in standards of living and leisure time. The major sporting bodies in Ireland can be dated to the late 19th century. Perhaps because of its more aristocratic origins as a sport of the landed gentry, the Turf Club can trace its origins to 1790. It seems to have developed roughly in parallel with the Jockey Club in England which also set the rules for flat racing. A similar body developed to perform the same function in respect of national hunt racing. In common with other sports, horse racing developed over the subsequent period in an arbitrary and ad hoc fashion. Races organised under the auspices of the Turf Club were not the only races held in Ireland, but they came to be recognised as the most prestigious and respected races. Race meetings were, it seems, arranged at local racecourses owned by individuals, local groups and/or companies. In so much as there was any legal aspect to this organisation, it was a matter of private law. Racecourses were entitled to enforce their property rights by the law of trespass, and the law of contract. The Turf Club’s ability to enforce compliance with its rules was grounded on the law of contract. Members of the Turf Club were members of a club and therefore bound by the rules of that club as a matter of contract and those who participated in races run under its auspices were required to accept its rules. If this was ever put to the test, the legal analysis applied was that of the private law of contract. Thus for example, in Rogers v. Moore & Ors [1931] I.R. 24 (“Rogers v. Moore”), a case was decided by the Supreme Court (Kennedy C.J., Fitzgibbon and Murnaghan JJ.) on the question of the power of the stewards of the Turf Club to fine a plaintiff horse trainer who had a licence from the defendants to train horses on the lands of the Turf Club at the Curragh. 11. In the United Kingdom (UK) it appears that the regulation of horse racing has remained essentially a matter governed by private law. In Ireland however, perhaps reflecting the greater importance to, and impact on, the economy of the horse racing industry generally, there have been a number of statutory interventions. The first appears to have been the 1945 Racing Board and Racecourses Act (“the 1945 Act”). The long title of the Act states that it was an Act to:
12. In respect of the Turf Club, the Act said relatively little. First, it defined the term “Governing Body” as:
(a) the Irish Turf Club; or (b) the Irish National Hunt Steeplechase Committee;” 13. It is useful to analyse this first legislative entry into the field of race coursing. It seems clear that it was broadly speaking, a sensible attempt to capture some of the economic benefit of horse racing to permit the expansion and development of the industry. To achieve that object, it followed the familiar route of establishing a statutory body to pursue that objective. But significantly, for present purposes, the Act made no attempt to regulate that area of the horse racing industry which was under the purview of the Turf Club and the INHSC. Instead it recognised that area, and sought, if anything, to support it. This emerges most clearly from the conferring of a statutory power of exclusion from race courses upon the governing bodies. The warning off of individuals was the traditional ultimate sanction of bodies such as the Turf Club and the INHSC, but from a legal point of view, it might prove problematical to enforce, particularly where the body was not the owner of the racecourse and thus not entitled to invoke the law of trespass. The Act therefore recognised the existence of the Turf Club, and its core area of function, and sought merely to provide statutory support for its actions in enforcing the rules of racing. In a sense, it sought to regulate the horse racing industry, at least in respect of race courses, in all those aspects other than those controlled by the Turf Club and the INHSC, a jurisdiction which it sought if anything to reinforce. 14. The structure established by the 1945 Act was not altered in any significant way by the passage of the Racing Board and Racecourses (Amendment) Act 1975 (“the 1975 Act”). That Act was directed towards the regulation of appeals by bookmakers against decisions made by the Racing Board. The Act did not address the existence of, or jurisdiction exercised by, the Turf Club or the INHSC. 15. A major reorganisation of the regulatory landscape was however sought to be achieved by the passage of the 1994 Act, which is a central statutory provision in this case. Again, the long title is important. It provides that the Act is:
16. The IHA was established by s. 9 of the Act which provides as follows: “On the establishment day there shall stand established a body to be known as the Irish Horseracing Authority to perform the functions conferred on it by this Act.” Section 9(2) applies the provisions of the schedule to the Authority. The schedule in turn sets out detailed provisions as to the membership of the Authority (including the fact that two members of the Authority will be nominated by a steward of the Irish Turf Club nominated by it). It also provides for the position of chairman, the conditions for membership of the body and a power of removal. At paragraph 1 it states that:
(b) the development and promotion of the Irish horseracing industry (including the development of authorised racecourses, the guaranteeing of prize money at race-fixtures and the costs of integrity services), (c) the control of the operations of authorised bookmakers, (d) the allocation of race-fixtures and the setting of race-programmes, (e) the operation of racecourses which are owned or leased by the Authority, (f) the promotion of the Irish thoroughbred horse, (g) the making of grants, loans or other disbursements to authorised racecourses and to any subsidiary of the Authority.”
(b) the Irish National Hunt Steeplechase Committee, in relation to national hunt racing, or (c) both in relation to horseracing generally;” 18. By contrast with the extensive treatment of the newly created authority, and bookmakers, the provisions of the Act dealing with the Racing Regulatory Body are contained in seven sections in Part III of the Act. These sections have been the focus of most of the argument in this case, and accordingly require careful analysis. 19. Section 39, as enacted, provided as follows:
(a) to regulate horseracing, (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 license racecourses under the Rules of Racing.”
20. The other important parts of Part III are that the Racing Regulatory Body, by s.44, is required to inform the IHA when making or amending any of the rules of racing. The Rules of Racing which are referred to in s.39, are themselves defined as meaning:
(b)In relation to national hunt racing the Irish National Hunt Steeplechase Rules as laid down by the Irish National Hunt Steeplechase Committee. 21. The Horse and Greyhound Racing Act of 2001 made certain amendments to the structure established by the 1994 Act. In particular it established a body known as Horse Racing Ireland (HRI) to take over the functions of the IHA. The Racing Regulatory Body and the Rules of Racing retained the meanings assigned to them by the definition section of the 1994 Act. Horse Racing Ireland took over the functions of the IHA, and the schedule to the Act of 1994 as amended by the 2001 Act, was given effect with respect to the HRI. Significantly, the functions of the HRI, in addition to its functions under the 1994 Act, include registry office functions in accordance with the Rules of Racing and “any other functions of the Racing Regulatory Body which may be transferred to HRI in future by agreement of both parties and subject to the consent of the Minister” (s. 8(1)(f)). The schedule to the Act of 2001 contained a number of amendments to the Act of 1994. In particular s.39 was amended by the substitution for paragraphs (a) to (d) of the following provisions:
(b) to provide adequate on-course integrity services for horseracing by employing, licensing, monitoring and controlling the activities of horseracing officials including the following - … (c) to licence 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 horseracing, and (e) to be responsible for the representation of Irish horseracing internationally in respect of its functions under this Act.”
23. Neither the method of amendment of the 1994 Act nor the terms of the amendments themselves, make any easier the task of interpretation of an already confusing statutory code. It seems likely that the complicated terms of the Act reflect the impact of a number of forces which were not always consistent or compatible. The Act seeks to reinforce the independence of the sporting bodies, while at the same time providing statutory support and assistance for those bodies. These objectives are not necessarily easily reconciled. Statutory power may be difficult to detach from statutory supervision. It also seeks to create a new statutory body with a strong remit and then to draw a boundary between a newly established body and the historic organisations operating at the centre of racing and on its most important occasions, which must give rise to risks of tensions and rivalries. From the point of view of drafting, there can be no doubt that the simpler course might have been at any stage to create a single new statutory authority to regulate and control all of horseracing. But one thing that is very clear from the 1994 Act, and indeed each statutory intervention, in this area, is that such a course was very deliberately not taken. 24. The heart of the interpretative issue in this case can be traced to the words of s. 39. The section uses language which seems, on its face, to establish a statutory body: “[o]n the establishment day there shall stand established the Racing Regulatory Body”. This is common place statutory language. Indeed, it can be most easily compared with s.9 of the same Act which created the IHA: “[o]n the establishment day there shall stand established a body to be known as the Irish Horseracing Authority” and the provisions of s.5 of the 2001 Act: “[o]n the establishment day, there shall stand established a body to be known as Horse Racing Ireland”. There is a slight difference in the language of the respective sections in respect of the functions of the various bodies. Thus, s. 9 of the 1994 Act in respect of the IHA, and s. 5 of the 2001 Act in respect of the HRA, provide that the body is to “perform the functions conferred upon it by this Act”. Section 39, perhaps in slight contrast, refers to the Racing Regulatory Body “whose general functions shall for the purposes of this Act, be …”. If however, this was the only difference between the respective formulations, it might not be thought to be of much significance since the language of “general functions” is to be found elsewhere in the statute book. 25. In a carefully constructed and lucid argument, counsel for the applicants/appellants argued that the effect of s.9 was simple. When after 1994, the Turf Club came to seek to “enforce” the Rules of Racing as it did in this case, it was after 1994, performing a statutory function, or at least a function under statute. This meant that certain consequences in public law followed, most notably amenability to judicial review, but also that the Rules of Racing maintained and enforced pursuant to statutory authority were of necessity a form of subordinate legislation with all the requirements for validity that that entailed. Finally it was argued that after 1994, the performance of an adjudicative function under the Rules of Racing, was carried out under the authority of legislation and the power of the State, rather than as a matter of private agreement, and therefore had significant consequences in constitutional law, most notably that it was contended it amounted to the administration of justice. 26. In particular, counsel drew the Court’s attention to a number of statutory bodies established in recent years using the words “on the establishment day there shall stand established …” and where the functions were thereafter provided. In particular that statutory phrase was often followed by the words “to exercise the functions conferred on it by this Act”. Counsel referred to examples such as the Credit Union Restructuring Board (Established Under the Credit Union and Cooperation with Overseas Regulators) Act 2012, the Insolvency Services of Ireland (Personal Insolvency) Act 2012, the National Consumer Agency (Consumer Protection) Act 2007, the Mental Health (Criminal Law) Review Board (Criminal Law (Insanity)) Act 2006, the Private Residential Tenancies Board (Residential Tenancies Act) 2004, and a number of others. But for present purposes, the closest example is the establishment of the IHA by s.9 of the 1994 Act where, as set out at paragraph 15 above, this form of words was used, and the use of same formula in 2001 in respect of the HRI. Counsel also pointed out that the statute book did not seem to attach particular significance to the phrase “general functions”, used in respect of the Racing Regulatory Body. Thus s.10 of the Education and Training Board Act 2013 provided that the “general functions of an education and training board shall be to …”. Again, a good example is to be found in the field of horseracing. Section 8 of the 2001 Act, said of the HRI, established under s.5 of that Act to perform functions conferred upon it by the Act that “the general functions of HRI (in addition to its functions under the Act of 1994) shall include the following:- …”. Counsel argued that the use of effectively the same statutory language in respect of the Racing Regulatory Board must have the same effect so that the Turf Club, after 1994, was to be treated as a matter of law, as a public regulatory body created by statute. Indeed, he pointed to some of the correspondence issuing from the Turf Club in this case to the applicants, which in its heading proudly proclaimed itself to have been established in 1790 and to be “the Regulatory Body for horseracing in Ireland”. 27. Counsel had to address the fact that the 1994 Act, in relation to the Racing Regulatory Body, does not contain any language granting to that body, normal and mundane powers such as to have a corporate seal, to sue and be sued in its name and to acquire and hold and dispose of other property. Nor does the Act prescribe an obligation to keep accounts or to have them audited, or make the very standard provisions in relation to membership such as those contained in the Act in relation to the IHA, and to be found in myriad other pieces of legislation establishing statutory bodies. Most notably, Part III of the Act lacks any statement as to the legal nature of the entity to be known as the Racing Regulatory Board comparable to that contained in the Schedule to the Act in relation the IHA, i.e. that that body is a body corporate established by statute. Counsel sought to counter this argument by contending that it was not necessary to specify these matters since the Act operated by defining the newly created Racing Regulatory Body as an existing body, either the Turf Club or the INHSC, or both, and which therefore were already in existence and had legal powers. That however, is with respect more than a little question begging. It does not address the fundamental question as to the legal status of the Racing Regulatory Body which, we are told, is the Turf Club in the field of flat racing, and the INHSC in the field of national hunt. If it is no more than a statutory name being applied to already existing bodies operating in existing fields, then it is an unusual statutory ghost like body which requires both analysis and explication. 28. I would like to be able to accept counsel’s argument if only for the purpose of simplicity. If the Turf Club is to be treated after the 1994 Act as a statutory body exercising statutory powers like many other bodies, then it becomes easy to address the remaining issues in this case because the Racing Regulatory Body would be treated like any other statutory body. But to take this course would in my view be to ignore the very distinctive features of the Act which demand interpretation. Furthermore, it would ultimately easily lead to a process of reasoning where the Act became condemned for failing to conform to the law relating to such bodies established by statute when the very issue to be determined is whether the Turf Club is to be treated as a body corporate established by statute just like any other. 29. There is no doubt that if this case is approached by reference solely to the introductory words of s.9 it would be possible to conclude that the Act creates a statutory body to be known as the Racing Regulatory Body. However, those words must be read in the context of the Act as a whole. Once recourse is had, as it must be, to s. 2(1), containing the interpretation of the terms contained inter alia in s.39, the situation becomes immediately more complicated. The Racing Regulatory Body apparently established under s.39 already exists. Moreover, it is a different existing entity depending on the area in which it is operating. Neither the Turf Club nor the INHSC is dissolved by the statute nor are their powers transferred to the Racing Regulatory Board. The absence of any explanation of the legal nature of the Racing Regulatory Board is also instructive. If its legal status is distinct from that of the Turf Club or the INHSC or both, then one would expect that to be stated very clearly in the Act. Furthermore, the fact that there is no provision in place dealing with the constitution of the Racing Regulatory Body is, in my view, ultimately much more striking than the use of the statutory phrase “there shall stand established”. If it was intended to constitute the Turf Club and/or the INHSC hereafter as a statutory body performing only statutory functions, it would be normal that the legislation would seek to control the appointment of members of that body, and set out terms of membership, and disqualification. One would also expect that any statutory body would be under a statutory obligation to keep accounts and to have them audited. It is not in this respect an answer to suggest that all these matters were or could be dealt with in the constituent documents of the Turf Club and/or the INHSC since such documents are matters of private law and could be changed without approval by any person accountable to the legislature enacting the legislation. 30. The two statutory provisions which deal unambiguously with the powers of the Turf Club as Racing Regulatory Body are also instructive. Under s. 62 it is given a slightly expanded power (which power is also given to the Authority) to exclude a person from any authorised racecourse. It is necessary to confer this power by statute precisely because it is not something which is capable of being secured at least comprehensively, by contract, particularly when the racecourse itself may be owned and managed by a different entity. But the fact that the Act is structured in this way implies that the existing contractual position remains, and is being supplemented by, the statutory provision. Similarly, s.45 of the 1994 Act introduces a novel requirement that the Board provide an opportunity for appeal against disciplinary decisions. The Act however says nothing else about the procedures or process by which an initial decision may have been made. The Act therefore assumes the existence of a first instance disciplinary process which is not provided for or even regulated by statute. It must follow therefore that the Act contemplates that the existing structure, which can only exist as a matter of private law, remains in place, and is here subject to a single and limited statutory addition by way of a requirement of an appeal process. 31. While it may be difficult to discern precisely what the Act is intended to do in every instance, some insight may be obtained by looking at the obverse of the situation. It is very clear what the statute did not do. It did not seek to take the legally and structurally simpler course of establishing a single body with responsibility for regulating all aspects of horseracing in Ireland. Having two, or on one view three, bodies, runs the risk of a failure to plot precisely the boundaries of the functions of the bodies. In the case of overlapping functions that may lead to a risk of tension and friction between the bodies. If it transpires that there is any gap between the functions of the two bodies then there is an undesirable lacuna. It would make no sense therefore to have two separate statutory bodies still less two such bodies created by the same Act and with overlapping membership. The structure of the Act, and its amendment in 2001, is only consistent with what indeed had preceded it in 1945: the establishment of statutory authorities (successively the Racing Board, the IHA, and HRI) whose area of function is defined, described and limited by reference to the two historic bodies, the Turf Club and the INHSC which existed, and continue to exist after the passage of the Act. In this way the Act can be understood as deliberately intended to recognise the position of the Turf Club within its core functions traditionally exercised by it, and as intended to support it and supplement it in that activity, rather than supplanting it. 32. Many of the distinctive and sometimes complex features of the Act can be seen as flowing from an intention to maintain the status and functions of the Turf Club, and INHSC, in the area traditionally controlled by them, and in particular the rules for the running of races. By introducing the concept of a Racing Regulatory Body and referring to the general functions for the purposes of the 1994 Act undoubtedly seeks to cover the existing bodies with a statutory veneer and to give certain identified statutory powers (of exclusion) and impose certain statutory obligations (of appeal) but the over all effect is not to remove the existing underlying structure, or its legal nature, but rather to add to it. I would accordingly conclude that the formulation contained in the 1994 Act was not intended, and more importantly is not to be understood as, constituting the Turf Club as henceforth a statutory body exercising solely statutory powers. Having regard to the substantial history of the sport in Ireland I think it is unlikely that the Oireachtas would seek to simply convert a long standing independent and private sporting body into a statutory board, but if it did it so I would expect that object to be clearly stated, and all ancillary and consequential matters provided for in unmistakeable language. On the other hand, the unusual terms and structure of the 1994 Act can be more readily understood once they are approached on the on the basis that an object of the Act was to leave intact the Turf Club’s traditional role in the running and supervision of races . 33. This analysis is in my view consistent with the approach taken by Clarke J. in the High Court, in a decision concerning the Irish Coursing Club (ICC). The Greyhound Industry Act 1958 (“the 1958 Act”) established a statutory body, Bord na gCon, but also addressed the position of the Irish Coursing Club which was a body in existence at that time. In Greenband Investments v. Bruton & Ors [2009] IEHC 67, it was necessary to address and analyse the nature of the Irish Coursing Club in the aftermath of the 1958 Act. Clarke J. stated as follows:
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. 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 statute”. 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. It follows that the property of the club is owned by its members.” (paras. 6.1 - 6.3) 35. A more nuanced version of counsel’s argument which was touched on in oral argument, is the suggestion that even if the Act was not intended to have that effect, that is nevertheless the consequence of the language, perhaps by reason of the Act having a number of different, and inconsistent objectives. This argument might have some force in certain areas such as the question of amenability to judicial review, since that issue may depend upon the effect of the Act, rather than whether or not the legislature intended supervision by judicial review to be a consequence of the structure established, but it cannot resolve the question of interpretation of the Act more generally. If it is clear from a reading of the Act in its surrounding circumstances that it was not intended to dissolve the Irish Turf Club and the INHSC and create a new self-standing statutory body, any ambiguity should be resolved in favour of an interpretation of the Act which gives effect to that intention. It is necessary now to address the separate questions raised in the light of that approach to the Act. Amenability to Judicial Review 37. The question of whether or not a body is subject to judicial review may have both procedural and substantive consequences. If the proceedings of a body are subject to judicial review, then that procedure may be adopted, although that is not necessarily advantageous to either party. Since in this jurisdiction the selection of procedure is not exclusive, and public law remedies can be sought in plenary proceedings, the choice of procedure becomes less significant. The substantive consequences of holding that a body is subject to judicial review may be more significant since it means at a minimum, that the body will be subject to the rules of fair procedures, and for example may be required to give reasons for their decisions. In some cases those matters may be decisive. But here there is no question of a breach of fair procedures or a failure to give reasons or indeed any substantive complaint about the nature of proceedings conducted before the Turf Club in general, or the proceedings which took place in this case in particular. Instead the issue is a logically anterior and jurisdictional one: whether the Rules of Racing promulgated by the Turf Club are valid, and indeed whether the provisions of the 1994 Act are consistent with the Constitution. Such a claim is not required to be brought by way of judicial review (indeed it is often said that it is preferable that a constitutional challenge should be brought by plenary summons) and so the only consequences of finding that the Turf Club is amenable to judicial review, in this case, would be procedural. Even if the claim were rejected on this basis it could still be brought by way of plenary proceedings. Indeed it is doubtful that a determination in these proceedings that judicial review was not available would be of full benefit to the respondent, since the substantive questions raised would remain unresolved, either in this case or more generally. 38. In the course of these proceedings there has been reference to the extensive academic literature and judicial consideration in the United Kingdom to the theoretical question of the amenability to judicial review of bodies which are purely, or principally, governed by private law. Indeed, some such discussion has taken place in the context of the Jockey Club which as a matter of history at least, bears considerable similarities to the Turf Club. While I fully appreciate the value of the perceptive analysis, both academic and judicial, which is brought to bear on analogous topics in other jurisdictions, it seems to me possible, and indeed in this case perhaps preferable, to address this matter principally by reference to the Irish case law. 39. First, there is already a well developed body of Irish case law on this topic. Second, the UK authorities are not necessarily on all fours with the issue which arises in this jurisdiction. As already touched upon, Irish courts have not adopted a rigid approach of procedural exclusivity which seemed to be the case in the United Kingdom in the aftermath of the decision in O’Reilly & Ors v. Mackman & Ors [1983] 2 AC 237. If the public law remedies can be sought in plenary proceedings it is less important to be definitive about the question of amenability to judicial review. On the other hand, the substantive consequences of a finding of amenability or non-amenability to judicial review are arguably also less significant in this jurisdiction after decisions such as Glover v. B.L.N. Ltd & Ors [1973] I.R. 388 which held that having regard to the significance of fair procedures, it would normally be implied into an agreement in private law permitting for adjudications and determinations, that such proceedings should comply with fair procedures. Furthermore, there is therefore no precise analogue in the law of the United Kingdom for the claim sought to be advanced here which is essentially constitutional in nature. Finally, there are a significant number of cases in this jurisdiction concerning the position of the Turf Club which in my view cast considerable light on the specific issues to be determined here. 40. A useful starting point is the decision of this Court in Geoghegan v. The Institute of Chartered Accountants in Ireland & Anor [1995] 3 I.R. 86 (“Geoghegan v. The Institute of Chartered Accountants”). In that case a member of the then Institute of Chartered Accountants (“the Institute”) was the subject of disciplinary proceedings. The Institute was incorporated by Royal Charter in 1888 which had granted to the Institute the powers to make by-laws regulating it as far as providing that such by-laws should not have any effect unless allowed by the Privy Council in Ireland. The Adaptation of Charters Act 1926 was held to give to such charters the force of law in Saorstát Éireann. The Institute of Chartered Accountant Ireland Act 1966 provided that by-laws made or amended should not have effect until submitted to and allowed by the Government and that save as amended by the Act, the Charter remained in full force and effect. In the High Court, Murphy J. held that the Institute was not amenable to judicial review. On appeal this Court was divided on the question of amenability to judicial review but, and illustrating perhaps the point made at the outset of this section, was nonetheless unanimous is dismissing the applicant’s appeal. The issues raised in the appeal were the continued existence of the Institute, the validity of the by-laws made by it, and whether in exercising its disciplinary function it was administering justice, and were thus closely comparable to the issues arising here. The Court was unanimous in holding that the Institute continued to exist, that its by-laws were valid, and that it was not administering justice. Accordingly, Hamilton C.J. considered it was not necessary to determine the question of its susceptibility to judicial review. O’Flaherty and Blayney JJ. tended to the view that the claim was not an appropriate one to be brought pursuant to the judicial review procedure, but added that the form of procedure used to judicially review an action by a body which could affect the livelihood of persons was of secondary importance and it might be that the most appropriate procedure was that which brought the case to finality most effectively and speedily. Egan and Denham JJ. were however prepared to hold that the proceedings of the committee were susceptible to judicial review. 41. The fact that the Court divided, and did so only tentatively, suggests that the case of the legal status of the Institute of Chartered Accountants, in 1994 at least, was on the very boundary of the line between those bodies subject to judicial review and those bodies which were not. It has been said, correctly I think, that the difference of emphasis depends on whether one views the issue as one determined largely by the source of the power, or whether one also should take account of the functions performed. Subsequent decisions of the High Court have tended to favour the approach of Denham and Egan JJ. I would have sympathy with the view that where it can be said that significant power is being exercised in respect of citizens with the approval of the legislature, whether express or tacit, that judicial review may lie to ensure that the exercise of such powers remains within their proper scope. It is however not necessary to decide the precise nature of the test which may be applied because in this case, on any view, it is clear that in the aftermath of the 1994 Act, the Turf Club as the Racing Regulatory Body is more clearly in the domain of public law than the Institute of Chartered Accountants was in Geoghegan v Institute of Chartered Accountants, and sufficiently within the field of public law and within the public domain, as to have the consequence that judicial review lies. Accordingly, even if this matter is approached simply as a matter of principle, I would conclude that the decisions of the Turf Club, as the Racing Regulatory Body after 1994, are amenable to judicial review although for the reasons set out above, that decision may have little practical consequence for the Turf Club since it is already obliged to operate fair procedures, and does so as a matter of private law, and to give reasons for its decisions. 42. This conclusion is in my view reinforced by consideration of the case law in relation to the Turf Club. A useful starting point is Murphy v. The Turf Club [1989] I.R. 171. In that case Barr J., having carefully reviewed the authorities, concluded that judicial review did not then lie against the Turf Club since its jurisdiction could be said to arise purely from the fact of voluntary association. This decision, it should be noted, predated the coming in to force of the 1994 Act, and thus establishes with particular clarity the legal position as it must have been understood at the time the 1994 Act was drafted. Bolger v. Osborne & Ors [2000] 1 ILRM 250 (“Bolger”) dealt with proceedings which had been initiated just before the coming into force of the 1994 Act. The proceedings concerned a challenge to a disciplinary decision of the Turf Club and were brought by plenary proceedings and not by judicial review, consistent with the decision in Murphy v. The Turf Club. However the trial judge, Macken J., made certain observations on the question of the amenability of the Turf Club to judicial review. She referred to the observations of counsel for the Turf Club during the course of the inquiry (Nial Fennelly, S.C.) where in opening the inquiry he said that the Turf Club was not amenable to judicial review but that the “position might be different under the new Act”. On this issue, Macken J. observed (at page 258):
44. A further case in this line of authority is the decision of Moran & Ors v. O’Sullivan & Ors [2003] IEHC 35. That was a challenge by an owner to the proceedings of the Turf Club which suspended the applicant’s horse from competitive racing for 42 days. Consistent with the observations tentatively made in Bolger, the proceedings were commenced by way of judicial review. Although the application was dismissed on the merits, it is significant that it was not contended that the proceedings were improperly constituted. Subsequently in Hyland v. Dundalk Racing (1999) Ltd t/a Dundalk Stadium [2014] IEHC 60, Mr Justice Hogan observed albeit obiter:
Locus standi 46. The question of whether or not a party has standing to challenge a decision or regulations and even legislation, is a preliminary point which if successful will mean that the case is disposed of without reaching the merits. There are cases in which it is necessary to focus precisely on the nature of the challenge, and the specific rules challenged. But here the points made by the appellants were of general application. Furthermore, they were constitutional in nature. Both appellants were clearly affected by the existence of the Rules of Racing alleged to have been infringed, and the first named appellant has been the subject of an adverse adjudication. It is, I think, sufficiently clear that they have locus standi to bring these challenges. It may be that if the appellants succeeded, the Court might consider that the analysis it had come to only affects the validity of some of the individual rules, but that is a matter better dealt with in the substance of the case. For present purposes I am clearly of the view that the appellants have sufficient locus standi to bring these challenges. 47. The second named appellant also contended that the decision of the Turf Club to dismiss the complaints against him shortly before the hearing of the High Court action had the effect of depriving him of locus standi so that the only issue remaining to be determined in his case was the one of the costs of the aborted proceeding. All the parties may have understood that the second named appellant was not required to address arguments as the substance of the case but, it is not in my view correct to characterise this as an issue of locus standi. The second named appellant was undoubtedly affected by the rules and the procedures of the Turf Club. He thus had locus standi to challenge the validity of those rules, and if necessary the constitutional validity of the Act. What occurred was that in the aftermath of the acquittal, no practical benefit would accrue to the second named appellant by pursuing the claim. If this matter was purely judicial review of a decision and did not raise constitutional issues, that fact itself might be relevant to whether relief should be granted, but even in that case it would not be correct to say that the second named appellant lacked locus standi. Nevertheless, however it was described, the course taken by the second named appellant was a sensible one and reduced the issue in his case to one of costs. It will be necessary to deal with that at a later course in the light of the Court’s determination. Estoppel 49. The other way in which estoppel could be deployed is to argue that by virtue of the contract between the parties the appellants are estopped from raising any constitutional frailty. Public general legislation is of general application and affects everyone within the State. Persons affected by it in such a way as to have standing to make a claim may challenge its constitutional validity. Questions would arise if it was contended by the specific terms of a contract that a party had debarred themselves from asserting such a claim which would be the constitutional entitlement of any person. But it is not necessary to consider whether it is possible to do so, and if so the circumstances which would permit such a course, and the conditions attaching to it. In this case it cannot be said that the terms of the license expressly preclude such an action, nor in my view can it be argued that the mere fact that a license has been granted, which constitutes a contract between the parties binding the appellants to observe the Rules of Racing, can preclude them from raising the constitutional claim. Whether any benefit would accrue to the appellants from such a course, if they remain contractually bound to abide by the rules, is however a more significant issue and one which it is necessary now to consider. Article 15.2.1 51. The 1994 Act did not remove or supplant that jurisdiction created by contract. If anything it sought to add to it and support it. It is unnecessary to consider here the position of persons with no contractual relationship with the Turf Club and in respect of whom the Turf Club seeks to assert a jurisdiction to make disciplinary determinations. Indeed, since the Turf Club is a cross-border body, it is possible to multiply the possible complexities which might arise. But it is not necessary to consider those questions here. Such issues should await a concrete case if any should arise. For present purposes it is enough to decide that in this case, given the relationship between the parties, the Rules of Racing which are here alleged to have been breached, and which provided for the hearing and determination of complaints, were not dependent upon the 1994 Act for legal force or validity. Thus, even if the Rules of Racing were held to be invalidated on the grounds that they exceeded the permissible scope of subordinate legislation, or even more dramatically if the 1994 Act was itself unconstitutional, the Turf Club would still have legal existence, and legal power to enforce the Rules of Racing against the appellants, who had agreed to be bound by them. The fundamental premise upon which the appellants’ argument is founded, therefore, is, in my judgment, false. 52. This is enough to dispose of this case, the proceedings brought by the appellants which were a challenge to the power of the Turf Club to conduct an inquiry. For the reasons set out I consider that even if the appellants were to persuade the Court that the Act lacked sufficient principles and policies to permit subordinate legislation to be made, the Turf Club would still have legal power to make and enforce the Rules of Racing in respect of the appellants. In the circumstances it is not necessary to address the appellants’ arguments in relation to the principles and policies to be detected in the 1994 Act. I am in any event not convinced that it is appropriate to apply that analysis in the particular and unique context of the Rules of Racing made particularly in respect of persons such as the appellants. It may be necessary to consider that issue if the sole legal basis upon which it was asserted that the Turf Club had jurisdiction was by virtue of Rules of Racing, made as part of the function of the Turf Club as Racing Regulatory Body recognised by the 1994 Act, as amended. In such a case it would be necessary to take account of the unique historical and legal background, the fact that Rules of Racing had been in existence for more than a century before the first coming into force of the Act, and the essential arbitrariness of any sporting rules. In the sporting context, it is perhaps fundamental that the rules of the game should be known in advance, and be capable of enforcement during the game and afterwards. Even allowing for the amendment made by the 2001 Act it is in my judgment clear that maintaining the integrity of the sport is the object of this part of the Act and the support it seeks to offer to the regulatory bodies. This would appear to justify, and indeed require, the existence of rules, their promulgation, maintenance, and enforcement, an in particular rules of the type invoked in this case, prohibiting fraudulent or corrupt practices, and requiring that a horse run to its maximum and have a full opportunity of achieving its best place. However the enforcement of other rules, particularly against parties not bound to the Turf Club by contract, may raise more complex issues. While such matters were touched on in the course of this case, and reference was made to different rules, the argument was not developed, and did not require resolution in the light of the factual circumstances in this case. Accordingly, I do not think it is necessary or therefore appropriate to make any general determination on this issue, when it is not necessary to do so to decide this case. Administration of Justice 54. There are very many bodies which adopt court-like procedures and which may make orders and determinations which have severe impact on individuals which can far exceed the orders made by courts. Furthermore, it must be recognised that the case law on this area is difficult and some of the decisions are not easily reconciled. The line between bodies required to act judicially or fairly, and those exercising judicial functions, is not one easily drawn in any jurisdiction, but is here more complicated by the existence of Article 37. It is now however, much too late to seek any comprehensive theory, even if such was desirable. Instead the resolution of these cases must be found within the existing case law and the guidance which they offer. As the majority of the Constitutional Review Group (Report of the Constitutional Review Group 1996) noted in this regard:
55. First, the finding that the Turf Club’s power to impose disciplinary decisions is not dependent on statute weakens, although it does not completely undermine, the appellants’ case in this regard. Second, the classic test laid out by Kenny J. in McDonald v. Bord Na gCon & Anor [1965] I.R. 217 (“McDonald v. Bord na gCon”), and later adopted by the Supreme Court in that case, seems to suggest that the decisions of the Turf Club do not constitute the administration of justice. In particular, it does not appear to me that the decisions of the Turf Club can satisfy the fourth or fifth criterion. Decisions of the Turf Club imposing penalties for example are not enforceable as a judgment and there is no process for converting such a decision into a judgment. It cannot be enforced of its own right, and instead the Turf Club must seek to recover any such fine in litigation, in proceedings indeed akin to those in Rogers v. Moore. Furthermore, the making of such disciplinary orders up to and including the warning of a person from a racecourse, have not only not been characteristic of the courts as a matter of history, they have as a matter of history been the exclusive function of a body such as the Turf Club. 56. The facts of McDonald v. Bord Na gCon provide an even more useful point of comparison. That case concerned the related field of greyhound racing. There, the power was entirely statutory in its form being conferred. Under s.47 of the Greyhound Industry Act 1956, the board could make an exclusion order against an individual greyhound trainer. The Supreme Court held that this did not amount to the administration of justice. In such circumstances it is difficult to see how the function of the Turf Club could be said to amount to the administration of justice, consistent with the outcome in McDonald v. Bord na gCon. 57. Geoghegan v. The Institute of Chartered Accountants is also instructive in this regard. It was argued in that case that the disciplinary function performed by the Institute of Chartered Accountants amounted to the administration of justice considering the impact that such decisions could have on the career of accountants. The Supreme Court, while dividing on the question of amenability of judicial review, was unanimous in its conclusion that the disciplinary function of the Institute did not amount to the administration of justice exclusively confined to the courts subject only to the limited exception contained in Article 37. In my view the outcome of this case is thus very close to that contemplated by Egan and Denham JJ. in Geoghegan v. The Institute of Chartered Accountants. The decision making function of the Turf Club comes sufficiently within the realm of public law so that it may be supervised by judicial review, but it is a decision making body subject to judicial review, and not itself a body administering justice. | ||||||||||||||||||||||||||||||||||||||||