Bolger v Osborne (& Others)

• Jurisdiction: Ireland
• Judgment Date: 06 August 1999
• Date: 06 August 1999
• Docket Number: 1995 No. 5289p
• Court: High Court

BETWEEN

JAMES BOLGER

PLAINTIFF

AND

MICHAEL OSBORNE, FRANK HARDY, SEAMUS McGRATH, MICHAEL DEEGAN AND THE TURF CLUB

DEFENDANTS

1995 No. 5289p

THE HIGH COURT

Abstract:

Contract - Negligence - Constitutional right to fair and proper hearing - Damages - Horse race - Winner trained by plaintiff - Horse in second place owned by plaintiff’s wife and trained by plaintiff - Finding by stewards of fifth defendant that second horse did not run on its merits - Plaintiff fined - Unsuccessful appeal by plaintiff to appeal tribunal of fifth defendant - Defendants cloaked with public law role - Judicial review - Whether fault on part of plaintiff - Instructions given by plaintiff to jockey not challenged - Whether vicarious liability - Whether rules of fifth defendant should be applied strictly - Whether finding of fault was irrational - Racing Board and Racecourses (Amendment) Act 1975 - Irish Horse Racing Industry Act 1994

While there was no evidence of any act or omission on the part of the plaintiff and while the chairman of the defendants accepted that people would understand that there was no misconduct on the part of the plaintiff, a finding of fault, absent strict liability or vicarious liability had no basis, was in breach of the contract existing between the parties, was wholly irrational and in the absence of any facts or matters being disclosed to the plaintiff as to the allegation that he was required to meet, was in breach of his constitutional right to a fair and proper hearing The decision of the defendants who constituted an appeal board of the fifth defendant in imposing a fine or penalty of £1,000 on the plaintiff as trainer of a horse which they charged “did not run on its merits” was void and of no effect, was made without evidence and contrary to reason and common sense. The defendants’ decision would be quashed. The defendants must repay the £1,000 to the plaintiff and also pay him £10,061.15 inclusive of VAT in special damages. The High Court so held in granting the relief claimed.

1 Outline JUDGMENT of Mrs. Justice Fidelma Macken delivered on 6th August, 1999

2 This case concerns the Rules of the Turf Club and a finding made by the Defendants against the Plaintiff in respect of a race run at Naas Race Course on the 20th July 1994. This is an Appeal against that finding, in consequence of which finding the Plaintiff was fixed with paying a sum of £1,000.00 by way of fine or penalty.

3 The facts are relatively simple and may be summarised readily.

4 The Plaintiff, Mr. Bolger, is a well known and highly successful trainer of horses. The personal Defendants are all the Appeal Tribunal of The Turf Club which heard the particular Appeal the subject of this Judgment.

5 On the 20th July 1994 there was a race meeting at Naas Race Course in County Kildare. Among the races was one at 6.30p.m., the Jasmine EBS, a seven furlong two year old maiden race. There were ten horses entered for that race, among them two horses trained by the Plaintiff. The favourite, I was informed, was a horse called Pozzuoli, in

6 the betting at 11 to 10, owned by a Mr. McCutcheon, trained by the Plaintiff and ridden by jockey Kevin Manning. Another horse in the race was called Tirolean owned by Mrs. Bolger the wife of the Plaintiff, also trained by the Plaintiff and ridden by jockey Seamus Heffernan. It had a starting price of 12/1. The race proceeded and the favourite won, by a head, from Tirolean.

7 Immediately after the race there was what is called a Stewards’ enquiry, held by the Stewards of The Turf Club who are the Stewards of the race on the day. In the usual way this was held on a fairly informal basis, between races, and was concerned with the running of Tirolean. A charge was made against the jockey and against the Plaintiff and against the horse on the basis that the horse“did not run on it's merits”by which is meant, in layman’s terms, that it did not run as fast as. it could have, or up to its potential on the day.

8 As a result of that enquiry, the jockey was suspended for 28 days, the Plaintiff was tined £1.000.00. the horse was banned for 30 days, but no charge was made against, the owner was not heard, at that hearing. It is said by the Plaintiff that no reason was given for the Stewards’ decision, but that the implication for the Plaintiff was that he was, in fact, responsible for the fact that the horse did not run on its own merits. The Plaintiff appealed from the decision of the Naas Stewards to the Appeal Board of The Turf Club. This was done pursuant to published Rules of The Turf Club, to which I will turn in due course.

9 The Appeal took place, by way of oral hearing, on the 3rd August 1994. The Plaintiff was unsuccessful in his Appeal and the original fine remained in place. His Counsel requested reasons for the decision and it is said by the Plaintiff that no such reasons were forthcoming. However, it was said at the oral hearing that the report of the Local Stewards at Naas constituted their decision, so far as the first enquiry was concerned. [Check]

10 The Plaintiff now appeals from the decision of the Appeal Board and seeks, inter alia. a declaration that the determination of the Stewards on the 3rd August was ultra

11 vies, void or of no effect, and a declaration that the Defendants’ decision of that date to impose or continue a penalty of £1,000.00 was also ultra vires, void or of no effect, was made without any evidence and was contrary to reason and common sense. He also seeks a declaration that the decision of the Defendants was contrary to constitutional justice. And the Plaintiff also seeks Orders quashing the decisions which flowed from the foregoing and requiring the Defendants to repay the fine imposed together with damages. The Plaintiff finally seeks an Order quashing the ruling of the Naas Stewards (the“acting Stewards”)for their failure to state reasons for their decision. The Defendants resists all of the claims.

12 Before I move to the Rules of The Turf Club which are for consideration, I should give some further background detail. At these races, there is invariably camera equipment which permits video recording of the races. In fact, the evidence makes it clear that there may be more than one video taken from different angles and from a variety of positions. This means that, after any given race, there will be certain video evidence available for viewing. During the course of this Appeal the Defendants made available to the Court, and the Court viewed the race in question, recorded on more than one video film (three in all). In addition, the Appeal hearing is transcribed, and the Court had available to it a transcript of that hearing. No transcript is taken, so far as I can ascertain, of the more informal Stewards’ enquiry which takes place between races, as here at Naas. At this Stewards’ enquiry it would appear that the jockey stated that his horse had“gurgled”causing the jockey to deal with his mount, in the manner described by him, for the remaining of the race. The veterinary surgeon who examined the horse after the race did not agree with this claim. So far as the Plaintiff is concerned, however, what appears to have happened is this. After the race, when the Stewards’ enquiry was announced, the Plaintiff was interviewed, and so also was the jockey. The Plaintiff checked with his jockey and indicated that he understood the jockey had heard that the horse “gurgled”..He gave that as his explanation for

13 the matter, together with a suggestion-later made -that the horse had had a problem with the bit. Having heard the Plaintiff, and a veterinary surgeon, the informal Stewards held against the jockey, the horse and the Plaintiff, his trainer.

14 The Appeal from that determination took place on the 3rd August. At that hearing several persons were again heard, including the Plaintiff, the veterinary surgeon, one or more of the Naas Stewards, a veterinary surgeon on behalf of the Plaintiff and others including a jockey and the owner of the winning horse. At the end of the enquiry the Defendants upheld the decision of the informal Stewards and the fine imposed on the Plaintiff was affirmed. It is clear from a reading of the transcript that the basis for the determination of the Defendants was that the Plaintiff was held to be liable for the fact that the horse did not“run on its merits“,pursuant to a combination of Rule 148(1) and Rule 212. The fine was imposed or affirmed pursuant to Rule 14.

15 The Appeal is effectively on the grounds that there was no basis for the determination of the Defendants, and that all of the evidence which did exist supported the Plaintiffs contention that he did not breach any rule.

16 Before I turn to the arguments made, I should set certain parts of the Rules of the Defendants, upon which one or both parties rely. There is no great deal between the parties in terms of the Rules which were applied. The salient Rules are the following:

17 13. 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 persons attendant on horses and all persons frequenting the stands or other places used for the purpose of the meeting.

18 14. The Stewards of a Meeting have power to punish at their discretion any person subject to their control with a fine not exceeding £1,000.00 and/or with ………

19 20. The Stewards of the Governing Bodies have all the powers of the Stewards of Meetings and the following additional powers:

1. (xii)...In the exercise of the powers conferred by this paragraph (power to enquire into matters) of this Rule the Stewards of the Governing Bodies shall be entitled to impose such penalty upon any trainer

   148.(i) A trainer shall be responsible (except where otherwise provided in these Rules) for everything connected with the...