O'Connell v The Turf Club

JurisdictionIreland
CourtSupreme Court
JudgeMr Justice O'Donnell,Mr. Justice Hardiman
Judgment Date25 June 2015
Neutral Citation[2015] IESC 57
Docket Number[S.C. No. 218 of 2014].,218/14
Date25 June 2015
Between
Edward O'Connell & James Lambe
Applicants/Appellants
and
The Turf Club
Respondent

[2015] IESC 57

Denham C.J.

Murray J.

Hardiman J.

O'Donnell J.

Dunne J.

218/14

THE SUPREME COURT

Horseracing – Fraudulent practice – Jurisdiction – Appellants seeking to challenge the jurisdiction of the respondent to investigate and adjudicate upon the allegations against them – Whether the decision making function of the respondent came sufficiently within the realm of public law

Facts: In July 2013, the respondent, the Turf Club of Ireland, notified the applicants/appellants, Mr O”Connell, a professional jockey, and Mr Lambe, a licensed racehorse trainer, that the Referrals Committee of the club would consider allegations of breaches of the Rules of Racing against them 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, Yachvilli, in a race at Downpatrick racecourse. The bet was that Yachvilli would lose the race and it was alleged 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. The applicants initiated judicial review proceedings, challenging to the jurisdiction of the club to investigate and adjudicate upon the allegations. The club raised a preliminary procedural objection contending that it was not amenable to judicial review. The applicants contended that the club was exercising statutory functions pursuant to the Irish Horseracing Industry Act 1994 and the Horse and Greyhound Racing Act 2001. The applicants contended that it followed that the Rules of Racing adopted by club 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, following from the provisions of Article 15.2.1 of the Irish Constitution. The applicants also contended that a decision by the club to suspend a person 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 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. In April 2014, the High Court 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. 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. The applicants appealed to the Supreme Court against the adverse finding and the respondent cross-appealed the findings in relation to amenability to judicial review and estoppel. Accordingly, on this appeal there were four interrelated issues: 1) whether the Turf Club was amenable to judicial review; 2) whether the applicants were entitled to bring proceedings; 3) Whether the principles and policies test applied to the adoption of the Rules of Racing, and if so whether there were sufficient principles and policies in the 1994 Act to permit the lawful adoption of the Rules of Racing; 4) Whether the determination by the club of matters relating to jockeys and licensed racehorse trainers amounted 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.

Held by O”Donnell J that he would uphold the trial judge”s decision that Moran & Ors v O”Sullivan & Ors [2003] IEHC 35 and other authorities show a consistent view that the changes introduced by the 1994 Act have the effect of rendering the decisions of the Turf Club amenable to judicial review, and dismissed the respondent”s cross–appeal. O”Donnell J held that the appellants had sufficient locus standi to bring the challenges. O”Donnell J held that it could not be argued that the mere fact that a license had been granted, which constituted a contract between the parties binding the appellants to observe the Rules of Racing, could preclude them from raising the constitutional claim. O”Donnell J held that the decision making function of the club came 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.

O”Donnell J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of Mr. Justice Hardiman delivered the 25th day of June, 2015.
1

The first-named appellant is a professional jockey and the second is a licensed trainer. Both are authorised to carry on these occupations by the Respondent, The Turf Club. The Turf Club itself is a body of some antiquity with an ascertainable history going back to the year 1790. It was originally a private body, an association of private individuals, and it claims to have maintained that essential status up to the present day. But there have been legislative developments since then. After the passing of a particular Act of 1994 the Turf Club used headed note paper in that name, endorsed ‘Established 1790’ and, beneath that in capital letters:

‘THE REGULATORY BODY FOR HORSERACING IN IRELAND’.

Having regard to the provisions of s.39 of the Irish Horseracing Industry Act 1994, set out below, this seems a correct statement of the Board's present status. Equally, it is an express invocation by the Turf Club of some statutory status.

Background.
2

In September 2011, a lady in England placed a bet on a race at Downpatrick on the 21 st September 2011. This was a bet of Stg£10,000 described as a ‘lay bet’ with the British bookmaker, Betfair. This bet was that a horse called ‘Yachvilli’ would not be placed in the race on which it was running. The jockey was charged in effect with ‘pulling’ the horse in the context of this bet. See the precise formulation of the allegations against him, below.

3

In July, 2013, almost two years after the race in question, and after an investigation, the Turf Club advised the applicants that its committee, the ‘Referral Committee’ would consider the allegations against the first-named applicants and four other individuals in connection with the bet and race mentioned on the 3 rd September, 2013. On the 28 th August, 2013 the appellants' solicitor indicated that they intended to issue Judicial Review proceedings. On the 29 th August, 2013 leave was granted by Mr. Justice Charlton to apply for the following reliefs amongst others:

(i) A declaration by way of Judicial Review that the Rules of Racing were made ultra vires the Respondent and/or without jurisdiction and/or otherwise than in accordance with law.

(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 and in accordance with law: 19A, 19C, 20, 22, 25, 272, 273(XIII), 273(VI), 273(VIII), 273 (1X), 273(XIV) (V), 212(A)(i) and/or 212(a)(ii).

(v) A declaration that the allegation made contrary to Rule 273(IX) of the Rules of Racing amount to an allegation of an extra-territorial criminal offence in respect of which the respondent is precluded from conducting a trial by virtue of Article 38.1 of the Constitution.

The appellant was also given leave, in rather conditional terms, to apply for two further reliefs which are:

‘(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 with 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…’

The allegations against the first-named Applicant were sent to his solicitors by the Turf Club by letter of 2 nd August 2013. They, together with a ‘Case Summary’ commencing ‘The Turf Club's case is this’ were described as ‘… the paperwork for the hearing’ in that letter. The letter was written on note paper endorsed as set out in para. 1. above.

______________________________________________________________

There are four allegations about Mr. O'Connell, as follows:

(1) Did Eddie O'Connell, on, and/or before, the date of the race in which he was the jockey act in breach of Rule 273(vi) in that he deterred, or conspired with James Lambe, Robert Martin, Brian Keown and/or Lucy Stanton to deter, Yachvilli from winning the race or from running to its maximum ability in the race.

(2) Did Eddie O'Connell on, and/or before the date of the race in which he was the jockey act in breach of Rule 273(viii) and/or (ix) in that he jointly with James Lambe, Robert Martin, Brian Keown and/or Lucy Stanton engage in a corrupt or fraudulent practice in relation to racing in Ireland by either

(a) Agreeing to ride the horse other than to give its best opportunity to win or be placed so that a lay bet would be successfully placed against it, or

(b) Agreeing to give the horse a schooling ride so that a lay bet could be successfully placed against it.

(3) Did Eddie O'Connell on, and/or before, the date of the race in which...

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