Graham v Horse Racing Ireland
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 29 October 2019 |
| Neutral Citation | [2019] IEHC 709 |
| Court | High Court |
| Docket Number | [2017 No. 101 J.R.] |
| Date | 29 October 2019 |
[2019] IEHC 709
THE HIGH COURT
JUDICIAL REVIEW
Murphy
[2017 No. 101 J.R.]
AND
AND
Judicial review – Preliminary objections – Contract – Applicant seeking an order of certiorari quashing a decision of the second respondent – Whether the application was misconceived
Facts: The applicant, Mr Graham, sought an order of certiorari, quashing a decision of the second respondent, the Pitch Tribunal, made the 16th December 2016, in which it upheld Pitch Rules made by the notice parties, the Irish National Professional Bookmakers Association and the Association of Irish Racecourses, in March 2016, together with other ancillary reliefs. The first respondent, Horse Racing Ireland (HRI), raised a number of preliminary objections to the application, in its statement of opposition, filed the 25th April 2017. The respondents’ preliminary objections were as follows: (i) HRI was inappropriately joined as a respondent to the proceedings where no decision of HRI had been challenged by the applicant; (ii) the impugned decision derived from contract and so was not amenable to judicial review and in any event the proceedings were moot the Pitch Rules having been properly adopted; (iii) the applicant did not have the requisite locus standi to bring the proceedings because he was not a permit holder of an on course betting licence; and (iv) the first respondent objected that the judicial review proceedings were out of time.
Held by the High Court (Murphy J) that the determination of the Pitch Tribunal was a determination made in a private law setting in which a bookmaker sought to challenge the validity of Rule 18(b) on the basis that the new Rules had not been signed by the Chairman of his Association. Murphy J held that the Pitch Tribunal had no statutory dimension or role; it was part of the contractual arrangements agreed between the INPBA (the bookmaker’s association) and the AIR (the association of Irish racecourses) and as such its determination was not amenable to judicial review.
Murphy J held that this application was misconceived and should be dismissed.
Application dismissed.
The applicant seeks an order of certiorari, quashing a decision of the second respondent made the 16th December 2016, in which it upheld Pitch Rules made by the notice parties in March 2016, together with other ancillary reliefs. The first respondent has raised a number of preliminary objections to the application, in its statement of opposition, filed the 25th day of April 2017. The respondents’ preliminary objections are as follows:-
(i) The naming of HRI as a respondent to the within proceedings is misconceived. HRI is inappropriately joined as a respondent to the within proceedings where no decision of HRI has been challenged by the applicant. HRI's sole function, in the context of the present proceedings is to implement the Racecourse Executives’ seniority and Pitch Rules (the Pitch Rules).
(ii) The impugned decision derives from contract and so is not amenable to judicial review and in any event the proceedings are moot the Pitch Rules having been properly adopted.
(iii) The Applicant does not have the requisite locus standi to bring the within proceedings because he is not a permit holder of an on course betting licence
(iv) The first respondent objects that the judicial review proceedings are out of time.
This is the court's judgment on the preliminary objections raised.
The Pitch Tribunal, the second named respondent, whose decision is impugned, was not legally represented at the hearing. The secretary to the Pitch Tribunal, Francis Hyland, informed the court at the commencement of the hearing that the Pitch Tribunal is a committee set up by agreement between the notice parties to resolve any disputes on the interpretation of the Pitch Rules. To that extent, it is a creation of contract and is a private dispute resolution process. Mr. Barton of McCann Fitzgerald who appeared on behalf of the Association of Irish Racecourses, agreed with the characterisation of the Pitch Tribunal advanced by Mr. Hyland. Mr. Crystal on behalf of the applicant, did not dispute the fact that the Pitch Tribunal is a contractual creation. However, he maintained that since a condition of his on course betting permit issued by Horse Racing Ireland, pursuant to statute, required him to comply with the Pitch Rules agreed between the bookmakers’ association and the racecourse owners’ association, that this brought the matter within the public law realm.
The history of the administration of horse racing in this jurisdiction is a long, convoluted and complex one. In the course of the hearing, the applicant exhibited a transcript of evidence from the case of Francis Hyland v. Dundalk Racing Limited [1999] which was heard by Hogan J. in November 2013 in which Mr. Hyland set out for Hogan J. the history of horse racing in Ireland and the role of bookmakers within the racing industry. This is the same Mr. Hyland who appeared for the Pitch Tribunal. While the method of adducing this evidence was somewhat unorthodox, the court is satisfied that it is a true transcript of the evidence of Mr. Hyland, and the court found his testimony to be of assistance to it in understanding the context of the case and the roles of each of the parties
Apparently, the phenomenon of bookmakers on racecourses dates from the 1850s. In the early days, bookmakers walked around the racecourse with a satchel mingling with the crowds, and when the race started the bookmakers moved to the judges’ box by the winning post and gathered there to hear the result. They then formed a circle, and from that circle they paid winnings. That apparently became known as the bookie's ring. According to the evidence of Mr. Hyland, that system continued right through to 1912.
In 1912, Clonmel racecourse decided that it would corral the bookmakers into the bookie's ring and the racecourse owners refused to allow them circulate around the racecourse. According to the evidence of Mr. Hyland, bookmakers soon realised that in terms of laying bets, some pitches in the ring or line were more advantageous than others, for example, those that were near the parade ring. To avoid pitch battles, the bookmakers decided among themselves that they would have to have a system for allotting pitches.
The system devised by the bookmakers was that the most senior bookmaker got Pitch No. 1, the second most senior Pitch No. 2 and so on down the line. It was the bookmakers who controlled the matter of seniority. Seniority could not be sold but it could be transferred to a son. Seniority could be lost if a bookmaker missed three meetings at a racecourse.
Those rules created by bookmakers themselves, lasted until 1945 when the Racing Board was set up. It was set up funded by a levy on the turnover of racecourse bookmakers. It ran the tote which had been introduced in 1929, and it administered the finances of Irish horse racing. Under the Racing Board Act, 1945, the Racing Board took control of the betting arrangements on racecourses. Seniority was adopted by the Racing Board in accordance with the 1912 rules. They allotted pitches to bookmakers in line with the established seniorities. They designed the betting rings in a way to maximise the levy, because the levy was what was now funding racing. The Act provided that bookmakers could only be charged five times the price of admission to the public for their pitches.
Over the years the Racing Board noticed that as the senior bookmakers who had the best pitches got older, they became more cautious and less willing to take the bigger wagers, thus affecting the amount of the levy payable to the Racing Board. In order to ensure turnover of the more senior pitches and also to make provision for the families of deceased bookmakers, the Racing Board in 1972, agreed to allow the bookmakers sell seniority. The Racing Board kept a ledger of seniority and on race day allotted the pitches in line with that seniority. The Racing Board controlled the pitches. The system operated on the basis that the Racing Board owned the pitches and the bookmakers owned the seniorities.
By allowing the sale of seniority, a young bookmaker in a disadvantageous pitch could purchase the seniority of an older bookmaker and thereby be allotted by the Racing Board a more advantageous pitch. This suited the Racing Board because they wanted the most dynamic bookmakers in the most advantageous pitches because that would increase the levy payable to the Racing Board.
In 1976, in the course of a dispute between two bookmakers in respect of seniority, the bookmakers explained to the high court the relationship between seniority and pitches at a racecourse. They explained that the bookmaker owns the seniority while the Racing Board owns the pitches, but that the right to be allocated a specific pitch by the Racing Board depended on seniority. Costello J. remarked:-
“But surely the racecourses own the pitch?”
According to the evidence of Mr. Hyland, this remark caused a big’ to – do’ within racing circles because the Racing Board, which was a semi State body, in administering the Pitch Rules, was potentially claiming entitlement to ownership of private property.
Apparently, the Board approached the racecourse owners, suggesting that they take over the Pitch Rules and administer them thence forward. According to the evidence of Mr. Hyland, the racecourse owners were not enthusiastic, as there was very little money in it for them, because the pitch costs were limited by statute to five times the admission price. They were also concerned that they...
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