[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R v Disciplinary Committee of the Jockey Club, ex p. The Aga Khan [1992] EWCA Civ 7 (04 December 1992) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1992/7.html Cite as: [1993] WLR 909, [1993] 1 WLR 909, [1992] EWCA Civ 7 |
[New search] [Context] [Printable version] [Buy ICLR report: [1993] 1 WLR 909] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
B e f o r e :
LORD JUSTICE FARQUHARSON
LORD JUSTICE HOFFMANN
____________________
THE QUEEN |
||
v. |
||
THE DISCIPLINARY COMMITTEE OF THE JOCKEY CLUB |
Respondents |
|
Ex parte HIS HIGHNESS THE AGA KHAN |
Applicant |
____________________
MR PATRICK MILMO Q.C. and MR RICHARD SPEARMAN (instructed by Messrs Charles Russell) appeared for the Respondents.
____________________
Crown Copyright ©
"officially responsible for the proper organisation, administration and control of all horseracing, race meetings and racehorse training in the United Kingdom (excluding Northern Ireland ...)"
"9.24 The Jockey Club acquired its position as the governing body of racing in the 18th century because the organisers of race meetings submitted themselves to its jurisdiction. The fact that racing was being conducted under Jockey Club rules was some assurance of integrity. As a result, the Jockey Club came to be voluntarily accepted as the rule making and disciplinary authority in all matters concerned with racing.
9.25 Racing over fences did not develop until the late 18th century. In 1863 two members of the Jockey Club (and one other) formed the Grand National Hunt Steeplechase Committee (afterwards simply the National Hunt Committee) to act as the governing body for jumping races. In 1970 the National Hunt Committee merged with the Jockey Club.
9.26 In 1970 the Jockey Club was incorporated by Royal Charter. The objects for which the Club exists are stated in the Charter to include undertaking responsibility for the 'proper conduct and due encouragement' of horseracing and encouraging and fostering the breeding of bloodstock. The Royal Charter does not of course give the Jockey Club any authority which it did not have before.
9.27 The racing industry makes heavy demands upon the Club, which is today far more than a law-making and disciplinary authority for the sport. Its unpaid stewards have the responsibility of directing what amounts to an extremely complicated multi-million pound business. Among its numerous activities it licenses trainers, jockeys, officials and racecourses, employs its own officials to attend and supervise all race meetings, administers discipline and, perhaps most important of all, decides how many race meetings there will be, where they will be held and what kind of races each meeting may include.
9.28 The Jockey Club's control of the fixture list affects the whole racing industry. The extent to which a race course makes a profit or not can depend on how many meetings it is allowed to hold, the importance of the races to be run and whether they are on days when the public are likely to attend. The efforts of the breeders are directed towards supplying the kind of horses likely to win the race to which the Jockey Club attaches the
most prize money and prestige. Since 1967, these have been the Pattern Races which are a series of races designed to provide tests for the best horses over appropriate distances according to their ages. The number of fixtures also has a direct effect upon the financial commitments of the Levy Board, which has to provide the necessary technical and security services for each meeting, contribute to the prize money and frequently to subsidise the racecourse."
The Royal Commission concluded:
"Largely due to the efforts of the Club, British racing is considered to be as fair and honest as any in the world".
The Royal Charter granted to the Jockey Club included among its objects
"(ii) to take over the activities connected with the control and regulation of horse-racing throughout Our United Kingdom of Great Britain and Northern Ireland heretofore carried on by the Old Club and to undertake all such responsibilities and activities as may be necessary or convenient for the proper conduct and due encouragement of horse-racing howsoever carried on and whether or not of a kind heretofore controlled or regulated by the Old Club."
"(1) The Stewards shall publish or cause to be published on behalf of the Club such Rules (hereinafter called "the Rules of Racing") regulations, orders and directions as they may think necessary for the proper conduct of horse-racing, race meetings and racehorse training.
(2) The Stewards shall have power on behalf of the Club to issue licences and permits in relation to horse-racing, race meetings or racehorse training ..."
(1) The stewards have power to licence racecourses and allocate fixtures. Any meeting not held at a licensed racecourse is unrecognised.
(2) The stewards have power to license Clerks of the Course, jockeys, trainers and others and issue permits to trainers, amateur riders and others.
(3) No one may act as a Clerk of the Course, trainer or jockey under the Rules unless he holds an appropriate licence or permit.
(4) A horse may not (subject to certain exceptions) be entered for a race by any owner whose name is not registered with the Club.
(5) A horse is not qualified to run in any race if it has run at any unrecognised meeting.
(6) A trainer may not employ any person whose name has not been registered with the Club and may not employ any person to work in his stable who has previously been employed in a training stable without referring to the last trainer to employ him and receiving a reply. A person thus prevented from obtaining employment has a right of appeal to the stewards.
(7) Where any person subject to the Rules of Racing has committed a breach thereof the stewards have power (among other penalties) to declare him a disqualified person.
(8) A person reported by the Committee of Tattersalls is a disqualified person or subject to exclusion from any premises owned, licensed or controlled by the Club. A person disqualified by a sister authority abroad is a disqualified person here unless the stewards decide otherwise.
(9) Any person who owns, trains or rides a horse at an unrecognised meeting in Great Britain or Ireland or who acts in any official capacity in connection with such a meeting is liable to be declared a disqualified person.
(10) A disqualified person may not act as a steward or official at any recognised meeting; enter, run, train, or ride a horse in any race at any recognised meeting; enter any racecourse, stand, enclosure or other premises owned, used, or controlled by the stewards of any meeting; be employed (without the permission of the stewards) in any racing stable; or deal in any capacity with a racehorse. Any person (whether subject to the rules or not) may be excluded from any premises owned, licensed or controlled by the stewards.
"The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned.
We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely within the jurisdiction of this court. It is, as Mr Bridge said, 'a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown.' It is clearly, therefore, performing public duties."
"is not derived from any agreement between Crown and applicants but from instructions by the executive government, that is, by prerogative act of the Crown. The appointment of the board and the conferring upon it of jurisdiction to entertain and determine applications, and of authority to make payments in accordance with such determinations, are acts of government, done without statutory authority but nonetheless lawful for that."
In Law v. National Greyhound Racing Club Limited [1983] 1 WLR 1302 the plaintiff was a trainer whose licence had been suspended because he had had charge of a greyhound which had been found on examination to have prohibited substances in its tissues. He had issued an originating summons seeking a declaration that the stewards' decision was void and ultra vires because reached in breach of an implied duty of fairness and an injunction or damages. The NGRC moved to strike out the plaintiff's action on the ground that he should have sought judicial review under section 31 of the Supreme Court Act 1981. This contention was rejected by Walton J. at first instance and by the Court of Appeal (Lawton, Fox and Slade L.JJ.).
The crux of Lawton L.J.'s judgment is to be found in this passage on page 1307:
"In my judgment, such powers as the stewards had to suspend the plaintiff's licence were derived from a contract between him and the defendants. This was so for all who took part in greyhound racing in stadia licensed by the defendants. A stewards' inquiry under the defendants' Rules of Racing concerned only those who voluntarily submitted themselves to the stewards' jurisdiction. There was no public element in the jurisdiction itself. Its exercise, however, could have consequences from which the public benefited, as, for example, by the stamping out of malpractices, and from which individuals might have their rights restricted by, for example, being prevented from employing a trainer whose licence has been suspended. Consequences affecting the public generally can flow from the decisions of many domestic tribunals. In the past the courts have always refused to use the orders of certiorari to review the decisions of domestic tribunals."
"Accordingly, in my view, the authority of the stewards to suspend the licence of the plaintiff derives wholly from a contract between him and the defendants. I see nothing to suggest that the defendants have rights or duties relating to members of the public as such. What the defendants do in relation to the control of greyhound racing may affect the public, or a section of it, but the defendants' powers in relation to the matters with which this case is concerned are contractual."
Slade L.J. referred to the NGRC's concern about the increased incidence of doping and continued:
"I do not doubt the genuineness of this concern or the importance to the general public of the activities which the NGRC performs, not least its disciplinary functions. Furthermore, it is easy to understand why the NGRC would prefer that any person who seeks to challenge the exercise of its disciplinary functions should be compelled to do so, if at all, by way of an application for judicial review. In this manner the NGRC would enjoy the benefit of what Lord Diplock in O'Reilly v. Mackman [1983] 2 AC 237, 282, described as
'The safeguards imposed in the public interest against groundless, unmeritorious or tardy attacks upon the validity of decisions made by public authorities in the field of public law."
Notwithstanding recent procedural changes, these safeguards are still real and substantial. Leave is required to bring proceedings. Terms may be imposed as to costs and the giving of security. There is a time bar of three months, though the court has power for sufficient reason to extend this. The court retains firm control over discovery and cross-examination: see generally O'Reilly v. Mackman [1983] 2 AC 237, 262-263 per Ackner L.J.
The difficulty, to my mind insuperable, which has faced Mr Henderson in contending that the process of judicial review is a procedure, and indeed the only procedure, available to the plaintiff in the present case, is that, as he frankly accepted, the Rules of Racing of the NGRC and its decision to suspend the plaintiff in purported compliance with those rules have not been made in the field of public law. Furthermore, its authority to perform judicial or quasi-judicial functions in respect of persons holding licences from it is not derived from statute or statutory instrument or from the Crown. It is derived solely from contract. Rule 2 of the NGRC's Rules of Racing provides that every person who is the holder of a licence shall be deemed to have read the rules and to submit himself to them and to the jurisdiction of the NGRC. The relief, by way of declaration and injunction, sought by the plaintiff in his originating summons is correspondingly based primarily and explicitly on alleged breach of contract.
Thus, this is a claim against a body of persons whose status is essentially that of a domestic, as opposed to a public, tribunal, albeit one whose decisions may be of public concern."
In arguing that such extension has indeed occurred, the applicant relies principally on R. v. Panel on Takeovers and Mergers ex parte Datafin PLC [1987] Q.B. 815. In that case the Court of Appeal (Sir John Donaldson M.R., Lloyd and Nicholls L.JJ.) held that the Panel was in principle amenable to judicial review. The decision was novel, because the Panel was not created by statute or by any exercise of prerogative or governmental power. But there was evidence that the Department of Trade and Industry had decided not to regulate takeovers by statutory instrument and to rely instead on the Panel's enforcement of the City Code on Takeovers and Mergers. As the Master of the Rolls put it at page 835:
"The picture which emerges is clear. As an act of government it was decided that, in relation to takeovers, there should be a central self-regulatory body which would be supported and sustained by a periphery of statutory powers and penalties wherever non-statutory powers and penalties were insufficient or non-existent or where EEC requirements called for statutory provisions.
No one could have been in the least surprised if the panel had been instituted and operated under the direct authority of statute law, since it operates wholly in the public domain. Its jurisdiction extends throughout the United Kingdom. Its code and rulings apply equally to all who wish to make take-over bids or promote mergers, whether or not they are members of bodies represented on the panel. Its lack of a direct statutory base is a complete anomaly, judged by the experience of other comparable markets world wide. The explanation is that it is an historical "happenstance", to borrow a happy term from across the Atlantic. Prior to the years leading up to the "Big Bang", the City of London prided itself upon being a village community, albeit of an unique kind, which could regulate itself by pressure of professional opinion. As government increasingly accepted the necessity for intervention to prevent fraud, it built on City institutions and mores, supplementing and reinforcing them as appeared necessary. It is a process which is likely to continue, but the position has already been reached in which central government has incorporated the panel into its own regulatory network built up under the Prevention of Fraud (Investments) Act 1958 and allied statutes, such as the Banking Act 1979."
"The Criminal Injuries Compensation Board, in the form which it then took, was an administrative novelty. Accordingly it would have been impossible to find a precedent for the exercise of the supervisory jurisdiction of the court which fitted the facts. Nevertheless the court not only asserted its jurisdiction, but further asserted that it was a jurisdiction which was adaptable thereafter. This process has since been taken further in O'Reilly v. Mackman [1983] 2 AC 237, 279 (per Lord Diplock) by deleting any requirement that the body should have a duty to act judicially; in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 by extending it to a person exercising purely prerogative power; and in Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112, where Lord Fraser of Tullybelton, at p. 163F and Lord Scarman, at p. 178F-H expressed the view obiter that judicial review would extend to guidance circulars issued by a department of state without any specific authority. In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction."
Lloyd L.J. pointed out at page 846 that
"The City is not a club which one can join or not at will. In that sense, the word 'self-regulation' may be misleading. The panel regulates not only itself, but all others who have no alternative but to come to the market in a case to which the code applies."
"I do not agree that the source of the power is the sole test whether a body is subject to judicial review, nor do I so read Lord Diplock's speech. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review: see Reg, v. National Joint Council for the Craft of Dental Technicians (Disputes Committee), ex parte Neate [1953] 1 Q.B. 704.
But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as Mr Lever submitted, be sufficient to bring the body within the reach of judicial review. It may be said that to refer to 'public law' in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other."
Nicholls J.J. expressed his conclusion at page 852:
"In my view, and quite apart from any other factors which point in the same direction, given the leading and continuing role played by the Bank of England in the affairs of the panel, the statutory source of the powers and duties of the Council of the Stock Exchange, the wide-ranging nature and importance of the matters covered by the code, and the public law consequences of non-compliance, the panel is performing a public duty in prescribing and operating the code (including ruling on complaints)."
The later decision was R. v. The Jockey Club ex parte RAM Racecourses Limited (30th March 1990). In that case the applicant for judicial review was a racecourse management which sought to challenge the Jockey Club's allocation of racing fixtures. The Jockey Club again challenged the court's jurisdiction to grant judicial review. On this issue Stuart-Smith L.J., being unconvinced that the court's decision in Massingberd-Mundy was wrong, felt bound to follow it although adding that he would but for that authority have held that the Jockey Club were amenable to judicial review. Simon Brown J. held himself similarly bound to follow Massinqberd-Mundy, but in doing so expressed some criticism of the wider grounds of that decision. He thought it possible to distinguish Law, in which the applicant had been bound to the club by contract, particularly in the light of Datafin. In the course of his judgment he said:
"I find myself, I confess, much attracted by Mr Beloff's submissions that the nature of the power being exercised by the Jockey Club in discharging its functions of regulating racecourses and allocating fixtures is strikingly akin to the exercise of a statutory licensing power. I have no difficulty in regarding this function as one of a public law body, giving rise to public law consequences. On any view it seems to have strikingly close affinities with those sorts of decision-making that commonly are accepted as reviewable by the courts. And at the same time I certainly cannot identify this particular exercise of power with that of an arbitrator or other domestic body such as would clearly be outside the supervisory jurisdiction."
"Plainly the Jockey Club for the most part take decisions which affect only - or at least essentially - those voluntarily and willingly subscribing to their rules and procedures. The wider public have no interest in all this, certainly not sufficient to make such decisions reviewable. But just occasionally, as when exercising the quasi-licensing power here under challenge, I for my part would regard the Jockey Club as subject to review."
"I have crossed a great deal of ground in order to reach what, on the authorities, is the clear and inescapable conclusion for me that the FA is not a body susceptible to judicial review either in general or, more particularly, at the instigation of the League with whom it is contractually bound. Despite its virtually monopolistic powers and the importance of its decisions to many members of the public who are not contractually bound to it, it is, in my judgment, a domestic body whose powers arise from and duties exist in private law only. I find no sign of underpinning directly or indirectly by any organ or agency of the State or any potential government interest, as Simon Brown J. put it in Wachmann, nor is there any evidence to suggest that if the FA did not exist the State would intervene to create a public body to perform its functions. On the contrary, the evidence of commercial interest in the professional game is such as to suggest that a far more likely intervener to run football would be a television or similar company rooted in the entertainment business or a commercial company seeking advertising benefits such as presently provides sponsorship in one form or another.
I do not find this conclusion unwelcome. Although thousands play and millions watch football, although it excites passions and divides families, and although millions of pounds are spent by spectators, sponsors, television companies and also clubs on salaries, wages, transfer fees and the maintenance of grounds, much the same can also be said in relation to cricket, golf, tennis, racing and other sports. But they are all essentially forms of popular recreation and entertainment and they are all susceptible to control by the courts in a variety of ways. This does not, of itself, exempt their governing bodies from control by judicial review. Each case will turn on the particular circumstances.
But, for my part, to apply to the governing body of football, on the basis that it is a public body, principles honed for the control of the abuse of power by government and its creatures would involve what, in today's fashionable parlance, would be called a quantum leap. It would also, in my view, for what it is worth, be a misapplication of increasingly scarce judicial resources. It will become impossible to provide a swift remedy, which is one of the conspicuous hallmarks of judicial review, if the courts become even more swamped with such applications than they are already. This is not, of course, a jurisprudential reason for refusing judicial review, but it will be cold comfort to the seven or eight other substantive applicants and the many more ex parte applicants who have had to be displaced from the court's lists in order to accommodate the present litigation to learn that, though they may have a remedy for their complaints about the arbitrary abuse of executive power, it cannot be granted to them yet."
No case directly raising the issue whether a sporting regulatory body is susceptible to judicial review, and if so in what circumstances, has yet reached the House of Lords. But our attention was drawn to Calvin v. Carr [1980] AC 574, a Privy Council case in which an owner challenged a disciplinary ruling of the Australian Jockey Club. He proceeded by writ in the ordinary way, there was no argument on procedure and the hearing preceded O'Reilly v. Mackman [1983] 2 AC 237, which had the effect of directing professional attention to these jurisdictional issues. To that extent this authority must be viewed with caution. It is nonetheless evident that their Lordships regarded the disciplinary hearing as "an essentially domestic proceeding" in which all who took part had accepted the Rules of Racing (page 597).
Conclusions
In describing the remedy Lord Parker C.J. said:
"The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned.
....
We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely within the jurisdiction of this court. It is, as Mr Bridge said, 'a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown.' It is clearly, therefore, performing public duties."
This dichotomy was recognised by this court in the case of Law v. Greyhound Racing Club Ltd [1983] 1 WLR 1302; which on its facts bears some similarity to the present appeal. The defendants, a company limited by guarantee, acted as a judicial body for the conduct and discipline of greyhound racing in England, Wales and Scotland. They administered a code of rules to achieve an orderly conduct of the sport. All who wished to take part in greyhound racing in stadia licensed by the defendants were deemed to have read the Rules of Racing and submitted to them and to the jurisdiction of the defendants. A greyhound in the plaintiff's charge was proved to have prohibited substances in its tissues which would affect its performance. There was a disciplinary hearing at which the plaintiff was present and the stewards who conducted the hearing suspended the plaintiff's trainer's licence for a period of six months.
"In my judgment, such powers as the stewards had to suspend the plaintiff's licence were derived from a contract between him and the defendants. This was so for all who took part in greyhound racing in stadia licensed by the defendants. A stewards' inquiry under the defendants' Rules of Racing concerned only those who voluntarily submitted themselves to the stewards' jurisdiction. There was no public element in the jurisdiction itself. Its exercise, however, could have consequences from which the public benefited, as, for example, by the stamping out of malpractices, and from which individuals might have their rights restricted by, for example, being prevented from employing a trainer whose licence has been suspended. Consequences affecting the public generally can flow from the decisions of many domestic tribunals. In the past the courts have always refused to use the orders of certiorari to review the decisions of domestic tribunals."
"Quite clearly the majority of cases, involving disciplinary disputes or adjudications between participants in the sport, will be of an entirely domestic character and based upon the contractual relationship between the parties. Such disputes have never been amenable to judicial review."
"Despite its virtually monopolistic powers and the importance of its decisions to many members of the public who are not contractually bound to it, it is, in my judgment, a domestic body whose powers arise from and duties exist in private law only. I find no sign of underpinning directly or indirectly by any organ or agency of the State or any potential government interest
The learned judge accordingly found that the Football Association was not susceptible to judicial review. The references to underpinning by the State and potential governmental interest derive from the decision of this court in R. v. Panel on Take-overs and Mergers, ex parte Datafin PLC [1987] 1 Q.B. 815. Up till that time a remedy in public law was only available against a body if it derived its authority from statute, prerogative power or other delegated authority. The Take-over Panel did not come within any of those categories but was described by Sir John Donaldson M.R. (at page 835F) in this way:
"As an act of government it was decided that, in relation to take-overs, there should be a central self-regulatory body which would be supported and sustained by a periphery of statutory powers and penalties wherever non-statutory powers and penalties were insufficient or non-existent or where EEC requirements called for statutory provisions.
... Its jurisdiction extends throughout the United Kingdom. Its code and rulings apply equally to all who wish to make take-over bids or promote mergers, whether or not they are members of bodies represented on the panel."
"In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction."
Understandably the decision in Datafin involved some development of the law relating to judicial review but, bearing in mind the concluding words of the citation just made, the court did not question the decision in Law's case, which was cited to it in argument.
There have been two attempts to bring proceedings for judicial review against the Jockey Club since the decision in Datafin. In the first, R. v. The Jockey Club ex parte Massingberd-Mundy, decided on 20th December 1989, the applicant sought to challenge a decision of the Jockey Club to remove him as chairman of the panel of local stewards. There was no contractual relationship between the parties in regard to the appointment. The Divisional Court held that it was bound by the decision in Law's case to refuse the application, although both judges indicated that if the matter had been free from authority they would have been disposed to say that at any rate some of the decisions of the Jockey Club were amenable to judicial review.
In argument Mr Kentridge for the applicant has said that it is not necessary for him to assert that Law was wrongly decided, but he submits that in the light of Datafin the decision was on too narrow a basis. Furthermore he seeks to distinguish the two cases on their facts.
(1) although its jurisdiction is nominally consensual the Jockey Club powers go far beyond the consent of a particular person;
(2) that it is in fact supported by extensive powers in its overall control of racing;
(3) by its rules it exercises powers over persons who have never submitted to those rules, as when those who are deemed to be undesirable are warned off racecourses under the Club's control;
(4) the Club's activities and functions are carried out not, or perhaps not only, in the interest of its members but also for the benefit of the public, in particular those who go racing or bet on horses;
(5) the position of the Jockey Club, as the controller of racing, is recognised by Parliament by its association with the Betting Levy Duty, which is applied in the interests of racing;
(6) unlike most clubs incorporated under Royal Charter it has imposed upon it both powers and duties; and
(7) if there was no voluntary body like the Jockey Club to exercise disciplinary control over the sport, Parliament would be likely to create a body with similar powers to the Jockey Club.
Mr Kentridge criticises the decision in Law's case in that the court concentrated particularly on the source of the power of the Greyhound Racing Association. That power was of course consensual. As a result of Datafin the source of power is only one element to consider in deciding whether there was a sufficient public element to make the activity of the body concerned amenable to public law.
Moreover he claims that the decision is authority only for the propositions that
(a) a domestic tribunal whose powers are derived solely from contract is not subject to judicial review and
(b) the provisions of section 31 of the Supreme Court of Judicature Act 1981 are purely procedural.
There was no effective distinction between the functions of the Greyhound Racing Association and the Jockey Club. The rules of the two bodies are similar, and so in consequence are their powers. The fact that the Jockey Club was granted a charter while the Greyhound Racing Association is incorporated makes no real difference. Put shortly, Mr Milmo's argument is that, if the jurisdiction is based solely on consent, it matters not if there is a public law element. The feature of consent provides the private right and in those circumstances one never gets to what might be called the Datafin stage.
For my part I cannot find that Datafin affects the ratio of the decision in Law's case. I bear in mind Lord Parker C.J.'s observations that there should be an element of flexibility in the use of certiorari so that it can be adapted to changing situations but there has never been any doubt that public law remedies do not lie against domestic bodies, as they derive solely from the consent of the parties. In Law's case the court was applying well established principles. The question remains whether the Jockey Club, or this particular decision of it, can properly be described as a domestic body acting by consent.
In principle it is difficult to see any distinction between the Greyhound Racing Association (or its corporate equivalent) and the Jockey Club. The only apparent factual difference lies in the extent of its jurisdiction. For that matter the other governing bodies of the major sports come in the same category unless some distinction can be found in the rules. Neither do I find any public element in the Jockey Club's position and powers within the meaning of that term as explained in Datafin. No doubt, as Lawton L.J. observed in Law's case, many of the decisions of the Jockey Club through its committees will affect members of the public who have no connection with it, but there is a difference between what may affect the public and what amounts to a public duty. It is difficult to see that the disqualification of this particular filly - important though the race was - could transform the role of the Jockey Club from a domestic to a public one. The courts have always been reluctant to interfere with the control of sporting bodies over their own sports and I do not detect in the material available to us any grounds for supposing that, if the Jockey Club was dissolved, any governmental body would assume control of racing. Neither in its framework or its rules or its function does the Jockey Club fulfil a governmental role.
R. v. Panel on Take-overs and Mergers, ex parte Datafin PLC [1987] 1 Q.B. 815 shows that the absence of a formal public source of power, such as statute or prerogative, is not conclusive. Governmental power may be exercised de facto as well as de jure. But the power needs to be identified as governmental in nature. In Datafin Sir John Donaldson M.R. explained how in 1986 the Panel had come to occupy the position it did:
"As an act of government it was decided that, in relation to take-overs, there should be a central self-regulatory body which would be supported and sustained by a periphery of statutory powers and penalties wherever non-statutory powers and penalties were insufficient or non-existent or where EEC requirements called for statutory provisions.
No one could have been in the least surprised if the panel had been instituted and operated under the direct authority of statute law, since it operates wholly in the public domain. ... Prior to the years leading up to the 'Big Bang', the City of London prided itself upon being a village community, albeit of an unique kind, which could regulate itself by pressure of professional opinion. As government increasingly accepted the necessity for intervention to prevent fraud, it built on City institutions and mores, supplementing and reinforcing them as appeared necessary. It is a process which is likely to continue, but the position has already been reached in which central government has incorporated the panel into its own regulatory network built up under the Prevention of Fraud (Investments) Act 1958 and allied statutes, such as the Banking Act 1979."
In Law v. National Greyhound Racing Club Ltd [1983] 1 WLR 1302 this court decided that the National Greyhound Racing Club was not amenable to judicial review notwithstanding that it controlled the greater part of the dog racing business in much the same way as the Jockey Club controls horse racing. The Club was held to be a purely domestic tribunal because the source of its power lay in contract and nothing else. The case was decided before Datafin and did hot consider whether, notwithstanding the lack of any public source for its powers, the Club might de facto be a surrogate organ of government. I would accept that, if this were the case, there might be a conflict between the principle laid down in Datafin and the actual decision in Law which required a re-examination of whether Law still governed the present case. I would also accept that a body such as the Take-over Panel or IMRO which exercises governmental powers is not any the less amenable to public law because it has contractual relations with its members. In my view, however, neither the National Greyhound Racing Club nor the Jockey Club is exercising governmental powers and therefore the decision in Law remains binding in this case.
Order: Appeal dismissed with costs; leave to appeal to the House of Lords refused.