Graham v Horse Racing Ireland & anor [2019] IEHC 709 (29 October 2019)

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Cite as: [2019] IEHC 709

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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 709
[2017 No. 101 J.R.]
BETWEEN
BRIAN GRAHAM
APPLICANT
AND
HORSE RACING IRELAND AND THE PITCH TRIBUNAL
RESPONDENTS
IRISH NATIONAL PROFESSIONAL BOOKMAKERS ASSOCIATION AND ASSOCIATION OF
IRISH RACECOURSES
NOTICE PARTIES
JUDGMENT of Ms. Justice Murphy delivered on the 29th day of October 2019
1.       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.
2.       This is the court’s judgment on the preliminary objections raised.
3.       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
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bookmakers’ association and the racecourse owners’ association, that this brought the
matter within the public law realm.
General Background
4.       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
5.       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.
6.       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.
7.       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.
8.       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.
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9.       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.
10.       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.
11.       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?”
12.       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.
13.       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 unlike the Racing Board, had no statutory
powers to administer the rules.
14.       The upshot was that the Racing Board brought the Bookmakers Association and the
Association of Irish Racecourses together and got the racecourses to adopt the Racing
Board Pitch Rules and regulations which then became the Racecourse Executives’
Seniority Pitch Rules and Regulations. The bookmakers signed up to these regulations and
then the Racing Board administered them as they had before, but this time as agents for
the racecourse. Thus, the racing board continued to collect the pitch fees and the levies
from bookmakers as well as other fees created by the Pitch Rules.
15.       Thus, since 1977 what are known as the Racecourse Executives’ Seniority and Pitch Rules
have been determined by collective agreement between the Irish National Bookmakers
Association and the Association of Irish Racecourses in consultation with HRI and its
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statutory predecessors. The seniority and pitch rule making body, being the two notice
parties herein, cannot make rules which would trench in any way on the statutory powers
of Horse Racing Ireland to control and licence on course betting permits. In the event that
the racecourse owners and bookmakers purported to do so, HRI would in effect have a
veto on any such proposed change. No doubt it is for this reason that in agreeing
changes to the Pitch Rules the two notice parties must consult with HRI.
The Pitch Tribunal
16.       The Pitch Tribunal is an ad hoc body set up by INPBA (the bookmaker’s association) and
AIR (the association of Irish racecourses) as part of the Racecourse Executives Seniority
and Pitch Rules. Its role is to determine disputes as to the interpretation or application of
the Rules in any circumstances. It consists of three persons; one nominated by the
bookmakers; one nominated by Racecourse owners and a Chairman nominated by both
bodies. Prior to 2011, the Chair was nominated by HRI, but the rules were changed that
year to provide that the chair would be nominated by the two notice parties.
17.       The Pitch Tribunal Rule is admirably succinct. It is set out at Rule 20 of the 2011 Rules
and at Rule 21 of the 2016 Rules. They are identical in terms. They provide:
“(a) Composition as set out above
(b) The Pitch Tribunal shall have authority to determine any dispute as to the
interpretation of these Rules or their application in any circumstances. The
determination of the Pitch Tribunal shall be final and binding on all parties
concerned. The Pitch Tribunal shall determine its own procedures provided
that same shall comply with the principles of natural justice.
(c) The failure of any party to refer a dispute to the Pitch Tribunal within a
reasonable time or the failure of a party to comply with the procedures of the
Pitch Tribunal shall not prevent the Pitch Tribunal from making a
determination in any such dispute.”
18.       The final two Rules of the Pitch Rules deal with amendment of the rules and the term of
the agreement. They appear to the court to be significant in the context of the current
dispute. They provide:
“AMENDMENT
These Rules may only be amended by agreement between the AIR and the INPBA
and in consultation with HRI.
TERM OF AGREEMENT
These Rules are currently in force and may be reviewed at any time at the request
of the AIR, the INPBA or HRI.”
19.       There has been a number of changes to the Racecourse Executives’ Seniority and Pitch
Rules over the years. New rules were promulgated in 2007, and again in 2011, at a time
when it appears, the applicant was chair of the INBA. The changes in recent years have
been mainly to extend the areas in which bookmakers can operate. Their areas of
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operation have been extended by agreement from the traditional ‘ring’, to other areas of
the racecourse, such as Private Suites, Corporate Areas, and most recently Premium
Areas. It appears that on course betting is under pressure from online betting. A punter
sitting in a private suite might opt to use his smartphone to place a bet online rather than
perhaps, braving the elements to head to the bookies ring. The recent changes in the
Rules allow on course bookmakers to go to the punter rather than obliging the punter to
come to him.
HORSE RACING IRELAND
20.       Horse Racing Ireland, as successor to the Racing Board and the Irish Horse Racing
Authority, is a statutory body which is the national authority for thoroughbred racing in
Ireland, with responsibility for the governance, development and promotion of the
industry under the Horse and Greyhound Racing Act 2001. One of its functions is the
control of the operations of authorised bookmakers. This function is performed through its
Betting Division. It has the sole power of granting on course betting permits. The
provisions are contained in Part 4 of the Act.
21.       Section 47 contains a statutory prohibition on anyone taking on course bets unless they
hold a permit from the authority.
22.       Section 48 of the 1994 Act as amended by the 2001 Act gives the power to Horse Racing
Ireland: -
“. .to grant to a licenced bookmaker a permit to carry on in person at an authorised
racecourse the business of bookmaking in respect of horse races held at an
authorised racecourse”.
23.       Section 48(2) provides for representative permits. A permit holder may apply for a
representative permit. The representative permit is also the property of the permit holder.
It entitles the permit holder to specify a person or persons who can appear at the
racecourse in his/her stead.
24.       Section 48(6) provides: -
“The Authority may attach to a permit granted under this section such terms and
conditions as it thinks fit and it may also, from time to time, attach further terms or
conditions or vary the conditions to such a permit or remove any such terms or
conditions”.
25.       One of the conditions attached by HRI to its on course betting permit is that the permit
holder is bound by the Racecourse Executive’s Seniority and Pitch Rules.
26.       Condition 13 states: -
“I understand that I am bound by the Racecourse Executive’s Seniority and Pitch
Rules and confirm that I am familiar with its contents. I understand that HRI have
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been appointed as agents of the AIR and the INBA for the purposes of the
application of these rules”.
27.       The application for a representative permit is made by the permit holder to allow named
persons referred to as representatives, to act as his/her representative in accordance with
the terms of the application. The bookmaker is required to give certain undertakings, to
be responsible to Horse Racing Ireland for all liabilities incurred by the representative.
There is no reference to the Racecourse Executive’s Seniority and Pitch Rules in the
application for a representative permit. Presumably this is because the permit holder has
already undertaken to be so bound.
Racecourse Executives’ Seniority and Pitch Rules
28.       These are the rules agreed collectively between the Irish National Bookmakers Association
and the Association of Irish Racecourses in consultation with HRI. The Rules are the
conditions upon which individual bookmakers are entitled to carry on the business of
bookmaking at a particular pitch on any authorised racecourse. The rules have been
altered over time by agreement between the INBA and AIR in consultation with Horse
Racing Ireland to reflect changes in betting practices both at racecourses and online.
29.       The applicant’s primary complaint is that the current Rules, being the 2016 Rules, are not
valid because eventhough they have been approved by the membership of his
representative body, the INPBA, they were not signed by the Chairman of the INPBA,
David Power.
The 2016 Rules
30.       Rule 1 contains definitions. Rule2 deals with pitches, and at 2(a) provides: -
“The Executive of any racecourse has control over the area in which bookmakers'
pitches are located and has the right to designate any particular area for use as a
Betting Ring and to plan, align and allot the pitches of bookmakers. In such matters
the Executive will, however, consult with HRI and the INPBA. If these consultations
do not result in agreement the matter in dispute shall be decided by the Pitch
Tribunal (See Rule 21)”.
31.       Rule 3 deals with the allocation of pitches. Rule 4 deals with changes to the allocation of
pitches, Rule 5 makes provision for vacancies occurring on a pitch. Rule 6 deals with the
death of a bookmaker, Rule7 provides for the sale of a seniority, sales are restricted to
persons who hold a course betting permit from HRI. Rule 8 deals with registration fees
payable on the transfer of any seniority on a racecourse. The fee is payable to the
executive of a racecourse and is collected by HRI as their agent. Rule 9 deals with
introduction fees. These are payable when a bookmaker wishes to register a new seniority
at a racecourse. The fee again is payable to HRI on behalf of the executive of the
racecourse. Rule 10 deals with pitch fees, which again are payable to HRI on behalf of the
executive of the racecourse. Rule 11 deals with the retirement of a bookmaker. Rule 12
deals with the occupation of pitches. Rule 13 deals with circumstances in which there is a
change of pitch. Rule 14 deals with seniority. Rule 15 deals with betting offices. Rule 16
deals with private suites. As already stated, in earlier times bookmaking was confined to
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what was described as the betting ring. The introduction of betting facilities to private
suites and corporate areas(Rule 17) on certain conditions is to provide easier access for
customers to betting facilities. Before designating any location as a private suite or a
corporate area in which betting facilities would be provided, the executive of the
racecourse has to secure an appropriate authorisation from Horse Racing Ireland.
32.       Rule 18, which is the rule in controversy in this application, makes provision for betting
facilities in Premium Areas This is a new rule in the 2016 Rules, and it is the manner of
the allocation of pitches in these areas that appears to be source of the applicant’s
complaint. Allocation of pitches in these areas is allocated on the same basis as the
corporate areas and may be described as rotational.
33.       Rule 19 provides for the setting up of Subsidiary Betting rings where the need arises. The
designation of an area as a subsidiary betting ring is again dependent on an appropriate
authorisation from HRI. Allocation of pitches in a subsidiary betting ring is on the basis of
seniority. The applicant contends that ‘Premium Areas’ should be treated as Subsidiary
Betting rings where pitches are allocated on the basis of seniority. Rule 20 provides for
the maintenance of seniority in the event that a racecourse is relocated or redeveloped.
34.       Rule 21 deals with the Pitch Tribunal and has already been set out at paragraphs 13 and
14 of this judgment. Prior to 2011, Horse Racing Ireland had the power to nominate the
chairman of the Pitch Tribunal. That was changed in the 2011 rules, at a time when the
applicant was chairman of the INBA. Subsequent to that change, HRI has no direct
involvement in the Pitch Tribunal, but of course any changes of rules still have to be done
in consultation with Horse Racing Ireland and in the event that any proposed rule change
violated any provision of the statute, it would in effect have a veto over the rule change.
35.       Rule 22 provides for amendment of the rules and Rule 23 provides for the term of the
agreement.
Status of the Pitch Rules
36.       In the aforementioned case of Francis Hyland v Dundalk Racing(1999) Ltd [2014] IEHC 60,
Hogan J. had occasion to consider the status and effect of the Pitch Rules. In that
case the defendant was the owner of Dundalk racecourse, which had been subject to a
€35 million redevelopment. The plaintiff was a bookmaker who, in the mid 1990’s, had
purchased no.13 in the seniority list for Dundalk racecourse for IR£8,000. The
racecourse sought a capital contribution from the plaintiff of €8,000 towards the cost of
redevelopment in exchange for a pitch at the redeveloped stadium. The plaintiff
maintained that under the 2007 Pitch Rules the defendant was not entitled to ask for a
payment from bookmakers. While much of the dispute centred on whether or not the
redeveloped Dundalk was a new racecourse, one of the arguments advanced by the
defendant was that the Pitch Rules were not enforceable by an individual bookmaker. At
paragraphs 38 to 58 of the judgment Hogan J. considered this issue. He adverted to the
fact that generally speaking the rules of sporting associations are not intended to be
legally justiciable and cited the decision of Laffoy J. in Jacob v Irish Amateur Rowing
Union Ltd [2008] 4 IR 731 that absent mala fides or other exceptional circumstances ,
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the courts are reluctant to interfere with matters of purely sporting judgment. He
explained the rationale for such a policy as follows:
“If it were otherwise, the courts would have assumed a strange new jurisdiction
which would test the traditional boundaries of justiciability and, indeed, raise
questions as to the appropriate judicial role in relation to such matters. Could, for
example, the courts be expected to adjudicate on questions such as the
handicapping of horses, competitor seedings, team selection or on-field disciplinary
or refereeing decisions?
37.       In the context of the general rule, Hogan J. observed that an exception may have been
created by Part III of the Irish Horse Racing Authority Act 1994 in which the Oireachtas
entrusted, by statute, the rules of racing to the Turf Club and the Irish National Hunt
Steeplechase Committee, thus leaving open the possibility that the decisions of those
bodies might be amenable to judicial review.
38.       In assessing the legal status of the Pitch Rules the court considered that all depended on
the context, wording and intent of the rules. At para 45 of the judgment the court stated:
“The Pitch Rules stand in contrast to the average set of rules of sporting
organisations and clubs, precisely because they are designed to regulate not only
the relationship between the individual bookmaker and the individual racecourses,
but also aspects of the relationship between bookmakers inter se.”
39.       The court cited the introductory preamble to the Pitch Rules as evidence of intent to
“constitute a binding mechanism regulating the conditions of individual bookmakers
carrying on business at race meetings and they were also intended to govern the transfer
of a sale of a pitch from one bookmaker to another. Indeed, the entire tenor of the Rules
is to regulate the conduct of bookmakers inter se with regard to the allocation of pitches.”
40.       The court referred to Rule 7 by way of example. That rule restricts a bookmaker from
selling his seniority to anyone other than a person who holds a course betting permit from
Horse Racing Ireland. The court commented on that rule:
“If therefore, a bookmaker endeavoured to sell his seniority to a non-authorised
person, it seems perfectly clear that another bookmaker who was affected by the
proposed sale could, in principle, at any rate, obtain an injunction to restrain the
sale on the ground that it contravened Rule 7(1).”
41.       The court also cited the Pitch Tribunal rule which provides that the determination of the
Pitch Tribunal shall be final and binding on all parties concerned, as meaning that
individual bookmakers could be bound by all decisions made by the Pitch Tribunal.
42.       The court concluded that the Pitch Rules showed the requisite intention to ensure that the
Rules had direct contractual effect as between bookmakers. …..”it might also be said that
these rules should have direct contractual effect as between members in order to give
them full effect.”
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43.       Nor was the court persuaded by the defendant’s argument that since the Rules are the
subject of a collective agreement between the INBA and the AIR, individual bookmakers
had no standing to enforce the Pitch Rules against another bookmaker.
“It might seem unusual that one party should be able to sue to enforce a contract
when they have no power of amendment of that contract. It is nevertheless clear,
however, that some special arrangements must often be made to accommodate the
position of individual members where representative or trade association contract
collectively with another entity. Depending, of course, on the nature, terms and
language of the specific rules in question, allowance must nonetheless be made for
the fact that it may not be practicable or feasible for individual members of the
association to negotiate their own terms.”
44.       Having cited the decision of Kearns J. in Collooney Pharmacy Ltd. V North Western Health
Board [2005] 4.I.R.124, Hogan J. concluded as follows:
In the case of the Pitch Rules it simply would not be feasible or practicable for the
parties to permit individual bookmakers to negotiate their own terms and conditions
with the individual racecourses. It can accordingly, be no surprise that the Rules
confine the power of amendment to the respective associations. Yet the fact that
for reasons of practical convenience and efficiency the individual members are not
free to negotiate their own terms should not mean, in this instance at least, that
the Rules are not directly effective in appropriate cases. This is perhaps especially
so given that the individual bookmakers are personally bound by the Rules by the
Rules and, furthermore, that the Rules are intended to operate for the benefit of all
interested parties, namely the bookmakers, the racecourses and ultimately the
sporting public.
In my view, therefore, bookmakers affected by the operation of the Pitch Rules
may, in principle, sue to enforce them in the same manner as any other contract to
which they are expressly named as a party.”
45.       The decision of Hogan J. was subsequently upheld by the Court of Appeal
Thus, if a party to the Pitch Rules considers that another party thereto, be it a racecourse,
a bookmaker, or the collective bargaining parties, has breached the Pitch Rules, causing
him/her loss, then, in principle, that party is entitled to sue in contract to restrain that
breach and to recoup that loss.
Chronology of events giving rise to this application and findings of fact
46.       In early January 2016, new draft Pitch Rules were circulated. The proposal in effect was
to extend betting facilities to premium areas on racecourses, much as previous changes
had extended them to private suites and corporate areas. The proposed change at issue
in this application is set out in a new Rule 18 which provides: -
“(a) The racecourse executive may rent a pitch in a premium area to an authorised
bookmaker with current seniority on the racecourse provided it has secured the
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appropriate authorisations from HRI. The daily charge for this pitch shall be five
times the charge to the public for admission to that particular area.
(b) Each bookmaker holding a seniority at that racecourse will be offered the
opportunity to apply for a position. Applicants will be graded according to seniority
initially, subject to a draw if seniorities are equal. Successful applicants will be
drawn by pick of place on a random basis. All bookmakers who have used the
facility most recently will go to the end of the queue of applications for subsequent
draws.
(c) The authorised bookmaker or his representative must be present at the pitch in the
premium area at all times when betting services are being made available.
(d) At least one of the pitches in each Premium Area must be linked back to the betting
ring. In order for this to be achieved, priority may be given to a ring bookmaker
with the facility to work with the two pitches linked”.
47.       The manner of allocation of pitches in premium areas is exactly the same as that which
had previously been agreed for the allocation of pitches in corporate areas.
48.       On the 23rd February 2016, the applicants’ mother made her annual application to Horse
Racing Ireland for her on course betting permit for the period from the 1st March 2016 to
the 28th February 2017 together with applications for representative permits for the
applicant and other named persons.
49.       On the same day, the 23rd February 2016, there was an EGM of the INBA at the Keadeen
Hotel in Newbridge. The first item on the agenda was a merger of the interests of the
INBA and the PBA, being the Professional Bookmakers Association, and the proposed
merger was carried by a majority vote. The new organisation became known as the Irish
National Professional Bookmakers Association.
50.       Item 9 of the minutes of the meeting, records that the new version of the seniority and
pitch rules was approved. The changes included the new Rule 18 as set out above, in
relation to premium areas. Allocation of pitches was partly linked to seniority but was to
be rotated among those eligible. The applicant was in attendance at this meeting and
was, at that time a committee member of the INPBA.
51.       The Association of Irish Racecourses held an AGM on the 30th March to consider the
proposed amendments to the rules and it approved the new Rule 18. In addition, it
proposed that “premium area” be defined in the definition section as: -
“ . . . an area of the racecourse that is open to the general public, has been
designated as a betting area by HRI and where the racecourse executive wishes to
provide facilities from which ring bookmakers can operate”.
52.       The last underlined part of that sentence was not in the definition of “premium area”
agreed by the INPBA.
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The applicants objections
53.       On the 31st March 2016 at 10 o’clock in the evening, the applicant sent an email to
various members of the INPBA noting that the recent update to the Pitch Rules had been
agreed with Paddy Walsh of AIR. He stated that he had an issue with regard to the
allocation of pitches in new areas to compete with secondary betting shops. He contended
that the allocation of pitches in any temporary rings had always been determined on
seniority. He considered that the matter needed to be discussed before Punchestown,
which was due to be held on the 28th 29th April. The court has no evidence as to what
may have caused the applicant’s change of attitude between the February EGM, where he
approved the new rule 18, and his attitude as revealed in his email of the 31st March in
which he objects to the manner of allocation of pitches under that rule.
54.       On the 22nd April 2016 the applicant wrote to Paddy Walsh, the chief executive of AIR, by
email to express his concerns about the new Rule 18. It reads: -
“Dear Paddy,
I would like to make you aware of my concerns regarding the inclusion of Rule
18(b) to the latest version of the pitch rules and the future implications of such a
rule. The rule regards “premium areas” and states the following: -
‘(b) Each bookmaker holding a seniority at that racecourse will be offered the
opportunity to apply for a position. Applicants will be graded according to
seniority initially subject to a draw if seniorities are equal. Successful
applicants will be drawn by pick of place on a random basis. All bookmakers
who have used the facility most recently will go to the end of the queue of
applications for subsequent draws’”.
55.       He then goes on to cite the definition of premium areas:
“ . . .. having read the definition, I cannot see any difference between a ‘mayors
garden’ (Subsidiary Betting Area) which has worked very well in Galway, and a
‘premium area’. They are both open to the public, five times admission charge
applies, and bookmakers relinquish their seniority in the ring to move to these
areas. The only difference is that it is proposed that these areas should be filled on
rotation instead of seniority. This is a clear contradiction to the rules which have
governed the betting rings since seniority was introduced. In the past all temporary
rings have been filled using the seniority list. The mayors garden and the
temporary rings at Fairyhouse and Leopardstown during reconstruction was filled on
seniority.
In an email which I received on the 1st April I was informed that it was AIR that
insisted that the pitches were filled on the same basis as the corporate, this is
despite the fact that bookmakers are only paying five times the admission to enter.
This is a deliberate attempt to destroy any remaining value which is left in my
seniorities. I am determined to protect my assets and believe that I have the
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backing of the majority of permit holders who hold 1945 or 1946 seniorities. I
would urge the AIR to revisit this clause and remove the ambiguity which currently
exists.”
56.       Mr. Walsh replied two hours later stating: -
“Having been involved in the detailed discussions leading to the recent revisions to
the Pitch Rules, I can advise that the difference between the “premium area” and
the “subsidiary betting ring” is primarily one of size. The mayors garden in Galway
(a “subsidiary betting ring” within the meaning of the Pitch Rules) is considered to
be of sufficient size to ensure that a genuine betting market can be formed therein.
The new premium areas were intended to cover situations where much smaller
numbers of bookmakers were involved and where there might be a question over
their ability to form a genuine betting market. This is why there is a requirement in
the rules for at least one of the pitches in a “premium area” to be linked back to the
main ring.
As you correctly point out, clause 18(b) of the Pitch Rules sets out how these
pitches are to be filled. It is not correct to state that AIR insisted on the pitches
being filled on the same basis as the corporate area. The reality is that, once
principles of reasonableness, equity and natural justice have been met, the AIR do
not have any strong feelings one way or the other as to how such pitches are filled,
and, in this instance were happy to go along with the suggestions of the bookmaker
representatives involved in the discussions relating to draw up revised Pitch Rules.
The revised Pitch Rules are, following their approval by both the members of INPBA
and those of AIR, currently in force but may be reviewed at any time at the request
of AIR, the INPBA or HRI. If you wish to have Rule 18(b) specifically amended you
should in the first instance, take the matter up with your association. I trust that
the above is helpful in clarifying the position”.
57.       The applicant wrote back an hour later maintaining his complaint about the loss of
seniority and again despite the earlier denial of Mr. Walsh repeated the allegation that it
was Paddy Walsh who proposed that these pitches be filled on the same basis as the
corporate areas, in the Pitch Rules. He finishes the email by saying: -
“I do believe that both the INPBA and the AIR have agreed these rules in principle,
but I do know that David Power has not yet signed them off. Therefore, these rules
cannot currently be in force”.
58.       David Power was at this time, the Chairman of the bookmakers association. Whether or
not his signature is required to validate an approval of new rules passed by the
membership at an EGM, is entirely dependent on the constitution and rules of the INPBA.
The court has no evidence as to the content of the internal rules of the INPBA, but
observes that even at this early stage of the dispute, it is clear that the applicant’s real
dispute is with his own representative body who have approved the 2016 Rules.
Page 13 ⇓
59.       The foregoing email correspondence appears to have taken place on Friday 22nd April
2016.       On the Monday, Paddy Walsh of AIR replied to the applicants’ email, stating: -
“Dear Brian,
Thank you for your response to my email of last Friday and I have noted the points
that you make therein.
Your principal concern appears to be the rotational basis applied to the allocation of
pitches in premium areas, but as already advised, this is the method specifically
provided for in s. 18(b) of the Pitch Rules that have been formally approved by the
members of our respective organisations.
If the INPBA now wish to amend this rule, I am more than happy to discuss same
as provided for in the Pitch Rules, but, as I am sure you will appreciate, any
subsequently agreed amendments would have to go through the normal approval
procedures”.
60.       The applicant replied to that and copied various other bookmakers on the evening of the
25th April, stating: -
“Hi Paddy,
Many thanks for your email.
You are correct that I have concerns about the rotational basis for filling any
(temporary) betting rings. I have already made these known to the committee of
the INPBA, Paul Finnegan of HRI and my solicitor Kirby Tarrant, of O’Grady
Solicitors.
I have acquired seniority over the years on the understanding that all seniority
rights would apply to those individual assets. There seems to be a deliberate
attempt to remove my rights by simply renaming designated betting areas which
individual bookmakers enter on the same basis as the mayors’ garden.
As I stated in my previous email, these rules may have been formally approved,
but David Power, chairman of the INPBA has still not signed off on these”.
61.       The response and advice of the CEO of AIR seems to the court to be straightforward and
appropriate. He rightly identifies that the applicant’s issue is with his own representative
body and that if that body wishes to change the rules it can do so by invoking the
amendment clause in Rule 22 of the Pitch Rules.
62.       The applicant has also exhibited a number of emails which he sent on the 26th April to
Paul Finnegan of the Betting Division of HRI. The first in the sequence was sent at 10:37
on the 26th April 2016, the subject is headed “premium areas” and it says: -
“Hi Paul,
Page 14 ⇓
I am disappointed that you did not reply to my email from last Thursday. As I
stated in that email, I have reservations about the attempt to implement rules
which will effect (sic) my existing seniority rights and privileges. I have expressed
my concerns to the committee of the INPBA, Paddy Walsh, and my solicitor, Kirby
Tarrant from O’Grady’s. I have informed Paddy Walsh that despite being agreed in
principle, these rules have not been signed off by David Power and therefore cannot
be implemented”.
63.       Mr. Finnegan replied at midday, saying: -
“Hi Brian,
HRI does not wish to interfere with the seniority rights of any bookmaker. If you
have a concern about the recent amendments to the pitch rules, I would
respectfully suggest that you take up the matter with your association. I have
confirmation from the INPBA and AIR that the recent amendments to the Pitch
Rules have been approved by both organisations and are effective from the 1st
March 2016.
While the reserved enclosure at Punchestown was treated as a subsidiary betting
ring when bookmakers operated there in 2014, both the INPBA and AIR have
confirmed that HRI should now treat it as a ‘premium area’ for the purpose of
allocating pitches at this years’ festival.
In the absence of an instruction to the contrary, HRI has no alternative to regard
the reserved enclosure at this years’ festival as a premium area.
64.       The applicant replied at 12:26, saying: -
“Hi Paul,
Thanks for your email. I would respectfully request how HRI and AIR are choosing
to ignore the fact that the chairman of the INPBA has not signed off on these rules.
If David Power has not signed the rules, they cannot be deemed to be legal and
binding.
I firmly believe that if Paddy Walsh had not signed off the rules, your position would
be entirely different.
Contrary to your claims, by allowing rules to be implemented which have not been
signed off, you are interfering with individual bookmakers’ seniority rights which
exist and have for decades, regards, Brian”.
65.       Again, the court observes that the applicant is correctly being directed to his
representative body for resolution of his complaint. At this point, the emails suggest that
he has had the benefit of legal advice, and despite his assertion without any proof, that
Page 15 ⇓
the rules are invalid because they have not been signed by the Chairman of INPBA, he
takes no steps to protect what he alleges are breaches of his contractual rights.
66.       There, the matter appears to have rested and a few days later the Graham Organisation
availed of the premium areas facility at Punchestown on the 28th and 29th April 2016 in
accordance with the new 2016 Rules for Premium Areas.
67.       After that, nothing happened for five months. There was no further challenge by the
applicant to the new Pitch Rules, despite the fact that he had referred more than once in
his April exchanges to the fact that he was in contact with his solicitor about the matter.
68.       On September the 27th 2016, it appears that Horse Racing Ireland notified on course
permit holders that betting facilities would be made available in the restaurant area of
Gowran Park for an upcoming meeting. This prompted an email from the applicant
complaining that as a committee member of the INPBA he had not been consulted
regarding this additional betting area. He cited the Pitch Rules as stating: -
“Prior to deciding the location of the Betting Office or introducing any changes to
the location, size or shape of the Betting Office, the Racecourse Executive shall
consult with the INPBA and HRI”.
69.       He alleged a breach of the Pitch Rules. Mr. Finnegan on behalf of the HRI replied that
Gowran Park were not proposing any change to the location, size or shape of the betting
ring. The provision of pitches in the rooftop restaurant area comes under Clause 18 of the
Pitch Rules, and he recites the clause. He went on to state that the premium areas rule
does not require the racecourse executive to consult with INPBA. Following another email
on the 27th September, complaining about the lack of consultation, Mr. Finnegan replied
on the 28th September 2016 stating: -
“Hi Brian,
The INPBA was consulted even though this was not required under the Pitch Rules.
I informed Francis Hyland (secretary INPBA).
Furthermore, I understand from Eddie Scally, manager of Gowran, that Ricky
Gernon (vice chairman of INPBA) approached him some time ago and asked if he
would allow bookmakers into areas such as the rooftop restaurant”.
70.       There followed a series of emails inquiring as to when HRI had informed Francis Hyland,
followed by an email asking for a copy of the latest signed Pitch Rules and pointing out
that the website still had the rules from 2011. There was a request from the applicant for
a copy of the rules with the signature of David Power the chairman of INPBA on it. HRI
responded that they did not have such a copy, but that they assumed that Francis Hyland
might have one. This was followed by an email from the applicant stating that a signed
copy did not exist because David Power had refused to sign the rules off. The applicant
complained that HRI had implemented rules which had not been agreed with INPBA but
instead had been agreed with individuals claiming to represent the association. The
Page 16 ⇓
applicant referred to the fact that the matter was now in the hands of his solicitor. In
response, HRI stated that HRI received confirmation from both INPBA and AIR that their
respective associations had approved the revised version of the Pitch Rules effective from
the 1st March 2016. HRI would continue to implement the revised version of the rules
unless INBPA and/or AIR advise otherwise. This prompted another email from the
applicant, again repeating the assertion that the rules had not been signed and therefore
were not valid. He alleged bias against bookmakers who hold seniorities and indicated
that recourse would be had to law.
71.       The foregoing series of emails reveals once again, that any dispute the applicant might
have is with his own representative body. He specifically alleges that the 2016 Rules
were agreed not with the INPBA, but rather with individuals claiming to represent the
association. If that were so, it is difficult to understand why the applicant did not take
action against those individuals who in his view had interfered with his contractual right to
seniority and in doing so, had failed to adhere to asserted INPBA internal rules that
require that new rules be signed off by the Chairman of the association.
72.       On the 30th September, the applicants’ current solicitor made direct contact with Paul
Finnegan of the betting division of Horse Racing Ireland, inter alia seeking undertakings
that the 2016 Pitch Rules would not be implemented pending an appeal to the Pitch
Tribunal. Mr. Finnegan replied by email on the same date as follows: -
“Following receipt of your email I contacted Paddy Walsh of AIR and Francis Hyland
of the INPBA and they both confirmed that their respective associations have
approved the 1st March 2016 revisions to the seniority and Pitch Rules”.
Appeal to the Pitch Tribunal
73.       On the 30th September 2016 the applicants’ solicitors sent via email, what they termed
as a “pre action” letter for injunctive relief addressed to Mr. Paul Finnegan, Betting
Division, Horse Racing Ireland. In summary, the letter advises that the applicant intends
to initiate proceedings to quash the decision of Horse Racing Ireland to implement the
“Racecourse Executives’ Seniority and Pitch Rules (revised version effective from 1st
March 2016)” and in particular the implementation of clause 18 of the Rules. No basis for
an entitlement to seek judicial review is offered.
74.       Attached to the letter was an appeal to the Pitch Tribunal. The letter seeks an
undertaking not to implement the new Pitch Rules pending the outcome of the pitch
tribunal hearing. This was stated to be without prejudice to any damages which the
applicant may seek and any civil action which the applicant may bring against Horse
Racing Ireland for breach of contract, financial loss and damage should Clause 18 be
implemented to his detriment. The letter erroneously states that the applicant is the
holder of an on course betting permit. The applicant appears to be simultaneously
asserting an undefined right to a public law remedy and a private law right to a
contractual remedy.
Page 17 ⇓
75.       The applicant’s main complaint, as set out in his solicitor’s letter, is that the new Rule 18
has the effect of devaluing his equity rights arising from seniority. The letter asserts that
the chairman of INBPA has not yet given authority to HRI to adopt Clause 18 of the March
2016 Pitch Rules and that the implementation therefore is invalid. No basis for that
assertion is offered. The solicitor quoted the following extract from the decision of Hyland
v. Dundalk Racing [1999] No 2., in which Hogan J. concluded at para. 141 (a) as follows:
-
“(a) It is clear from the context, wording and intent of the Pitch Rules that they are
designed to regulate not only the relationship between the individual bookmaker
and individual racecourses but also aspects of the relationship of bookmakers inter
se. As the individual bookmakers are personally bound by the Pitch Rules and,
furthermore as these Rules are intended to operate for the benefit of all interested
persons (including bookmakers, racecourse and, ultimately the sporting public)
bookmakers affected by the operation of the Pitch Rules may, in principle, sue to
enforce them in the same manner as any other contract to which they are expressly
named as a party”.
76.       As seen earlier, the decision of Hogan J. is to the effect that an individual bookmaker has
contractual rights arising from the Pitch Rules and is, in an appropriate case, entitled to
sue to protect those rights. Nothing in that decision could be construed as holding that
the contractual rights of an individual bookmaker are a matter of public law. In any event,
the letter had attached to it an appeal to the Pitch Tribunal. The heading prepared by the
applicants’ solicitor, reads: -
“An appeal to the Pitch Tribunal, on the application of Brian Graham, against a
determination of the Betting Division of Horse Racing Ireland”.
77.       The court notes at this juncture that there had been no ‘determination’ by the Betting
Division of Horse Racing Ireland. There had been an apparent ‘determination’ by both
INPBA and AIR that the Pitch Rules should be changed, and each had independently
approved the changes. Having done so, each body notified HRI that the Pitch Rules had
been amended. On receipt of the notifications HRI as agent implemented the new rules.
It is no part of the function of HRI to look behind the approval notification to see whether
the INPBA or AIR had adhered to their own respective internal rules and regulations in
approving the new Rules. Any such issues are between each association and its
respective members.
78.       The notice of appeal sets out the basis of the applicants’ entitlement to appeal and
notably does not claim that he is a permit holder of an on course betting licence. The
thrust of his claim is that the inclusion of Clause 18 to the March 2016 Pitch Rules is
unlawful having been adopted in the absence of an agreement to amend under Rule 21 of
the January 2011 Pitch Rules. Alternatively, the applicant claimed that he had not been
properly notified of the March 2016 Pitch Rules and had not agreed to their terms.
Page 18 ⇓
79.       The notice of appeal sets out 26 grounds of appeal, mainly alleging that the HRI’s actions
in the adoption and attempted implementation of the 2016 Pitch Rules were erroneous
and in violation of due process. The main defect identified by the applicant in those 26
grounds of appeal is that the INPBA chairman David Power had not yet given authority to
the HRI to adopt Clause 18 of the March 2016 Pitch Rules. It is however acknowledged
that at the annual general meeting of the INPBA in the first quarter of 2016, an edited
excerpt of Clause 18 was read into the record and a motion to adopt was passed.
80.       In early October 2016, a series of emails passed between the applicants’ solicitor and Paul
Finnegan of HRI in relation to hearings before the Pitch Tribunal in which it was confirmed
that the Pitch Tribunal had no written procedures, a fact that must have been well known
to the applicant as a prior chairman of what was then the INBA. In the course of that
email correspondence, Mr. Finnegan again restated that he had been informed by Paddy
Walsh, CEO of AIR, and Francis Hyland, secretary of INPBA, that their respective
associations had approved the 1st March revision to the seniority and Pitch Rules.
81.       A date of the 2nd November 2016 was set for the Pitch Tribunal hearing. By letter dated
the 14th October 2016, having been informed that the Pitch Tribunal panel would consist
of Jim Kavanagh, chair, Frank Smith (nominated by AIR) and Francis Hyland (nominated
by INPBA), the applicant’s solicitor, Mr. Murphy wrote and erroneously asserted that the
chair, Jim Kavanagh, was a nominee of HRI. In fact, the Pitch Rules of 2011 approved
when the applicant was Chair of the INPBA had changed the Pitch Rules, to provide that
the chair would thenceforward be nominated by both AIR and INPBA.
82.       There was a demand that Mr. Hyland recuse himself on the basis that he was likely to be
a witness in the case. The appellants’ case was that the rules were invalid because they
had not been signed off by the chairman, David Power, and that Mr. Hyland was now in
the position of hearing an appeal in which his authority to amend the 2011 Pitch Rules
and/or authority to communicate certain matters to the HRI may be challenged.
83.       At a meeting of the Committee of INPBA a week later, on Friday the 21st October 2016,
attended by the applicant, the minutes exhibited state: -
“There was a long discussion about the Pitch Rules and the decision of Brian
Graham to take his complaint to the Pitch Tribunal. David Power refused to sign the
Pitch Rules because there appeared to be an extra sentence written into the
definition of premium areas which may not have been in the version presented to
the AGM. It was agreed that Brian Graham had every right to bring his case to the
pitch tribunal. The committee confirmed by a majority that Francis Hyland would
continue to be the INPBA representative on the pitch tribunal. The committee was
divided on Clause 18 of the Pitch Rules and Ricky Gernon offered a compromise;
that 50% of the premium areas be filled on seniority and the remaining 50% be
filled on rotation, this would be considered at the next meeting”.
84.       In the meantime, HRI replied to the applicants’ solicitors’ requests that Mr. Hyland recuse
himself on the 17th October by stating: -
Page 19 ⇓
“In relation to the demand that Francis Hyland recuse himself from the pitch tribunal
meeting on the 2nd November 2016, I would like to point out that the INPBA nominee to
the pitch tribunal is entirely a matter for that organisation and does not concern HRI”.
Pitch Tribunal Determination
85.       The Pitch Tribunal sat on the 9th December 2016 and heard oral evidence. It reconvened
on the 16th December to give its decision. The applicant was represented by solicitor and
counsel at the hearing. It appears that the applicant made written submissions dated 2nd
December to the Pitch Tribunal. These are referred to in his application for leave to seek
judicial review, but are not before the court on this hearing.
86.       In its determination, the tribunal dealt seriatim with the applicants’ points of appeal and
issues. The determination was as follows :-
(i) the Pitch Tribunal consists of the chairman, nominated thereto by the AIR and the
INPBA, and two other members nominated by the AIR and the INPBA respectively.
The tribunal has the authority to determine any dispute as to the interpretation of
the Pitch Rules or their application in any circumstances. The determination of the
tribunal shall be final and binding on all parties concerned.
(ii) Composition of pitch tribunal – objection by Mr. Graham to Mr. Hyland’s inclusion in
the tribunal. Having considered the matter, the members of the tribunal (Mr.
Hyland abstaining) decided that as Mr. Hyland had no vested interests in the
proceedings, it overruled Mr. Graham’s objections. In making this decision the
tribunal was conscious of the fact that Mr. Hyland had recently been re-elected as
secretary of the INPBA and had been reaffirmed as its representative on the pitch
tribunal on the 21st October 2016.
(iii) Findings of the pitch tribunal
a. Claim that the Pitch Rules should be signed
In his submission Mr. Graham contended that HRI’s betting division was
erroneous and in violation of due process when it adopted the March 2016
Pitch Rules without having received a copy of the said rules duly signed by
the chairman of INPBA.
The tribunal is satisfied that Mr. Graham’s argument has no validity as there
is no requirement that the Pitch Rules be signed by either party.
b. Claim that the 2016 Pitch Rules were not properly agreed between AIR and
INPBA.
The procedure for the adoption of any revised Pitch Rules has remained
unchanged since they were first introduced in 1976. Any proposed changes
are considered by the AIR and the INPBA at their respective general
meetings. When adopted the duly authorised officers inform the betting
Page 20 ⇓
division of HRI to that effect and the HRI is legally obliged to implement the
new rules on the agreed date. The tribunal is satisfied that these procedures
were implemented in the adoption of the 2016 Pitch Rules.
c. Mr. Graham’s claim that he was not made aware of the proposed changes.
In Clause 10 of Mr. Graham’s appeal he admits that the general body of the
INBPA at its general meeting on the 23rd February 2016 at which he was in
attendance, was made aware of the proposed changes. Mr. Graham
subsequently availed of the facility provided to bookmakers in the new Pitch
Rules to consolidate their permits – a facility that was not available in the
2011 Pitch Rules. The tribunal therefore rejects Mr. Graham’s statement that
he was not made aware of the proposed changes.
d. Annual application for course betting permit
The tribunal points out that under the terms of his course betting permit, Mr.
Graham is obliged to make himself aware of the Pitch Rules that are at the
time being in force, and to adhere to same during the term of his permit. The
requirement is clearly set out in no. 20 of Mr. Graham’s submission.
e. Definition of premium area. Mr. Graham contends that the absence of the
following words “and where the racecourse executive wishes to provide
facilities from which ring bookmakers can operate” from the definition of
“premium areas” totally changed the meaning of the definition. The tribunal
finds that, while there is some dispute over the absence or otherwise of the
said words, it is of no consequence as the line merely sets out that, as
proprietors of the racecourse, the executive is entitled to manage all
activities on the racecourse.
f. The objection to s. 18 of the Pitch Rules.
The tribunal is satisfied that the 2016 Pitch Rules were adopted and
implemented in compliance with the procedures that have applied for the
past 40 years. Accordingly, the tribunal cannot accede to Mr. Graham’s
request to suspend s. 18.
g. Confidentiality
The dissemination of bookmakers’ turnover figures is a matter between HRI
and the INPBA and is outside the remit of the tribunal.
h. Review of Pitch Rules
The tribunal suggests that representatives of the AIR, INPBA and HRI should
meet early in 2017 to consider if any section of the new Pitch Rules may have
raised issues that the authors of the said Pitch Rules could not have foreseen.
Page 21 ⇓
i. Notification of changes to rules
The tribunal also suggests that a procedure should be introduced that would
help to ensure that individual bookmakers and racecourse executives would
be advised of any changes to the Pitch Rules and the date of implementation.
The determination is signed by Jim Kavanagh, chairman of the pitch tribunal.
87.       The Pitch Rules provide that the determination of the Pitch Tribunal shall be final and
binding on all parties concerned. The same rule also provides that the procedures of the
Pitch Tribunal shall comply with the principles of natural justice. The applicant did not
accept the finality of the determination and contended that the hearing had been
conducted other than in accordance with the principles of natural justice. The Pitch
Tribunal is an ad hoc committee created by INPBA and AIR under the Pitch Rules as a
dispute resolution mechanism. It has no separate legal identity. It cannot sue or be
sued.
88.       As creators of the Pitch Tribunal INPBA and AIR are in principle, answerable for
deficiencies in its procedures should those procedures fail to comply with the principles of
natural justice. At the conclusion of the Pitch Tribunal the applicant had the option of
accepting the determination and requesting his own association to seek a review of the
new rule 18 as is provided for in Rule 23 of the 2016 Rules. Alternatively, at least in
principle, he could have sued both AIR and INPBA in contract, seeking an order setting
aside the determination of the Pitch Tribunal on grounds that there was a want of fair
procedures in the manner in which it had arrived at its determination. Such proceedings
could have included a claim against the individuals in his own association for their alleged
failure to abide by its internal rules when approving the 2016 Rules. In pointing out this
option the court is not to be taken as expressing any view on the likely success or failure
of such a claim, but is merely indicating the legal avenue open to the applicant (or more
accurately, his mother) as a matter of law at that juncture.
Judicial review proceedings
89.       On the 1st February 2017 the applicants’ lawyers lodged an ex parte motion docket
seeking leave to apply for judicial review. The relief is sought solely against Horse Racing
Ireland and the Pitch Tribunal. The reliefs sought were as follows: -
(i) An order of certiorari sending forward to this honourable court for the purpose of
being quashed the decision of the second named respondent of the 16th December
2016 (“the impugned decision”) made under Rule 20 of the Racecourse executive
and seniority and Pitch Rules (revised version effective from 1st January 2011)
and/or Rule 21 of the Racecourse executive and seniority and Pitch Rules (revised
version effective from 1st March 2016) denying the applicants’ appeal from a
determination of the betting division of the first named respondent, as set out in
the applicant’s submissions dated the 2nd December 2016;
90.       The first thing perhaps to be observed is that this plea is not a model of clarity. The order
sought to be quashed is a decision of the Pitch Tribunal denying the applicants’ appeal
Page 22 ⇓
from a determination of the betting division of the first named respondent as set out in
the applicants’ submissions dated the 2nd December 2016. As already noted, there was
no determination by the betting division of the first named respondent. As the facts show,
the first named respondent made no such determination. Rather, it implemented Pitch
Rules which it had been informed had been agreed between the INPBA and the AIR. That
does not amount to a determination. Secondly, the court has not seen the applicant’s
submissions of the 2nd December
(ii) A declaration that the impugned decision is wrong in law and not in
accordance with the relevant Racecourse Executive ‘s Seniority and Pitch
Rules;
(iii) A declaration that the respondents had failed, contrary to the relevant
Racecourse executive and seniority and Pitch Rules, to put in place
procedures for the proper conduct of an appeal hearing;
(iv) A declaration that the Racecourse executive and seniority and Pitch Rules
(revised version effective from the 1st March 2016) may not be implemented
due to the failure of the first named respondent to notify applicants for the
bookmakers on – course betting of changes in the relevant Racecourse
executive and seniority and Pitch Rules;
(v) An injunction restraining the respondents, their servants or agents, from
taking any further steps in the implementation of the Racecourse executive
and seniority and Pitch Rules (revised version effective from 1st March 2016)
pending the determination of the within proceedings;
91.       The ex parte docket was directed to Horse Racing Ireland, and to the Association of Irish
Racecourses. It was not directed to the INPBA who on the facts, is the body which in the
applicant’s view has acted unlawfully in approving the 2016 Pitch Rules.
92.       In his grounding affidavit, the applicant wrongly avers that he is the holder of an on –
course betting permit. While the applicant is undoubtedly hugely involved in the family
bookmaking business, he is not the holder of an on course betting permit. His mother is
the permit holder. She has applied for and been granted, a representative permit which
allows the applicant stand in her stead on authorised racecourses. This is a matter which
clearly was within the applicant’s knowledge when he swore his verifying affidavit. The
court concludes that this was a deliberate decision to mislead the court into believing that
the applicant was the holder of a statutory permit so as to attempt to convey that his
issues were in the public law realm. It is notable that rather than exhibiting a copy of his
mother’s on course betting permit, or her representative permit, the applicant chose to
exhibit a blank application for such a permit.
93.       The matter came on for hearing before Noonan J. on Monday 6th February 2017. Leave to
apply for judicial review was granted by Noonan J. The grounds upon which the relief
were sought were as follows: -
Page 23 ⇓
(i) The respondents have failed, contrary to the relevant Racecourse executive’s
seniority and Pitch Rules, and contrary to the applicants’ right to due process,
to put in place procedures for the proper conduct for the appeal hearing.
(ii) The second named responded erred in fact and in law by including Mr.
Francis Hyland as a member of the Tribunal for the purposes of the appeal
hearing;
a) The second named respondent erred in fact in its determination that
Mr. Hyland had no vested interest in the proceedings;
b) In its determination, the second named respondent gave no regard to
the fact that Mr. Hyland was called to provide testimony as a witness
at the appeal hearing.
c) The second named respondent gave no regard to Mr. Hyland’s actions
and correspondence in relation to the disputed executive seniority and
Pitch Rules, which formed the subject matter of the applicant’s
complaints on appeal.
(iii) The second named respondents’ determination in relation to the validity of
the executive and seniority and Pitch Rules (1st March 2016) was in error:
a) the second named respondent erred in law and/or fettered its
discretion in finding that the Pitch Rules need not be signed by either
the INPBA or the AIR;
b) the second named respondent erred in fact in finding that the final
(published version) of the March 2016 Pitch Rules had been adopted by
the AIR and INPBA at their general meetings
c) the second named respondent erred in fact in finding that duly
authorised officers of AIR and INPBA have so informed the betting
division of HRI.
(iv) The second named respondent erred, acted unreasonably, and/or gave no
proper regard to the applicant’s complaint that, as permit holder, he had not
been properly notified of the adoption of the March 2016 Pitch Rules:
a) the second named respondent erred in its determination that the
applicants’ attendance at the general meeting of the INPBA on the 23rd
February 2016, constituted proper notice;
b) the finding of the second named respondent that the applicant had
“availed of the facility provided to bookmakers in the new Pitch Rules
to consolidate their permits” relied on evidence de hors the record and
on which the applicant had been given no opportunity to address;
c) the second named respondent gave no regard, or no proper regard, to
the applicant’s complaint that the first named respondent was obliged
to notify holders of the bookmakers’ on– course betting permit of any
changes in the Pitch Rules, and to seek agreement for same.
(v) The second named respondent erred in fact and in law in finding that there was
no significance to the addition of the words “and where the racecourse
Page 24 ⇓
executive wishes to provide facilities from which the ring bookmakers can
operate” to the definition of “premium areas” in the published version of
March 2016 Pitch Rules, in contrast to the version of Pitch Rules voted on by
the INPBA membership at its EGM.
(vi) The first named respondent acted unlawfully, and continues to act unlawfully,
in implementing Clause 18 of the March 2016 Pitch Rules in circumstances
where the first named respondent has been put on notice:
a) the chairman of the INPBA has not signed off on the March 2016 Pitch
Rules;
b) the March 2016 Pitch Rules as published do not conform with those
adopted by the INPBA at its EGM.
94.       What is striking about the grounds is that apart from the last item, they are all directed to
unfair procedures in the conduct of the Pitch Tribunal hearing. The complaint made
against Horse Racing Ireland is that it is implementing Pitch Rules where they are on
notice that they were unsigned by the chairman and that they do not conform verbatim
with the amendments agreed by AIR. As we have seen, the applicant was repeatedly and
in the court’s view, correctly advised, that those issues were issues between the applicant
and his own association.
95.       The court was persuaded to grant an injunction restraining the respondents their servants
or agents from taking any further steps in the implementation of Rule 18 of the
Racecourse Executive’s and Seniority Pitch Rules pending the determination of the
application for judicial review or until further order, or until the stay of proceedings shall
have lapsed by reason of the applicants’ failure to serve an originating notice of motion
within the proper time. Seven days were allowed for service of the notice of motion from
the perfection of the order and the motion was made returnable for the 28th March 2017.
96.       There were deficiencies in service of the notice of motion on HRI and on the 13th March
2017, application was made on behalf of the applicant to extend the time for service of
the notice of motion and to reinstate the injunction, which by virtue of the lapse of time
had fallen away. The injunction was reinstated in somewhat different terms, which
variation had been agreed by the applicant with AIR.
97.       In a letter of 2nd March 2017, William Fry, solicitors for HRI pointed out: -
“The naming of our client as a respondent to the above mentioned judicial review
proceedings is entirely misplaced and we will rely on this correspondence and our
clients’ previous correspondence to your client in relation to its role with respect to
the Racecourse Executive’s Seniority and Pitch Rules (revised version effective from
1st March 2016 )and separately the pitch tribunal to fix your client with the costs of
the within proceedings.
As your client is well aware, (not least as he is a former chairman and committee
member of the INPBA), the Racecourse Executives’ Seniority and Pitch Rules are
adopted by agreement between the Association of Irish Racecourses (“AIR”) and
Page 25 ⇓
the Irish National Professional Bookmakers Association (“INPBA”). Our client is not
responsible for drafting or making the Pitch Rules and has only a very limited role
with respect to the implementation of them.
Further, as your client is well aware, the Pitch Tribunal is an adjudicative body
which is provided for under the various versions of the Pitch Rules. Clause 21 of the
2016 Pitch Rules and clause 20 of the 2011 version of the Pitch Rules provide that
the Pitch Tribunal shall consist of a chairman “nominated by the AIR and the INBA
and two other members nominated by the AIR and the INBA respectively”. Our
client does not own, control, operate or have any input into the operation of the
Pitch Tribunal or in any decision made by it. Paul Finnegan of our client is not the
secretary of the Pitch Tribunal as your email of the 28th February states.
Accordingly, there is no basis whatsoever for your client to issue these judicial
review proceedings against our client. At the very most our client should have been
joined only as a notice party to the proceedings. We call upon your client
immediately to strike out the proceedings against our client”.
98.       Having then dealt with the issue of the injunction the letter concludes: -
“We assume that you will notify the INBPA of any proposed application you intend
to make to vary the terms of the injunction, given that it is the party together with
the AIR, responsible for the creation and amendment of the Pitch Rules”.
99.       It may have been this correspondence which prompted the applicants’ solicitors to serve
the INPBA with the pleadings and orders under cover of a letter dated the 16th March
2017.       This was the first formal service of papers on the INPBA, though they were aware
of the application and expected that HRI would deal with it. They had had no opportunity
to attend court, either on the 6th February 2017 or on the 13th March 2017, to object to
the injunction sought by the applicant.
Vacating the injunction
100.       On the 3rd April 2017, PJ O’Driscoll & Sons Solicitors acting for the INPBA, instructed
counsel to mention the case before Noonan J. and to seek an opportunity to be heard in
relation to the injunction that had been granted by the court. The INPBA were directed to
write to the parties giving 48 hours’ notice of its intention to apply to the court for an
order vacating the injunction.
101.       The application was grounded on the affidavit of Richard Gernon, vice chairman of the
Irish National Professional Bookmakers Association. In trenchant terms Mr. Gernon states
that the applicant though a member of the INPBA, was acting in a manner contrary to the
interests of the Association as a whole and that the elected committee of the Association
had taken the decision that it was necessary to highlight the injurious effects on all other
members of the Association, of the orders obtained by the applicant. He avers that the
Pitch Rules are privately agreed rules agreed principally between two private entities, the
INBA and the AIR, albeit that HRI is named in the rules. He avers that it is not clear
Page 26 ⇓
therefore that there is any public law element to the Pitch Rules. He highlights what he
considers to be a number of factual inaccuracies in the applicants’ affidavit and he takes
serious issue with the narrative provided by the applicant.
102.       At para. 23 he avers: -
“The Pitch Rules which are and always have been negotiated and agreed on a
collective basis, between the INBA of which the applicant is a member (and past
chairman) and the AIR on behalf of the racecourse owners. Whilst it is negotiated
by the INPBA and AIR individual bookmakers sign up to them when applying for a
permit at race meetings”.
103.       He avers that the applicant was a member of the INPBA committee during the
negotiation, drafting and approval process of the March 2016 edition of the Pitch Rules.
He voted in favour of the new Pitch Rules when they were proposed for adoption at the
INPBA’s AGM on the 23rd February 2016. He avers that the Pitch Rules were approved by
both the INPBA members and AIR members. Thus, there was agreement between INPBA
and AIR and clause 21 of the 2011 Pitch Rules relating to amendment had been fulfilled.
104.       At para. 25 he avers: -
“All members are bound by changes to the Pitch Rules, and hold their permits
subject to such changes. Furthermore, the applicant understood such changes
made to the Pitch Rules by taking advantage of them when they came into force. At
the Punchestown Festival in late April 2016, the Sean Graham firm exercised his
right to bet in the premium area at Punchestown for each of its two pitches”
105.       In his affidavit Mr. Gernon sets out what he avers were the effects of the court’s orders of
the 6th February and the 13th March and the damaging consequences for on course
betting. Mr. Gernon also avers that the INPBA endorsed the findings of the pitch tribunal.
106.       In his replying affidavit the applicant is equally trenchant. At para. 7 he contests Mr.
Gernon’s assertion that the order is prejudicial to the interests of the INPBA and he
states: -
“Most certainly the stay is not prejudicial to those members, like myself, who own
seniorities from 1945 or 1946 or who are racecourse bookmakers actually affected
by the impugned 2016 rules. Many of the other 120 members are in fact greyhound
bookmakers and point to point bookmakers who would never be affected by these
rules . . . .”
107.       At para. 7 he states: -
“Mr. Gernon is well aware that the issue at the heart of this review namely the
implementation of premium areas and rotation of seniority in the Pitch Rules has
been a matter of continuing controversy within the INPBA, that the membership is
Page 27 ⇓
split and has been at an impasse on resolution of the issue. See for example INPBA
minutes from a meeting dated 21st October 2016 (quoted above at para 82).
108.       The applicant then exhibits extracts from minutes of INPBA Committee meetings of April,
September and November 2016. These extracts certainly indicate ongoing disagreement
between the bookmakers concerning the operation of the ‘Premium Areas’. Various
proposals were put forward by individual committee members but no consensus emerged.
Interestingly, at the meeting in November 2016, it was agreed ‘to let members sort it out
at the A.G.M.’ That in the court’s view is precisely what should have been done.
109.       On the 5th April 2017 INPBA supported by AIR applied to Noonan J for an order
discharging the interim relief granted on the 6th February and varied on the 13th March
2017.       Both parties had earlier been made Notice Parties to the Judicial Review
Application. In the course of his extempore judgment delivered the 6th April 2017
Noonan J. observed:
“It should be noted that in the within proceedings as originally constituted, no relief
was sought by the applicant against the INPBA although it seems clear that his
primary dispute is with that body.”
110.       Having set out the submissions of both sides and the test for the grant of interlocutory
relief in the context of an application for judicial review, as set out Okunade v Minister for
Justice , the court stated:
“Applying these principles to the facts of this case, dealing firstly with the issue of
whether the plaintiff (sic) has raised a fair question, it seems to me that there is
merit in what the INPBA says regarding the appropriateness of this matter for
judicial review at all. However, I do not believe it is at this stage appropriate for
me to gauge the strength of the applicant’s case in that regard. Although such an
exercise can be undertaken sometimes in cases for example involving mandatory
injunction, I do not think this is a case where it would be appropriate and, in any
event, the applicant has met the threshold for the grant of leave so I propose not to
reach any definitive view on the point at this juncture.
However, I am satisfied that the applicant’s claim, such as it is, is one which is
purely predicated on the applicant’s alleged proprietary interest in seniority rights
and as such, is one that is clearly capable of being remedied in damages. The
applicant himself has pointed to the losses that he is likely to suffer if there is no
injunction and has given instances of the cost of acquiring those seniority rights
which he claims have been infringed. In those circumstances, I have come to the
conclusion that damages are an adequate remedy in this case and that this is an
entirely appropriate consideration in a claim of this nature, even brought by way of
judicial review, as is made clear by the judgment of Clarke J. in Okunade to which I
have referred. Although it is not necessary having reached that conclusion to
consider the balance of convenience, I am also satisfied that the balance of
convenience clearly favours the discharge of the stay/injunction. There is clear
Page 28 ⇓
evidence that a wide range of parties will potentially suffer loss if the injunction is
continued whereas it is to my mind less clear that the applicant will suffer loss.
Even if he does, it is a loss that is reasonably capable of ascertainment and thus
amenable to a claim for damages.
For these reasons therefore, I will discharge the interim order previously made
herein.”
111.       In dealing with the question of costs, which the court awarded against the applicant, the
court stated:
“In this case, I would add that this court was moved by the applicant at the ex
parte leave stage for interim relief in the form of an interlocutory injunction. When
that application was made, the applicant must have known that the interests of
INPBA and AIR would be adversely affected. The court was not advised of this fact
and had it been, would have ordered the immediate joinder of those parties and
further would not have granted an order of the kind obtained without notice to
them.”
112.       The circumstances in which the injunction restraining the implementation of the 2016
Pitch Rules was vacated, certainly put the applicant on notice that on a more detailed
consideration of the facts, there was an appreciable risk that a court would hold that his
complaint lay not against HRI, but against his own representative body, and as such was
a private law dispute to be governed by the rules of the association of which he is a
member and former chairman.
113.       Any doubt that his entitlement to seek Judicial Review was in issue was dispelled by the
Statement of Opposition filed on behalf of the first respondent approximately 3weeks
later, on the 25th April 2017.
HRI raised six preliminary objections in its statement of opposition. They are:
I. No decision of HRI has been challenged in the proceedings;
II. The impugned decision derives from contract and so is not amenable to judicial
review;
III. The Applicant does not have locus standi to bring these proceedings;
IV. The judicial review proceedings are out of time;
V. The Applicant has waived/acquiesced such that he is not entitled to relief;
VI. The Applicant is estopped by his conduct from claiming relief.
The Application is Misconceived
114.       The first two preliminary objections of HRI assert that this application is misconceived.
First it is misconceived because no decision of HRI has been impugned and second, it is
Page 29 ⇓
misconceived because the decision which the applicant seeks to impugn, namely the
determination of the Pitch Tribunal, of 16th December 2016, is a determination made in a
private law context and as such is not amenable to judicial review.
Applicant submissions on amenability to Judicial Review
115.       The Respondents’ jurisdictional argument that the Pitch Tribunal is not a public body
subject to judicial review and that no decision of HRI is being challenged, belies the
nature of HRI’s statutory functions and the appeals process.
116.       As is clear from his Grounds of Appeal, the Applicant had sought to appeal from a decision
of the Betting Division of HRI. Indeed, the Applicant was so advised by HRI’s legal officer
to bring the appeal of this decision to the Pitch Tribunal.
117.       HRI is a creature of statute, established under s.5 of the Horse and Greyhound Racing
Act, 2001. Pursuant to s. 10(c) of the Irish Horseracing Act 1994 (as amended) (the
“1994 Act”), HRI’s functions include “the control of the operations of authorised
bookmakers.” These functions incorporate the regulation of bookmakers and betting
including the issuance of permits under ss. 47-55 of the 1994 Act. Pursuant to s.53 of the
1994 Act, HRI may by regulation make provision for, inter alia, the activities, facilities,
and offices of bookmakers. Under s. 53(3) of the 1994 Act, where HRI proposes to make
such regulations it “… may have regard to any agreement between authorised
racecourses and authorised bookmakers in relation to any matter referred to in that
subsection.”
118.       The Applicant’s grounds of appeal to the Pitch Tribunal were that HRI’s actions in the
adoption and implementation of the 2016 Pitch Rules were erroneous and in violation of
due process, and that HRI’s Betting Division’s actions in implementing Clause 18 should
be vitiated for illegality. It is submitted that the Pitch Rules, and in particular Clause 18,
provide for “the control of the operations of authorised bookmakers” and in particular the
activities, facilities, and offices of bookmakers, all of which functions are within HRI’s
regulatory domain.
119.       Accordingly, the Applicant’s appeal was at all times a challenge to a decision of HRI in
exercise of its statutory powers. Whereas HRI has outsourced the appellate review of its
decision to the Pitch Tribunal, which is a private body, the Pitch Tribunal was at all times
conducting an appeal of a public law decision. In that regard, the Respondents’ argument
that the “private” nature of the Pitch Tribunal can serve to shield the public decision-
making of HRI from judicial scrutiny is entirely unavailing.
120.       The Respondents are of course well aware that HRI’s decisions are reviewable in light of
the dicta of Hogan J. in Francis Hyland v Dundalk Racing (1999) Ltd t/a Dundalk Stadium
[2014] IEHC 60:
“41. In the context of horse racing, sporting questions relating to the application of the
rules of racing are entrusted to the Turf Club and the Irish National Hunt
Steeplechase Committee who together form the Racing Regulatory Body for the
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purposes of Part III of the Irish Horse Racing Authority Act 1994. It must, however,
also be recalled that given that the Oireachtas has entrusted these functions by
statute to those bodies in the public interest, this means that decisions of these
bodies are, in principle, at least amenable to judicial review. It is, for present
purposes, unnecessary to express any precise view on these questions, save again
to say that the more the disputed matters relates purely to questions of sporting
judgment, the less likely it will be that there will be any judicial involvement in the
resolution of the dispute.”
121.       Hogan J further found, at paragraph 44, that the Pitch Rules are regulatory in nature:
“The Pitch Rules stand in contrast to the average set of rules of a sporting organisations
and clubs, precisely because they are designed to regulate not only the relationship
between the individual bookmaker and the individual racecourses, but also aspects of the
relationship between bookmakers inter se.” It is submitted that these regulatory
provisions come with HRI’s statutory functions as set out at s.10(c) of the 1994 Act.
122.       The Respondents’ jurisdictional challenge is similar to arguments which failed in O’Connell
v The Turf Club [2017] 2 IR 43, where the Supreme Court found that the Turf Club, as
the racing regulatory body, was sufficiently within the field of public law and within the
public domain as to have the consequence that its decisions were amenable to judicial
review, the Court was required to look at the realities of the power exercised by that
body. The respondent in that case was subject to judicial review as a consequence of
exercising statutory disciplinary power and adjudicative functions and imposing penalties.
123.       Hardiman J. further held that if an adjudication was arguably within the concept of “the
administration of justice” then judicial review had to be available in order to prevent such
a usurpation of the judicial function, even if, in the end, the specific adjudication was
saved by Article 37 of the Constitution, or by being held not to be an administration of
justice. The actions of the respondent in adjudicating the relevant complaints in that case
might arguably constitute an administration of justice.
124.       Similarly, the Pitch Tribunal’s adjudication of a challenge to HRI’s decision was within the
concept of “the administration of justice” for which judicial review should lie.
125.       It is also well-established that judicial review is available as a remedy where there is a
public aspect to the decision under review, as set out by Finlay CJ in the Supreme Court
decision in Beirne v Commissioner of An Garda Siochána [1993] ILRM 1:
“The principle which, in general, excludes from the ambit of judicial review
decisions made in the realm of private law is confined to cases or instances where
the duty being performed by the decision making authority is manifestly a private
duty and where the right to make it derives solely from contract or solely from
consent or the agreement of the parties affected. Where the duty being carried out
by a decision-making authority … is of a nature which might ordinarily be seen as
coming within the public domain, that decision can only be seen as coming within
the public domain, that decision can only be excluded from the reach of the
Page 31 ⇓
jurisdiction in judicial review if it can be shown that it solely and exclusively derived
from an individual contract made in private law.”
126.       In Beirne the applicant was a trainee Garda whose assignment was terminated by the
commissioner because of alleged misconduct. The commissioner denied that there had
been any breach of fair procedures, and contended that the right to terminate the
applicant’s assignment derived from contract, such that his decision was not subject to
judicial review. Because there was a public element, the majority of the Supreme Court
held that the commissioner’s decision was amenable to review. Finlay CJ found this public
element in the commissioner’s decision was amenable to review. Finlay CJ found this
public element in the commissioner’s statutory functions in admitting trainees and
enrolling persons as members of An Garda Síochána are ‘of the most intense interest to
the public at large’.
127.       In Browne v Dundalk Urban District Council [1993] 2 IR 512, [1993] ILRM 328 a dispute
arose out of a hall booking from the council by members of Sinn Féin for the party’s
annual conference. The councillors passed a resolution cancelling the booking, and the
town clerk, acting on the resolution, rescinded the contract. On review, Barr J. decided
that the issue was prima facie a contractual one and outside the scope of review, but
acknowledged that there was, in addition, a public element, as the town clerk would not
have sought to rescind the contract were it not for the council’s resolution, which was
clearly in the public domain. For that reason the unlawful termination of the contract was
subject to review and, in the circumstances, an order of certiorari was granted quashing
the purported rescission.
128.       In Eogan v University College Dublin [1996] 1 IR 390, [1996] 2 ILRM 302, Shanley J
identified the following matters which may be taken into account: (a) whether the
decision challenged has been made pursuant to a statute; (b) whether the decision maker
by his decision is performing a duty relating to a matter of particular and immediate
public concern and therefore falling within the public domain; (c) where the decision
affects a contract of employment, whether that employment has any statutory protection
so as to afford the employee any “public rights” upon which he may rely; (d) whether the
decision is being made by a decision maker whose powers, though not directly based on
statute, depend on approval by the legislature or Government for their continued
exercise.
129.       Shanley J further acknowledged that, in determining whether a decision is reviewable, the
issue is not just whether the power derives from a public source, but also whether the
power is of a public nature. This jurisprudence is consistent with the UK case of R v Panel
on Takeovers and Mergers ex parte Datafin PLC [1987] QB 815, where the Court of
Appeal held that the Panel was in principle amenable to judicial review, even though it
was not created by statute or by any exercise of prerogative or governmental power, but
where the Department of Trade and Industry had relied on the Panel’s enforcement of the
City Code on Takeovers and Mergers.
Page 32 ⇓
130.       It is submitted that the Honourable Court, when determining whether the decision of the
Pitch Tribunal is subject to review, is not confined to a consideration of the source of the
Pitch Tribunal’s powers and duties, but may look to the nature of those powers and
duties. As set out above, the Pitch Tribunal exercised public duties and public law
functions in the assessment of an appeal from a decision of a statutory body, namely
HRI’s Betting Division. HRI’s decision to implement the 2011 Pitch Rules, binding on
bookmakers, was made under its statutory authority. In this case, the Pitch Tribunal
exercised a public law function in the assessment of an appeal from a decision. It is
submitted that the Impugned Decision is manifestly subject to judicial review.
Respondent’s Submissions on Amenability to Judicial Review
131.       Non-amenability of Decisions Derived from Private Law
The Courts have recognised the principle in a number of cases. Including Rajah v Royal
College of Surgeons in Ireland [1994] 1 IR 384 and Geoghegan v Institute of Chartered
Accountants [1995] 3 IR 86 that if a decision derives solely from contract, relief will not
be granted on an application for judicial review.
132.       In Beirne v Garda Commissioner [1993] ILRM 328 Finlay CJ laid down the following test
at page 334:
“The principle which, in general, excludes from the ambit of judicial review
decisions made in the realm of private law is confined to cases or instances where
the duty being performed by the decision making authority is manifestly a private
duty and where the right to make it derives solely from contract or solely from
consent or the agreement of the parties affected. Where the duty being carried out
by a decision-making authority … is of a nature which might ordinarily be seen as
coming within the public domain, that decision can only be seen as coming within
the public domain, that decision can only be excluded from the reach of the
jurisdiction in judicial review if it can be shown that it solely and exclusively derived
from an individual contract made in private law.”
133.       It is submitted that in accordance with the test as set out in Beirne, the Applicant’s
grounds of complaint are not amenable to judicial review. There is no public dimension
involved in the allocation of pitches in a Premium Area.
134.       The 2016 Rules were agreed by two private bodies – AIR and the INPBA. Moreover, the
decision of Pitch Tribunal is not a product of statutory law – it is solely and exclusively
derived from contract made in private law. The 2016 Rules are purely within the realm of
private law and thereby, the 2016 Pitch Rules are non-reviewable in line with Rajah and
Geoghegan.
135.       The Applicant cites the 1994 Act in support of his contention that HRI should be subject to
review in this case. HRI is a statutory body whose functions under section 10(c) of the
1994 Act include “the control of the operations of authorised bookmakers” The decisions
of HRI may be subject to judicial review when exercising its public functions relating to
bookmakers pursuant to Parts IV-V of the 1994 Act. Parts IV-V of the 1994 Act concern
Page 33 ⇓
the licencing of bookmaker permits at authorised racecourses and provides for procedures
relating to the Bookmakers Appeal Committee.
136.       However, it is clear that HRI was not exercising its powers pursuant to Parts IV-V of the
1994 Act in this case. The Pitch Rules are not provided by statute and the 1994 Act
confers no obligations on HRI as to the allocation and location of pitches at authorised
racecourses. The allocation and location of the pitches is a matter of private contractual
agreement between AIR, the INPBA and individual permit holders over which HRI has no
authority. As Hogan J opined in (Francis Hyland v Dundalk Racing 1999) Ltd t/a Dundalk
Stadium [2014] IEHC 60 at para. 47:
“It is plain, however, from a consideration of the Pitch Rules that they were
intended to constitute a binding mechanism regulating the conditions of individual
bookmakers carrying on business at race meetings and they were also intended to
govern the transfer of a sale of a pitch from one bookmaker to another. Indeed, the
entire tenor of the Rules is to regulate the conduct of bookmakers inter se with
regard to the allocation of pitches.”
137.       Moreover, any dispute as to the Pitch Rules is subject to appeal to the Pitch Tribunal – a
private body – rather than being subject to statutory appeal to the Bookmakers Appeal
Committee pursuant to Part IV of the 1994 Act.
138.       The Applicant also cites section 53(3) of the 1994 Act as a basis to HRI within the scope
of judicial review in this case. Section 53 of the 1994 Act provides as follows:
“53.—(1) Subject to this section, the Authority may, by regulations, provide –
(a) for fixing the conditions governing and fixing the charges to be made by the
executive of an authorised racecourse to an authorised bookmaker for admission to
the racecourse (and different charges may be fixed in respect of different
authorised racecourses and in respect of different parts of the same racecourse):
Provided that in fixing such conditions and charges, the Authority shall not fix for the
admission of an authorised bookmaker to any part of that racecourse a charge
exceeding 5 times the charge then made to a member of the public for admission
to that part,
(b) for governing the activities of bookmakers at authorised racecourses, including the
range of betting services to be made available,
(c) for the provision of facilities for authorised bookmakers by the executive of an
authorised racecourse,
(d) for the permitting of authorised bookmakers to operate from betting offices,
(e) for the regulation of –
Page 34 ⇓
(i) the range of betting services to be made available at betting offices,
(ii) the structure and location of betting offices,
(iii) the operation and opening hours of betting offices,
(iv) the persons who may be admitted to, or permitted to place bets at, betting
offices,
(v) good order and conduct at betting offices.
(2) Any regulations made under subsection (1) (e) (iii) in respect of the opening hours
of betting offices shall not permit such betting offices to open for business for any
time before the racegoing public are permitted admission by the executive of an
authorised racecourse to a race-fixture or to remain open later than one hour after
the conclusion of the last race of the fixture.
(3) The Authority where it proposes to make regulations under subsection (1) may
have regard to any agreement between authorised racecourses and authorised
bookmakers in relation to any matter referred to in that subsection.
(4) A person to whom any regulation made under subsection (1) applies shall comply
with such regulation.”
139.       Section 53 relates to the enactment of regulations by HRI pursuant to section 53(3),
wherein it “may have regard to any agreement between authorised racecourses and
authorised bookmakers”. However, it is important to stress that the Pitch Rules are not
regulations of HRI and are not enacted under section 53. In direct contrast to the
regulatory framework of section 53, AIR and the INPBA may have regard to the views of
HRI when amending the Pitch Rules under Paragraph 21 of the 2011 Pitch Rules and
Paragraph 22 of the 2016 Pitch Rules.
140.       Further authority to support the submission that the 2016 Pitch Rules are not amenable
to review may be found in Eogan v University College Dublin [1996] 1 IR 390. In finding
that the decision of the Respondent university not to continue the Applicant professor in
office was reviewable, Shanley J identified at page 398:
“the following were among the matters which might be taken into account in
considering whether a decision was subject to judicial review:—
(a) whether the decision was made pursuant to a statute;
(b) whether the decision maker, by his decision, was performing a duty relating
to a matter of particular and immediate public concern and therefore falling
within the public domain;
Page 35 ⇓
(c) where the decision affected a contract of employment, whether that
employment had any statutory protection so as to afford the employee any
"public rights" upon which he might rely;
(d) whether the decision was being made by a decision maker whose powers,
though not directly based on statute, depended on approval by the
legislature or the Government for their continued exercise.”
141.       In Eogan v University College Dublin, Shanley J held the decision not to renew the
Applicant’s contract was reviewable as the decision was made “in substance pursuant to
the regime flowing from the [Irish Universities] Act of 1908.”
142.       It is evident that applying the factors identified in Eogan that the grounds of complaint in
this case are not amenable to review because:
a) the decision of the Pitch Tribunal was not made pursuant to statute;
b) the Pitch Tribunal, as to its decision in regard to the allocation of pitches in
Premium Areas under the 2016 Pitch Rules, was not “performing a duty relating a
matter of particular and immediate public concern”;
c) the decision does not concern a contract of employment concerning “public rights”;
and
d) the decision of the Pitch Tribunal whose powers as a private body flow from
contract do not depend on approval by the legislature or Government for its
continued exercise.
143.       In addition, contrary to the submissions of the Applicant, Francis Hyland v Dundalk Racing
(1999) t/a Dundalk Stadium [2014] IEHC 60 is not authority for the proposition that HRI
can be judicially reviewed in relation to the Pitch Rules and/or a decision of the Pitch
Tribunal. Francis Hyland v Dundalk Racing (1999) Ltd t/a Dundalk Stadium did not
concern judicial review proceedings; the case related to a contractual dispute as to the
application of the Pitch rules to Dundalk racing course. In Francis Hyland, Hogan J
concluded at para 58:
“In my view, therefore, bookmakers affected by the operation of the Pitch Rules
may, in principle, sue to enforce them in the same manner as any other contract to
which they are expressly named as a party.”
144.       This finding was upheld on appeal by the Court of Appeal in Hyland v Dundalk Racing
(1999) Ltd [2017] IECA 172.
145.       It is submitted, in light of the judgements in Francis Hyland, the Applicant’s use of judicial
review proceedings against HRI are misconstrued. The Pitch Rules are enforceable as a
matter of contract law between individual permit holders, AIR and INPBA – as a matter of
private law as distinct from public law.
Page 36 ⇓
146.       Alternatively, if the Court were to rule the 2016 Rules were amenable to review, HRI
could not be party to such proceedings because the Rules are agreed between AIR and
INPBA. Pursuant to Paragraph 21 of the 2011 Pitch Rules and Paragraph 22 of the 2016
Pitch Rules, HRI has no role in the agreement of the Rules. HRI’s role under the 2016
Pitch Rules relates to the implementation of the 2016 Pitch Rules. Moreover, HRI has no
role or function in the appointment, operation or running of the Pitch Tribunal pursuant to
Paragraph 20 of the 2011 Pitch Rules and Paragraph 21 of the 2016 Pitch Rules.
Therefore, HRI cannot be a party to a review of a decision of Pitch Tribunal.
Public/Private Divide in Judicial Review
147.       The public/private divide in Irish administrative law has not always been clear-cut. The
non-reviewability of private decisions was most recently considered in O’Connell v Turf
Club [2017] 2 IR 43. The Supreme Court held that the disciplinary decisions of the Turf
Club were amenable to judicial review in spite of the fact that the source of its powers
originally arose from contract law. Writing for the majority of the Court, O’Donnell J
stated that it was not necessary to detail “the precise nature of the test” of the
public/private divide in judicial review proceedings. However, it is evident from the
judgment in O’Connell v Turf Club that the 1994 Act was the critical factor in bringing the
Turf Club with the scope of judicial review. In recognising the complex features of the
1994 Act, O’Donnell J stated at para 71 that:
“[T]he 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 overall 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
respondent as henceforth a statutory body exercising solely statutory powers…
[T]he unusual terms and structure of the 1994 Act can be more readily understood
once they are approached on the basis that an object of the Act was to leave intact
the respondent's traditional role in the running and supervision of races.”
148.       O’Donnell J concluded at para 80:
“[I]t 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.”
149.       The circumstances of this case are distinguishable from the facts in O’Connell v Turf Club.
HRI, unlike the Turf Cub, is a statutory body and is subject to judicial review when
exercising its public functions under the 1994 Act. However, HRI was not exercising any
statutory obligations pursuant to Parts IV-V of the 1994 Act in this case. The role of HRI
under the 2016 Pitch Rules is non-statutory in origin and limited to implementation of
same. The 1994 Act makes no reference nor imposes any statutory obligations on HRI as
Page 37 ⇓
to the regulation of the Pitch Rules. HRI’s exercise of its role, albeit limited role, under the
2016 Pitch Rules lies purely within the realm of private law.
150.       The Respondent in his submissions makes reference to the judgment of Hardiman J in
O’Connell v Turf Club in further support of the argument that HRI should be amenable to
review in this case, stating:
“37. Hardiman J further held that if an application was arguably within the concept of
“the administration of justice” then judicial review had to be available in order to
prevent such a usurpation of the judicial function, even if, in the end, the specific
adjudication was saved by Article 37 of the Constitution, or by being held not to be
an administration of justice. The actions of the respondent in adjudicating the
relevant complaints in that case might arguably constitute an administration of
justice.
38.       Similarly, the Pitch Tribunal’s adjudication of a challenge to HRI’s decision was
within the concept of “the administration of justice” for which judicial review should
lie.”
151.       O’Connell v Turf Club is not authority for the proposition that if an adjudication was
arguably within the concept of “the administration of justice”, then judicial review must lie
– such views were clearly in the minority. O’Donnell J (Denham CJ, Murray and Dunne JJ
concurring), writing for the majority in O’Connell v Turf Club, expressly disagreed with
Hardiman J’s proposition, stating at para 94:
“First, the finding that the respondent's power to impose disciplinary decisions is
not dependent on statute weakens, although it does not completely undermine, the
applicants' case in this regard. Second, the classic test laid out by Kenny J. in
McDonald v. Bord na gCon [1965] I.R. 217, and later adopted by the Supreme
Court in that case, seems to suggest that the decisions of the respondent do not
constitute the administration of justice. In particular, it does not appear to me that
the decisions of the respondent can satisfy the fourth or fifth criteria. Decisions of
the respondent 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 respondent must seek to recover any
such fine in litigation, in proceedings indeed akin to those in Rogers v. Moore and
Others [1931] I.R. 24. 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 respondent.”
152.       O’Donnell J held at para 57:
“The decision-making function of the respondent 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.”
Page 38 ⇓
153.       In light of the majority judgment in O’Connell v Turf Club, it is clear that the Courts
cannot judicially review a decision of the Pitch Tribunal on grounds that the Pitch Tribunal
was administering justice, particularly in circumstances when the Pitch Tribunal, unlike
the Turf Club, falls outside the realm of public law.
154.       It is further submitted that the exercise of HRI’s role in implementing the Pitch Rules
constitute the exercise of a private power by a public body. The Courts have recognised
that review may be precluded in instances when public bodies are exercising powers
under private law. In Healy v Fingal County Council [1997] IEHC 197, the Applicant, an
elected councillor, sought to judicially review the Council’s decision to deduct councillor’s
expenses by way of set off against debt due to the Council. Barr J, in considering the
Beirne test, held:
“In applying that precept to the present case it is evident that the conduct of the
respondent of which complaint is made is not "of a nature which might ordinarily be
seen as coming within the public domain" as posited by Finlay C.J. I am satisfied
that there is no public dimension involved in the set-off made by the Council
against expenses due by it to the applicant. The issue as to whether or not the
respondent is lawfully entitled to take that course is not a matter which introduces
the requisite public element necessary to justify relief by way of judicial review.
Accordingly, in the light of the judgment of the Supreme Court in Beirne -v-
Commissioner of An Garda Siochana, (see also my judgments in Browne -v-
Dundalk Urban District Council, [1993] 2I.R. 512 and Murphy -v- Turfs Club, [1989]
I.R. 171), I am satisfied that the applicant is not entitled to relief by way of judicial
review.”
155.       It is submitted, in light of Healy v Fingal County Council, that the exercise of HRI’s role
under the 2016 Pitch Rules is not amenable to review because there is no public
dimension involved in the allocation of pitches in a Premium Area.
Decision
156.       In its submissions, the applicant’s lawyers have misconstrued the import of the decision
of Hogan J in Francis Hyland v Dundalk Racing (1999) t/a Dundalk Stadium [2014] IEHC 60.
The dicta upon which they seek to rely, in respect of the amenability to judicial review
of decisions of the Turf Club, came in the context of a discussion of the general rule that
sporting judgments are not justiciable. Having set out the rationale for the general rule,
the court then observed that Part III of the Irish Horse Racing Authority Act 1994
potentially created an exception to the general rule:
“In the context of horse racing, sporting questions relating to the rules of racing are
entrusted to the Turf Club and the Irish National Hunt Steeplechase Committee who
together form the Racing Regulatory Body for the purposes of Part III of the Irish
Horse Racing Authority Act 1994. It must however, also be recalled that given that
the Oireachtas has entrusted these functions by statute to those bodies in the
public interest, this means that decisions of these bodies are, in principle, at least
amenable to judicial review. It is, for present purposes, unnecessary to express
Page 39 ⇓
any precise view on these questions, save again to say that the more the disputed
matter relates purely to questions of sporting judgment, the less likely it will be
that there will be any judicial involvement in the resolution of the dispute.”
157.       Having made that observation, the court then moved on to consider the status of the
Pitch Rules and as we have seen, for the reasons set out in the judgment, the court
concluded:
“In my view, therefore, bookmakers affected by the operation of the Pitch Rules
may, in principle, sue to enforce them in the same manner as any other contract to
which they are expressly named as a party,”
158.       There is nothing in the Hyland decision to suggest or support the view, that an alleged
breach of the Pitch Rules could give rise to a judicial review. In fact, the import of the
decision is to the contrary, that the Pitch Rules create contractual arrangements between
bookmakers and racecourses as well as between bookmakers inter se.
159.       The Court is satisfied 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. The Pitch Tribunal has no statutory dimension or role. It is part of the
contractual arrangements agreed between the INPBA and the AIR. As such its
determination is not amenable to judicial review.
160.       In the course of this application, the applicant deployed a number of strategies in
attempting to apply a public law veneer to a private law dispute. He did so in the main by
overstating the role of HRI in the process. He characterised his appeal to the Pitch
Tribunal as:
“An appeal to the Pitch Tribunal, on the application of Brian Graham, against a
determination of the Betting Division of Horse Racing Ireland”.
161.       As held earlier in this judgment, there was no ’determination’ by the Betting Division of
HRI. It simply implemented a change determined by INPBA and AIR, to amend the 2011
Pitch Rules. A party cannot change the nature of a decision by the label he chooses to
put on that decision.
162.       The applicant asserted, in the course of the hearing, and in correspondence, that the
Chairman of the Pitch Tribunal was nominated by HRI. That is not so, and the applicant
well knew that it was untrue, because he was the Chairman of INPBA in 2011 when the
Rule was changed to provide that the Chairman would be nominated jointly by INPBA and
AIR.
163.       It was asserted on behalf of the applicant that the applicant had been directed by HRI to
bring his dispute to the Pitch Tribunal. The evidence clearly establishes that such is not
the case. The applicant was repeatedly advised that he should raise any issue he had with
Page 40 ⇓
the Pitch Rules with his representative body, the INPBA. He was reminded by the CEO of
AIR that the Pitch Rules can be reviewed at the request of that body.
164.       The most serious untruth advanced during the course of this application, is the averment
contained in the applicant’s grounding affidavit, that he is a holder of a statutory on
course betting permit issued by HRI, when to his knowledge, he is not. The permit holder
is his mother. As found earlier in this judgment, the court is of the view that this was a
deliberate attempt to mislead the court as to his status in an attempt to convey to the
court that the issues raised by him, were in the public law realm.
165.       On the facts, as set out in extenso in this judgment, it is clear, that Mr. Graham’s real
dispute is with his own representative body, the INPBA and not with HRI. At an EGM in
the Keedeen Hotel on the 23rd February 2016 the INPBA approved the proposed new
Pitch Rules. The applicant was in attendance at that meeting and, according to the
uncontradicted evidence of Richard Gernon, Vice Chairman of INPBA, was a member of
the INPBA committee during the negotiation, drafting and approval process, of the March
2016 edition of the Rules. He supported the adoption of the new Pitch Rules, including
Rule 18(b) which provided for the method of allocation of pitches in Premium Areas. That
approval by the members of INPBA has not been withdrawn nor has it been superseded
by new Pitch Rules. The Executive of the INPBA notified HRI of its membership’s
acceptance of the proposed new Pitch Rules. At its AGM on the 30th March 2016, AIR
also approved the new Pitch Rules and it too notified HRI of that fact.
166.       While the applicant initially supported the proposed changes, he appears to have had a
change of heart, for reasons that have not emerged in evidence. On the 31st March
2016, he emailed various Committee Members of INPBA, suggesting that the Premium
Areas be treated as Subsidiary betting rings, in which the allocation of pitches would be
based on seniority. This suggestion was clearly contrary to what had been agreed at the
EGM of the INPBA.
167.       The Applicant subsequently wrote to both AIR and HRI complaining about the method of
allocation of pitches in the Premium Areas. Both advised him that as the new rules had
been formally approved by both INPBA and AIR they were currently in force. The CEO of
AIR reminded him that the rule could be reviewed at any time at the request of INPBA
and advised him to take the matter up with the INPBA. This he didn’t do. Instead, he
complained that since the new rules had not been signed by David Power Chairman of
INPBA, they were invalid and could not be deemed to be legal and binding. He also
complained that the definition of premium area in the AIR version of the Rules differed
from that of INPBA.
168.       HRI, not unreasonably, in the court’s view replied that it had confirmation from the
Executive of both AIR and INPBA, that their respective associations had approved the new
Rules and in light of that, it would in accordance with the Pitch Rules, apply the agreed
Rules. It is no part of the function of HRI to go behind the notifications received from
INPBA or AIR to ascertain whether each association complied with its own internal rules in
adopting or approving new Pitch Rules.
Page 41 ⇓
169.       The propriety or otherwise of the manner of adoption of the Pitch Rules by the INPBA is
an internal matter for that association. The rules and constitution of the association are
not in evidence before the court. The applicant contends that the approval by the EGM is
not sufficient and that the proposed rules must be signed by the Chairman. He has
adduced no evidence in support of that contention. David Power has been frequently
mentioned but he has not sworn an affidavit in these proceedings. An email from him
explains why he did not sign the 2016 Rules. It states; “I have been asked to confirm to
you that I have not signed the revised Pitch Rules 2016. I have not signed these because
they were altered since they were agreed by the INPBA. David Power does not assert in
his email, that his failure to sign the Rules rendered them invalid.
170.       From the various minutes of INPBA meetings exhibited throughout these proceedings it is
clear that there is dissatisfaction in some quarters of the INPBA with the operation of the
2016 Pitch Rules, notwithstanding their approval at the February 2016 EGM. That is an
issue to be resolved by the INPBA within its own internal rules. If having done so, it
wishes to review the Pitch Rules, it can seek such a review pursuant to Rule 23 of the
2016 Rules.
For all of the foregoing reasons, that court is persuaded that this application is
misconceived and should be dismissed.


Result:     Application dismissed




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