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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Flaherty v National Greyhound Racing Club Ltd  EWCA Civ 1117 (14 September 2005)
Cite as:  EWCA Civ 1117
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Evans-Lombe)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SCOTT BAKER
SIR PETER GIBSON
|- and -
|NATIONAL GREYHOUND RACING CLUB LTD
Mr Tim Penny (instructed by Messrs Russell Jones and Walker) for the Respondent
Hearing dates: 6/7 July 2005
Crown Copyright ©
Lord Justice Scott Baker:
Mr Nicholson (the senior steward),
Mr Crittall (the veterinary steward),
Ms Kershaw and
Also present were:
Mr Betteridge (secretary to the senior steward),
Mr Rowe (Mr Harris's immediate superior at WGS),
Mr Thompson, and
"I think that the courts must be slow to allow an implied obligation to be fair to be used as a means of bringing before the court for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens. Bodies such as the board which promote a public interest by seeking to maintain high standards in a field of activity which otherwise might easily become degraded and corrupt ought not to be hampered in their work without good cause."
Apparent bias of Mr Crittall
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
This test, involving a slight adjustment to the test previously propounded in R v Gough  AC 646, brings the law into harmony with the Strasbourg interpretation of the application of Article 6 of the European Convention on Human Rights, most Commonwealth Countries and Scotland.
"(1) If a judge is shown to have been influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established the personal impartiality of the judge is to be presumed. (3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside. (4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court. (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice."
"Injustice will have occurred as a result of bias if 'the decision-maker unfairly regarded with disfavour the case of a party to the issue under consideration by him'. I take 'unfairly regarded with disfavour' to mean 'was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue."
"The principles of natural justice or fairness must adapt to their context and can be approached with a measure of realism and good sense. Appendix B para (B7) of the defendant's rules makes clear that the disciplinary committee "will consist of members of the federation drug advisory committee, or its nominees". It was both natural and appropriate that the disciplinary committee should have among its members someone with experience of doping control and its procedures. Mr Guy was chosen for this reason, and because he spoke English and came from a different national athletic federation. There is no reason to think that he held or would hold any fixed or predetermined ideas on any of the issues being raised by the claimant in her challenge to the Portuguese results."
i) the nature, function and composition of the tribunal;
ii) the particular character of the tribunal's proceedings;
iii) the rules under which the proceedings are regulated;
iv) the nature of the inquiry; and
v) the particular subject matter with which the decision is concerned.
"Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented--often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings."
"Subject to the issue of waiver, which I will shortly deal with, I have come to the conclusion that a fair-minded observer informed of the facts of this case, which I have sought to describe in this judgment, would conclude that there was a real possibility that Mr Crittall's consideration of the NGRC's case against (the respondent) alleging breaches of its rules, was biased in favour of finding that case proved."
"Mr Crittall's veterinary practice had been retained by WGS to provide veterinary services between 1970 and 1st December 2001. Mr Crittall said under cross-examination that he had attended WGS during that period of 31 years approximately once a week, sharing the duties with other members of his practice, their attendance averaging approximately 4 attendances a week. The practice charged £30 an hour until 2000 and thereafter £50 an hour. Thus the practice earned approximately £750 a week from this source. This made WGS the practice's principal client over many years and was considered by Mr Crittall as a valued and loyal client.
Mr Crittall had had contact with Mr Harris in the latter's capacity as racing manger at WGS, a post which he held for some 3 or 4 years. Mr Harris had in fact worked for WGS since 1975. Mr Crittall described Mr Harris as "a colleague" with whom he had worked at WGS. He also knew Mr Rowe, Mr Harris' immediate superior at WGS. He had been acquainted with Mr Rowe for longer than Mr Harris. Both Mr Rowe and Mr Harris attended the Tribunal hearing. Mr Crittall had over the years been allowed free entry for himself and his family to WGS which he occasionally made use of. He had also been invited by the management to lunch at some important meetings such as the Greyhound Derby.
It was from the evidence of Mr Crittall, assisted by photographs and a plan that I was able to obtain a mental picture of the layout of WGS and, in particular, the layout of the Paddock and how the greyhounds were given a veterinary inspection and disposed of before races. He evidently had firm views about the adequacy of WGS security arrangements. I accept that in the course of the Steward's hearing he forcefully expressed those views. So far as the Stewards are concerned, he appears to have played a dominant part at the hearing particularly in the questioning of (the respondent). Mr Crittall has been an NGRC Steward for the past 13 years."
i) Mr Crittall's prior relationship with the owners of WGS;
ii) Mr Crittall's prior professional contacts with Mr Rowe and Mr Harris;
iii) Mr Crittall's expression of views at the inquiry about the security arrangements at WGS.
Mr Crittall's relationship with WGS
"From this summary it can be seen that Mrs. Walker was and is eminently well qualified to sit on the Professional Conduct Committee as one of its lay members. She brought to that membership an extensive knowledge of the health service in Wales, as a result of having worked there for many years as a nurse and midwife and her period of service as director of the South East Wales Institute. It is in the public interest that those who serve as lay members on disciplinary bodies of this kind should be well-informed and have experience of working in the area within which cases are likely to arise on which they may be called upon to adjudicate. It could not possibly be suggested that there was anything in Mrs. Walker's general background that would be likely to give rise to the danger or possibility of bias on her part when she was considering a case from Wales."
Mr Crittall's prior professional contact with Mr Rowe and Mr Harris.
"The submission is of appearance of bias by a Judge of some eight years standing. He participated in the hearing of the appeal in a civil case on a dispute between landowners and a local authority. He had occasional association before appointment with a surveyor witness essentially in unrelated business circumstances. Even taking full account of the relationship both Judge and witness had with Mr Max Grierson we do not consider this gives rise to concern for a real danger or possibility of bias. The fact of a solicitor-client relationship which terminated eight years earlier does not add to that. To take any other view would be unrealistic in the New Zealand situation; even in Auckland. Senior legal practitioners with busy commercial and conveyancing practices must come into contact and establish business associations with a considerable proportion of the professional practitioners in related fields such as surveying and civil engineering. The proposition that because of such an association they should be regarded as in danger of failure to carry out judicial functions impartially eight years after retiring from practice is unreal."
Lord Steyn observed that this was a corner of the law in which the context and particular circumstances are of supreme importance.
Mr Crittall's expression of views at the inquiry about the security arrangements at WGS.
a) A positive finding for hexamine.
b) The respondent's admission that the greyhound contained symptoms consistent with a urinary tract infection - symptoms which were not present before the greyhound was kennelled.
c) Mr Fegan's written evidence that at higher dosages hexamine had been known to cause distress, albeit he was not present at the inquiry to back up his assertion or to explain at what level hexamine had been known to cause distress.
d) Hexamine is not a recognised 'stopper' and Mr Hastie (the respondent's vet) in all his years as a greyhound veterinary surgeon could not recall the use of hexamine other than in the treatment of urinary infection or disease.
e) The stewards had never come across an unexplained hexamine case before and certainly not within the last few years. This indicated trace contamination was unlikely.
f) The respondent's oral evidence that although he was aware that something was wrong whilst preparing to return to Edinburgh, he did not consult the duty vet before embarking on a long journey. This was, on the one hand, inconsistent with his love of greyhounds and, on the other, consistent with his being aware of, and having treated, his dog's problem with hexamine.
g) Wet kennel bedding was consistent with urinary tract infection.
h) Although the respondent suggested the possibility of contamination, he produced no evidence to suggest how it might have arisen.
i) If a third party had wanted to 'stop' a greyhound, using a substance that would have no effect on the dog in normal dosage was not the likely way to go about it.
j) Anyone trying to administer hexamine through the wire mesh grill would be likely to have been spotted doing so as there were officials and trainers in the locality.
k) The respondent had a motive for administering hexamine if he thought the greyhound was suffering from a urinary tract infection.
l) It was too great a coincidence that the greyhound was suffering from a urinary tract infection and that the animal tested positive for the very drug used to treat that condition.
In my judgment these underlying reasons for the stewards' decision emphasise that the security question was indeed very much a sub-issue.
i) The respondent did not have sufficient knowledge of Mr Crittall's past connection with WGS or any knowledge that Mr Crittall had worked with Mr Harris and Mr Rowe.
ii) The respondent was not aware of his right to object to Mr Crittall's presence.
iii) The respondent did not clearly and unequivocally demonstrate his waiver of his right to object to Mr Crittall.
The Melville issue.
Q. "My question is: to your knowledge, did any of them have any knowledge of the security arrangements at Wimbledon Stadium?
A. I would say yes.
Q. Who would that have been?
A. I am sure that senior steward would be aware of them, Chief Executive would have been aware of them.MR JUSTICE EVANS-LOMBE: He was not a steward.
A. He was not a steward, my Lord, but he sits in at the deliberations and during the whole of the inquiry.MR JUSTICE EVANS-LOMBE: Is he allowed to contribute to them?
A. During the deliberations?MR JUSTICE EVANS-LOMBE: Yes.
A. He can. In fact, it is very often asked by senior steward, "Have you any questions of this trainer?" or-MR JUSTICE EVANS-LOMBE: Oh no, I am not talking about that.
A. During the deliberations-MR JUSTICE EVANS-LOMBE: After you have withdrawn-
A. After they have withdrawn-MR JUSTICE EVANS-LOMBE: He withdraws with you, does he not?
A. Well, the other people withdraw, my Lord, but, yes, we do-MR JUSTICE EVANS-LOMBE: Mr Melville was there during your deliberations, after the hearing was over?
A. He was indeed.MR PENNY: He is involved in the decision making process?
A. He is able to contribute any views that he might have, and it is up to the stewards themselves to take account of them
MR JUSTICE EVANS-LOMBE: He does not have a vote, in other words?
A. He has no vote.
MR JUSTICE EVANS-LOMBE: But he can contribute to the discussion?
A. That is why he stays in, my Lord. He has very extensive knowledge of greyhound racing."
"The mere presence of a non member while the tribunal is deliberating is enough to invalidate the proceedings."
"Mr Flaherty is not in a position to, and does not take issue with the stewards new evidence to the effect that Mr Melville did not in fact contribute to the determination of the outcome of this case."
"(i) The rule against non-members being present at the deliberations of a tribunal flows from a different principle of procedural fairness from that considered by the cases on bias. Here the principle is the right of an "accused" to know the case against him and to hear, and deal with, if he can, all the evidence and submissions in support of that case which are brought before the relevant tribunal. A failure to observe this principle may induce bias in the tribunal, but that it is a different matter.
(ii) The appearance of injustice as it may be perceived by the "accused" as a result of his knowledge that a non-member, connected with his accuser, was present at the tribunal's deliberations, is sufficient to undermine the tribunal's decision provided the appearance of injustice is sufficiently stark.
(iii) The fact that it can be proved by evidence, including evidence from the tribunal members themselves, that no injustice has actually been done, is immaterial."
He regarded himself as bound by the Cooper line of authorities.
"The general rule in adversarial proceedings, as between the parties, is that one party should not be entitled to impugn the evidence of another party's witness if he has not asked appropriate questions enabling the witness to deal with the criticisms that are being made. This general rule is stated in Phipson on Evidence 15th Ed at para 11-26 in the following terms:
"As a rule a party should put to each of his opponent's witnesses in turn so much of his own case as concerns that particular witness, or in which he had a share, eg if the witness has deposed a conversation, the opposing counsel should put to the witnesses any significant differences from his own case. If he asks no questions he will generally be taken to accept the witness's account and will not be permitted to attack it in his final speech…Failure to cross-examine will not, however, always amount to acceptance of the witness's testimony, if for example the witness has had notice to the contrary beforehand, or the story itself is of an incredible or romancing character"."
"61…..the test which is appropriate to ask is whether, having regard to the course of proceedings there has been a fair result. As Lord Wilberforce indicated, there may be circumstances in which by reason of corruption or bias or some other deficiency the end result cannot be described as fair. The question in every case is the extent to which the deficiency alleged has produced overall unfairness."
Sir Peter Gibson: I agree.
The President: I also agree.