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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mullins, R (on the application of) v The Jockey Club [2005] EWHC 2197 (Admin) (17 October 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/2197.html Cite as: [2005] EWHC 2197 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r
e :
____________________
The Queen on the application of WILLIAM ![]() | Claimant |
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- and - |
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THE ![]() ![]() ![]() ![]() ![]() ![]() ![]() | Defendant |
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-and- |
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THE ![]() ![]() ![]() | Interested Party |
____________________
Smith Bernal Reporting
Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Alex Marzec (instructed by Charles Russell)
made written submissions on behalf of the Defendant but did not appear.
Mark Warby QC and Iain Christie (instructed by Charles Russell)
for the Interested Party
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Mr Justice Stanley Burnton :
Introduction
The Claimant's contentions
(i) Aga Khan concerned a decision of the Jockey
Club,
with whom the Aga Khan had a contract. In this case, the decision impeached is that of the
Appeal
Board,
with whom the Claimant has no contract.
(ii) The Jockey
Club
now purports to exercise jurisdiction unrestricted to its members and those who may wish to enter or to use its property.
(iii) Sport now occupies a more substantial place in our society, and the decisions of the Jockey
Club
are now of greater importance than at the time of the decision in Aga Khan.
(iv) The enactment of the Human Rights
Act 1998, the amendment to Part 54 of the CPR and the decision of the House of Lords in Aston Cantlow and Wilmcote with Billesley Parochial Church Council
v
Wallbank [2004] 1 AC 546, have changed the law.
The issue before the Court
"In this Section –
(a) a 'claim for judicialreview'
means a claim to
review
the lawfulness of -
(i) an enactment; or
(ii) a decision, action or failure to act inrelation
to the exercise of a public function."
"The judicial review
procedure" is defined as the Part 8 procedure as modified by that Section.
The constitution and functions of the Jockey
Club
"No seriousracecourse
management, owner, trainer or
jockey
can survive without the
recognition
or licence of the
Jockey
![]()
Club.
There is in effect no alternative market in which those not accepted by the
Jockey
![]()
Club
can find a place or to which
racegoers
may
resort.
Thus by means of the
rules
and its market domination the
Jockey
![]()
Club
can effectively control not only those who agree to abide by its
rules
but also those -- such as disqualified or excluded persons seeking to participate in
racing
activities in any capacity -- who do not. For practical purposes the
Jockey
![]()
Club's
writ
runs
in the British
racing
world, to the acknowledged benefit of British
racing."
"TheRules
of
Racing
are a skilfully drafted, comprehensive and far-
reaching
code of
rules
through which the
Jockey
![]()
Club
exercises its control over
racing
in this country."
The decision of the Court of Appeal
in Aga Khan
"Although theJockey
![]()
Club
exercised dominant control over
racing
activities in Great Britain its powers and duties were in no sense governmental but derived from the contractual
relationship
between the
club
and those agreeing to be bound by the
Rules
of
Racing;
that such powers gave
rise
to private
rights
enforceable by private action in which effective
relief
by way of declaration, injunction and damages was available; and that, accordingly, the
club's
decision was not amenable to judicial
review."
"I have little hesitation in accepting the applicant's contention that theJockey
![]()
Club
effectively
regulates
a significant national activity, exercising powers which affect the public and are exercised in the interest of the public. I am willing to accept that if the
Jockey
![]()
Club
did not
regulate
this activity the government would probably be driven to create a public body to do so.
But theJockey
![]()
Club
is not in its origin, its history, its constitution or (least of all) its membership a public body. While the grant of a
Royal
Charter was no doubt a mark of official approval, this did not in any way alter its essential nature, functions or standing. Statute provides for its
representation
on the Horserace Betting Levy
Board,
no doubt as a body with an obvious interest in
racing,
but it has otherwise escaped mention in the statute book. It has not been woven into any system of governmental control of horseracing, perhaps because it has itself controlled horseracing so successfully that there has been no need for any such governmental system and such does not therefore exist. This has the
result
that while the
Jockey
![]()
Club's
powers may be described as, in many ways, public they are in no sense governmental. The discretion conferred by section 31(6) of the Supreme Court Act 1981 to
refuse
the grant of leave or
relief
where the applicant has been guilty of delay which would be prejudicial to good administration can scarcely have been envisaged as applicable in a case such as this.
I would accept that those who agree to be bound by theRules
of
Racing
have no effective alternative to doing so if they want to take part in
racing
in this country. It also seems likely to me that if, instead of
Rules
of
Racing
administered by the
Jockey
![]()
Club,
there were a statutory code administered by a public body, the
rights
and obligations conferred and imposed by the code would probably approximate to those conferred and imposed by the
Rules
of
Racing.
But this does not, as it seems to me, alter the fact, however anomalous it may be, that the powers which the
Jockey
![]()
Club
exercises over those who (like the applicant) agree to be bound by the
Rules
of
Racing
derive from the agreement of the parties and give
rise
to private
rights
on which effective action for a declaration, an injunction and damages can be based without
resort
to judicial
review.
It would in my opinion be contrary to sound and long-standing principle to extend the
remedy
of judicial
review
to such a case.
It is unnecessary for purposes of thisappeal
to decide whether decisions of the
Jockey
![]()
Club
may ever in any circumstances be challenged by judicial
review
and I do not do so. Cases where the applicant or plaintiff has no contract on which to
rely
may
raise
different considerations and the existence or non-existence of alternative
remedies
may then be material. I think it better that this court should defer detailed consideration of such a case until it arises. I am, however, satisfied that on the facts of this case the
appeal
should be dismissed."
"… there has never been any doubt that public lawremedies
do not lie against domestic bodies, as they derive solely from the consent of the parties. … The question
remains
whether the
Jockey
![]()
Club,
or this particular decision of it, can properly be described as a domestic body acting by consent.
.... The courts have always beenreluctant
to interfere with the control of sporting bodies over their own sports and I do not detect in the material available to us any grounds for supposing that, if the
Jockey
![]()
Club
were dissolved, any governmental body would assume control of
racing.
Neither in its framework nor its
rules
nor its function does the
Jockey
![]()
Club
fulfil a governmental
role.
I understand the criticism made by Mr. Kentridge of thereality
of the consent to the authority of the
Jockey
![]()
Club.
The invitation to consent is
very
much on a take it or leave it basis. But I do not consider that this undermines the
reality
of the consent. Nearly all sports are subject to a body of
rules
to which an entrant must subscribe. These are necessary, as already observed, for the control and integrity of the sport concerned. In such a large industry as
racing
has become, I would suspect that all those actively and honestly engaged in it welcome the control of licensing and discipline exerted by the
Jockey
![]()
Club.
For thesereasons
I would hold that the decision of the Disciplinary Committee of the
Jockey
![]()
Club
to disqualify Aliysa from the 1989 Oaks is not susceptible to judicial
review.
As to Mr. Milmo's assertion that the question of theJockey
![]()
Club's
susceptibility to judicial
review
must be answered on an all or nothing basis, I can only say as at present advised that I do not agree. … While I do not say that particular circumstances would give a
right
to judicial
review
I do not discount the possibility that in some special circumstances the
remedy
might lie. If for example the
Jockey
![]()
Club
failed to fulfil its obligations under the charter by making discriminatory
rules,
it may be that those affected would have a
remedy
in public law.
In the presentappeal
there is no hardship to the applicant in his being denied judicial
review.
If his complaint that the disciplinary committee acted unfairly is well-founded there is no
reason
why he should not proceed by writ seeking a declaration and an injunction. Having
regard
to the issues involved it may be a more convenient process. I would dismiss the
appeal."
"It is true that in some countries there are statutory bodies which exercise at least some control overracing.
It appears from Heatley
v.
Tasmanian
Racing
and Gaming Commission (1977) 137 C.L.
R.
487 that this is the position in Tasmania and we were told that it was also true of certain of the United States. But different countries draw the line between public and private
regulation
in different places. The fact that certain functions of the
Jockey
![]()
Club
could be exercised by a statutory body and that they are so exercised in some other countries does not make them governmental functions in England. The attitude of the English legislator to
racing
is much more akin to his attitude to
religion
(see
Reg.
![]()
v.
Chief
Rabbi
of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 W.L.
R.
1036): It is something to be encouraged but not the business of government.
All this leaves is the fact that theJockey
![]()
Club
has power. But the mere fact of power, even over a substantial area of economic activity, is not enough. In a mixed economy, power may be private as well as public. Private power may affect the public interest and the livelihoods of many individuals. But that does not subject it to the
rules
of public law. If control is needed, it must be found in the law of contract, the doctrine of
restraint
of trade, the
Restrictive
Trade Practices Act 1976, articles 85 and 86 of the E.E.C. Treaty and all the other instruments available in law for curbing the excesses of private power.
It may be that in some cases theremedies
available in private law are inadequate. For example, in cases in which power is exercised unfairly against persons who have no contractual
relationship
with the private decision-making body, the court may not find it easy to fashion a cause of action to provide a
remedy.
In Nagle
v.
Feilden [1966] 2 Q.B. 633, for example, this court had to consider the
Jockey
![]()
Club's
![]()
refusal
on grounds of sex to grant a trainer's licence to a woman. She had no contract with the
Jockey
![]()
Club
or (at that time) any other
recognised
cause of action, but this court said that it was arguable that she could still obtain a declaration and injunction. There is an improvisatory air about this solution and the possibility of obtaining an injunction has probably not survived Siskina (Owners of cargo lately laden on
board)
![]()
v.
Distos Compania Naviera S.A [1979] A.C. 210.
It wasrecognition
that there might be gaps in the private law that led Simon Brown J. in
Reg.
![]()
v.
![]()
Jockey
![]()
Club,
Ex parte
R.A.M.
![]()
Racecourses
Ltd. [1993] 2 A11 E.
R.
225 to suggest that case like Nagle
v
Feilden [1966] 2 Q.B. 633, as well as certain others involving domestic bodies like the Football Association in Eastham
v
Newcastle United Football
Club
Ltd. [1964] Ch. 413 and a trade union in Breen
v.
Amalgamated Engineering Union [1971] 2 Q.B. 175, "had they arisen today and not some years ago, would have found a natural home in judicial
review
proceedings." For my part, I must
respectfully
doubt whether this would be true. Trade unions have now had obligations of fairness imposed upon them by legislation, but I doubt whether, if this had not happened, the courts would have tried to fill the gap by subjecting them to public law. The decision of
Rose
J. in
Reg.
![]()
v.
Football Association Ltd., Ex parte Football League Ltd., The Times, 22 August 1991, which I found highly persuasive, shows that the same is probably true of the Football Association. I do not think that one should try to patch up the
remedies
available against domestic bodies by pretending that they are organs of government.
In the present case, however, theremedies
in private law available to the Aga Khan seem to me entirely adequate. He has a contract with the
Jockey
![]()
Club,
both as a
registered
owner and by
virtue
of having entered his horse in the Oaks. The
club
has an implied obligation under the contract to conduct its disciplinary proceedings fairly. If it has not done so, the Aga Khan can obtain a declaration that the decision was ineffective (I avoid the slippery word
void)
and, if necessary, an injunction to
restrain
the
club
from doing anything to implement it. No injustice is therefore likely to be caused in the present case by the denial of a public law
remedy."
The suggested grounds for distinguishing Aga Khan.
(a) The decision impeached is that of the Appeal
Board
and not of the
Jockey
Club
(b) The purported exercise by the Jockey
Club
of jurisdiction over the public.
"No person shall make or offer to make a bet on behalf of an amateurrider,
or an amateur
rider
![]()
riding
under the provisions of
Rule
61, on any
race
in which the
rider
is
riding
nor shall he offer such
rider
the proceeds, or any part thereof, of the bet, on any such
race."
However, whether the power which theJockey
![]()
Club
purports to exercise under such a
rule
is enforceable is a different matter. The fact
remains
that the
Jockey
![]()
Club
cannot enforce its
rules
otherwise than by means of its contracts, or the exercise of its property
rights.
None of its
rules
has any statutory force. As I have already stated, it seems to me that a body which would otherwise exercise only private functions cannot assume public functions by its own action alone. Some governmental intervention is
required.
There has been none.
(c) The greater importance of the decisions of the Jockey
Club.
(d) Matters relied
upon to encourage the court to depart from the decision in Aga Khan.
"It is true that in some countries there are statutory bodies which exercise at least some control overracing.
It appears from Heatley
v.
Tasmanian
Racing
and Gaming Commission (1977) 137 C.L.
R.
487 that this is the position in Tasmania and we were told that it was also true of certain of the United States. But different countries draw the line between public and private
regulation
in different places. The fact that certain functions of the
Jockey
![]()
Club
could be exercised by a statutory body and that they are so exercised in some other countries does not make them governmental functions in England. The attitude of the English legislator to
racing
is much more akin to his attitude to
religion
(see
Reg.
![]()
v.
Chief
Rabbi
of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 W.L.
R.
1036): it is something to be encouraged but not the business of government."
Other matters
Changes in the law
"Order 53Rule
1 in identifying cases which were appropriate for an application for judicial
review
focussed on the nature of the application. Was it an application for an order of mandamus, prohibition or certiorari or an application for a declaration or an injunction which could be granted on an application for judicial
review,
if having
regard
to the nature and matters in
respect
of which
relief
may be granted by way of one of the prerogative
remedies,
it would be just and convenient for the declaration or injunction to be granted on an application for judicial
review?
Part 54 (1) CPR has changed the focus of the test so that it is also partly functions based."
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Conventionright.
(2) …
(3) In this section 'public authority' includes-
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(4) ….
(5) Inrelation
to a particular act, a person is not a public authority by
virtue
only of subsection (3)(b) if the nature of the act is private."
"Section 6(3)(b) gathers this type of case into the embrace of section 6 by including within the phrase 'public authority' any person whose functions include 'functions of a public nature'. This extension of the expression 'public authority' does not apply to a person if the nature of the act in question is private."
"50. The phrase 'governmental organisations established for public administration purposes' in the third sentence of the passage which I have quoted from the Holy Monasteries case (1995) 20 EHRR 1 is significant. It indicates that test of whether a person or body is a 'non-governmental organisation' within the meaning of article 34 of the Convention is whether it was established with aview
to public administration as part of the process of government. That too was the approach which was taken by the Commission in Hautanemi
v
Sweden (1996) 22 EHRR CD 156. At the
relevant
time the Church of Sweden and its member parishes were to be
regarded
as corporations of public law in the domestic legal order. It was held nevertheless that the applicant parish was a
victim
within the meaning of what was then article 25, on the ground that the Church and its member parishes could not be considered to have been exercising governmental powers and the parish was a non-governmental organisation.
51. It can be seen from what was said in these cases that the Convention institutions have developed their own jurisprudence as to the meaning which is to be given to the expression 'non-governmental organisation' in article 34. We must take that jurisprudence into account in determining any question which has arisen in connection with a Conventionright:
Human
Rights
Act 1998, section 2(1).
52. The Court ofAppeal
left this jurisprudence out of account. They looked instead for guidance to cases about the amenability of bodies to judicial
review,
although they
recognised
that they were not necessarily determinative: p 62D-E, para 34. But, as Professor Oliver has pointed out in her commentary on the decision of the Court of
Appeal
in this case, 'Chancel
repairs
and the Human
Rights
Act' [2001] PL 651, the decided cases on the amenability of bodies to judicial
review
have been made for purposes which have nothing to do with the liability of the state in international law. They cannot be
regarded
as determinative of a body's membership of the class of 'core' public authorities: see also Grosz, Beatson & Duffy, Human
Rights:
The 1998 Act and the European Convention (2000), p 61, para 4-04. Nor can they be
regarded
as determinative of the question whether a body falls within the "hybrid" class. That is not to say that the case law on judicial
review
may not provide some assistance as to what does, and what does not, constitute a 'function of a public nature' within the meaning of section 6(3)(b). It may well be helpful. But the domestic case law must be examined in the light of the jurisprudence of the Strasbourg Court as to those bodies which engage the
responsibility
of the State for the purposes of the Convention."
"The phrase 'public functions' in this context is thus clearly linked to the functions and powers, whether centralised or distributed, of government".
See too Lord Hope at [59], Lord Hobhouse at [88], and LordRodger
at [163]:
"163. In the present case the question therefore comes to be whether a PCC is a public authority in the sense that it carries out, either generally or on therelevant
occasion, the kind of public function of government which would engage the
responsibility
of the United Kingdom before the Strasbourg organs. ..."
Conclusion
Procedural issues.