Irrational ruling was in breach of contract between Turf Club and trainer

James Bolger (plaintiff) v Michael Osborne, Frank Hardy, Seamus McGrath, Michael Deegan and the Turf Club (defendants).

Public Law - Contract - Natural and constitutional justice - Judicial review - Negligence - Vicarious liability - Strict Liability - Horse-racing - Appeal Tribunal of the Turf Club - Rules of the Turf Club - Reasons for decision.

The High Court (before Mrs Justice Macken); judgment delivered 6 August 1999.

The Rules of the Turf Club may be applied strictly. However within those rules there was no vicarious liability and no strict liability applicable. The rules must be applied in the same way as rules constituting any other contract in that any ambiguity in the rules must be construed against the defendants in favour of the plaintiff. As there was no evidence of any act or omission on the part of the plaintiff, a finding of fault, in the absence of strict or vicarious liability, had no basis and was in breach of the contract existing between the parties. This finding of fault was wholly irrational and in the circumstances was in breach of the plaintiff's constitutional right to a fair and proper hearing.

The High Court so held in granting the relief sought by the plaintiff declaring that the decision by the Turf Club to impose a fine upon the plaintiff to be void and of no effect and was imposed without evidence and was contrary to reason and common sense. As such the plaintiff was entitled to a decree of special damages in respect of costs incurred at the appeal procedure which the judge held was a wholly unsustainable hearing.

Eoghan Fitzsimons SC and Eoin McCullough BL for the plaintiff; Kevin Feeney SC, John McBratney SC and Nuala Butler BL for the defendants.

Mrs Justice Macken outlined the facts of the case. The plaintiff, a highly successful horse trainer, had two horses running in a particular race at Naas Racecourse in County Kildare on 20 July 1994. The favourite in the race was trained by the plaintiff and had won the race beating a horse named Tirolean into second place by a distance of a head. The horse Tirolean was also trained by the plaintiff. It was common case that a stewards' inquiry was then called into the result of the race in question and more particularly into the running of Tirolean. A charge was made against the jockey and the plaintiff that the horse "did not run on its merits" contrary to Rules 148(1) and 212 of the Rules of the Turf Club. The stewards then imposed a fine on the plaintiff pursuant to Rule 14 of the rules, the jockey was suspended for 28 days and the horse was banned for 30 days. The plaintiff contended that although no reason was given for the stewards' decision the implication was that he was somehow responsible for the horse failing to run on its merits.

The plaintiff appealed the decision to the Appeal Tribunal of the Turf Club, which confirmed the decision and affirmed the fine. The plaintiff now sought inter alia a declaration that both the decision and the fine imposed by the stewards were ultra vires, void and of no effect.

Mrs Justice Macken said that it was clear from reading a transcript of the appeal procedure that the defendants (who were members of the Appeal Tribunal of the Turf Club) had held the plaintiff liable for the failure of the horse to run on its merits. The plaintiff had initiated proceedings by way of plenary summons, not by judicial review, and had contended that this was the correct approach according to the judgment of Mr Justice Barr in Murphy v The Turf Club [1989] IR 171.

In the alternative the plaintiff argued that the decision could also have been the subject of a judicial review application. In this regard the plaintiff argued that both the Racing Board and Racecourses (Amendment) Act 1975 and the Irish Horse Racing Industry Act 1994 imported the necessary degree of public law into the present matter to make it amenable to judicial review. The plaintiff did concede that the Irish Horse Racing Industry Act 1994 although passed by the Oireachtas was not actually in force at the date of the appeal. In regard to entitlement to judicial review the plaintiff relied on the decision of the Supreme Court in Geoghegan v The Institute of Chartered Accountants [1995] 3 IR 86 and to the dicta of Mr Justice Kelly in Bane v Garda Representative Association [1997] 2 IR 449.

The plaintiff also argued that a right to a fair hearing was an implied term in the contractual relationship existing between the parties. This being so the plaintiff contended that he was therefore entitled to have notice of the facts upon which the decision was made and also the reasons for that decision. The plaintiff also argued inter alia that the appeal procedure had been carried out in a negligent fashion by the appeal tribunal.

The defendants contended that the case pleaded by the plaintiff was one in contract and although it was open to him to seek judicial review of the decision in question he had not done so, not least because a judicial review application would have been out of time. As such, the defendants argued that the case could not be treated as a judicial review application. The defendants also put forward the case that any horse trainer who receives a licence must act in strict accord with the Turf Club Rules. The plaintiff had been given a full opportunity to explain why the horse had not run on its merits and that the explanation tendered had not been accepted. Counsel for the defendants also relied to some extent on the dicta of the Chief Justice, Mr Justice Hamilton, in Henry Denny v Minister for Social Welfare [1998] 1 IR 36 that a court should be reluctant to interfere with an expert tribunal except in very narrow circumstances, such as an erroneous view of the law or unsustainable findings of fact and that neither applied here. The defendants also argued that if a trainer allies himself with an explanation given by a jockey and that explanation is not accepted, then the trainer is liable.

Mrs Justice Macken stated that this was a case in which judicial review was not being sought and it would be wrong for the court to treat the case as if it were. On the face, of it the decision on whether a horse runs as fast as it can or ought, has little in the way of public law issues attaching to it. Mrs Justice Macken however felt that it would be inappropriate at this juncture to decide whether there could be judicial review of decisions of the defendants. Mrs Justice Macken held that it was however fully open to the plaintiff in these proceedings, which were not judicial review proceedings, to challenge the decision of the defendants on the grounds that there was no evidence to support it. To hold otherwise would be to state that in respect of challenging a decision one can only move for judicial review and Mrs Justice Macken knew of no principle of law which would support this contention. Furthermore, Mrs Justice Macken held that the defendants had accepted that neither strict liability nor vicarious liability attached to the relevant rules. Mrs Justice Macken accepted the contention that the rules were to be applied strictly but this was an entirely different matter.

Mrs Justice Macken was of the view that if as a matter of law one accepts that there was neither strict liability nor vicarious liability then it fell upon the defendants to show some degree of fault which was attributable to the plaintiff. Mrs Justice Macken held that it may well be true that the horse did not run on its merits but in the absence of either strict or vicarious liability it did not automatically follow that the trainer was liable for this occurrence. Mrs Justice Macken further held that on the face of it the trainer's responsibility for ensuring that the horse ran on its merits was met. Rule 148(1) stated: "A trainer shall be responsible for everything connected with the running of the horse trained by him" and principally the defendants relied upon this rule along with Rule 212 to make their case. Mrs Justice Macken held that this appeared to be an attempt to make a case of vicarious liability. The defendants further contended that the liability of the plaintiff was independent and arose by virtue of the fact that the plaintiff was responsible for everything connected with the running of the race and as no credible explanation was given by him for the horse not running on its merits the plaintiff was therefore liable. Mrs Justice Macken held that this was not a correct application of the rules in question. Mrs Justice Macken held that what had founded the allegation of liability here was the explanation given by the jockey after the race of why the horse had not apparently run on its merits.

The defendants had in fact attempted to construct a reversal of the burden of proof in that as a starting point the trainer was deemed liable and must somehow exonerate himself by explanation. The defendants in fact had a duty themselves to provide proof and discharge the onus upon them in relation to any allegation. Mrs Justice Macken held that a finding of fault by the defendants, in the absence of strict or vicarious liability, was in breach of the contract existing between the parties, was wholly irrational and, in the absence of any facts or matters being disclosed to the plaintiff as to the allegation he was required to meet, was in breach of his constitutional right to a fair and proper hearing. Mrs Justice Macken declined to decide on this occasion whether it was necessary that the defendants furnish reasons for their decisions. Accordingly Mrs Justice Macken granted a declaration that the decision of the defendants made on 3 August 1994 to impose a fine on the plaintiff was void and of no effect, was made without evidence and was contrary to reason and common sense. Mrs Justice Macken made a further order quashing the said decision of the defendants and further ordered that the defendants repay the fine to the plaintiff. Furthermore it was held that the plaintiff was entitled to recover a sum of special damages in relation to the costs incurred by him at the hearing of the Appeal Tribunal.

Solicitors: Nuala MacKenzie (Naas, Co Kildare) for the plaintiff; Wilkinson & Price (Naas, Co Kildare) for the defendants.