Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan: CA 4 Dec 1992

No Judicial Review of Decisions of Private Body

Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. Tne relationship is in contract between the club and its member. Sir Thomas Bingham MR: ‘No serious racecourse 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.’ As to the rules of racing: ‘The Rules 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.’
Farquharson LJ: ‘ . . there has never been any doubt that public law remedies do not lie against domestic bodies, as they derive solely from the consent of the parties. . . 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 been reluctant to interfere with the control of sporting bodies over their own sports and I do not detect in the material available to us any grounds for supposing that, if the Jockey Club 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 the reality 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 these reasons 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 the Jockey 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 present appeal 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.’
Hoffmann LJ: ‘It is true that in some countries there are statutory bodies which exercise at least some control over racing. 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 the Jockey 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 the remedies 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 was recognition 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, the remedies 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.’
Sir Thomas Bingham MR said that the test was whether the powers exercised were governmental: ‘I have little hesitation in accepting the applicant’s contention that the Jockey 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 the Jockey 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 the Rules 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 this appeal 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.’

Sir Thomas Bingham MR, Farquharson LJ, Hoffmann LJ
[1993] 1 WLR 909, [1992] EWCA Civ 7
Bailii
Civil Procedure Rules 54
England and Wales
Citing:
CitedLaw v National Greyhound Racing Club Limited CA 29-Jul-1983
The plaintiff alleged abuse of the discretion conferred on the club by the rules. His trainer’s licence had been suspended. He said that it was contrary to an implied term of an agreement between the trainer and the racing club that any action taken . .

Cited by:
CitedWright v The Jockey Club QBD 15-May-1995
A jockey had been refused a jockey’s licence for medical reasons. He sought damages for his loss of earnings. The club applied to strike out the claim as showing no arguable cause of action.
Held: The duties of a body exercising a licensing . .
CitedMullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
CitedStretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

Lists of cited by and citing cases may be incomplete.

Company, Natural Justice, Civil Procedure Rules, Administrative

Leading Case

Updated: 01 November 2021; Ref: scu.197904