Flaherty v National Greyhound Racing Club Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Sir Peter Gibson,The President |
| Judgment Date | 14 September 2005 |
| Neutral Citation | [2005] EWCA Civ 1117 |
| Docket Number | Case No: A3/2004/2714 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 September 2005 |
[2005] EWCA Civ 1117
The President
Lord Justice Scott Baker
Sir Peter Gibson
Case No: A3/2004/2714
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Evans-Lombe)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Timothy Charlton Q.C and Mr Jasbir Dhillon (instructed by Messrs Kirkpatrick & Lockhart Nicholson Graham LLP) for the Appellant
Mr Tim Penny (instructed by Messrs Russell Jones and Walker) for the Respondent
On 10 September 2002 the stewards of the National Greyhound Racing Club Limited ("the NGRC"), who are the appellants, found Mr Tom Flaherty, who is the respondent, in breach of the NGRC rules of racing. They directed that he should be reprimanded and fined £400. On 8 December 2004, after a hearing that had lasted some 10 days, Evans-Lombe J declared that the stewards' decision was reached in breach of the NGRC's implied obligation of fairness under the contract between the respondent and the NGRC and that the decision was of no effect. The present appeal is brought by permission of Evans-Lombe J.
Background
The NGRC is a company limited by guarantee, and is the body in the United Kingdom responsible for regulating the sport of greyhound racing. In 2004 the sport is said to have attracted £1.6 billion in betting. 3.7 million paying customers passed through the gates of 31 racecourses under its supervision. Wimbledon Greyhound Stadium ("WGS") is one of those racecourses and the one with which this case is concerned. The NGRC's objects include: (i) licensing greyhound racecourses, trainers and officials associated with greyhound racing; (ii) issuing the rules of racing, which is the code for regulating greyhound racing; and (iii) acting as the body responsible for the discipline and conduct of racing in England, Wales and Scotland.
Stewards are appointed by the NGRC to determine at an inquiry whether there has been a breach of the rules of racing by any licensee and, if so, whether to exercise any power under the rules against that person. Until he returned his licence to the NGRC just after the stewards' decision in this case, the respondent was a trainer licensed by the NGRC.
It was established in Law v NGRC [1983] 1 WLR 1302 that the status of the stewards was that of a domestic tribunal and that their power to impose penalties for breach of the NGRC rules derive from contract. All those who wish to take part in racing in greyhound stadia licensed by the NGRC are deemed under rule 2 to have read the rules and to have submitted themselves to such rules and to the NGRC's jurisdiction.
The respondent is a greyhound owner who lives in Scotland. He was the owner and trainer of a racing greyhound called Knockeevan King ("the greyhound"). On 4 May 2002 the greyhound won the first heat of the greyhound Derby, thus qualifying for the second round that took place on 11 May 2002 at the same stadium. Having won the first heat, the greyhound was one of the favourites for the event. The prize for the winner of the Derby was £75,000, but winning would also increase the greyhound's stud value. Following success in the first heat the respondent returned with the greyhound to Scotland. On the morning of 11 May the respondent set off from Edinburgh by car with his wife, bringing the greyhound with them. The greyhound had been checked, in accordance with the respondent's usual practice, by his vet, a Mr Hastie, about 50 hours before they left. The greyhound was due to run in heat number 8 at 9.l5pm, which it duly did, coming last of five runners despite the fact that it was the favourite to win the race.
Dogs taking part in races at WGS were kennelled in a building known as the paddock. The individual kennels in which the dogs were placed were in an area observed by security cameras. The door to each kennel was locked as soon as a greyhound was put in it. The main panel of the door of each kennel was comprised of a fine wire mesh enabling the dog to breathe but preventing access to it by a stranger. The time fixed for kennelling the greyhound was 6.15pm. The respondent and his wife arrived between 5pm and 6pm and their evidence to the inquiry was that prior to kennelling the greyhound urinated and defecated and seemed generally healthy. As was the ordinary practice, there was an inspection by the duty vet before the greyhound was kennelled. This was a fairly cursory inspection whose object was to ensure that all dogs taking part in races showed no signs of being unfit to do so, in particular that they showed no symptoms of disease or lameness. The greyhound passed the inspection and was kennelled between 6.15 and 6.30pm.
The respondent and his wife returned to the kennel at about 9pm to get ready for the race. The NGRC has a programme of random testing of greyhounds for the presence of drugs at races. The practice was to take a urine sample from the dog immediately after it had been taken out of the kennel but before the race. The respondent's greyhound was selected for testing on the evening in question. The process took place under the supervision of the testing steward. The sample was sent to the Horseracing Forensic Laboratory ("HFL"), a leading independent laboratory experienced in drug detection and analysis for sports regulators. On 17 June 2002 HFL issued a certificate of analysis which stated that the greyhound's urine contained hexamine. Hexamine is a drug that would ordinarily be thought of as a drug used to treat urinary tract infections in greyhounds. It is not a drug that would ordinarily be thought of as a 'stopping' drug. The administration of any quantity of hexamine by the respondent to the greyhound and racing the greyhound with hexamine present in its body was prohibited by rule 174(a)(i) of the rules of racing. Hexamine is only available on prescription in the United Kingdom but is generally available in Ireland.
It is the practice before a race to parade the dogs by walking them round a circuit of the track. The respondent's wife took the greyhound on the parade and noticed that it hung back instead of pressing forward which was its usual behaviour. When she placed her hand under its belly to guide it into the starting trap it showed signs of pain. It finished last of five runners being bumped on the first bend. Its time was 0.19 of a second slower than in the first heat.
When the respondent and his wife returned to the kennel after the race they discovered that the greyhound had, unusually, urinated on its bed quilt whilst in the kennel before the race. Nevertheless, the greyhound was fit to travel and in good health on their return to Scotland.
The certificate of analysis by HFL stating that the sample contained hexamine was sent to the security co-ordinator for the NGRC, a Mr Thompson, who sent a copy to Mr Harris, the racing manager at WGS who in turn notified the respondent of the result of the test.
On 28 June 2002 the respondent sent an e-mail to the NGRC setting out his detailed account of what he considered to be the material facts. The thrust of his position was that he concurred with the result of the test; neither he nor his wife had administered l1examine and the greyhound had been under their sole control during the days prior to the race. He believed the dog had been 'stopped' by a third party.
On 19 July 2002, the area stipendiary steward, Ms McNally and Mr Harris the racing manager at WGS attended a local inquiry at WGS into the positive urine sample and submitted a brief report to the senior steward. On 12 August 2002 Mr Melville, the chief executive of the NGRC, wrote to the respondent informing him that the senior steward had ordered an inquiry by the stewards into whether there had been a breach of the rules of racing including rule 174(a)(i). The letter enclosed copies of the documents which were to form the basis for the inquiry. It informed the respondent of the date when the inquiry would take place, his right to legal representation, the procedure to be adopted by the inquiry and that advance notice was required of the respondent's witnesses under the rules of racing.
On 10 September 2002 the stewards held their inquiry into the positive urine sample of the greyhound. Six stewards were in attendance:
Mr Nicholson (the senior steward),
Mr Crittall (the veterinary steward),
Mr Dunnett,
Mr BentalI,
Ms Kershaw and
Col McDermott.
Also present were:
The respondent,
Mr Bettetidge (secretary to the senior steward),
Mr Harris,
Mr Rowe (Mr Harris's immediate superior at WGS),
Ms McNally,
Mr Thompson, and
Mr Melville.
The inquiry hearing lasted between 1 and 2 hours. At the outset Mr Thompson read out a pro forma statement and with it the documents that were before the inquiry, including Mr Harris's evidence. The respondent then presented his own evidence and case, largely following a prepared script. His case challenged the security at WGS and relied on two letters from veterinary surgeons, Mr Fegan and Mr Hastie.
The fundamental issue at the inquiry was whether the respondent had administered hexamine to the greyhound. He suggested two alternative possibilities. The first was that hexamine was administered to the greyhound by an unknown and unidentified third party who squirted or sprayed liquid hexamine through the mesh grill at the front of the kennel door while the greyhound was kennelled before the race. The second was that the hexamine was present in the greyhound as a result of some form of trace contamination.
After hearing all the evidence...
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