Law v National Greyhound Racing Club Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE LAWTON,LORD JUSTICE FOX,LORD JUSTICE SLADE
Judgment Date29 July 1983
Judgment citation (vLex)[1983] EWCA Civ J0729-1
Docket Number83/0349
CourtCourt of Appeal (Civil Division)
Date29 July 1983
Cecil Law
Plaintiff
and
National Greyhound Racing Club Limited (By Guarantee)
Defendant

[1983] EWCA Civ J0729-1

Before:

Lord Justice Lawton,

Lord Justice Fox

and

Lord Justice Slade

83/0349

1983 L. No. 679

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (Civil Division)

(On appeal from Chancery Division—Walton J.)

Royal Courts of Justice

Mr. ROGER HENDERSON QC and Mr. ADRIAN BRUNNER (instructed by Messrs. Bristows Cooks & Carpmael) appeared on behalf of the Appellant (Defendant).

Mr. ANTHONY SCRIVENER QC and Mr. LAN CROXFORD (instructed by Messrs. Mitchell Williams, Southend-on-Sea) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE LAWTON
1

This is an appeal by the defendants, the National Greyhound Racing Club, a company limited by guarantee, from the judgment of Walton J. given on May 10,1983, whereby he refused to strike out the plaintiff's claim for want of jurisdiction.

2

By an originating summons issued on February 11, 1983, the plaintiff, who trains racing greyhounds, asked the Court to grant him relief as follows:

  • 1. A declaration that the decision made by the Stewards of the defendants on the 9th December 1982 insofar as they purported to suspend the plaintiff's trainer's licence was void and ultra vires the Stewards' powers, in that the said action amounted to a breach of the implied term of the agreement between the plaintiff and the defendants that all actions taken by the Stewards which could deprive the plaintiff of his licence, would be reasonable and fair and made on reasonable grounds.

  • 2. Further, or in the alternative, a declaration in the same terms as set out in paragraph 1, on the grounds that the Stewards' said action was ultra vires and void in that it was in unreasonable restraint of trade and contrary to public policy.

  • 3. A declaration that rule 174(a)(ii) of the "Rules of Racing" is invalid and of no effect, and/or limited by the implied term that it would not be invoked to suspend or disqualify a licence-holder without proof of culpability and/or blameworthiness on the part of the licence-holder.

  • 4. An order that the suspension of the plaintiff's licence imposed on the 9th December 1982 shall not take effect.

  • 5. Further, and/or in the alternative, if the suspension referred to above shall take effect damages in respect thereof for breach of contract and/or interference or restraint of trade.

  • 6. Further or other relief as may be just.

3

The defendants tried to persuade Walton J. that the plaintiff's claim was misconceived because if he had any valid complaint about the way the Stewards had treated him, he should have applied for judicial review. They failed. They have tried to persuade this Court that, on the correct construction of section 31 of the Supreme Court lot 1981, when a domestic tribunal is alleged to have made, in abuse of its powers, a decision which affects a member of the public or the public generally, the complainant must apply for judicial review and cannot proceed by way of an action or an originating summons for either a declaration or an injunction.

4

In a judgment of this Court given on October 16, 1981 in a restrictive practices case unsuccessfully brought against the defendants, Waller L.J. referred to them as follows:

"The NGRC [that is the defendants] is a limited company whose objects include acting as the judicial body for the discipline and conduct of greyhound racing in England, Wales and Scotland. Also, after consultation with the British Greyhound Racing Board, to frame and amend a code of rules for greyhound racing. Further, to license greyhound race courses, trainers, kennel hands and officials. Also to Improve the care and welfare of greyhounds generally.

There are 107 greyhound racing stadia in Great Britain, of which 48 are licensed by the NGRC. The remainder are unapproved by the NGRC. A principal objective of the rules of the NGRC is to achieve an orderly and reliable method of conducting greyhound racing in England, Wales and Scotland. The NGRC licenses, among others, race courses, race course executives, trainers and owners".

5

In order to achieve these objects the defendants have issued "Rules of Racing" and have appointed Stewards who have no financial interest in greyhound racing, to enforce them. All who wish to take part in greyhound racing in stadia licensed by the defendants are deemed under rule 2 to have read the Rules and to have submitted themselves to such Rules and to the defendants' jurisdiction. Trainers of greyhounds racing at licensed stadia themselves have to be licensed and if their licences axe suspended they cannot act as trainers during the period of suspension.

6

One of the malpractices with which the Stewards have to deal is the doping of greyhounds. The Stewards try to stop it. The Rules give them wide powers to do so. Proving that someone has doped a greyhound is difficult. No doubt because of this, the Rules empower the Stewards to impose penalties, Including the suspension of licence, upon any licensed trainer who, under rule 174(a)(ii) "Has in his charge a greyhound which on examination…shows presence in its tissues or body fluids or excreta any Quantities of any substance which by its nature could affect the performance of a greyhound or shows evidence in any way of administration for any improper use of such substance the origin of which cannot be traced to normal and ordinary feeding".

7

On December 9, 1982 the Stewards held an inquiry which the plaintiff attended and decided that he had had in his charge a greyhound which on examination showed presence in its tissues of substances which would affect its performance. They suspended his trainer's licence for 6 months. It is this decision which the plaintiff has challenged in his originating summons.

8

In my judgment, such powers as the Stewards had to suspend the plaintiff's licence were derived from a contract between him and the defendants. This was so for all who took part in greyhound racing in stadia licensed by the defendants. A Stewards' inquiry under the defendants' Rules of Racing concerned only those who voluntarily submitted themselves to the Stewards' jurisdiction. There was no public element in the jurisdiction itself. Its exercise, however, could have consequences from which the public benefited, as for example by the stamping out of malpractices, and from which individuals might have their rights restricted by, for example, being prevented from employing a trainer whose licence had been suspended. Consequences affecting the public generally can flow from the decisions of many domestic tribunals. In the past the Courts have always refused to use the orders of certiorari to review the decisions of domestic tribunals. In Reg. v. Criminal Injuries Compensation Board. Ex parte Lain [1967] 2 QB 864 Lord Parker, C.J. said at page 882:

"Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned".

9

Before the passing of the Supreme Court Act 1981, as I think Mr. Henderson for the defendants accepted, anyone aggrieved by a decision of a domestic tribunal could only proceed by way of a claim for damages or for relief by way of a declaration or an injunction. The old case of The King v. The Benchers of Lincoln's Inn (1825) 4 B and C 855 is no authority to the contrary effect, nor is Reg. v. Aston University Senate. Ex parte Roffey and Another [1969] 2 QB 538, which on the issue of jurisdiction was probably wrongly decided—see Herring v. Templeman and Others [1973] 3 All ER 569 at page 585.

10

Mr. Henderson, however, submitted that section 31 of the Supreme Court Act 1981 has given the Court jurisdiction to entertain judicial review of the proceedings of a domestic tribunal if, as in this case, those proceedings were likely to have consequences affecting the public generally. It was desirable, he said, that the quick remedy of judicial review should be available. He gave this case as an example. The plaintiff has challenged the right of the Stewards to apply rule 174(a) (ii). If the plaintiff is allowed to continue with his originating summons, other cases may occur in which the Stewards would feel it right to apply rule 174(a) (ii) but until judgment in this case is given there will be uncertainty as to their power to do so.

11

This submission was based upon the use of the word "shall" in section 31(1) and the terms of sub-section (2). Sub-section (1) provides that if an application is made to the High Court for a declaration or injunction under sub-section (2) it shall be made in accordance with rules of Court by a procedure to be known as an application for judicial review. Sub-section (2) provides as follows:—

"A declaration may be made or an injunction granted under this sub-section in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to—

  • (a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari;

  • (b) the nature of the persons and bodies against whom relief may be granted by such orders;

  • (c) all the circumstances of the case,

it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be".

12

The nature of the matters with which the plaintiff's originating summons deals is the alleged abuse of power by the Stewards. Abuse of power, submitted Mr. Henderson, was a matter with which prerogative orders dealt. The circumstances of the case involved the public interest because of the need to stamp out malpractices in greyhound racing. Although prerogative orders had not in the...

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