Vefa Ibrahim Araci v Kieren Fallon
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Elias |
| Judgment Date | 04 June 2011 |
| Neutral Citation | [2011] EWCA Civ 668 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/1479 |
| Date | 04 June 2011 |
[2011] EWCA Civ 668
Lord Justice Jackson
Lord Justice Elias
Case No: A2/2011/1479
IN COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
IN THE HIGH COURT OF JUSTICE — QUEEN'S BENCH DIVISION
MR JUSTICE MACFUFF
Royal Courts of Justice
Strand, London, WC2A 2LL
Patrick Lawrence QC and Can Yeginsu (instructed by) Regnum Solicitors for the Appellant
Graeme McPherson QC (instructed by Stewart Moore-Solicitors) for the Respondent
Hearing date: 3 June 2011
This judgment is in six parts, namely:
Part 1: Introduction,
Part 2: The facts,
Part 3: The present proceedings,
Part 4: The appeal to the Court of Appeal,
Part 5: Would damages be an adequate remedy?
Part 6: The judge's exercise of discretion.
The issue in this appeal is whether Mr Kieren Fallon, the well-known jockey, should ride in the Epsom Derby today.
This appeal was issued at 3.00 pm yesterday afternoon. The court sat from about 4.00 pm to 6.30 pm yesterday evening, in order to hear argument. It is now 9.00 am on Derby Day and we are giving judgment at the first practical opportunity.
The claimant in these proceedings is Mr Vefa Araci, a racehorse owner. The claimant's daughter, Ms Pinar Araci, manages all matters connected with the breeding and racing of the claimant's racehorses. The defendant is Mr Kieren Fallon.
The favourite in the Derby today is a horse called "Carlton House", owned by Her Majesty The Queen. The next four favourites in the betting include horses called "Recital" and "Native Khan".
Native Khan is owned by the claimant and has been trained by Mr Edward Dunlop. Native Khan has so far run on five occasions. Native Khan has won two races when ridden by the defendant. In other races Native Khan was ridden by three different jockeys and secured excellent results.
In this judgment I shall refer to the British Horseracing Authority as "BHA".
In these proceedings Mr Patrick Lawrence QC and Mr Can Yeginsu appear as counsel for the claimant. Mr Graeme McPherson QC appears as counsel for the defendant. I am grateful to counsel on both sides for the excellence of their oral and written submissions, which they have had to prepare under considerable pressure of time.
After these introductory remarks I must now turn to the facts.
The defendant is one of the best known flat racing jockeys in this country. He has won the Derby three times. He rode Native Khan in its first race, during July 2010, which he won by 3 1/4 lengths.
On the 1 st April 2011 the parties entered into a written agreement, called a "Rider Retainer Agreement", whereby the claimant retained the defendant to ride Native Khan as and when requested over a period of one year. In return for that retainer, the defendant was entitled to receive a retainer fee of £10,000 plus a number of additional benefits, some of substantial value.
Clause 6 of the Retainer Agreement provides:
"6. Jockey's Obligations
6.1 The Jockey and his agent(s) agrees that he shall:
(a) Not ride for any other horse where the Jockey has been retained to ride Native Khan under this retainer
(b) Ride the Retainers' Horses in races whenever possible to do so or as requested by the Retainers; and
(c) Wherever a conflict of interest or of a choice of horses to ride occurs for that include a Retainers' Horse, the Jockey shall always ride the Retainers' Horse, unless the Retainers otherwise agree; and
(d) Ride the Retainers' Horses in as diligent a way as possible, making all reasonable efforts to win; and
(e) Conduct himself and appraise the Retainers in an open and honest fashion relating to his subjective views about the training regime, fitness and potential of all the Retainers' Horses and recommendations for training and alternative jockeys when it is not possible for the Jockey to ride a Retainers' Horse in a race. In addition, the Jockey shall use all reasonable endeavours to ride the retainers horse at the trainers establishment at least twice per month for the purpose of forming such subjective views".
Clause 8.3 of the Retainer Agreement provides:
"8.3 In the case of a breach by Jockey by opting not to ride the Retainer's horse (unless injury) damages are to be liquidated and assessed at a sum of minimum £30,000 per race not ridden".
It can be seen that Clause 6 imposes two principal obligations on the defendant. First, there is a positive obligation to ride Native Khan when requested to do so. Secondly, there is a negative obligation, namely not to ride a rival horse in any race where the defendant has been requested to ride Native Khan.
Pursuant to the Retainer Agreement, on 14 April 2011 the defendant rode Native Khan in the Craven Stakes at Newmarket, winning by two lengths. The defendant was prevented from riding Native Khan in the 2000 Guineas owing to a short period of suspension. However, he continued to ride Native Khan on the gallops in preparation for future races.
Unsurprisingly, the claimant requested the defendant to ride Native Khan in the Epsom Derby on 4 June 2011. This fact was not a secret. An article in the Racing Post of 21 May 2011 included a quotation from Mr Dunlop to the effect that the defendant would be riding Native Khan in the Derby. Indeed there was also a photograph of the defendant above a caption "Kieren Fallon: expected to ride Native Khan by trainer Ed Dunlop".
On Monday of this week (30 May 2011) the defendant sent a text message to Ms Araci stating that he would not ride Native Khan in the Derby. The reason immediately became apparent. The defendant was intending, and had agreed, to ride a rival horse namely "Recital". Recital is owned by an Irish group of individuals known as the Coolmore Group and has been trained by an Irish trainer, Mr Aiden O'Brien.
This decision came as a serious blow to the claimant. Success in the Derby is of critical importance to any major racehorse owner. Quite apart from the prestige of the event and the prize money, any stallion that wins the Derby can command substantial stud fees.
On Monday of this week the claimant confronted two substantial, and unexpected, problems. First, the claimant had to find a substitute jockey at short notice. Secondly, instead of benefiting from the defendant's services, the claimant faced the prospect of his chosen jockey riding another favourite horse in an attempt to beat Native Khan.
In relation to the first problem, the claimant managed to obtain the services of Johnny Murtagh, another highly rated champion jockey. Unfortunately Mr Murtagh has not previously ridden Native Khan and he will do so for the first time today. In relation to the second problem, the claimant remains deeply concerned at the prospect of the defendant riding a rival horse in the Derby. Quite apart from the defendant's skills as a jockey, the defendant also has considerable and recent experience of Native Khan and is familiar with the strategy of the claimant's team.
In these circumstances, and in order to prevent the defendant from riding a rival horse in the Derby, the claimant commenced the present proceedings.
On Wednesday 1 st June 2011 the claimant issued an application for an interim injunction in the Queen's Bench Division of the High Court. Time did not allow for the issue and service of a claim form, but the claimant's solicitors undertook to attend to those formalities in early course.
The principal relief which the claimant sought in his application notice dated 1 st June 2011 was an injunction restraining the defendant from riding any horse other than Native Khan in the Epsom Derby on 4 th June 2011. The legal basis for the claimant's claim was that it was a breach of Clause 6.1 (a) of the Retainer Agreement if the defendant were to ride Recital in the Derby. Accordingly, the court should enforce that contractual obligation by issuing an injunction.
The evidence which the claimant lodged in support of his application comprised two witness statements made by his daughter, setting out the material facts, and a witness statement made by his solicitor dealing with procedural matters. The evidence lodged by the defendant in response comprised his witness statement dated 2 nd June 2011. In that statement the defendant advanced the defence that he would not be in breach of the retainer agreement. This was because the claimant had instructed the defendant to ride Native Khan in the French Derby on 5 th June 2011 not the English Derby on 4 th June 2011.
The injunction application came on for hearing on Thursday 2 nd June 2011 before Mr Justice MacDuff. The judge delivered his judgment on Friday 3 rd June 2011. That is yesterday morning.
The judge rejected the factual defence advanced in the defendant's witness statement as being totally inconsistent with the contemporaneous documents. On page 12 of the transcript of his judgment the judge said this:
"For the purpose of this application, I proceed on the basis that the claimant's evidence is truthful. Without making a final determination, because I've not heard the witnesses, I find it verging on fanciful to believe that Mr Fallon's evidence could be accepted."
Having regard to the contemporaneous evidence, which I shall not set out, that conclusion is not surprising. Very sensibly, for the purpose of this appeal, Mr McPherson does not challenge that conclusion.
At the hearing before the judge, Mr McPherson also developed an ingenious contractual argument to the effect that the defendant riding Recital in the Derby would not constitute a breach of contract. The judge rejected that argument. Mr McPherson does not seek to renew that submission before this court.
At this point I should pay tribute to the judge for the excellent manner in which he dealt with...
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Table of Cases
.............................................................................................. 196 Table of Cases 527 Araci v. Fallon, [2011] EWCA Civ 668 ................................................. 422–23, 428 Arbutus Garden Homes Ltd. v. Arbutus Gardens Apartments Corp., [1996] 7 W.W.R......
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