[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Bolger v. Osborne [1999] IEHC 24; [2000] 1 ILRM 250 (6th August, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/24.html Cite as: [2000] 1 ILRM 250, [1999] IEHC 24

[New search] [Help]

Bolger v. Osborne [1999] IEHC 24; [2000] 1 ILRM 250 (6th August, 1999)

BETWEEN

Outline JUDGMENT of Mrs. Justice Fidelma Macken delivered on the 6th day of August 1999

1. This case concerns the Rules of the Turf Club and a finding made by the Defendants against the Plaintiff in respect of a race run at Naas Race Course on the 20th July 1994. This is an Appeal against that finding, in consequence of which finding the Plaintiff was fixed with paying a sum of [sterling]1,000.00 by way of fine or penalty.

2. The facts are relatively simple and may be summarised readily.

3. The Plaintiff, Mr. Bolger, is a well known and highly successful trainer of horses. The personal Defendants are all the Appeal Tribunal of The Turf Club which heard the particular Appeal the subject of this Judgment.

4. On the 20th July 1994 there was a race meeting at Naas Race Course in County Kildare. Among the races was one at 6.30 p.m., the Jasmine EBS, a seven furlong two year old maiden race. There were ten horses entered for that race, among them two horses trained by the Plaintiff. The favourite, I was informed, was a horse called Pozzuoli, in the betting at 11 to 10, owned by a Mr. McCutcheon, trained by the Plaintiff and ridden by jockey Kevin Manning. Another horse in the race was called Tirolean owned by Mrs. Bolger the wife of the Plaintiff, also trained by the Plaintiff and ridden by jockey Seamus Heffernan. It had a starting price of 12/1. The race proceeded and the favourite won, by a head, from Tirolean.

5. Immediately after the race there was what is called a Stewards' enquiry, held by the Stewards of The Turf Club who are the Stewards of the race on the day. In the usual way this was held on a fairly informal basis, between races, and was concerned with the running ofTirolean. A charge was made against the jockey and against the Plaintiff and against the horse on the basis that the horse "did not run on its merits", by which is meant, in layman's terms, that it did not run as fast as it could have, or up to its potential on the day.

6. As a result of that enquiry, the jockey was suspended for 28 days, the Plaintiff was fined [sterling]1,000.00, the horse was banned for 30 days, but no charge was made against, the owner was not heard, at that hearing. It is said by the Plaintiff that no reason was given for the Stewards' decision, but that the implication for the Plaintiff was that he was, in fact, responsible for the fact that the horse did not run on its own merits. The Plaintiff appealed from the decision of theNaas Stewards to the Appeal Board of The Turf Club. This was done pursuant to published Rules of The Turf Club, to which I will turn in due course.

7. The Appeal took place, by way of oral hearing, on the 3rd August 1994. The Plaintiff was unsuccessful in his Appeal and the original fine remained in place. His Counsel requested reasons for the decision and it is said by the Plaintiff that no such reasons were forthcoming. However, it was said at the oral hearing that the report of the Local Stewards atNaas constituted their decision, so far as the first enquiry was concerned. [Check]

8. The Plaintiff now appeals from the decision of the Appeal Board and seeks, inter alia, a declaration that the determination of the Stewards on the 3rd August was ultra vires, void or of no effect, and a declaration that the Defendants' decision of that date to impose or continue a penalty of[sterling]1,000.00 was also ultra vires, void or of no effect, was made without any evidence and was contrary to reason and common sense. He also seeks a declaration that the decision of the Defendants was contrary to constitutional justice. And the Plaintiff also seeks Ordersquashing the decisions which flowed from the foregoing and requiring the Defendants to repay the fine imposed together with damages. The Plaintiff finally seeks an Order quashing the ruling of the Naas Stewards (the "acting Stewards") for their failure to state reasons for their decision. The Defendants resists all of the claims.

9. Before I move to the Rules of The Turf Club which are for consideration, I should give some further background detail. At these races, there is invariably camera equipment which permits video recording of the races. In fact, the evidence makes it clear that there may be more than one video taken from different angles and from a variety of positions. This means that, after any given race, there will be certain video evidence available for viewing. During the course of this Appeal the Defendants made available to the Court, and the Court viewed the race in question, recorded on more than one video film (three in all). In addition, the Appeal hearing is transcribed, and the Court had available to it a transcript of that hearing. No transcript is taken, so far as I can ascertain, of the more informal Stewards' enquiry which takes place between races, as here atNaas. At this Stewards' enquiry it would appear that the jockey stated that his horse had "gurgled" causing the jockey to deal with his mount, in the manner described by him, for the remaining of the race. The veterinary surgeon who examined the horse after the race did not agree with this claim. So far as the Plaintiff is concerned, however, what appears to have happened is this. After the race, when the Stewards' enquiry was announced, the Plaintiff was interviewed, and so also was the jockey. The Plaintiff checked with his jockey and indicated that he understood the jockey had heard that the horse"gurgled". He gave that as his explanation for the matter, together with a suggestion - later made - that the horse had had a problem with the bit. Having heard the Plaintiff, and a veterinary surgeon, the informal Stewards held against the jockey, the horse and the Plaintiff, his trainer.

10. The Appeal from that determination took place on the 3rd August. At that hearing several persons were again heard, including the Plaintiff, the veterinary surgeon, one or more of the Naas Stewards, a veterinary surgeon on behalf of the Plaintiff and others including a jockey and the owner of the winning horse. At the end of the enquiry the Defendants upheld the decision of the informal Stewards and the fine imposed on the Plaintiff was affirmed. It is clear from a reading of the transcript that the basis for the determination of the Defendants was that the Plaintiff was held to be liable for the fact that the horse did not"run on its merits", pursuant to a combination of Rule 148(1) and Rule 212. The fine was imposed or affirmed pursuant to Rule 14.

11. The Appeal is effectively on the grounds that there was no basis for the determination of the Defendants, and that all of the evidence which did exist supported the Plaintiff's contention that he did not breach any rule.

12. Before I turn to the arguments made, I should set certain parts of the Rules of the Defendants, upon which one or both parties rely. There is no great deal between the parties in terms of the Rules which were applied. The salient Rules are the following:

13. The Stewards have power to regulate, control take cognisance of and adjudicate upon, the conduct of all officials, and all owners, nominators, trainers, riders, grooms and other persons attendant on horses and all persons frequenting the stands or other places used for the purpose of the meeting.

14. The Stewards of a Meeting have power to punish at their discretion any person subject to their control with a fine not exceeding [sterling]1,000.00 and/or with ...

20. The Stewards of the Governing Bodies have all the powers of the Stewards of Meetings and the following additional powers:

(xii) ... In the exercise of the powers conferred by this paragraph (power to enquire into matters) of this Rule the Stewards of the Governing Bodies shall be entitled to impose such penalty upon any trainer ....

148. (I) A trainer shall be responsible (except where otherwise provided in these Rules) for everything connected with the running of a horse trained by him.

(v) A trainer's licence or permit may be withdrawn or suspended by the Stewards of the appropriate Governing Body in their absolute discretion, and such withdrawal or suspension may be published in the Irish Racing Calendar for any reason which may seem proper to them and they shall not be bound to state their reasons.

212. Every horse which runs in a race shall be run on its merits whether the owner runs another horse in the race or not.

13. Now against the background, the following is the position of the Plaintiff. He argues that the decision of the Defendants is without foundation, that there were no facts on which the Defendants could come to the decision they came to, and that in the circumstances he is entitled to a declaration that their finding was ultra vires, void, and/or of no effect, and further that the decision was contrary to reason and to the evidence furnished. It is also said that the decision was in breach of his right to constitutional justice.

14. The Plaintiff has brought these proceedings by means of a Plenary Summons, and has not sought judicial review of the decision of the Defendants. The Plaintiff argues that this is a correct way to approach the matter, having regard to the judgment of Barr, J. in Murphy -v- The Turf Club (1989) I.R. 171, and the suggestion that this case supports the view that the Defendants' decisions cannot, in any circumstances, be the subject of judicial review.

15. As an alternative, the Plaintiff argues that that decision was wrong in law and that this Court is entitled not to follow it, but to find rather, in support of the Plaintiff's contention that the finding was irrational, that the Defendants decision could have been the subject of a successful judicial review application. The Plaintiff, in that regard, relies on the provisions both of the Racing Board and Racecourses (Amendment) Act 1975 and the subsequent Irish HorseRacing Industry Act 1994. The Plaintiff concedes that this latter Act was not actually in force at the date of the Appeal, although it had been passed by both Houses of the Oireachtas.

16. The Plaintiff relies on certain provisions of the Act of 1975 which, for the purposes of this decision I do not have to recite in detail, to show that there is a public law aspect to the statutory role and the function of the Defendants, and exemplified the nature of this power be referring, inter alia, to the right of the Defendants to exclude a wide element of the public from courses. The Plaintiff contended that theMurphy decision, supra, did not properly take into account the public law nature of the provisions of the Act, or of the powers of the Defendants, and did not explain how no such public law context arose.

17. The Plaintiff also referred to the decision of the Supreme Court in Geoghegan -v- The Institute of Chartered Accountants, (1995) 3 I.R. 86 on the question of the entitlement to judicial review, and to the case of Bane -v- Garda Repre-Association (1997) 2 IR 449, in which Kelly, J. adopted the dissenting view of Denham, J. in the Geoghegan case, and to several other cases.

18. In further support of his contention that the Defendants decisions were indeed subject to judicial review, Mr. Fitzsimons for the Plaintiff pointed to the exhortation of Counsel for the Defendants at the commencement of the Appeal hearing, which drew particular attention to the obligations imposed on the Defendants, and to his statement that while that decision was not subject to judicial review, nevertheless the position might be different under what he called"the new Act", that is to say, the Act of 1994. Mr. Fitzsimons argued that if the Appeal in this case were post the coming into force of the Act of 1994, there would be no question of judicial review not applying. It was submitted that, in that event, all of the case law applicable to a decision of the nature contended for, would support a finding in judicial review proceedings that the decision was arbitrary, lacking in reason and flew in the face of common sense.

19. Apart from the question of the right to seek judicial review, which Mr. Fitzsimons argues he was clearly entitled to invoke, Mr. Fitzsimons also argued that on a contractual basis, it was conceded by the Defendants at the hearing that he was entitled to a fair hearing, and therefore that right is an implied term of the contract existing between the parties. In the alternative, the rules of natural and constitutional apply and this too must be considered to be an implied term of the contract having regard again to what was said by Counsel for the Defendants at the Appeal hearing. That being so, it is argued that the Plaintiff is entitled to have both notice of the facts upon which the case against him is to be made and reasons for the decision, and that neither was given. It was conceded on behalf of the Plaintiff that if the facts underlying the complaint made against him were disclosed, then the requirement for reasons might not be so compelling, but that in their absence, the requirement for reasons is overwhelming. It is also argued that reasons should be given in the context of the penalty imposed to explain the level of the sanction, or its imposition. It is also contended, on a contractual basis, that the Plaintiff is entitled to a result which is in accord with the evidence tendered and the case made. Since there was no evidence tendered against him, in particular no evidence that he had given incorrect or improper instructions to the jockey as to how the horse was to be handled and all the evidence was to the contrary, there was no evidence on which the Stewards could have made any finding that the Plaintiff was in breach of any of the Rules.

20. It is also argued by the Plaintiff that there was a duty of care, arising from the same basis as that in contract, which was breached in that the manner of the performance of the Appeal was negligent. And finally, based on the same essential facts, it is argued that there was a breach of the Plaintiff's right to constitutional justice. The Defendants, having regard to the procedures followed and the absence of reasons, infringed the Plaintiff's right to his good name and his right to earn a livelihood. I will deal with the question of costs, so far as their details are concerned in due course but the Plaintiff has claimed damages and the costs of the Appeal hearing.

21. The Defendants contend that the case pleaded by the Plaintiff is one in contract, and that if, as now contended for, the decision in the Murphy case was wrong and ought not to be followed, it was open to the Plaintiff to come in and made that argument in a judicial review case, but he has not done so, in part at least, because he would have been out of time for commencing such an action.

22. The Defendants point to the clear overlap on the fair procedures aspects of the claim in the present proceedings and any judicial review proceedings, but argues that this case cannot be treated as being a judicial review case. It is contended for by the Defendants that it is incorrect to seek to import wholesale into these proceedings, judicial review arguments, including for example, any obligation to furnish reasons.

23. Mr. Feeney on behalf of the Defendants says that the allegation made against the Plaintiff was a breach of Rule 212, namely that the horse did not run on its merits, and that Rule 147(1) makes it clear that any trainer who receives a licence must train a horse in strict compliance with the Rules, and that under Rule 148 (I) which I repeat here, namely"A trainer shall be responsible for everything connected with the running of the horse", the Plaintiff was liable on the findings of the Defendants. The Defendants say that part of the responsibility of the Plaintiff is to ensure that the horse is run on its merits, and that it was not so run. It was said on behalf of the Defendants that the Plaintiff himself accepted that it was likely a Stewards' enquiry would take place, and he argued that it was open to the trainer to give an explanation as to why the horse did not run on its merits. He says the Plaintiff was given a full opportunity to explain why the horse did not so run and that the explanation tendered was not accepted.

24. Mr. Feeney argued that once the Plaintiff put up an explanation, if that explanation was not accepted - against the Stewards' decision that the horse was not run on its merits - then he could be found to have breached Rule 212 and that is what here occurred. He said that if the horse lost a shoe or if the horse was interfered with then there would be no such breach of Rule 212. Because there was however, no credible explanation, the Plaintiff was liable. If it were otherwise the Defendants says its capacity to oversee or control racing matters would be diminished, because the Defendants cannot, for example, hear all instructions given by a trainer to a jockey. This latter point was also made by the Defendants' Counsel at the oral hearing.

25. It was also contended on behalf of the Defendants that a fine of [sterling]1,000.00 was not of any consequence, as this was a minor fine, having regard to the fact that under the Rules the Defendants could impose a fine, in respect of certain matters up to [sterling]5,000.00 or even disqualify a trainer. Mr. Feeney said that under Rule 148 (v) there is a right to publish the decision, and that there is no obligation to furnish reasons. Even if reasons ought to have been given, there would be no need at this time to oblige the Defendants to furnish them. He submitted that the Court, having the transcript of the Appeal before it, can come to a view as to whether the Defendants were correct or not, and therefore reasons are not now required.

26. Mr. Feeney also argued that the reason for a Stewards' enquiry is to allow a trainer to establish (i) that the horse did run on its merits, or (ii) that it was someone's else fault. If, however, the trainer allies himself with the explanation given by the jockey, as here, and that explanation is not accepted, then the trainer is liable. Mr. Feeney relied on the decision of Hamilton, C.J. in Henry Denny -v- Minister for Social Welfare (1998) 1 I.R. 36 in which it was said that the 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.

27. There were, of course, other arguments put forward by both parties, and I have not gone into these in detail. The above arguments are the material and salient ones presented.

28. There are two distinct aspects to the Plaintiff's claim. The first is that the Plaintiff claims that by his contractual relationship with the Defendants the general legal rules relating to a contract apply in the present case. The same applies in the case of the claim for negligence and the claim for breach of the Plaintiff's constitutional rights. The second leg of the claim is one for declaratory relief, and so far as that is concerned, it is said that a judicial review application could have been mounted, although the relief also properly lies in the contract claim.

29. Now I propose to deal with the latter aspect first. It is a well established principle of law that judicial review is concerned, not with the decision itself - as to its merits - but rather with the process by which the decision is reached. It is true also that judicial review can beinvoked to seek an Order quashing a decision which is made without any rational basis or more correctly without there being any evidence upon which the decision maker could have reached the decision he did reach. But this is not a case in which the Plaintiff seeks judicial review, and I think it would be wrong for this Court to treat it as if it were such a case. That, however, is not to say that the Plaintiff cannot argue that he is fully entitled to declaratory relief in respect of the decision of the Defendants, and to rely, in support of that contention, on any of the several cases which have been opened to this Court which are judicial review decisions simpliciter. It is true that the Court must be careful not to transpose decisions from one field to another without having regard to the limitations attaching to such an exercise.

30. Nor am I satisfied that the decision in Murphy -v- The Turf Club, supra, is one which would necessarily survive in the same format now, having regard to two matters, namely, the provisions of the 1994 Act which I accept cloak the Defendants with a much wider public law role than previously existed and the later decisions of the Courts on judicial review matters. It is true however that on its face a decision on whether or not a horse runs as fast as it can or ought, has little apparent public law issues attaching to it. On this aspect is it worth noting that in the Supreme Court decision inGeoghegan -v- The Institute of Chartered Accountants, supra, the issue as to whether any decision of the Institute of Chartered Accountants could be subject to judicial review was left open, at least by two judges, in circumstances where it was clear that there was no public law issue involved in that case at all, and in which the Chief Justice made it clear that it would be preferable to consider such a matter when a case involving a public law issue arose. And it is clear that the dissentingjudgment of Denham, J. in that case has subsequently been adopted by the High Court in an appropriate case in which a public law issue did arise.

31. I am not deciding a judicial review case and I do not have to come to a view as to whether at this time, or at any time in the future, there can be no judicial review of decisions or rulings of the Defendants. I think it would be imprudent and unwise for me to seek to do so in these proceedings. I am, however, satisfied that the Plaintiff is fully entitled, in the presentproceedings, which are not judicial review proceedings, to challenge the decision of the Defendants on the grounds that there was no evidence to support it. To do otherwise would be to accept that one can only move of for judicial review in relation to such a decision and I know of no principle of law which suggests this.

32. I now turn to the case made in contract and/or negligence. In the course of the hearing, it was conceded by Mr. Fitzsimons on behalf of the Plaintiff that if the Rules provided for strict liability, then he would have no case - or at least no case of the type contented for at this time. It was also conceded by Mr. Fitzsimons for the Plaintiff that if the Rules provided for vicarious liability on the part of the Plaintiff for the acts of his jockey, then he could have no complaint, the Plaintiff having agreed to such matters as part of his contract, evidenced on the Rules.

33. Having regard to these matters, I enquired of the Defendants in the course of the hearing whether it was the Defendants' case that the matter was to be determined by reference to a rule of strict liability, and was assured by Mr. Feeney that this was not so, although he did say that the Rules have to be applied strictly. However, the application of a Rule strictly is, in law, quite different from the concept of strict liability, and so I lay no great emphasis on the claim that the Rules themselves are to be applied strictly when looking at the question of strict liability.

34. Equally Mr. Feeney very fairly said that there was no question of vicarious liability on he part of the Plaintiff for the acts of his jockey in the race. That being so, I enquired of Mr. Feeney what was the case made against the Plaintiff, and it was said that the case made against the Plaintiff was "that the horse did not run on its merits". That of course is a repeat of Rule 212 and I do not criticise Mr. Feeney for this. He says that the Plaintiff is liable for everything "connected with the running of a race", pursuant to Clause 148 (1).

35. But it seems to me it must follow as a matter of law that if there is no strict liability and no vicarious liability, then there must be some "fault" alleged by the Defendants on the part of the Plaintiff, that is to say some breach of the contractual Rules which apply by reference to some act or some omission on the part of the Plaintiff. And if there is some fault alleged, as there must be, then the Plaintiff is entitled to know what facts allegedly constitute that.

36. There is no doubt but that no formal set of facts or matters or proposed evidence were furnished by the Defendants to the Plaintiff so as to enable the Plaintiff to meet the case made against him. But it is said by the Defendants that this is not needed, because it was clear to all concerned what the facts were. When one looks at that contention, it comes back to this, namely, that the "horse did not run on its merits" and that the Stewards came to the view that the jockey did not, in reality, ride the horse to the best of the horse's ability on the day, and in support of that it is said that the video evidence establishes the facts clearly.

37. However, it seems to me that this is not an answer to the question of "fault". It may be true that the horse did not run on its merits, but it does not follow from that that the trainer, absent strict or vicariously liability, did or did not do anything to cause or contribute to that.

38. A reading of the transcript of the Appeal hearing, and in particular the introduction by learned Counsel for the Defendants on that occasion, makes it clear that the Appeal concerned some "fault" on the part of the Plaintiff. It is said, variously, in the opening address, as follows:-

"He (the trainer) has a particular responsibility for ensuring that there is not a breach of Rule 212. That links him with the obligation of ensuring the horse is running according to its merits."

"Moving on the position of the owner, the owner could, of course, be the subject matter of an enquiry under these rules but is not in this case. It is not suggested that the owner of the horse committed any offence but the Stewards have the power under Rule 14(1) to make a decision which affects the owner and that doesn't arise from any offence committed by the owner."

"... That gives power to the Stewards to impose a penalty in relation to the horse, not because the owner has committed any offence, but because the trainer has committed an offence." (Emphasis added).

"The trainer has exclusive control of a horse while it is under his control and ... the penalty following (sic) from something that is done by the trainer and not by the owner in this case." (Emphasis added).

"The burden of proof or conviction against Mr. Bolger ... is to produce evidence that satisfies you."

"I don't say and did not say that the liability of the trainer was occasioned vicariously nor do I say that if the jockey is at fault that the trainer is automatically at fault. I say that the trainer is, his own responsibility, is to ensure that the horse is run according to its merits." (Emphasis added).

39. It will be seen from the foregoing that the owner must commit some "offence" under the Rules.

The real "fault" it would appear is found in the contention made on behalf of the Defendants that after the race when there is an enquiry concerning the running of the race, unless the trainer can in some way explain away the position adopted by the jockey, he is liable. Now the evidence as to the instructions given by the Plaintiff to the jockey were furnished both by the jockey and by a third party, and were not contested nor challenged in any way. On its face, therefore, so far as the Plaintiff is concerned, his responsibility for ensuring that the horse was run on its merits appears to have been met. There is no suggestion or allegation made in the course of this hearing or during this Appeal that the Plaintiff omitted to give proper instructionsto his jockey, and no allegation was made that the Plaintiff did something himself which affected the running of the horse on its merits.

40. An entirely different case is made. It appears to be this. Rule 148(1) provides "A trainer shall be responsible for everything connected with the running of the horse trained by him", and it is this Rule which the Defendants rely on, combined with Rule 212. "Responsible" in this context appears to be "liable" on the Defendants' case. It is argued that these two Rules must be applied strictly, and I think it fair to say that the Plaintiff could not object to the Rules being applied strictly. This Court certainly appreciates the necessity for the application of the Rules in a strict manner. But of course strict application of Rules must apply to all parties affected by them, including the Plaintiff.

41. Put squarely, the Defendants' case appears to be reduced to the following contention. If in the course of a race, there is a question arising concerning the manner in which the jockey rode the race, or the horse was ridden - which amounts to the same thing - the trainer will be held liable, unless the trainer can put forward an actual and credible explanation for the manner in which the horse was ridden by the jockey. If he cannot, he is liable. But this appears to be a clear case of vicarious liability.

42. If there were any doubt whatsoever that the Defendants took the view that the Plaintiff was liable, but had himself done nothing wrong, a review of the transcript again makes this clear. In the course of the final exchanges between Mr. Haugh, as he then was, on behalf of the Plaintiff, he requested the Defendants, in the event of publication, to include a statement that"no misconduct had been found against Mr. Bolger" to which the Chairman of the Defendants stated "People will understand that". Such a statement seems only consistent with liability on a vicarious basis, or on a strict liability basis. It should also be repeated that the transcript makes it clear that no evidence was tendered that the Plaintiff was at fault in any way in his instructions, or as to the manner in which he said the horse was to be run. It is clear from the transcript that neither the existence or the appropriateness of the instructions were challenged in any way.

43. Alternatively, but without any specific reference to the same in the Rules, the onus of proof appears to be in some way transferred to the Plaintiff. In the course of the introduction to the Appeal procedure the following exchange also took place, between Counsel for the Defendants and Counsel for the Plaintiff. Counsel for the Defendants stated:-

"In answer to Mr. Haugh's earlier question I have demonstrated adequately that the evidence will be that this horse was not ridden to win the race and we say Mr. Bolger as the trainer of the horse is responsible for ensuring that the horses under his care are ridden to win the races and Mr. Bolger expressed himself satisfied with the way the horse was ridden and that in my submission is enough."

Mr. Haugh: "If he says that Mr. Bolger failed in his responsibility to enable the horse to run on its merits he should be able to say -

Mr. Fennelly: "Without a Steward present at every conference in the parade ring with every jockey and trainer you have to consider the integrity of racing and you can only do it with the evidence of your eyes."

Mr. Haugh: "I take it I am not getting the explanation."

Mr. Fennelly: "I have given the explanation."

Mr. Haugh: "The evidence before the local enquiry was that Mr. Bolger expressed his satisfaction with the way the horse was ridden in regard to the knowledge of what was told to him by Mr. Heffernan. Mr. Fennelly put it in a fashion that was different and naturally different to the evidence and the findings of evidence of the Stewards."

44. It is contended for on the part of the Defendants that the liability of the Plaintiff is, however, independent and arises by virtue of the fact that, since the Plaintiff is responsible for everything connected with the running of the race, and gave no explanation of a credible nature for the horse not running on its merits, he is therefore liable. It seems to me that this is not a correct application of the Rule in question. What has founded the allegation of liability here arises out of the fact thatafter the race, upon the Plaintiff make enquiries of the jockey as to why the horse did not apparently run on its merits, the Plaintiff accepted the jockey's explanation, and did not demur from this. But this is an event arising from the explanation given by the jockey, after the race, and is entirely ex post the running of the race itself.

45. Moreover, the contention of the Defendants seems to be that in the strict application of the Rules, in particular 212 and 148(1), there is a starting point at which the trainer is deemed to be liable, but must in some way exonerate himself by explanation, namely a reversal of the normal burden of proof. But the Defendants at the same time appear to accept, as is clear from the transcript, that they have an obligation to provide proof and discharge the onus on them.

46. Having regard to the foregoing, it seems to me that the application of the Rules may be done strictly. There is no vicarious liability and no strict liability applicable. In the circumstances the Rules must be applied as in the case of Rules constituting any other contract, and insofar as there is any ambiguity in them, such ambiguity must be construed against the Defendants and in favour of the Plaintiff. It is equally the case that where the Rules give such power as fines, suspensions or losses of licences the Rules must be exercised strictly also from the Plaintiff's point of view and in a manner which is not arbitrary.

47. Since there is no evidence of any act or omission on the part of the Plaintiff, and the Chairman of the Defendants accepted that people would understand that there was no misconduct on the part of the Plaintiff, it seems to me that a finding of fault, absent strict or vicarious liability has no basis, 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.

48. I have not made a finding on the question of the failure of the Defendants to give reasons for their decision. I do not consider it necessary at this time that the Plaintiff should have reasons, and I leave open to another occasion the debate as to whether in all circumstances the Defendants are obliged to give reasons for their decisions. However, it seems to me that the more likely correct interpretation of Rule 148(v) is that the "reasons" therein stated as not required to be given are reasons for publishing a decision and not reasons for the decision itself.

49. I will grant an declaration that the Defendants' decision of the 3rd August 1994 imposing a fine on the Plaintiff was void and of no effect, was made without evidence and contrary to reason and common sense. I will make an Order quashing the decision of the Defendants of the 3rd August 1994 imposing a fine on the Plaintiff in the sum of[sterling]1,000.00, and I will make an Order requiring the Defendants to repay the same.

50. On the question of damages, it seems to me that the Plaintiff is entitled to have certain Orders in respect of the losses he has sustained. He is entitled to special damages in respect of the costs incurred at the Appeal procedure. While it is the case that such costs are at the discretion of the Defendants, as Mr.Feeney says, nevertheless he did incur the costs of a wholly unsustainable hearing, and that is a clear loss to him. The special damages under this heading are [sterling]10,061.15 inclusive of value added tax. In the absence of any evidence from the Plaintiff as to general damages, I do not think I should award any general damages. While such damages might have been of a slight nature, I do think I would still have to hear some evidence in support of this claim.