In July 2013 the respondent herein, the Turf Club of Ireland, notified the applicants/appellants, Edward O’Connell, a professional jockey, and James Lambe, a licensed racehorse trainer, that the Referrals Committee of the Turf Club would consider allegations of breaches of the Rules of Racing against them (and four other individuals) in connection with the placing of a bet of £10,000 as a lay bet with the British betting exchange/bookmaker, Betfair, on a horse called “Yachvilli”, in a race at Downpatrick racecourse in northern Ireland. The bet was that Yachvilli would lose the race and the allegations into which the Referrals Committee was to inquire were to the effect that either the jockey had communicated information as to the condition of the horse and its likelihood of winning the race, or had not permitted the horse to run to its true ability.
There is no doubt that at the core of the valuable business that is Irish horseracing, with, as this case shows, an international impact, is the essential requirement that races be fairly run. Accordingly, allegations such as those under investigation here are serious matters which require investigation and determination and which therefore, may have very serious consequences for persons like the applicants whose livelihood may be involved.
Before the Referrals Committee investigation could commence the applicants initiated judicial review proceedings, raising a number of challenges to the jurisdiction of the Turf Club to investigate and adjudicate upon the allegations. Leave was granted on the 29th of August 2013. In its response, the Turf Club raised a preliminary procedural objection contending that it was not amenable to judicial review. The applicants for their part maintained that the proceedings were subject to judicial review contending that the Turf Club was exercising statutory functions pursuant to the Irish Horseracing Industry Act 1994, as amended (“the 1994 Act”), in particular by the Horse and Greyhound Racing Act 2001 (“the 2001 Act”). Furthermore, the applicants contended that it followed from this contention that the Rules of Racing adopted by the Turf Club in its statutory role as a Racing Regulatory Body, were a form of subordinate legislation, and thus had to conform to the constitutional rule that the parent Act must set out sufficient principles and policies to allow the subordinate legislation to stay within the confines of the legislative grant of power. This rule follows from the provisions of Article 15.2.1 of the Irish Constitution which provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas. The applicants also contended that a decision by the Turf Club to suspend a person perhaps permanently from taking part in races under the Rules of Racing, was a power which affected a person’s livelihood, and was therefore the exercise of judicial function, under Article 34 of the Irish Constitution, consigned to the courts alone, and not falling within the Article 37 saver for limited functions of a judicial nature and was therefore unconstitutional. Accordingly, the proceedings raised fundamental jurisdictional matters but did not involve any consideration of the specific way in which the Turf Club or its Referrals Committee was proposing to approach the investigation in this case, or indeed, did conduct the investigation hearing and determination in fact.
Leave was granted by the High Court to seek judicial review on the grounds identified above, but the Court refused to restrain the holding of the inquiry considering that the balance of justice was in favour of letting the inquiry proceed. Accordingly, the inquiry and the proceedings were pursued in tandem, and the inquiry reached a determination shortly before the case was due to be heard in the High Court. In the event, the second applicant was acquitted fully, and accordingly had no practical need to pursue the specific relief sought. His involvement in the case was narrowed therefore to a consideration of the question of the costs incurred in commencing and prosecuting the proceedings to that point. The first named applicant was however found to have breached the Rules of Racing in a number of respects. In particular it was found that he had conspired to prevent Yachvilli from running to its maximum ability contrary to Rule 273(vi); had engaged in a corrupt and/or fraudulent practice in relation to racing in Ireland contrary to Rule 273(viii); and had failed to take on reasonable and permissible measures throughout the race in question to ensure that Yachvilli was given a full opportunity to win or obtain the best possible place contrary to Rule 212(a)(i).
The proceedings were heard in the High Court over three days in February 2014. In a judgment delivered on the 3rd of April of that year, McGovern J. held that the respondent was amenable to judicial review, that the first named applicant had locus standi to bring the proceedings, and that the applicants were not estopped or precluded from bringing the proceedings by reason of their prior agreement to be bound by the Rules of Racing. However, the High Court also held that the Rules of Racing were not ultra vires the respondent’s powers and that ss. 39, 45 and 62 of the 1994 Act were not invalid having regard to the Constitution. In effect, the High Court’s finding on this aspect was that in the aftermath of the 1994 Act, the Rules of Racing were subordinate legislation which required principles and policies to be set out in the principal Act (in this case the Acts of 1994 and 2001) but found that there were sufficient principles and policies to permit the Turf Club to properly adopt the Rules of Racing and in particular those under which adverse findings had been made against the first named applicant.
The applicants have appealed the adverse finding and the respondent for its part has cross-appealed the findings in relation to amenability to judicial review and estoppel. Accordingly, on this appeal there appear to be four interrelated issues:
Whether the Turf Club is amenable to judicial review;
Whether the applicants are entitled to bring proceedings;
Whether the principles and policies test applies to the adoption of the Rules of Racing, and if so whether there are sufficient principles and policies in the 1994 Act to permit the lawful adoption of the Rules of Racing;
Whether the determination by the Turf Club of matters relating to jockeys and licensed racehorse trainers amounts to administration of justice by a body other than the court contrary to Article 34 of the Constitution, and which is not a limited function of judicial nature permitted by Article 37?
However, to a large extent all of these questions are interrelated and dependent upon the construction of the 1994 Act, as amended by the provisions of the 2001 Act. In particular, much turns on a determination of certain key questions as to the legal effect of the provisions of the Act, and whether, as the applicants contend, the exercise by the Turf Club of jurisdiction to determine a breach of the Rules of Racing is now, in the aftermath of the changes effected in the 1994 Act, exclusively the exercise of statutory public law powers. If so, certain consequences follow, not merely the requirements that principles and policies be set out in the Act. For example, if indeed this is an administration of justice or the exercise of statutory power, it relates to activities carried out in England and Northern Ireland respectively, and questions might arise as to the exercise of statutory jurisdiction in that regard. Much, if not everything, turns therefore upon the interpretation of the 1994 Act. That Act is unusual and certainly requires close analysis. In my view, the case is best approached through a consideration of the historical development of the Rules of Racing in Ireland, and the subsequent development of statutory provisions in relation thereto.
As even the rudimentary outline of the facts in this case suggest, the sport of horse racing in Ireland is a substantial business with international impact. In this case horse racing involves, in common with other sports, the business of organising events, building and maintaining stadia, charging for admission, and in the case of larger sporting events perhaps, negotiating and exploiting broadcasting and other intellectual property rights. Horse racing is also a significant component in the gambling industry at one end, and is also closely connected to the thoroughbred breeding industry, in which Ireland is a world leader at the other, and as such is the subject of the both private and public law. Even in the case of the extraordinary amateur sporting achievement that is the Gaelic Athletic Association, the organisation and presentation of the major championships is a significant commercial undertaking with legal consequences. But, perhaps the paradox of modern sport that occupies so much of our time and attention, and generates so much business, is that at the heart of even the biggest sporting enterprise is a game.
All the modern sports are related to games played from time immemorial, whether of throwing or kicking a ball of different dimensions, striking it with a stick, running the fastest, or in this case, attempting to see who can ensure that an animal runs the fastest. It is the essence however of any game that it requires some rules. Otherwise it will not be possible to measure sporting excellence or demonstrate sporting skill. It is also the case that many of those rules are somewhat arbitrary, but sanctified by tradition. Why a team of 11, 13, 15 (or as was once the case in Gaelic sports, 17) players? Why a game of 70, 80 or 90 minutes? Why should some games end at the expiry of the time and others only when the ball goes dead? Why is a pass forward by player in rugby an occasion for loss of possession and accompanying groans, but one of the glories of American football? Why, as some have had reason to ruefully observe, is a second serve permitted in tennis but not in golf? There is no good answer to any of these questions. They are so because they are so. These rules are peculiarly inapt for judicial consideration, as Carroll J. and Hogan J., among others, have had occasion to observe. There must be rules for the organisation of any game, and accordingly there must a rule-making, and rule–enforcing, body. To some extent at least, the idiosyncrasies of the rules become part of the tradition valued by the game’s participants and spectators.
Traditions are important in general because they preserve what is valued beyond any single generation, and can be of particular importance in the field of sport. Games may be intrinsically trivial activities – the placing of a ball by action of foot or head across the line between two posts and under a third – but they capture the imagination not only because they showcase the athleticism of the human body and of animals but also because they distil so much of the human condition: courage; fortitude and grace under pressure; cowardice; mean-spiritedness and cynicism; the emergence of youthful talent; the slow decline of age resisted by determination; skill and experience;, the value of discipline; the excitement of unpredictable flamboyance; the collective strength of a team and the joy of irrepressible individualism; the fine line between triumph and tragedy; and the significant role of luck. Sport involves measurement, not just against the best of contemporary standards, but also against the inspirational stories of the past. It unquestionably matters when sportsman or woman walk for the first time on the Centre Court in Wimbledon, or onto the field of play at Croke Park or Semple stadium, approaches the first tee in a major championship or enter the parade ring at the Curragh, Cheltenham or Epsom Downs. These are the fields of dreams and memories. They follow in the footsteps of heroes, tragic victims and occasional villains. The Turf Club has, as a matter of tradition, been the rule-maker and rule-enforcer for the Rules of Racing in the field of flat racing for all of the island of Ireland. That, no doubt, is one of the traditions valued by its members and those involved in the sport more generally. There may be few heroes in the history of the Turf Club, but with its idiosyncrasies, traditions and controversies, it is, and was in 1994, an unmistakable feature of the racing world in Ireland.
The urge to organise and systematise games into sports was, in Ireland and elsewhere, a phenomenon of the late Victorian era, coinciding with a general increase in standards of living and leisure time. The major sporting bodies in Ireland can be dated to the late 19th century. Perhaps because of its more aristocratic origins as a sport of the landed gentry, the Turf Club can trace its origins to 1790. It seems to have developed roughly in parallel with the Jockey Club in England which also set the rules for flat racing. A similar body developed to perform the same function in respect of national hunt racing. In common with other sports, horse racing developed over the subsequent period in an arbitrary and ad hoc fashion. Races organised under the auspices of the Turf Club were not the only races held in Ireland, but they came to be recognised as the most prestigious and respected races. Race meetings were, it seems, arranged at local racecourses owned by individuals, local groups and/or companies. In so much as there was any legal aspect to this organisation, it was a matter of private law. Racecourses were entitled to enforce their property rights by the law of trespass, and the law of contract. The Turf Club’s ability to enforce compliance with its rules was grounded on the law of contract. Members of the Turf Club were members of a club and therefore bound by the rules of that club as a matter of contract and those who participated in races run under its auspices were required to accept its rules. If this was ever put to the test, the legal analysis applied was that of the private law of contract. Thus for example, in Rogers v Moore  I.R. 24 (“Rogers v Moore”), a case was decided by the Supreme Court (Kennedy C.J., Fitzgibbon and Murnaghan JJ.) on the question of the power of the stewards of the Turf Club to fine a plaintiff horse trainer who had a licence from the defendants to train horses on the lands of the Turf Club at the Curragh.
In the United Kingdom (UK) it appears that the regulation of horse racing has remained essentially a matter governed by private law. In Ireland however, perhaps reflecting the greater importance to, and impact on, the economy of the horse racing industry generally, there have been a number of statutory interventions. The first appears to have been the 1945 Racing Board and Racecourses Act (“the 1945 Act”). The long title of the Act states that it was an Act to:
provide for the improvement and development of horse breeding and horse racing and for the better control of racecourses, and for this and other purposes to establish a board; to be called the Racing Board, to define its powers and duties, to make provision in relation to bookmakers engaged in course betting and to impose levies on bookmakers in respect of course bets, to dissolve the board of control for mechanical betting in Ireland and to transfer its property and liabilities to the racing board, to authorise the Irish turf club and the Irish national hunt steeplechase committee to exclude persons from racecourses, and to provide for certain other matters connected with the matters aforesaid.
As the long title suggests therefore, the Act was largely directed to the organisation of race courses. The business of racing in Ireland generated substantial business in particular for bookmakers involved in on-course betting. The Act was an attempt to seek to capture some of the monies involved in the betting industry for the purposes of developing the horse racing industry more generally. Thus, the Board was empowered to run its own totalisator (and take over the powers and functions of the former tote company in that regard), and also to impose a levy upon on-course bookmakers. It was the funds generated by these activities that were to be deployed for the development of horse racing, particularly the acquisition and establishment of race courses.
In respect of the Turf Club, the Act said relatively little. First, it defined the term “Governing Body” as:
.... any body being -
Section 39, which is located in the miscellaneous provisions part of the Act, permitted a governing body to make an exclusion order to prohibit a person from attending at some or all the race courses at which races were held under the sanction of that governing body. The Act also provided that representatives of the Turf Club and the Irish National Hunt Steeplechase Committee (“INHSC”) should be members of the Racing Board, and further, by s.40 provided that the Board might, after consultation with the relevant governing body, make regulations for the manner in which authorised race courses were to be managed. If the Racing Board was of an opinion that the regulations had been contravened, it could report such contravention to the appropriate governing body and that body could “take such disciplinary action and impose such disabilities and penalties as they consider proper under the Rules of Racing in Ireland and the Irish National Hunt Steeplechase Rules” (s. 40(4)).
It is useful to analyse this first legislative entry into the field of race coursing. It seems clear that it was broadly speaking, a sensible attempt to capture some of the economic benefit of horse racing to permit the expansion and development of the industry. To achieve that object, it followed the familiar route of establishing a statutory body to pursue that objective. But significantly, for present purposes, the Act made no attempt to regulate that area of the horse racing industry which was under the purview of the Turf Club and the INHSC. Instead it recognised that area, and sought, if anything, to support it. This emerges most clearly from the conferring of a statutory power of exclusion from race courses upon the governing bodies. The warning off of individuals was the traditional ultimate sanction of bodies such as the Turf Club and the INHSC, but from a legal point of view, it might prove problematical to enforce, particularly where the body was not the owner of the racecourse and thus not entitled to invoke the law of trespass. The Act therefore recognised the existence of the Turf Club, and its core area of function, and sought merely to provide statutory support for its actions in enforcing the rules of racing. In a sense, it sought to regulate the horse racing industry, at least in respect of race courses, in all those aspects other than those controlled by the Turf Club and the INHSC, a jurisdiction which it sought if anything to reinforce.
The structure established by the 1945 Act was not altered in any significant way by the passage of the Racing Board and Racecourses (Amendment) Act 1975 (“the 1975 Act”). That Act was directed towards the regulation of appeals by bookmakers against decisions made by the Racing Board. The Act did not address the existence of, or jurisdiction exercised by, the Turf Club or the INHSC.
A major reorganisation of the regulatory landscape was however sought to be achieved by the passage of the 1994 Act, which is a central statutory provision in this case. Again, the long title is important. It provides that the Act is:
An Act to provide for the improvement and development of the horseracing industry and for the better control of racecourses and for this and other purposes to establish a body to be called the Irish Horseracing Authority, to define its functions, to make provision in relation to bookmakers engaged in course betting and to impose levies on them in respect of such betting, to assign functions to the Irish Turf Club and the Irish National Hunt Steeplechase Committee in relation to horseracing, to dissolve the racing board and to transfer its properties, staff and liabilities to the Irish Horseracing Authority, to dissolve the appeal committee and to establish a committee to be called the Bookmakers Appeal Committee, to repeal the Racing Board and Racecourses Acts, 1945 and 1975, to amend and extend the Totalisator Act, 1929, the Betting Act, 1931, and the Licensing Acts, 1833 to 1988, and to provide for connected matters.
As this suggests, the principal focus of the Act is upon the reorganisation of the function previously carried out by the Racing Board, the establishment of a new body to be described as the Irish Horseracing Authority (“the Authority” or “the IHA”), the dissolution of the Racing Board and the transfer to the new Authority of its functions, staff, and liabilities and the identification of statutory functions for the new Authority.
The IHA was established by s. 9 of the Act which provides as follows:
On the establishment day there shall stand established a body to be known as the Irish Horseracing Authority to perform the functions conferred on it by this Act.
Section 9(2) applies the provisions of the schedule to the Authority. The schedule in turn sets out detailed provisions as to the membership of the Authority (including the fact that two members of the Authority will be nominated by a steward of the Irish Turf Club nominated by it). It also provides for the position of chairman, the conditions for membership of the body and a power of removal. At paragraph 1 it states that:
The Authority shall be a body corporate with perpetual succession and an official seal and power to sue and be sued in its corporate name and, to acquire, hold and dispose of land or an interest in land and to acquire, hold and dispose of any other property.
The bulk of the Act is addressed to the function of the newly established Authority. Section 10 provides that the general functions of the Authority shall be:
Subparagraph (a) calls for particular attention. The function of the new Authority is the overall administration of Irish horseracing other than services operated by the Racing Regulatory Body. The “Racing Regulatory Body” is the subject of an important definition in the section. Following the general structure of the 1945 Act which defined the governing body as either the Turf Club or the INHSC, the Racing Regulatory Body is defined in the 1994 Act as meaning:
Thus, in the field of flat racing it could be said that the IHA was given the function of overall administration of Irish horseracing other than the services operated by the Turf Club in relation to flat racing. The 1994 Act contains detailed provisions on membership of the Authority, the conferral of functions on the Authority, the disclosure of interests, the establishment of committees, the position of Chief Executive, the creation of a race fixture committee, matters such as prize money, the application of the funds of the Authority, and for keeping accounts and for having them audited. All these matters are standard provisions in legislation creating statutory bodies. Part IV of the Act deals with bookmakers and betting, the regulation of on-course betting and the provision of appeals in relation thereto. Section 62 contains an expanded statutory right of exclusion of certain persons from racecourses, which followed from the provisions of s. 39 of the 1945 Act. It now provides that either the Authority or the Racing Regulatory Body may exclude by notice a person from any authorised racecourse or such authorised racecourse or racecourses as the authority or body might think fit where it has reason to believe the person is not a fit and proper person to be on such racecourse. The Act also permits the use of force to have such a person removed “with the assistance of a member of the Garda Síochána” (s. 62(4)) if it is considered necessary.
By contrast with the extensive treatment of the newly created authority, and bookmakers, the provisions of the Act dealing with the Racing Regulatory Body are contained in seven sections in Part III of the Act. These sections have been the focus of most of the argument in this case, and accordingly require careful analysis.
Section 39, as enacted, provided as follows:
On the establishment day there shall stand established the Racing Regulatory Body whose general functions shall for the purposes of this Act be -
This section was amended in 2001, but for present purposes it is useful to consider the structure established in 1994 since the appellant relies on the structure created in 1994 to ground his arguments. It is necessary to refer to the definition section in respect of terms contained in this section. As we have already seen, the “Racing Regulatory Body” is defined as one of two existing bodies, depending on the context. Thus the Racing Regulatory Body is for the purposes of the Act either the Turf Club or the INHSC. There is a tension between the “general function” of the Regulatory Body to “regulate horse racing”, provided at s.39, and the “general function” of the Authority for “the overall administration of Irish horseracing” under s.10, although that is stated to be “other than services operated by the Racing Regulatory Body”. It is not necessary however to seek to define with absolute precision where this statutory boundary line lay, not least because it was subject to subsequent adjustment. It is more important to observe that there was a boundary line maintained. The function of the IHA was drawn by reference to the jurisdiction of the existing bodies, and thus was to administer Irish horseracing, in those areas not regulated by the Turf Club or the INHSC, as the case may be. Integrity services, referred to at s.39(c), the costs of which were to be guaranteed by the Authority in an agreement between the two bodies, were defined as:
.... those services that any racecourse provided at a race-fixture or related to the running of it which are operated by or on behalf of the Racing Regulatory Body for the purpose of enforcing discipline and ensuring that horses are run fairly and properly;
Again this provision, amended in 2001, focuses on the running of races, as the core function of the existing bodies. Much argument in this case was however addressed to the interpretation to be afforded to the introductory terms of s.39 particularly when read in conjunction with the definition section. It will be necessary to return to the terms of that provision later in this judgment.
The other important parts of Part III are that the Racing Regulatory Body, by s.44, is required to inform the IHA when making or amending any of the rules of racing. The Rules of Racing which are referred to in s.39, are themselves defined as meaning:
In relation to flat racing, the Rules of Racing as laid down by the Irish Turf Club, and
In relation to national hunt racing the Irish National Hunt Steeplechase Rules as laid down by the Irish National Hunt Steeplechase Committee.
However the IHA is given no function in the making of the Rules or their approval. Section 45 is also an important provision since it provided for the first time that where the Racing Regulatory Body imposed a sanction against any person involved in horse racing “it shall afford that person an opportunity to appeal to it against the sanction imposed”. While therefore, the initial disciplinary proceedings appear to be a matter controlled by the terms of the Rules of Racing and therefore by private law, an appeal process was required by statute. Section 45(2) imposed an obligation to provide such a procedure and ensure that any such appeal was heard in a fair and impartial manner. In 2001 this was amended to provide for the possibility of an appeal to a third party. Finally, the last section in Part III is s.46 which provides that the Racing Regulatory Body shall determine whether a race fixture may be held. This section appears to be required to be read alongside sections 19 and 20, which permit the IHA, after consultation with the Racing Regulatory Body, to establish a race programme committee to determine the race programme for all race fixtures. Thus it appears the IHA sets the fixtures, but the Regulatory Body determines whether any individual fixture may safely be run.
The Horse and Greyhound Racing Act of 2001 made certain amendments to the structure established by the 1994 Act. In particular it established a body known as Horse Racing Ireland (HRI) to take over the functions of the IHA. The Racing Regulatory Body and the Rules of Racing retained the meanings assigned to them by the definition section of the 1994 Act. Horse Racing Ireland took over the functions of the IHA, and the schedule to the Act of 1994 as amended by the 2001 Act, was given effect with respect to the HRI. Significantly, the functions of the HRI, in addition to its functions under the 1994 Act, include registry office functions in accordance with the Rules of Racing and “any other functions of the Racing Regulatory Body which may be transferred to HRI in future by agreement of both parties and subject to the consent of the Minister” (s. 8(1)(f)). The schedule to the Act of 2001 contained a number of amendments to the Act of 1994. In particular s.39 was amended by the substitution for paragraphs (a) to (d) of the following provisions:
Paragraph 11 of the schedule substituted a new subsection (1) for s. 45 in respect of appeals as follows:
Where the Racing Regulatory Body imposes a sanction against any person involved in horseracing or refuses to grant to a person a licence or suspends or revokes a licence granted, under section 39(b) or (c), it shall afford the person an opportunity to appeal to it or such other person nominated by it against the sanction imposed or the refusal to grant or the suspension or revocation, of the licence, as the case may be.
The immediate function of the 2001 Act appears to have been to create a new body to succeed to the functions of the IHA (itself the successor to the Racing Board) and to redraw the boundary between that body and the two bodies constituting the Regulatory Body. In particular, while some parts of what might be loosely described as the administrative function for integrity services is transferred to the HRI, the responsibility for the core service is retained by the Turf Club/INHSC. However the functions of the Racing Regulatory Body, under the substituted s.39, are broadly similar to those set out in the original form of that section. The changes appear to have been minor: the abandonment of the somewhat ambiguous phrase contained in the original s.39(a) referring to a function of regulating horseracing; again the removal of the language “in doing so to promote integrity and fair play in horseracing” from the function of making and enforcing the Rules of Racing under subparagraph (b) but now stating that the making and enforcement of the Rules of Racing is a matter for which the Regulatory Body is “solely and independently responsible”; expanding what is contemplated by integrity services and enumerating all the bodies which are to be controlled under that heading, and expanding licensing power, under the Rules of Racing, from all racecourses, to include all participants in racing “including all classes of trainers, jockeys, jockeys’ valets, jockeys’ agents and stablestaff”.
Neither the method of amendment of the 1994 Act nor the terms of the amendments themselves, make any easier the task of interpretation of an already confusing statutory code. It seems likely that the complicated terms of the Act reflect the impact of a number of forces which were not always consistent or compatible. The Act seeks to reinforce the independence of the sporting bodies, while at the same time providing statutory support and assistance for those bodies. These objectives are not necessarily easily reconciled. Statutory power may be difficult to detach from statutory supervision. It also seeks to create a new statutory body with a strong remit and then to draw a boundary between a newly established body and the historic organisations operating at the centre of racing and on its most important occasions, which must give rise to risks of tensions and rivalries. From the point of view of drafting, there can be no doubt that the simpler course might have been at any stage to create a single new statutory authority to regulate and control all of horseracing. But one thing that is very clear from the 1994 Act, and indeed each statutory intervention, in this area, is that such a course was very deliberately not taken.
The heart of the interpretative issue in this case can be traced to the words of s. 39. The section uses language which seems, on its face, to establish a statutory body: “[o]n the establishment day there shall stand established the Racing Regulatory Body”. This is common place statutory language. Indeed, it can be most easily compared with s.9 of the same Act which created the IHA: “[o]n the establishment day there shall stand established a body to be known as the Irish Horseracing Authority” and the provisions of s.5 of the 2001 Act: “[o]n the establishment day, there shall stand established a body to be known as Horse Racing Ireland”. There is a slight difference in the language of the respective sections in respect of the functions of the various bodies. Thus, s. 9 of the 1994 Act in respect of the IHA, and s. 5 of the 2001 Act in respect of the HRA, provide that the body is to “perform the functions conferred upon it by this Act”. Section 39, perhaps in slight contrast, refers to the Racing Regulatory Body “whose general functions shall for the purposes of this Act, be ....” If however, this was the only difference between the respective formulations, it might not be thought to be of much significance since the language of “general functions” is to be found elsewhere in the statute book.
In a carefully constructed and lucid argument, counsel for the applicants/appellants argued that the effect of s.9 was simple. When after 1994, the Turf Club came to seek to “enforce” the Rules of Racing as it did in this case, it was after 1994, performing a statutory function, or at least a function under statute. This meant that certain consequences in public law followed, most notably amenability to judicial review, but also that the Rules of Racing maintained and enforced pursuant to statutory authority were of necessity a form of subordinate legislation with all the requirements for validity that that entailed. Finally it was argued that after 1994, the performance of an adjudicative function under the Rules of Racing, was carried out under the authority of legislation and the power of the State, rather than as a matter of private agreement, and therefore had significant consequences in constitutional law, most notably that it was contended it amounted to the administration of justice.
In particular, counsel drew the Court’s attention to a number of statutory bodies established in recent years using the words “on the establishment day there shall stand established ....” and where the functions were thereafter provided. In particular that statutory phrase was often followed by the words “to exercise the functions conferred on it by this Act”. Counsel referred to examples such as the Credit Union Restructuring Board (Established Under the Credit Union and Cooperation with Overseas Regulators) Act 2012, the Insolvency Services of Ireland (Personal Insolvency) Act 2012, the National Consumer Agency (Consumer Protection) Act 2007, the Mental Health (Criminal Law) Review Board (Criminal Law (Insanity)) Act 2006, the Private Residential Tenancies Board (Residential Tenancies Act) 2004, and a number of others. But for present purposes, the closest example is the establishment of the IHA by s.9 of the 1994 Act where, as set out at paragraph 15 above, this form of words was used, and the use of same formula in 2001 in respect of the HRI. Counsel also pointed out that the statute book did not seem to attach particular significance to the phrase “general functions”, used in respect of the Racing Regulatory Body. Thus s.10 of the Education and Training Board Act 2013 provided that the “general functions of an education and training board shall be to ....” Again, a good example is to be found in the field of horseracing. Section 8 of the 2001 Act, said of the HRI, established under s.5 of that Act to perform functions conferred upon it by the Act that “the general functions of HRI (in addition to its functions under the Act of 1994) shall include the following:- ....” Counsel argued that the use of effectively the same statutory language in respect of the Racing Regulatory Board must have the same effect so that the Turf Club, after 1994, was to be treated as a matter of law, as a public regulatory body created by statute. Indeed, he pointed to some of the correspondence issuing from the Turf Club in this case to the applicants, which in its heading proudly proclaimed itself to have been established in 1790 and to be “the Regulatory Body for horseracing in Ireland”.
Counsel had to address the fact that the 1994 Act, in relation to the Racing Regulatory Body, does not contain any language granting to that body, normal and mundane powers such as to have a corporate seal, to sue and be sued in its name and to acquire and hold and dispose of other property. Nor does the Act prescribe an obligation to keep accounts or to have them audited, or make the very standard provisions in relation to membership such as those contained in the Act in relation to the IHA, and to be found in myriad other pieces of legislation establishing statutory bodies. Most notably, Part III of the Act lacks any statement as to the legal nature of the entity to be known as the Racing Regulatory Board comparable to that contained in the Schedule to the Act in relation the IHA, i.e. that that body is a body corporate established by statute. Counsel sought to counter this argument by contending that it was not necessary to specify these matters since the Act operated by defining the newly created Racing Regulatory Body as an existing body, either the Turf Club or the INHSC, or both, and which therefore were already in existence and had legal powers. That however, is with respect more than a little question begging. It does not address the fundamental question as to the legal status of the Racing Regulatory Body which, we are told, is the Turf Club in the field of flat racing, and the INHSC in the field of national hunt. If it is no more than a statutory name being applied to already existing bodies operating in existing fields, then it is an unusual statutory ghost like body which requires both analysis and explication.
I would like to be able to accept counsel’s argument if only for the purpose of simplicity. If the Turf Club is to be treated after the 1994 Act as a statutory body exercising statutory powers like many other bodies, then it becomes easy to address the remaining issues in this case because the Racing Regulatory Body would be treated like any other statutory body. But to take this course would in my view be to ignore the very distinctive features of the Act which demand interpretation. Furthermore, it would ultimately easily lead to a process of reasoning where the Act became condemned for failing to conform to the law relating to such bodies established by statute when the very issue to be determined is whether the Turf Club is to be treated as a body corporate established by statute just like any other.
There is no doubt that if this case is approached by reference solely to the introductory words of s.9 it would be possible to conclude that the Act creates a statutory body to be known as the Racing Regulatory Body. However, those words must be read in the context of the Act as a whole. Once recourse is had, as it must be, to s. 2(1), containing the interpretation of the terms contained inter alia in s.39, the situation becomes immediately more complicated. The Racing Regulatory Body apparently established under s.39 already exists. Moreover, it is a different existing entity depending on the area in which it is operating. Neither the Turf Club nor the INHSC is dissolved by the statute nor are their powers transferred to the Racing Regulatory Board. The absence of any explanation of the legal nature of the Racing Regulatory Board is also instructive. If its legal status is distinct from that of the Turf Club or the INHSC or both, then one would expect that to be stated very clearly in the Act. Furthermore, the fact that there is no provision in place dealing with the constitution of the Racing Regulatory Body is, in my view, ultimately much more striking than the use of the statutory phrase “there shall stand established”. If it was intended to constitute the Turf Club and/or the INHSC hereafter as a statutory body performing only statutory functions, it would be normal that the legislation would seek to control the appointment of members of that body, and set out terms of membership, and disqualification. One would also expect that any statutory body would be under a statutory obligation to keep accounts and to have them audited. It is not in this respect an answer to suggest that all these matters were or could be dealt with in the constituent documents of the Turf Club and/or the INHSC since such documents are matters of private law and could be changed without approval by any person accountable to the legislature enacting the legislation.
The two statutory provisions which deal unambiguously with the powers of the Turf Club as Racing Regulatory Body are also instructive. Under s. 62 it is given a slightly expanded power (which power is also given to the Authority) to exclude a person from any authorised racecourse. It is necessary to confer this power by statute precisely because it is not something which is capable of being secured at least comprehensively, by contract, particularly when the racecourse itself may be owned and managed by a different entity. But the fact that the Act is structured in this way implies that the existing contractual position remains, and is being supplemented by, the statutory provision. Similarly, s.45 of the 1994 Act introduces a novel requirement that the Board provide an opportunity for appeal against disciplinary decisions. The Act however says nothing else about the procedures or process by which an initial decision may have been made. The Act therefore assumes the existence of a first instance disciplinary process which is not provided for or even regulated by statute. It must follow therefore that the Act contemplates that the existing structure, which can only exist as a matter of private law, remains in place, and is here subject to a single and limited statutory addition by way of a requirement of an appeal process.
While it may be difficult to discern precisely what the Act is intended to do in every instance, some insight may be obtained by looking at the obverse of the situation. It is very clear what the statute did not do. It did not seek to take the legally and structurally simpler course of establishing a single body with responsibility for regulating all aspects of horseracing in Ireland. Having two, or on one view three, bodies, runs the risk of a failure to plot precisely the boundaries of the functions of the bodies. In the case of overlapping functions that may lead to a risk of tension and friction between the bodies. If it transpires that there is any gap between the functions of the two bodies then there is an undesirable lacuna. It would make no sense therefore to have two separate statutory bodies still less two such bodies created by the same Act and with overlapping membership. The structure of the Act, and its amendment in 2001, is only consistent with what indeed had preceded it in 1945: the establishment of statutory authorities (successively the Racing Board, the IHA, and HRI) whose area of function is defined, described and limited by reference to the two historic bodies, the Turf Club and the INHSC which existed, and continue to exist after the passage of the Act. In this way the Act can be understood as deliberately intended to recognise the position of the Turf Club within its core functions traditionally exercised by it, and as intended to support it and supplement it in that activity, rather than supplanting it.
Many of the distinctive and sometimes complex features of the Act can be seen as flowing from an intention to maintain the status and functions of the Turf Club, and INHSC, in the area traditionally controlled by them, and in particular the rules for the running of races. By introducing the concept of a Racing Regulatory Body and referring to the general functions for the purposes of the 1994 Act undoubtedly seeks to cover the existing bodies with a statutory veneer and to give certain identified statutory powers (of exclusion) and impose certain statutory obligations (of appeal) but the over all effect is not to remove the existing underlying structure, or its legal nature, but rather to add to it. I would accordingly conclude that the formulation contained in the 1994 Act was not intended, and more importantly is not to be understood as, constituting the Turf Club as henceforth a statutory body exercising solely statutory powers. Having regard to the substantial history of the sport in Ireland I think it is unlikely that the Oireachtas would seek to simply convert a long standing independent and private sporting body into a statutory board, but if it did it so I would expect that object to be clearly stated, and all ancillary and consequential matters provided for in unmistakeable language. On the other hand, the unusual terms and structure of the 1994 Act can be more readily understood once they are approached on the on the basis that an object of the Act was to leave intact the Turf Club’s traditional role in the running and supervision of races .
This analysis is in my view consistent with the approach taken by Clarke J. in the High Court, in a decision concerning the Irish Coursing Club (ICC). The Greyhound Industry Act 1958 (“the 1958 Act”) established a statutory body, Bord na gCon, but also addressed the position of the Irish Coursing Club which was a body in existence at that time. In Greenband Investments v Bruton  IEHC 67, it was necessary to address and analyse the nature of the Irish Coursing Club in the aftermath of the 1958 Act. Clarke J. stated as follows (paras. 6.1 – 6.3):
The position of the ICC is somewhat unusual. It would appear to have existed for a very considerable period of time and carried out its functions in respect of the greyhound industry as a private organisation. However, the ICC was given a certain recognition by Statue under the provisions of the Greyhound Industry Act 1958 (“the 1958 Act”), in which it is recognised, in s. 26(2), as being, subject to the provisions of that Act, and of the constitution of the club and subject to the general control and direction of Bord na gCon, to be the controlling authority for the breeding and coursing of greyhounds.
The same section also places some control over the constitution of the club which is, as of the date of the Act, required to be in the form set out in the schedule to that Act. In addition, changes to its constitution can only occur, by reason of s. 26(1), with the prior written consent of Bord na gCon.
However, it does not seem to me that those provisions change the essential legal character of the ICC. It remains a members club. It is true to say that, in the ordinary way, as was argued by counsel for Greenband, a members club is governed by its rules which amount to a contract between the members which contract can, in turn, be altered in whatever way the rules provide. That common feature of a typical members club is not, in one sense, to be found in the case of the ICC where the arrangements between the members are specified in a schedule to an Act of the Oireachtas and can only be altered by the agreement of a statutory body in the shape of Bord na gCon. However, it does not seem to me to be appropriate to characterise the ICC as a “creature of statute”. It is not set up by the 1958 Act. It is not continued in existence by that Act. Rather the 1958 Act confers powers on the ICC and regulates the terms of its constitution and amendments of that constitution. The 1958 Act does not, in my view, alter the fundamental fact that the ICC has no corporate existence conferred on it, and thus can only exist as a members club albeit a unusual one whose constitution is determined and regulated by statute. It follows that the property of the club is owned by its members.
While the details of the Act are different, and arguably the 1958 Act creates more statutory control of the ICC than is the case in relation to the Irish Turf Club under the 1994 Act, this analysis is instructive. It does not seem appropriate to characterise the Turf Club as a creature of statute although it is given a certain recognition by the Act. Furthermore, the provisions of the Act do not change the essential legal character of the Turf Club.
A more nuanced version of counsel’s argument which was touched on in oral argument, is the suggestion that even if the Act was not intended to have that effect, that is nevertheless the consequence of the language, perhaps by reason of the Act having a number of different, and inconsistent objectives. This argument might have some force in certain areas such as the question of amenability to judicial review, since that issue may depend upon the effect of the Act, rather than whether or not the legislature intended supervision by judicial review to be a consequence of the structure established, but it cannot resolve the question of interpretation of the Act more generally. If it is clear from a reading of the Act in its surrounding circumstances that it was not intended to dissolve the Irish Turf Club and the INHSC and create a new self-standing statutory body, any ambiguity should be resolved in favour of an interpretation of the Act which gives effect to that intention. It is necessary now to address the separate questions raised in the light of that approach to the Act.
Amenability to Judicial Review
Given the fact that the nature of bodies subject to judicial review has never been precisely or definitively defined, and has indeed been expanded over recent years, and the anomalous and unique position of the Turf Club already described, and the significance for individuals of the decisions which may be made by that body, it was perhaps inevitable that questions would arise as to the amenability of such a body to judicial review. Indeed, much of the academic and judicial discussion of the border lines of judicial review has taken place in the context of bodies with characteristics akin to that of the Turf Club. It is not therefore perhaps surprising that this issue figured heavily in these proceedings and particularly when this case was in the High Court. However, before discussing the merits of the argument, I should observe that I doubt the issue in this case merits the attention that it has received.
The question of whether or not a body is subject to judicial review may have both procedural and substantive consequences. If the proceedings of a body are subject to judicial review, then that procedure may be adopted, although that is not necessarily advantageous to either party. Since in this jurisdiction the selection of procedure is not exclusive, and public law remedies can be sought in plenary proceedings, the choice of procedure becomes less significant. The substantive consequences of holding that a body is subject to judicial review may be more significant since it means at a minimum, that the body will be subject to the rules of fair procedures, and for example may be required to give reasons for their decisions. In some cases those matters may be decisive. But here there is no question of a breach of fair procedures or a failure to give reasons or indeed any substantive complaint about the nature of proceedings conducted before the Turf Club in general, or the proceedings which took place in this case in particular. Instead the issue is a logically anterior and jurisdictional one: whether the Rules of Racing promulgated by the Turf Club are valid, and indeed whether the provisions of the 1994 Act are consistent with the Constitution. Such a claim is not required to be brought by way of judicial review (indeed it is often said that it is preferable that a constitutional challenge should be brought by plenary summons) and so the only consequences of finding that the Turf Club is amenable to judicial review, in this case, would be procedural. Even if the claim were rejected on this basis it could still be brought by way of plenary proceedings. Indeed it is doubtful that a determination in these proceedings that judicial review was not available would be of full benefit to the respondent, since the substantive questions raised would remain unresolved, either in this case or more generally.
In the course of these proceedings there has been reference to the extensive academic literature and judicial consideration in the United Kingdom to the theoretical question of the amenability to judicial review of bodies which are purely, or principally, governed by private law. Indeed, some such discussion has taken place in the context of the Jockey Club which as a matter of history at least, bears considerable similarities to the Turf Club. While I fully appreciate the value of the perceptive analysis, both academic and judicial, which is brought to bear on analogous topics in other jurisdictions, it seems to me possible, and indeed in this case perhaps preferable, to address this matter principally by reference to the Irish case law.
First, there is already a well developed body of Irish case law on this topic. Second, the UK authorities are not necessarily on all fours with the issue which arises in this jurisdiction. As already touched upon, Irish courts have not adopted a rigid approach of procedural exclusivity which seemed to be the case in the United Kingdom in the aftermath of the decision in O’Reilly v Mackman  2 A.C. 237. If the public law remedies can be sought in plenary proceedings it is less important to be definitive about the question of amenability to judicial review. On the other hand, the substantive consequences of a finding of amenability or non-amenability to judicial review are arguably also less significant in this jurisdiction after decisions such as Glover v B.L.N. Ltd  I.R. 388 which held that having regard to the significance of fair procedures, it would normally be implied into an agreement in private law permitting for adjudications and determinations, that such proceedings should comply with fair procedures. Furthermore, there is therefore no precise analogue in the law of the United Kingdom for the claim sought to be advanced here which is essentially constitutional in nature. Finally, there are a significant number of cases in this jurisdiction concerning the position of the Turf Club which in my view cast considerable light on the specific issues to be determined here.
A useful starting point is the decision of this Court in Geoghegan v The Institute of Chartered Accountants in Ireland  3 I.R. 86 (“Geoghegan v The Institute of Chartered Accountants”). In that case a member of the then Institute of Chartered Accountants (“the Institute”) was the subject of disciplinary proceedings. The Institute was incorporated by Royal Charter in 1888 which had granted to the Institute the powers to make by-laws regulating it as far as providing that such by-laws should not have any effect unless allowed by the Privy Council in Ireland. The Adaptation of Charters Act 1926 was held to give to such charters the force of law in Saorstát Éireann. The Institute of Chartered Accountant Ireland Act 1966 provided that by-laws made or amended should not have effect until submitted to and allowed by the Government and that save as amended by the Act, the Charter remained in full force and effect. In the High Court, Murphy J. held that the Institute was not amenable to judicial review. On appeal this Court was divided on the question of amenability to judicial review but, and illustrating perhaps the point made at the outset of this section, was nonetheless unanimous is dismissing the applicant’s appeal. The issues raised in the appeal were the continued existence of the Institute, the validity of the by-laws made by it, and whether in exercising its disciplinary function it was administering justice, and were thus closely comparable to the issues arising here. The Court was unanimous in holding that the Institute continued to exist, that its by-laws were valid, and that it was not administering justice. Accordingly, Hamilton C.J. considered it was not necessary to determine the question of its susceptibility to judicial review. O’Flaherty and Blayney JJ. tended to the view that the claim was not an appropriate one to be brought pursuant to the judicial review procedure, but added that the form of procedure used to judicially review an action by a body which could affect the livelihood of persons was of secondary importance and it might be that the most appropriate procedure was that which brought the case to finality most effectively and speedily. Egan and Denham JJ. were however prepared to hold that the proceedings of the committee were susceptible to judicial review.
The fact that the Court divided, and did so only tentatively, suggests that the case of the legal status of the Institute of Chartered Accountants, in 1994 at least, was on the very boundary of the line between those bodies subject to judicial review and those bodies which were not. It has been said, correctly I think, that the difference of emphasis depends on whether one views the issue as one determined largely by the source of the power, or whether one also should take account of the functions performed. Subsequent decisions of the High Court have tended to favour the approach of Denham and Egan JJ. I would have sympathy with the view that where it can be said that significant power is being exercised in respect of citizens with the approval of the legislature, whether express or tacit, that judicial review may lie to ensure that the exercise of such powers remains within their proper scope. It is however not necessary to decide the precise nature of the test which may be applied because in this case, on any view, it is clear that in the aftermath of the 1994 Act, the Turf Club as the Racing Regulatory Body is more clearly in the domain of public law than the Institute of Chartered Accountants was in Geoghegan v Institute of Chartered Accountants, and sufficiently within the field of public law and within the public domain, as to have the consequence that judicial review lies. Accordingly, even if this matter is approached simply as a matter of principle, I would conclude that the decisions of the Turf Club, as the Racing Regulatory Body after 1994, are amenable to judicial review although for the reasons set out above, that decision may have little practical consequence for the Turf Club since it is already obliged to operate fair procedures, and does so as a matter of private law, and to give reasons for its decisions.
This conclusion is in my view reinforced by consideration of the case law in relation to the Turf Club. A useful starting point is Murphy v The Turf Club  I.R. 171. In that case Barr J., having carefully reviewed the authorities, concluded that judicial review did not then lie against the Turf Club since its jurisdiction could be said to arise purely from the fact of voluntary association. This decision, it should be noted, predated the coming in to force of the 1994 Act, and thus establishes with particular clarity the legal position as it must have been understood at the time the 1994 Act was drafted. Bolger v Osborne  1 I.L.R.M. 250 (“Bolger”) dealt with proceedings which had been initiated just before the coming into force of the 1994 Act. The proceedings concerned a challenge to a disciplinary decision of the Turf Club and were brought by plenary proceedings and not by judicial review, consistent with the decision in Murphy v The Turf Club. However the trial judge, Macken J., made certain observations on the question of the amenability of the Turf Club to judicial review. She referred to the observations of counsel for the Turf Club during the course of the inquiry (Nial Fennelly, S.C.) where in opening the inquiry he said that the Turf Club was not amenable to judicial review but that the “position might be different under the new Act”. On this issue, Macken J. observed (at page 258-259):
Nor am I satisfied that the decision in Murphy v 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.
These observations were clearly obiter and the observations of counsel were made in passing, but since both statements were made by persons who were later distinguished members of this Court, they bear some weight. In any event, I consider that for the reasons already set out, the observations tentatively made in that case are correct as a matter of law. Again, perhaps illustrating the fact that the decision as to procedure is not as fundamental in Irish law as elsewhere, the Court went on to hold that the principles of fair procedures, implied as a matter of private contract into the Rules of Racing, necessarily carried with them the requirement that the decision be rational. It is not necessary here to discuss the merits of this or any other decision in this line of authority: the principal interest of these cases is the consideration given to the procedure adopted.
A further case in this line of authority is the decision of Moran v O’Sullivan  IEHC 35. That was a challenge by an owner to the proceedings of the Turf Club which suspended the applicant’s horse from competitive racing for 42 days. Consistent with the observations tentatively made in Bolger, the proceedings were commenced by way of judicial review. Although the application was dismissed on the merits, it is significant that it was not contended that the proceedings were improperly constituted. Subsequently in Hyland v Dundalk Racing (1999) Ltd t/a Dundalk Stadium  IEHC 60, Mr Justice Hogan observed albeit obiter (para. 41):
In the context of horse racing, sporting questions relating to the application of the rules of racing are entrusted to the Turf Club and the Irish National Hunt Steeplechase Committee who together form the Racing Regulatory Body for the purposes of Part III of the Irish Horse Racing Authority Act 1994. It must, however, also be recalled that given that the Oireachtas has entrusted these functions by statute to those bodies in the public interest, this means that decisions of these bodies are, in principle, at least amenable to judicial review. It is, for present purposes, unnecessary to express any precise view on these questions, save again to say that the more the disputed matters relates purely to questions of sporting judgment, the less likely it will be that there will be any judicial involvement in the resolution of the dispute.
These authorities therefore show a consistent view that the changes introduced by the 1994 Act have the effect of rendering the decisions of the Turf Club amenable to judicial review. I would uphold the trial judge’s decision on this point, and dismiss the respondent’s cross-appeal.
The respondent has also cross-appealed the trial judge’s finding that the appellants had locus standi to challenge the validity of the Rules of Racing. The basis for this argument was that it was alleged the appellants did not have locus standi to challenge all the Rules of Racing, but only those which directly affected them.
The question of whether or not a party has standing to challenge a decision or regulations and even legislation, is a preliminary point which if successful will mean that the case is disposed of without reaching the merits. There are cases in which it is necessary to focus precisely on the nature of the challenge, and the specific rules challenged. But here the points made by the appellants were of general application. Furthermore, they were constitutional in nature. Both appellants were clearly affected by the existence of the Rules of Racing alleged to have been infringed, and the first named appellant has been the subject of an adverse adjudication. It is, I think, sufficiently clear that they have locus standi to bring these challenges. It may be that if the appellants succeeded, the Court might consider that the analysis it had come to only affects the validity of some of the individual rules, but that is a matter better dealt with in the substance of the case. For present purposes I am clearly of the view that the appellants have sufficient locus standi to bring these challenges.
The second named appellant also contended that the decision of the Turf Club to dismiss the complaints against him shortly before the hearing of the High Court action had the effect of depriving him of locus standi so that the only issue remaining to be determined in his case was the one of the costs of the aborted proceeding. All the parties may have understood that the second named appellant was not required to address arguments as the substance of the case but, it is not in my view correct to characterise this as an issue of locus standi. The second named appellant was undoubtedly affected by the rules and the procedures of the Turf Club. He thus had locus standi to challenge the validity of those rules, and if necessary the constitutional validity of the Act. What occurred was that in the aftermath of the acquittal, no practical benefit would accrue to the second named appellant by pursuing the claim. If this matter was purely judicial review of a decision and did not raise constitutional issues, that fact itself might be relevant to whether relief should be granted, but even in that case it would not be correct to say that the second named appellant lacked locus standi. Nevertheless, however it was described, the course taken by the second named appellant was a sensible one and reduced the issue in his case to one of costs. It will be necessary to deal with that at a later course in the light of the Court’s determination.
The respondent has also argued that since both appellants obtained licences from the respondent, a term of which was, they agreed, to abide by the Rules of Racing, that they are not estopped from asserting any invalidity in the Rules. It is, I think, necessary here to distinguish here between a number of arguments that might potentially be made by parties in the position of the appellant. It might be said that by virtue of the contract created by the licence granted by the respondent and obtained by the appellants, the appellants are bound to enforce the Rules of Racing in their case. But if that is so it is by virtue of the positive terms of the contract and nothing, other than confusion, is gained by seeking to characterise this in negative terms as a form of estoppel. It will be necessary to consider the provisions of the contract between the parties when considering the merits of the decision. It does not however give rise to an estoppel which could constitute a valid preliminary objection.
The other way in which estoppel could be deployed is to argue that by virtue of the contract between the parties the appellants are estopped from raising any constitutional frailty. Public general legislation is of general application and affects everyone within the State. Persons affected by it in such a way as to have standing to make a claim may challenge its constitutional validity. Questions would arise if it was contended by the specific terms of a contract that a party had debarred themselves from asserting such a claim which would be the constitutional entitlement of any person. But it is not necessary to consider whether it is possible to do so, and if so the circumstances which would permit such a course, and the conditions attaching to it. In this case it cannot be said that the terms of the license expressly preclude such an action, nor in my view can it be argued that the mere fact that a license has been granted, which constitutes a contract between the parties binding the appellants to observe the Rules of Racing, can preclude them from raising the constitutional claim. Whether any benefit would accrue to the appellants from such a course, if they remain contractually bound to abide by the rules, is however a more significant issue and one which it is necessary now to consider.
The appellants argue that the 1994 Act does not contain sufficient principles and policies to permit valid rules to be enacted pursuant to it. The result is, the appellants contend, that the making of the Rules of Racing by the Turf Club is an unconstitutional usurpation of the exclusive law making power of the Oireachtas under Article 15.2.1. It would follow from this analysis that the rules alleged to be breached would be invalid, and in addition there would be no basis for the adjudication and determination by the Turf Club. But implicit in this argument and fundamental to it is that the Turf Club is a body created by statute exercising statutory powers like other subordinate bodies so that it can be said that the Rules of Racing depend for their validity and effectiveness upon the 1994 Act. But for the reasons already addressed, I do not consider that this analysis can be accepted. Prior to the 1994 Act the Turf Club made the Rules of Racing and enforced them as a matter of private contract in this case pursuant to the terms of the licences granted to the appellants. The Turf Club had therefore legal power (jurisdiction if you like) to make and enforce the Rules of Racing and the appellants were bound by their agreement, and therefore by law. The fact that the source of their obligation was private law rather than public law is not relevant to the question of whether or not the appellants were bound.
The 1994 Act did not remove or supplant that jurisdiction created by contract. If anything it sought to add to it and support it. It is unnecessary to consider here the position of persons with no contractual relationship with the Turf Club and in respect of whom the Turf Club seeks to assert a jurisdiction to make disciplinary determinations. Indeed, since the Turf Club is a cross-border body, it is possible to multiply the possible complexities which might arise. But it is not necessary to consider those questions here. Such issues should await a concrete case if any should arise. For present purposes it is enough to decide that in this case, given the relationship between the parties, the Rules of Racing which are here alleged to have been breached, and which provided for the hearing and determination of complaints, were not dependent upon the 1994 Act for legal force or validity. Thus, even if the Rules of Racing were held to be invalidated on the grounds that they exceeded the permissible scope of subordinate legislation, or even more dramatically if the 1994 Act was itself unconstitutional, the Turf Club would still have legal existence, and legal power to enforce the Rules of Racing against the appellants, who had agreed to be bound by them. The fundamental premise upon which the appellants’ argument is founded, therefore, is, in my judgment, false.
This is enough to dispose of this case, the proceedings brought by the appellants which were a challenge to the power of the Turf Club to conduct an inquiry. For the reasons set out I consider that even if the appellants were to persuade the Court that the Act lacked sufficient principles and policies to permit subordinate legislation to be made, the Turf Club would still have legal power to make and enforce the Rules of Racing in respect of the appellants. In the circumstances it is not necessary to address the appellants’ arguments in relation to the principles and policies to be detected in the 1994 Act. I am in any event not convinced that it is appropriate to apply that analysis in the particular and unique context of the Rules of Racing made particularly in respect of persons such as the appellants. It may be necessary to consider that issue if the sole legal basis upon which it was asserted that the Turf Club had jurisdiction was by virtue of Rules of Racing, made as part of the function of the Turf Club as Racing Regulatory Body recognised by the 1994 Act, as amended. In such a case it would be necessary to take account of the unique historical and legal background, the fact that Rules of Racing had been in existence for more than a century before the first coming into force of the Act, and the essential arbitrariness of any sporting rules. In the sporting context, it is perhaps fundamental that the rules of the game should be known in advance, and be capable of enforcement during the game and afterwards. Even allowing for the amendment made by the 2001 Act it is in my judgment clear that maintaining the integrity of the sport is the object of this part of the Act and the support it seeks to offer to the regulatory bodies. This would appear to justify, and indeed require, the existence of rules, their promulgation, maintenance, and enforcement, an in particular rules of the type invoked in this case, prohibiting fraudulent or corrupt practices, and requiring that a horse run to its maximum and have a full opportunity of achieving its best place. However the enforcement of other rules, particularly against parties not bound to the Turf Club by contract, may raise more complex issues. While such matters were touched on in the course of this case, and reference was made to different rules, the argument was not developed, and did not require resolution in the light of the factual circumstances in this case. Accordingly, I do not think it is necessary or therefore appropriate to make any general determination on this issue, when it is not necessary to do so to decide this case.
Administration of Justice
The appellant contends that the decision of the respondent in disciplining persons involved in horse racing and in particular jockeys and trainers, has the effect of interfering with their livelihood perhaps permanently, and therefore amounts, at least in such cases, to the administration of justice by a body which is neither a court established under Article 34 of the Constitution, nor, it is argued, is it within Article 37 because the nature of the order is such that it could not be said that it constitutes a limited function and power of a judicial nature in a non-criminal matter.
There are very many bodies which adopt court-like procedures and which may make orders and determinations which have severe impact on individuals which can far exceed the orders made by courts. Furthermore, it must be recognised that the case law on this area is difficult and some of the decisions are not easily reconciled. The line between bodies required to act judicially or fairly, and those exercising judicial functions, is not one easily drawn in any jurisdiction, but is here more complicated by the existence of Article 37. It is now however, much too late to seek any comprehensive theory, even if such was desirable. Instead the resolution of these cases must be found within the existing case law and the guidance which they offer. As the majority of the Constitutional Review Group (Report of the Constitutional Review Group 1996) noted in this regard (Article 34-37, Conclusions, para. 3):
.... there is no completely satisfactory answer to the problem raised and .... there are great difficulties in formulating a different set of words which deal adequately with these complex issues.
The more refined and complicated aspects of this issue do not arise in this case however because in my view, there are relatively clear routes to a decision here.
First, the finding that the Turf Club’s power to impose disciplinary decisions is not dependent on statute weakens, although it does not completely undermine, the appellants’ case in this regard. Second, the classic test laid out by Kenny J. in McDonald v Bord Na gCon  I.R. 217 (“McDonald v Bord na gCon”), and later adopted by the Supreme Court in that case, seems to suggest that the decisions of the Turf Club do not constitute the administration of justice. In particular, it does not appear to me that the decisions of the Turf Club can satisfy the fourth or fifth criterion. Decisions of the Turf Club imposing penalties for example are not enforceable as a judgment and there is no process for converting such a decision into a judgment. It cannot be enforced of its own right, and instead the Turf Club must seek to recover any such fine in litigation, in proceedings indeed akin to those in Rogers v Moore. Furthermore, the making of such disciplinary orders up to and including the warning of a person from a racecourse, have not only not been characteristic of the courts as a matter of history, they have as a matter of history been the exclusive function of a body such as the Turf Club.
The facts of McDonald v Bord Na gCon provide an even more useful point of comparison. That case concerned the related field of greyhound racing. There, the power was entirely statutory in its form being conferred. Under s.47 of the Greyhound Industry Act 1956, the board could make an exclusion order against an individual greyhound trainer. The Supreme Court held that this did not amount to the administration of justice. In such circumstances it is difficult to see how the function of the Turf Club could be said to amount to the administration of justice, consistent with the outcome in McDonald v Bord na gCon.
Geoghegan v The Institute of Chartered Accountants is also instructive in this regard. It was argued in that case that the disciplinary function performed by the Institute of Chartered Accountants amounted to the administration of justice considering the impact that such decisions could have on the career of accountants. The Supreme Court, while dividing on the question of amenability of judicial review, was unanimous in its conclusion that the disciplinary function of the Institute did not amount to the administration of justice exclusively confined to the courts subject only to the limited exception contained in Article 37. In my view the outcome of this case is thus very close to that contemplated by Egan and Denham JJ. in Geoghegan v The Institute of Chartered Accountants. The decision making function of the Turf Club comes sufficiently within the realm of public law so that it may be supervised by judicial review, but it is a decision making body subject to judicial review, and not itself a body administering justice.
The first-named appellant is a professional jockey and the second is a licensed trainer. Both are authorised to carry on these occupations by the Respondent, The Turf Club. The Turf Club itself is a body of some antiquity with an ascertainable history going back to the year 1790. It was originally a private body, an association of private individuals, and it claims to have maintained that essential status up to the present day. But there have been legislative developments since then. After the passing of a particular Act of 1994 the Turf Club used headed note paper in that name, endorsed “Established 1790” and, beneath that in capital letters:
THE REGULATORY BODY FOR HORSERACING IN IRELAND
Having regard to the provisions of s.39 of the Irish Horseracing Industry Act 1994, set out below, this seems a correct statement of the Board’s present status. Equally, it is an express invocation by the Turf Club of some statutory status.
In September 2011, a lady in England placed a bet on a race at Downpatrick on the 21st September 2011. This was a bet of Stg£10,000 described as a “lay bet” with the British bookmaker, Betfair. This bet was that a horse called “Yachvilli” would not be placed in the race on which it was running. The jockey was charged in effect with “pulling” the horse in the context of this bet. See the precise formulation of the allegations against him, below.
In July, 2013, almost two years after the race in question, and after an investigation, the Turf Club advised the applicants that its committee, the “Referral Committee” would consider the allegations against the first-named applicants and four other individuals in connection with the bet and race mentioned on the 3rd September, 2013. On the 28th August, 2013 the appellants’ solicitor indicated that they intended to issue Judicial Review proceedings. On the 29th August, 2013 leave was granted by Mr. Justice Charlton to apply for the following reliefs amongst others:
The appellant was also given leave, in rather conditional terms, to apply for two further reliefs which are:
The allegations against the first-named Applicant were sent to his solicitors by the Turf Club by letter of 2nd August 2013. They, together with a “Case Summary” commencing “The Turf Club’s case is this” were described as “ the paperwork for the hearing” in that letter. The letter was written on note paper endorsed as set out in para. 1. above.
There are four allegations about Mr. O’Connell, as follows:
Did Eddie O’Connell, on, and/or before, the date of the race in which he was the jockey act in breach of Rule 273(vi) in that he deterred, or conspired with James Lambe, Robert Martin, Brian Keown and/or Lucy Stanton to deter, Yachvilli from winning the race or from running to its maximum ability in the race.
Did Eddie O’Connell on, and/or before the date of the race in which he was the jockey act in breach of Rule 273(viii) and/or (ix) in that he jointly with James Lambe, Robert Martin, Brian Keown and/or Lucy Stanton engage in a corrupt or fraudulent practice in relation to racing in Ireland by either
Agreeing to ride the horse other than to give its best opportunity to win or be placed so that a lay bet would be successfully placed against it, or
Agreeing to give the horse a schooling ride so that a lay bet could be successfully placed against it.
Did Eddie O’Connell on, and/or before, the date of the race in which he was the jockey act in breach of Rule 273(xiv) in that he conveyed knowledge pertaining to the horse’s condition or wellbeing not in the public domain which might negatively affect its performance or participation in the race when he knew or ought reasonably to have known that such knowledge might be used for the purpose of laying that horse to loose in that race.
Did Eddie O’Connell on the 21st September, 2011 when he was the jockey in the race:
Act in breach of Rule 212(a)(i) by failing to take all reasonable and permissible measures throughout the race to ensure that his horse was given a full opportunity to win or obtain the best possible place and/or
Act in breach of Rule 212(a)(ii) by using the run for the purposes of a school.
In their Statements of Opposition to the appellants’ application for Judicial Review the question of whether the Turf Club was liable to Judicial Review was raised. The Turf Club said, at para. 1 of its Statement of Opposition:
Therefore, the Turf Club said at para. (3):
The applicants do not have locus standi to seek the relief claimed or any review.
The Attorney General, in her Statement of Opposition, at para. 2 stated:
The applicants assertion of ultra vires and constitutional invalidity are premised in a misconception as to the status and function of the respondent. The respondent is a private entity which is responsible for the regulation for the sport of horse racing. It has been included in the Racing Regulatory Body created by the Irish Horse Racing Industry Act 1994 with responsibility to make and enforce the rules of racing for horse racing. Participants in horse racing agree by private contract with the respondent to adhere to the rules of racing made by the respondent, which the respondent now seeks to enforce.
The High Court decision
The High Court (McGovern J.) on the 10th April, 2014 dismissed the appellants application for Judicial Review with costs. He did so on the basis (para. 42ff) that though:
the respondent is of such a character as to be amenable to Judicial Review because of its incorporation into the Racing Regulatory Body by the Act of 1994. I am also satisfied that the applicants have locus standi to bring these proceedings and are not estopped from doing so.
Insofar as the respondent exercised a delegated judicial function, the exercise of this function is limited to the furtherance of principles and policies set out in the Acts and is necessary ‘to promote integrity and fair play in horseracing’ as provided for in s.39 of the Act of 1994 and to give effect to the objectives of the Acts.
He also held that:
The respondent does not exercise a judicial function.
The issues raised on the appeals is somewhat complicated and are raised in different ways. The appellants appeal, instituted by notice of appeal dated the 8th May, 2014 is a full appeal against those portions of the High Court judgment which were adverse to the first-named appellant. But the Turf Club served a “Notice to Vary” in which, though it was victorious in the High Court proceedings, it challenged various aspects of the High Court judge’s decision, six specific ones and one residual category:
The respondent was incorporated into the Racing Regulatory Body which was established by the Irish Horseracing Industry Act and the Racing Regulatory Body has the power to regulate horseracing and make the Rules of Racing and the other functions specified in Part III of the 1994 Act.
The Regulation of Horseracing in Ireland and/or the traditional role of the respondent have been placed on a statutory footing;
Article 15.2.1 of the Constitution and the jurisprudence relating thereto are material to the validity of the rules of racing.
The respondent and/or the Racing Regulatory Body are amenable to Judicial Review;
The respondent had locus standi to seek the reliefs claimed in respect of the rules of racing generally and/or in respect of the rules of racing which did not affect them personally and/or directly.
The appellants were not estopped from maintaining their claims in these proceedings and/or from obtaining the reliefs claimed.
Such further or other aspects of the judgment of the High Court as may be permitted by the Court.
The other parties consented to the filing of this Notice to Vary, though the appellant maintained that it was unnecessary. That the net effect of the document is that the Turf Club is maintaining the view that, contrary to the what the learned trial judge found, it was not amenable to Judicial Review, and is challenging the legal and factual findings which lead to the contrary conclusion.
The High Court decision
At para. 17 of his judgment the learned High Court judge held:
The Racing Regulatory Body is, in my view, amenable to Judicial Review. It is established under the Act of 1994. Quite apart from the requirements of Part III of the Act and in particular s.45, the Racing Regulatory Body may issue an Exclusion Notice against persons who have not entered into any contractual arrangement with the respondent (s.62). There can be no doubt that a person affected by such an Exclusion Order would be entitled to challenge the Racing Regulatory Body in respect of any want of vires or fair procedures in the purported exercise of its jurisdiction. The Act of 1994 placed the traditional role of the Turf Club on a statutory footing.
Statutory Provisions and the Rules of Racing
Part III of the Irish Horseracing Industry Act 1994 is entitled “The Racing Regulatory Body”.
Section 39 of this Act provides as follows:
Section 2 of the same Act is the Interpretation Section. This provides that the term “Racing Regulatory Body” means:
The Sections which follow s.39 makes certain specific provisions for the activities of the Racing Regulatory Body. Thus, s.40 provides for charges by the Body; s.41 provides for the funds of the Body; s.42 provides for the costs of the integrity services which the Body is required to provide; s.43 provides for the collection by the Body of certain fees and charges on behalf of the Irish Horseracing Authority; s.44 provides for the alteration by the Body of the Rules of Racing; s.45 provides for appeals against sanctions imposed by the Body; and s.46 provides that it is for the Body (or a person acting on its behalf) to decided whether a particular race fixture may be held, having regard to certain statutory criteria.
Of particular interest is s.62 of the Act which relates to the “exclusion of certain persons from racecourses”. This provides:
The Section goes on to make further provisions for such matters as the manner of removal of an excluded person who comes on to a racecourse, but these are not immediately relevant. It may be significant, however, that the Gardaí, if called upon, must physically effect such removal.
It will be noted that the sanctions imposed by the Turf Club are immediately effective (subject to appeal) and do not require any process of confirmation or re-hearing before the High Court. This is in contrast to the law governing Solicitors or Medical Practitioners, considered below.
Rules of Racing
The Rules of Racing, by reason of Rule (I), extend to:
Any person who is a jockey, qualified rider, owner, trainer, authorised agent, authorised rider’s agent, authorised representative or jockey’s Valet and nominated assistant or substitute as herein defined and
Every official appointed from time to time in accordance with Rules 28 and 29 hereof,
Every other person who is the holder of a Racing Establishment Employee Card and
All other persons in any way whatsoever concerned in or taking part in such meetings or races, or in the training or preparation of horses to be entered for or run in such races, or otherwise involved in racing.
All meetings held under the sanction of the Irish Turf Club, and the Irish National Hunt Steeplechase Committee, and all races run at such meetings, flat races being run under the Rules of Racing and steeplechases, hurdle races and Irish National Hunt flat races being run under the Irish National Hunt Steeplechase Rules.
By Rule 19A of the Rules of Racing there is provision for the appointment and powers of the Turf Clubs Referrals Committee. The powers of this Committee include all the power of Stewards under the Rules and the Committee is also empowered:
To decide upon such matters as may be referred to it pursuant to Rule 14(ii) or otherwise under the Rules;
To decide upon such matters as may be referred to it by Horseracing Ireland insofar as they relate to the Rules of Racing and INHS Rules.
To decide on such matters as may be placed before it by a Senior Racing Official under the Rules.
To allow or dismiss any matter for want of prosecution.
By Rule 19C of the Rules of Racing an Appeal Body is to be established and is entitled, as is the Referrals Committee:
There are extensive powers pursuant to Rule 20, including the power to grant, withdraw or suspend licences for jockeys and trainers and to “issue and publish in the Irish Racing Calendar from time to time such rules as they may think fit”.
There is a general residual power contained in Rule 272 as follows:
Any person involved in horseracing who, within the jurisdiction of the governing bodies, whether verbally or by conduct or behaviour, acts in a manner which is prejudicial to the integrity, proper conduct and good reputation of horseracing (whether or not such behaviour or conduct, verbal or otherwise, is associated directly with horseracing) shall be in breach of these rules.
The following Rule, 273, explains the reference above to “disqualified person”:
Should the Referrals Committee or the Appeals Body be satisfied that there has been a breach of any of the provisions of the subparagraph of this Rule, the person or persons so offending may at the discretion of the Referrals Committee or the Appeals Body be declared to be a Disqualified Person or dealt with in such other manner, including the disqualification restriction from running of the horse and forfeiture of the stakes, as the Referrals Committee and the Appeal Body may decide.
Liability to Judicial Review
In a case about the English equivalent to the present respondent, R. v Jockey Club, ex parte AGA Khan  2 AER 853 Hoffman L.J. (as he then was) said:
private power may affect the public interest and the livelihood of many individuals. But that does not subject it to the rules of public law.
This point of view led to lively debate, though perhaps livelier in England than in Ireland, as to what constituted a public body, which is by its nature subject to the rules of public law, including Judicial Review. In the Irish case of The State (Hayes) v Criminal Injuries Compensation Tribunal  ILRM 212 it was conceded that the ordinary substantive and procedural rules of Judicial Review applied to the Tribunal. This was not notwithstanding that the Tribunal was non-statutory in status, and had been established by the Executive to administer monies voted by the Oireachtas according to a published but non-statutory scheme. This concession may be contrasted with the English case of R. v Criminal Injuries Compensation Board, ex parte Lain  2QB 864, where no such concession was made.
In that case, Lord Parker C.J. said that the exact limits of the ancient remedy of certiorari had never been and ought not to be specifically defined. I respectfully agree and will not attempt such an exercise. Lord Parker continued:
They [the limits of certiorari] have varied from time to time being extended to meet changing conditions. At one time the Writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word, but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. 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....
We have as it seems to me reached the position where the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the Board in my opinion comes fairly and squarely within the jurisdiction of this Court. It is, as [Council] said ‘a servant of the Crown charged by the Crown, by executive instruction, with a duty of distributing the bounty of the Crown’ it is clearly, therefore, performing public duties.
Diplock L.J., subsequently a notable exponent of English Administrative Law said (p.884 of the Report):
The jurisdiction of the High Court to supervise the exercise of their jurisdiction by inferior tribunals has not in the past been dependent upon the source of the tribunal’s authority to decide issues submitted to its determination, except where such authority is derived solely from agreement of parties to the determination .... the earlier history of the Writ of certiorari shows that it was issued to courts whose authority was derived from the prerogative, from Royal Charter, from franchise or custom, as well as from Act of Parliament. Its recent history shows that as new kinds of tribunals have been created, orders of certiorari have been extended to them too and to all persons who under authority of government have exercised quasi judicial functions .... If new tribunals are established by Acts of Government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunals to the supervisory control of the High Court has been based.
And what are these characteristics? It is clear on the authorities that the tribunal need not be one whose determinations give rise to any legally enforceable right or liability. Its determination may be subject to certiorari notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of the person to whom it relates. It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect on legal rights or liabilities....
All this, it must be remembered, was said in the context of the non-statutory Criminal Injuries Compensation Board, the equivalent in England and Wales of the Irish Criminal Injuries Compensation Tribunal. It must be recalled that this was a non-statutory tribunal, so that the position of the Turf Club, in its new statutory guise as the Racing Regulatory Board, is a fortiori.
In the United Kingdom this debate came to a head in the well known case generally referred to as Datafin. More formally, this case is R.v. Panel on Takeover and Mergers, ex parte Datifin plc  QB 815. In an excellent discussion of this decision, Beatson, “Public” and “Private” in English Adminstrative Law (1987) 103 LQR 34:
While the Court excluded from Judicial Review and ‘publicness’ bodies whose sole source of power was a consensual submission, it pointed out that the power of self regulatory bodies such as the Panel is not exclusively consensual .... The test is whether de facto power is underpinned by either a government decision to have regulation by a non-statutory body or by statutory support or, as in the Takeover Panel case, by both.
In Ireland, there were still earlier signs of an expansion of the prima facie private areas on which the rules of natural justice were imposed. In Glover v BLN Ltd.  IR 388 the Supreme Court held that the rule of audi alteram partem applied in the quintessentially private law context of the dismissal of a Company Director. At p. 425 of the Report Walsh J. said:
The Constitution was relied upon; in particular Article 40.3 of the Constitution. This Court in In Re Haughey held that that provision of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.
In Great Britain, the tension between the rival approaches (which I may call the Aga Khan approach and the Datafin approach) continued for a long time. In the academic literature, and in the cases, these approaches were designated the “source of power approach”, which put the emphasis on the nature of the deciding body, and the “public functions” approach which focussed on the nature of the individual function being carried out, rather than the nature of the body which was carrying it out. The contrasted approaches did battle in the pages of Public Law and the Law Quarterly Review. The result of this battle is well summarised at para. 3-042 of the 6th edition of De Smith’s Judicial Review (London, 2007):
The public functions approach brings within the Court’s Judicial Review supervisory jurisdiction some actions of some bodies – including self-regulatory organisations, charities and business enterprises – which would otherwise fall outside public law scrutiny if only the traditional ‘source of power’ approach were to be deployed.
Applying a public functions test in this context, the Courts have held decisions taken by the following, amongst others, to be susceptible to review: The Takeover Panel, Advertising Standards Authority, Press Complaints Commission, Code of Practice Committee of the Association of the British Pharmaceutical Industry .... the managers of a privately owned psychiatric hospital; and Hampshire Farmers Markets Ltd.
The fundamental engine of this procedure, it seems to me, is a statement of Donaldson M.R. in Datafin that the Court should “recognise the reality of executive power” and not “allow their reason to be clouded by the subtlety and complexity of the ways in which it can be exercised”. (See  QB 815 at 838/9)
Non-statutory bodies are as capable of abusing their powers as is government.
I wish to endorse, with great respect, this lucid and eminently realistic dictum of Donaldson M.R. We must look to the realities of the power exercised by the Turf Club, not the superficialities. These realities are:
By the Act of 1994, the Club was constituted as “The Racing Regulatory Body in relation to Flat Racing”.
The Club, which had existed as a private body since at least 1790, accepted this new Statutory Status and proclaimed it on its own notepaper, and to the present applicants.
The Club could not properly have described itself as “The Regulatory Body for Horseracing in Ireland” but for the Act of 1994.
Thus, the Club now “gains its efficacy from [an] action of the Legislature”, as Kingsmill Moore J. put it (see above). This allows it to impose penalties on “exclusions” even on people who hold no licence from it, by deeming them “excluded” or “disqualified persons”.
Horseracing is a sport but also a massive industry. It provides the livelihood of very many people, including Mr. O’Connell.
An interruption in anyone’s livelihood of four years would be a serious matter even if it were due to misfortune, illness or accident. When it is imposed as a penalty, with consequent reputational damages, it is still more serious.
It is true that Mr. O’Connell followed the occupation of jockey under a licence for the Club. It is also true that he had absolutely no option but to seek that licence from the Club if he wished to work as a jockey. The application for such a licence is in no real sense voluntary so as to constitute a contract freely entered into. We must “have regard to the reality of executive power”, as Lord Donaldson put it very lucidly. A doctor must enrol himself on the Register maintained by the Medical Council, thus exposing himself to the disciplinary powers of the Council, if he wishes to practice his profession. Similarly Mr. O’Connell had to seek a licence from the Turf Club if he wished to work as a professional jockey in Flat Racing. The Medical Council is undoubtedly subject to Judicial Review – see Corbally [reference]. So, I believe is the Turf Club: it is the consequence of exercising statutory disciplinary power and imposing penalties.
The great significance of the Datafin decision was that it subjected the City Panel on Takeovers and Mergers to Judicial Review even though “it had no statutory, prerogative or Common Law powers” and so “performs its functions without visible means of legal support”, as Lord Donaldson put it. This was quite consistent with a dictum of Atkin L.J., spoken as long ago as 1923 in R. v Electricity Commissioners, ex parte London Electricity Joint Committee Company (1920) Ltd.  1KB 171 at 205 that the Court had power to supervise, by means of the prerogative Writs, the decisions of “any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially”.
In an article in 1992 Public Law, at p.1, David Pannick Q.C. wrote on “Who is subject to Judicial Review and in respect of what?”
Speaking specifically of consent based adjudicative bodies he said:
The issue for public lawyers is not whether one can identify a private law agreement to exclude Judicial Review, but whether the respondent body .... had such a de facto monopoly over an important area of public life that an individual has no effective choice but to comply with their rules, regulations and decisions in order to operate in that area. In Datafin itself, the powers of the Panel were, in part, consensual – in the sense that the Companies choose to comply. But the reality is that there is no effective choice: either you comply or you do not do business in the city.
In the United Kingdom, a series of cases about the English Jockey Club may be said to have defined the debate on the availability of Judicial Review. In the case cited at para. 87 above a strong view was taken: the Jockey Club was a private body, and not a public body and was not liable to the Rules of Public Law, including liability to Judicial Review. The topic was further discussed in a series of cases against the Jockey Club including R. (ex parte) RAM Racecourses Ltd.  3 Admin LR 265; R. v Jockey Club (ex parte) Massingberd-Mundy (1990) 2 Admin LR 609 and R. v Disciplinary Committee of the Jockey Club, ex parte the Aga Khan (July 3, 1991). In these cases dissatisfaction was expressed with the decision of the Court of Appeal in Massingberd-Mundy on the issue of consensual submissions. But the judges felt bound by authority to follow the earlier case. The issue was finally resolved, in the neighbouring jurisdiction in Bradley v The Jockey Club  EWHC 2164 (QB). There, the circle of conflicting decisions was squared by holding that the contractual relationship between the jockey and the Jockey Club contained implied terms including one to the effect that it would only impose a sanction that was proportionate in light of the facts proven or admitted.
By the time Bradley was decided, the Judge, Mr. Justice Richards, was able to note that:
It is common ground that the Court has jurisdiction to review the [Jockey Club’s] Appeal Board’s decision.
This was a surprising piece of common ground in view of the sharp contrasts in the attitude of the Courts in the earlier Jockey Club cases. However, the basis on which that common ground was reached did not involve any revisiting of the scope of judicial review: rather it harked back to the decision of the Court of Appeal in Nagle v Fielden  QB 6367. It is, given the date, unsurprising to find that this case was resolved by the unanimous decisions of Denning M.R., Dankwerts L.J. and Salmon L.J. This was a claim by a person described in the Law Report as “Florence Nagle (femme sole)”. Mrs. Nagle had been training race horses for a good many years but was regarded by the Jockey Club as being incapable of holding a trainer’s licence because she was a woman. Instead, the Club granted licence to “men servants employed by her, in particular her ‘head lad’.” It was the practice of the stewards of the Jockey Club to refuse to grant a trainer’s licence to a woman in any circumstances. In 1965 she brought proceedings against the Jockey Club claiming a declaration that the Club’s practice of refusing a trainer’s licence to a woman was void as being against public policy, and also an injunction requiring the stewards to grant her a licence. The Jockey Club applied to the Master of the Queen’s Bench Division who granted an order striking out the statement of claim on the grounds that it disclosed no cause of action. This was upheld on appeal to the High Court. However, the plaintiff’s appeal to the Court of Appeal was allowed, thereby reinstating her action. The very general grounds on which a jurisdiction over the Jockey Club was in that instance asserted appears from the following citations from the learned Lord Justices:
Denning M.R. said (at 646):
When an association, who have the governance of a trade, take it upon themselves to licence persons to take part in it then it is at least arguable that they are not at liberty to withdraw a man’s licence – and thus put him out of business – without hearing him. Nor can they refuse a man a licence – and thus prevent him from carrying on his business – in their uncontrolled discretion. If they reject him arbitrarily or capriciously, there is ground for thinking that the Courts can intervene. I know there are statements to the contrary in some of the cases. We were referred to one by myself in Russell v Duke of Norfolk  1 AER 109. But that was seventeen years ago. The right to work has been far better recognised since that time. So has the jurisdiction of the Court to control licensing authorities. When those authorities exercise a predominant power over the exercise of trade or a profession, the Courts may have jurisdiction to see that this power is not abused.
It is striking to see Lord Denning’s virtual independence of precedent, including a precedent created by himself. But Lord Justice Dankwerts arrived at the same conclusion by more conventional means and contrived to cite a decision of his own with approval in the course of doing so. He said, at p.650:
But this case seems to me involve matters of public policy. As was suggested by me in Martell v Consett Iron Company Ltd.  Ch 363, the law relating to public policy cannot remain immutable. It must change with the passage of time. The wind of change blows upon it.
Salmon L.J. at p. 654 recited that the Jockey Club’s case was that the Court had not power to interfere with them “even if they capriciously and unreasonably refused a licence”.
I must confess that I do not find this argument attractive. One of the principal functions of our courts is, whenever possible, to protect the individual from injustice and oppression. It is important, perhaps today more than ever, that we should not abdicate that function. The principle the Courts will protect a man’s right to work is well recognised in the stream of authority relating to contracts in restraint of trade.
He went on to cite the well known case of Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company  AC 535.
Both Lain (see para. 81 above) and Nagle were cited in Bradley and in Datafin. In Datafin see pages 819-821. In Bradley  L.L.R. 543 see pp544 and 556-8. The Nagle case represents, if I may say so, a very English avoidance of the constraints on the scope of Judicial Review which, in 1966, were stronger than they have since become. This was achieved not by overruling the Judicial Review authorities, but by circumventing them by reference to an aspect of public policy which had largely grown up in the area of contracts in restraint of trade.
In one sense, of course, this discussion of the English Authorities is not strictly relevant to the present case. But since, as it happens, the very lively dispute in England and Wales on the scope of Judicial Review (only very palely reflected in this jurisdiction) took place in the context of the English Jockey Club, whose resemblance to our Turf Club seems obvious. I thought it well to discuss the English Authorities with a view to showing that, in the result if not in detail, there is not a great deal of difference.
This case (Bradley) appears to have quietened the decades long dispute about the Jockey Club in particular, by finding, or assuming, that the terms of the actual relationship between the parties included much if not all of the public law requirements. But in Ireland, for the reasons I have tried to elucidate above, this roundabout route does not appear to me to be necessary.
Administration of justice by a body other than a court
One of the applicant’s claims for substantive relief arises under this heading. However, I am not immediately concerned with this substantive claim but rather with the effect which a credible invocation of Article 34.1 may have on the question of whether Judicial Review is available. It appears to me that if an adjudication is arguably within the concept of “the administration of justice” as defined, in particular, in McDonald v Bord nag Con  IR 217, then Judicial Review must be available in order to prevent such a usurpation of the judicial function, even if, in the end, the specific adjudication is saved by Article 37, or by being held not to be an administration of justice.
Article 34.1 of the Constitution provides:
Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and save in such special and limited cases as may be prescribed by law, shall be administered in public.
Article 37.1 of the Constitution provides:
Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
The appellants’ claim that the adjudicative and sanction-imposing functions of the respondent amount to an impermissible administration of justice. The starting point of this aspect of their argument is in Re Solicitors’ Act, 1954  IR 239. The appellant places particular emphasis on two citations from the judgment of Kingsmill Moore J. At p.263, that learned judge said:
That the trial of criminal matters and ‘offences’ is administration of justice is clear from Article 38 .... A characteristic feature of criminal matters is the infliction of penalties, a consideration which gives weight to the submission that a tribunal which is authorised to inflict a penalty, especially a severe penalty, even in cases where the offence is not strictly criminal, should be regarded as administering justice.
On the following page Kingsmill Moore J. said:
There is no question here of a domestic tribunal with a jurisdiction based solely on contract. Many bodies, such as Clubs, Trade Unions, Trade and Professional Associations, chartered or otherwise, admit members only on condition that they agree to abide by and be bound by a set of rules which confer on the Body or a Committee of the Body the power to investigate the conduct of its members, and, if such conduct involves a breach of the rules or the code of behaviour or the code of behaviour required, to expel the offender. Such a jurisdiction does not gain its efficacy from any action of the State or the Legislature and is not a diminution or a devolution of the judicial power of the State – it rests on contract only. Here we are dealing with a tribunal which depends for its existence and its powers on a legislative Act of the State. If the effect of such legislation is to confer the power to administer justice on persons who are not regularly appointed as judges, it is by Article 34 unconstitutional, unless it can be brought within some of the saving provisions of the Constitution. Eventually the question whether any particular tribunal is unconstitutional must depend on whether the congeries of the powers and functions conferred on the Tribunal, or any particular power or function, is such as to involve the pronouncement of decisions, the making of orders, and the doing of acts which, on the true intendment of the Constitution, are reserved to judges as being properly regarded as part of the administration of justice, and not of the limited character validated by Article 37.
In McDonald v Bord Na gCon  IR 217, Kenny J. said the following at pages 230/231:
It seems to me that the administration of justice has these characteristic features:
The Order of the High Court in McDonald was reversed on appeal, but the foregoing criteria were upheld, and “accepted”.
I am of the opinion the action of the Turf Club in adjudicating the complaints mentioned may arguably constitute an administration of justice. Whether they are such an administration of justice, or not, or whether they are such as is permitted by virtue by Article of 37.1 is not a question that immediately arises. It will arise on the appellant’s substantive claims. There is considerable authority that it is not an administration of justice.
I have reached the above conclusion because, to adapt the words of Kingsmill Moore J. cited above, the Turf Club’s jurisdiction does “gain its efficacy from an action of the legislature” – the quoted provisions of the Act of 1994. It is concerned with, and in this case it led to, the infliction of a penalty which is something which “gives weight to the submission that a tribunal which is authorised to inflict a penalty, especially a severe penalty, even in cases where the offence is not strictly criminal, should be regarded as administering justice”.
On the basis of the matters alleged and contended for in the Turf Club’s “paperwork” in relation to the inquiry about Mr. O’Connell it appears to me that certain of the criteria set out by Kenny J. in McDonald and Bord nag Con which determine whether a particular adjudication is an “administration of justice” have been met. There is “a dispute or controversy” though as to a violation of the Rules of Racing; the Turf Club’s Committee determined “the rights of the parties and proceeded to the imposition of a penalty”; this determination was “final”, subject to appeal; it was enforced but not by a Court or the State, but by the withdrawal by the Turf Club of the appellant’s jockey licence; and the order suspending the appellant is characteristic of the Turf Club and not a court.
A body which discharges a public function appears to me to be prima facie subject to Judicial Review.
It does not appear to me to be true that the Turf Club is a purely private body. On the contrary, for the reasons set out at greater length at para. 90 above, I believe that the Turf Club has been constituted by statute as “the Racing Regulatory Body in relation to flat racing” and has accepted this status in its dealings with the public, and specifically including the appellant.
The Turf Club cannot, of course, dispute this last point but they say that the statutory intervention should be regarded as conferring, or making express, powers of the nature which the private body previously had. Even if that is so, I do not see that it alters the fact that this private body is now also a statutory body performing adjudicative functions in relation to both people who hold licences from it and to others who do not. I am entirely unconvinced that persons who are compelled to apply to the Turf Club for licences if they are to carry on their occupations can be deemed to have freely and voluntarily consented to the exclusion of the supervisory jurisdiction of the Court in relation to the doings of a body which can deprive them of their livelihoods. This is has not been held to be so even in relation to academic institutions in respect of people who make a more obviously voluntary decision to become students.
I have derived assistance on this question from certain cases which I wish now briefly to mention. In Geoghegan v Institute of Chartered Accountants  3 I.R. 86 the question arose – though perhaps not centrally – of whether the Institute was subject to Judicial Review by reason of the fact that it was based on contract. Denham J. (as she then was) had this to say at p.130 of the Report:
In view of the public nature of the source of the Institute, the functions of the Institute, and the nature of the contract between the applicant and the Institute, the subject of judicial review becomes part of the question of constitutional justice of the relationship. There are a number of important factors:
In these circumstances I am satisfied that a cessation of the Disciplinary Committee may be the subject of judicial review pursuant to Order 84 of the Rules of the Superior Courts.
Not all of the criteria listed by Denham J. apply, or apply in the same detail, to the present case. Horseracing is undoubtedly a very major industry in this jurisdiction but it does not have a special connection to the judicial organ of government. But I do not consider that that distinction is a relevant one for present purposes.
I wish very respectfully to approve the views expressed by Denham J. It appears that in the Geoghegan case the Supreme Court split evenly on this issue, with Hamilton C.J. expressly reserving his position on it. However, the views of Denham J. were approved in the following year by Shanley J. in Eogan v University College Dublin  1 I.R. 390. This case was about a complaint by a retired UCD professor about a new policy of refusing to extend tenure beyond the age of 65, as had previously been done under the College Statutes on certain conditions. Mr. Justice Shanley noted that the Statutes had been made pursuant to the Irish Universities Act, 1908. He therefore concluded that the decision to appoint Professor Eogan and not to continue him in office “were decisions taken in substance pursuant to the statutory regime flowing from the 1908 Act”, and accordingly could be challenged by means of judicial review. The challenge however failed on its merits.
There are a number of cases in relation to academic institutions at third level, including the College of Surgeons and the various Colleges of the NUI. However, the Universities Act, 1997 now provides the legal basis for many decisions taken within the university sector and has probably extended the potential application of judicial review. For present purposes, however, I am satisfied that the decisions adverse to the applicant Mr. O’Connell “were decisions taken in substance pursuant to the statutory regime flowing from the Irish Horseracing Industries Act, 1994”, to adapt the words of Shanley J. I am therefore of the opinion that the proposed proceedings can be challenged by judicial review.
Having established that the respondent is amenable to judicial review, I cannot however see that the applicant is entitled to any of the reliefs sought. It is notable that all these reliefs are sought by way of declaration. No particular complaint is made as to the investigation conducted into the matters the subject of the allegations against the applicants, nor as to the procedures relied upon.
I do not accept that the making of the Rules of Racing is an exercise of the law making power conferred on the Oireachtas by Article 15.2.1 of the Constitution. The Turf Club did not have power to make delegated legislation, or “law” of any kind within the meaning of the relevant Article of the Constitution, before the enactment of the 1994 Act. The Act did not purport to confer a law making power, so that the Club has no such power. Therefore, I cannot see any basis on which the relief sought by reference to Article 15 of the Constitution could be granted.
The appellants’ have a considerable difficulty in relation to the claim that the activities of the respondent constitute an administration of justice. The case of MacDonald v Bord na gCon  I.R. 217, appears to lie directly across their path. This was a case involving the Greyhound Board, an entity not dissimilar to the Turf Club. However, the power which the Bord are seeking to exercise was exclusively of a statutory nature. Having regard to the finding of the Supreme Court in that case (while accepting Kenny J.’s criteria for an administration of justice, set out above) that the making of an exclusion order pursuant to s.47 of the Greyhound Industry Act 1956 was not an administration of justice. I cannot see how this case can be distinguished.
I do not believe that either applicant has the locus standi to maintain a claim by reference to Article 3 of the Constitution.
I would dismiss the plaintiffs claims on the merits.
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