EARLY CHALLENGES TO THE JOCKEY CLUB

The earliest challenge to the Jockey Club's disciplinary jurisdiction appears to be Russell v. Duke of Norfolk in 1948.Footnote ⁵ The plaintiff, a racehorse trainer, had had his trainer's licence revoked by the Stewards of the Club after an inquiry into a race won by a horse that he had trained. He alleged that this had been done in breach of “natural justice”—which in this context means without giving him a fair hearing. In Dr. Bentley's Case Fortescue J noted that even the Almighty held a hearing before expelling Adam and Eve from the Garden of Eden.Footnote ⁶ The majority of the Court of Appeal (Tucker and Asquith LJJ) would have none of this. Assuming that the licence embodied a contract between the plaintiff and the Club, the Stewards had an absolute and unfettered discretion to withdraw it at any time. It was impossible, consistent with that absolute discretion, to imply a term requiring obedience to natural justice. Denning LJ, however, took a very different view. The Jockey Club had great power amounting to “a monopoly in an important field of human activity”. Disqualification of a trainer deprived him of his livelihood and so “common justice” required that he should heard before imposing such a penality. Denning LJ even doubted whether public policy would allow this duty to be excluded by an express term of the contract. Despite this sharp difference of approach, in the end Denning LJ agreed that the Stewards' inquiry had anyway, satisfied the principles of natural justice.

Next comes the celebrated case of Nagle v. Feilden.Footnote ⁷ The plaintiff, Florence Nagle, had applied for a trainer's licence from the Jockey Club but was refused, she alleged, because its policy was not to grant licences to any woman. She brought an action against two of the Club's Stewards, Sir Randle Feilden and Viscount Allendale, for a declaration that this was against public policy, and for an injunction to compel the Stewards to grant her a licence. The High Court struck out her claim as disclosing no cause of action but the Court of Appeal unanimously reversed this decision and allowed her action to proceed. Of course, to 21^st century eyes the Club's undisguised sexism, appears unthinkable. One can only marvel at the remark from Desmond Ackner QC, counsel for the Jockey Club and a future Law Lord, that “the defendants' argument is consistent with the basic principle of chivalry, that there are fundamental differences between the sexes”.Footnote ⁸ Such misplaced chivalry or patronizing chauvinism, was soon to be challenged by the Equal Pay Act 1970. Lord Denning MR thought the “unwritten rule” challenged by Miss Nagle, “arbitrary and capricious” since racehorse training was in no way unsuitable for women.Footnote ⁹

As ever in the law, however, it is not enough to express moral indignation from the bench. There must be a sound legal basis for judicial intervention. This is the controversial aspect of Nagle v. Feilden. While the plaintiff's licence in the Russell case was presumed to signify a contract with the Jockey Club, the whole burden of Miss Nagle's complaint was that she had never held, and would never hold, a trainer's licence. Lord Denning observed that the Club was, pointedly, willing to contract only with the “head lad” in Miss Nagle's training yard—which “exclude[d] any possibility of a contract with her”. For Stephenson J at first instance, the absence of a contract had been fatal. But in a bold and radical step, the Court of Appeal held that jurisdiction was not founded on and therefore confined to, protection of contractual rights. Danckwerts LJ held that “courts have the right to protect the right of a person to work when it is being prevented by the dictatorial exercise of powers by a body which holds a monopoly”.Footnote ¹⁰ Salmon LJ was unimpressed by the Jockey Club's argument that any remedy must come from Parliament rather than the courts—“a familiar argument on behalf of anyone seeking to exercise arbitrary powers free from any control”.Footnote ¹¹ Lord Denning, too, emphasized the right to work suggesting that this had become “far better recognised” since the Russell case 17 years previously (while basing himself on the Ipswich Tailors case of 1617).Footnote ¹² Lord Denning hinted that his real concern was with trades unions and their “closed shops”.Footnote ¹³

Salmon LJ denounced the invention of “fictitious” contracts in earlier cases in order to give jurisdiction to the courts. Legal fictions belonged to an era where the common law was more rigid and formalistic; it could now “protect the individual from injustice and oppression” directly.Footnote ¹⁴ Lord Denning also hoped that the law was mature enough to do away with fictions. The plaintiff could not be awarded damages without showing a contract or tort,Footnote ¹⁵ but a declaration would be available “whenever the interest of the plaintiffs is sufficient to justify it”. This went for the plaintiff's claim for an injunction as well.

This bold decision is as dubious as it is admirable. Hoffmann LJ has discerned an “improvisatory air about [the] solution”, doubting the dicta about injunctions in particular.Footnote ¹⁶ Similarly, Simon Brown J has described the line of cases including Nagle v. Feilden as the courts devising, under compulsion, “a new private law creature; a right in certain circumstances to declaratory judgments without any underlying cause of action”.Footnote ¹⁷ Had the case arisen in 1990, his Lordship suggested, it could have been decided much more straightforwardly, finding “a natural home in judicial review proceedings”. To assess this suggestion, a brief description of that procedure is required.

THE RISE OF MODERN JUDICIAL REVIEW

The Court of King's Bench enjoyed an ancient inherent jurisdiction to control the lawfulness of decision-making by inferior bodies through the prerogative writs. This survived in a rather archaic corner of the Queen's Bench Division in the post-1875 High Court. When the procedure for seeking the prerogative “orders” (mandamus, prohibition and certiorari) was overhauled in the late 20^th century, this supervisory jurisdiction was reinvigorated. In 1977 the new Order 53 of the Rules of the Supreme Court streamlined the procedure for claiming prerogative remedies, inaugurating the modern “application for judicial review”. Order 53 included a much more generous test of locus standi while introducing “safeguards against abuse” including a very short (three month) time limit for lodging claims, a preliminary requirement of judicial leave to bring the application, and limits on discovery and cross-examination. The procedure was given parliamentary approval in the Supreme Court Act 1981, s.31.

Great controversy arose from the House of Lords' decision in O'Reilly v. Mackman that public law claims must be brought using Order 53 procedure.Footnote ¹⁸ It was held to be an “abuse of process” to bring ordinary claims for a declaration, thereby circumventing “the safeguards imposed in the public interest against groundless, unmeritorious or tardy attacks upon the validity of decisions made by public authorities in the field of public law”.Footnote ¹⁹ Not the least of the puzzles to which this gave rise was—what is “the field of public law”?Footnote ²⁰ The English constitutional tradition following AV Dicey had been to deny that there was any public-private distinction in the French style.Footnote ²¹ It was therefore rather unexpected, and arguably unsatisfactory, that such a fundamental divide should appear in the interstices of the new judicial review procedure—although for anyone familiar with the history of the forms of action, not entirely unusual.Footnote ²² In truth the new-found distinction had shallow roots.Footnote ²³ A streamlined procedure was a flimsy basis on which to throw over Dicey and go back to Justinian, as Lord Denning put it.Footnote ²⁴

The courts subsequently became much more flexible in their interpretation of the “exclusivity” principle.Footnote ²⁵ Nevertheless, the issue of the public-private distinction had, however unintentionally, been raised, and was not going to go away. In addition to the O'Reilly-type cases in which government defendants argued that plaintiffs should have applied for judicial review there was a series of cases where applicants asked: “please may I use Order 53?” Their request was by no means always granted. The courts held that judicial review could not be used to challenge decisions taken in public sector employment,Footnote ²⁶ tendering for contracted-out services,Footnote ²⁷ and significantly for our story, decisions by the body responsible for the orderly conduct of greyhound racing.Footnote ²⁸

In parallel, however, were developments that seemed more encouraging for would-be judicial reviewers of the Jockey Club. In the great GCHQ case the House of Lords held that royal prerogative decisions were amenable to judicial review in the same way and on the same grounds, as applied to statutory powers.Footnote ²⁹ As Lord Scarman said, it was the subject matter of the power and not its source which was the decisive factor in determining the scope of judicial review.Footnote ³⁰ More radical still, the Court of Appeal reviewed a decision of the City Panel on Takeovers and Mergers in its ground-breaking decision in Datafin.Footnote ³¹ In Sir John Donaldson MR's words, that “truly remarkable body” oversaw “a very important part of the United Kingdom financial market…without visible means of legal support”. Although working closely with the Bank of England, the Panel had no statutory, prerogative or common law powers and no contract with any London businesses. But despite the absence of any de jure authority, the Takeover Panel “exercise[d] immense power de facto” in writing and applying the Code on Takeovers and Mergers. There were no legal sanctions for breach of the Code, but an adverse decision by the Panel would doubtless initiate action from the Stock Exchange and the Department for Trade and Industry. In short, the Panel's decisions enjoyed “invisible or indirect support…in abundance”. Given this immense de facto power, the Master of the Rolls said it was “unthinkable” that the panel should be “cocooned from the attention of the courts in defence of the citizenry”—viz. judicial review. The courts had to recognise the “realities…subtlety and sometimes complexity” of the way that executive power could be exerted. Lloyd LJ pithily relied upon Measure for Measure: “it is excellent to have a giant's strength, but it is tyrannous to use it like a giant.” The strength of the panel was a key factor in necessitating judicial control. The parallels with the argument for controlling the might of the Jockey Club (by Denning LJ in Russell v. Duke of Norfolk and the Court of Appeal in Nagle v. Feilden), are obvious.

JUDICIAL REVIEW OF THE JOCKEY CLUB

In a pair of cases in 1989 and 1990 the Divisional Court of the Queen's Bench expressed sympathy for the argument that the Jockey Club's decisions should be subject to judicial review.Footnote ³² However, the courts considered themselves bound by the earlier Law case in which the Court of Appeal had held that the National Greyhound Racing Club was not susceptible to review.Footnote ³³ In Ex parte Massingberd-Mundy, Roch J observed that the disciplinary functions of the Jockey Club were “strikingly similar”.Footnote ³⁴ Simon Brown J in Ex parte RAM Racecourses was the most reluctant of their Lordships to follow Law. In his view, all earlier cases required re-examination in the light of the “landmark” Datafin decision with its emphasis on the nature of the power rather than its source. Simon Brown J argued that just as government bodies discharging essentially private functions (like employment) were not subject to judicial review,Footnote ³⁵ so non-governmental bodies performing public functions should be reviewable. His Lordship indicated that the Jockey Club's prominent regulatory role was just such a public function.

The matter was finally resolved by the Court of Appeal's 1993 decision in the Aga Khan case that the Jockey Club was not amenable to judicial review.Footnote ³⁶ Sir Thomas Bingham MR accepted the applicant's contention that the Club wielded very great authority over a nationally important activity, which could fairly be described as public power. But it was, in the Master of the Rolls' view, fatal that the Club was “not in its origin, its history, its constitution or, least of all, its membership a public body”. The distinctive features of Order 53 procedure were designed for the protection of governmental decisions and “can scarcely have been envisaged as applicable in a case such as this”.

Hoffmann LJ agreed. “However impressive its powers may be, the Jockey Club operates entirely in the private sector and its activities are governed by private law.”Footnote ³⁷ The mere fact of power was not enough for judicial review, since the power might be private. There were various means of controlling private power, e.g. through contract and competition law. But if deficiencies existed “one should [not] try to patch up the remedies available against domestic bodies by pretending that they are organs of government”. This they were not. If the Jockey Club did not exist the Government would not, in Hoffmann LJ's view, feel obliged to step in and take its functions over. Noting similar observations about the Chief Rabbi, Hoffmann LJ argued that “The attitude of the English legislator to racing, is…akin to his attitude to religion: it is something to be encouraged but not the business of government.”Footnote ³⁸ It is worth noting that Bingham MR disagreed on this particular point. Rose J's comments in an earlier case that the Government would not step in to replace the Football Association if it disappeared will strike some today as unlikely,Footnote ³⁹ when in 2010 Prime Minister David Cameron and HRH Prince William very publicly supported the FA's bid to host the football world cup. As football sometimes appears to have become a secular religion, the parallel with the Chief Rabbi's case may be appropriate nonetheless.

The applicant advanced the argument that Nagle v. Feilden had been (as it were) a judicial review case avant la lettre—i.e. Simon Brown J's view in RAM Racecourses. Hoffmann LJ expressly disagreed with this view implicitly casting doubt on whether the “improvisatory” decision in that case had been correct. It should be noted that despite Hoffmann LJ's reservations Nagle v. Feilden has subsequently been taken to establish that domestic sports tribunals can be the subject of a declaration or injunction, even in the absence of a contractual relationship.Footnote ⁴⁰

Farquharson LJ placed particular stress upon the fact that a contract clearly existed between the Aga Khan, a racehorse owner, and the Club. In his Lordship's view, this “consensual submission to the Rules of Racing” rendered the situation a purely private or “domestic” one. Arguably, such a close focus on the source of the Jockey Club's power (in order to exclude judicial review) sits uneasily with the seminal decisions in Datafin and the GCHQ case. Moreover, as Farquharson LJ accepted, the contract was presented on a “take it or leave it basis” which undermined the reality of consent; no owner could enter horses without agreeing to the Club's Rules. But, he held, it was a consensual contract nonetheless and Donaldson MR in Datafin had accepted that the source of the power remained a relevant factor, if no longer determinative.

Even if these points are unconvincing and the focus on the contract formalistic, the court in Aga Khan clearly thought that private law control was more appropriate than judicial review. Farquharson LJ said there was no reason why the applicant should not seek a declaration or injunction using ordinary writ procedure, and indeed this might be “more convenient”. Bingham MR took a similar view and Hoffmann LJ specifically pointed to the Club's “implied obligation, under the contract to conduct its disciplinary proceedings fairly”, which was “entirely adequate” to ensure that justice was done. If the Club breached that obligation the court could declare that the decision had been ineffective, with, if necessary, an injunction to restrain its implementation. Thus it seems that the availability of judicial review remedies is not determinative of legal control of a sports governing body's decisions. This aspect of Aga Khan is arguably a symptom of a wider confusion that has perplexed the scope of judicial control of non-governmental bodies.

PROCEDURE AND SUBSTANCE IN THE PUBLIC-PRIVATE DISTINCTION

As described in the previous sections, the reformed (1977) Order 53 sparked great debate about when that procedure must be used and when it could be used (as with the cases considering the Jockey Club's amenability to an application for judicial review). But arguably this has been one enormous distraction from the underlying question: what control should the law exercise over powerful organisations? Should it matter whether the body in question is governmental or “public” in any sense? Pace Hoffmann LJ; should wielding impressive power be sufficient in itself to attract the supervisory jurisdiction of the High Court?

Increasingly such questions are being faced openly. One catalyst has been the Human Rights Act 1998. It is recognized that human rights can readily be infringed by other private individuals, companies or organisations. Thus, the law and the state may come under a positive duty to protect individuals from this kind of “horizontal” rights violation, in addition to the traditional negative duty not to infringe rights itself (i.e. “vertically”). This is delicate enough as a general question of human rights philosophy.Footnote ⁴¹ It has been made even more difficult in England by section 6 of the HRA which imposes a duty on “public authorities” to comply with the European Convention on Human Rights. This has led to a lively academic debate yet to be fully resolved by the courts, whether this entails—expressio unius est exclusio alterius—that there is no such duty on private parties and, if not, the degree to which the HRA has “horizontal effect”.Footnote ⁴² Note that under section 6(3)(b), a public authority includes “any person certain of whose functions are functions of a public nature”; this is quite different from the approach in Aga Khan.Footnote ⁴³ Section 6(3)(b) itself gives rise to problems in deciding what functions are of a “public nature”. It has proved particularly controversial in the area of contracted-out public services.Footnote ⁴⁴ But the HRA is raising the public-private distinction in a new and arguably more fruitful, way than the 1980s-90s litigation about the limits of judicial review procedure.

Some argue that the sheer power of some private bodies necessitates legal control beyond the human rights context. Sir Stephen Sedley argues that we should be equally worried, if not more worried, by corporate power than that of the state, “the sea in which, as citizens, we all have to swim, is inhabited not only by Leviathan—an alarmingly big but often benign creature—but by Jaws; and the law needs to be on the watch for both”.Footnote ⁴⁵ Professor Dawn Oliver has been a prominent advocate of the view that no systematic public-private distinction is necessary or even desirable.Footnote ⁴⁶ She has argued powerfully that the distinctive procedures and remedies of public law are no longer needed.Footnote ⁴⁷ As for the prerogative orders, ordinary declarations and injunctions perform the same function and Lord Woolf CJ has asked whether “there is any reason other than sentimentality, for retaining [them]”.Footnote ⁴⁸ Oliver also questions the need for a separate public law procedure. She tellingly notes that in Scotland there is no special process for applying for judicial review. Indeed in Scots law, the phrase “judicial review” describes the supervisory jurisdiction of the Court of Session, requiring broadly, legality, rationality and fair procedures, over both public and private decision-making.

Oliver's argument, then, is that the procedural and remedial distinctiveness of the English “application for judicial review” has obscured the underlying similarities in control of power right across the law. It is, she warns, erroneous to equate the substantive principles of control with the special remedies and procedures. We can see traces of this “error” in the Aga Khan case. As seen above, Sir Thomas Bingham MR refused the application for judicial review because the Jockey Club was not a governmental body and therefore not suited to the “special protection” of Order 53—even though his Lordship accepted that the Club was exercising public powers. This illustrates the confusion of which Oliver complains, but it is the fault of the procedural divide.

On a more encouraging note, Aga Khan also illustrates the potential for control of power even outside the formal “application for judicial review”. Again as noted above, the Court of Appeal emphasized that their decision did not leave the applicant without remedy. Hoffmann LJ specifically referred to the implied duties of fairness in the applicant's contract with the Club. The final stages in the Jockey Club saga illustrate the potential for control of power through “private law” doctrines.

CONTROLLING POWER THROUGH PRIVATE LAW

At first sight, it is surprising to suggest that “private law” is concerned with controlling individuals' and private organisations' decision-making. The basic ideology of property, contract and tort in English law is an individualistic one. Property-owners can do with it as they like; there is no doctrine of “abuse of rights” as found in Civilian systems.Footnote ⁴⁹ Contracting parties can contract with whom and on what terms they wish and are free to place their own interests first; there is no doctrine of good faith. Generally there is no liability in tort without fault; there is not even a general tort of intentional infliction of harm. These propositions are vouchsafed by such pillars of the common law as Allen v. Flood and Bradford Corporation v. Pickles.Footnote ⁵⁰

This non-interventionist stance has led some to question the traditional Diceyan position (now championed by Dawn Oliver) which denies the need for a separate system of public law. A notorious example of that model's failings is Malone v. Metropolitan Police Commissioner.Footnote ⁵¹ The police had tapped the plaintiff's telephone without any legal basis for doing so but Sir Robert Megarry V-C held that no wrong had been committed since there was at that time no tort of phone-tapping (invasion of privacy) in English law.Footnote ⁵² The police, like everybody else, were able to rely on the principle of liberty that anything which is not made illegal is permitted. The Commissioner did not need to show specific authority for what the police had done, any more than a man had to show his right to smoke in the streets.Footnote ⁵³ Interestingly in the present context, Mike Taggart argues that this Diceyan approach would be tolerable if private law extended the reach of its remedies—for example by developing a doctrine of abuse of rights.Footnote ⁵⁴

It is, naturally, controversial to suggest that to curb the power of the state we should remove the presumption of freedom from all private individuals too! But those who stand firm against a public-private distinction, like Dawn Oliver, do accept that private law's regulatory role must be strengthened and developed. There are signs that this is being recognised in legal doctrine. Some years ago, Sir Jack Beatson drew attention to “public law influences in contract law”.Footnote ⁵⁵ Subsequently, the courts have implied terms to control discretionary powers vested in such diverse parties as mortgage lenders,Footnote ⁵⁶ reinsurers,Footnote ⁵⁷ and employers.Footnote ⁵⁸ Beatson's essay has proved prescient.Footnote ⁵⁹

The courts have acted on the suggestions in Aga Khan that such contractual techniques can be used to review decisions of the Jockey Club. In the Bradley case a bloodstock agent and former jockey, was disqualified for breaching several of the Rules of Racing. The disciplinary committee of the Jockey Club initially imposed a seven-year disqualification which was reduced by the Club's appeal board to five years. On the premise, following Aga Khan, that judicial review was not available, Mr Bradley's claim was advanced primarily in contract; he alleged breach of an implied term that any sanction imposed for breach of the Rules would be a proportionate one. Richards J agreed that there was an implicit term that the Club “would not implement any penalty or sanction beyond that lawfully decided on by the Appeal Board”.Footnote ⁶⁰ This was supported by authority;Footnote ⁶¹ Richards J was upheld by the Court of Appeal.Footnote ⁶² His Lordship emphasized that the Club did not owe a duty to reach correct disciplinary decisions but only lawful (in casu, proportionate) ones. In other words, his role was “limited to the supervisory function of reviewing the lawfulness of the Appeal Board's decision and it is not for the court to substitute its own judgment or decision”.Footnote ⁶³ Richards J expressly drew parallels with the court's supervisory jurisdiction in judicial review proceedings, noting that it would be “surprising and unsatisfactory” if the approach to domestic bodies differed, given the difficulties that could arise in determining the boundaries of judicial review in such cases.Footnote ⁶⁴ For good measure, Richards J held that even if there had been no contract at the relevant time the applicable principles were identical: Nagle v. Feilden remained good law.

Although Mr. Bradley's victory was Pyrrhic and the courts declined to condemn the penalty imposed as disproportionate, the case draws the sting from the contemporary decision in Mullins that Aga Khan remained good law and the Jockey Club still could not be judicially reviewed.Footnote ⁶⁵ Indeed, the irrelevance of judicial review procedure for the substance of legal control is shown by the transfer of Mullins into “ordinary” Queen's Bench procedure where the Club's decision was unsuccessfully reviewed by the same judge.Footnote ⁶⁶