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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bradley v Jockey Club [2005] EWCA Civ 1056 (12 July 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/1056.html Cite as: [2005] EWCA Civ 1056 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CIVIL DIVISION
(MR JUSTICE RICHARDS)
Strand London, WC2 |
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B e f o r e :
(Lord Phillips)
LORD JUSTICE BUXTON
LORD JUSTICE SCOTT BAKER
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GRAHAM BRADLEY | Appellant/Claimant | |
-v- | ||
THE JOCKEY CLUB | Respondent/Defendant |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR M WARBY QC (instructed by Charles Russell) appeared on behalf of the Respondent
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Crown Copyright ©
The Facts
"(1) Rule 2004(iv)
by giving or offering to give on various dates during the term of his licence information concerning horses entered in races under the Rules of Racing in return for monetary consideration, other than the receipt of a reasonable fee for giving an interview to the Press or other legitimate news gathering organisation for the purposes of general publication . . .
(3) Rule 62(ii)(c)
by receiving presents in connection with a race on various occasions during the term of his licence from persons other than the Owner of the horse ridden by him in that race . . .
(4) Rule 220(vii)(b)
by providing false information to the Licensing Committee of the Jockey Club on 21 June 1999, namely statements to the effect that he . . . had never done anything wrong with Mr Brian Brendan Wright . . .
(5) Rule 220(viii)
by means of the statements mentioned above, endeavouring by an overt act to mislead the members of the Licensing Committee . . . "
There were a number of lesser charges which are of no relevance in the present context.
(a) The seriousness of the offences.
(b) The length of time covered by the breaches of Rules 62(ii)(c) and 204(iv) which the Disciplinary Committee found to have taken place from 1984 to 1999 inclusive.
(c) The requirement that the penalty should act as a deterrent to other jockeys.
"[A] disqualified person, so long as his disqualification lasts, shall not:
. . . (iv) enter any racecourse, stands, rooms, enclosures and other places owned or used by the Stewards;
(v) except with the permission of the Stewards . . . be employed in any racing stables;
(vi) deal in any capacity with a racehorse . . . "
Rule 220 further provides:
"(iv) No person shall without permission of the Stewards of The Jockey Club associate in connection with horseracing . . . with any person known to be disqualified . . . from any premises owned or licensed by the Stewards, whether or not constituting a breach of the . . . Rules of Racing."
"The appeal board held that the imposition of a disqualification order would debar Graham Bradley from dealing as a bloodstock agent. As such, the imposition of the disqualification order would operate in restraint of trade. Under the common law restraint of trade doctrine, it is not open to the Jockey Club to prevent Graham Bradley pursuing his trade as a bloodstock agent by the imposition of a disqualification order to an extent which is not justifiable or reasonable and proportionate in the interests of the parties and the public."
The Decision of the Appeal Board
"Counsel are agreed that the test of proportionality which we must apply in this case is the definition stated by Lord Clyde in DeFreitas v Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at page 80 in the following terms whether:
(i) the legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are rationally connected to it; and
(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.
In Colgan v The Kennel Club, Cooke J at paragraph 42 stated that:
'In order to apply the proportionality test here, it is necessary to replace the words 'the legislative objective' with 'the objective or objectives of the disciplinary procedures'.
In applying this test it is appropriate that we consider whether the objective of the disciplinary procedure is sufficiently important to justify limiting the fundamental right of Mr Bradley to work in his business. Put in more specific terms, this means that we had to consider the importance of protecting the integrity of racing against the impact on Mr Bradley of disqualifying him for such a period as puts his bloodstock business either in serious jeopardy or at an end. In determining what penalties we impose against these objectives, we look to a penalty that reflects three main elements: namely punishment, deterrence and prevention. We then have regard to subparagraphs (2) and (3) of the proportionality test set out above."
"The bloodstock business supports the family. His house is subject to £120,000 mortgage and he has no reserves of capital on which to rely. We were told that if a disqualification continues for any length of time, the business will not survive. We bear in mind that his business needs him now rather than in a few years time when he may be less active. He has put a lot of hard work into his business and of course he is deeply concerned that this should not be destroyed."
The conclusions of the Appeal Board are encapsulated in the following extracts from their decision:
"Mr Bradley's regular dealings over a period of ten years receiving presents and monetary reward must be seen as self standing. We have set out above how vital it is for integrity to be maintained if the continued well being of racing is to be preserved. We have indicated our concern at the extent of privileged information that was being passed to the Racing Organisation. The extent of the privileged information used to distort the betting market indicates to us that an element of deterrence is justified in the penalty even though Mr Leach has pointed out that there has only been one other established breach of these Rules since 1978 . . . .
Finally, for the reasons given above, we think that disqualification is the appropriate penalty. It follows that we do not think it appropriate to take up the alternative course of a qualified extension. Having regard to all these factors we have considered the criteria of proportionality. Having carried out that exercise we substitute five years disqualification for the eight years imposed by the Disciplinary Committee."
Richards J's Approach to His Task
"37 that brings me to the nature of the court's supervisory jurisdiction over such a decision. The most important point, as it seems to me, is that it is supervisory. The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits. It is a review function, very similar to that of the court on judicial review. Indeed, given the difficulties that sometimes arise in drawing the precise boundary between the two, I would consider it surprising and unsatisfactory if a private law claim in relation to the decision of a domestic body required the court to adopt a materially different approach from a judicial review claim in relation to the decision of a public body. In each case the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . .
(40) . . . The supervisory role of the court should not involve any higher or more intensive standard of review when dealing with a non-contractual than a contractual claim . . .
(43) Of course, the issue in the present case is not one of procedural fairness but concerns the proportionality of the penalty imposed. To my mind, however, that underlines the importance of recognising that the court's role is supervisory rather than that of a primary decision-maker. The test of proportionality requires the striking of a balance between competing considerations. The application of the test in the context of penalty will not necessarily produce just one right answer: there is no single 'correct' decision. Different decision-makers may come up with different answers, all of them reached in an entirely proper application of the test. In the context of the European Convention on Human Rights it is recognised that, in determining whether an interference with fundamental rights is justified and, in particular, whether it is proportionate, the decision-maker has a discretionary area of judgment or margin of discretion. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests.
The same essential approach must apply in a non-ECHR context such as the present. It is for the primary decision-maker to strike the balance in determining whether the penalty is proportionate. The court's role, in the exercise of its supervisory jurisdiction, is to determine whether the decision reached falls within the limits of the decision-maker's discretionary area of judgment. If it does, the penalty is lawful; if it does not, the penalty is unlawful. It is not the role of the court to stand in the shoes of the primary decision-maker, strike the balance for itself, and determine on that basis what it considers the right penalty should be.
Mr Higginson, who was counsel for Mr Bradley, cited Daly v Secretary of State for the Home Department [2001] 2 AC 532 in support of his submissions on the correct approach of the court towards the issue of proportionality. I see nothing in Daly that is inconsistent with the views I have expressed above. The importance of the court limiting itself to a supervisory role of the kind I have described is reinforced in the present case by the fact that the Appeal Board includes members who are knowledgeable about the racing industry and are better placed than the court to decide on the importance of the Rules in question and decide the weight to be attached to breaches of those Rules. I treat the Appeal Board as the primary decision-maker since, although its function under Appendix J of the Rules of Racing is largely a review function, it is found that the penalty imposed by the Disciplinary Committee was disproportionate and, as it had power to do, substituted a penalty of its own as a proportionate penalty.
"(1) He erred in his assessment of the court's function in respect of its reviewing power, particularly in relation to a decision as to penalty.
(2) He wrongly held that in the context of modern law the court's jurisdiction is merely supervisory and not capable of extension to the role of primary decision-maker . . .
(4) He wrongly held that the court's jurisdiction in this respect was similar to that of a court on judicial review.
(5) He wrongly applied quasi-judicial review concepts and tests in the modern and different context of this case, being a review of a penalty imposed by a domestic tribunal in 2003.
(6) He erred in considering that he should not scrutinise and/or interfere with the decision of the Appeal Board of the Jockey Club directly and/or by stepping into its shoes."
As I understand it, it was these contentions which led the Vice Chancellor, Clarke LJ, to give permission to appeal in this case. These contentions have, however, been abandoned by Mr Glen who has made no challenge to the approach adopted by Richards J, as opposed to his conclusion as to the result of that approach. I have cited the relevant passages from the judgment of Richards J because I am satisfied that they correctly state the law and do so with a clarity that I could not hope to better.
The Remaining Issue
"Basically we say that this disqualification order is an excessive interference with the appellant's right to work because it ruins his business altogether. It is the duty of the High Court to protect his right to work. This is an important duty when the appellant faces a powerful club (on which it is estimated 100,000 people depend for their livelihood). . . . This sentence involves destruction of the appellant's business with consequent loss of start-up costs. The order is so wide-ranging that there is no real scope for any work with racehorses. The effect upon his proposed career as a bloodstock agent will be even longer than five years because the prospect of starting up again is uncertain to say the least."
"It is of the utmost importance that we make fully clear that we decide this case upon such evidence as has been presented by the parties and is admissible and relevant. We have not allowed ourselves to be influenced by any views, whether prejudicial, critical or otherwise, expressed by others, whether through the media or elsewhere about the alleged nature of Mr Bradley's conduct, or his alleged associates."
"Having directed itself correctly and given prompt consideration to all relevant matters, the Board then carried out, as it was required to do, a careful balancing exercise looking on the one hand at the important purpose served by the Rules and the seriousness of the breaches of those Rules; and on the other hand at the mitigation and at the impact of disqualification upon the claimant and his family."
He concluded that the Board was fully entitled to conclude, as the final result of its balancing exercise, that a period of five years disqualification was a proportionate penalty. This conclusion was plainly correct.
"Lest I am wrong about the nature of the court's function in reviewing the Appeal Board's decision, I have endeavoured to form a judgment about the period of disqualification that I would have thought appropriate had I been carrying out my own separate balancing exercise in the application of the principle of proportionality. It is not an easy or satisfactory task, since I do not have the same experience of the industry as did members of the Appeal Board and it is very difficult to put altogether out of mind the judgment reached by the Board itself on the issue. Doing the best I can, however, I do not think that I would have decided on any lesser period of disqualification as the proportionate penalty had I been standing in the shoes of the Board."
"This is a hopeless appeal. I would dismiss it."
Order: Appeal dismissed. Costs awarded in favour of the respondent.