The Referrals Committee, Ms. Susan Ahern (Chairperson), Mr. Anthony Byrne and Mr. Finbar Cahill, convened at the Offices of the Irish Horseracing Regulatory Board on Friday, 15 December 2023 to consider whether or not Mr. Anthony Costello (Handler) was in breach of any Irish National Hunt Steeplechase Regulations for Point to Point Steeplechases as a result of a report received from LGC Laboratories, Newmarket, England.

The report received on 2 March 2023 confirmed that the blood sample taken from Asian Master following his win in the Linnanes Lobster Bar, Conoles Bar & Sixmilebridge Co-op MartMaiden Race for 6-Year-Old & Upwards geldings on 5 February 2023, was confirmed by LGC Laboratories to contain dexamethasone. Under Rule 20 (v) and Regulation R14 of the Regulations dexamethasone is a substance capable of causing an action or effect, or both an action and effect, within several mammalian body systems. 

The option of ‘B’ Sample analysis was declined by Mr. Costello, thus accepting the ‘A’ Sample.

Evidence was heard from Mr. Costello and Dr. Lynn Hillyer, IHRB Chief Veterinary Officer and Head of Equine Anti-Doping.

A full written decision was issued to both parties on behalf of the Referrals Committee on Thursday 1 February 2024 and is set out below:

Parties:                                                   Irish Horseracing Regulatory Board (“IHRB” or the “Applicant”)

Represented by Ms. Clíodhna Guy, IHRB Head of Licensing, Legal and Compliance

• AND -

Mr. Anthony Costello (“Handler” or the “Respondent”)

Represented by Mr. Andrew Coonan, Coonan Cawley Solicitors LLP

Witnesses:                                 IHRB:

 Dr. Lynn Hillyer, Chief Veterinary Officer / Head of Anti

 Doping IHRB    

                                                                     Respondent:

 Mr. Anthony Costello

 

In attendance:                                 Ms. Shona Murphy, IHRB Communications Executive

 

Background Facts

1. The Irish National Hunt Steeplechase Regulations for Point to Point Steeplechases (the “Regulations”) apply to the instant proceedings as they were in place at the time of the sample collection.
2. This matter relates to an adverse analytical finding (“AAF”) in a sample collected from a horse trained by Mr. Costello called Asian Master, following his win in the 6 Year Old and Upwards Geldings Maiden at Bellharbour Point to Point on 5 February 2023 (the “Race”). The AAF related to the presence of dexamethasone in a blood sample (no. 10541328) (the “Sample”).
3. On 16 February 2023 the IHRB was notified by the LGC Laboratory that there was a screening finding for dexamethasone in the Sample. Confirmatory analysis was conducted and the LGC Laboratory Certificate of Analysis issued on 2 March 2023, confirmed an AAF for dexamethasone.
4. On 8 March 2023 Mr. Costello confirmed that he accepted the analysis of the ‘A’ Sample identified the presence of dexamethasone and did not request that the ‘B’ Sample be analysed.
5. Dexamethasone is a corticosteroid with anti-inflammatory and analgesic properties used to treat a variety of conditions in horses including lameness and respiratory disease. Dexamethasone is a substance capable of causing an action or effect, or both an action and effect, within several mammalian body systems. It is available in several licensed products for sale in Ireland.
6. Under Rule 20(v) and Regulation 14 of the Regulations, dexamethasone is listed as a Prohibited Substance and is prohibited on race day pursuant to Rule 96(a) of the Regulations.
7. Following the positive screening, an investigation was initiated by the IHRB which included the carrying out of an unannounced inspection at the Respondent’s licensed premises on 28 February 2023 by members of the IHRB Veterinary team. The following details emerged:

• A virtual Medicines Register was found to be kept by the Respondent in the calendar on his mobile phone. Entries for January and February 2023 recorded that of Mr. Costello’s horses,
  • Two Outta Three (2018 brown gelding) was administered 2ml Dexadreson® via nebulisation for 5 days from 30 January; and
  • Asian Master (2017 bay gelding) was administered Hyalusol via nebulisation for 5 days from 31 January to 4 February 2023.
• The prescription for Dexadreson® 50ml dated 30 January 2023.

 

8. Lynn Hillyer arranged with Mr. Costello to analyse the equipment (Flexineb Medication Cup) that he had used to nebulise Asian Master together with the Hyalusol at the LGC Laboratory. Dexamethasone was confirmed in the nebulisation cup used to treat Asian Master, and no dexamethasone was found in the Hyalusol phial.
9. On 5 September 2023 the Respondent was notified that this matter was being submitted to a Referrals Committee for hearing and was provided with the documentation pack and witness list. The Respondent was charges with a breach of the following Rule:

“1.       Rule 96 (a) in respect of the adverse analytical findings;”

 

10. The background facts are not in dispute between the Parties.
11. The Referrals Committee was appointed by the IHRB on 8 December 2023, to consider the matter.

Relevant Rules

12. Rule 20

“The Directors of the IHRB have all the powers of the Stewards and the following additional powers….

(v) To publish from time to time in such a manner as they deem appropriate:

 (a) a schedule of prohibited substances including any thresholds therefor and

(b) regulations for the taking of Samples. The current version of which schedule (“Schedule of Prohibited Substances”) and regulations is contained in Regulation R14 Appendix C “Regulations Relating To The Taking Of Samples From Horses”.”

 

13. Rule 96(a): “When a Horse has been examined or tested and Samples taken pursuant to Rule 18 and such examination or test or an analysis of such Samples shows the presence of any Prohibited Substance, unless the concentration of the Prohibited Substance is below the threshold level for that substance (if any) as set out in the Schedule of Prohibited Substances, it shall be a breach of these Rules and the Referrals Committee or the Appeals Body as the case may be, may direct that:

• the Horse be restricted from running for such time as it shall determine;
• the Horse be disqualified for the Race(s) in question, the placings amended and the stake forfeited;
• the Trainer of the Horse be fined not less than €1,000; and/or
• the Trainer’s licence be withdrawn for such period as it may consider appropriate.

However, the Referrals Committee or the Appeals Body, as the case may be, may waive the fine if it is satisfied that the Prohibited Substance was administered unknowingly and that the Trainer had taken all reasonable precautions to avoid a breach of this Rule…”

14. Rule 271: “The standard of proof to be applied in all Stewards’ Enquiries and in all cases before the Licensing Committee, the Referrals Committee or the Appeals Body shall be the balance of probabilities”.

The Hearing

15. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the hearing. Additional facts and allegations found in the parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows.  While the Committee has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in its Decision only to the submissions and evidence it considers necessary to explain its reasoning. 
16. The Respondent at the outset of the proceedings:

• (i) acknowledged that this was an error on his part
• (ii) accepted the AAF for the presence of dexamethasone in the Sample of Asian Master and that a breach of Rule 96(a) occurred.

17. In light of the above admissions, this case concerns the Respondent seeking to establish that the dexamethasone was administered unknowingly and that he had taken all reasonable precautions to avoid a breach of Rules 96(a) and applicable sanction (if any) that might apply to the admitted breach.

Submissions on behalf of the Applicant

18. The IHRB set out the background to the Sample collection from Asian Master and the establishment of the positive finding for Dexamethasone in his Sample which was accepted by the Respondent. It submitted that during investigation of the post-race finding, “a probable source of the AAF was identified in that dexamethasone was confirmed in the equipment used to treat Asian It appears from the evidence that Mr. Costello did not take all reasonable precautions to avoid the AAF.”
19. Therefore, the IHRB submitted they had met their burden of proof and a breach of Rule 96(a) had occurred, and it was a matter for the Referrals Committee to consider the appropriate sanction. Reliance was also placed upon the expert evidence and testimony of Dr. Lynn Hillyer.

Evidence of Dr. Lynn Hillyer

20. As the Chief Veterinary Officer and Head of Anti-Doping of the IHRB Dr. Hillyer gave evidence inter aliaof the screening process for drugs and the confirmatory process. That the Prohibited Substance found in Asian Master’s Sample was dexamethasone, that was confirmed by LGC laboratory and the accompanying documentation.
21. She explained that dexamethasone is commonly used by vets to treat respiratory disease or when a horse is lame. If the substance is reported in the plasma of a horse, as it was here, then it has an enhancing effect. There is no screening limit for dexamethasone when it is found in plasma unlike when found in urine, where it has a screening limit of 200 pg/ml.[1]
22. When administered by intravenous injection as the clear liquid dexamethasone at a single dose of 15 ml for a 500 kg horse, the European Horserace Scientific Liaison Committee published detection time for dexamethasone is 5 days. Therefore as a general rule for vets, the baseline to determining a withdrawal time is to add c50% to the detection time to enable the substance to have vacated the horse’s system before competing.
23. The Respondent used a nebuliser to treat two of his horses for two different issues. Dr. Hillyer stated that nebulisation is a good way to treat a horse as by aerosolising the medication it goes directly into the lungs of the horse in a targeted way and is very effective. Dexadreson® was used under prescription by the Respondent to treat his horse Two Outta Three. The appropriate prescription was in place for the medical treatment of this horse.
24. The LGC Laboratory subsequent to the AAF examined a Hyalusol phial and the Flexineb medication cup. Dexamethasone was found to be present in the tested cup. There was sufficient evidence of dexamethasone being used on the premises of the Respondent at the same time as the AAF arose. There was no evidence of contamination in the product Hyalusol.
25. While a possible explanation for the source was cross contamination involving the nebuliser, Dr. Hillyer was of the view that because there were two different cups utilised for the nebuliser and two medications with different properties (one being viscous and the other aqueous) it is unlikely that they would have been mixed up. She did indicate that while it would be possible to put an aqueous solution into a cup designed for a more viscous solution it was not likely that this could occur in reverse. She did accept that it made ‘common sense’ that dexamethasone (an aqueous substance) could have been put into the wrong cup and ended up in Asian Master.
26. When questioned about the likelihood of residue in the chamber of the nebuliser Dr. Hillyer indicated that this was possible, that the substance could have stuck to the walls, but her view was that it would not detach in sufficient concentrations to result in the AAF for Asian Master. A horse has 60 litres of circulating blood. Her view was that to detect a substance post-race it has to be in the blood in sufficient quantities pre-race to result in an AAF and that deriving such quantities from micro particles from a nebuliser was implausible. There was also no study of which she was aware which addressed this issue of trace contamination and the minimum amount that would be needed for detection purposes.

Submissions on behalf of the Respondent

27. Position was that this was a contamination case cause either by a situation where Asian Master was either (i) wrongly given Dexadreson®, which contains dexamethasone, which was prescribed for another horse or (ii) there was contamination of the cup / chamber of the nebuliser which contained remnants of Dexadreson® administered to another horse, sufficient to give a positive finding.

 

28. In addition the Respondent submitted a report from veterinarian Mr. Tom O’Brien MVB DACVS of Sycamore Lodge Equine Hospital dated 8 December 2023 (the “Report”), who addressed the method of dispensation of medication including dexamethasone as a nebulised medication.

 

Evidence of Anthony Costello

29. The Respondent gave evidence around the treatment of his two horses. Asian Master was suffering from Inflammatory Airway Disease and was treated with Hyalusol administered via a nebuliser using a device specifically designed for this purpose from 31 January to 4 February 2023. Separately, his horse Two Outta Three was being treated with Dexadreson® administered by nebuliser during the same period from 30 January to 3 February 2023.

 

30. The Respondent indicated that in the early stages of his use of the (sole) nebuliser he had difficulty getting the Hyalusol to go through the cup. He sought advice in December 2022 from a vet, who tested the apparatus and concluded that it was fine but a different cup was required for the more viscous liquid. The Respondent then bought two cups, a Green Cup for the Hyalusol and a Blue Cup for the Dexadreson®. Evidence of the relevant purchases from Gortlandroe Veterinary Clinic was provided:

11 Oct’23:             Flexineb E3 Nebuliser and Flexineb RP-01-Green Cup

12 Dec’23:            Flexineb RP-01-Blue Cup and Flexineb RP-01-Green Cup

 

31. The nebuliser and the cups (Green and Blue) were produced at the hearing and demonstrated to the Committee. An explanation was provided with regard to the purposes of the use of the cups and this is most usefully summarised in the terms expressed in the Report of Mr. O’Brien:

“The most common device used in racing yards is the Flexi Neb system. This nebuliser aerosolises the medication via dedicated cups, depending upon the substance in question. The aerosolised medication enters a chamber and is inhaled by the horse. This is a relatively expensive piece of equipment (€1,000 approximately) and generally yards only have one device that is shared between horses. Different cups are used to aerosolise different types of medications. This raises issues that include inadequate cleaning between uses may result in drug residue remaining in the device. Furthermore, cross contamination through the use of the same cup for different medications through user error is also a possibility (…)

The main chamber of the device is a fixed part of the apparatus. The cups are detachable. The issue with cross contamination can arise even when a medication is administered in one cup, that cup is changed and a second horse is nebulised. The Main Chamber of the device may retain a residue of the initially nebulised substance. It would seem logical that changing cups and cleaning the Main Chamber would prevent cross contamination but this may not be sufficient…”

32. The Respondent gave evidence of the care and attention which he applied in administering the medication to the two horses separately and utilising respectively the Green Cup for Hyalusol to Asian Master and the Blue Cup for Dexadreson® for Two Outta Three. He said he was the only person in the yard allowed to utilise the nebuliser and detailed the care that he took in doings so. He explained that he cleaned the nebuliser and the cups using anti-bacterial wipes and a saline solution respectively in accordance with the user instructions, noting that it was difficult to disinfect the chamber of the nebuliser (as there was no access) and the inner edge of the mask.

 

33. He explained that he did not believe he had mixed up the medications as Dexadreson® is a clear aqueous substance and Hyalusol is a cloudy viscous substance and they are easily distinguishable from each other. He genuinely believed that he had not mixed up the medications or utilised the wrong cups to administer the medication and had taken all due care in that regard. He also confirmed that “to the best of my knowledge” the Flexineb Medication Cup provided to the LGC Laboratory was the one he had used to nebulise Asian Master. He also noted that one of the cups “was missing a sticker”.

 

Decision

34. In accordance with Rule 271 the standard of proof to be applied to this matter is the balance of probabilities and this is the standard which was applied by the Committee.
35. Rule 96(a) provides that if an anti-doping samples shows the presence of any Prohibited Substance, unless the concentration of the Prohibited Substance is below any threshold level for that substance as set out in the Schedule of Prohibited Substances, it shall be a breach of the Rules. The (blood) Sample collected from Asian Master was found to contain dexamethasone – for which there is no minimum threshold; its presence is sufficient.
36. The presence of dexamethasone was fairly admitted by the Respondent at the outset.
37. The Committee considered the two basis of defence put forward by the Respondent. First the contamination defence and second the possibility that the Respondence could have administered the wrong medication to the wrong horse. In making such assessment, the Committee was struck by the overlap of evidence which affected both propositions and in particular the nature of the equipment which was at the centre of the administration of the two medications to the Respondent’s horses:

• The co-terminus treatment of the horses in the 6 days prior to the Race, one of whom (Two Outta Three) was treated using prescribed Dexadreson® which contains dexamethasone;
• In the LGC Laboratory analysis, dexamethasone was confirmed in the nebulisation cup used to treat Asian Master, and no dexamethasone was found in the Hyalusol. It was noted by the Committee that the post-AAF analysis of these products at the LGC Laboratory was done in the absence of a chain of custody and it was done on the basis of trust. The Committee accepted that Hyalusol was not the source of the dexamethasone, but could not determine from the evidence on the balance of probabilities that the tested cup was the one used to treat Asian Master and therefore could not draw a conclusion from the finding of dexamethasone in the tested cup;
• The use of the same method of application of the medicines, by nebuliser, using the same apparatus;
• The cups were to the visual eye identical save for the sticker on their exterior, which was either Green or Blue. In one case a cup had no sticker;
• The fact that even with proper cleaning of the nebuliser and mask there remained the risk that the fixed part of the apparatus e.g. the Main Chamber and/or the rim of the mask may contain residue of an earlier used substance and that cross contamination could occur.

38. Identification of the source of the Prohibited Substance remains a crucial factor in deciding if the Respondent has succeeded in discharging his burden of proof of demonstrating to the Committee that the Prohibited Substance was administered unknowingly, and that the Handlerhad taken all reasonable precautions to avoid a breach of the Rule 96(a). In this regard the Committee was satisfied that the source of the dexamethasone came from the Dexadreson® medication in the Respondent’s yard and that given the similarity in the nebuliser cups, the fact that one cup had a missing sticker, the fact that dexamethasone could be administered through either the Green or the Blue cups given its aqueous properties, it was more probable than not that the Respondent has administered the wrong medication to Asian Master and had done so unknowingly.
39. In relation to the question of whether the Respondent had taken all reasonable precautions, the Committee took into account the following additional factors:

• The IHRB Inspection of the Respondent’s yard resulted in a very high rating, accepted by Dr. Hillyer as being ‘five star’, demonstrating the care and attention which is put into the operation.
• The evidence given by the Respondent in his own case at the hearing was compelling.
• Further, the maintenance of the Respondent’s medicines register and the evidence of veterinary advice he had taken from a number of sources with regard to the treatment of his horses was an indicator to the Committee that that the Respondent had taken all reasonable precautions to avoid a breach of Rule 96(a).

 

Sanctions

40. In considering the appropriate sanctions the Committee has regard to the principle of proportionality and considers both aggravating and mitigating factors. The Committee did not consider there were any aggravating features.
41. In relation to mitigation the Committee took cognisance of the following factors;

• the early admissions made by the Respondent and he dispensed with the need for the B Sample to be analysed, thus saving time and expense;
• his full co-operation with the disciplinary process from the outset, which was acknowledged by Dr. Hillyer;
• the Respondent’s yard is a family run operation with three horses (at the time of the AAF) which are trained and used primarily by the Respondent’s son in Point to Point races. Both the Respondent and his son had waited for 4 years for Asian Master to be in contention as a Point to Point winner and they entered him at their local meet believing they could win there. The Respondent stated that he would not do anything to jeopardise that in any way;
• that the Respondent runs his yard in a meticulous fashion and takes no short cuts, as evidence by his exemplary yard investigation report from the IHRB;
• the Respondent’s genuine remorse for what had occurred;
• the Respondent suffered embarrassment and considered that there was significant reputational impact for him arising from the AAF;
• this is the very first occasion where the Respondent has been in breach of the anti-doping Rules of the IHRB or been before a disciplinary committee. He has a long-standing clean record over 30 years of being a licence holder with the IHRB; and
• he has since spoken to his vet and also purchased a second nebuliser for use in a yard with 3 horses to ensure there is no repeat of the occurrence.

42. The IHRB submitted that it was seeking by way of sanction in this case, disqualification of the horse Asian Master from the Race with the consequent forfeiture of the stake and prize money, the imposition of a fine of €1,000 on the Respondent on the basis that this was a first time offence, the substance in question and the need to uphold the anti-doping rules of the sport.
43. The Referrals Committee has the power vested in it pursuant to Rule 19A and Rule 96(a) to impose sanctions for established breaches of the Rules.
44. In relation to the breaches of Rule 96(a), the Committee determines that the appropriate sanction is that:

• (i) The horse Asian Master is not restricted from running.
• (ii) The horse Asian Master shall be disqualified from the 6^th Race at the Bellharbour Point on 5 February 2023, the stake forfeit and the placings in the race shall be altered accordingly.
• (iii) The mandatory €1,000 fine shall be waived on the basis that the Committee is satisfied that the Prohibited Substance was administered unknowingly and that Anthony Costello had taken all reasonable precautions to avoid a breach of Rule 96(a).

45. The right to appeal this written decision within seven days exists to the Appeals Body in accordance with Rule 256.

 

The case was presented by Ms. Clíodhna Guy, IHRB Head of Legal, Licensing and Compliance. Mr. Costello was represented by Mr. Andrew Coonan of Coonan Cawley Solicitors, Naas, Co. Kildare.

 

[1] International Screening Limits (“ISL”) are scientifically determined harmonised limits set by the International Federation of Horseracing Authorities (“IFHA”) following input by international consensus, as are the detection limits to be used by the laboratories when screening for certain therapeutic substances. Above the screening limit the relevant drug has an effect and below the screening limit it does not.