The Appeals Body, Justice Peter Kelly (Chairman), Mr Laurence McFerran and Dr Paddy Molony convened at the Offices of the Irish Horseracing Regulatory Board on Wednesday 22, Thursday 23 and Friday 24 May 2024 to consider the appeals of Luke Comer (Trainer) and the Irish Horseracing Regulatory Board (IHRB) in relation to the decisions of the Referrals Committee on finding issued on 13 July 2023 and on sanctions on 23 September 2023 following a hearing on 15–25 May 2023.

The grounds of appeal lodged by Mr Comer are listed below:

1. The Referrals Committee erred in deciding that the Prohibited Substances at issue were not administered unknowingly;

2. Without prejudice to the generality of the foregoing, the Referrals Committee’s finding that allegedly inadequate supervision or security (which are denied) “facilitated” the adverse analytical findings, imports an acceptance that the substances were not deliberately administered by or on behalf of Mr Comer;

3. The Referrals Committee erred in deciding that Mr Comer had failed to take all reasonable precautions to avoid a breach of Rule 96 of the Rules of Racing;

4. The Referrals Committee erred in its appraisal of Professor Kintz’s evidence and/or its decision not to attach weight to the concerns he expressed regarding the use of hair as a sole matrix for equine anti-doping testing and the Referrals Committee erred in relying on the analysis of hair as a sole matrix in the circumstances;

5. Having decided to accept evidence that hair was appropriate for use as a matrix for equine anti-doping testing (and having thereby fallen into error), the Referrals Committee erred by failing to engage with the evidence regarding the limits of its utility, or decisions by other regulators to suspend its use;

6. The Referrals Committee erred in failing to deal with the uncontested expert evidence that the levels of the substances found in hair samples taken from Mr Comer’s horses would not be reported as adverse analytical findings, if found in human hair, or the reasoned basis for this opinion, or to explain (whether adequately or at all) why it discounted that evidence;

7. The Referrals Committee erred in deciding that hair was safe or appropriate to be used as a sole matrix for equine anti-doping testing;

8. The Referrals Committee erred in discounting environmental contamination (in the broad sense) as the provenance of the adverse analytical findings in suit;

9. The Referrals Committee erred by failing to decide whether, on the balance of probabilities, the reported adverse analytical findings were consistent with contamination or unknowing administration on the one hand, or deliberate administration on the other;

10. The Referrals Committee erred in discounting the ingestion of contaminated hay or other environmental contamination as the likely provenance of the adverse analytical findings, on the basis that some horses who had been fed “good hay” tested positive and some did not;

11. The Referrals Committee erred in discounting the evidence given by Mr Gough and/or the contents of his expert reports and/or the finds reported therein.

12. The Referrals Committee erred in failing to explain (whether adequately or at all) its decision not to accept the analysis contained in the JHG report;

13. The Referrals Committee failed to have any or any adequate regard to the fact that the criticisms made of the JHG reports were principally that those reports did not provide sufficient data to confirm these findings beyond a reasonable doubt, or to analyse those criticisms in the context of the applicable standard of proof;14. The Referrals Committee erred in failing to appreciate that the burden of proof remained on the IHRB at all times. Alternatively, the Referrals Committee erred by requiring Mr Comer to meet a more exacting standard of proof than that provided for by the Rules of Racing;

15. Whilst the Referrals Committee was entitled to accept the evidence given by witnesses who had not found MD or MT in environmental samples they had tested over the years, the Referrals Committee failed to analyse this in the context of the evidence of specific sources of environmental contamination identified in this case, or to consider the concessions made by those witnesses, in that context;

16. The Referrals Committee erred in deciding that Mr Comer had, by his conduct, acted in a manner prejudicial to the integrity, proper conduct or good reputation of horseracing. Without prejudice to the generality of the foregoing, the Referrals Committee erred in deciding that Mr Comer’s credibility and/or his candour had been called into question;

17. The Referrals Committee erred in criticising Mr Comer regarding the supervision he exercised over his establishment and/or the management structure he had put in place and/or the staff that he had retained, to manage the day-to-day operation of his training establishment;

18. The Referrals Committee erred by failing to make such findings without notifying Mr Comer of their intention to do so, in respect of matters which were not alleged against him and/or in respect of arrangements which had been approved by the Referrals Committee in 2017;

19. The Referrals Committee erred in finding that there was poor security in Mr Comer’s yard, or to consider all of the relevant evidence in that context;

20. The Referrals Committee erred in concluding that it “would have been all too easy for unauthorised persons to gain access to the horses undetected”, a finding unsupported by the evidence;

21. The Referrals Committee erred in failing to consider or appreciate the fact that the presence of prohibited at all times substances in horses involved in racing was not necessarily prejudicial to the integrity, proper conduct of and good reputation of horse racing, if those substances were administered unknowingly and/or if the trainer had taken reasonable precautions to guard against same;

22. The Referrals Committee erred in finding that Mr Comer had failed to provide proper security, notwithstanding that:

i. No such allegation was made against Mr Comer;

ii. There are no standards in being regarding the security that trainers are expected to provide at training establishments;

iii. The standards apparently expected significantly exceed those to be expected of the IHRB and/or racecourse owners on racedays, as is evident from the Charles Byrnes/Viking Hoard referral and appeal; and

iv. The Referrals Committee’s conclusion that Mr Comer failed to provide inadequate security and supervision for his training establishment is unsupported by the evidence and/or arrived at in a manner which is unfair to Mr Comer and ought to be set aside;

23. The Referrals Committee failed to engage with the expert evidence offered by Mr Comer, or to explain why it left some of that evidence out of account or rejected the same. Further and/or in the alternative, the Referrals Committee was obliged to (but did not) explain the reasons for its decision to depart from the expert evidence adduced by Mr Comer, or to prefer other evidence to it by reference to the key elements of the evidence actually led before the Referrals Committee;

24. The Referrals Committee fell into error insofar as it placed any reliance on the BHA Study and erred by failing to explain that any the methods used therein had not been validated for quantitative purposes;

25. The Referrals Committee erred in concluding that Mr Comer had, by his conduct, acted in a manner prejudicial to the integrity, proper conduct or good reputation of horse racing;

26. The Referrals Committee erred in deciding that no convincing case was made out for environmental contamination and in that context the Referrals Committee erred in:

i. Discounting the analysis conducted by Mr Gough;

ii. Discounting the expert appraisal of that analysis and/or the body of expert evidence led by Mr Comer;

iii. Failing to engage with the following facts and circumstances:

a. MT and MD are orally active anabolic steroids, which must be administered systematically, two to three times daily, for a number of weeks or months, to have a performance enhancement, following knowing administration;

b. Mr Comer’s horses (including He Knows No Fear) ran during 2020 and 2021, knowing that they were liable to be tested at any time; or

c. That it was inherently implausible that the substances concerned had been deliberately administered to achieve anabolic effects, during the period in question, in the circumstances.

27. The Referrals Committee erred by considering the breadth of what was contemplated by environmental contamination, or the incidence of such contamination in the literature;

28. The Referrals Committee erred in failing to appreciate or to hold that hay contaminated with methandienone would be a source of methandienone for Mr Comer’s horses and/or the evidence of bioconversion between methandienone and methyltestosterone;29. The Referrals Committee erred by failing to appreciate the lengths to which Mr Comer went to establish the likely provenance of these adverse analytical findings, or to appreciate the difficulties he encountered in conducting such an exercise;

30. The Referrals Committee erred by deciding to withdraw Mr Comer’s licence and/or imposing a sanction which was disproportionate to the facts found proved.

31. The Referrals Committee erred by punishing Mr Comer twice, by imposing (concurrent and additional) penalties for a breach of Rule 272 (i) of the Rules of Racing, arising out of the same facts.

32. The Referrals Committee erred in deciding that Mr Comer had supplied misleading evidence to it during the hearings.

33. The Referrals Committee erred in directing Mr Comer to pay the IHRB’s costs.

34. The Referrals Committee erred in directing Mr Comer to pay the IHRB’s costs. Without prejudice to the foregoing, the Referrals Committee erred in directing Mr Comer to pay such costs without conducting a forensic analysis of the sums claimed, or requesting a detailed breakdown thereof, or interrogating the same, whether adequately or at all.

35. The Referrals Committee erred in directing Mr Comer to pay costs on a solicitor and client basis and/or on an indemnity basis, in the circumstances, and/or in respect of matters with which Mr Comer should not be liable.

36. The Referrals Committee erred in deciding that a deterrent element was a prominent or necessary feature in any sanction to be imposed on Mr Comer and imposed a sanction which was disproportionate in the circumstances. Without prejudice to the generality of the foregoing:

i. The Referrals Committee did not find (and was not asked to find) that Mr Comer deliberately administered prohibited substances to horses in his care. In the circumstances, it does not follow that it is necessary to impose a sanction on Mr Comer, to deter others from “giving in to the temptation to take steps which would give their horses an unfair advantage”. A decision to impose a sanction on this basis proceeds from the premise that Mr Comer had deliberately administered such substances to horses in his care, when no such finding was made;

ii. The Referrals Committee erred in deciding that Mr Comer’s racing enterprise would be unaffected by a decision to withdraw his licence; and

iii. Moreover, the Referrals Committee’s decision imports an acknowledgement that any sanction which ought to be imposed on Mr Comer ought not to interfere with his racing enterprise. In that context, the sanction the Referrals Committee actually imposed was excessive and disproportionate.

37. The Referrals Committee erred in fact and/or in law and/or on mixed questions of fact and law in finding the charges against Mr Comer proved; and

38. Such further grounds as may be advanced.

The IHRB appealed against the undue leniency of the sanctions imposed on Mr Comer in respect of the multiple breaches of Rule 96 and the breach of Rule 272(i) and Rule 272(ii) which were found by the Referrals Committee.

At the appeal hearing, evidence was heard from Mr Eugene Quinn, Mr Comer’s Security Manager. Submissions were heard from Mr Ronan Kennedy SC appearing with Ms Caoimhe Daly BL instructed by DAC Beachcroft Solicitors on behalf of the Irish Horseracing Regulatory Board and Mr Martin Hayden SC appearing with Mr Frank Crean BL and instructed by Coonan Cawley Solicitors on behalf of Mr Comer.

Having considered the submissions, Justice Peter Kelly issued the decision set out below on behalf of the Appeals Body.

 

 

 

IN THE MATTER OF AN ANTI‑DOPING CASE
BEFORE THE APPEALS BODY
OF THE IRISH HORSERACING REGULATORY BOARD

BETWEEN:

IRISH HORSERACING REGULATORY BOARD

‑and‑

LUKE COMER

 

DECISION

Introduction

There are two appeals before us.  The first is that of Mr Luke Comer (Mr Comer).  He appeals against a decision of the Referrals Committee (RC) which after a nine day hearing in May 2023 found him guilty of a number of breaches of the Rules of Racing (the Rules).  Following a further one day hearing the RC imposed a series of penalties upon him and also awarded 80% of the costs incurred by the Irish Horse Racing Regulatory Board (IHRB) in prosecuting the case against him.  Mr Comer appeals against all of the findings made against him, the penalties and the costs order. 

The second appeal is that of the IHRB.  Its appeal is confined to the sanctions imposed upon Mr Comer.  It contends that they were unduly lenient.

Background

Mr Comer has been a licensed horse trainer since 1991.  The training is carried out at a premises known as Eagle Lodge, Kilternan, County Dublin.

On the 16th of October 2021, a horse trained by Mr Comer called, "He Knows No Fear", having been placed fourth in a race at Leopardstown, was randomly selected for drug testing.  Urine and hair samples were taken from the horse.  The urine sample was negative, but the hair sample, which had been taken from the horse's mane, tested positive for Methandienone (MD) and Methyltestosterone (MT). 

MD and MT are androgenic anabolic steroids.  No products containing these steroids are licensed for use in horses in Ireland and the use of anabolic steroids in thoroughbred horse training and racing in Ireland is prohibited.  They are known as "Prohibited At All Times" (PAAT) substances. They may not be present in a horse in any quantity at any time.

Following this positive drug test on one of Mr Comer's horses the IHRB decided to carry out an unannounced, out of competition, inspection on horses being trained by Mr Comer.  This took place on the 10th of November 2021 at Eagle Lodge.  Hair samples were taken from 118 horses and blood samples from a smaller number.

The A samples taken from 12 of the horses namely, He Knows No Fear, Old Tom Higgins, Boxing Hero, Grand D'espagne, Aircraft Carrier, Powerful Don, Wee Jim, Great Moon, Our Man Flint, Questionare, Green Force, and Blyton, tested positive for the presence of MD and/or MT and the results were confirmed by the B samples. 

Following these findings, disciplinary proceedings under the Rules were commenced by the IHRB against Mr Comer.  Four charges were preferred against him.  They were set out in a letter dated the 15th of November 2022.

 

The Charges

The first charge alleged a breach of Rule 96(a) arising from the presence of MD and MT, PAAT substances, in hair samples taken from "He Knows No Fear" on the 16th of October 2021 after the Leopardstown race.

Charge 2 alleged a breach of Rule 96(b) and/or (c) arising from the presence of MD and/or MT, PAAT substances, in hair samples taken from the horses the subject of the inspection on the 10th of November 2021.

The third charge alleged a breach of Rule 147(vi), which requires a trainer to only train horses at his training establishment, being a premises licensed by the Board. 

The fourth charge alleged a breach of Rule 272(i), in that the conduct alleged in the first three charges constituted conduct or behaviour prejudicial to the integrity, proper conduct or good reputation of horse racing.   

It was these four charges which were the subject of the two‑part hearing which took place before the RC.

The decision of the RC was reserved at the conclusion of the first nine days of the hearing and Mr Comer was found guilty in respect of charges 1, 2 and 4.  He was acquitted of any breach of the Rules in respect of the third charge. 

Mr Comer was however found guilty of a breach of Rule 272(ii) of the Rules, as a result of certain evidence which he gave before the RC. 

It is from these findings and the penalties which followed that Mr Comer's appeal is brought.  His Notice of Appeal relies on 38 grounds of appeal, some of which are themselves divided up into a number of subheadings. 

 

Jurisdiction

We were addressed at length on the jurisdiction which falls to be exercised by us and on how we ought to go about that task.

The jurisdiction of the Appeals Body to do anything is derived from the Rules.  Rule 19(c) sets out our jurisdiction and powers.  We are given jurisdiction to hear and determine appeals against the decisions of, inter alia, the RC. 

Rule 256 provides that an appeal is to be conducted on the basis of a written or mechanically or electronically recorded transcript, subject to a discretion given to the Appeals Body under that Rule to hear new evidence.  In fact, that power was exercised in this appeal, a matter to which we will turn in due course. 

In the Turf Club ‑v‑ Edward O'Connell, (24th of July 2014), the Appeals Body ruled that the exercise of the jurisdiction which it is given is generally to be in accordance with the principles and approach obtaining in respect of appeals from the High Court to the Supreme Court.  The Appeals Body stated that appeals, "should be analogous to that afforded by the Supreme Court in an appeal from the High Court whereby the oral evidence given at the first instance hearing is considered and reviewed in documentary form". 

That approach has been followed by the Appeals Body ever since and now finds expression in the latest iteration of the Rules (2023), as Rule 19(c)5, which states, "an appeal shall be limited to a review of the issues and evidence which were before the initial decision‑maker, subject to the provisions of Rule 256 and/or the discretion of the Appeals Body having considered an application for a de novo hearing".  We follow this approach on this appeal.  It follows that the way in which we carry out our task falls to be guided by decisions of the superior courts on the topic. 

The starting point of that jurisprudence is the decision of the Supreme Court in Hay ‑v‑ O'Grady (1992) 1IR210, where McCarthy J. described the role of the Supreme Court in the following terms:

                  "1.  An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it.  The arid pages of a transcript seldom reflect the                 atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them.  The truth is not the monopoly of any majority. 
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact.  I do not accept that this is always necessarily so.  It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw.  In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge.  In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge. 
4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference ‑ in a case of this kind, was there negligence?  I leave aside the question of any special circumstance applying as a test of negligence in the particular case.  If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principle set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.  
5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows." 

 

That case has given rise to a substantial jurisprudence where the statement of McCarthy J. has been considered, followed and refined.  We mention just a number of these cases which are pertinent to the task in hand here.

In Leopardstown Club Limited ‑v‑ Templeville Developments Limited (2017) 3IR707, Denham CJ at 741 said, "The principles identified by the Hay ‑v‑ O'Grady (1992) IR210 jurisprudence include the following: ‑  

                  ‑ An appellate court does not proceed by way of a full rehearing of a case.

                  ‑ An appellate court is bound by the findings of fact of a trial judge which are supported by credible evidence.

                  ‑ In general, an appellate court proceeds on the findings of fact of a trial judge.

                  ‑ The fact that there is contrary evidence does not alter the position.

                  ‑ An appellate court should be slow to substitute its own inferences of fact where such depended upon oral evidence, and a different inference has been drawn by the trial judge.

                  ‑ The fact that there is some evidence before a trial judge which may lead to a different conclusion does not alter the fundamental principle.

                  ‑ A finding of the credibility, or not, of a witness, is a primary finding of fact."  

In his judgment in the same case, McMenamin J. said at page 748, "What follows from this, and the authorities cited above, is that appeal courts are bound by a trial judge's findings of fact, when they are based on cogent evidence.  Moreover, again applying the principles enunciated in Hay ‑v‑ O'Grady, appeal courts should be slow to adopt inferences other than the trial judge's, again where they are based on factual materials. 

Save where there is a clear non‑engagement with essential parts of the evidence, therefore, an appeal court may not reverse the decision of a trial judge, by adverting to other evidence capable of being portrayed as inconsistent with the trial judge's primary findings of fact. 

"Non‑engagement" with evidence must mean that there was something truly glaring, which the trial judge simply did not deal with or advert to, and where what was omitted went to the very core, or the essential validity, of his findings.  There is, therefore, a high threshold.  In effect, an appeal court must conclude that the judge's conclusion is so flawed, to the extent that it is not properly "reasoned" at all.  This would arise only in circumstances where findings of primary fact could not "in all reason" be held to be supported by the evidence.  "Non‑engagement" will not, therefore, be established by a process of identifying other parts of the evidence which might support a conclusion other than that of the trial judge, when there are primary facts, such as here.  Each of the principles in Hay ‑v‑ O'Grady is to be applied.  

The task faced by judges of our appeal courts is already too onerous.  But the task would be made yet more onerous were appeals to be reduced to a piece by piece analysis of the evidence, in an effort to show, on appeal, that the trial judge might have laid more emphasis on, or attached more weight to, the evidence of one witness, or a number of witnesses, or on one document, or a number of documents, rather than others on which he or she relied." 

A number of other cases are worthy of mention and consideration in the context of the arguments made by Mr Comer.  First is Morrissey ‑v‑ Health Service Executive 2020 (IESC6).  There Clarke CJ, having quoted the passages from the judgment of McMenamin J. in the Leopardstown case, said as follows: 

"In the context of that case law, it is, however, important to emphasise a number of features which are of some relevance to the issues which arise on this appeal.

First, it is clear that what is spoken of as a lack of engagement in those authorities relates not so much to the way in which a trial judge conducted the proceedings but rather to the way in which the trial judge determined the issues in the judgment.  A failure to engage, in the context in which it is used in the relevant case law, clearly refers to the failure on the part of a trial judge to set out the reasons why central or important aspects of the case, of one or other party on the facts were not accepted. 

I did not understand counsel on any side of this case to be in the least way critical of the way in which the trial judge conducted these proceedings.  Even a general reading of the transcript makes it clear that the trial judge was fully involved with the evidence and the issues and, in that sense, was clearly engaged with the case.  However, that is not the sort of engagement to which the case law referred to earlier is directed.  Rather, the criticism suggested both by Quest and by Medlab is directed to the question of whether the trial judge gave adequate reasons in his judgment for rejecting what are said to be central aspects of their respective cases on the facts. 

Second, it is worth adding that it is clear from that case law that it is far from sufficient for a party seeking to appeal a decision of a trial court to search through the undergrowth of the pleadings and evidence so as to find some tangential or minor aspect of the case which is not expressly referred to in the judgment.  The test, therefore, involves, as McMenamin J. pointed out in Leopardstown Club, a high threshold which requires the court to address the question of whether, taking that party's case as a whole, can it be fairly said that the trial judge has significantly failed to adequately address the reasons for rejecting the appellant's case on the facts? 

Finally, before going on to consider the specific issues raised by the respective defendants, it is also of importance to emphasise that it was accepted by both Quest and by Medlab that there was evidence on which the trial judge could have concluded that the facts were as alleged by the Morrisseys.  In other words, there was evidence that a competent screener would, in the case of Quest, not have given a clear reading, and, in the case of Medlab, not considered the slide adequate.  This is not the sort of case, therefore, where the primary issue identified in Hay ‑v‑ O'Grady, arises.  In most cases in which factual decisions are sought to be overturned, it is asserted that there was no evidence from which the decider of fact could have reached a particular adverse conclusion.  This is not such a case.  Rather this case is solely concerned with whether there was sufficient engagement in the judgment with the case on the facts made by the two laboratories so as to give a reasonable and broad explanation as to why what were said to be important elements of their respective defences, on the merits did not find favour".

Later in that judgment, Clarke CJ, at paragraph 10.3, identified the questions which have to be addressed where it is contended that there has been a failure on the part of a trial judge to engage sufficiently with the evidence of a party.  He said:

"First, can it be said that the trial judge did fail to address any aspects of the respective cases made by Quest and Medlab?  Second, and to the extent that it may be possible to say that there were aspects of those respective cases which were not fully addressed, were the issues in respect of which any such failure might be established sufficiently central to the case as a whole to warrant holding that it was "an essential part" of the case on the evidence in the sense in which McMenamin J. used that term in Leopardstown Club?  Third, was the extent of any non‑engagement sufficiently serious that it can properly be said that the trial judge has not really given reasons as to why one side succeeded and the other failed on an essential element of the case?" 

Later in the judgment at paragraph 10.10 Clarke CJ said of the judgment in the High Court: 

"It would undoubtedly have been preferable, however, if the trial judge had explained in more detail why he did not consider that the blind review evidence tendered in this case was preferable to the views expressed by the experts called on behalf of the Morrissey.  If the process followed in this case had followed the normal course of events, then there might have been a basis for suggesting that the judgment in that regard was insufficiently reasoned.  However, it does not seem to me that the judgment falls below the irreducible minimum of reasoning which would require this court to set aside the judgment, whether or not the parties have gone along with a truncated process". 

In Donegal Investment Group PLC ‑v‑ Danbywiske (2017), IESC 14, the Hay ‑v‑ O'Grady principles fell to be considered in the context of expert evidence.  In the course of his judgment in that case, Clarke J. (as he then was) said: 

"While it is true, therefore, that the assessment of all evidence, whether expert or factual, requires both the application of logic and common sense, on the one hand, and an assessment of the reliability or credibility of the witness gleaned from having been in the courtroom, on the other, it may be fair to say that it is likely that a decision based on expert evidence will be significantly more amenable to analysis on the basis of the logic of the positions adopted by the competing witnesses and the assessment of the trial judge of their evidence on that basis. 

Precisely because a decision to prefer the evidence of one expert over another is likely to be influenced, to a much greater extent than might be the case in respect of factual evidence, by the rationale put forward by the competing witnesses, there may be somewhat greater scope for an appellate court to assess whether the reasons given by a trial judge for preferring one expert over another can stand up to scrutiny.  That being said, it must remain the case that an appellate court should show significant deference to the views of a trial judge on the question of findings based on expert evidence, because the trial judge will have had the opportunity to see the competing views challenged and scrutinized at the hearing." 

The next quotation which we wish to cite is in the judgment delivered by Collins J. in Morgan ‑v‑ Electricity Supply Board (2022), 1IR187 where he said: 

"A finding of credibility, whether in respect of a witness's evidence generally, or some specific evidence given by them, ought generally to be the product of analysis and reasoning that is capable of explanation in a judgment.  That does not mean that a lengthy or discursive analysis is necessary.  The degree of explanation appropriate will depend on the nature, extent, and significance of the relevant evidential conflict." 

The same judge in McDonald ‑v‑ Conroy (2020), IECA 239, quoted the following statement from the judgment of Clarke J. in Doyle ‑v‑ Banville (2012) IESC25, as follows: 

"In addition, it does need to be said that there are other consequences of the move to trial by judge alone.  Any party to any litigation is entitled to a sufficient ruling or judgment so as to enable that party to know why the party concerned won or lost... to that end it is important that the judgment engages with the key elements of the case made by both sides and explains why one or other side is preferred.  Where, as here, a case turns on very minute questions of fact as to the precise way in which the accident in question occurred, then clearly the judgment must analyse the case made for the competing versions of those facts and come to a reasoned conclusion as to why one version of those facts is to be preferred.  The obligation of the trial judge, as identified by McCarthy J. in Hay ‑v‑ O'Grady to set out conclusions of fact in clear terms needs to be seen against that background." 

Having cited that statement from the judgment of Clarke J., Collins J. said this:

"That obligation, Clarke J. emphasised, is to analyse, "the broad case made on both sides", and it is no function of an appellate court to rummage through the evidence tendered, or arguments made in the trial court to find some tangential piece of evidence, or argument that arguably was not adequately addressed.  The obligation of the court "is simply to address, in whatever terms may be appropriate on the facts and issues of the case in question, the competing arguments of both sides."  

 

Almost all of the post Hay ‑v‑ O'Grady jurisprudence was cited to us during the course of lengthy argument.  The above cases appear to us to be the most pertinent and the quotations mentioned most focused having regard to the issues on this appeal.  It is the principles and considerations identified in that jurisprudence that inform us in the exercise of our appellate function.

They indicate that we should be slow to interfere with findings of the RC even if we are of the view that other findings were open to it and were perhaps more appropriate.  A high threshold has to be surmounted to warrant our interfering with such findings.  Only if there was a clear failure on the part of the RC to engage with essential facts of the evidence should we reverse a finding of the RC.  Such non‑engagement has to be "truly glaring".  We are not to rummage through the evidence to find something tangential that wasn't adequately addressed.  We should of course satisfy ourselves that the RC addressed the competing evidence and arguments in terms appropriate to the facts and issues.  So, the RC had to address the broad drift of the argument of both sides so as to enable the affected parties to know how it reached its conclusions.

On the topic of expert evidence in particular we should show significant deference to the findings of the RC. They had the opportunity to see and evaluate the evidence given viva voce which we don't have.  The choice between competing expert evidence " may not require a great deal of explanation in a judgment."  Context is key in all of this. 

It is convenient at this stage to consider two matters which arose as a result of evidence tendered before the RC and which constitute discrete issues separate and apart from the main questions that fall to be considered on this appeal.  The first pertains to the evidence given by Mr Comer.
 

 

Mr Comer's Evidence

The RC expressed itself as being satisfied that Mr Comer supplied misleading evidence to it, and thus was in breach of Rule 272 (ii).  It imposed a fine of €5,000 on him for this breach.

The circumstances in which that finding came to be made are clear, both from what is contained in the decision of the RC and the transcript of evidence.

Prior to the hearing before the RC it was agreed that witness statements would be exchanged between the parties and would be taken as evidence, subject to any amendment or clarification which the witness might wish to draw to the attention of the RC at the commencement of their evidence.  

In the course of his witness statement, Mr Comer said:

"I take great pride in the standard of care given to the horses and spare no effort or expense when it comes to their welfare.  I have an unblemished record as a trainer".

The RC described that statement by Mr Comer as, "manifestly untrue".  In that regard, the RC was undoubtedly correct. 

In the course of his cross examination by counsel for the IHRB Mr Comer again asserted that he had an "unblemished record".  On day 6 question 74 counsel said:

"Q. Mr Comer, you have a significant disciplinary history, don't you?

1. No.
2. You don't?
3. I do not have a significant disciplinary history. Q. So you don't accept that you have a significant disciplinary history?
4. No, I do not. I was right in all occasions."

Following that, counsel took him through the records of the IHRB, which established that far from having an unblemished record, he had been found guilty of, as was described by the RC, "multiple breaches of the Rules in the past, including the supply of misleading information.  He had been disciplined and, in some cases, fined for these breaches.  The Respondent said that some of the Rules breaches had been admitted.  When the previous Rule breaches were put to him, he sought to explain some of them away and to minimise what had occurred.  But what is beyond doubt is that he did not have an unblemished record". 

That finding made by the RC is undoubtedly correct.  It, quite understandably, took a very dim view of Mr Comer's untruthfulness.  Accordingly, in the course of its decision on sanction, the RC made those findings, found Mr Comer guilty of a breach of Rule 272(ii) and imposed the fine of €5,000. 

However, neither Mr Comer nor his legal advisers had any inkling that the RC was contemplating the making of such a finding against him. The first they knew of it was when the finding was announced and the fine imposed during the course of the written decision on sanction. 

Clearly, Mr Comer was not, and indeed could not, have been accused of a breach of Rule 272(ii) at the outset since the issue only arose during the course of his testimony.  The breach arose during the course of the hearing.  Complaint is made that before the RC made such a finding, it ought, on the grounds of procedural fairness, to have given notice to Mr Comer that it was contemplating so doing and afforded him an opportunity to be heard on the matter.  He was not given such notice or opportunity, and therefore, it is said, the decision of the RC must fall for want of fair procedures.  

The IHRB accept that no notice was given to Mr Comer of the fact that the RC was contemplating this course, nor was any opportunity given to him to make whatever defence he had, if any, to the alleged breach.  

Mr Kennedy SC, for the IHRB, quite properly drew our attention to another Rule which he said wasn't necessarily in his favour, nor necessarily on point, but was clearly appropriate to be brought to our attention.  It is Rule 19(A) 8(i)(d) of the 2021 Rules.  It says that the Referrals Committee, sitting in accordance with the provision of the Rules, shall have power, "(d). when considering any matter before them, to consider in the alternative, whether the evidence and materials presented disclose a possible breach of a Rule or Rules other than the Rule or Rules initially under consideration.  Subject to notifying any person potentially affected, and giving to such person such reasonable opportunity as might be required in the circumstances of the case, to deal with the issue of whether there has been such a breach of a different Rule or a different provision of a Rule, the Referrals Committee shall have power to make a finding that there was a breach of a different Rule or a different provision of a Rule, notwithstanding that the breach in respect of which such finding is made was not the same as the breach initially under consideration". 

Whilst that Rule is not directly on point, it does articulate a principle which appears to us to be entirely consistent with fair procedures, namely, that a finding of guilt does not fall to be made against a person without notice being given to that person that such a finding is in contemplation and a reasonable opportunity given to deal with the issue. 

Whilst it may be difficult to imagine what possible defence Mr Comer might have had to the allegation of giving misleading evidence, he nonetheless was entitled to the opportunity to make such defence as he might.  As he was not given such an opportunity, it follows the finding of guilt against him cannot stand. 

Accordingly, we allow Mr Comer's appeal in respect of the Rule 272 (ii) breach, and we set aside that finding and the fine of €5,000 which was imposed. 

 

The Security Issue

In the course of its decision on liability for breach of the Rules, the RC said, "at the time of the incidents giving rise to the charges, there was poor security at the yard, especially in terms of camera surveillance.  It would have been all too easy for unauthorised persons to gain access to the horses undetected."  It also said, "In this case there was inadequate supervision and security in the yard which probably facilitated the absorption of the PAAT substances, however it occurred".

The IHRB never alleged as part of its case that there was substandard security at Mr Comer's licenced training establishment.  Neither did it lead evidence in that regard. 

During the course of Mr Comer's evidence, a series of questions was put to him by a member of the RC.  It elicited answers which justified the RC reaching the conclusion which it did on the question of security.  The matter was not pursued further, nor was it addressed in any detail by Mr Comer's counsel.  When, therefore, the decision on liability was published, including the criticisms on the lack of security, complaint was made to the RC on behalf of Mr Comer in this regard.  A request was made to the RC to allow, in the light of this finding on security, an opportunity for further evidence to be adduced.  That request was dealt with by the RC in the course of its decision on penalty.  The RC said this in respect of that request.

"The Respondent complains that he was never specifically charged with failing to have or provide adequate security in his yard, and that the Board never put it to him, or cross examined him on the adequacy of his security.  The Respondent maintains that he has a very advanced security system in place and wishes to be given a further opportunity to adduce evidence on the issue at a reconvened oral hearing.  It appears from other submissions made subsequent to the hearing that the Respondent takes particular objection to the Committee's findings on the issue of inadequate camera surveillance.  The Committee rejects the application for further evidence on this issue.  In answer to questions from a Committee Member, the Respondent gave an account which entitled the Committee to reach such conclusions (see transcript Day 6 pages 90 to 93).  He was represented by solicitor and counsel and was re‑examined by his senior counsel on the matter.  At no time was any objection made that the Respondent was taken short or disadvantaged in giving his answer.  The hearing lasted for a further three days after this account by the Respondent on day 6, during which time no such objection was raised.  In those circumstances, there cannot be any legitimate objection to the entitlement of the Committee to act on that evidence, even if it arose in an ad hoc manner.  In any case, the Committee wishes to make it clear that even in the absence of that evidence, there was other evidence on which it reached its conclusions on the question of inadequate security and supervision.  The Respondent gave evidence that he only spends three months each year in this jurisdiction.  He is a man with extensive business interests apart from his racing enterprise.  It seems unlikely that he would spend the entirety of his time in Ireland each year engaged in activity relating to his horse racing business.  But even if he did, it would be quite impossible for him to adequately supervise the racing yard throughout the year.  The Respondents Assistant Trainer, Mr Jim Gorman gave evidence that he's only at the yard from early in the morning until lunchtime.  He said Mr Anezio Rocha, the Head Stable Lad would be in charge in the afternoon and evening, but mainly in terms of animal husbandry."   

In the light of that refusal, an application was made to us prior to the hearing of the substantive appeal for leave to adduce new evidence on the issue of security.  We received written submissions and had oral argument presented to us on the topic.  We decided, in accordance with the well‑established principles applicable to the admission of new evidence, to permit it to be adduced.

That evidence was given by Mr Eugene Quinn, who is the Security Manager with Comer Group Ireland.  It is not necessary to reproduce in full the evidence given by Mr Comer and that of Mr Quinn.  A few selections will suffice.  They demonstrate that the evidence given to the RC by Mr Comer was the polar opposite to that given to us by Mr Quinn in a number of respects. 

For example, Mr Comer was asked before the RC if there were CCTV cameras in Eagle Lodge or Ballinteskin which would show horses being brought out and arriving back, he said, "No.  After that, there was CCTV cameras put into spot anybody that might be, if they were trying to, we didn't know where the source of this contamination came from".  Mr Quinn said this was not a correct answer.  There were cameras at the gate, and there were cameras at the top yard.  Mr Comer told the RC, "there was security at the gate.  There was security at the gate, and there might have been a  general yard camera".  Mr Quinn said that that was not an accurate answer either.  Mr Comer told the RC that anybody could effectively have given the horses something, but Mr Quinn disagreed with that.  He likewise disagreed with an answer given by Mr Comer that it was possible that someone could have got into Eagle Lodge and exposed horses to prohibited substances.  Mr Comer gave no evidence concerning the existence of a mobile security unit.  Mr Quinn told us of two security officers being on duty for 24 hours of every day with one of them involved on a mobile patrol. The other was a static guard at the entrance.  There were 8 cameras at the upper yard and sensor floodlighting at both yards which would come on if movement was detected. 

This is a remarkable contrast between the evidence of these two men and was explained by Mr Quinn telling us that he wouldn't expect Mr Comer to know all of the details because he (Mr Quinn), is the person who looks after security and that Mr Comer simply wouldn’t have the details.  This seems to us to be a plausible explanation since Mr Comer is something of an absentee trainer who is in Ireland for only about three months in every twelve. 

It is common case that there are no standards specified by the IHRB pertaining to security at licenced training establishments. 

On the basis of the evidence of Mr Quinn, we do not believe that the form of security which was provided at Eagle Lodge in 2021 could be regarded as so substandard as to warrant the finding by the RC that there was poor security at the yard, especially in respect of camera surveillance and that it would have been all too easy for unauthorised persons to gain access to the horses undetected.  There was camera surveillance, together with substantial lighting, one access which was constantly manned by 24 hour security and a mobile security patrol throughout the whole area.  Considerable enhancement has taken place since 2021, with the number of cameras increased from 8 to 30.  But it cannot be said that the form of security that was in place in 2021 was so substandard as to warrant the criticism that was made by the RC.  Its finding was justified by reference to the evidence given by Mr Comer, but the RC ought in the circumstances to have acceded to the application to hear evidence from Mr Quinn.  We did so and on the basis of his testimony we conclude that reasonable security was provided at the premises at the relevant time.

Accordingly, in reviewing the decision of the RC, we dismiss from our consideration any issue of inadequate supervision and security and proceed as if that finding had not been made. 

The Relevant Rules

Mr Comer was found guilty of breaching Rules 96(a) and (b)/(c).  He was also found guilty of a breach of Rule 272(i).  We have already set aside the finding made against him in respect of Rule 272(ii).  We here consider briefly these Rules. 

Rule 96 is headed "presence of a prohibited substance and substances prohibited at all times".  Rule 96(a) provides: 

"When a horse is being 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 in question, and the stake be forfeited;

‑                The trainer of the horse be fined not less than a €1,000; and/or;

‑                The trainer's licence be withdrawn for such a 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. 

It shall not be a defence that the prohibited substance was administered under the supervision of a veterinary surgeon as part of a course of treatment prescribed by the veterinary surgeon or that the administration of the prohibited substance ceased at a time recommended by the veterinary surgeon." 

It is to be noted that this rule applies only in respect of samples which are taken pursuant to Rule 18, which under Paragraph (c) of Rule 18 enables samples to be taken by direction of the Stewards on a race day.  Rule 96(a) is therefore the Rule applicable in respect of the sample taken from "He Knows no Fear", on the 16th of October 2021 after the Leopardstown race. 

It is common case that MD and MT, are both PAAT substances which may not be present in any quantity large or small in a horse.  Thus, no question of any threshold level with those substances applies. 

It is common case that Rule 96(a) and indeed 96(b)/(c) are both strict liability offences.  The offence is established once the PAAT substance is found.  This approach is common in anti‑doping codes.

The penultimate paragraph of Rule 96(a) provides the RC or the Appeals Body with a discretion to 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.  There are two things of note in respect of this provision.  First, it relates only to one of the penalties i.e. a fine, which may as a matter of discretion be waived provided the RC or the Appeals Body is satisfied of two things, namely that the prohibited substance was administered unknowingly and that the trainer had taken all reasonable precautions to avoid a breach of this Rule.  The second thing to note about this proviso is that it does not at all trench upon the question of guilt for a breach of the Rule nor indeed to any of the other penalties which are applicable once such guilt is established. 

Rule 96(b) provides, "when a horse is being examined or tested and samples taken pursuant to Rule 20 (xviii) 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 trainer and/or the owner of the horse be fined not less than €1,000; and/or

‑                The trainer's licence be withdrawn for such a period as it may consider appropriate;

However, in cases where the prohibited substance found is: 

(i)  Not a prohibited substance which is prohibited at all times, including in training as provided for in the schedule of prohibited substances;

(ii)  Can be traced to the clinical treatment of the horse with an authorised medicine which has been properly recorded in the medicine's register, maintained by the trainer, and verified in writing by the stable's veterinary surgeon (if applicable), no further action shall be taken. 

(iii)  When a horse has been examined or tested and samples taken pursuant to Rule 18 or to Rule 20 (xviii) and such examination or test or an analysis of such samples shows the presence of a prohibited substance, which is prohibited at all times as set out in the schedule of prohibited substances, the Referrals Committee or the Appeals Body, as the case may be, may direct that,

‑ the horse be disqualified and the stake forfeited in relation to any race or races in which the horse took part before or following the taking of such sample, and prior to the decision of the Referrals Committee, regardless of the result of a sample or samples taken (if any) on the day of such subsequent race or races;

                  ‑ the horse be restricted from running for such time as it shall determine,

                  ‑ the trainer and/or the owner be fined not less than €1,000; and/or,

                  ‑ the trainer's licence be withdrawn for such a period as it may consider appropriate."   

Rule 96(c) is in broadly similar terms and deals with PAAT substances exclusively

Rule 20 (xviii) enables duly appointed persons to enter without notice a training establishment of a trainer and to take samples.  This was the Rule under which the samples were taken on the 10th of November 2021. 

It is accepted that Rule 96(b) and 96(c) create strict liability offences.  It is to be noted that unlike Rule 96(a), they do not contain any provision for waiver of a fine.  That is confined to a race day sample only.  Samples which are taken out of competition and which are subject to a charge under Rule 96(b)/(c) do not admit of the defence of unknowing administration and reasonable precautions having been taken. 

The final paragraph of Rule 96(b) directing that no further action be taken in certain circumstances has no application to PAAT substances.  No such provisions are contained in Rule 96(c) which applies to PAAT substances.

From this analysis of these provisions it is clear that the limited defence (sounding only in a waiver of a fine) of unknown administration and reasonable precautions having been taken has no application whatsoever in the case of the horses who were tested out of competition at Eagle Lodge on the 10th of November 2021. 

Rule 148(i) is also of relevance.  It provides that a trainer, "shall be responsible (except were otherwise provided in these rules) for everything connected with the welfare, training and running of all horses under the care of that trainer and shall be liable to any sanction available to the Stewards, the Referrals Committee, Licencing Committee, or the Appeals Body as the case may be, unless the trainer provides a satisfactory explanation.”  By its terms, this Rule clearly places the burden of providing a satisfactory explanation on the trainer. 

Finally, Rule 272(i) provides that any person involved in horse racing who, within the jurisdiction of the IHRB;

‑ (i) whether verbally or by conduct or behaviour, acts in a manner which is prejudicial to the integrity, proper conduct or good reputation of horse racing (whether or not such behaviour or conduct, verbal or otherwise, is associated directly with horse racing) … shall be in breach of these Rules and liable to sanction." 

The Hearing before the RC

The case against Mr Comer was listed to commence before the RC on the 20th of February 2023.  Pre‑hearing directions, which were for the most part agreed between the parties, had been given with a view to ensuring that the hearing could commence on that date.  Following submissions on behalf of Mr Comer and a reply on behalf of the IHRB, the hearing of 20th February had to be adjourned to the 15th of May 2023.  In advance of that hearing, witness statements were exchanged between the parties, which by agreement were treated as the evidence in chief of each of the witnesses.  The onus of proof of the breaches of rules lay upon the IHRB, and it was anticipated that its witnesses would give evidence first.  Many of Mr Comer's witnesses had to come from abroad, and they were to give evidence by way of defence during the second week of the hearing. 

At the commencement of the hearing on the 15th of May 2023, counsel for Mr Comer acknowledged that the PAAT substances were present in all of the horses the subject of the charges.  With that acknowledgement, it followed that the IHRB's case against Mr Comer under Rules 96(a) and 96(b)/(c) was made out.  This was correctly stated by the RC in its decision where it said, "in view of the admissions and/or acknowledgements made by Mr Comer, charges 1 and 2 are proved."  The remainder of the case constituted an attempt by Mr Comer to satisfy the RC as to a satisfactory explanation for the presence of the substances. 

Strictly speaking, Mr Comer's witnesses should then have been heard by the RC with the IHRB’S witnesses being heard in rebuttal of the explanations.  However, all of the scheduling of witnesses had proceeded on the basis that the IHRB would have to prove its case, and thus its witnesses would go first.  Because, for the most part, Mr Comer's witnesses were due to give evidence in the second week of the hearing, the parties sensibly decided that they would proceed with the witnesses in the order in which they were originally to be heard.  In reading their evidence, however, it must be borne in mind that the IHRB's witnesses were at this stage giving evidence in rebuttal of the testimony which was set forth in the various witness statements that had been provided by Mr Comer.  They were thus seeking to rebut evidence which had not itself been tested by cross examination.  That may not have been entirely satisfactory from the IHRB's point of view, but nonetheless it was agreed that that was the course which would be followed.  It is important, therefore, in reading the evidence, to bear in mind that the IHRB's evidence was being given in rebuttal of evidence to be tendered by Mr Comer's witnesses, which had not been tested by cross examination at the time that the IHRB's witnesses gave evidence. 

Hair 

A good deal of time was spent in the hearing before the RC endeavouring to persuade it that hair was not a reliable stand‑alone matrix for the purposes of identifying the presence of PAAT substances.  This may seem a little surprising, given the acceptance by Mr Comer of the fact that PAAT substances were found to be present in the 12 horses tested.  His argument was that although those findings had been made, they were unreliable because hair was not an appropriate matrix for testing for such substances.  This contention was rejected by the RC.  It dealt with the matter as follows.  It said: 

"Hair is a recognised accredited matrix by the International Federation of Horse Racing, (IFHA) and the Association of Official Racing Chemists (AORC).  While it is not used as widely as blood and urine for testing, the Committee heard a substantial amount of credible evidence to show that it is being increasingly used and is particularly useful in allowing a more extended look‑back period for the presence of PAAT substances.  It has been used in Ireland for testing since at least 2016.  The Committee accepts the evidence of Dr Scarth, Mr Gray, Dr Sykes, Dr Moeller and Prof. Stanley as to the use and benefit of hair analysis in detecting PAAT substances.  MD and MT do not show up in blood or urine samples after a short period because they clear very rapidly from the body but deposit in hair.  Accordingly, hair samples can show traces of these substances long after they have been administered or ingested (Dr Scarth, 17th May, P38).  Insofar as a number of witnesses called on behalf of Mr Comer sought to discredit hair as a stand‑alone matrix, the Committee prefers the evidence of the witnesses referred to above.  The Committee accepts that the use of hair as a matrix for testing for PAAT substances in a regulatory context is a relatively recent development, but that is not a reason for calling into question its efficacy.  Prof. Kintz gave evidence that the IOC and WADA do not use hair as a matrix for testing for illegal doping in humans.  However, he did not have a problem with the fact that it is used by some horse regulatory bodies.  He concedes that his expertise is in the area testing humans for prohibited substances and that he is not a specialist in the testing of horses.  The Committee accepts the submission of the Board that comparisons between human and equine athletes are not comparing like with like.  The Committee is satisfied that the use of hair as a sole matrix for testing the horses for PAAT substances was appropriate."

The way in which the RC addressed this issue, in common with other parts of its decision to which we will turn in due course, was the subject of sustained criticism by Mr Comer, on the basis that the RC did not sufficiently engage with such conflict of testimony as there might have been, and did not satisfy its obligation to give proper reasons for its decision.  We have already set forth a good deal of the case law on this topic which guides our review and consideration of the decision under appeal.  It is, however, appropriate to bear in mind that much of that case law at appellate level deals with decisions given by the High Court where a discursive judgment is almost always delivered.  Even within the court system itself, such detailed analysis is not expected from lower courts, even when weighty issues such as decisions to imprison or not are under consideration.

The RC is not a court.  It is a disciplinary body established under the Rules.  That does not mean that it is not bound to behave in accordance with norms which incorporate inter alia fair procedures and reasons being given for its decision.  But the reasons do not have to reach the standard required of a High Court judge. Returning to the words of Clarke J. in Doyle ‑v‑ Banville, who again was speaking of the obligation of a High Court judge said, "... It does need to be emphasised that the obligation of the trial judge is to analyse the broad case made on both sides.  To borrow a phrase from a different area of jurisprudence, it is no function of this court, (nor is it appropriate for parties appealing to this court) to engage in a rummaging through the undergrowth of the evidence tendered or arguments made in the trial court to find some tangential piece of evidence or argument which, it might be argued, was not adequately addressed in the court's ruling.  The obligation of the court is simply to address, in whatever terms may be appropriate on the facts and issues of the case in question, the competing arguments of both sides."  Later in the same case he said, "finally, before moving on to the specific issues which arise in this appeal, it is also important to note that part of the function of an appellate court is to ascertain whether there may have been significant and material errors in the way in which the trial judge reached a conclusion as to the fact.  It is important to distinguish between a case where there is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and credible reason.  In the latter case, it is no function of this court to seek to second‑guess the trial judge's view." 

There is a substantial body of case law going back to at least 1979, to the effect that a body such as the RC discharges its obligation to give a valid decision by expressing itself in such terms as are appropriate to the facts and issues in the case in such a way as to enable a party affected to consider whether he has a reasonable chance of succeeding in appealing against the decision, and to arm himself for the hearing of such an appeal.  (See State (Sweeney) ‑v‑ Minister for the Environment, 1979, ILRM 35 and O'Donoghue v An Bord Pleanala (1991) ILRM 750. Mulholland V An Bord Pleanala 2006 I.R.453 and Meadows V Minister for Justice 2010 IESC 3 where it was said that “The essential rationale of the decision should be evident or at least capable of being inferred from its terms and context”)

With these considerations in mind, we turn to the decision of the RC on this aspect of the matter.

First, it is to be noted that under the Rules hair is included in the definition of, "sample".  Thus, the IHRB, as the regulatory authority for racing in Ireland, has expressly decided that hair is an appropriate matrix for testing for the presence of prohibited substances.  It is not alone in this.  As was pointed out by the RC, it is a recognised accredited matrix by the IFHA and the AORC.  The necessity to include hair as an appropriate matrix is clear from the evidence that was given before the RC.  Many prohibited substances, such as anabolic steroids, which enhance performance, are not detectable in blood or urine within a relatively short period post‑administration.  That is not the case with hair.  So, if drugs of this type ceased to be administered for a few days before race day, they might not be detected in urine or plasma and without the use of hair would thus go undetected.  Hair is therefore a very effective matrix for detecting certain PAAT substances.

There was a wealth of evidence from the various scientists mentioned in the RC's decision, supportive of the use of hair to detect PAAT substances.  It preferred their views to those of the experts called by Mr Comer.

Indeed, amongst the witnesses called by Mr Comer on this issue was Professor Pascal Kintz.  The RC records him as indicating that he did not have a problem with the fact that hair is used by some horse regulatory bodies.  His expertise is in the area of testing humans for prohibited substances, and he is recorded as not being a specialist in the testing of horses.  On review of his testimony, Day 5, P162 Q392 Prof. Kintz said: 

"No, I am aware that hair can be used by horse test authority.  This is not the problem.  The problem for me was how to interpret this data.  As you can see, I do not challenge what has been detected.  Both laboratories are high‑level laboratories, they are even better as human laboratories for doping and even much better than most forensic laboratories.  So, I do not have any concern about the analytical part.  My concern was now you have a result, what can we do with this result?  The matter of concern for using hair in horse control is that there is nothing in the literature.  It has not established the reliability of this technology, we have it for humans. If you want me to document a human case, I have dozens of papers quoted by other scientists.  Here there is nothing.  We do not know what is expected after a single exposure.  We do not know what is expected after contamination.  We do not know what is the minimal detectable concentration, what is the minimal detectable dose.  A lot of things are missing.  This is how I get involved in this case.  You know, I am just making a translation from what I know from humans to these horses.  I was asked by the legal team to put into perspective what are in various reports and what can be done by the numbers that have been established by, I say it again, excellent, top laboratory.  So, this is the real problem.  It is:  Is hair, horse hair testing reliable to demonstrate exposure during a doping practice?  And there is, unfortunately, nothing in the literature about that.  This is perhaps because the laboratories that are performing these tests and the bodies like you do not share scientific result.  But at least my job was to review what is known and how to interpret this. Unfortunately, there is nothing that allows an accurate and reliable interpretation of the findings.  This is the key problem."

It should be remembered that no threshold test applies to PAAT substances. He did not challenge what had been found.

Later in his testimony, Prof. Kintz gave evidence as follows (Day 5, p169);

"Q. 403:  Prof. Kintz, if I can bring you back; we have test results in the hair, and they are positive.  You accept that?  

A. Which?

Q. 404:  We have positive test results in the hair, you accept that?

A. Yeah.

Q. 405:  You accept that those test results were done by a process which was an acceptable and very high standard; you accept that?

A. Yeah. 

Q. 406:  You accept that the products, or the steroids that have been found in the hair are prohibited at all times; do you accept that?

A. Yeah. 

Q. 407:  So, therefore, it follows that those prohibited substances should not be found in the hair; Do you accept that? 

A. No.  I do not know, because I have not the experience and I do not know what has been done by other people." 

The Professor then went on to talk about testing nicotine in the hair of humans. 

These extracts from the evidence of one of the principal witnesses called by Mr Comer to demonstrate that hair was not an appropriate matrix speaks for itself.  He accepted the prohibited substances had been found in hair by a process which was unimpeachable.

Tangential issues such as the fact that regulators in Oklahoma and Florida do not use hair as a matrix is of no relevance.  Likewise, remarks made to a parliamentary Committee in 2021 have no relevance, particularly when one is considering the appropriateness of hair testing in respect of PAAT substances.  Neither does the fact that this was the first occasion on which hair was used as a standalone matrix in this jurisdiction for the presence of PAAT substances have any relevance.

The plain fact is, that by the use of the hair sample it was demonstrated that twelve of Mr Comer's horses tested positive for PAAT substances and the accuracy of that was accepted, not merely by the IHRB's scientific witnesses but also by Prof. Kintz.

Insofar as there was a conflict of testimony between experts, the RC had to decide which testimony to prefer.

We are quite satisfied that it was entitled to come to the conclusion which it did, to prefer the expert evidence of the IHRB, having duly considered all the evidence and having expressed itself in a manner which conformed to its obligations to give reasons. The RC was entitled to hold that the use of hair as a sole matrix for testing horses for PAAT substances was appropriate. 

Burden of Proof

Once the presence of MD and MT was established by reason of Mr Comer's admissions, the breaches of Rule 96 were proven.  It then fell to Mr Comer, if he wished, to prove on the balance of probabilities in relation to charge number 1, that the PAAT substances were administered unknowingly, and that reasonable precautions had been taken to avoid such an occurrence.  In respect of charge 2, it was for him to provide a satisfactory explanation as to how the PAAT substances came to be present.  In an effort to discharge this onus of proof, he relied upon, for the most part, scientific evidence. 

That scientific evidence endeavoured to show that the presence of the PAAT substances came about by environmental contamination.  The IHRB called rebuttal evidence on this topic.  Mr Comer's contentions were rejected by the RC.  He thus failed to prove his contention as a matter of probability.  We shall return to this topic presently.

Deliberate Administration

The RC posed for itself the question as to how traces of the PAAT substances came to be found in the relevant horses.  It identified several possible answers.  The first was that they could have been administered to the horses deliberately.  The RC concluded that there was no direct evidence of deliberate administration of PAAT substances.  It pointed out (page 7) that while the IHRB invited it to infer from the evidence that, in the absence of environmental contamination, it should conclude that the PAAT substances were deliberately administered, that would result in a finding of the most serious kind requiring evidence.  In the absence of such evidence, it declined to make that finding.  In support of that decision, it relied not merely on the absence of any direct evidence, but also to the absence of any circumstantial evidence, such as the failure, when the unannounced yard inspection took place, to find any traces of PAAT substances or objects associated with their administration.  That, coupled with the strenuous denials of Mr Comer and Mr Gorman that any such administration took place, caused the Committee to, "exercise caution before coming to the conclusion that there was deliberate doping in this case".  It further bolstered its decision by reference to the expenditure of money by Mr Comer in an effort to try and establish how the horses came to test positive and the fact that he had not been charged with the breach of Rule 273(i).  Thus, the RC found itself in the position of being unable to say, on the balance of probability, how the horses came to test positive for the PAAT substances. 

Having regard to our appellate role as described in the jurisprudence from which we have quoted extensively, it does not appear to us that it is open to us to come to any different conclusion.  Indeed, even if it were, we would be very slow to do so, given that we are not the tribunal of primary fact, and have none of the advantages that the RC had in that capacity.  Accordingly, we will not interfere with the conclusions reached by the RC in respect of deliberate administration.

 

Environmental Contamination

This was the principal thrust of Mr Comer's case.  As was recorded by the RC, he suggested that hay consumed by the relevant horses may have been contaminated with MD and/or MT through pig slurry. 

There were really two elements to this proposition, one factual and the other scientific.  The factual evidence was given by Mr Gorman, the assistant trainer and by Mr Comer.  It was contended that the good horses were fed good hay and that that hay may have been contaminated with MD and or MT as a result of pig slurry that had been used to fertilize the land from which the good hay was harvested.  Mr Comer's testimony was to the effect that the best hay was to be kept for the best horses and that he instructed Mr Gorman in that regard.  Mr Comer did, however, acknowledge during the course of his evidence the difficulties involved in getting staff to comply with instructions. 

Mr Gorman spoke of good hay being provided for around 14 horses because of the limited supply.  However, his testimony established that substantially more than 14 horses were fed the good hay and that approximately 20 other horses who were fed the good hay tested negative for MD and MT.  It appears that about 42 horses were fed the good hay in total but most of them tested negative.  The evidence was that the good hay which was fed to the horses and which was the alleged source of the contamination came from 2020 and unsurprisingly was not analysed.  As the RC pointed out, if contaminated hay was the problem, it was difficult to understand why some horses which were fed good hay tested positive and some did not. 

On a review of the evidence it appears to us that there was a good deal of doubt and some speculation involved in trying to establish the proposition that infected good hay was fed to good horses and that the good hay was responsible for the presence of the PAAT substances in the relevant horses.  In our view, the RC was justified on the evidence in not accepting that as a matter of fact the proposition was proved on the balance of probabilities.

The RC went on to consider the scientific evidence which was called in support of the contaminated hay theory.

That evidence has to be seen against the backdrop of testimony which was given by Dr Scarth, the Laboratory Director for the animal sports of LGC and Mr Gray the Chief Scientist at animal sports LGC.  It was to the effect that both MT and MD are entirely synthetic and are not found in nature.  If they were endogenous or prevalent in the environment, LGC might have expected to have detected these steroids in other plasma urine and/or hair samples analysed.  LGC screened in excess of 5,000 equine hair samples from animals originating from a variety of European and worldwide customers over the preceding six years and prior to the current finding for the IHRB none of those samples registered a detectable signal consistent with the presence of MT or MD.  Furthermore, neither of the substances had been detected in equine plasma samples at LGC over the past six years following the analysis of in excess of 60,000 plasma supplies.  Dr Dunnett, who was giving evidence on behalf of a regulator for the first time in his over 20 years’ experience in the area of equine analysis, said that he had never seen MD or MT in any samples.  The uncontroverted testimony of these scientists suggests that if environmental contamination was the cause of the presence of MD and MT in the horses, it had to be attributable to something peculiar to Mr Comer's establishment.  He sought to demonstrate that that was so by reference to the infected hay ingestion theory.  In order to advance this proposal, the services of JHG Analytical Services Limited were commissioned.

Mr Gough is the director of that entity, described as an independent chemistry and microbiology testing facility based in Waterford. 

JHG analysed 45 different samples, comprised of hay, water, and slurry.  The RC sets out in its decision the analyses and the findings of all relevant samples (P 6+7). We need not repeat them here.  There were two reports from JHG.  The first was subjected to heavy criticism by experts commissioned by the IHRB.  One of them, Dr Dunnett, described it as the worst report he had read.  These criticisms caused JHG to produce a supplementary report, but even with that, Dr Dunnett said he would have an issue with the quality of the confirmatory data.  Dr Moeller, said that if he were presented with the report, even in its updated form, he would not sign off on it.  The experts called by Mr Comer, in support of his environmental contamination theory, relied upon the JHG analyses and reports.  It follows that if those reports were unreliable, considerable doubt was cast over the evidence of the experts relying upon them.

The RC found that it could not place reliance on the JHG report and Mr Gough’s evidence.  It came to that conclusion having heard Mr Gough give evidence in defence of the report. The members of the RC were in a position to see how he dealt with the criticisms of his work.  Based on that assessment the RC found his work to be unreliable.  That view formed by the RC is one which is par excellence not one with which we should interfere with unless there was no evidence to support it.  In fact, a consideration of the testimony of Mr Gough, coupled with the criticisms made of his work, provides abundant evidence to support it.  For example, after the completion of the first report and the criticisms levelled at it, the following exchange took place between him and Mr Kennedy SC for the IHRB.  Day 8, page 102, questions 378ff: 

"Q. Sir, after that report came to hand, you received reports from the IHRB which made some criticisms of some of your work, I think that's fair to say? 

1. Correct.
2. There was a report ‑‑
3. I suppose in a way it was inevitable, because looking at the report and, in hindsight, it obviously didn't have all the information that it (sic) would have liked. I received a box, couriered to Waterford here, from LGC, from Mr Andrew Coonan, and in that box was seven ring binders, folders, loads of data. I looked at that box and I said, no, as a small laboratory we would not be able to provide that level of detail.  So, it was quite obvious that maybe that would have been ‑‑ those seven ring binders would probably have been the yardstick to which I was meant to adhere, and I can tell you right here and now that there was no way that was ever going to happen. 
4. 380. Okay. Tell me, sir, you then prepared a report in response to the criticisms that were expressed, isn't that so?
5. That's correct. There were criticisms expressed by Messrs. Moeller, and Dunnett and I responded as best I could to them. It is difficult enough to (sic) report in hindsight because there is so much involved and so much was required.  Again, it was down the line of something like resembling the LGC report.  LGC are a huge company.  I have no issue with LGC, but realistically we would not be in a position to issue a report of that nature.
6. 381. So ‑‑
7. Or that magnitude in fact.
8. 382. Okay. As you said there's a great deal more data in the LGC products and I think each data pack has approximately, and this is crudely put, approximately 150 pages for each test, would that be fair to say?
9. Correct, yes.
10. 383. And you say you wouldn't be able to produce that sort of output as I understand it. Is that so? 
11. No, not at all, not what they requested. I mean they requested every single piece of data, and they requested every single chromatogram.  In fact, Mr Hayden and Mr Coonan instructed me afterwards to produce, to come up with a negative data, and it is 165 pages, and it's actually heartbreaking in fact to do that, because bearing in mind we're a small laboratory, we have a very, very large client base, for the size of laboratory we are.  So you would appreciate that trying to carry out that type of work, along with keeping the show afloat with all the rest of the, you know, with all the rest of the samples that were coming in, you know, would be nigh on impossible." 

Later he was asked, (page 117)

"Q. 443.  And can I ask you, the report wasn't revised in any way before receipt of Mr Moeller's report, which I think is dated the 7th of February 2023, or Mr Dunnett's report of the 14th of February, '23?

1. It was not revised, no.
2. 444. So, but for the fact that Mr Moeller and Mr Dunnett carried out an extensive critique of your report, it would have been presented to this Committee as a full detailed comprehensive report setting out all the relevant details on the analysis conducted with a view to persuading the Committee to rely on it, isn't that so?
3. That's correct.
4. And none of the missing information, none of the errors, none of the misstatement, none of the uncertainties would in fact have been identified?
5. It would have been submitted in that form, yes."

On an overall view of the reports prepared by Mr Gough and his testimony, there were unsatisfactory elements, any number of which would have justified the RC in reaching the conclusion which it did. 

The RC also, of course, had the opportunity of assessing his demeanour when answering questions.  That is something which we do not have.  The finding of the RC concerning the lack of reliability of Mr Gough's evidence was by no means exclusively referable to his demeanour.  There was clear evidence quite apart from demeanour to justify the finding of unreliability.  In these circumstances we see no basis for interfering with the view formed by the RC, to the effect that it could not place reliance on his report and evidence.

We likewise see no basis for interfering with the view formed by the RC concerning Dr Fogarty.  She could not be regarded as an independent expert witness, having regard to her role in coordinating the investigation which Mr Comer had initiated, and indeed had offered samples from her own horses.  Furthermore, the RC was correct to conclude that she was not an expert on the matters on which she opined. 

As much reliance was placed on the JHG report by the expert witnesses called to give evidence on Mr Comer's behalf, it follows that the RC was quite entitled to prefer the scientific evidence called by the IHRB and so conclude that the proposition made by Mr Comer concerning environmental contamination was not made out. There was a clear evidential basis for such a finding, and we are satisfied that the RC was justified in preferring the IHRB expert testimony to that of Mr Comer’s experts.

Before departing from this part of the decision, we should make mention of the BHA study which was referred to in evidence and in the decision of the RC.  We do so because Mr Comer at the hearing before us deployed a research article which was published in December 2023 concerning the detection of MT and its metabolites in equine urine, plasma and hair following a multidose oral administration.  Dr Scarth and Mr Gray were two of the seven authors of the article.  They gave evidence to the RC that in their opinion, on the evidence available, the amount of MD and/or MT that would need to be ingested to obtain the estimated concentrations observed in the positive samples was not consistent with it being present as a result of environmental contamination.  Reference was made by the RC to the BHA study to support the view that the PAAT substances in the hair samples were unlikely to have been caused by environmental contamination.  Having considered the contents of the article of December 2023, we are not convinced that it affects the validity of the evidence given by Dr Scarth and Mr Gray or casts doubt upon the conclusions reached by the RC on foot of their testimony. 

Various criticisms were made of the RC to the effect that it either did not engage sufficiently with the scientific evidence or failed to understand the case being made by Mr Comer.  We do not believe that that criticism is justified.  It is of course true that the RC did not produce an enormously long judgement which minutely examined each and every proposition put by Mr Comer and his experts.  Indeed, during the hearing before us, there was a good deal of minute rummaging through elements of the transcript to demonstrate that this point or that had not been the subject of exhaustive analysis by the RC.  The RC, having regard to the view it formed of the evidence was not obliged to treat of all this material in its decision.  Tribunals such as the RC, or indeed this body, are not expected to produce judgments of the same length and detail as might be expected of a High Court judge.  In our view, the decision under consideration on this appeal did what it was required to do, namely, to give the decision and the reasons for it in such a way as to apprise the affected parties of what they are entitled to know, having regard to the relevant authorities already cited. There can be no doubt, but that Mr Comer couldn't but have been aware from a reading of the decision of the RC as to why he had lost. Sufficient information was given to him so as to enable him to know why he lost, whether he had an appeal and to arm himself for such appeal.  The decision of the RC reached that standard.  It certainly did not fall below “the irreducible minimum of reasoning” which would require us to set aside the decision.

In these circumstances, we take the view that the RC was correct to conclude as it did, and so we dismiss Mr Comer's appeal concerning the breaches of Rules 96(a) and (b)/(c).

Rule 272(i)

The RC found Mr Comer guilty of a breach of this Rule for a variety of reasons.  Insofar as it relied upon inadequacy of security or cameras at the Eagle Lodge premises, we have already held, having regard to the new evidence of Mr Quinn, that there was not in fact any such inadequacy.  Accordingly, we omit that finding in its entirety as a basis for finding Mr Comer guilty of a breach of Rule 272(i).

We agree with the RC in its view that there is no direct equivalence between the case law on professional misconduct and the interpretation of this Rule.  It held, and we agree, that it is not necessary to establish moral turpitude or conduct of a "morally culpable or otherwise disgraceful kind, in order to attract liability for breach of the Rule". 

In its decision on sanction, when complaint was made concerning its findings on security, it made it clear that even in the absence of that issue, there was other evidence to justify its conclusions.  It is clear that Mr Comer failed as a matter of probability to provide a satisfactory explanation for the presence of these prohibited substances in twelve of his horses.  The breach of Rule 96 in itself is prejudicial to the integrity, proper conduct, and good reputation of horse racing.  But there is more.  The RC referred to the unsatisfactory testimony given by Mr Comer concerning his so called, "unblemished record".  We have held that the RC was procedurally wrong to punish Mr Comer for a breach of Rule 272(ii) and have set aside its findings and penalty in that regard.  Such conduct also falls within the purview of Rule 272(i).  The RC clearly took this into account in making its finding of a breach of Rule 272(i).  With the setting aside of the breach of Rule 272(ii) there can be no question of any form of double punishment of Mr Comer. 

The RC was clearly correct to record that there were aspects of the evidence given by Mr Comer which called into question his candour and credibility.  The assertion that he had an "unblemished record", which was persisted in by him, was manifestly not true.  The RC records his record as follows: 

"In May 2017 he was fined for failing to return 15 horses out of training.  In March 2017, 13 of 19 horses required veterinary input, care and monitoring and there were three unregistered staff in his yard.  On 3rd July 2017 he was fined €15,000 for providing false and misleading information.  He was also fined for 6 riders not wearing body protection, failing to keep a medical register to required standards and failing to register 2 members of staff.  In September 2017 he was found guilty of having a horse receive a vaccination less than 7 days before a race.  In March of that year he was found guilty of supplying misleading information at a steward's inquiry.  On two occasions he was found guilty of declaring a horse as a gelding when, in fact, it was a colt." 

The RC also records that at the hearing he was reluctant to admit some of these findings, even though a number had been admitted at the time, and that he sought to minimize the seriousness of some of the findings.

The RC was entitled to conclude that the giving of such was a breach of the provisions of Rule 272(i). 

Accordingly, we hold that the breaches of Rules 96(a) and (b)/(c), in the absence of a satisfactory explanation, constitute conduct which amounted to a breach of Rule 272(i) as did the giving of the false and misleading testimony to the RC, as occurred in this case.  We affirm the finding of a breach of Rule 272(i) by Mr Comer. 

Before departing from this topic we share the concern expressed by the RC as to Mr Comers absence from the country for 9 months of the year.  The appropriateness of a trainer’s licence being held in such circumstances might be considered by the Licensing Committee.

Penalty

It is convenient if we take the two appeals on penalty together.

In its decision of the 28th of March 2024 in the case of AJ Martin the Appeals Body accepted that in dealing with appeals against penalty, the jurisprudence of the Court of Appeal on that topic ought, in general, to be followed.  A number of decisions of the Court of Appeal were cited and the principle to be extracted from them was articulated by Ms Justice Kennedy, giving the judgement of the Court of Appeal on the 21st of July 2022 in the case of DPP v. Bannerton.  She said: 

"The jurisprudence relating to undue leniency appeals is well settled at this point.  The Court will not intervene in the sentence imposed unless it is satisfied that the sentence constitutes a substantial departure from the appropriate penalty".

This Body should only intervene in circumstances where the penalty imposed constitutes a substantial departure from what would be regarded as the appropriate penalty. Such a departure would be an error in principle.  A margin of appreciation has to be given to the RC in fashioning an appropriate penalty and the Appeals Body should only intervene in circumstances where it is demonstrated that such an error in principal has been made.  A similar approach applies in respect of appeals against severity.  Thus, the Appeals Body should only intervene in circumstances where an error of principle is made in respect of penalty.

The Martin appeal also gave rise to the identity of five matters which should be taken into account in deciding on the question of penalty.  They are: 

1. The preservation of the integrity, proper conduct and good reputation of horse racing;
2. The prevention of conduct or behaviour prejudicial to those;
3. The punishment of the wrongdoer;
4. The discouragement of others who might be tempted to emulate the behaviour of the wrongdoer, and
5. The fashioning of a penalty which is proportionate and appropriate in all the circumstances and those circumstances include a consideration of mitigating and aggravating circumstances.

Turning first to the penalties imposed in respect of the breaches of Rules 96(a) and (b), we have carefully considered what the RC had to say in its decision on sanction.  In approaching the question of sanction, one has to bear in mind that the presence of prohibited and especially PAAT substances in racehorses strikes at the heart of Irish racing.  It damages the integrity and reputation of the sport.  Androgenic anabolic steroids are just such substances and no products containing MD or MT are licensed for use in horses in Ireland.  It is undoubtedly the case that no allegation was made by the IHRB and no finding made by the RC or by us, that these substances were deliberately administered.  But it also is the case that Mr Comer failed to provide, on the balance of probabilities, a reasonable explanation for what occurred.  The prohibited substances were not found in a single horse, but rather in approximately 10% of the horses being trained by Mr Comer. 

The RC acknowledged the trouble and expense that Mr Comer went to in order to provide an explanation, but the fact is that he failed to do so.

Bearing in mind the principles that fall to be considered on the question of penalty, we conclude that the decision arrived at by the RC in respect of the Rule 96 breaches was in all the circumstances reasonable and proportionate.  It fell well within the margin of appreciation which must be afforded to the RC. 

We do not accept the contention made by Mr Comer that these penalties would be appropriate only where deliberate administration was proved.  If deliberate administration had been proved, then penalties very much in excess of those imposed would be called for.  By the same token, neither do we accept the IHRB contention that the penalties imposed here are unduly lenient and inadequate.  The case made by the IHRB for greater penalties would undoubtedly be correct if deliberate administration had been proved.  

Accordingly, we affirm the decision of the RC in respect of the penalties imposed for the breaches of Rule 96. 

In respect of the penalty imposed for the breach of Rule 272(i), we are of opinion that that should be set aside.  We have affirmed the finding of a breach of that Rule, but we did so on a more limited basis than that used by the RC.  In considering the question of the penalty imposed it is impossible for us to say what percentage of the fine of €20,000 or the 3 year concurrent withdrawal of Mr Comer's license was attributable to the findings made concerning substandard security and supervision at the yard.  Accordingly, with a view to ensuring that no possible injustice is done to Mr Comer, we will set aside that penalty.

Disposal

1. Mr Comer's appeal in respect of both findings and penalties imposed in respect of the breaches of Rule 96(a) and (b)/(c), is dismissed. The fines imposed must be paid on or before 15 July 2024.The withdrawal of his trainer’s licence will take effect from 15 July 2024
2. Mr Comer’s appeal in respect of the breach of Rule 272(i) is dismissed but the penalty is set aside.
3. Mr Comer's appeal in respect of the breach of Rule 272(ii) is allowed and the finding and penalty is set aside.
4. The IHRB appeal in respect of undue leniency of penalty is dismissed.

Costs

The RC directed Mr Comer to pay 80% of the costs incurred by the IHRB, less a sum claimed for laboratory costs excluding salaries.  Most of that was for analysis of A samples taken from horses owned by Mr Comer.  The RC disallowed that sum because it's part of the IHRB's regulatory function to collect such samples.  Neither the RC nor this body are concerned with the quantum of costs of either party.  Neither the RC nor we have any jurisdiction in that regard, nor, indeed, would we have the competence to measure costs. 

The award of costs was a matter for the discretion of the RC, such discretion to be exercised both judicially and judiciously. 

Mr Comer failed to discharge the burden of proof undertaken by him.  We find nothing wrong with the award of 80% of the costs in favour of the IHRB in such circumstances.  We therefore affirm the 80% costs order in favour of the IHRB, less whatever is the appropriate sum in respect of laboratory costs concerning the analysis of the A samples. 

We note that the Rules do not appear to provide a mechanism for the measurement of appropriate costs or their recovery.  That is a matter which the IHRB might usefully bear in mind when the Rules are next being reviewed. 

Costs of the Appeal 

Mr Comer has had partial success on his appeal, but the areas where he was successful took up only a small part of the time of the appeal.  A generous allowance in that regard would be 15%.  He also defeated the appeal of the IHRB on leniency.  But that took up a minuscule amount of time and even if he were awarded his costs in respect of that, it would be a bagatelle in the overall context.

In all the circumstances, we are provisionally of the view that the justice of the case is met by directing Mr Comer to pay 75% of the costs of the appeal to the IHRB.

If either party is dissatisfied with this view on costs, they should notify us in writing of that and make submissions on the topic within 14 days of publication of this decision.  We will then consider such submissions and deliver our final view on the issue.

The case was presented by Mr Ronan Kennedy SC appearing with Ms Caoimhe Daly BL instructed by DAC Beachcroft Solicitors, Dublin on behalf of the Irish Horseracing Regulatory Board and Mr Martin Hayden SC appearing with Mr Frank Crean BL and instructed by Coonan Cawley Solicitors, Naas, County Kildare on behalf of Mr Comer.

Having considered the submissions, Justice Peter Kelly issued the decision set out below on behalf of the Appeals Body.