The Appeals Body (Division 2) Mr. N.B. Wachman (in the chair) Mr. Anthony Byrne and Mr. Joseph M. McGrath convened via Zoom on 14th December 2020 to consider the Appeal of Mr. L.P. Gilligan (Rider) against the decision of the Stewards at Limerick on 1st December 2020.

On the day, following the running of the John Thomas McNamara Series (QR) Handicap Hurdle, the Stewards suspended Mr. Gilligan for 10 racedays having found him in breach of Rule 212A(ii), in that his mount, Oneknightmoreihope, was not seen to be the subject of timely, real and substantial effort to achieve its best possible placing and that the rider had not been seen to make the efforts required by this sub-rule.

The grounds of appeal lodged by Mr. Gilligan was that the Stewards on the day erred in their decision.

When the Appeals Body initially convened on 14th December 2020, Mr. Patrick Kennedy, solicitor, on behalf of Mr. Gilligan, made a number of submissions with regard to the fairness of Rule 212. As a result of these submissions, the Appeals Body adjourned the matter to enable both parties to make further submissions and it was agreed that these submissions would be considered by a different panel of the Appeals Body.

Subsequently, the Appeals Body (Division 2), Mr. Justice Raymond Groarke (in the chair), Mr. Peter Law and Mrs. Justice Siobhan Keegan convened via Zoom on 29th January 2021 to consider these submissions. On this occasion, Mr. Gilligan was again represented by Mr. Patrick Kennedy and the IHRB by Mr. Frank Crean, BL, instructed by Ms. Cliodhna Guy. Having considered the submissions with regard to the fairness of the rule, the Appeals Body found that they could not support the argument made by the Appellant which is effectively to strike down part of the Rules as unfair, unreasonable and irrational. The Appeals Body also found the Appellants complaints of the Rules themselves being Ultra Vires and in breach of contract must also fail.

The written judgement is attached and Mr. Gilligan’s original appeal against the decision of the Stewards at Limerick on 1st December 2020, will proceed in front of the Appeals Body chaired by Mr. N.B. Wachman in due course.

 

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Appeals Body of IHRB

An Appeals Body convened by Zoom to consider the Appeal taken by Liam Gilligan, Rider, (the Appellant) against the decision of the Acting Stewards at Limerick on the 1st December 2020.

Certain technical submissions were made to that Appeals Body and as a consequence it was agreed by the IHRB and the Appellant that those submissions be referred to a different Appeals Body for its consideration as a preliminary issue.

It was further agreed that the second Appeals Body was required to consider and rule only upon the submissions made to it and was not to be involved in consideration of the actual merits of the appeal.

That Appeals Body, Mr. Justice Raymond Groarke (in the chair), Mr. Peter Law and Mrs. Justice Siobhan Keegan considered the case on 29 January 2021.

Mr. Patrick Kennedy of Patrick J O’Meara & Co, Solicitors, appeared for the Appellant. Mr. Frank Crean of Counsel appeared on behalf of the IHRB.

Introduction

The Appellant appeals against the decision of the Stewards at Limerick Races on 1st December 2020 wherein they found that the Appellant had breached Rule 212A (ii) of the Rules of Racing and suspended him from racing for 10 days.

In the course of his Appeal, the Appellant contended that Rules 212, 212A, 212B and 212C are unfair, unreasonable, arbitrary and irrational; that the Rules were ultra vires the statutory provisions in the Irish Horseracing Industry Act 1994 as the Rules did not meet the requirements of the Act ‘to make and enforce the Rules of Racing and in so doing to promote integrity and fair play in horseracing", and that consequently the IHRB was in breach of its contract with the Appellant.

These issues were referred to this Appeals Body, and with the agreement of the IHRB and the Appellant, the merits of the Appeal per se were adjourned pending the outcome of this Appeal. The issues raised are also of relevance in Appeals taken by M.J.Molloy (Rider) and D.P.Holden (Rider) against decisions that they were in breach of the stated Rules. Mr Kennedy also represents those Appellants.

The Appeals Body has the powers stipulated by Rule 19 C of the Rules of Racing.

The Rules

Rule 212 states as follows:

"Having regard to the importance, for the health (including financial health) of the sport and industry of racing and breeding, of each horse competing in each Race being seen to have been given a full opportunity of obtaining the best possible place there is an overall obligation on all persons who have any involvement with the running and riding of a Horse in a Race to ensure that the Horse concerned runs on its merits and is also seen, to a reasonable and informed member of the racing
public, to have been run on its merits. In that context it is the obligation of all such persons to ensure that the racecourse is not used as a training ground and that all Horses, including Horses having their first run, must be ridden, and be seen to be ridden, to attain the best possible place and must not be deliberately eased before passing the winning post without good reason. In the light of the overriding obligation referred to and the need for it to be seen to be the case that all such persons have taken all reasonable and permissible measures in relation to the running and riding of the Horse concerned to ensure that it has been given, and has been seen to have been given, a full opportunity of obtaining the best possible place, the following specific rules are required. Rules 212, 212A, 212B and 212C are to be considered part of a single rule."

This Rule as an ‘Introduction’ puts the succeeding Rules in their proper context and provides a helpful and important guide to their interpretation.

Rule 212A

This Rule identifies a number of offences arising from the intent and spirit of the Introduction:

(i) Offence: Deliberately or recklessly causing or permitting a horse to run other than on its merits.
(ii) Offence: Riding a horse in a race in such a way that the horse cannot be seen to have been the subject of a genuine attempt to obtain from the horse timely, real and substantial efforts to achieve the best possible place;
(iii) Offence: Causing, contributing to or permitting the running and/or riding of a horse with the immediate foregoing consequence.
(iv) Offence: If a horse, following examination by the IHRB Veterinary Officer, is found to be in a condition which the person concerned in the running of the horse knew or should have known would preclude its chance of winning or achieving its best possible placing having regard to its ability. (This offence is not dependant on the horse actually running in a race. The finding of a horse in the described condition following examination by the Veterinary Officer, either before or after a race, establishes the offence.)
(v) Offence: Running or riding of a horse in a race for the purpose of giving the horse a school.
(vi) Offence: Failing to obtain the best possible placing in a race as a result of a negligent misjudgement (including a misjudgement of a winning post or the number of circuits, easing his mount without good reason or stopping riding.)

Rule 212C

This Rule provides for certain matters under Rule 212. The relevant sub-rules for the purpose of this Appeal are as follows:

" (b) For the purposes of this rule, the running and riding of a horse in a race will be taken to include the giving of instructions concerning the manner in which the horse should be ridden and
any matter sufficiently connected with the race which might reasonably be considered to have the potential to affect the placing of a horse in a race.

(c) Without prejudice to the generality of the requirement that the Stewards, or in the appropriate circumstances the Referrals Committee or the Appeals Body should take into account all relevant circumstances and evidence in the conduct of any Stewards Enquiry, referral or appeal hearing under this rule, the following matters may be taken into account……, "

This Rule then goes on to set out various matters to which those bodies may have regard if they are relevant to the particular circumstances being examined. While those matters are not immediately relevant to the issues raised in the subject matter of the Appeal being considered by this Appeals Body, what is of import is that this Rule specifically requires and mandates that the Stewards, the Referrals Committee or the Appeals Body (the Enquiry Body) as the case may be in the course of their enquiry must consider ‘all relevant circumstances and evidence’.

The argument

The Appellant contends that Rule 212 (including Rules 212A, 212B, 212C) is:

1. ‘Unfair, unreasonable, arbitrary and irrational’,
2. Ultra vires the authority of the IHRB as provided under Section 39 of The Irish Horseracing Act 1994 as amended, and
3. In breach of the contract between the Appellant and the IHRB.

Mr. Kennedy’s focus was upon the application of Rule 212A (ii) which he argued conflicted with the general Rule 212 and therefore could create an unfairness to those so charged. Specifically, we repeat that this Appeals Body is not asked to consider and does not make any judgment on the actual merits of the Appeal in so far as it relates to the riding of the horse on the occasion in question.

The Appellant complains that the Rules as they stand can lead to injustice and unfairness in that as he contends happened in the subject race, had the horse been ridden with greater vigour and force (and he had therefore complied with the stated requirement of Rule 212 to be seen to ride the horse in that way), this particular horse would not only not have responded, but would have effectively stopped. He further contends that while the manner in which he actually rode the horse encouraged and caused the horse to get his best possible place in the race, a reasonable and informed member of the racing public may have perceived most unfairly that the rider was not ‘seen to have ridden’ the horse in the manner demanded by the Rule.

The Appellant says that, consequently, the Rule is unfair, unreasonable, arbitrary and irrational.

Unfair, unreasonable, arbitrary and irrational

The purpose and thrust of Rule 212 (and for this purpose ‘Rule 212’ also includes Rule 212A, 212B, 212C) is to protect the integrity of the sport of horse racing by ensuring that every horse participating in a race does so on its merits or to put it another way does so to the best of its ability. This obligation is to be viewed from the perspective of a ‘reasonable and informed member of the racing public’. It is a matter for the Enquiry Body to determine, on the balance of probabilities, whether, in all the circumstances, a horse was seen to have been the subject of a timely effort to make a real and substantial effort to achieve the best possible place.

This Rule is necessary to ensure that horses run on their merits which is of fundamental importance to the integrity of horse racing. The integrity of horse racing is undoubtedly damaged where, for whatever reason, a horse is not seen to run on its merits or not to have been the subject of a genuine attempt to achieve the best possible place. Rule 212 expresses the general obligation on all licensed persons, trainers and riders to ensure that horses are permitted to run on their merits and are seen to do so. Rule 212A (ii) prescribes a specific offence, the commission of which will attract penalty.

Rule 212A (ii) in simple terms provides that it is not a full defence to establish that a horse ‘other than the winner' actually achieved its best place even though the rider had not been seen to make the necessary efforts. Absent this proviso, a rider who breached the rule would be entitled to rely on a technical defence, which would not accord with the spirit of Rule 212 in general or Rule 212A(ii) in particular. We accept the IHRB's contention that it would undermine the entire scheme and purpose of the Rule if a rider could escape sanction even though he had not made and was not seen to have made the necessary effort, simply because he could establish, for whatever reason, that the horse probably would not have done any better if a proper effort had been made.

The obligation in Rule 212 is required to be met to the perspective of "a reasonable and informed member of the racing public". It has not been suggested in this hearing that the persons tasked with membership of Acting Stewards Panels, the Appeals Body or the Referrals Committee are not competent to be considered as reasonable and informed members of the racing public. For the avoidance of doubt, the generally applied criteria for membership of the I.N.H.S.C and the Turf Club (from which membership those who make up the Enquiry Body are chosen) includes those involved in horse breeding, racing administration, horse ownership and a detailed knowledge of racing and its Rules is required. Training to update and improve these skills is not overlooked.

The Enquiry Body is well placed to understand that the obligation to ‘get the best possible place’ is not necessarily the same as the obligation ‘to be seen to get the best possible place’. Horses have their own individual characteristics and idiosyncrasies and should a trainer or rider believe that these are relevant to compliance with the stated obligations, then, no doubt, the Enquiry Body will be fully appraised of these features and can make a reasoned and informed decision taking such information into account, as it deems appropriate.

The procedures clearly permit a full and thorough consideration of all matters relevant to the issues in question. Evidence regarding the characteristics of a horse offered by a Trainer/Rider is as much part of the evidence in the hearing as anything else offered. It is for the Enquiry Body hearing all the evidence to decide what weight to attach to any part thereof. The Trainer/Rider is at large in adducing evidence which they believe relevant to the issues of the enquiry.

In making its determination, the Enquiry Body must adopt and follow procedures that do not and must not vary to any substantial degree, if at all, from those procedures which are deemed to be fair, proper, just, and reasonable in protecting the rights of individuals who are the subject of enquiry in civil or administrative hearings, professional regulation, workplace and a myriad of other processes and procedures.

In short, this Appeals Body understands that the rules may lead to difficult cases however each case is determined on its own facts and in each case persons affected are entitled to put their case before the Enquiry Body. We do not accept the argument that the Enquiry Body cannot deal with cases of this nature at the racecourse or that those affected are prevented from putting their case. In any event, riders and trainers, have the right to appeal any findings from an Enquiry Body and to collect and present further additional evidence if they so choose on appeal.

Conclusion

That being so, this Appeals Body, insofar as it has been asked to give a view, considers that this appeal should simply be argued on its merits. The Appeals Body cannot support the argument made by the Appellant which is effectively to strike down part of the Rules as unfair, unreasonable and irrational. The Appellants complaints of the Rules themselves being Ultra Vires and in breach of contract must also fail.

This matter is now remitted to the IHRB for further consideration of the merits.