The Appeals Body, Ms. Susan Ahern B.L. (Chair), Mr. Laurence McFerran and Mr. Finbar Cahill convened in the Offices of the Irish Horseracing Regulatory Board, to consider the appeal of Ms. Samantha Finnegan against a decision of the Licensing Committee dated 2^nd February 2023.

Ms. Finnegan had submitted two applications for a Pre-Racehorse Trainer’s Course and Licence, most recently on the 17^th January 2023. Ms. Finnegan was informed in writing on the 2^nd February 2023 that the Licensing Committee had declined her application for a licence to train under the Rules of Racing and Irish National Hunt Steeplechase Rules due to her relationship with her spouse, Mr. Francis Finnegan. Racing Victoria had notified the IHRB on 11^th April 2022 that Mr. Finnegan had been declared a disqualified person in that jurisdiction for a period of 2 years.

The grounds of appeal lodged on behalf of Ms. Finnegan were that the Licensing Committee had erred in their decision.

Having considered the evidence, the Appeals Body delivered the following written decision which is set out below

 

Background

1. The Appellant appealed the decision of the Licensing Committee of 2 February 2023. The sequence of events and applications leading to that decision are relevant and summarised hereunder.
2. On 11 April 2022, Racing Victoria notified the IHRB that Mr. Francis Finnegan (husband of the Appellant) received a 2-year disqualification from a Racing Victoria Tribunal.
3. On 19 April 2022, the Appellant submitted an Application Form for the Pre-Racehorse Trainers Course and Provisional Trainers License (Restricted, Flat only) to the IHRB. Therein the ‘Training Establishment’ was notified as Monanny Farm, owned by Mr. Paul Callan SC, and one horse was listed for training. The ‘Fit and Proper Person’ section of the Application Form was completed with all ‘No’ responses including, inter alia, in relation to “any other relevant information that you wish to disclose to the Licensing Committee”.
4. In relation to certain pre-conditions that “must” be met by applicants, the Application Form for the Pre-Racehorse Trainers Course and Provisional Trainers License provides at Section 1 of the Information as follows:

“Applicants should have a minimum of 2 years’ experience in any of the following:

• Working in a trainers yard with a full time Stable Employee Card that will be verified through our system OR
• Held a rider’s license with an acceptable number of rides for the same period OR
• Been registered as a Point-to-Point Handler for 2 years or more with an acceptable number of runners.

Those outside of these criteria should discuss their experience with the IHRB Head of Licensing.”

5. On 5 August 2022, the IHRB having reviewed the Appellant’s experience as a rider/licensee in both New Zealand and Australia, invited the Appellant to provide additional documentation to demonstrate her relevant experience, including as a Stable Employee as her experience as a licensee (Apprentice Jockey license) was deemed insufficient. IHRB also advised her that they had been notified of the Victoria Racing Tribunal Decision in respect of Mr. Finnegan.
6. On or about 17 January 2023 the Appellant provided a Licensing Application for Committee Meeting Review in the Restricted category with supporting documentation. The IHRB wrote to the Appellant on 18 January 2023 notifying her that as she did not meet the minimum requirements her application would have to be approved by the Licensing Committee and additional supporting documents were also sought. What followed was a series of communications between the Appellant and the IHRB Licensing Department in preparation for the Licensing Committee. In an email of 19 January 2023, the IHRB noted that:

“you are not the only person we are/have asked this of so please do not feel as though you are. I am just trying to help you gather as much information as possible as this will all be asked of you in an interview with the Committee. If it is not presented and you don’t have sufficient knowledge or documentation they will not grant you [sic] license and you will have wasted time and money doing the course. Which is why this is needed before the Assessment [for the Pre-Licensing Trainers Course]”.

7. The IHRB Licensing Committee met on 2 February 2023 to consider licensing applications. They considered the Trainer Licence (Restricted) Application of the Appellant and determined not to grant the Licence. The Licensing Committee decision was communicated to the Appellant by the IHRB Head of Licensing, Legal and Compliance (the “Decision”). The rationale for the Decision reads as follows:

“The Licensing Committee is not satisfied that there is sufficient autonomy of the training operation. The Committee considered whether appropriate conditions or restrictions could be imposed that would provide assurances to the IHRB and the racing public that Mr. Finnegan has no involvement in the training operation. However, the specific circumstances of this application let the Committee to conclude that there is no meaningful or effective way of monitoring Mr. Finnegan’s involvement or otherwise, including his presence on the yard or your communications with him. As such, the IHRB cannot be assured that Mr. Finnegan has no role in the training operation and that, in granting your application, he would not resume his role as a trainer in all but name. In the absence of such assurance, your personal relationship with Mr. Finnegan would lead the racing public to reasonably infer that Mr. Finnegan continues to have influence and/or involvement in the operation, which in the opinion of the IHRB would be prejudicial to the good reputation of horseracing”.

8. The Appellant expressed her intention to appeal the Decision on 3 February 2023. The Notice of Appeal was submitted on 7 March 2023 which is within the time period specified in Rule 256 of the Rules of Racing and I.N.H.S. Rules (the “Rules”).
9. Following an application by the Appellant on 3 February 2023 to attend the Pre-Racehorse Trainers’ Course (commencing 9 February 2023), the IHRB granted the Appellant permission to attend same without prejudice to the outcome of the Appeal. The Appellant did attend the course (held bi-annually) which was held over period of 4 weeks from 6 March 2023. It is understood that the Appellant did well on that course.
10. The Appeal Body was appointed by the IHRB on 7 March 2023 to consider the appeal.

Positions of the Parties

11. The Appellants grounds of appeal can be summarised as follows:

• The application for a trainer’s licence was refused on the singular grounds of the Appellant’s marriage to Mr. Francis Finnegan who is the subject of a two-year disqualification by Racing Victoria. The status of the Appellant’s spouse is totally irrelevant to an application for a trainer’s licence, the suitability of the Appellant alone is the primary concern;
• It is a fundamental breach of fair procedures that the Appellant’s application should be refused on these grounds;
• Mr Callan denies Mr. Finnegan would have a role in the training of his horses which he has exclusively entrusted to be trained by the Appellant;
• No consideration was given by the Licensing Committee to the exceptional experience of the Appellant in several jurisdictions as an established assistant horse trainer, track rider, and licensed jockey;
• Based upon the reasoned Decision of the Licensing Committee the following are relevant considerations; (a) the Committee never sought any assurances from the Appellant viz Mr. Finnegan’s involvement and/or his current employment status; and (b) the possibility of the imposition of “appropriate conditions” on a licence to the Appellant was never canvassed with her;
• The Appellant already holds an IHRB issued Handler’s permit which must be indicative of her established good character and suitability; and
• The grounds of refusal may have extended beyond those contained in the Decision and that such approach is grossly unfair.

12. The Appellant requests that the Decision of the Licensing Committee be overturned and that the Appeal Body also stands in the position of the Licensing Committee and conduct the Interview stage of the Trainer License Application process.
13. The position of the IHRB in relation to the appeal can be summarised as follows:

• The Licensing Committee did consider the Appellant’s experience, referencing Regulation 1, Section 1, Rule 4.3 of the Rules (first time applicants), and found that she lacked relevant experience and did not furnish confirmation of any Stable Employee Cards from any jurisdiction in her application;
• The Licensing Committee was required to consider whether the Appellant met the ‘fit and proper person’ requirements under the Regulations Relating to the Issue of Licenses (the “Regulations”). The Appellant did not disclose Mr. Finnegan’s disqualification by Racing Victoria at a time when the Appellant was working for him and held a close association, which was a relevant consideration. Had the information been furnished it would have revealed the Appellant’s own personal role in the matter and her professional and close personal connection to such a serious integrity matter;
• The refusal of the Licensing Committee could not be considered as a singular ground of refusal as the Appellant had been put on notice in correspondence of the necessity, inter alia, to demonstrate her experience and proposed staffing for the enterprise (Regulation 1, Section 1, Rule 5.5) and the relevance of her occupation.
• The denial of the Trainer Licence does not prohibit the Appellant from earning a living within the equine industry, nor from carrying on her current arrangement with Mr. Callan relating to management and pre-training activities involving broodmares and youngstock.

14. The IHRB requests that the appeal be dismissed and that the Appeal Body refuse the Appellant’s licensing application to advance further until there is a relevant change to her circumstances.
15. On notice to and with the consent of the Appellant, supplemental information was sought by IHRB from Racing Victoria and New Zealand Thoroughbred Racing (‘NZTR’) in relation to the Appellant’s professional employment in those jurisdictions. The Appellant’s record from NZTR and Racing Victoria were each provided on 16 March 2023. On the basis of the written evidence and that of the Appellant, her riding/horse management record can be summarised as follows:

 

Apprentice Jockey Trainer: Tony Bambry                 Kevin Gray                 Paddy Payne	NZTR	17 March 2003 to 29 April 2008 1 June 2003 – 1 February 2004 30 Jan 2005 – 31 March 2005
Jockey		1 August 2008 to 5 October 2010
Class A (Rider)		6 October 2010 to 31 July 2011
Stablehand Class A Misc. (Riding)		1 August 2011 to 31 July 2013
Registered Stable Employee / Jumps Outs Reg. Holder	Racing Victoria	9 years (2012 – 2021)
Reg. to Licensed Trainers Michael Kent Mark Kavanagh Greg Eurell Chris Hyland Francis Finnegan		April 2012 – June 2013 1 month 17 July 2013 to 16 August 2015 November 2013 to December 2015 2015 - 2021
Owner/co-owner race horse Land Afar / Belle Fourche 19 Sacred Cove / Getemhel Wolf Tone Deerfields	Ireland Australia Australia New Zealand
Handler’s permit Point to Point	Ireland	15 Sept 2022 – 17 Jan 2023

16. A full pack of documentation was provided to the Appeal Body and the Appellant.

Jurisdiction of the Appeal Body and related Rules

17. Pursuant to Rule 19C4(i) the Appeal Body has jurisdiction to hear and determine appeals against the decisions of the Licensing Committee.
18. Under Rule 19C5 an appeal shall be limited to a review of the issues and evidence which were before the Licensing Committee subject to Rule 256 and/or the discretion of the Appeal Body having considered an application for a de novo
19. In accordance with Rule 19C6, the Appeal Body has:

“all powers necessary for, and incidental to, the performance of its function of hearing, determining and adjudicating appeals pursuant to these Rules, including without limitation, all of the powers of the Referrals Committee, the Licensing Committee, the Stewards or Horse Racing Ireland as applicable with changes deemed to have been made to reflect the different context…”

20. In accordance with Rule 271 the standard of proof to be applied to this matter is the balance of probabilities.

The Hearing

21. Counsel for the IHRB set out the background to the appeal, the grounds of appeal and addressed some documentary clarifications.
22. Two preliminary applications were made by the Appellant. First, for the hearing to be held on a de novobasis, given in particular the additional information now available which was not before the Licensing Committee and secondly, given the lapse of time and completion by the Appellant of the Pre-Licensing Trainers Course, and in the interests of finality, for the Appeal Body to also treat the evidence taken at the appeal hearing as constituting the ‘Interview’ stage in the application process to become a Licensed Racehorse Trainer or remit the matter back to the Licensing Committee for the final steps.
23. The Appeal Body considered the applications and determined that in the circumstances, given the additional information which was available to it that was not before the Licensing Committee, it was appropriate that the hearing be held on a de novo basis and did so in accordance with Rule 256 and the Appeal Body’s inherent discretion.
24. The Appeal Body reserved its position in relation to the application that the hearing also be treated as the ‘Interview’ stage of the Trainer License process as being premature at that juncture.
25. Counsel for the Appellant provided the background to the appeal and noted that Mr Callan is in full control of and resides at Monanny Farm, that the restriction of Mr. Finnegan from the Farm can be assured and if necessary any restrictions imposed by the Appeal Body can be satisfied. His horses Sioux Princess and Belle Fourche are principally trained by the Appellant alone and Mr. Finnegan has no involvement and this therefore changes the context of the Decision.
26. The Appellant’s submissions can be summarised as follows:

• She did meet the criteria to be granted a Trainer’s Licence. She was brought up in a family of trainers, had been involved in riding and as a stable employee for 20 years, had responsibility for bringing horses to and at races, relayed instructions to jockeys, ridden out, has owned and trained her own horses and is in charge of Mr Callan’s horses. She had completed the Pre-Trainer’s course.
• That Mr. Finnegan would have no involvement in the training of the horses and was now doing another job outside of the equine industry.

27. The submissions of Counsel for the IHRB can be summarised as follows:

• IHRB noted that the Appellant did not meet the minimum criteria to apply for a Trainer’s Licence and therefore the application had to be considered by the Licensing Committee. Other deficiencies with regard to the Appellant’’ application had previously been brought to her attention before the application was submitted to the Licensing Committee.
• The Decision of the Licensing Committee reflected the fact that the close association of the Appellant with Mr. Finnegan was not addressed in a manner that satisfied the Committee that Mr. Finnegan would have no involvement in the training operations of the Appellant.  

Decision

28. While the Appeal Body has considered all the facts, submissions and evidence submitted by the parties in the present proceedings, it refers in its decision only to the submissions and evidence considered necessary to explain its reasoning.
29. In ordinary course, the licensing procedure for a Racehorse Trainers License involves four stages before it can be granted to an applicant namely, (i) screening assessment to participate in the Pre-Licensing Trainers Course, (ii) successfully completing the Course, (iii) interview and (iv) stables inspection. In this case, the Appellant undertook the first stage, was refused by the Licensing Committee and therefore instigated her appeal of the Decision not to permit her to attend the Course. However, as the Course is only held bi-annually, and was to commence within a week of the Decision, the IHRB, following the Appellant’s request, permitted her to proceed to undertake the Course, notwithstanding that her Appeal was pending.
30. In the view of the Appeal Body, the Licensing Committee Decision was made in the absence of all the relevant facts, many of which only became known subsequent to the Licensing Committee Decision, including the supplemental information from NZTR and Racing Victoria together with the additional evidence from the Appellant. Notably, the instant Appeal was in respect of the ability of the Appellant to participate in the Pre-Racehorse Trainer Induction Course. Notwithstanding that Decision of the Licensing Committee the Appellant was not precluded from progressing to take part in that Course pending the outcome of her Appeal and therefore was not prejudiced in any way by the Decision. Having considered all the additional evidence, the Appeal Body considers that allowing the Appellant to progress to the Course was the appropriate course of action.
31. Consequently, this appeal might ordinarily be considered to be moot as the refusal by the Licensing Committee (the Decision appealed) was actually over-ridden by subsequent events. However, the Appellant in exercising pragmatism and seeking finality, requested that the Appeal Body effectively step into the shoes of the Licensing Committee and permit the appeal hearing to act as the Interview stage (stage (iii)) of the Trainer License Application process. Mindful of this application and the acquiescence of the IHRB that this Appeal Body would in effect undertake the next step in the Licensed Trainer Application Process, the Appeal Body having reserved its position previously, on notice to the Parties determined in the interests of finality, that this was the appropriate step to take and as such the Hearing was treated as the Applicant Interview module of the Licensed Trainer Application Process.
32. Stepping into the shoes of the Licensing Committee, as permitted under Rule 19C6, the Appeal Body had regard to the Trainer’s Licensing requirements under Regulation 1 Section 1, bearing in mind that the application was for a Restricted Licence

Fit and Proper Person

33. On 11 April 2022 Racing Victoria notified the IHRB of the decision of the Victorian Racing Tribunal which disqualified Mr. Finnegan from racing for a period of 2 years. Under Racing Victoria rule AR263(3) close associates of a disqualified person must not train or race any horses save with the consent of the racing authorities.
34. It was not disputed that a direct equivalent rule is not present in the Rules and the Appellant was not prohibited, inter alia, from applying for a Trainer’s Licence or training or racing horses by reasons of the disqualification of Mr. Finnegan. However, the IHRB did emphasise the importance of the fit and proper person requirements under the Regulations (R1, Section 1 Rule 11) to determine if an applicant is suitable to hold a licence. Those rules provide as follows:

• Preamble: “The Licensing Committee, in considering whether the applicant is a fit and proper person to hold such a license, may have regard to information as to the character, good name or financial strength of the applicant…”;
• Rule 11.1 provides that in assessing suitability relevant considerations include “the honesty, integrity, business competence and capability and financial soundness of the applicant”;
• Rule 11.3 - “Applicants must make full and frank disclosure of all matters relevant to the application and failure to do so may be considered a relevant factor in the assessment as to an applicant’s, competence, honesty and integrity”.
• Rule 11.5 which provides that “An applicant’s…fitness and propriety includes assessment of the fitness and propriety of those with whom he is or may be associated or connected with in his personal or business dealings…”

35. The Appellant did not disclose the disqualification of Mr. Finnegan in her 19 April 2022 Application Form for the Pre-Racehorse Trainers Course and Provisional Trainers Licence, either under the heading “Any other relevant information that you wish to disclose to the Licensing Committee” or otherwise. The Appellant did not disclose Mr. Finnegan’s disqualification in her January 2023 Licensed Trainer Application, whether under the ‘Fit and Proper Person’ section or otherwise. The Appellant when asked at the hearing why she did not disclose Mr. Finnegan’s disqualification as part of either Licence application, stated that (i) there was ‘no rule’ in the IHRB Rules which prohibited her from making an application in circumstances where her husband had been disqualified as a trainer; (ii) she did not feel it was relevant to her application for a Trainer Licence; and (iii) she was never questioned by the IHRB / Licensing Committee about his disqualification. When the requirements under Rule 11.5 where highlighted to the Appellant she indicated that the non-disclosure was a ‘mistake’.
36. The Appeal Body took into account the decision of Racing Victoria into Mr. Finnegan and were satisfied the Appellant was forthcoming in the hearing about the evidence she had given, an extract transcript of same having been provided to the Appeal Body, and the circumstances which led to that case. Consequently, the Appellant was not implicated by that decision evidenced by the fact that no charges were pursued against her by Racing Victoria.
37. The Appeal Body considered that given the close personal relationship of the Appellant to Mr. Finnegan, namely their marriage to one another and the fact that she worked with him at the relevant time and was a witness in the Victoria Racing Tribunal case, the disqualification of Mr. Finnegan by Racing Victoria was relevant to her application and is a matter that is entirely suitable for disclosure and ordinarily would be expected to have been disclosed in her Licence applications. The reason a disclosure in those circumstances by a Trainer Licence applicant would be beneficial, is not least to enable the point to be canvassed openly and if necessary assurances provided or obtained. 
38. The fact that the IHRB became aware of Mr. Finnegan’s disqualification before the Appellant made a second Licence Application, did not place an onus upon the IHRB to engage with her on it. Nevertheless, the IHRB did do so in their communication of 5 August 2022, highlighting to the Appellant that they had been made aware by Racing Victoria of Mr. Finnegan’s disqualification, the scope of Rule AR263 (which would render Mrs. Finnegan ineligible for a trainer’s licence in Victoria by reason of that disqualification) and highlighted that this disclosure was not declared in her Licence application and that the matter, if progressed, would need to go before the Licensing Committee. Consequently, the Appeal Body considered that this non-disclosure was a significant omission of a fact that had direct relevance to the Trainer Licence application of the Appellant.

Other Licensing Requirements

39. The Appellant provided cogent evidence of her living and working situation, the manner and means by which she intended to manage and train the horses on the Farm and responded to all the questions put to her in cross examination and by the Appeal Body.
40. The following factors contributed to the determination of the Appeal Body.

• The Appellant provided details of her horseracing background and experience in New Zealand, Australia and Ireland. This did extend over a long period, primarily as an apprentice jockey, stable hand and track worker. She has also owned or part-owned and trained her own racehorses and had a Handler’s permit for Point to Point. References from the independent trainers and suppliers were provided and were generally positive, if lacking in detail in particular around employment periods. The Appeal Body was of the view that while the Appellant had indeed a background in the horse racing industry and had experience riding these factors alone did not entitle her to be granted a Licence. It was considered to be notable that no employment card(s) was submitted, no evidence was presented from her trainers that she was an Assistant Trainer, Head Girl or Travelling Head Girl (even taking into consideration the reference letters submitted) and there was no evidence of the Appellant having runners as a Point to Point Handler.
• The Appellant holds a full-time job (in childcare) in addition to her proposed role as Racehorse Trainer. While this fact alone is not decisive, the Appeal Body was not satisfied that the proposed arrangements were sufficient to cater for the supervision and management of the horses during the period when she would not be on-site at the Farm. There are no employees, reliance being placed upon a combination of two young girls who would each work between 0-8 hours per week and the proximity of the Appellant’s workplace and home to the Farm. Callan’s presence on the Farm was also underscored and his ability to check the racehorses when the Appellant was at work (9am – 5pm), but this has to be balanced by the fact the Appellant confirmed she had full control over the horses and the running of the Farm.
• The security of the Farm is noted as CCTV on the front gate and some other places on the Farm (not identified). There is one driveway and the stables are beyond the house. Given the Farm is 120 acres and is also used for other livestock, it is difficult to ascertain if this is sufficient but it did appear to the Appeal Body to be minimal.
• The Appeals Body was aware that the proposed Training Establishment (Farm) would be subject to an Inspection by IHRB Officials.
• The two racehorses (Sioux Princess and Belle Fourche) are 4-year-olds. For races, an offer of help has been made by a named former trainer. No detail was provided in relation to how the Appellant will manage the horses for races or what support she will receive. Relying upon the offers of others to assist is not a sustainable strategy upon which to build a training business.
• Transportation details were not submitted with the Licensed Trainer Application. The Appellant confirmed she had a licence to drive a float and truck and had not included it in the application as she answered what was asked.
• Without detracting from the Appellant’s commitment to the role and her proposed early morning (4am) and post-work (5pm) management and training of the horses, the Appeal Body was concerned that the demands of, for example, managing training, a feeding programme and the necessary husbandry would be incompatible with holding a full-time job absent sufficient supports. There are an additional two brood mares with foals that will be coming to the Farm and will fall under the care and management of the Appellant. There was insufficient capacity or back-up demonstrated by the Appellant of other suitable supports. This also applies in the context of the unknowns and uncertainties that can occur in the everyday life in dealing with racehorses.

41. Having heard the evidence and the submissions of counsel and on the basis of the reasons set out above, the Appeal Body determined that it is not sufficiently satisfied on the balance of probabilities that the Appellant meets the criteria to be granted a Trainers Licence at this juncture.
42. These reasons do not purport to be an exhaustive list or to have fully explored all of the criteria listed in R1. Section 1, Rules 1 to 10 of the Regulations.
43. In light of the determination, the appeal fee shall be retained by the IHRB.
44. The Appeal Body decision in this matter was conveyed orally to the Parties at the conclusion of the hearing. The reasoned decision of the Appeal Body is as set out herein.

 

 

The case for the IHRB was presented by Ms. Bébhinn Murphy B.L.

Ms. Finnegan was represented by Mr. John Rogers, S.C. instructed by Mr. Denis A. Linehan, Denis A. Linehan & Co. Solicitors, Charleville, Co. Cork.

 

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