Denham C.J.
Murray J.
Hardiman J.
O’Donnell J.
Dunne J.

Between/

Judgment of Mr. Justice Hardiman delivered the 25th day of June, 2015.

1. The first-named appellant is a professional jockey and the second is a licensed trainer. Both are authorised to carry on these occupations by the Respondent, The Turf Club. The Turf Club itself is a body of some antiquity with an ascertainable history going back to the year 1790. It was originally a private body, an association of private individuals, and it claims to have maintained that essential status up to the present day. But there have been legislative developments since then. After the passing of a particular Act of 1994 the Turf Club used headed note paper in that name, endorsed “Established 1790” and, beneath that in capital letters:

“THE REGULATORY BODY FOR HORSERACING IN IRELAND”.

Having regard to the provisions of s.39 of the Irish Horseracing Industry Act 1994, set out below, this seems a correct statement of the Board’s present status. Equally, it is an express invocation by the Turf Club of some statutory status.

Background.
2. In September 2011, a lady in England placed a bet on a race at Downpatrick on the 21st September 2011. This was a bet of Stg£10,000 described as a “lay bet” with the British bookmaker, Betfair. This bet was that a horse called “Yachvilli” would not be placed in the race on which it was running. The jockey was charged in effect with “pulling” the horse in the context of this bet. See the precise formulation of the allegations against him, below.

3. In July, 2013, almost two years after the race in question, and after an investigation, the Turf Club advised the applicants that its committee, the “Referral Committee” would consider the allegations against the first-named applicants and four other individuals in connection with the bet and race mentioned on the 3rd September, 2013. On the 28th August, 2013 the appellants’ solicitor indicated that they intended to issue Judicial Review proceedings. On the 29th August, 2013 leave was granted by Mr. Justice Charlton to apply for the following reliefs amongst others:

(i) A declaration by way of Judicial Review that the Rules of Racing were made ultra vires the Respondent and/or without jurisdiction and/or otherwise than in accordance with law.

(ii) In the alternative, a declaration by way of Judicial Review that the Rules of Racing hereinafter particularised were made ultra vires the respondent and/or without jurisdiction and/or otherwise and in accordance with law: 19A, 19C, 20, 22, 25, 272, 273(XIII), 273(VI), 273(VIII), 273 (1X), 273(XIV) (V), 212(A)(i) and/or 212(a)(ii).

(v) A declaration that the allegation made contrary to Rule 273(IX) of the Rules of Racing amount to an allegation of an extra-territorial criminal offence in respect of which the respondent is precluded from conducting a trial by virtue of Article 38.1 of the Constitution.

The appellant was also given leave, in rather conditional terms, to apply for two further reliefs which are:

“(iii) If necessary a Declaration by way of Judicial Review that Sections 39 and/or 45 and/or 62 of the Irish Horseracing Industry Act 1994, as amended, are invalid with regard to the provisions of the Constitution and in particular Article 15.2.1 thereof;

(iv) If necessary, a Declaration by way of Judicial Review that Sections 39, 45 and/or 62 of the Irish Horseracing Industry Act 1994, as amended, are invalid having regard to the provisions of the Constitution and in particular Article 34.1 thereof…”

The allegations against the first-named Applicant were sent to his solicitors by the Turf Club by letter of 2nd August 2013. They, together with a “Case Summary” commencing “The Turf Club’s case is this” were described as “ the paperwork for the hearing” in that letter. The letter was written on note paper endorsed as set out in para. 1. above.

______________________________________________________________

There are four allegations about Mr. O’Connell, as follows:

(1) Did Eddie O’Connell, on, and/or before, the date of the race in which he was the jockey act in breach of Rule 273(vi) in that he deterred, or conspired with James Lambe, Robert Martin, Brian Keown and/or Lucy Stanton to deter, Yachvilli from winning the race or from running to its maximum ability in the race.

(2) Did Eddie O’Connell on, and/or before the date of the race in which he was the jockey act in breach of Rule 273(viii) and/or (ix) in that he jointly with James Lambe, Robert Martin, Brian Keown and/or Lucy Stanton engage in a corrupt or fraudulent practice in relation to racing in Ireland by either


(a) Agreeing to ride the horse other than to give its best opportunity to win or be placed so that a lay bet would be successfully placed against it, or

(b) Agreeing to give the horse a schooling ride so that a lay bet could be successfully placed against it.


(3) Did Eddie O’Connell on, and/or before, the date of the race in which he was the jockey act in breach of Rule 273(xiv) in that he conveyed knowledge pertaining to the horse’s condition or wellbeing not in the public domain which might negatively affect its performance or participation in the race when he knew or ought reasonably to have known that such knowledge might be used for the purpose of laying that horse to loose in that race.

(4) Did Eddie O’Connell on the 21st September, 2011 when he was the jockey in the race:


(a) Act in breach of Rule 212(a)(i) by failing to take all reasonable and permissible measures throughout the race to ensure that his horse was given a full opportunity to win or obtain the best possible place and/or

(b) Act in breach of Rule 212(a)(ii) by using the run for the purposes of a school.

_________________________________________________________

4. In their Statements of Opposition to the appellants’ application for Judicial Review the question of whether the Turf Club was liable to Judicial Review was raised. The Turf Club said, at para. 1 of its Statement of Opposition:

“(1) The respondent is not an entity that is amenable to Judicial Review.

(2) The relationship between the applicants and the respondents… is a matter of contract and not a matter of public law”.

Therefore, the Turf Club said at para. (3):

“The applicants do not have locus standi to seek the relief claimed or any review”.

5. The Attorney General, in her Statement of Opposition, at para. 2 stated:

“The applicants assertion of ultra vires and constitutional invalidity are premised in a misconception as to the status and function of the respondent. The respondent is a private entity which is responsible for the regulation for the sport of horse racing. It has been included in the Racing Regulatory Body created by the Irish Horse Racing Industry Act 1994 with responsibility to make and enforce the rules of racing for horse racing. Participants in horse racing agree by private contract with the respondent to adhere to the rules of racing made by the respondent, which the respondent now seeks to enforce”.

(Emphasis added)

The High Court decision.
6. The High Court (McGovern J.) on the 10th April, 2014 dismissed the appellants application for Judicial Review with costs. He did so on the basis (para. 42ff) that though:

“the respondent is of such a character as to be amenable to Judicial Review because of its incorporation into the Racing Regulatory Body by the Act of 1994. I am also satisfied that the applicants have locus standi to bring these proceedings and are not estopped from doing so”.

Nonetheless:

“Insofar as the respondent exercised a delegated judicial function, the exercise of this function is limited to the furtherance of principles and policies set out in the Acts and is necessary ‘to promote integrity and fair play in horseracing’ as provided for in s.39 of the Act of 1994 and to give effect to the objectives of the Acts.”

He also held that:

“The respondent does not exercise a judicial function”.

The appeals.
7. The issues raised on the appeals is somewhat complicated and are raised in different ways. The appellants appeal, instituted by notice of appeal dated the 8th May, 2014 is a full appeal against those portions of the High Court judgment which were adverse to the first-named appellant. But the Turf Club served a “Notice to Vary” in which, though it was victorious in the High Court proceedings, it challenged various aspects of the High Court judge’s decision, six specific ones and one residual category:

(1) The respondent was incorporated into the Racing Regulatory Body which was established by the Irish Horseracing Industry Act and the Racing Regulatory Body has the power to regulate horseracing and make the Rules of Racing and the other functions specified in Part III of the 1994 Act.

(2) The Regulation of Horseracing in Ireland and/or the traditional role of the respondent have been placed on a statutory footing;

(3) Article 15.2.1 of the Constitution and the jurisprudence relating thereto are material to the validity of the rules of racing.

(4) The respondent and/or the Racing Regulatory Body are amenable to Judicial Review;

(5) The respondent had locus standi to seek the reliefs claimed in respect of the rules of racing generally and/or in respect of the rules of racing which did not affect them personally and/or directly.

(6) The appellants were not estopped from maintaining their claims in these proceedings and/or from obtaining the reliefs claimed.

(7) Such further or other aspects of the judgment of the High Court as may be permitted by the Court.

The other parties consented to the filing of this Notice to Vary, though the appellant maintained that it was unnecessary. That the net effect of the document is that the Turf Club is maintaining the view that, contrary to the what the learned trial judge found, it was not amenable to Judicial Review, and is challenging the legal and factual findings which lead to the contrary conclusion.

The High Court decision.
8. At para. 17 of his judgment the learned High Court judge held:

“The Racing Regulatory Body is, in my view, amenable to Judicial Review. It is established under the Act of 1994. Quite apart from the requirements of Part III of the Act and in particular s.45, the Racing Regulatory Body may issue an Exclusion Notice against persons who have not entered into any contractual arrangement with the respondent (s.62). There can be no doubt that a person affected by such an Exclusion Order would be entitled to challenge the Racing Regulatory Body in respect of any want of vires or fair procedures in the purported exercise of its jurisdiction. The Act of 1994 placed the traditional role of the Turf Club on a statutory footing”.

Statutory Provisions and the Rules of Racing.
9. Part III of the Irish Horseracing Industry Act 1994 is entitled “The Racing Regulatory Body”.

Section 39 of this Act provides as follows:

“39 – On the establishment day there shall stand established the Racing Regulatory Body whose general functions shall for the purpose of this Act be –

(a) To regulate horseracing,

(b) To make and enforce the Rules of Racing and in doing so promote integrity and fair play in horseracing,

(c) To provide adequate integrity services for horseracing,

and

(d) To license Race Courses under the Rules of Racing”.

Section 2 of the same Act is the Interpretation Section. This provides that the term “Racing Regulatory Body” means:

(a) The Irish Turf Club, in relation to flat racing,

(b) The Irish National Hunt Steeple Chase Committee, in relation to National Hunt Racing, or

(c) Both in relation to horseracing generally”.

The Sections which follow s.39 makes certain specific provisions for the activities of the Racing Regulatory Body. Thus, s.40 provides for charges by the Body; s.41 provides for the funds of the Body; s.42 provides for the costs of the integrity services which the Body is required to provide; s.43 provides for the collection by the Body of certain fees and charges on behalf of the Irish Horseracing Authority; s.44 provides for the alteration by the Body of the Rules of Racing; s.45 provides for appeals against sanctions imposed by the Body; and s.46 provides that it is for the Body (or a person acting on its behalf) to decided whether a particular race fixture may be held, having regard to certain statutory criteria.

Of particular interest is s.62 of the Act which relates to the “exclusion of certain persons from racecourses”. This provides:

“62 – (1) The Authority or the Racing Regulatory Body, may exclude by Notice “an Exclusion Notice” a person from being either –

(a) On any authorised racecourse, or

(b) On such authorised racecourse or racecourses as the Authority or, as the case may be, the Racing Regulatory Body may think fit and specify in the Exclusion Notice, where it has reason to believe that the person is not a fit or proper person to be on such racecourse”.

The Section goes on to make further provisions for such matters as the manner of removal of an excluded person who comes on to a racecourse, but these are not immediately relevant. It may be significant, however, that the Gardaí, if called upon, must physically effect such removal.

It will be noted that the sanctions imposed by the Turf Club are immediately effective (subject to appeal) and do not require any process of confirmation or re-hearing before the High Court. This is in contrast to the law governing Solicitors or Medical Practitioners, considered below.

Rules of Racing.
10. The Rules of Racing, by reason of Rule (I), extend to:

(a) Any person who is a jockey, qualified rider, owner, trainer, authorised agent, authorised rider’s agent, authorised representative or jockey’s Valet and nominated assistant or substitute as herein defined and

(b) Every official appointed from time to time in accordance with Rules 28 and 29 hereof,

(c) Every other person who is the holder of a Racing Establishment Employee Card and

(d) All other persons in any way whatsoever concerned in or taking part in such meetings or races, or in the training or preparation of horses to be entered for or run in such races, or otherwise involved in racing.

(e) All meetings held under the sanction of the Irish Turf Club, and the Irish National Hunt Steeplechase Committee, and all races run at such meetings, flat races being run under the Rules of Racing and steeplechases, hurdle races and Irish National Hunt flat races being run under the Irish National Hunt Steeplechase Rules.”

By Rule 19A of the Rules of Racing there is provision for the appointment and powers of the Turf Clubs Referrals Committee. The powers of this Committee include all the power of Stewards under the Rules and the Committee is also empowered:

(a) To decide upon such matters as may be referred to it pursuant to Rule 14(ii) or otherwise under the Rules;

(b) To decide upon such matters as may be referred to it by Horseracing Ireland insofar as they relate to the Rules of Racing and INHS Rules.

(c) To decide on such matters as may be placed before it by a Senior Racing Official under the Rules.

(d) To allow or dismiss any matter for want of prosecution.

By Rule 19C of the Rules of Racing an Appeal Body is to be established and is entitled, as is the Referrals Committee:

“(a) To impose fines of up to €20,000,

(b) To suspend licences such as the Appellants’ for such periods as the Referrals Committee and/or the Appeals Body consider, at their absolute discretion, to be appropriate; and

(c) To declare any person to be a disqualified person”.

There are extensive powers pursuant to Rule 20, including the power to grant, withdraw or suspend licences for jockeys and trainers and to “issue and publish in the Irish Racing Calendar from time to time such rules as they may think fit”.

There is a general residual power contained in Rule 272 as follows:

“Any person involved in horseracing who, within the jurisdiction of the governing bodies, whether verbally or by conduct or behaviour, acts in a manner which is prejudicial to the integrity, proper conduct and good reputation of horseracing (whether or not such behaviour or conduct, verbal or otherwise, is associated directly with horseracing) shall be in breach of these rules”.

The following Rule, 273, explains the reference above to “disqualified person”:

“Should the Referrals Committee or the Appeals Body be satisfied that there has been a breach of any of the provisions of the subparagraph of this Rule, the person or persons so offending may at the discretion of the Referrals Committee or the Appeals Body be declared to be a Disqualified Person or dealt with in such other manner, including the disqualification restriction from running of the horse and forfeiture of the stakes, as the Referrals Committee and the Appeal Body may decide”.

Liability to Judicial Review.
11. In a case about the English equivalent to the present respondent, R. v. Jockey Club, ex parte AGA Khan [1993] 2 AER 853 Hoffman L.J. (as he then was) said:

“private power may affect the public interest and the livelihood of many individuals. But that does not subject it to the rules of public law”.

This point of view led to lively debate, though perhaps livelier in England than in Ireland, as to what constituted a public body, which is by its nature subject to the rules of public law, including Judicial Review. In the Irish case of The State (Hayes) v. Criminal Injuries Compensation Tribunal [1982] ILRM 212 it was conceded that the ordinary substantive and procedural rules of Judicial Review applied to the Tribunal. This was not notwithstanding that the Tribunal was non-statutory in status, and had been established by the Executive to administer monies voted by the Oireachtas according to a published but non-statutory scheme. This concession may be contrasted with the English case of R. v. Criminal Injuries Compensation Board, ex parte Lain [1967] 2QB 864, where no such concession was made.

In that case, Lord Parker C.J. said that the exact limits of the ancient remedy of certiorari had never been and ought not to be specifically defined. I respectfully agree and will not attempt such an exercise. Lord Parker continued:

“They [the limits of certiorari] have varied from time to time being extended to meet changing conditions. At one time the Writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word, but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned…

We have as it seems to me reached the position where the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the Board in my opinion comes fairly and squarely within the jurisdiction of this Court. It is, as [Council] said ‘a servant of the Crown charged by the Crown, by executive instruction, with a duty of distributing the bounty of the Crown’ it is clearly, therefore, performing public duties”.

(Emphasis added)

Diplock L.J., subsequently a notable exponent of English Administrative Law said (p.884 of the Report):

“The jurisdiction of the High Court to supervise the exercise of their jurisdiction by inferior tribunals has not in the past been dependent upon the source of the tribunal’s authority to decide issues submitted to its determination, except where such authority is derived solely from agreement of parties to the determination… the earlier history of the Writ of certiorari shows that it was issued to courts whose authority was derived from the prerogative, from Royal Charter, from franchise or custom, as well as from Act of Parliament. Its recent history shows that as new kinds of tribunals have been created, orders of certiorari have been extended to them too and to all persons who under authority of government have exercised quasi judicial functions… If new tribunals are established by Acts of Government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunals to the supervisory control of the High Court has been based.

And what are these characteristics? It is clear on the authorities that the tribunal need not be one whose determinations give rise to any legally enforceable right or liability. Its determination may be subject to certiorari notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of the person to whom it relates. It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect on legal rights or liabilities…”.

(Emphasis added)

All this, it must be remembered, was said in the context of the non –statutory Criminal Injuries Compensation Board, the equivalent in England and Wales of the Irish Criminal Injuries Compensation Tribunal. It must be recalled that this was a non-statutory tribunal, so that the position of the Turf Club, in its new statutory guise as the Racing Regulatory Board, is a fortiori.

In the United Kingdom this debate came to a head in the well known case generally referred to as Datafin. More formally, this case is R.v. Panel on Takeover and Mergers, ex parte Datifin plc [1987] QB 815. In an excellent discussion of this decision, Beatson, “Public” and “Private” in English Adminstrative Law (1987) 103 LQR 34:

“While the Court excluded from Judicial Review and ‘publicness’ bodies whose sole source of power was a consensual submission, it pointed out that the power of self regulatory bodies such as the Panel is not exclusively consensual… The test is whether de facto power is underpinned by either a government decision to have regulation by a non-statutory body or by statutory support or, as in the Takeover Panel case, by both”.

12. In Ireland, there were still earlier signs of an expansion of the prima facie private areas on which the rules of natural justice were imposed. In Glover v. BLN Ltd. [1973] IR 388 the Supreme Court held that the rule of audi alteram partem applied in the quintessentially private law context of the dismissal of a Company Director.

At p. 425 of the Report Walsh J. said:

“The Constitution was relied upon; in particular Article 40.3 of the Constitution. This Court in In Re Haughey held that that provision of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.

(Emphasis added)

13. In Great Britain, the tension between the rival approaches (which I may call the Aga Khan approach and the Datafin approach) continued for a long time. In the academic literature, and in the cases, these approaches were designated the “source of power approach”, which put the emphasis on the nature of the deciding body, and the “public functions” approach which focussed on the nature of the individual function being carried out, rather than the nature of the body which was carrying it out. The contrasted approaches did battle in the pages of Public Law and the Law Quarterly Review. The result of this battle is well summarised at para. 3-042 of the 6th edition of De Smith’s Judicial Review (London, 2007):

“The public functions approach brings within the Court’s Judicial Review supervisory jurisdiction some actions of some bodies – including self-regulatory organisations, charities and business enterprises – which would otherwise fall outside public law scrutiny if only the traditional ‘source of power’ approach were to be deployed.”

Applying a public functions test in this context, the Courts have held decisions taken by the following, amongst others, to be susceptible to review: The Takeover Panel, Advertising Standards Authority, Press Complaints Commission, Code of Practice Committee of the Association of the British Pharmaceutical Industry… the managers of a privately owned psychiatric hospital; and Hampshire Farmers Markets Ltd.”

The fundamental engine of this procedure, it seems to me, is a statement of Donaldson M.R. in Datafin that the Court should “recognise the reality of executive power” and not “allow their reason to be clouded by the subtlety and complexity of the ways in which it can be exercised”. (See [1987] QB 815 at 838/9)

Non-statutory bodies are as capable of abusing their powers as is government.

14. I wish to endorse, with great respect, this lucid and eminently realistic dictum of Donaldson M.R. We must look to the realities of the power exercised by the Turf Club, not the superficialities. These realities are:

(i) By the Act of 1994, the Club was constituted as “The Racing Regulatory Body in relation to Flat Racing”.

(ii) The Club, which had existed as a private body since at least 1790, accepted this new Statutory Status and proclaimed it on its own notepaper, and to the present applicants.

(iii) The Club could not properly have described itself as “The Regulatory Body for Horseracing in Ireland” but for the Act of 1994.

(iv) Thus, the Club now “gains its efficacy from [an] action of the Legislature”, as Kingsmill Moore J. put it (see above). This allows it to impose penalties on “exclusions” even on people who hold no licence from it, by deeming them “excluded” or “disqualified persons”.

(v) Horseracing is a sport but also a massive industry. It provides the livelihood of very many people, including Mr. O’Connell.

(vi) An interruption in anyone’s livelihood of four years would be a serious matter even if it were due to misfortune, illness or accident. When it is imposed as a penalty, with consequent reputational damages, it is still more serious.

15. It is true that Mr. O’Connell followed the occupation of jockey under a licence for the Club. It is also true that he had absolutely no option but to seek that licence from the Club if he wished to work as a jockey. The application for such a licence is in no real sense voluntary so as to constitute a contract freely entered into. We must “have regard to the reality of executive power”, as Lord Donaldson put it very lucidly.

A doctor must enrol himself on the Register maintained by the Medical Council, thus exposing himself to the disciplinary powers of the Council, if he wishes to practice his profession. Similarly Mr. O’Connell had to seek a licence from the Turf Club if he wished to work as a professional jockey in Flat Racing. The Medical Council is undoubtedly subject to Judicial Review – see Corbally [reference]. So, I believe is the Turf Club: it is the consequence of exercising statutory disciplinary power and imposing penalties.

16. The great significance of the Datafin decision was that it subjected the City Panel on Takeovers and Mergers to Judicial Review even though “it had no statutory, prerogative or Common Law powers” and so “performs its functions without visible means of legal support”, as Lord Donaldson put it. This was quite consistent with a dictum of Atkin L.J., spoken as long ago as 1923 in R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Company (1920) Ltd. [1924] 1KB 171 at 205 that the Court had power to supervise, by means of the prerogative Writs, the decisions of “any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially”.

In an article in 1992 Public Law, at p.1, David Pannick Q.C. wrote on “Who is subject to Judicial Review and in respect of what?”

Speaking specifically of consent based adjudicative bodies he said:

“The issue for public lawyers is not whether one can identify a private law agreement to exclude Judicial Review, but whether the respondent body… had such a de facto monopoly over an important area of public life that an individual has no effective choice but to comply with their rules, regulations and decisions in order to operate in that area. In Datafin itself, the powers of the Panel were, in part, consensual – in the sense that the Companies choose to comply. But the reality is that there is no effective choice: either you comply or you do not do business in the city”.

17. In the United Kingdom, a series of cases about the English Jockey Club may be said to have defined the debate on the availability of Judicial Review. In the case cited at para. 13 above a strong view was taken: the Jockey Club was a private body, and not a public body and was not liable to the Rules of Public Law, including liability to Judicial Review. The topic was further discussed in a series of cases against the Jockey Club including R. (ex parte) RAM Racecourses Ltd. [1990] 3 Admin LR 265; R. v. Jockey Club (ex parte) Massingberd-Mundy (1990) 2 Admin LR 609 and R. v. Disciplinary Committee of the Jockey Club, ex parte the Aga Khan (July 3, 1991). In these cases dissatisfaction was expressed with the decision of the Court of Appeal in Massingberd-Mundy on the issue of consensual submissions. But the judges felt bound by authority to follow the earlier case. The issue was finally resolved, in the neighbouring jurisdiction in Bradley v. The Jockey Club [2004] EWHC 2164 (QB). There, the circle of conflicting decisions was squared by holding that the contractual relationship between the jockey and the Jockey Club contained implied terms including one to the effect that it would only impose a sanction that was proportionate in light of the facts proven or admitted.

By the time Bradley was decided, the Judge, Mr. Justice Richards, was able to note that:

“It is common ground that the Court has jurisdiction to review the [Jockey Club’s] Appeal Board’s decision”.

This was a surprising piece of common ground in view of the sharp contrasts in the attitude of the Courts in the earlier Jockey Club cases. However, the basis on which that common ground was reached did not involve any revisiting of the scope of judicial review: rather it harked back to the decision of the Court of Appeal in Nagle v. Fielden & Ors. [1966] QB 6367. It is, given the date, unsurprising to find that this case was resolved by the unanimous decisions of Denning M.R., Dankwerts L.J. and Salmon L.J. This was a claim by a person described in the Law Report as “Florence Nagle (femme sole)”. Mrs. Nagle had been training race horses for a good many years but was regarded by the Jockey Club as being incapable of holding a trainer’s licence because she was a woman. Instead, the Club granted licence to “men servants employed by her, in particular her ‘head lad’.” It was the practice of the stewards of the Jockey Club to refuse to grant a trainer’s licence to a woman in any circumstances. In 1965 she brought proceedings against the Jockey Club claiming a declaration that the Club’s practice of refusing a trainer’s licence to a woman was void as being against public policy, and also an injunction requiring the stewards to grant her a licence. The Jockey Club applied to the Master of the Queen’s Bench Division who granted an order striking out the statement of claim on the grounds that it disclosed no cause of action. This was upheld on appeal to the High Court. However, the plaintiff’s appeal to the Court of Appeal was allowed, thereby reinstating her action. The very general grounds on which a jurisdiction over the Jockey Club was in that instance asserted appears from the following citations from the learned Lord Justices:

Denning M.R. said (at 646):

“When an association, who have the governance of a trade, take it upon themselves to licence persons to take part in it then it is at least arguable that they are not at liberty to withdraw a man’s licence – and thus put him out of business – without hearing him. Nor can they refuse a man a licence – and thus prevent him from carrying on his business – in their uncontrolled discretion. If they reject him arbitrarily or capriciously, there is ground for thinking that the Courts can intervene. I know there are statements to the contrary in some of the cases. We were referred to one by myself in Russell v. Duke of Norfolk [1949] 1 AER 109. But that was seventeen years ago. The right to work has been far better recognised since that time. So has the jurisdiction of the Court to control licensing authorities. When those authorities exercise a predominant power over the exercise of trade or a profession, the Courts may have jurisdiction to see that this power is not abused.”

It is striking to see Lord Denning’s virtual independence of precedent, including a precedent created by himself. But Lord Justice Dankwerts arrived at the same conclusion by more conventional means and contrived to cite a decision of his own with approval in the course of doing so. He said, at p.650:

“But this case seems to me involve matters of public policy. As was suggested by me in Martell v. Consett Iron Company Ltd. [1955] Ch 363, the law relating to public policy cannot remain immutable. It must change with the passage of time. The wind of change blows upon it.”

Salmon L.J. at p. 654 recited that the Jockey Club’s case was that the Court had not power to interfere with them “even if they capriciously and unreasonably refused a licence”.

He continued:

“I must confess that I do not find this argument attractive. One of the principal functions of our courts is, whenever possible, to protect the individual from injustice and oppression. It is important, perhaps today more than ever, that we should not abdicate that function. The principle the Courts will protect a man’s right to work is well recognised in the stream of authority relating to contracts in restraint of trade.”

He went on to cite the well known case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company [1894] AC 535.

Both Lain (see para. 11 above) and Nagle were cited in Bradley and in Datafin. In Datafin see pages 819-821. In Bradley [2007] L.L.R. 543 see pp544 and 556-8. The Nagle case represents, if I may say so, a very English avoidance of the constraints on the scope of Judicial Review which, in 1966, were stronger than they have since become. This was achieved not by overruling the Judicial Review authorities, but by circumventing them by reference to an aspect of public policy which had largely grown up in the area of contracts in restraint of trade.

In one sense, of course, this discussion of the English Authorities is not strictly relevant to the present case. But since, as it happens, the very lively dispute in England and Wales on the scope of Judicial Review (only very palely reflected in this jurisdiction) took place in the context of the English Jockey Club, whose resemblance to our Turf Club seems obvious. I thought it well to discuss the English Authorities with a view to showing that, in the result if not in detail, there is not a great deal of difference.

This case (Bradley) appears to have quietened the decades long dispute about the Jockey Club in particular, by finding, or assuming, that the terms of the actual relationship between the parties included much if not all of the public law requirements. But in Ireland, for the reasons I have tried to elucidate above, this roundabout route does not appear to me to be necessary.

Administration of justice by a body other than a court.
18. One of the applicant’s claims for substantive relief arises under this heading. However, I am not immediately concerned with this substantive claim but rather with the effect which a credible invocation of Article 34.1 may have on the question of whether Judicial Review is available. It appears to me that if an adjudication is arguably within the concept of “the administration of justice” as defined, in particular, in McDonald v. Bord nag Con [1965] IR 217, then Judicial Review must be available in order to prevent such a usurpation of the judicial function, even if, in the end, the specific adjudication is saved by Article 37, or by being held not to be an administration of justice.

19. Article 34.1 of the Constitution provides:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and save in such special and limited cases as may be prescribed by law, shall be administered in public”.

20. Article 37.1 of the Constitution provides:

“Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution”.

The appellants’ claim that the adjudicative and sanction-imposing functions of the respondent amount to an impermissible administration of justice. The starting point of this aspect of their argument is in Re Solicitors’ Act, 1954 [1960] IR 239. The appellant places particular emphasis on two citations from the judgment of Kingsmill Moore J. At p.263, that learned judge said:

“That the trial of criminal matters and ‘offences’ is administration of justice is clear from Article 38… A characteristic feature of criminal matters is the infliction of penalties, a consideration which gives weight to the submission that a tribunal which is authorised to inflict a penalty, especially a severe penalty, even in cases where the offence is not strictly criminal, should be regarded as administering justice”.

On the following page Kingsmill Moore J. said:

“There is no question here of a domestic tribunal with a jurisdiction based solely on contract. Many bodies, such as Clubs, Trade Unions, Trade and Professional Associations, chartered or otherwise, admit members only on condition that they agree to abide by and be bound by a set of rules which confer on the Body or a Committee of the Body the power to investigate the conduct of its members, and, if such conduct involves a breach of the rules or the code of behaviour or the code of behaviour required, to expel the offender. Such a jurisdiction does not gain its efficacy from any action of the State or the Legislature and is not a diminution or a devolution of the judicial power of the State – it rests on contract only. Here we are dealing with a tribunal which depends for its existence and its powers on a legislative Act of the State. If the effect of such legislation is to confer the power to administer justice on persons who are not regularly appointed as judges, it is by Article 34 unconstitutional, unless it can be brought within some of the saving provisions of the Constitution. Eventually the question whether any particular tribunal is unconstitutional must depend on whether the congeries of the powers and functions conferred on the Tribunal, or any particular power or function, is such as to involve the pronouncement of decisions, the making of orders, and the doing of acts which, on the true intendment of the Constitution, are reserved to judges as being properly regarded as part of the administration of justice, and not of the limited character validated by Article 37”.

In McDonald v. Bord Na gCon [1965] IR 217, Kenny J. said the following at pages 230/231:

“It seems to me that the administration of justice has these characteristic features:

(1) A dispute or controversy as to the existence of legal rights or [of] a violation of the law,

(2) The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;

(3) The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;

(4) The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the Executive power of the State which is called in by the Court to enforce its judgment;

(5) The making of an order by the Court which as a matter of history is an order characteristic of courts in this country”.

The Order of the High Court in McDonald was reversed on appeal, but the foregoing criteria were upheld, and “accepted”.

Conclusion.
21. I am of the opinion the action of the Turf Club in adjudicating the complaints mentioned may arguably constitute an administration of justice. Whether they are such an administration of justice, or not, or whether they are such as is permitted by virtue by Article of 37.1 is not a question that immediately arises. It will arise on the appellant’s substantive claims. There is considerable authority that it is not an administration of justice.

22. I have reached the above conclusion because, to adapt the words of Kingsmill Moore J. cited above, the Turf Club’s jurisdiction does “gain its efficacy from an action of the legislature” – the quoted provisions of the Act of 1994. It is concerned with, and in this case it led to, the infliction of a penalty which is something which “gives weight to the submission that a tribunal which is authorised to inflict a penalty, especially a severe penalty, even in cases where the offence is not strictly criminal, should be regarded as administering justice”.

23. On the basis of the matters alleged and contended for in the Turf Club’s “paperwork” in relation to the inquiry about Mr. O’Connell it appears to me that certain of the criteria set out by Kenny J. in McDonald and Bord nag Con which determine whether a particular adjudication is an “administration of justice” have been met. There is “a dispute or controversy” though as to a violation of the Rules of Racing; the Turf Club’s Committee determined “the rights of the parties and proceeded to the imposition of a penalty”; this determination was “final”, subject to appeal; it was enforced but not by a Court or the State, but by the withdrawal by the Turf Club of the appellant’s jockey licence; and the order suspending the appellant is characteristic of the Turf Club and not a court.

24. A body which discharges a public function appears to me to be prima facie subject to Judicial Review.

25. It does not appear to me to be true that the Turf Club is a purely private body. On the contrary, for the reasons set out at greater length at para. 15 above, I believe that the Turf Club has been constituted by statute as “the Racing Regulatory Body in relation to flat racing” and has accepted this status in its dealings with the public, and specifically including the appellant.

26. The Turf Club cannot, of course, dispute this last point but they say that the statutory intervention should be regarded as conferring, or making express, powers of the nature which the private body previously had. Even if that is so, I do not see that it alters the fact that this private body is now also a statutory body performing adjudicative functions in relation to both people who hold licences from it and to others who do not. I am entirely unconvinced that persons who are compelled to apply to the Turf Club for licences if they are to carry on their occupations can be deemed to have freely and voluntarily consented to the exclusion of the supervisory jurisdiction of the Court in relation to the doings of a body which can deprive them of their livelihoods. This is has not been held to be so even in relation to academic institutions in respect of people who make a more obviously voluntary decision to become students.

27. I have derived assistance on this question from certain cases which I wish now briefly to mention. In Geoghegan v. Institute of Chartered Accountants [1995] 3 I.R. 86 the question arose – though perhaps not centrally – of whether the Institute was subject to Judicial Review by reason of the fact that it was based on contract.

28. Denham J. (as she then was) had this to say at p.130 of the Report:

“In view of the public nature of the source of the Institute, the functions of the Institute, and the nature of the contract between the applicant and the Institute, the subject of judicial review becomes part of the question of constitutional justice of the relationship. There are a number of important factors:

(i) This case relates to a major profession, important in the community, with a special connection to the judicial organs of the government in the courts in areas such as receivership, liquidation, examinership, as well as having special auditing responsibilities.

(ii) The original source of the powers of the Institute is the Charter: through that and legislation and a procedure to alter and amend the bylaws, the Institute has a nexus with two branches of the government of the State.

(iii) The functions of the Institute and its members come within the public domain of the State.

(iv) The method by which the contractual relationship between the Institute and the applicant was created is an important factor as it was necessary for the individual to agree in a ‘form’ contract to the disciplinary process to gain entrance to membership of the Institute.

(v) The consequences of the domestic tribunal’s decision may be very serious for a member.

(vi) The proceedings before the Disciplinary Committee must be fair and in accordance with the principles of natural justice, it must act judicially.

In these circumstances I am satisfied that a cessation of the Disciplinary Committee may be the subject of judicial review pursuant to Order 84 of the Rules of the Superior Courts”.

29. Not all of the criteria listed by Denham J. apply, or apply in the same detail, to the present case. Horseracing is undoubtedly a very major industry in this jurisdiction but it does not have a special connection to the judicial organ of government. But I do not consider that that distinction is a relevant one for present purposes.

30. I wish very respectfully to approve the views expressed by Denham J. It appears that in the Geoghegan case the Supreme Court split evenly on this issue, with Hamilton C.J. expressly reserving his position on it. However, the views of Denham J. were approved in the following year by Shanley J. in Eogan v. University College Dublin [1996] 1 I.R. 390. This case was about a complaint by a retired UCD professor about a new policy of refusing to extend tenure beyond the age of 65, as had previously been done under the College Statutes on certain conditions. Mr. Justice Shanley noted that the Statutes had been made pursuant to the Irish Universities Act, 1908. He therefore concluded that the decision to appoint Professor Eogan and not to continue him in office “were decisions taken in substance pursuant to the statutory regime flowing from the 1908 Act”, and accordingly could be challenged by means of judicial review. The challenge however failed on its merits.

31. There are a number of cases in relation to academic institutions at third level, including the College of Surgeons and the various Colleges of the NUI. However, the Universities Act, 1997 now provides the legal basis for many decisions taken within the university sector and has probably extended the potential application of judicial review. For present purposes, however, I am satisfied that the decisions adverse to the applicant Mr. O’Connell “were decisions taken in substance pursuant to the statutory regime flowing from the Irish Horseracing Industries Act, 1994”, to adapt the words of Shanley J. I am therefore of the opinion that the proposed proceedings can be challenged by judicial review.

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32. Having established that the respondent is amenable to judicial review, I cannot however see that the applicant is entitled to any of the reliefs sought. It is notable that all these reliefs are sought by way of declaration. No particular complaint is made as to the investigation conducted into the matters the subject of the allegations against the applicants, nor as to the procedures relied upon.

33. I do not accept that the making of the Rules of Racing is an exercise of the law making power conferred on the Oireachtas by Article 15.2.1 of the Constitution. The Turf Club did not have power to make delegated legislation, or “law” of any kind within the meaning of the relevant Article of the Constitution, before the enactment of the 1994 Act. The Act did not purport to confer a law making power, so that the Club has no such power. Therefore, I cannot see any basis on which the relief sought by reference to Article 15 of the Constitution could be granted.

34. The appellants’ have a considerable difficulty in relation to the claim that the activities of the respondent constitute an administration of justice. The case of MacDonald v. Bord na gCon [1965] I.R. 217, appears to lie directly across their path. This was a case involving the Greyhound Board, an entity not dissimilar to the Turf Club. However, the power which the Bord are seeking to exercise was exclusively of a statutory nature. Having regard to the finding of the Supreme Court in that case (while accepting Kenny J.’s criteria for an administration of justice, set out above) that the making of an exclusion order pursuant to s.47 of the Greyhound Industry Act 1956 was not an administration of justice. I cannot see how this case can be distinguished.

35. I do not believe that either applicant has the locus standi to maintain a claim by reference to Article 3 of the Constitution.

Conclusion.
36. I would dismiss the plaintiffs claims on the merits.