knowledge 11 November 2019 |

Disputes - Bookmaker’s Judicial Review Application at odds with Public/Private Law Distinction

In the case before the court,¹ the applicant was a professional bookmaker and a National Professional Bookmakers Association (“INPBA”) member whose complaint arose in the context of the rules governing racecourse betting pitches for bookmakers. In the ordinary course, bookmakers are allotted different pitches on racecourses, with the longest-established or senior bookmakers having the best pitches (considered the most lucrative). Bookmakers are permitted to sell their seniority rights on to other bookmakers. The rules regulating allocation and transfer of pitches, along with conduct on racecourses and related matters are known as the Racecourse Executives’ Seniority and Pitch Rules (the “Pitch Rules”).  The Pitch Rules in their current form are agreed from time to time by INPBA (on behalf of bookmakers) and the Association of Irish Racecourses (“AIR”) (on behalf of racecourses).  Horse Racing Ireland (“HRI”) implements certain aspects of the Pitch Rules where necessary, acting through its officers on-course.  

HRI is a statutory body and is the national authority for thoroughbred horseracing in Ireland.  It is responsible for the governance, development and promotion of the industry and has the power to issue betting permits for bookmakers to operate on-site at horse races taking place at authorised racecourses. HRI is also legally obliged to implement any changes to the Pitch Rules, as approved by HRI, something which happens only after proposed amendments are independently agreed by INPBA and AIR.  The Pitch Tribunal, the second named respondent in the application, is an ad hoc committee established by INPBA and AIR to determine disputes about the interpretation or application of the Pitch Rules.  

The disputed rules

In 2016, INPBA and AIR adopted a revised set of Pitch Rules, which were subsequently implemented by HRI after it was notified of the agreement to make changes by both INPBA and AIR. The revised Pitch Rules included a new Rule 18 which provided for a rotational method of allocation of certain pitches in premium areas (rather than allocation based on bookmakers’ seniority).

The applicant's issue 

The applicant’s primary concern, as owner of significant seniority rights at various racecourses, was that the effect of Rule 18 of the revised Pitch Rules was that he could no longer avail of his seniority rights in relation to premium areas. He maintained that the revised Pitch Rules were never formally signed by the Chairman of INPBA and were invalid.  He asked that the revisions not be implemented, but was told that the Pitch Rules could be reviewed at any time at the request of any of the three bodies (INPBA, AIR and/or HRI) and was advised to raise the matter with his own representative body, the INPBA.

The applicant appealed to the Pitch Tribunal on the grounds that the HRI’s adoption and implementation of the revised Pitch Rules was erroneous, and that the HRI’s action in implementing Rule 18 should be vitiated for illegality. Following the unsuccessful appeal, the applicant applied for judicial review.

Decision

HRI made a number of preliminary objections to the application, some of which were substantially accepted by the judge. Ms Justice Murphy dismissed the application on a number of grounds, including that:

• the applicant sought to rely on an interpretation of Francis Hyland v Dundalk Racing (1999) t/a Dundalk Station,² to support his view that the decision of the HRI to implement the Pitch Rules was amenable to judicial review; however, Murphy J noted that there was nothing in Hyland to suggest that an alleged breach of Pitch Rules would be amenable to judicial review and that in fact the import of Hyland was to the contrary i.e. that Pitch Rules create contractual arrangements between bookmakers and racecourses and as among bookmakers; 
• the court was satisfied that the determination of the Pitch Tribunal was made in a private law setting and that the Pitch Tribunal has no statutory dimension or role and is not amenable to judicial review; 
• the applicant had “deployed a number of strategies in attempting to apply a public law veneer to a private law dispute” by “overstating the role of the HRI” in the rulechanging process;
• there was no ‘determination’ made by HRI, which had simply implemented a change which was determined by INPBA and AIR: Murphy J remarked that “a party cannot change the nature of a decision by the label he chooses to put on that decision”;
• the court concluded that the applicant’s real dispute lay with his own representative body, the INPBA, and not with HRI and that any question as to the validity of the INPBA’s decision to approve the revised Pitch Rules was an issue to be resolved “by the INPBA within its own internal rules”.

This judgment serves as a reminder that in any dispute where public law intersects with private law, a court will focus on what decision or action is the ultimate cause of the grievance and whether it was taken in exercise of some public law (e.g. statutory) power not available to a private actor, or essentially arose from private bargain.  The essential distinction is likely not to be the identity of the party implementing the disputed decision or action, but the identity of the party or parties taking that decision or action and the capacity in which that party or those parties were acting in doing so.

Our Disputes Team would be pleased to provide further information in relation to the issues raised in this case. Alternatively, your usual contact in McCann FitzGerald would be happy to assist.

Also contributed by Emma Finn.