R v Disciplinary Committee of the Jockey Club, Ex parte Aga Khan

A decision is not amenable to judicial review merely because it is made by a powerful monopolistic regulator, affects the public interest or concerns an important national activity. The power must be governmental in nature or otherwise operate in the field of public law.

A sporting regulator’s disciplinary decision remains a matter of private law where its authority over the affected participant derives from consensual submission to its rules. The practical absence of an alternative does not remove that consensual foundation. Where the contract supplies effective remedies for procedural unfairness, judicial review is unavailable.

The applicant’s filly won the Oaks but was later disqualified after a prohibited substance was attributed to a urine sample. The Jockey Club’s Disciplinary Committee also fined the trainer. The applicant alleged fundamental procedural unfairness and sought judicial review.

The Divisional Court determined as a preliminary issue that the committee’s decision was not susceptible to judicial review. The applicant appealed. The central question was whether the Jockey Club’s extensive control of British horseracing gave its disciplinary decision a public-law character, notwithstanding the applicant’s contractual submission to the Rules of Racing.

1. Appeal dismissed unanimously. The disciplinary decision was not susceptible to judicial review. The Jockey Club exercised extensive power over an important national industry, but that power was neither governmental nor integrated into a governmental system of regulation.
2. Per Bingham MR, the Club’s Royal Charter did not alter its essentially private character. Its powers over the applicant arose from his agreement to be bound by the Rules of Racing. Those powers created private rights enforceable through declarations, injunctions and damages. Extending judicial review to this contractual disciplinary decision would be contrary to established principle.
3. Per Farquharson LJ, the applicant’s submission remained consensual although participation in British racing offered no practical alternative to accepting the Club’s jurisdiction. Public consequences and monopoly power did not convert the Club’s private disciplinary duty into a public duty.
4. Per Hoffmann LJ, R v Panel on Take-overs and Mergers, ex parte Datafin PLC [1987] 1 QB 815 established that governmental power may exist without a formal statutory or prerogative source. The power must nevertheless be governmental in nature. Unlike the Take-over Panel and other regulators integrated into statutory schemes, the Jockey Club operated entirely within the private sector through direct or indirect consent.
5. The applicant had adequate private-law remedies. The Club was subject to an implied contractual obligation to conduct its disciplinary proceedings fairly. If it breached that obligation, the applicant could seek a declaration that the decision was ineffective and, if necessary, an injunction.
6. The court did not decide that every Jockey Club decision was immune from judicial review. Bingham MR and Farquharson LJ left open whether exceptional circumstances, particularly where an affected person had no contractual remedy, might produce a different result. Hoffmann LJ cautioned against treating gaps in private-law remedies as a reason to characterise domestic bodies as organs of government.

Order: Appeal dismissed with costs. Leave to appeal to the House of Lords refused.

1. Court of Appeal: Dismissed the applicant’s appeal and affirmed that the disciplinary decision was not susceptible to judicial review. Leave to appeal to the House of Lords was refused.
2. Divisional Court: Woolf LJ and Leonard J determined the preliminary issue on 3 July 1991 and held that the court lacked jurisdiction to entertain judicial review of the Jockey Club’s decision.
3. High Court: Macpherson J granted leave to apply for judicial review and suggested that susceptibility to judicial review should be tried as a preliminary issue.