Flaherty v National Greyhound Racing Club Ltd

A domestic sporting tribunal must comply with fundamental requirements of fairness, but fairness is assessed realistically in the context of the tribunal’s specialist and inquisitorial functions. Apparent bias arises only where the circumstances would cause a fair-minded and informed observer to conclude that there was a real possibility of bias.

Relevant expertise, previous professional associations and robust questioning do not, without more, establish apparent bias. Nor does the private presence of a non-member automatically invalidate deliberations. The court must consider the person’s role, any contribution or influence, and the evidence of what occurred. Ultimately, a procedural deficiency justifies intervention where it produces overall unfairness.

The National Greyhound Racing Club’s stewards found a licensed trainer in breach of the rules of racing after his greyhound tested positive for hexamine. They reprimanded him and imposed a £400 fine. The trainer claimed that an unknown third party had administered the substance or that its presence resulted from contamination.

The High Court declared the decision ineffective because of apparent bias on the part of the veterinary steward and procedural unfairness arising from the Club’s chief executive remaining with the stewards during their private deliberations. The Club appealed with the judge’s permission.

The principal questions were whether the veterinary steward’s expertise, previous professional relationships and questioning created apparent bias, and whether the chief executive’s presence during deliberations rendered the inquiry unfair.

1. The appeal was allowed unanimously. The High Court had stated the apparent-bias test correctly but applied it erroneously. The circumstances would not have led a fair-minded and informed observer to conclude that there was a real possibility of bias on the veterinary steward’s part.

2. The fairness required of a domestic sporting tribunal must be assessed in context. The inquiry was inquisitorial and conducted by stewards with practical knowledge of greyhound racing. The veterinary steward’s expertise was a qualification, not a disability. His former professional relationship with the stadium had ended ten months before the inquiry, he had no continuing financial interest, and the stadium was not a party. His earlier professional contacts with stadium employees and his robust testing of an inherently improbable explanation did not show predisposition for reasons unconnected with the merits.

3. The High Court also erred by treating a non-member’s mere presence during deliberations as a distinct and automatically invalidating form of procedural unfairness. Three situations should be distinguished. A private contribution which the affected person cannot answer may breach the right to be heard. A silent person’s identity or status may create actual or apparent bias through a “brooding presence”. In other cases of mere private presence, the established apparent-bias test applies.

4. The chief executive should, as a matter of best practice, have left when the inquiry room was cleared. Failure to follow best practice did not itself make the inquiry unfair. The unchallenged evidence established that he did not participate in the deliberations and merely confirmed that the trainer had no previous disciplinary finding. An informed observer would therefore have found no real possibility of bias.

5. The disciplinary process also had to be viewed overall, consistently with Calvin v Carr [1980] AC 574 and Modahl v British Athletic Federation Limited [2002] 1 WLR 1192. The relevant question was whether any deficiency produced overall unfairness. There was no procedural unfairness, and the evidence against the trainer was overwhelming. The stewards’ decision was restored.

1. Court of Appeal (Civil Division): The Club’s appeal was allowed unanimously. The findings of apparent bias and procedural unfairness were reversed, and the stewards’ decision was restored.
2. High Court, Chancery Division: Evans-Lombe J declared that the stewards’ decision had been reached in breach of the Club’s implied contractual obligation of fairness and was of no effect. The judge granted permission to appeal.
3. National Greyhound Racing Club stewards: The stewards found the trainer in breach of the rules of racing, reprimanded him and fined him £400.