Mullins, R (on the application of) v The Jockey Club

Judicial review under CPR Part 54 concerns the lawfulness of a decision made in the exercise of a governmental public function. A private body does not become a public authority merely because it regulates an important activity, exercises substantial economic power, receives public funding, or affects the public. Contractual rules and private-law enforcement remain significant. A private body cannot convert a private disciplinary function into a public function simply by creating an independent appeal board or describing its reforms as responding to the Human Rights Act 1998. The disciplinary decisions of the Jockey Club therefore remained matters for private law and were not amenable to judicial review.

The claimant sought judicial review of the Appeal Board of the Jockey Club’s decision upholding the disqualification of his horse after morphine was found in its urine. The Jockey Club accepted that the morphine resulted from contaminated foodstuff and that the claimant was not at fault. The claimant confined his claim to a declaration that the disqualification was unlawful.

Permission had initially been refused on the basis of R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909. The preliminary issue was whether the Appeal Board’s decision was a decision made in the exercise of a public function within CPR Part 54.1.

1. Preliminary issue determined against the claimant. The Appeal Board’s decision was not amenable to judicial review under CPR Part 54. The claim was therefore not maintainable as a Part 54 judicial review.
2. Under CPR Part 54.1, “public” in the expression “the exercise of a public function” means governmental, rather than merely affecting the public. The test applied in R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909 was in substance the same as that applied by the House of Lords in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546.
3. The Appeal Board’s jurisdiction was derived entirely from the Jockey Club’s Rules of Racing. The claimant, like the claimant in Aga Khan, had a contract with the Jockey Club incorporating those rules. The Appeal Board’s independence and appellate status did not alter the private nature of the underlying disciplinary function. A private body cannot create a public body, or convert a private function into a public function, by its own unilateral act.
4. The Jockey Club’s purported rules concerning persons generally did not have statutory force. Its rules could be enforced only through contract or property rights. No governmental intervention had made the disciplinary function public.
5. The greater scale or social importance of racing, the Jockey Club’s economic power, and public funding did not change the nature of the function. Nor did the Human Rights Act 1998 or the amended CPR Part 54 require a different result. The similarity between section 6 of the Act and Part 54.1 supported a consistent approach to hybrid authorities, but did not make this private disciplinary function governmental.
6. The court observed that, after the claimant abandoned claims for a quashing or mandatory order, use of Part 54 ceased to be compulsory. A possible transfer to the Queen’s Bench Division would require properly pleaded and arguable draft Particulars of Claim.

High Court (Administrative Court) The court determined the preliminary jurisdiction issue in favour of the Appeal Board and the Jockey Club, holding that the decision was not amenable to judicial review under CPR Part 54.

The judgment records that permission had initially been refused by Collins J on the basis of R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 WLR 909. Newman J subsequently granted permission for the preliminary jurisdiction issue to be argued.