Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300
LAWTON LJ. This is an appeal by the defendants, the National Greyhound Racing Club Ltd, a company limited by guarantee, from the judgment of Walton J given on 10 May 1983, whereby he refused to strike out the plaintiff's claim for want of jurisdiction.
By an originating summons issued on 11 February 1983 the plaintiff, who trains racing greyhounds, asked the court to grant him relief as follows:
1. A declaration that the decision made by the Stewards of the Defendants on the 9th December 1982 in so far as they purported to suspend the Plaintiff's trainer's licence, was void and ultra vires the Stewards' powers, in that the said action amounted to a breach of the implied term of the agreement between the Plaintiff and the Defendants, that all actions taken by the Stewards which could deprive the Plaintiff of his licence, would be reasonable and fair and made on reasonable grounds.....
The defendants tried to persuade Walton J that the plaintiff's claim was misconceived because if he had any valid complaint about the way the stewards had treated him, he should have applied for judicial review. They failed. They have tried to persuade this court that, on the correct construction of s 31 of the Supreme Court Act 1981, when a domestic tribunal is alleged to have made, in abuse of its powers, a decision which affects a member of the public or the public generally, the complainant must apply for judicial review and cannot proceed by way of an action or an originating summons for either a declaration or an injunction.
In a judgment of this court given on 16 October 1981 in a restrictive practices case unsuccessfully brought against the defendants (see Fisher v National Greyhound Racing Club Ltd [1981] CA Bound Transcript 420), Waller LJ referred to them as follows:
"The NGRC [that is the defendants] is a limited company whose objects include acting as the judicial body for the discipline and conduct of greyhound racing in England, Wales and Scotland....". Also, after consultation with the British Greyhound Racing Board, to frame and amend a code of rules for greyhound racing.....".
In order to achieve these objects the defendants have issued 'Rules of Racing' and have appointed stewards who have no financial interest in greyhound racing, to enforce them. All who wish to take part in greyhound racing in stadiums licensed by the defendants are deemed under r 2 to have read the rules and to have submitted themselves to such rules and to the defendants' jurisdiction. Trainers of greyhounds racing at licensed stadiums themselves have to be licensed and if their licences are suspended they cannot act as trainers during the period of suspension.....
On 9 December 1982 the stewards held an inquiry which the plaintiff attended and decided that he had had in his charge a greyhound which on examination showed presence in its tissues of substances which would affect its performance. They suspended his trainer's licence for six months. It is this decision which the plaintiff has challenged in his originating summons.
In my judgment, such powers as the stewards had to suspend the plaintiff's licence were derived from a contract between him and the defendants.... A stewards' inquiry under the defendants' rules of racing concerned only those who voluntarily submitted themselves to the stewards' jurisdiction. There was no public element in the jurisdiction itself..... [T]he courts have always refused to use the orders of certiorari to review the decisions of domestic tribunals. In R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 All ER 770 at 778, Lord Parker CJ said:
"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".
Before the passing of the Supreme Court Act 1981, as I think counsel for the defendants accepted, anyone aggrieved by a decision of a domestic tribunal could only proceed by way of a claim for damages or for relief by way of a declaration or an injunction.....
Counsel for the defendants, however, submitted that s 31 of the Supreme Court Act 1981 has given the court jurisdiction to entertain judicial review of the proceedings of a domestic tribunal if, as in this case, those proceedings were likely to have consequences affecting the public generally.....
The nature of the matters with which the plaintiff's originating summons deals is the alleged abuse of power by the stewards. Abuse of power, submitted counsel for the defendants, was a matter with which prerogative orders dealt. The circumstances of the case involved the public interest because of the need to stamp out malpractices in greyhound racing. Although prerogative orders had not in the past been made against domestic tribunals, in this case 'it would be just and convenient' for the declarations asked for by the plaintiff to be made or refused.
I cannot accept this submission. The purpose of s 31 is to regulate procedure in relation to judicial reviews, not to extend the jurisdiction of the court. It puts into statutory language, with modifications, what is in RSC Ord 53. That order 'introduced a most beneficent reform in the practice and procedure relating to administrative law': see The Supreme Court Practice 1982 vol 1, p 865, para 58/1(14/1. It did not purport to enlarge the jurisdiction of the court so as to enable it to review the decisions of domestic tribunals. In R v BBC, ex p Lavelle [1983] 1 All ER 241 at 248, [1983] 1 WLR 23 at 30, which was a case in which an employee of the British Broadcasting Corp applied for judicial review and for an order of certiorari under Ord 53, in respect of a decision to dismiss her, Woolf J said:
'"Rule 1 [of RSC Ord 53] has since received statutory confirmation in almost identical terms in s 31 of the Supreme Court Act 1981. There is nothing in r 1 or s 31 which expressly extends the circumstances in which the prerogative remedies of mandamus, prohibition or certiorari are available. These remedies were not previously available to enforce private rights but were, what could be described as, public law remedies. They were not appropriate, and in my view remain inappropriate remedies, for enforcing performance of ordinary obligations owed by a master to his servant. An application for judicial review has not and should not be extended to a pure employment situation".....
I agree with Woolf J.....
SLADE LJ:...[I]t is easy to understand why the NGRC would prefer that any person who seeks to challenge the exercise of its disciplinary functions should be compelled to do so, if at all, by way of an application for judicial review. In this manner the NGRC would enjoy the benefit of what Lord Diplock in O'Reilly v Mackman described as "the safeguards imposed in the public interest against groundless, unmeritorious or tardy attacks on the validity of decisions made by public authorities in the field of public law". Notwithstanding recent procedural changes, these safeguards are still real and substantial. Leave is required to bring proceedings. Terms may be imposed as to costs and the giving of security. There is a time-bar of three months, though the court has power for sufficient reason to extend this. The court retains firm control over discovery and cross-examination....
The difficulty, to my mind insuperable, which has faced counsel for the defendants in contending that the process of judicial review is a procedure, and indeed the only procedure, available to the plaintiff in the present case is that, as he frankly accepted, the rules of racing of the NGRC and its decision to suspend the plaintiff in purported compliance with those rules have not been made in the field of public law. Furthermore, its authority to perform judicial or quasi-judicial functions in respect of persons holding licences from it is not derived from statute or statutory instrument or from the Crown. It is derived solely from contract.....
The relevant law, as it stood in 1975, is to be found reflected in the decision in R v Post Office, ex p Byrne [1975] ICR 221. In that case a Post Office official, acting under the disciplinary procedure of the Post Office, found that a Post Office telephonist had committed an offence against a supervising officer and placed him on a suspended dismissal. The applicant applied for an order of certiorari to quash the decision on the grounds, among others, that the procedure had contravened the Post Office disciplinary rules. The Divisional Court dismissed the application on the grounds that the only legal authority which any Post Office employee superior in rank to the applicant could exercise in relation to him derived exclusively from the contract of employment made by the applicant with the Post Office, and that such authority affected the applicant's rights not qua subject but qua Post Office employee (at 227).....
