The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
1. On 24 May 2016, following a one-day hearing, the Appeal Board announced that it was allowing the appeal of Mr Jim Best against findings of a Disciplinary Panel (following a 5-day hearing), the written reasons for which are dated 4 April 2016, that he had acted in breach of Rule (C)45 and Rule (A)30 of the Rules of Racing. The Panel, which was chaired by Mr Matthew Lohn, imposed a penalty of 4 years’ disqualification on Mr Best. The Appeal Board announced that it would direct a re-hearing of the case against Mr Best. These are the Board’s reasons for its decision.
2. The BHA’s case against Mr Best arose as a result of the rides of Paul John, a conditional jockey then working in Mr Best’s yard, on two horses trained by Mr Best, namely ECHO BRAVA in a novice hurdle at Plumpton on 14 December 2015, and MISSILE MAN (IRE) in a novice hurdle at Towcester on 17 December 2015. The Stewards at Plumpton concluded that Mr John had acted in breach of Rule (B)59.4 (failing to take all reasonable and permissible measures to obtain the best possible placing) and suspended him for 14 days. The Stewards at Towcester found that Mr John had acted in breach of Rule (B)59.2, in that he had intentionally failed to ensure that MISSILE MAN (IRE) was run on its merits, and they referred the matter to BHA Head Office for consideration by a Disciplinary Panel.
3. The BHA notified Mr Best and Mr John by letters dated 15 January 2016 that an inquiry before the Disciplinary Panel would be held to consider the case. Following that notification to Mr John, he indicated that he would be admitting that he had intentionally not ridden the two horses on their merits, on the instructions of Mr Best. There were then discussions between Mr Rory Mac Neice, representing Mr John, and Mr Graeme McPherson QC, who has represented the BHA throughout these proceedings, as to the position the BHA would adopt in relation to the penalty that it would regard as appropriate on the basis (1) that Mr John pleaded guilty to the two alleged breaches of Rule (B)59.2, and (2) that his evidence would be that the reason he did not ride the horses on their merits was because those were his instructions from Mr Best.
4. In the event, Mr John gave evidence for the BHA against Mr Best at the Disciplinary Panel hearing. The Panel imposed a penalty whereby Mr John would be ineligible to apply for a licence for a period of 150 days from 21 December 2015, the date when he left Mr Best’s yard.
5. Mr Best appealed against the decisions of the Disciplinary Panel on 5 grounds:
(1) The reasons given were insufficient to support the decision (para.14.1 of Schedule (A)7 of the Rules;
(2) The hearing was conducted in a way which was substantially unfair and prejudicial to the Appellant (para.14.2 of Schedule (A)7), because of the apparent bias of the Chairman of the Disciplinary Panel;
(3) There was insufficient material on the basis of which a reasonable decision-maker could have made the decision in question (para.14.3 of Schedule (A)7);
(4) The Panel misconstrued (para.14.4.1 of Schedule (A)7) or wrongly applies (para.14.4.3 of Schedule (A)7) the relevant rules;
(5) The Penalty is so disproportionate that no reasonable decision maker could have decided upon it (para.14.5 of Schedule (A)7).
6. It is convenient to take Ground 2 (bias) first.
7. There was no allegation of actual bias against Mr Lohn, who is the senior partner of Fieldfisher LLP, solicitors, and who has sat as one of the legally qualified members of the Disciplinary Panel for some 10 years. The question of bias arose because it was discovered following the conclusion of the hearing that Mr Lohn had described the BHA, in an internet video to promote his firm, as one of his “clients”.
8. It subsequently transpired that between February 2014 and October 2015 Mr Lohn and his firm had done legal work for the BHA the fee invoices for which total in excess of £50,000, including VAT. These invoices do not cover payments made for Mr Lohn’s services for acting as a member of the Disciplinary Panel.
9. After the matter of apparent bias was raised in Mr Best’s notice of appeal, the BHA strenuously resisted his application for a stay of implementation of the penalty imposed upon him, the Disciplinary Panel having ordered or directed at the end of its reasons dated 4 April 2016 that “Best’s owners have until 8 April 2016 to remove their horses from his yard”. Following an emergency telephone hearing on the evening of 7 April the Chairman of the Appeal Board granted a stay of implementation.
10. Thereafter the BHA’s position changed completely. It informed Mr Best’s solicitors by letter dated 13 May 2016 that it would not oppose Ground 2 of Mr Best’s appeal, and conceded that “Mr Lohn’s position gave rise at the time of the hearing before the Disciplinary Panel to an appearance of bias within the meaning attributed to that phrase in Porter v Magill  UKHL 67.” The BHA accepted that the Disciplinary Panel’s decision and findings should be quashed, and the matter remitted to a different Panel for a fresh inquiry.
11. At the hearing before the Appeal Board, Mr McPherson QC explained that this situation had come about because the BHA had, over time, lost sight of the critical distinction between, on the one hand, its executive functions, and, on the other, its quasi-judicial disciplinary functions. Quite rightly, Mr McPherson made a fulsome apology to Mr Best on behalf of his client; he stated that steps would be taken to ensure that this situation could not recur, and that any re-hearing of the case against Mr Best would take place before a Disciplinary Panel chaired by someone of unquestionable independence and impartiality. He added that at such a re-hearing the case of the BHA would be on the same evidence as that put before the first Panel. And he stated that the BHA would pay all the costs incurred by Mr Best as a result of the abortive proceedings to date, ie. the costs of the first Panel, of the stay application, and of the present appeal.
12. In these circumstances it is not necessary for us to say anything more on the issue of apparent bias.
13. We wish to make it clear that, given that there is to be a re-hearing, we do not wish to state any view of our own (explicit or implicit) on the merits of the parties’ respective cases, or on the strength of otherwise of the evidence. We shall do no more than indicate what the evidence was, in order to address the contention that the Panel’s stated reasons were insufficient to support its decision.
14. The issue before the Panel was, in the end, one of credibility between Mr John and Mr Best as to the riding instructions he was given for the two races. The Panel preferred the evidence of Mr John, essentially on account of its assessment of him as a witness coupled with the conclusions it formed following its viewing of the recordings of the two races. Surprisingly, the Panel does not refer in its reasons to the arrangements made between Mr McPherson and Mr Mac Neice which led to Mr John’s giving evidence against Mr Best, although these were clearly of potential relevance on the issue of Mr John’s credibility.
15. A considerable volume of evidence was placed before the Panel in order to cast doubt on Mr John’s credibility, including, for example, that he was capable of riding incompetently and inconsistently, and whilst he was in no proper physical condition to do so; that he had not slept for about 30 hours before the ride on ECHO BRAVA at Plumpton; that he was a heavy drinker; that he was capable of bad behaviour in the yard, and so on. The Board does not propose to itemise all this evidence, which did not emanate only from Mr Best and his staff but also, for example, from another trainer who had employed Mr John.
16. The Disciplinary Panel dealt with this evidence in a cursory fashion in paragraph 20 of its reasons, which concludes with an apparent acceptance of the BHA’s description of it as an attempted character assassination.
17. Any decision-maker faced with the necessity of deciding which of two or more witnesses is telling the truth will obviously have regard to the inherent probabilities of the matter. In particular, motive is self-evidently relevant in this context: if a witness had no motive to do that which is alleged against him it is less likely that he did it.
18. There was evidence from Mr Best that, having regard to the ages and values of ECHO BRAVA and MISSILE MAN (IRE), their racing careers to date, and the aspirations which the yard and their owners had for them, it would have made no sense whatever to have instructed Mr John to ride them other than properly. In the case of MISSILE MAN (IRE) Mr Best’s evidence in this regard was supported by that of the horse’s owners (both significant owners for the yard), who said that so far as they were concerned the instructions had been to ride the horse properly, and that they would not have countenanced any other instructions. One of MISSILE MAN (IRE)’s owners was driven together with Mr Best to and from Towcester by Mr John, and there were very divergent accounts about what was said on the journey there and back. It was not suggested on behalf of the BHA that either owner was lying.
19. None of this evidence going to motive, and therefore to inherent probability, was referred to at all in the Panel’s written reasons.
20. Paragraph 4.9 of Schedule (A)6 to the Rules requires the Chairman of a Disciplinary Panel to ensure that “summary reasons are provided for decisions sufficient to enable any Person against whom Disciplinary Action has been taken to understand what material facts have been found by the Disciplinary Panel and why any particular Disciplinary Action is to be taken”. It was urged on behalf of the BHA that the Disciplinary Panel’s reasons in the present case met this requirement, and reference was made to various court decisions showing that an excessively stringent approach should not be taken towards the reasons given for the decisions of domestic tribunals. In English v Emerby Rumbold & Strick Ltd  1 WLR 2409 Lord Phillips MR said at para. 16 that “put simply, justice will not be done if it is not apparent to the parties why one has won and one has lost”. He added that the adequacy of the reasons will depend on the nature of the case.
21. The Appeal Board of course has addressed this issue with these authorities in mind, but nevertheless reached the conclusion that the Disciplinary Panel’s reasons were clearly insufficient to support its decision in this case. The reasons were produced nearly 4 weeks after the conclusion of a 5-day hearing of very serious charges of dishonesty which, if established, would in all probability destroy Mr Best’s career and his business. The reasons do not make it apparent to the parties why one has won and the other has lost, because they do not deal adequately, or in some significant respects at all, with the evidence and arguments presented on behalf of Mr Best.
22. For the reason given in paragraph 13 above the Board proposes to deal with this ground of appeal very shortly. We take the view that there was material before the Disciplinary Panel upon which a reasonable decision-maker could have reached a decision either in favour of the BHA or in favour of Mr Best. The fresh Panel at the re-hearing will form its own assessment of that material.
23. These were not actively pursued before the Appeal Board, because either they would become moot, or, in the event of a re-hearing, raise issues that can be argued before the fresh Disciplinary Panel.
24. An Appeal Board has, upon allowing an appeal, power to remit the matter for a re-hearing under paragraph 30.2 of Schedule (A)7. Where, in civil proceedings, a decision of a lower body is set aside on the ground of bias or some other procedural defect, the appropriate course may often be to order a re-hearing, unless there is some overriding reason for not doing so – for example, that a fair re-hearing is not possible, which was not alleged in the present case on behalf of Mr Best: see eg Mackail v IPC  EWHC 310. This is also a course which may appropriately be taken, subject to the same overriding consideration, where a lower tribunal has not given adequate reasons for its decisions: see eg. re V  EWCA Civ.274 at para. 33 per McFarlane LJ; Flannery v Halifax Estate Services  1 WLR 377 at p. 283 per Henry LJ.
25. We do, of course, appreciate that it is unpleasant for Mr Best, and potentially damaging to his business, that these allegations should be hanging over him, but this is the inevitable consequence whenever a re-hearing or re-trial is directed in criminal or disciplinary proceedings. We have concluded that the interests of racing, and the public interest generally, would not be served by leaving the issues raised in the current disciplinary proceedings unresolved. Accordingly, we exercise our power to direct a re-hearing.
• This media release was originally published by the British Horseracing Authority (BHA) on 1 June 2016. To access the original, please click here.
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