On 20th May 2013 the Appeal Board of the BHA revealed that they had partially upheld the appeal lodged by James Babbs and John Celaschi against the decision of the Disciplinary Panel to find them in breach of the Rules of Racing.

The verdict of the Appeal Board was to:

• Uphold the appeal of James Babbs against breaches of Rule (A)37 (assisting and/or causing the commission of a corrupt or fraudulent practice) but not uphold the appeal against a breach of Rule (E)92 (laying a horse to lose or assisting in laying a horse to lose).
• Uphold the appeal of John Celaschi against breaches of Rule (A)41 (involvement in corrupt or fraudulent practices in relation to racing) but not uphold the appeal against a breach of Rule (A)37 (assisting Mr Babbs to lay a horse to lose).

Subsequently, submissions were made by both parties relating to penalty for those Rules for which the appeals were not upheld. An application for costs was also lodged by Messrs Babbs and Celaschi.

The Appeal Board’s finding on these issues, as well as their reasoning for finding Messrs Babbs and Celaschi not in breach of the aforementioned Rules, may be found below:

Introduction

1. By written decision dated 27 March 2013, following a 3 day enquiry during the previous month, the Disciplinary Panel found that charges against James Babbs and John Celaschi arising from lay betting on three races in 2010 were made out. The three races were –

(1) on 21 January at Southwell, in which ISTIQDAAM, a horse owned jointly by Mr Babbs and Andrew Duke (in a partnership called “Old Pals”) participated and finished tenth of eleven runners. ISTIQDAAM was trained by Michael Easterby and ridden by Philip Makin;

(2) on 17 February 2010 at Lingfield, in which BOLD ADVENTURE participated and finished sixth of thirteen runners. There was a dispute as to whether Mr Babbs was a co-owner of BOLD ADVENTURE as at the date of this race, and the Panel found that he was. BOLD ADVENTURE was trained by Willie Musson and ridden on this occasion by Tony Culhane;

(3) on 27 May 2010 at Wolverhampton, in which BOLD ADVENTURE again participated, finishing fifth of ten runners, still trained by Willie Musson and ridden this time by Tom Queally, Tony Culhane having opted to ride the favourite instead.

2. Mr Celaschi placed lay bets on the first and third races identified above. He layed ISTIQDAAM in the 21 January race with a liability of £4,707, and made a profit of £2,341 when the horse finished unplaced. He layed BOLD ADVENTURE in the 27 May race with a liability of £14,144 and made a profit of £2,701.

3. As regards the 17 February race a lay bet was placed on BOLD ADVENTURE, risking £483 and winning £80. The bet was placed on Mr Celaschi’s Betfair account, but the Panel found it was made on behalf of Mr Babbs.

4. There was no suggestion that the geldings were ridden other than properly and on their merits in all three races.

5. In terms of the charges brought by the BHA the Panel found as follows:

(1) that Mr Celaschi was in breach of Rule (A)41 of the Rules of Racing by committing a fraudulent practice in placing a lay bet on ISTIQDAAM on 21 January 2010 with the benefit of inside information as to the prospects of the gelding in that race;

(2) that Mr Babbs was in breach of Rule (A)37 by assisting the commission of the said fraudulent practice by Mr Celaschi, by communicating inside information to Mr Celaschi knowing that he would use it for that purpose;

(3) that Mr Celaschi was similarly in breach of Rule (A)41 by laying BOLD ADVENTURE on 27 May 2010 with the benefit of inside information communicated by Mr Babbs;

(4) that Mr Babbs was similarly in breach of Rule (A)37 by communicating the inside information to Mr Celaschi as to the prospects of BOLD ADVENTURE on 27 May;

(5) that Mr Babbs was in breach of Rule (E)92 by instructing Mr Celaschi to lay BOLD ADVENTURE in the race on 17 February 2010 on his behalf;

(6) that Mr Celaschi was in breach of Rule (A)37 by assisting Mr Babbs to lay the gelding on that day.

6. In respect of the first four offences listed above (committing and assisting in the commission of a corrupt or fraudulent practice) the Panel imposed a sanction of disqualification for a period of 4 years on each of Mr Babbs and Mr Celaschi. For the fifth and sixth offences (owner laying his horse and assisting him to do so), a sanction of disqualification for 18 months was imposed on each man, to run concurrently with the 4 year disqualification for the other offences.

7. Mr Babbs and Mr Celaschi appealed against all the findings made and the sanctions imposed against them. Extensive written arguments were submitted on behalf of the appellants and in response on behalf of the BHA. The appeal was heard on 20 May 2013, Mr Babbs and Mr Celaschi being represented, as they had been before the Panel, by Ian Winter QC, and the BHA being again represented by Philip Evans of counsel. At the conclusion of the hearing, the Appeal Board announced that it would allow the appeals in relation to findings (1) – (4) (corrupt or fraudulent practice), and dismiss the appeals in relation to findings (5) and (6) (laying of horse by owner). We now set out the reasons for these decisions.

The betting relationship between Mr Babbs and Mr Celaschi

8. Mr Babbs and Mr Celaschi have worked for many years as investment bankers in the City, and are wealthy men. The evidence before the Panel showed that, over a prolonged period, they collaborated closely with each other and with Mr Duke in the placing of bets, not only on horses but (we were told) other sports as well. The bets often involved substantial sums, and the Panel’s decision records that they could afford regularly to wager sums of £10,000 on a race and not be unduly concerned to lose. Their telephone records showed that the three men were in frequent and regular contact with each other. The Panel’s decision states:

5.3 The betting accounts revealed a significant degree of collaboration between the three individuals. Analysis of the accounts showed a pattern of lawful back betting whereby Mr Duke and Mr Celaschi would bet on the same horse and often Mr Babbs would place a similar bet. The evidence showed that Mr Celaschi regularly bet in collaboration with Mr Babbs and Mr Duke.

5.4 Mr Celaschi’s evidence at the enquiry that he bet independently was not accepted by the Panel in the light of this betting evidence. The Panel concluded from its review of the betting timelines and telephone calls that the three individuals regularly collaborated in discussing and placing bets. Bets were often struck within seconds of each other and Mr Celaschi repeatedly placed bets following a communication from Mr Babbs.

9. Although there was evidence of substantial sums of money passing between Mr Babbs and Mr Celaschi , it is important to note that the Panel did not consider whether it could be inferred from the intense and prolonged collaboration between the two of them (and Mr Duke) that there was in existence, at the relevant times in 2010 when the alleged offences were committed, an informal betting partnership between the two (or three) men. Had such a finding been made it would have followed that bets made by Mr Celaschi would have been made on behalf of Mr Babbs (and Mr Duke, if he was also a partner) as well as on his own behalf, and vice versa.

10. The Panel’s decision and reasoning therefore proceed on the footing that the lay bets placed by Mr Celaschi on 21 January and 27 May were solely for his own account and benefit. And the lay bet placed on the 17 February race on Mr Celaschi’s Betfair account was solely for Mr Babbs’ benefit.

11. An appeal to the Appeal Board is (except in a case where new evidence is admitted on the appeal) by way of review, not rehearing. The Board could not, therefore, have set out to revisit the question whether Mr Babbs was in truth a party to Mr Celaschi’s bets, even if it had been invited to do so, which it was not.

Events preceding the bets: inside information

12. The Panel in its written decision sets out in detail the telephone conversations and text messages that took place in the periods immediately preceding the lay bets on the three races. These details are matters of record, and were not in dispute. The pattern was similar for all three: calls or texts between Mr Babbs and Mr Duke, followed by conversations between Mr Duke (and, before the 17 February race Mr Babbs) and the trainer, followed by conversations between Mr Duke and Mr Babbs, followed by conversations between Mr Babbs and Mr Celaschi, followed by the placing of the bets in question.

13. The Panel’s view of these conversations was as follows:

7.7 The Panel concluded that when calling the trainers, Mr Duke discussed the prospects for the geldings. Although there is no record of the conversation the clear inference from the subsequent events was that the trainers gave a negative opinion for both the races and in consequence Mr Duke and Mr Babbs decided not to back their geldings. (Betting records show that Mr Duke and Mr Babbs backed their geldings in other races; sometimes in conjunction with Mr Celaschi and with very successful results. On 12 March 2010 Mr Duke, Mr Babbs and Mr Celaschi won £30,000, £33,667 and £77,795 respectively backing BOLD ADVENTURE in the 20:20 at Wolverhampton.

7.8 The negative information from the trainers was inside information not promulgated to, or known by, the wider racing public. The clear inference from the evidence is that Mr Duke passed this information to Mr Babbs who in turn passed this on to Mr Celaschi – this gave Mr Celaschi confidence to lay the geldings despite being sent off at odds suggesting the market believed the geldings had a good chance of winning – reflected in the fact that Mr Celaschi did not need to push out the odds to attract punters on Betfair to take his money.

14. Mr Winter QC attacked the Panel’s approach and findings in relation to inside information. He contended that the definition of it in Rule (A)36.1 is –
“deficient in law since ‘inside information, in addition to the two requirements therein listed, must also be (i) sufficiently specific to be capable of having value ascribed to it, and (ii) must be price sensitive such that it is capable of affecting the price of any bet struck in relation to it.”

Mr Winter went on to submit that the BHA could not establish that inside information had been communicated to Mr Celaschi unless it could particularise what that inside information actually was.

15. We do not accept these arguments: the phrase “information about the likely participation or likely performance of a horse in a race” in Rule (A)36.1 has inherent within it the two requirements which Mr Winter contends are missing, since, not being in the public domain, that information will in all probability both have value and be price sensitive. And we do not consider the rule necessarily requires the particularisation of the inside information allegedly communicated in contravention of it. There will be cases where it is perfectly obvious that some sort of inside information was communicated to a person without it being possible to say precisely what it was.

16. In the Panel’s view this was such a case, and we agree. It would be absurd to suggest that the conversations between Mr Duke and Mr Babbs with the trainers shortly before the bets were placed did not concern the trainers’ views as to the horses’ prospects, or that the explanations given for those views were restricted to matters which were known to the public at large and well known to Mr Babbs, Mr Duke and Mr Celaschi as very experienced betting men – for example, that the horse was being upped in trip, or was up in the weights, or that his usual jockey preferred to ride the favourite.

17. In our view, therefore, there was ample material on which a reasonable Panel could conclude that inside information had been communicated to Mr Celaschi, and influenced him in making the lay bets on the 21 January and 27 May races.

Reward, gift, favour or benefit in kind

18. Rule (A)36.2 provides:
“A Person must not communicate inside information directly or indirectly to any other Person for any material reward, gift, favour or benefit in kind”

19. The Panel did not find that any reward, gift, favour or benefit in kind had been given or received for the information communicated to Mr Celaschi. It stated as follows:

7.10 The Panel did not believe that Mr Celaschi provided financial reward to Mr Babbs for this information. The two individuals were by their own admission friends. Both agreed that they were used to receiving tips about the prospects of horse that they would sometimes act upon. Trading tips was part of their way of life in the City. The sums of money won on these races – although considerable by normal standards – was a secondary issue. The opportunity to win against the market was, in the Panel’s view, the primary motivation for this behaviour. The sums of money won would have been welcome but they were not so significant to be a major factor in this case.

20. Again, the Appeal Board would not have been entitled to question the correctness of this finding of fact, even if it had been asked to do so.

Fraudulent practice: the January and May races

21. The Panel’s reasons for concluding that the placing of the lay bets by Mr Celaschi was a fraudulent practice within Rule (A)41 are most clearly expressed in paragraphs 11.8 – 11.10 of its decision, in the section headed “Sanction”. The Panel said this:

11.8 The Rules of Racing permit that such inside information may be provided to another as long as it is for no reward. It was open to Mr Babbs to share this information with Mr Celaschi as long as there was no payment or benefit in kind received from him in return and the information was not put to a corrupt or fraudulent use. What was not permissible was for Mr Babbs to provide this information to Mr Celaschi knowing that Mr Celaschi would use the information on Betfair to lay his horses.

11.9 When a punter seeks to match a bet offered on Betfair in respect of horseracing, he should be able to do so without concern. Those who offer odds to be matched, should not have an unfair advantage occasioned by a breach of the Rules of Racing. Mr Babbs and Mr Celaschi put forward in their submissions that passing inside information in the manner found by the Panel is a technical and minor breach of the Rules. The Panel disagree. If a punter is thinking about matching a lay bet on Betfair and knew that the person offering the odds had the following knowledge:
• The trainer of the horse gave a negative opinion about the horse’s chances
• The owners were not going to back the horse
• The owners had passed this negative information to a close friend with whom they had a betting relationship knowing they would lay the horse, and
• The friend was now offering the odds to lay the horse
the Panel suspect that the punter would think very carefully before matching the odds offered. Mr Celaschi allowed punters to match the lay bets he offered and they knew nothing of the above facts.

11.10 Mr Babbs in passing the inside information to Mr Celaschi and discussing with him the chances for his horses, caused an unfair and deceitful advantage – he knew that Mr Celaschi would lay ISTIQDAAM on 21 January 2010 and BOLD ADVENTURE on 27 May 2010. Mr Celaschi’s behaviour in laying horses in this manner was fraudulent. The behaviour was not minor or inconsequential. The money that was won as a result of the lay betting may not have been significant to Mr Celaschi but this fact does not lessen the censure due in relation to this behaviour. This behaviour undermines the confidence the betting public have a right to enjoy when backing horses.

22. With the greatest respect to the Disciplinary Panel, we are unable to agree with this reasoning. Mr Celaschi’s fraud and dishonesty is said to consist in laying the horses on Betfair, on the strength of the inside information communicated to him gratuitously, and nothing more. The victims of the fraud are those who matched the odds offered by Mr Celaschi, and the deceit practised on them consists in the unfair advantage given to Mr Celaschi by the inside information, ex hypothesi not available to them, and nothing more.

23. If the Panel’s reasoning is right, it follows that anyone who lays a horse on the basis of inside information communicated without material reward etc. commits a fraudulent practice contrary to Rule (A)41, and anyone who communicates the information knowing or suspecting that the horse will be layed infringes Rule (A)37. Mr Evans was constrained, albeit reluctantly, to accept that such was, or at least might be, the effect of his submission .

24. Such a result would, we think, be extremely surprising, and indeed unwelcome, to those involved in the racing and betting industries. Take a simple hypothetical case which was raised several times during the hearing of the appeal. An Owner has a Friend who follows his horses assiduously, and who is a keen punter on both the back and lay betting markets. The Friend telephones the Owner on the eve of a race and says: “Should I back your filly at Bath tomorrow?”. The Owner replies: “I wouldn’t if I were you: the Trainer tells me she’s not looking well in her coat, and anyway she badly needs the race”. This is undoubtedly inside information about the prospects of the filly, but there is no question of any payment or reward passing from the Friend to the Owner. The Owner knows or suspects that the Friend will lay the filly, and he in fact does so. Both are, on the Panel’s reasoning, guilty of fraudulent and deceitful conduct. Yet we doubt whether many people involved with racing, or indeed the public at large, would consider that the Owner and the Friend had acted dishonestly at all.

25. The Panel’s reasoning that the use of inside information to place bets is, in and of itself, fraudulent because of the “unfair and deceitful advantage” it gives the punter over his counterparty in the market would apply, as a matter of logic, as much to back bets as to lay bets. But no one suggests that it is wrong in any way to back a horse on the basis of inside information, and it happens every day. Modifying the example given above, where the Owner answers the Friend’s question “Yes, put your shirt on her: the Trainer says she’s the best 2-year old he has had in the yard in 20 years – but keep it to yourself because we want to clean up on this one”, and the Friend backs the filly and makes an enormous profit, the public response is not “How disgraceful to use that information to fleece the bookies (or counterparties on the exchanges)” but rather “Good luck to him: I wish someone would give me a tip like that.” What this demonstrates is that the use of inside information to obtain an advantage in the betting market is not of itself wrong. If there is any “unfairness” involved in the inequality of information available to the parties to the bet, it is an unfairness which all concerned must be taken to have accepted as being part and parcel of the activity and business of betting on horses.

26. If it is not wrong to make use of inside information (not improperly obtained) to back horses, the position cannot, as a matter of logic, be different in the case of lay betting. We accept, of course, that lay betting gives rise to particular problems for the racing industry and its Regulator, and this is why owners (and the other Listed Persons specified in Rule (E)92) are prohibited from laying their horses. But this is not because lay betting is of itself, and without more, fraudulent if done with the benefit of inside information properly communicated and obtained. Rather, it is because of the adverse consequences that are liable to follow from lay betting by owners and those acting in concert with them: if owners and their associates stand to profit from their horse losing they have every incentive to ensure that the horse does indeed lose, most obviously by suborning the jockey not to ride it on its merits. This is what happened in a previous case to which we were referred by Mr Evans namely Sines & others (Appeal Board decision dated 10 April 2012), where the owners (Sines and Crickmore) formed a partnership with a father and son (the Golds) to place bets on the exchanges, the profits to be shared between them, and proceeded to bribe the jockeys not to ride the horses properly. Inevitably they were all found to have been concerned in a conspiracy to commit a corrupt or fraudulent practice contrary to what is now Rule (A)41. Nothing of that sort was alleged or found to have occurred in the present case.

27. Looking at the matter legalistically, fraud connotes the intentional making of a false representation or statement to the intended victim or his agent. The statement may be express or implied. Mr Celaschi obviously made no express statement to the counterparties who matched his bets. To find that he defrauded them it would, therefore, be necessary to ascribe to him (and to every other punter who lays a horse on the exchanges) an implied representation that he is not in possession of any inside information as to the likely performance of the horse – a representation that is clearly not made in the case of back bets. There was no evidence before the Panel to the effect that participants in the betting market generally would consider that such a representation is inherent in the placing of every lay bet, and we are unable to find adequate justification for a conclusion to that effect.

28. If the Regulator was to take the view that all lay betting on the basis of inside information should be outlawed, appropriate amendments could be made to the Rules of Racing to make this clear. Whatever the difficulties of enforcement, participants in the market would then know where they stood. But we do not consider that the same result can be achieved by the use of the provisions of Rule (A)41 aimed at corrupt and fraudulent practices.

29. To summarise, the facts found by the Disciplinary Panel (which cannot be gainsaid by the Appeal Board) were that –

(1) Mr Celaschi placed the lay bets on the January and May races for his own account and benefit, not as part of any partnership or other arrangement with Mr Babbs (or Mr Duke) which would have meant that they were placed also on behalf of Mr Babbs (and Mr Duke);

(2) The bets were placed with the benefit of inside information, but no money was paid or other reward offered for that information;

(3) There was nothing untoward in the running or riding of the horses in the two races.
On these facts there is nothing to distinguish this case from the hypothetical example which we have given in paragraph 24 above, and we do not consider that the mere placing of a lay bet on the basis of inside information is capable, without more, of amounting to a fraudulent practice contrary to Rule (A)41.

30. In terms of Schedule (A)7 of the Rules of Racing, which govern the power and procedure of Appeal Boards, we therefore decided to allow the appeals relating to the January and May races on the ground that the reasons given by the Disciplinary Panel were insufficient to justify its decision, and that the Panel misconstrued Rule (A) 41 .

The February race

31. A preliminary issue arose in relation to the charges arising from the laying of BOLD ADVENTURE in the race on 17 February 2010, namely whether Mr Babbs was (together with Mr Duke) the owner of the horse on that day, having purchased it from Musson. Mr Babbs’s evidence was to the effect that Musson was in need of cash for his business, and that he and Mr Duke agreed to provide some money by way of “buying into the yard”, on the basis that at a later stage either BOLD ADVENTURE or some other horse would be transferred into their ownership. Mr Babbs said he did not become co-owner of BOLD ADVENTURE until an invoice was raised for the sale by Musson dated 1 April 2010.

32. The Disciplinary Panel did not believe this version of events, and found that Mr Babbs had become part owner of the horse on 1 February 2010, when the last of three payments was made from Mr Babbs’ bank account to Musson’s. This was consistent with what Musson told representatives of the BHA Integrity Department when interviewed about the matter (he did not give evidence before the Panel). The Panel attached particular importance to the fact that the three payments from Mr Babb’ account were all referenced “BOLD ADVENTURE”.

33. Mr Winter QC advanced an argument to the effect that, as Mr Babbs was not entered in the Register as owner of BOLD ADVENTURE until 8 April 2010, he had only an equitable interest in the horse prior to that date and was not the legal owner for the purposes of the applicability of Rule (E)92. This argument was misconceived: in a contract for the sale of goods property in the goods passes to the buyer when the parties intend it to pass. There was ample evidence on the basis of which the Panel could find that this was on 1 February, when the last payment was made. In the context of a sale of goods (as opposed to a sale of land) there is no legal basis for the proposition that the buyer obtains an equitable interest in the goods, legal title remaining in the seller, pending the completion of some formality, such as registration of the sale.

34. It was not clear to the Appeal Board from Mr Winter QC’s Grounds of Appeal and Skeleton Argument whether, aside from the issue of ownership of BOLD ADVENTURE, a separate argument was being mounted to the effect that a reasonable Disciplinary Panel could not have decided that Mr Babbs layed the horse on the evening of 16 February 2010. We have, however, addressed our minds to this issue. The Panel clearly sets out the evidence leading to its conclusion at paragraphs 6.8 – 6.12 and 10.1 – 10.6 of its decision, and its reasoning is to be found in paragraphs 10.7 and 10.8. We have read the transcript of the hearing, and in our view the Panel’s conclusion on this issue is not open to challenge, if indeed such a challenge has been made.

Other grounds of appeal

35. Two other grounds of appeal were advanced by Mr Winter QC on behalf of his clients. First, he said that the Disciplinary Panel should, before hearing any evidence, have ruled on certain “Pre-Hearing Issues” set out in a document which he sent to the Panel in advance. The document raised questions as to what an owner of a horse could or could not do consistently within the Rules of Racing, and as to what the BHA would have to establish in order to make good its charges against Mr Babbs and Mr Celaschi. The Panel declined to rule on these questions in advance (with the exception of one concerning the evidence of Mr Chignell which we consider below), saying that it would deal with them to the extent necessary once it had heard the evidence and for the purpose of reaching its conclusions.

36. In our view the Panel was entirely right to take this course. For it to have ruled in advance and in vacuo on questions which might or might not arise, depending on the evidence and arguments to be deployed later, would have been most unwise and almost certainly been a source of muddle and confusion later on in the proceedings.

37. Secondly, Mr Winter QC said that the Panel should not have admitted the evidence of Tom Chignell, the BHA’s Principal Betting Investigator, on the ground that, as well as presenting the documentary evidence extracted from the telephone and betting records relevant to the enquiry, his witness statement included expressions of opinion which, not being independent of the BHA, he should not be allowed to give in evidence. The Panel heard Mr Chignell’s evidence, saying that it would treat Mr Winter QC’s objections as going to the weight of the evidence, rather than its admissibility. In the result the Panel attached no weight at all to Mr Chignell’s opinions, but reached its own conclusions on the basis of the “cogent evidence” to be derived from the documentary evidence . Again, we do not consider that the Panel can be criticised in any way for taking this course.

38. We therefore decided to dismiss the appeal against the findings of the Disciplinary Panel in relation to the February race.

Penalty

39. As noted above, the Disciplinary Panel imposed a penalty of 18 months disqualification on Mr Babbs and Mr Celaschi for the offences relating to the February race. In written submissions delivered after the close of the hearing Mr Winter QC submits that this penalty was excessive, having regard to the small size of the bet placed, to the hardship already caused to Mr Babbs as a result of the bringing of the charges against him, and to the fact that the breach of Rule E(92) occurred “inadvertently and without malice”.

40. We do not accept these arguments: so far from being inadvertent, the breach of Rule E(92) was clearly, on the Panel’s findings, deliberate, and the appellants’ evidence as to the ownership of the horse and as to the circumstances in which the circumstances of the placing of the lay bet on 16 – 17 February 2010 was not believed. The penalty imposed was at the entry level specified for infringement of this Rule. We do not consider that the small size of the bet constitutes, of itself, a mitigating circumstance, and we can discern no other such circumstances. The appeal against the penalty imposed in relation to the February race is therefore dismissed.

Costs

41. The appellants sought an award of costs in their favour in the amount of £20,000, the maximum allowable under the Rules, on the ground that their appeals against the more serious charges against them had succeeded, and that the bulk of the costs incurred in defending themselves could be attributed to those charges.

42. In response, it is submitted on behalf of the BHA that the principles applicable to an award of costs in cases such as the present are not those which apply in relation to private litigation. Rather, they are those applicable to proceedings brought by a regulator in the discharge of its functions as such, as summarised by the Court of Appeal in Baxendale-Walker v The Law Society [2008] 1 WLR 426 at para.39 per Sir Igor Judge P. We accept this submission: there was no lack of good faith or other impropriety in the bringing of the proceedings against Mr Babbs and Mr Celaschi. Still less was there any impropriety in the way the proceedings were conducted. The principles established in Baxendale-Walker therefore dictate that no order for costs should be made against the BHA.