SINES, CRICKMORE, PETER GOLD, NICHOLAS GOLD

On 10 April 2012 following a three day hearing the Appeal Board dismissed appeals by the above four appellants against findings of breaches of the Rules of Racing against all four of them. The Respondent, the British Horseracing Authority, has applied for orders for costs against the four appellants. The total sum sought is £50,058. This is made up of £32,010 for leading counsel, £16248 for junior counsel and a further sum of £1800 for pre-hearing work by a second junior counsel. Written submissions resisting orders for costs have been submitted on behalf of all four appellants. There was a fifth appellant, Kirsty Milczarek, whose appeal was dealt with separately and allowed. The Board understands that none of the costs claimed include any sums referable to Milczarek’s appeal. The appellants’ submissions are in summary as follows.

On behalf of Sines and Crickmore, it is submitted that the sums claimed are wholly unreasonable and that it would be wrong in principle to award any sum which exceeded the costs incurred by these two appellants. It is further submitted that the central issue in the appeal concerned the proper standard of proof to be applied in the proceedings before the Panel. As such it raised an important general issue on which the Rules of Racing were seriously deficient and the appellants should not be penalised for raising and arguing this issue. Finally it is submitted that at the time the appellants were “non-licensed” and not in a contractual relationship with the BHA. Accordingly it would be wrong in principle to make an order for costs against them.

On behalf of the Golds, it is submitted no order for costs should be made against either of them. Alternatively if any order is appropriate it should be limited to the costs of leading counsel. The following further submissions are made. Firstly reference is made to the Board’s decision in McKeown. Reliance is placed on a comment made by the Board in that case as to the need to balance an order for costs against the risk of discouraging genuine appeals. Secondly it is submitted by further reference to McKeown that the sum awarded should be reduced because these appellants were found to be in breach to a lesser extent than had originally been contended for before the Panel. In contrast McKeown’s breaches were found to be very serious yet his liability for costs was reduced. Thirdly it is submitted that the Golds’ responsibility for breach of the Rules was much less than their co-conspirators, Sines and Crickmore. It is argued that if any party should be ordered to pay costs it should be Sines and Crickmore.

Having carefully considered all the submissions made on behalf of the four appellants we have concluded that the BHA is entitled to an order for costs against the appellants. It goes without saying that the award of costs on appeal is to compensate the Respondent for incurring reasonable costs in resisting an appeal and is not a further punishment. The fact that the breaches found by the Panel were more serious in respect of Sines and Crickmore than the breaches of the Golds is in our opinion of no significance at the appeal stage. Further, the McKeown comment that an award of costs must be balanced against the need not to discourage genuine appeals is of little weight when the appellants are, as these four are, men of substantial means.

Finally the fact that appellants were, as the Golds were, not licensed is of no significance in these appeals; nor is it of any significance in the case of Sines and Crickmore. The Golds agreed to be bound by the Rules of Racing for the purposes of the appeals. As owners of race horses, Sines and Crickmore were licensed. In any event in our opinion any person wishing to appeal against a Panel decision must by implication become subject to the Rules of Racing as they apply to appeals.

It follows from the above that in our opinion the BHA in these appeals are entitled to an award of costs, the appeals having failed. However it is axiomatic in all litigation that the party which succeeds is only entitled to costs incurred which are reasonable and proportionate. We have therefore considered whether the sums claimed are reasonable and proportionate.

We are satisfied that it was reasonable for the BHA to instruct leading and junior counsel in the appeals. The factual issues were complex and the issue of the standard of proof important. We do not however think it reasonable to instruct a second junior despite the costs of doing so being modest. As to leading counsel and junior counsel’s fees in our judgment they are not proportionate. We have concluded that for the purposes of an award of costs those fees must be reduced. Doing the best we can we allow the costs of leading counsel in the sum of £20000 and junior counsel of £10000. To the total sum of both we add £6000 for VAT. In arriving at this figure we take into account the fact that to a very small and limited extent Sines, Crickmore and Nicholas Gold succeeded in their appeals against penalty. The issue of penalty in the case of all four appellants was extremely limited. It was dealt with by submissions on paper and to the modest extent which the appeals succeeded it depended to a substantial extent on the success of Milczarek’s successful appeal.

We have considered how this total sum should be divided between the four appellants. The Sines and Crickmore appeals were in each case based on the same grounds and factors. Similarly although to some extent the grounds were different to their co-appellants the appeals of the two Golds were on precisely the same grounds and factors as between each other. We can see no reason for differentiating between the two groups on the length of the hearing and the time taken on the individual issues. In the circumstances we have decided, as the BHA suggest, that the total of the costs awarded should be divided equally between all four; that is each should pay £9000 towards the BHA’s costs.

Sir William Gage
Lord Rathcreedan
Anthony Mildmay-White
12 June 2012