1. On 26 September 2014 the Disciplinary Panel of the British Horseracing Authority (BHA) heard an application under Rule (A)67.2 by Pat Cosgrave for relief against the consequence of being placed on the Emirates Racing Authority’s (ERA) forfeit list.  Cosgrave’s application was presented by Thomas Crockett of Counsel with the support of Paul Struthers of the Professional Jockeys Association (PJA). The BHA’s position was explained by Lyn Williams.

Background

2. The application arose in the following way. On 18 March 2014, Cosgrave was suspended by the ERA for six months after an inquiry into his riding of ANAEROBIO (ARG) in a Group 1 race at Meydan. He appealed that decision, and on 4 May 2014 the ERA Appeal Panel upheld the original finding of improper riding (though for different reasons than those stated by the original Stewards), and reduced the suspension to four months expiring on 17 July 2014.

3. Cosgrave applied to this Panel under the BHA’s Rule (A)69.3 to challenge the automatic operation of that penalty here. He was successful, for reasons already published by this Panel. It was held that the ERA appeal hearing was conducted unfairly in a material respect.

4. When the ERA Appeal Panel announced its decision on 4 May, this included a determination that Cosgrave should pay costs consisting of half the appeal hearing transcription fees plus the fees of the Appeal Panel members. At some later point, these were found to be more than AED 200,000. ERA rule 85(iv) limits the costs that can be awarded against a hearing participant to AED 200,000, so it is this figure which the ERA says is owed to it by Cosgrave. (AED 200,000 equates to a little under £35,000).

5. Cosgrave has so far refused to pay this. After this Panel’s decision not to reciprocate the suspension, Cosgrave’s representative, Mr Struthers, sought to engage the ERA in a debate about whether it could or should pursue Cosgrave for the costs. The ERA’s eventual response was to place Cosgrave on its forfeit list. It is believed that this was done on 11 September 2014. Mr Struthers received an e-mail from the ERA on that same day informing him that Cosgrave had been put on the ERA’s forfeit list, and he passed on this information as soon as he reasonably could to Mr Cosgrave, the Panel finds. He also told the BHA of this development on 12 September.

6. As a result, the BHA sought information about the situation from the ERA. By a letter dated 21 September 2014, the ERA for the first time directly informed the BHA of this fact, and also said that “the ERA does not seek reciprocation of the subsequent disqualification of Mr Cosgrave.” The ERA’s rules (like those of the BHA) provide that a person whose name is added to the forfeit list is to be treated as a disqualified person.

This application

7. The present application comes about because the BHA Rules provide (consistently with the International Agreement on Breeding, Racing and Wagering) for automatic disqualification here of persons whose name is added to the forfeit lists kept by Recognised Racing Authorities. The ERA is of course a Recognised Racing Authority.

8. Cosgrave asks that this Panel should exercise the discretion implicit in the words of Rule (A)67.2 to remove the sanction of disqualification. In the Panel’s view, the discretion is one which needs to be exercised fairly, balancing both the legitimate interests of the individual who faces disqualification by virtue of being on a foreign racing authority’s forfeit list and the need for effective regulation of the sport of racing.

9.  Three arguments were put forward in support of Cosgrave’s application, the principal one being that it was wrong to subject him to disqualification in this country for the costs of a hearing which this Panel has previously found to have been conducted unfairly. There were subsidiary arguments about the proportionality of the costs order and whether the costs order was itself made fairly by reference to the ERA’s own rules.

10.  But it was not necessary to reach a conclusion on these arguments, given the contents of the ERA’s letter of 21 September quoted above. The Panel was of course mindful that Rule (A)67.1 provides that a person placed on a forfeit list by a recognised racing authority is automatically treated as a disqualified person here. Thus, the bare fact that such a foreign authority does not seek reciprocation here is not decisive, because the trigger for disqualification by this Rule is not a request for reciprocation but simply appearing on the foreign forfeit list. However, the Panel felt that the ERA’s indication in its letter that it did not seek Cosgrave’s disqualification here was a sufficient reason for directing that he should not be disqualified here.

11. So the Panel directs (as Rule (A)67.2 allows) that Cosgrave should not be treated as a disqualified person because his name appears on the ERA’s forfeit list. This direction operates from the moment when Cosgrave’s name appeared on that list. There was no precise evidence about when exactly that was done, save that the ERAs’ letter of 21 September 2014 says that this happened on 11 September, and indicates that it must have happened at or before 4.24pm UAE time. Because there was some uncertainty about the precise time, and because even less was known about timings when interim stays of Cosgrave’s disqualification were granted by the chairman of this Panel on 12, 15 and 19 September, the Panel now makes it clear that the Rule (A)67.2 direction it gives shall be treated as operating from the moment when the ERA put Cosgrave on its forfeit list.

Notes to editors:

1. The Panel for the hearing was: Timothy Charlton QC (Chair), Lucinda Cavendish, William Barlow