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Hold your horses

Judicial review proceedings involving the IHRB regarding lawyers' rights of audience in disciplinary proceedings

One of the leading recent stories in horse sport has been the initiation of judicial review proceedings by Tony Martin, trainer, against the Irish Horseracing Regulatory Board. Mr Martin's claim did not pass the application for leave stage. 


Mr AJ (Tony) Martin's horse Firstman tested positive for lidocaine in winner’s post-race testing at Dundalk racecourse on 18 January 2023. The presence of lidocaine in a horse is prohibited on race day. This was Mr Martin’s third breach of equine anti-doping rules in four years. His training licence was withdrawn for six months but that sanction was suspended for a period of two years. He was also fined €10,000. Mr Martin and the IHRB both appealed the decision of the Referrals Committee: Mr Martin on the level of the fine, and the IHRB on grounds of leniency in respect of the suspension period of the licence withdrawal.

The appeal was presided over by a panel chaired by former President of the High Court, Mr Justice Peter Kelly. The case was presented on behalf of the IHRB by a barrister who is a member of the Bar of England & Wales and regulated under the British Bar Standards Board but who is not registered as a barrister in Ireland. Objection was raised to the English barrister’s right of audience as an unregulated lawyer in Ireland.

The Rules of Racing provide at Rule 259 that:

“Any person appearing before the Licensing Committee, the Referrals Committee or the Appeals Body, as an alternative to legal representation, may have his or her case presented by a designated Official of any Association duly recognised by the IHRB. Such facility is an alternative to the presentation of a case by the person involved or by a Solicitor or Barrister, with the requisite qualification and registration either in this jurisdiction or any other jurisdiction, retained by such person or appellant.”

In light of that Rule, the Appeals Body rejected the preliminary objection and proceeded to hear the appeal. The IHRB succeeded in its appeal and the suspension of the sanction on Mr Martin’s licence was reduced to three months, meaning he was not permitted to train horses for a period of three months. In terms of the fine imposed, the amount remained the same on appeal but Mr Martin was allowed more time to meet this in recognition of the withdrawal of his licence.

Mr Martin then initiated judicial review proceedings in attempt to quash the decision of the Appeals Body on the basis that the case on appeal had been presented by an English barrister unregulated in Ireland; he had no complaint about the barrister’s conduct. His application also sought to quash Rule 259 itself.

Mr Justice Mulcahy heard the application for leave to seek judicial review and delivered judgment on 16 May 2024.

The Court considered Section 136 of the Legal Services Regulation Act which provide that “an unqualified person shall not provide legal services as a practising barrister”, and the next subsection which makes it an offence to do so. Despite being urged to do so by Counsel for Mr Martin, the Court did not find that the BSB registered barrister had committed an offence by acting as a barrister in Mr Martin’s case before the Appeals Body. The Court found that the only ‘sensible meaning’ of the provision was that an unqualified person was prohibited from providing legal services as if they were or on the basis that they are a qualified barrister. The English barrister had not claimed to be qualified within the meaning of the Act ie he had not claimed to be registered in Ireland. He was qualified and registered in England and Wales only, and therefore he had not committed the statutory offence of holding himself out as a practising Irish barrister.

Turning then to the legitimacy of the rule allowing a legal practitioner from a different jurisdiction to present cases before disciplinary panels convened under the Rules of Racing, the Court found that Rule 259 is concerned with rights of audience in hearings before those panels, not with who is entitled to provide legal services as a solicitor or barrister. Conversely, the Court said, the Act is not concerned with rights of audience, rather it is concerned with the regulation of the legal profession. The Court noted that there was nothing in the Act preventing any particular body, by its rules, granting any person a right of audience before it.

The IHRB is an all-island regulator of the horseracing industry and the Court found it entirely understandable that a provision was expressly made for the right of audience of lawyers other than those qualified in Ireland.

The Rules of Racing also provide for the right of lawyers for foreign turf authorities to present cases on behalf of that authority.

This judgment is welcome in terms of clarifying that sports rulebooks and regulators can provide for the presentation of cases by lawyers who are not qualified or regulated in Ireland. This will be especially useful for entities with an all-island coverage who should include an explicit provision for this in their own rules.


Bébhinn Murphy BL

3 June 2024


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