Court of Appeal (Civil Division) · Sir Thomas Bingham MR, Farquharson LJ and Hoffmann LJ
Facts
The Aga Khan owned the filly Aliysa, which won the Oaks in 1989. A sample taken after the race showed a prohibited substance, and the Disciplinary Committee of the Jockey Club, the body that regulated horse racing, disqualified the filly from the race. The Aga Khan said that the finding was wrong and that the committee had acted unfairly, and he sought judicial review of its decision.
History
The Divisional Court held that the Jockey Club's decisions were not susceptible to judicial review and dismissed the application. The Aga Khan appealed to the Court of Appeal.
Issue
Whether the Disciplinary Committee of the Jockey Club, a private body regulating a sport, exercised governmental or public functions such that its decisions were amenable to judicial review.
Held
Appeal dismissed. The Jockey Club's powers over those who took part in racing derived from contract and from the agreement of those who took part, not from statute or prerogative, and the Jockey Club was not a body whose decisions were reviewable. The Aga Khan's remedy lay in private law, for example for breach of contract or for a declaration.
Ratio
- A body is amenable to judicial review where it exercises governmental power, or where it is woven into a system of public regulation that would otherwise require the state to provide such a body; the source of its power in contract between it and those it regulates points against review.
- Although the Jockey Club regulated racing, which is a matter of public interest, its authority over owners rested on the contractual relationship, and private law remedies were adequate, so that public law did not need to be extended to it.
The judgments
Sir Thomas Bingham MR (lead)
Held that the Jockey Club had no statutory, prerogative or common law governmental power. It was not an arm of the state, nor so intertwined with government that the state would have had to create a body to do its work if it had not existed. Its jurisdiction rested on contract, and the Aga Khan, who had accepted the rules, could pursue a private law remedy.
Hoffmann LJ (concurring)
Agreed. The courts would not extend public law to a body whose power rested on the consent of its members and which could be reviewed through private law; the contractual relationship supplied the remedy that the Aga Khan needed.
Farquharson LJ (concurring)
Agreed with the reasoning and the result.
Key reasoning
- The decisions of the Jockey Club had a public flavour because racing is a sport with wide public interest and the Jockey Club was in practice the only regulator, but those features did not make it a body exercising governmental power.
- The Jockey Club did not derive its authority from the state, and had the Jockey Club not existed, the government would not have been bound to create a regulator, since racing could have regulated itself.
- Where a relationship rests on contract, the court can supply remedies for unfair or unlawful decision-making through private law, and that reduces the need for public law remedies.
Obiter
- A suggestion that there might be cases in which a self-regulatory body, even though based on contract, would be subject to review because of a public element in its functions, and that the existence of a contractual remedy would not always be a bar to review.
Where it fits in the module
On the question of when private bodies are subject to judicial review, Aga Khan is read with R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] QB 815, in which a non-statutory body exercising a public function in a system of regulation was held reviewable, and with R v Insurance Ombudsman, ex p Aegon Life [1994] CLC 88, R (Beer) v Hampshire Farmers Markets [2003] EWCA Civ 1056 and YL v Birmingham City Council [2007] UKHL 27. The FHS debate concerns whether the test should be source of power, the nature of the function, or the public interest in the body, whether the line between public and private is stable, and how the Human Rights Act 1998 concept of a public authority has affected it. A strong answer weighs the strengths of the source test against the functional test.
Criticisms
- The case depended on the contractual source of the Jockey Club's power, but an owner who wished to race had no real choice but to accept the rules, so the contract was a label for what was in practice regulatory power.
- The private law remedy that the court pointed to is narrower than judicial review, since it depends on finding a breach of contract or of natural justice rather than applying public law standards of rationality and proportionality.
- The decision turns on a distinction between sources of power which does not address the public interest in the regulation of a sport on which many depend, so the reasoning leaves a gap in the protection of individuals.
- Holding racing's regulator outside public law while a takeovers regulator without legal powers was held reviewable shows that the line between the two is hard to justify in principle.
Written with AI (claude-sonnet-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself at [1993] 1 WLR 909. Spotted an error? Tell us.