1. In its decision published on 23rd January 2008, the Disciplinary Panel held that Warwick Racecourse Company Ltd was in breach of Rule 80(ii)(e) of the Rules of Racing because the ground was unfit for the meeting on 6th September 2007. Written submissions about the appropriate penalty for this breach were put in both by the British Horseracing Authority (BHA) and by Warwick. These showed a marked difference of approach. The BHA said that the fine should be at the upper end of the £1,000-£15,000 range given in the Guide to Penalties; Warwick submitted that this was an exceptional case where no fine should be imposed.
2. Though the Guide gives a bracket of £1,000-£15,000 for breaches of Rule 80 (ii)(a), with entry points of £2,500, £3,000 and £5,000 for various different types of breach of that part of the Rule, there is no express guide for the appropriate entry point for a breach of Rule 80(ii)(e). However, Rule 80(ii)(a) is a general rule requiring managing executives of racecourses "to comply with the requirements of these Rules", and Rule 80 (ii)(e) is the particular rule which the Panel has found was not complied with by Warwick. So the Panel concluded that the entry point identified for this - a fine of £2,500 - was the correct starting point.
3. The BHA identified various features of the breach which they said should lead to a heavier fine than the entry point: damage to the professional image of the sport as a result of the last minute abandonment of racing; financial losses to owners, trainers, jockeys and members of the public; and Warwick's failure to recognise their responsibility for the loss of most of the day's racing.
4. On the other hand, Warwick said that the problem arose without fault on their part; that they have already suffered serious financial loss as a result of the abandonment and are likely to suffer more if owners and trainers are compensated; and that they acted responsibly after 6 September by investigating thoroughly what had happened and eventually carrying out levelling works on the affected area.
5. The Panel decided that an entry-level fine of £2,500 should be imposed, for the following reasons:-
(i) breach of Rule 80(ii)(e) can occur without fault on the part of the managing executive. It can be the result of some normal and reasonable step they take - such as the routine watering of the bend in Warwick's case - which has the reasonably unforeseen consequence of making some other part of the racing ground unfit. The obligation imposed by Rule 80(ii)(e) is, as already pointed out, an onerous one, which is not met just by taking reasonable care to produce ground fit for racing. Therefore, the absence of fault on the part of the executive is not in principle a feature that should lead to no penalty or a nominal penalty being imposed.
(ii) in fact, the Panel concluded that there was some element of fault that occurred here. The home bend at Warwick had been flooded during the heavy July rains, and the lying water had to be pumped off towards the end of that month. This exacerbated the tendency of the problem area to become soggy when routine watering of the bend was carried out. While the Clerk of the Course and the estates manager were aware in general terms of the propensity of this patch to become wetter than the surrounding ground, they did not give it the checking and attention that it called for. Though they did not view it as a particular problem given previous years' experiences, the July flooding of the area made it necessary to take special care to monitor it thereafter, and this was not done. The element of fault may have been slight when viewed in isolation, but it led to serious consequences. In principle, this would lead to the imposition of a fine above the entry point.
(iii) but because of the sizeable amounts which Warwick has already paid out and will pay out, the Panel returned to the entry level penalty of £2,500 for the breach. The Panel also took into account the sensible approach that the executive took after the day to investigate what happened and carry out remedial work. There was no element of irresponsibility in defending the charge brought by the BHA. As the Panel has already commented, it is understandable why this was done in the light of the sharply divided opinions expressed about the correctness of the decision to abandon racing on the day.