The Commercial Court has rejected an application by Pakistani cricketer Danish Kaneria to appeal the lifetime ban issued by the England & Wales Cricket Board under the Arbitration Act 1996. This case
The Commercial Court has rejected an application by Pakistani cricketer Danish Kaneria to appeal the lifetime ban issued by the England & Wales Cricket Board under the Arbitration Act 1996. This case concludes (for now) an interesting set of disciplinary and Commercial Court decisions which establish that disciplinary proceedings can constitute arbitration in certain circumstances, and open up statutory rights and requirements which may not have existed under a disciplinary body's "internal" regulations. This recent case affirms the principle that the Court should be slow to interfere with the merits of decisions of "expert" disciplinary bodies within the framework of the Arbitration Act.
The Commercial Court has dismissed cricketer Danish Kaneria's application to appeal the decision of the England & Wales Cricket Board ("ECB") to issue him with a lifetime ban. The case confirms the principle that appeal courts will generally be slow to overturn the findings of professional trade and disciplinary bodies unless there are clear and compelling reasons to do so.
Background – disciplinary hearing, internal appeal and Commercial Court decision on 'arbitral proceedings'
The ECB charged Mr Kaneria with match-fixing in 2012, in respect of an earlier domestic cricket fixture in 2009. A Disciplinary Panel of the ECB's Cricket Discipline Commission ("CDC") found the charges proved in June 2012 and issued him with a lifetime ban. Article 9.2 of the Internal Cricket Council's anti-corruption code stipulates that the sanctions of a domestic disciplinary board should be upheld by boards around the world; the effect of the CDC's decision therefore effectively meant the end of Mr Kaneria's career.
Mr Kaneria sought to appeal the CDC's decision before the ECB's Appeal Panel. In order to secure the attendance of a key prosecution witness at the appeal hearing, the ECB issued an application to the Commercial Court for a witness summons pursuant to s.43 of the Arbitration Act 1996 ("the Act"); the ECB had no power to issue a summons of its own motion since sports disciplinary proceedings are a contractual matter of private law in nature. Mr Kaneria argued that the proceedings were by their nature adversarial disciplinary proceedings, were therefore not arbitral, and that the Court should have no such jurisdiction in this case.
In granting the application for a summons ([2013] EWHC 1074) the Court, citing Walkinshaw v Diniz and the criteria set out in that case to establish whether proceedings are arbitral, decided that the ECB's appeal process constituted arbitration.This was a significant decision in itself and will have forced sports and other disciplinary bodies to evaluate whether the form of their proceedings could or should constitute either arbitration, which would be subject to the Act, or adversarial, "internal" proceedings, which would not. On this point, it was notable in the present case that the Court referred to the Appeal Panel as the "Arbitral Panel" in its judgement. The evidence of the witness the ECB was able to summons helped the ECB successfully resist the appeal, with the Appeal Panel reaffirming Mr Kaneria's lifetime ban and ordering that he pay the ECB's legal costs of the proceedings.
Challenge under ss.68-69 of the Arbitration Act
Mr Kaneria sought to challenge the Appeal Panel's decision under s.68(1) on the basis that it had committed a "serious irregularity" of the Act by exceeding its powers in respect of the Costs Order and upholding/ imposing the lifetime ban (which he claimed was disproportionate). Furthermore, he argued that the Appeal Panel's decision was "obviously wrong" partly because its sanction was disproportionate and so constituted an error on a point of law. Section 69 permits the Court to allow an appeal where there has been an error on a point of law; under s.69(3)(c)(i) the decision must have been "obviously wrong" on the basis of the findings of fact and, under s.69(3)(d), "despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question".
Serious irregularity
The Court recognised that, compared with the limited precedents on ECB sanctions for match-fixing cases, the Appeal Panel's decision was "entirely disproportionate"; furthermore, there was no prior authority for any sportsperson being banned for life for match-fixing. However, the Court noted that the Appeal Panel (and the CDC) had an "absolute discretion to impose any penalty within its general powers" and that it did, in fact, have the power under its disciplinary directives to suspend a cricketer for life on a finding of match fixing. The Court dismissed Mr Kaneria's argument that, by acting disproportionately, the Appeal Panel had erroneously exercised a power with which it had been invested. Mr Kaneria was not arguing that the Appeal Panel had exercised a power which it did not have and, as such, his case did not constitute an error of law or fall under ss.68 or 69 of the Act.
The Court also agreed with the ECB's submission that it would not be "just and proper in all the circumstances" for the Court to interfere with the exercise of the ECB's absolute discretion as a specialist, expert disciplinary body. The Court concluded that the Appeal Panel was "in a far better position than this Court to consider how to exercise a discretion to determine the appropriate sanction", and refused Mr Kaneria's challenge under s.69 of the Act.
Commentary
The Commercial Court's decision is not necessarily a surprise given the long-standing principle that a Court should be slow to interfere with the decisions and discretion of specialist tribunals, and limit its jurisdiction typically to procedural matters and not the underlying merits of decisions (it is notable that the Court in this case recognised that the lifetime ban was, in itself, "entirely disproportionate" but did not scrutinise it further)[1]. This case appears, however, to represent the first occasion on which the Court has applied these established principles to the decision of a sporting tribunal and what constitutes "just and proper" circumstances for the Court to intervene under s.69(3)(d) of the Act.
A comparative but perhaps reflective point is that the Court's jurisdiction has traditionally been curtailed in judicial review proceedings on the basis that a sportsperson and his or her disciplinary body are engaged in a private "contractual" relationship and/ or that the sporting body is not constituted by or subject to express statutory provisions: in these circumstances, the sporting body is not considered to be a public body as such, nor, therefore, subject to judicial review.
[1] A much cited sporting example of this is Bradley v The Jockey Club [(2005) EWCA Civ 1056]
The Commercial Court has dismissed cricketer Danish Kaneria's application to appeal the decision of the England & Wales Cricket Board ("ECB") to issue him with a lifetime ban. The case confirms the principle that appeal courts will generally be slow to overturn the findings of professional trade and disciplinary bodies unless there are clear and compelling reasons to do so.
Background – disciplinary hearing, internal appeal and Commercial Court decision on 'arbitral proceedings'
The ECB charged Mr Kaneria with match-fixing in 2012, in respect of an earlier domestic cricket fixture in 2009. A Disciplinary Panel of the ECB's Cricket Discipline Commission ("CDC") found the charges proved in June 2012 and issued him with a lifetime ban. Article 9.2 of the Internal Cricket Council's anti-corruption code stipulates that the sanctions of a domestic disciplinary board should be upheld by boards around the world; the effect of the CDC's decision therefore effectively meant the end of Mr Kaneria's career.
Mr Kaneria sought to appeal the CDC's decision before the ECB's Appeal Panel. In order to secure the attendance of a key prosecution witness at the appeal hearing, the ECB issued an application to the Commercial Court for a witness summons pursuant to s.43 of the Arbitration Act 1996 ("the Act"); the ECB had no power to issue a summons of its own motion since sports disciplinary proceedings are a contractual matter of private law in nature. Mr Kaneria argued that the proceedings were by their nature adversarial disciplinary proceedings, were therefore not arbitral, and that the Court should have no such jurisdiction in this case.
In granting the application for a summons ([2013] EWHC 1074) the Court, citing Walkinshaw v Diniz and the criteria set out in that case to establish whether proceedings are arbitral, decided that the ECB's appeal process constituted arbitration.This was a significant decision in itself and will have forced sports and other disciplinary bodies to evaluate whether the form of their proceedings could or should constitute either arbitration, which would be subject to the Act, or adversarial, "internal" proceedings, which would not. On this point, it was notable in the present case that the Court referred to the Appeal Panel as the "Arbitral Panel" in its judgement. The evidence of the witness the ECB was able to summons helped the ECB successfully resist the appeal, with the Appeal Panel reaffirming Mr Kaneria's lifetime ban and ordering that he pay the ECB's legal costs of the proceedings.
Challenge under ss.68-69 of the Arbitration Act
Mr Kaneria sought to challenge the Appeal Panel's decision under s.68(1) on the basis that it had committed a "serious irregularity" of the Act by exceeding its powers in respect of the Costs Order and upholding/ imposing the lifetime ban (which he claimed was disproportionate). Furthermore, he argued that the Appeal Panel's decision was "obviously wrong" partly because its sanction was disproportionate and so constituted an error on a point of law. Section 69 permits the Court to allow an appeal where there has been an error on a point of law; under s.69(3)(c)(i) the decision must have been "obviously wrong" on the basis of the findings of fact and, under s.69(3)(d), "despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question".
Serious irregularity
The Court recognised that, compared with the limited precedents on ECB sanctions for match-fixing cases, the Appeal Panel's decision was "entirely disproportionate"; furthermore, there was no prior authority for any sportsperson being banned for life for match-fixing. However, the Court noted that the Appeal Panel (and the CDC) had an "absolute discretion to impose any penalty within its general powers" and that it did, in fact, have the power under its disciplinary directives to suspend a cricketer for life on a finding of match fixing. The Court dismissed Mr Kaneria's argument that, by acting disproportionately, the Appeal Panel had erroneously exercised a power with which it had been invested. Mr Kaneria was not arguing that the Appeal Panel had exercised a power which it did not have and, as such, his case did not constitute an error of law or fall under ss.68 or 69 of the Act.
The Court also agreed with the ECB's submission that it would not be "just and proper in all the circumstances" for the Court to interfere with the exercise of the ECB's absolute discretion as a specialist, expert disciplinary body. The Court concluded that the Appeal Panel was "in a far better position than this Court to consider how to exercise a discretion to determine the appropriate sanction", and refused Mr Kaneria's challenge under s.69 of the Act.
Commentary
The Commercial Court's decision is not necessarily a surprise given the long-standing principle that a Court should be slow to interfere with the decisions and discretion of specialist tribunals, and limit its jurisdiction typically to procedural matters and not the underlying merits of decisions (it is notable that the Court in this case recognised that the lifetime ban was, in itself, "entirely disproportionate" but did not scrutinise it further)[1]. This case appears, however, to represent the first occasion on which the Court has applied these established principles to the decision of a sporting tribunal and what constitutes "just and proper" circumstances for the Court to intervene under s.69(3)(d) of the Act.
A comparative but perhaps reflective point is that the Court's jurisdiction has traditionally been curtailed in judicial review proceedings on the basis that a sportsperson and his or her disciplinary body are engaged in a private "contractual" relationship and/ or that the sporting body is not constituted by or subject to express statutory provisions: in these circumstances, the sporting body is not considered to be a public body as such, nor, therefore, subject to judicial review.
[1] A much cited sporting example of this is Bradley v The Jockey Club [(2005) EWCA Civ 1056]