Appeal – WS & KF Clotworthy

hearingid: fd7c0275b75fe198b17f2eaf57ff97ab

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Appeal - WS & KF Clotworthy

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In a written decision dated 1 November 2007, the Tribunal found a charge of committing a dishonest act connected with racing under Rule 1001 (1) (p) against the Appellant, Kim Frood Clotworthy, to be proved following a rehearing before the Tribunal on an appeal against the decision of a Judicial Committee on 16 April 2007.

1. In a written decision dated 1 November 2007, the Tribunal found a charge of committing a dishonest act connected with racing under Rule 1001 (1) (p) against the Appellant, Kim Frood Clotworthy, to be proved following a rehearing before the Tribunal on an appeal against the decision of a Judicial Committee on 16 April 2007.

2. The Appellant, William Shaun Clotworthy, was found guilty by a Judicial Committee on 16 April 2007 of the same charge in relation to the same set of facts.

3. The Judicial Committee imposed a term of suspension on the "Clotworthy Training Partnership" of 3 months from the date of the decision and, in addition, fined each of the Clotworthys the sum of $1,500 and ordered each to pay costs in the sum of $750 to New Zealand Thoroughbred Racing.

4. Both Appellants appealed to this Tribunal against the decision of the Judicial Committee and against the penalty imposed by the Judicial Committee.

5. The penalty against the Appellant, Kim Clotworthy, was stayed as from 8 May 2007 by order of this Tribunal and the penalty in respect of the Appellant, Shaun Clotworthy, was stayed from and including 1 June 2007.

6. Shaun Clotworthy has served approximately 6 weeks and 4 days of his 3 months’ suspension and, therefore, still has 6 weeks of the suspension to serve.

7. The appeal by Shaun Clotworthy was subsequently withdrawn by leave of the Tribunal but the stay of his penalty has remained in force pending final determination by this Tribunal of penalty against Kim Clotworthy.

8. The Tribunal has now received written submissions in relation to penalty and costs from Counsel for the Appellant, Kim Clotworthy, and Counsel for the Respondent.

9. Mr Colson described the appeal as having "a lengthy, indeed almost tortuous, history".

10. Mr Colson referred to the general submissions on penalty made at the hearing before the Judicial Committee.

11. There were "specific aggravating features" arising from the appeal, Mr Colson submitted. He submitted that the appeal was "meritless and frivolous". It was based on Kim Clotworthy’s assertion that he did not know of the switching of the horses or had no responsibility to make enquiries as a result of that. It was a simple case of Mr Clotworthy’s word against that of the Respondent and its witnesses – in other words, the evidence of the other witnesses was wrong and Mr Clotworthy’s was not.

12. Mr Colson submitted that Mr Clotworthy was not entitled to the credit given to him by the Judicial Committee for a guilty plea, cooperation with the Racecourse Inspectors and "coming abreast of a wrongdoing". In fact, Mr Colson submitted, Mr Clotworthy had attempted to change his story and gave evidence which the Tribunal found was not credible.

13. Mr Colson asked that the original penalty of 3 months’ suspension be extended to 4 months with the balance to be served forthwith.

14. Mr Peters submitted that any decision of this Tribunal in respect of penalty and/or costs be suspended until determination of an "appeal" to the High Court.

15. Mr Peters then proceeded to readdress matters which had been raised by way of a defence at the hearing of the appeal and on which this Tribunal had already made findings. In the Tribunal’s view, it was not helpful or appropriate for such matters to be raised in penalty submissions.

16. Mr Peters made no direct submissions relevant to penalty other than to submit that any penalty should be at "the lowest end" and that penalty should be stayed pending the outcome of the application to the High Court. The Tribunal has already ruled that it is not prepared to stay penalty.

17. Mr Colson sought costs, in addition to those ordered by the Judicial Committee, in the sum of $20,000 plus disbursements of $2,934, as detailed, and the costs of the Tribunal.

18. Mr Colson referred in some detail to the "history of the appeal" which involved two days of hearing time and a large number of telephone conferences, memoranda and applications.

19. Referring to the case of Calderbank v Calderbank [1975] 3 All E R 333, Mr Colson submitted that, on 29 June 2007, he had sent a Calderbank letter to Kim Clotworthy’s Counsel offering a settlement of the appeal by Kim Clotworthy which was not accepted. In terms of the Calderwood principle, Kim Clotworthy should have to pay all of the costs from the time the offer was made. Mr Peters submitted that Calderbank did not apply.

20. Mr Peters submitted that the Respondent’s claim for costs was "simply untenable".

21. Mr Peters submitted that, as the Judicial Committee’s decision was not in terms of an approach supported by this Tribunal, no costs award should be made.

22. The starting point for penalty, in the view of the Tribunal, is the penalty imposed by the Judicial Committee – that is to say, suspension for a period of 3 months and a fine of $1,500.

23. Kim Clotworthy pleaded guilty to the charge before the Judicial Committee but subsequently appealed against the finding of guilt and the penalty imposed by the Judicial Committee.

24. It is worthwhile setting out, in full, the reasons for penalty given by the Judicial Committee:

"1. Firstly, the Committee was satisfied that there was no intent, by entering LAURETTE in a catchweight trial, to gain monetary advantage.

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2. However, it was a deliberately dishonest act which cuts to the heart of the requirement of integrity in the racing industry.
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3. The gross mistake was made by Mr Shaun Clotworthy in knowingly starting a 2 win horse in a maiden catchweight.
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4. As far as Mr Clotworthy Senior is concerned, we believe such an experienced trainer should have approached the authorities upon discovering the facts.
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5. In setting the penalty we have considered the principles involved in sentencing which require us to reflect a deterrent element in assessing the penalty.
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6. We are mindful that this is a serious racing offence and that any penalty we impose must send a message to the industry."
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25. As stated above, Mr Kim Clotworthy admitted the breach before the Judicial Committee and, as a consequence, no evidence was called by the Respondent.
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26. Mr Clotworthy’s appeal before this Tribunal was by way of a full rehearing at which both parties called evidence. Following that hearing, this Tribunal found that Mr Clotworthy was aware, prior to the trial, that LAURETTE had been substituted for PUNCHESTOWN. He was a principal offender with his training partner, Shaun Clotworthy.

27. The Tribunal believes that the Judicial Committee treated Kim Clotworthy as a principal offender, in imposing penalty, even though it appeared to accept Mr Clotworthy’s explanation that he did not discover the substitution until after the event and, arguably, was an accessory after the fact.

28. The Tribunal is of the opinion that the issue of penalty in respect of Kim Clotworthy is now "at large", although the penalty imposed by the Judicial Committee was not one which was "inadequate or inappropriate or manifestly excessive" in terms of Rule 1207 (2) (b).

30. As always, the first concern of this Tribunal in imposing penalty is "the need to maintain integrity and public confidence in racing" - Rule 1122 (2) (d).

31. The Judicial Committee found that there was no intent on the part of Messrs Clotworthy to gain any monetary advantage but that what they did was a "deliberately dishonest act which cuts to the heart of the requirement of integrity in the racing industry". This Tribunal agrees with those findings.

32. The integrity of racing demands that there be no place for dishonesty in the industry. While it is not difficult to conceive of more serious cases of dishonesty than the present, in terms of harm done by the actions of the Appellants, their conduct was, nonetheless, blameworthy involving, as it did, deliberate acts of deception.

33. None of the usual mitigating factors (admission of the breach, cooperation with the Racecourse Inspectors, evidence of remorse) are available to Mr Kim Clotworthy. No details of Mr Clotworthy’s previous record or his personal circumstances were put to the Tribunal. The principal aggravating factors have already been referred to.

34. Mr Colson has submitted that the period of suspension imposed by the Judicial Committee be extended from 3 to 4 months. This Tribunal agrees that is appropriate.

35. Accordingly, Mr Kim Clotworthy’s trainer’s licence is hereby suspended for a period of 4 months from and including 17 December 2007. Mr Clotworthy has already served 22 days of the original 3 months’ period of suspension imposed by the Judicial Committee. On that basis, the period of suspension now imposed by this Tribunal will expire on 26 March 2008.

36. The Appellant, Mr Shaun Clotworthy, has served 1 month and 15 days of the period of 3 months’ suspension imposed on him by the Judicial Committee leaving a balance of, approximately, 6 weeks to be served. This Tribunal now orders that the stay of the penalty imposed on the Appellant, Mr Shaun Clotworthy, will continue until 13 February 2008 after which date the suspension shall resume, expiring on 26 March 2008.

37. It is the intention of this Tribunal that Mr Shaun Clotworthy be able to continue training until 13 February 2008 and that both Clotworthys shall serve periods of suspension concurrently during the period from 14 February 2008 to 26 March 2008, both dates inclusive.

38. Mr Kim Clotworthy is also fined the sum of $1,500.

39. Mr Colson, on behalf of New Zealand Thoroughbred Racing, has sought an order for costs in the sum of $20,000 together with disbursements of $2,934 and the costs of this Tribunal.

40. The power for this Tribunal to award costs is contained in Rule 1207 (3) of the Rules of Racing which provides:

The Appeals Tribunal may order that all or any of the costs and expenses of any party to the appeal. . . the Judicial Control Authority and the Appeals Tribunal be paid by such person or body as it thinks fit.

41. The Tribunal is aware that, in the Courts, the guiding principle is that "except where there is a special reason for awarding costs on a solicitor and client basis, orders should be limited to a reasonable contribution towards the successful party’s costs on a party and party basis" – that is to say, fair and reasonable costs including fees, charges, disbursements, expenses and remuneration incurred by a party in enforcing or defending his or her rights. Further, a successful party may receive an award of solicitor/client costs if the other party has acted unreasonably, for instance by pursuing a wholly unmeritorious claim or defence.

42. Mr Colson has submitted that the appeal by Kim Clotworthy was "a meritless and frivolous appeal" on the basis that "the evidence of the other witnesses was wrong and his was not".

43. This Tribunal is inclined to agree, to some extent, with that submission and the award of costs must reflect that.

44. Further, the Tribunal accepts the submissions of Mr Colson as to the application of the Calderbank principle and the amount of costs to be awarded takes account of this.

45. The Tribunal notes that the amount of costs claimed by the Respondent does not include any sum in connection with that part of the proceedings that related to the appeal by Mr Shaun Clotworthy

46. Mr Kim Clotworthy is ordered to pay costs to the Respondent as follows:

(i) The sum of $750 as ordered by the Judicial Committee;

(ii) The sum of $15,000 costs in relation to the appeal;

(iii) Disbursements in the sum of $2,934; and

(iv) The sum of $4,000 being the costs of the Judicial Control Authority in relation to the appeal.

                          R G McKenzie                                                   J M Phelan

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hearing_type: Old Hearing

Rules: 1001.1.p, 1207.2.b, 1122.2.d, 1207.3

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