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The Handicapping Appeals Body, Mr Justice Peter Kelly (in the chair), Mr Justice Tony Hunt and Mr Anthony Byrne convened on Thursday, 4 September 2025 to consider the Appeal of John E and Thomas Kiely (Trainer) in relation to the refusal of the Handicapper to allocate a flat handicap rating to A Dream To Share.
The committee considered the submissions from Mr Phil Smith and Mr Graeme McPherson KC as part of the Trainer’s appeal and the Handicappers Observations from Mr Garry O’Gorman, IHRB Flat Handicappers.
Having considered the submissions and observations made by the appellants and the Handicapper in this appeal, the Handicapping Appeals Body decided to allow the appeal and remit the matter to the Handicapper with a direction that a handicap rating be allocated to A Dream To Share.
The full written decision of the Handicapping Appeals Body, as issued to the parties on Wednesday, 10 September, is set out below.
Introduction
This is an appeal against the refusal of the Handicapper to allocate a flat handicap mark to a horse called "A Dream to Share" (the horse). That refusal was communicated to the appellants on 20 August 2025.
Eligibility
No horse can be awarded a flat handicap mark unless it complies with the detailed provisions of rules 66(ii) and rule 67 of the Rules of Racing (the Rules).
It is common case that the horse met those conditions and, accordingly, was eligible to be considered for a flat handicap mark.
The fact that a horse is eligible to receive such a mark does not mean that it is entitled so to do. The appellants accept that the provisions of rules 66(ii) and 67 confer a discretion upon the Handicapper to allocate a handicap mark or not.
It follows that in the present case, the horse was eligible to receive a handicap mark but the grant of such lay within the discretion of the Handicapper. It is the appellants' contention that that discretion was misapplied.
Exercise of Discretion
Whilst the Rules confer a very wide discretion on the Handicapper, it is not unfettered. It falls to be exercised within certain criteria and, if it is not, it is open to challenge.
The appellants accept (and we believe correctly for the purposes of this appeal) that in order to succeed, they must demonstrate that the Handicapper's discretion was
(a) exercised in a wholly unreasonable manner, or
(b) resulted in a decision which no reasonable decisionmaker could reach on the evidence before him, or
(c) the Handicapper took into consideration irrelevant material, or
(d) failed to consider relevant material which ought to have been taken into account.
Unless the appellants are able to demonstrate the existence of one or other of the above defects, the appeal must be dismissed and the decision of the Handicapper upheld.
The Horse's Race History
The appellants accept that the only races run by the horse which are relevant are those which took place between 16 March 2025 and 19 June 2025. The horse's previous history of running in National Hunt flat races between 2022 and 2024 and over hurdles between 2024 and 2025 has no relevance. The three races which are of relevance are:
(a) on 16 March 2025, the horse was fourth of 18 over eight furlongs in a Curragh Maiden;
(b) on 29 March 2025, the horse was fourth of 17 over seven furlongs in a Curragh Maiden;
(c) on 19 June 2025, the horse was first of 13 over fifteen furlongs in a Leopardstown Maiden.
Refusal History
Ten days after the Leopardstown Maiden of 19 June 2025, the Handicapper was asked to give the horse a flat handicap mark. He refused to do so.
The reason given by him for that refusal was that he had insufficient information on which to award such a mark to the horse. The basis upon which he came to that decision was that while the 35 horses against which the horse had run in the Curragh Maidens of 16 March 2025 and 29 March 2025 had run a good number of times, neither of those runs constituted the horse's "best form". Rule 66(i)(a) is explicit in requiring a horse to be handicapped on its best form.
The Handicapper was unable to form a view of that form having regard to the much shorter distances in each of the two Curragh Maidens and the improvement shown by the horse when it ran in the Leopardstown Maiden, a much longer race. Furthermore, only seven of the other twelve runners in the Leopardstown Maiden had run on the flat; none of the seven horses that had previously run on the flat had flat handicap marks at the time of the Leopardstown Maiden and none of the other twelve runners had run in the ten days that had elapsed between the Leopardstown Maiden and the request for the award of a handicap mark.
No appeal was taken against that refusal of 29 June 2025. It is stated that that was because the appellants accepted that the Handicapper had a discretion under the Rules as to whether or not to award a mark and the appellants accepted that he was entitled to conclude, as he did, that he did not have sufficient information from which to make a reasonable assessment of the horse's ability and, thus, could not award a mark.
It follows that the refusal of the Handicapper to award a mark on 29 June 2025 was correct, within his discretion and was accepted by the appellants.
A further application for the award of a handicap mark was made to the Handicapper and refused by him on 20 August 2025. It is that refusal which is the subject of this appeal.
The appellants contend that a good deal more information in particular, in the form of collateral form from the Leopardstown Maiden has now become available to the Handicapper. He therefore, it is said, has sufficient information from which to make a reasonable assessment of the ability of the horse and to allocate a handicap mark. By refusing to make such an award, it is alleged that the undoubted discretion given to the Handicapper is not being exercised properly and, thus, his decision ought to be set aside.
The Material Before Us
In support of their appeal, the appellants have provided us with written submissions from Mr Graeme McPherson KC and a report from Mr Phil Smith, the former Senior Handicapper at the British Horseracing Authority. The Handicapper has provided us with lengthy observations, which in turn have been the subject of a response from Mr McPherson KC and Mr Smith.
We have carefully read and considered all of these documents in our consideration of this appeal.
It is not necessary for us to set out in detail content of these documents. It is sufficient to summarise only those parts which are pertinent for the purpose of our decision.
The Appellants' Contentions
The appellants accept the correctness of the Handicapper's decision to refuse a handicap mark on 29 June 2025. But they say his 20 August 2025 and continuing refusal to allocate such a mark is defective because it cannot be said that there is now insufficient information from which he can make a reasonable assessment of the horse's ability to allocate a handicap mark to it. They point to the following additional information available to the Handicapper:
1. As at the date of the refusal in suit, four horses from the Leopardstown Maiden had run again on the flat, most of them more than once.
2. At the date of the relevant refusal, five horses from the Leopardstown Maiden (the second, fifth, seventh, eighth and eleventh horses) had been allocated handicap marks. It follows, they say, that the Handicapper considered that he had sufficient information to make a reasonable assessment of the ability of each of those horses and to allocate a handicap mark to them.
3. The Handicapper now has sufficient information to assess the ability of the second (Royal Hollow) and the third (Arch Empire) from the Leopardstown Maiden.
4. Royal Hollow finished one and a half lengths behind the horse and (a) was allocated a handicap mark (79) after the Leopardstown Maiden, (b) won off that mark at her next start, (c) was allocated a revised handicap mark (87) after that win, and (d) was subsequently well beaten off that revised mark, although as Mr Smith accepts, the form of that defeat is probably not to be taken at face value.
5. The third, Arch Empire, was beaten three lengths by the horse. While he has not yet been allocated a handicap mark, he has run twice since and Mr Smith contends that his level of ability can now be readily assessed across those three runs and the level of ability that he has demonstrated fits well with the Handicapper's assessment of Royal Hollow.
In the light of this additional material, it is said that the Handicapper ought now to award a handicap mark.
Handicapper's Observations
The observations which have been made by the Handicapper are lengthy and discursive.
In the first part of the observations dealing with the background, the Handicapper agrees with the contention of the appellants that cognisance may not be taken of the form of a horse in NHF races, but says that the Handicapper "cannot be unaware of such races or the profile of such an NH performer in terms of overall merit." The appellants contend that the said comment gives rise to an inference the Handicapper considered such matter to be relevant to the task of determining a flat handicap mark and, thus, had regard to a matter that ought to have been ignored.
The second criticism that is made of this part of his observations is a reference which the Handicapper made to "raised eyebrows and speculation amongst the racing fraternity at the decision to run the horse over the distances involved in the Curragh Maiden races." The appellants criticise this and say that it gives rise to the inference that the Handicapper, quite wrongly, considered such matters to be relevant to the task of determining a flat handicap mark and so, once again, had regard to a matter that he ought to have ignored.
The Handicapper's observations then go on to deal with staying handicaps. Criticism is made of the Handicapper because in the second paragraph of that part of the observations, he quotes from what he was told by a former owner of the horse as to what that owner would do if he still owned it. The appellants contend that the views of a former owner on the ability of a horse that he has sold should have no bearing on how the Handicapper carries out his task of handicapping a horse which is to be done on its best form. They instance this as another example of him having regard to irrelevant matter.
The next part of his observations deals with the horse's performance at the Leopardstown Maiden on 19 June and sectional timing. Much of what is contained in this part of the Handicapper's observations are not the subject of criticism. The appellants point out, as is clear from it, that the Handicapper accepts that he now knows the level of ability of Royal Hollow and Arch Empire. They contend that he must have known that since late July when each last ran on the flat. Their respective levels of ability justified each being allotted handicap marks around the high 80s/90s. The appellants contend that whilst the slow pace of the Leopardstown Maiden, the finishing speed of the horse over the final furlong and the ease of victory might make the task of assessing the horse's level of ability relative to those placed horses harder than in a more truly run race, or when closing times were closer to par or when a winner was driven out, it cannot sensibly be suggested that such matters make it impossible to make an informed assessment of the horse's ability. And they point out that the Handicapper effectively accepts as much in the conclusions to his observations at paragraph 6.
It is to that paragraph of the Handicapper's conclusions that we turn because it appears to us that that is crucial to the determination of this appeal.
It is in this paragraph that the Handicapper refers to an ex tempore determination of the British Horseracing Authority Ombudsman.
That determination was made in an appeal concerning the refusal of a handicap mark to the horse by the British authorities. The Handicapper recites that the Ombudsman gave consideration to awarding a handicapping mark of 104 (94 at Leopardstown adding on 10 pounds for ease of victory), but ultimately determined the matter on a reciprocity basis. He goes on to point out that he has great respect for the Ombudsman from his limited dealings with him and that "he may not be far wrong with his 104 suggested figure". He then goes on to point out that he could only recall ever rating a maiden winner as high as 104 on one occasion. He makes mention of the horse in question and other details. He then says "I have no doubt however that, had we issued a handicap rating of 104 for the horse, that same handicap mark would have also been appealed by the appellant, who has, as is his right in fairness, lodged handicapping appeals in both this jurisdiction and in GB prior to this. And insofar as I would deem 104 relative guesswork in the circumstances, I would be far less confident of defending such a mark than the present appeal. But what this goes to illustrate is the somewhat invidious position the Handicapper can find himself in as the rule book currently stands a certain element of "Damned if you do and damned if you don't with an appeal probable either way whichever way you jump".
Conclusion
It is not necessary for us to make any determination on the various criticisms made by the appellants on the reference by the Handicapper in his observations to irrelevant material. Rather, we concentrate on the conclusions which he sets forth at paragraph 6 of his observations.
His reference to the British Ombudsman's decision appears to overlook that the Ombudsman was of the view that there was sufficient evidence from which to make a reasonable assessment of the horse's level of ability. The Ombudsman declined a mark on the basis of reciprocity. In addition, when dealing with the notional handicap mark that the Ombudsman considered appropriate, the Handicapper took the view that he might not be far wrong, albeit that the Handicapper would be less confident of defending such a mark than the present appeal.
It appears to us that the Handicapper effectively accepts that he does have sufficient information to enable him to make a reasonable assessment of the horse's ability. In accepting that to be so, he has identified lower and upper limits of his assessment of that ability and has evidence from which to form a reasonable assessment of the horse's ability.
It seems clear to us that the Handicapper considered that a mark of 104 was appropriate but did not award such a mark because of a lack of confidence of what might happen on appeal. A handicapper ought to award a handicap mark in accordance with the provisions of the Rules, taking into account only the best form of the horse. What might or what might not happen on appeal is not a relevant matter to take into account and vitiates the decision on that basis alone.
This Body is of opinion that, in effect, the Handicapper had come to the conclusion that he had sufficient information to award a handicap mark but declined to do so because of his concern as to what might happen on appeal. Although that handicap mark would be based on only one run (the first two flat runs being rightly disregarded), this would not be impermissible or inappropriate. It follows that the refusal of a handicap mark was, in the circumstances, unreasonable and cannot stand.
Disposal
The appeal is allowed and the matter is remitted to the Handicapper so that he may award a handicap mark. On the basis of the extensive information set out in the submissions and observations, a mark of the order referred to by the Handicapper in his submission would not be inappropriate.
In conclusion, we wish to make a few comments. First, the discretion which is conferred upon the Handicapper to award or refuse a handicap mark or the quantum of that mark is, indeed, a wide one. It does, however, fall to be exercised strictly within the terms of the Rules by reference to the best form of the horse and not any extraneous material.
Second, the fact that an experienced expert takes a different view on the question of whether or not to award a mark or the quantum of that mark from that of the Handicapper does not mean that one is right and the other wrong. Such difference of opinion would not per se give rise to a legitimate basis for an appeal against a Handicapper's decision. Such an appeal would only be justified or likely to be successful if the decision in question was vitiated by one or other of the factors which have been identified in this decision.
ENDS
Note To Editor: The IHRB confirms that A Dream To Share has been allocated a handicap rating of 103.