By Dr Laura Donnellan, School of Law, University of Limerick, Ireland
Sheikh Mohammed bin Rashid al-Maktoum, the Vice President and Prime Minister of the United Arab Emirates and Ruler of Dubai, is the founder of Godolphin horseracing stables.
While Dubai is where Godolphin’s headquarters are based, its two stables, Moulton Paddocks and Stanley House in Newmarket, in England, have solidified its entrenched roots in British horseracing. Godolphin survived a doping scandal in 2013 when eleven of its horses tested positive for anabolic steroids (Laura Donnellan, Godolphin New Market Racing Stables Horse Doping Scandal!, 24 April 2013, https://www.sportsandtaxation.com/2013/04/laura-donnellan-of-the-university-of-limerick-an-expert-on-equestrian-law-comments-on-the-godolphin-new-market-racing-stables-horse-doping-scandal/).
However, the recent decision of the English Court of Appeal to publish two judgments in the divorce case involving the Sheikh and his former wife, Princess Haya, has damaged Godolphin and the wider racing world. But recent events have overshadowed these decisions. They have raised questions as to the honesty and integrity of the Sheikh under the rules of the British Horseracing Authority (BHA) in relation to the owners.
In most divorce cases, the issues at stake include the distribution of assets and arrangements relating to custody and wardship of children. However, for the Sheikh, the case involved the kidnapping and imprisonment of his two daughters, aged eight and twelve at the time of the two High Court (Family Division) rulings, a world far removed from the more mundane aspects of divorce proceedings (Re Al M (Publication),  EWHC 122 (Fam) Case No: FD19P00246, FD19P00380, FD19F05020, FD19F00064; the redacted judgment can be accessed at: https://www.judiciary.uk/wp-content/uploads/2020/03/Al-M-Publication-APPROVED-Judgment-redacted-for-publication-270120.pdf). The judge also found that the Sheikh had subjected his wife, the mother of the two children, to a campaign of intimidation and harassment in Dubai until early 2019 and on a number of occasions once Princess Haya had moved to England in April 2019 (at para. 10). The judge held that ‘the conclusion of the fact-finding judgment I found each of the mother’s core allegations, save for an assertion related to forced marriage, proved’ (at para. 12).
The Right Honourable Sir Andrew McFarlane handed down the two wardship rulings on 27 January 2020 in the English High Court (Family Division). He placed an embargo on the publication by the media of the decision until 4pm on 5 March 2020. Sir Andrew concluded that the publication of the judgment was necessary to comply with the requirements of Article 8 (right to one’s private and family life) and Article 10 (right to freedom of expression and information) of the European Convention on Human Rights (at para. 81).
In a subsequent appeal to the English Court of Appeal, the Sheikh challenged the rulings on the grounds of ‘certain disputed factual issues’ and ‘issues arising out of the special position of [Sheikh Mohammed] as the sovereign and head of government of a foreign state’ (cited by Owen Bowcott, ‘Dubai ruler loses appeal over release of two UK court judgments’, The Guardian, 28 February 2020, https://www.theguardian.com/law/2020/feb/28/dubai-ruler-sheikh-mohammed-loses-appeal-over-release-of-two-uk-court-judgments).
The Court of Appeal, consisting of Lord Justice Uphill, Lady Justice King and Lord Justice Bean, dismissed the appeal and held that ‘[i]n truth, this is a paradigm example of the kind of evaluative decision by a trial judge with which this Court ought not to interfere’ (Al Maktoum v Al Hussein & Ors,  EWCA Civ 283, at para. 67, https://www.judiciary.uk/wp-content/uploads/2020/03/Al-M-judgment-final-redacted-05.03.2020.pdf).
The Supreme Court refused permission to hear an appeal from the Court of Appeal on the grounds that ‘the application does not raise an arguable point of law of general public importance’, according to a spokesperson for the Royal Courts of Justice (quoted by Sian Harrison, Sam Tobin, ‘Supreme Court refuses bid by ruler of Dubai to block publication of judgments’, 5 March 2020, The Belfast Telegraph, https://www.belfasttelegraph.co.uk/news/uk/supreme-court-refuses-bid-by-ruler-of-dubai-to-block-publication-of-judgments-39017157.html).
The findings of fact that were unearthed in the wardships rulings handed down by Sir Andrew MacFarlane have led to speculation as to their effect on the Sheikh’s actions on horseracing.
The BHA’s Ownership Guidance Notes Section 9 provides for criteria that the regulator should consider when it comes to registering an owner (https://media.britishhorseracing.com/bha/ownership/OWNERSHIP%20GUIDANCE%20NOTES%20(SOLE).pdf). The BHA should only consider registering suitable owners that it deems are individuals that embody ‘honesty and integrity’ and are financially sound (General Suitability Sections 4 to 8 ibid). Section 9 (A) to (I) elaborates on ‘Honesty and Integrity’ and provides that the BHA should consider the following when reviewing an application, of importance to the situation involving the Sheikh is subsection C:
‘Whether the applicant has been the subject of any adverse finding by a judge in any civil proceedings, or has settled civil proceedings brought against him/her relating to any matter which could reasonably be said to materially affect his/her suitability to be registered as an owner’.
Section 10 establishes criteria that the BHA should consider when it comes to assessing financial soundness.
Greg Woods opines that ‘as things stand right now, however, it seems reasonable to suggest that if the BHA objectively applied its “fit and proper” test to a man who has invested a lot more money into racing and bloodstock than anyone in history, he would be far from certain to pass’ (‘Sheikh Mohammed’s disgrace may begin the end of his racing career’, The Guardian, 6 March 2020, https://www.theguardian.com/sport/2020/mar/06/sheikh-mohammeds-disgrace-may-begin-end-of-his-horse-racing-love-affair).
Woods gives cognisance to the fact that the Sheikh’s financial stability would most likely immunise him from being de-registered as an owner. However, the Guidance Notes relate to initial registration and the coupling of honesty and integrity with financial stability suggests that the Sheikh would meet financial stability and the latter would arguably carry an equal if not greater weight than honesty and integrity. It is doubtful that the BHA will sanction the Sheikh given the fact that Godolphin in Newmarket provides employment and he has invested a vast amount of money in British flat racing.
As the publication of the two rulings came at a time when the world began to realise the extent of the COVID-19 pandemic, the actions of the Sheikh were somewhat diluted. Given the financial implications of cancelling Aintree (the famous ‘Grand National’ in particular) and all other racing in the UK, the BHA has more serious immediate concerns and may well require future investment from the Sheikh.
In the event, therefore, money may finally win the day!
Dr Laura Donnellan may be contacted by e-mail at ‘Laura.Donnellan@ul.ie’