Competitions Appeal Hearing
Venue: By Video Link
Date: 12th March 2020
JUDGMENT
Club: Bridgnorth RFC
Proposed Match: Bridgnorth RFC v Newport (Salop) RFC
Proposed Match Date: 14th March 2020
Panel: Ian Unsworth QC, sitting as a Single Judicial Officer
Secretary: Rebecca Morgan
Attending via link:
The Clubs:
Bridgnorth RFC: Liz Rochelle, Ian George, Alun Stoll, Dan Griffiths
Newport (Salop) RFC: Peter Maher, Bob Adams
Midlands Disciplinary Organising Committee Steve Mounfield Roger Rees
Chair of RFU Competition Sub Committee Paul Astbury
The Appeal
Appeal by Bridgnorth RFC against a decision requiring them to play their home fixture against Newport (Salop) at Stourbridge on Saturday 14th March 2020.
1 Decision
1. Appeal allowed
2. The proposed match will take place on Saturday 11th April 2020
3. The appeal fee will be returned
Preliminary Matters
4. There was no objection to me sitting on the appeal or, indeed, on me sitting as a Single Judicial Officer.
5. The parties and those others, listed above, introduced themselves and, where appropriate, their roles.
6. Mr Astbury’s role was to assist me and the parties as to any relevant and specific area relating to the Regulations. He, of course, had no role to play in relation to any decision-making. I express my gratitude to him.
7. I outlined the material I had seen.
The Hearing
8. There was a lengthy discussion as to the numerous emails that had been generated in the preceding weeks.
9. I heard from the parties and was greatly assisted by the observers and Mr Astbury (as appropriate) as to areas of fact and detail.
10. All parties made their submissions and, where, appropriate, I summarise those matters below.
11. I adjourned privately on the link, considered the submissions and informed the parties of my decision and reasons for it. I indicated that my decision would be reduced to writing but given the proximity of the proposed match, it was vital that all parties knew of the decision at the time of the hearing.
12. Set against a background of restrictions on our public life, through the coronavirus crisis, Miss Morgan is to be commended for facilitating a hearing (at extremely short notice) ensuring that all parties could contribute (in 6 different locations). We should all be grateful to her for that.
2 History
13. The facts can be shortly stated. Bridgnorth and Newport (Salop) RFC are clubs who play in the Midlands Premier League. They are local rivals and, as a consequence, games between the two are well followed derby games.
14. They were due to play, at Bridgnorth’s home at Edgar Davies ground, on Saturday 29th February 2020.
15. Sadly, the pitch bordering the River Severn at Bridgnorth was flooded and a decision was taken by the League Secretary, to postpone the fixture. That was communicated in an email, on the morning of the 27th February:
Please will you mark this fixture as postponed and rearrange it for Saturday 14 March 2020 with a default kick off time of 15.00? The pitch at the Edgar Davies ground bordering the River Severn at Bridgnorth is flooded.
For the information of all concerned it has been suggested that Bridgnorth's facility at Swancote be utilised his coming Saturday but I have ruled this out as a possibility in circumstances where the Playing Area at Swancote of 90m x 60m falls short of the minimum of 94m x 68m laid down in section 1 of the IRB Laws of the Game. Furthermore, the Swancote facility does not have the benefit of suitable barriers to prevent encroachment of spectators on the playing enclosure (MDAI 4.1) which is considered to be a necessity for a Level 5 "local derby".
Both clubs have a right to appeal this decision and I must advise that following a meeting of the ACMSC at Twickenham last week the timescales for making such an appeal have been shortened. The full appeal procedure is detailed in the MDOC website which may be found at rfumidlands.com but to assist I have appended an extract from regulation 5.2 for your ready reference.
16. No one appealed that decision.
17. Sadly, and as has been well publicised, since that decision, the country has been subjected to further powerful floods which, in some areas, have overwhelmed rivers and have had a deep effect upon the landscape. The Severn has not been spared.
18. The grounds were severely flooded on 3 occasions in 3 weeks.
3 19. Since, Thursday 5th March 2020, a small army of volunteers, both young and old, spent more than 30 man days cleaning up the debris and sorting out all of the damaged equipment, food & beverages, much of which has had to be disposed of. Estimates of the damage at this time are between £20,000 and £40,000.
Unplayable Pitch
20. On Tuesday 10th March, the head groundsman declared the Bridgnorth pitch as unplayable. No one questions that decision.
21. This had a devastating financial consequence for Bridgnorth. Their finances already stretched by the issue of floods, they faced losing thousands of pounds in revenue from what they could reasonably expect to be a very well attended local derby.
22. The League Secretary was duly informed. Emails show that Bridgnorth duly fulfilled their obligations by identifying that Stourbridge were kindly prepared to host the fixture if necessary. That would not, however, help Bridgnorth with their finances and so asked for consideration for a postponement to an available date in April. Two dates have been identified: the 11th and 25th April.
23. Their request was met with sympathy by the League Secretary who also correctly identified that this was an issue that affected Newport (Salop) as well. In an email, on the 10th March, he asked for guidance from other MDOC officials,:
“…To put it bluntly Bridgnorth just can’t afford to lose a further £7,000 of income when faced with uninsured/uninsurable losses of the magnitude shown below. I have every sympathy with them. If they played one league higher they wouldn’t be required to seek an alternative ground. I can only imagine the outrage in similar circumstances which would be expressed by Level 4 clubs if they were!
My leaning in these special circumstances is to reschedule the fixture for 11/4 but I suspect that would lead to an immediate appeal… to X by Y and the Newport committee with X having to ignore sentiments and interpret the regulations to the letter.
What should I do?”
24. Officials from Newport (Salop) took the trouble of looking at the relevant grounds and made representations to the MDOC about their desire to play the fixture, acknowledging that they sympathised with the position of Bridgnorth. 4
25. It is clear that everyone was doing their level best to try and resolve the situation and the emails I have seen point to a number of communications via email and telephone between the relevant parties.
26. It has not been possible for me to identify the precise time at which the decision to play the fixture was made but I am satisfied that it was and that this was communicated to the parties by telephone and/ or email.
Initial Decision
27. In an email to the Newport Director of Rugby, on Wednesday 11th March at 14:02, the League Secretary, confirming the decision that had been made by that stage, wrote:
“I need to advise you that Bridgnorth Town Council will not allow the use of the Severn Park pitches this coming weekend. In accordance with MDAI 5.5 Bridgnorth ascertained that the facilities at Stourbridge RFC are available and consequently the game should be played there. In view of the very serious financial implications I believe Bridgnorth are appealing to the RFU against the provisions of 5.5. I will of course keep you appraised of developments.”
28. There was some confusion as to the proper forum for any review and/or appeal. In short the RFU informed the parties that the proper forum was, in the first instance, request for a review from the Midlands Disciplinary Organising Committee (MDOC).
Review
29. Thus, at 14:02 on Wednesday 11th March, an email between officers within the MDOC states:
With this reply from [the RFU] my previous supposition is obviously wrong, and it will have to be decided by the MDOC before the RFU get involved. [The League Secretary] has followed RFU Game Regulations and it is a question of whether you agree or not. If you support [his] decision then Bridgnorth can appeal further to the RFU. However, the MDAI do now stipulate that a club has 24 hours, from the notification of a decision of a rearranged league game date, in order to appeal, and we are well over that time scale already. The clubs were informed of the rearranged date on 27-02-20.
30. Some 16 minutes later, at 14:18, the reviewing official responded as follows:
5 “As X’ deputy I confirm the MDOC decision to play on an alternative pitch as proscribed by Regulations..
Given [the League Secretary’s] email of 15.46 yesterday being the first confirmation that there was an alternative pitch available at Stourbridge, in my view Bridgnorth’s appeal to [the RFU] at 13.12 today is within 24 hours of that and therefore capable of being appealed to an RFU Panel.”
31. The reviewer confirmed candidly, that he had responded quickly in order to help the parties, and had done so whilst doing a number of other things. He was also seeking to assist, as X was unable to. We must always remember that the community game depends upon volunteers who do their level best to bring their experience to the Game. I am quite satisfied that the reviewer had, as he expressed, nothing but sympathy for the plight of Bridgnorth. He explained, to me that he felt for them but also felt bound by the Regulations: by responding quickly it was his earnest wish that this could be considered by an RFU Competitions Appeal at the earliest opportunity. Those sentiments echo the emails that I have seen. The reviewer was doing his level best in difficult and pressing circumstances.
32. Regrettably, an unintended consequence of the process that had been undertaken (with the decision being made by email within 16 minutes of being asked) was that due process was not afforded to Bridgnorth.
33. The reviewer did not have the benefit of any representations either in writing and/ or orally. No arguments were deployed. No submissions from Newport (Salop) were considered. There was no evidence of any reasoning behind the decision. The email contained no record of what had been considered, what the approach had been and what the reasons were which meant that the appeal was dismissed.
34. The blunt reality of the process was this was a review in name only: the reviewer doing his best, felt bound by the regulations and thus, in every sense of the phrase, his discretion had been fettered
Submissions
35. At the hearing, Bridgnorth argued that the decision reached was an unfair one. Newport (Salop), expressed sympathy but argued that an alternative venue having been identified, the rearranged match should take place as ordered.
Regulations
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36. The Midland Division Administrative Instructions for 2019/20 provide:
5.5 A club may not postpone a League game because of lack of availability of its ground. In such circumstances the game may be brought forward, or in the first half of the season the fixture may be exchanged with the corresponding fixture in the second half of the season. In the second half of the season an attempt to seek an alternative venue should be made, and if unsuccessful, a ruling will be made by the League Secretary/ Divisional Organising Committee. Any swapping of the original venues must be done through the League Secretary/Divisional Organising Committee and not wholly by the mutual agreement of the clubs involved. The administrator(s) must authorise the swapping. If there is no agreement between the clubs to a swapping of venues then the default will be the original venues published.
37. The provisions in relation to a review are as follows:
15.1 Any club wishing to seek a review of a decision made by a League Secretary (or the MDOC Secretary in his/her absence) must do so to the Chairman of the Midlands Division Organising Committee in the first instance, and if still not satisfied with the review decision, appeal to the RFU in the second.
38. The relevant sections provide for the form of any appeal. Given the speed of events, I waived some of these requirements and (if necessary) gave leave for the grounds to be set out orally.
39. RFU Regulation 13 sets out the relevant provisions in relation to adult competitions.
40. Regulation 13.10.10 provides:
Appeals from a decision shall be in accordance with RFU Regulation 19.13.
41. Regulation 19.13.1 (ii) provides for 4 potential grounds:
(a) came to a decision to which no reasonable body could have come; or (b) made an error of law in reaching its decision; or (c) failed to act fairly in a procedural sense; or (d) the sanction imposed was so excessive/lenient as to be unreasonable
42. Bridgnorth argued that there was an inherent unfairness in the outcome and drew my attention to Regulation 19.13.3:
7 The Appeal Panel shall only depart from the application of RFU Regulation 13 in exceptional circumstances where the Appeal Panel is of the opinion that the application of RFU Regulation 13 has resulted or would result in a perverse and/or unfair outcome.
Appeal Findings
43. Having carefully considered all relevant factors, I was of the view that:
(i) The process that was undertaken was an inherently unfair one. Whilst efficiency is to be applauded, speed should not be at the expense of fairness. Any system of review must ensure that due process is observed. In the time honoured phrase, justice must not only be done, it must be manifestly and undoubtedly be seen to be done;
(ii) Such was the unfairness caused here, that the review simply did not allow for any consideration of any relevant factors;
(iii) The review was one where the decision – maker’s undoubted discretion was fettered;
(iv) Against that background, I was satisfied that the extreme weather conditions gave rise to exceptional circumstances and, on balance, the extreme adverse financial effect, (on the unique facts of this case), would mean that the decision taken would have an unfair outcome. I took into account all relevant factors including the inconvenience caused to Newport, both from the perspective of the Club as well as that of individual players.
Appeal Decision
44. Pursuant to my powers under Regulation 19.13.4, my decision was:
(i) The Appeal was allowed;
(ii) That having considered the proximity of the proposed fixture, it was not appropriate for email to remit the matter but instead, I would have to make such further orders as appropriate;
(iii) Having reflected upon the various matters, the justice of this case would be met by postponing the fixture from the 14th March until the first available date, namely 11th April 2020, at Bridgnorth; and
(iv) The appeal fee should be returned to Bridgnorth
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Concluding Observations
45. This case was decided upon its own unique facts. It should not be regarded as setting any precedent for other Clubs in relation to the facts. However, it provides a valuable lesson in the need for Divisional Organising Committees to have structures and systems in place to ensure that due process is observed when important decisions are being made. Decisions have to be made upon fair and proper consideration of the facts and reviews have to be meaningful. In this case the reviewer did his level best with the systems that were in place. I would recommend that the DOC review those systems as a matter of urgency.
46. I would wish to repeat my thanks to all parties to this case: the observations should not be interpreted as expressing any personal criticism. On the contrary, the Game is built on the shoulders of many who give of their time in abundance. Those appearing before me, did that in spades.
47. I wish them all well, in this current and difficult period in our lives.
Ian Unsworth QC
Single Judicial Officer
18th March 2020
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