Bookmaker’s claim for loss of earnings over allocation of racecourse pitches falls at first fence

Stanley Wood argued that the Musselburgh Joint Racing Committee breached his licence by failing to offer him a vacant pitch in a particular part of the course, but a sheriff ruled that the defender had construed and applied the licence terms “correctly”.

Sheriff Kenneth McGowan heard that on 14 June 2014, there were three areas at Musselburgh Racecourse in which on course bookmakers were entitled to trade, namely: the Rails, which comprised six pitches; the Tattersalls, which included 43; and the New Areas, which comprised a total of seven pitches – with each bookmaker in these areas allocated a ‘List Position’, number 1 being the top of the list.

The holders of Rails List Positions (RLP) 1-6 and Tattersalls List Positions (TLP) 1-43 are given priority over the holders of RLP 7, 8 etc. and TLP 44, 45 etc. when it comes to allocation of pitches on any race day.

On Ladies’ Day 2014, the holders of RLP 1, 2, 4, 5 and 6 were present at the racecourse, but the holder of RLP 3 was not.

The pursuer, the holder of RLP 7 and 8 was present, as were a number of bookmakers present who held TLP’s numbered between 1 and 43.

When the time came to allocate pitches, a representative of the defender established which bookmaker with the highest TLP was present that day and he was offered a pitch in the New Area.

The pursuer, as the holder of RLP 7 and 8, was not entitled to be offered a pitch in the New Area until any remaining vacant New Area pitches had been offered to any bookmakers who were present who held TLP’s in the range 1-43, and the remaining two pitches were taken up.

The allocation process having been completed, only three pitches on the Rails had been filled and he accepted the offer a pitch at the Rails and traded there.

In accordance with the defender’s policy that vacant spaces in the Rails which existed because one or more holders of RLP’s 1-6 had accepted a pitch in a New Area were not “filled up”, the remaining spaces on the Rails were not offered to either the pursuer or any other bookmaker and remained vacant.

The pursuer claimed that he would have earned more in the New Area than he earned from the Rails, but the sheriff dismissed his bid for damages.

In a written judgment, Sheriff McGowan said: “In my view, the defender construed and applied the licence terms correctly on Ladies’ Day 2014; and the evidence demonstrated that by the time that the pursuer as holder of RLP 7 might otherwise have been offered a pitch in the New Area, there were none left because they had all been allocated…to any bookmakers present holding RLP 1-6 and/or TLP 1-43.

“It is worth adding that the pursuer’s own witnesses agreed that the chance of any New Area pitch ever becoming available to the holder of RLP 7 was very slight, because there are 49 bookmakers (RLP 1-6 and TLP 1-43) to be considered ahead of RLP 7 in the ‘queue’. None of them had experienced of a pitch in the New Area being offered to the holder of RLP 7 and all thought it was highly improbable that it would happen.

“I accept that had the pursuer had been offered a pitch in the New Area he would have accepted it. But any claim for damages would have to be based on the proposition that he would have earned more from a pitch in the New Area than he did in fact earn from the pitch operated on the Rails.

“The claim would constitute the earnings from the former less the earnings from the latter. There was no evidence to show, even as a matter of probability, what the pursuer might have earned had he been offered and taken up a pitch in the New Area, so even if the pursuer had established such a claim in principle, it would not have been possible for me to calculate any loss.

“For all these reasons, I am satisfied that any claim based on the proposition that the pursuer, as holder of Rails List Position 7, was deprived of earnings as a result of the defenders’ breach of his licence cannot succeed.”

The pursuer’s claim in his capacity as the holder of RLP 8 also failed.

The sheriff said: “In so far as that claim is based on the proposition that he should have been offered a pitch in the New Area, then everything that I have said above that argument in relation to RLP applies with equal force.”