Fallon may ride Native Khan in furture races:
Chris Cook
Kieren Fallon cannot ride in the Derby at Epsom following a sensational reversal of fortune for the jockey at the court of appeal this morning. An interim injunction has been granted to the owner of Native Khan, who claimed Fallon had contracted to ride his horse and not Recital, which the jockey announced as his Derby mount on Monday.
That injunction was initially denied at the high court on Friday morning but was appealed by Ibrahim Araci, whose colours will be worn by Johnny Murtagh on Native Khan in today's race. Araci gained a second hearing before two judges on Friday afternoon and their verdict was that Fallon should be prevented from riding Recital.
"There is nothing special about the world of racing that entitles the major players to act in flagrant breach of contract," said Lord Justice Jackson. He explained that the contract between Fallon and Araci, signed early this year, required the jockey to ride Native Khan when asked to do so and also that he not ride another horse in any race against Native Khan.
Fallon had told the high court in a witness statement that he had never intended to commit to riding Native Khan in the Epsom Derby but had always believed the horse would be aimed at the French Derby on the following day, leaving him free to commit to Recital for the Epsom race. But that defence was rejected by Friday's judge, Mr Justice MacDuff, as "totally inconsistent with the contemporaneous documents" and Fallon's barrister, Graeme McPherson QC, did not challenge that view during the appeal hearing.
The appeal instead revolved around two questions: whether damages paid to Araci by Fallon could be an adequate remedy for a breach of contract, and whether it could be right to grant an injunction preventing Fallon from riding in the Derby. Mr Justice MacDuff ruled on Friday that damages could be adequate and that it would be wrong to grant an injunction, but both those decisions were overruled by the appeal judges.
Lord Justice Jackson said that, on the basis of what McPherson had told the court as to Fallon's means, there was a "real risk that if things go badly for him in the litigation, and substantial damages and costs are awarded against him, he may not be able to meet that judgement in full".
The judge added that an injunction against Fallon would not be a restraint of trade. Although he accepted that Coolmore, owners of Recital, might not be able to engage a replacement jockey of the same stature of Fallon, it was "unrealistic to suppose that Coolmore have not been making very urgent enquiries since Wednesday" as to the availability of other riders.
Finally, Lord Justice Jackson said he was not deterred from granting the injunction by the fact that the betting public had placed wagers on Recital in the belief that Fallon would ride the colt. He pointed out that others may, until Monday, have backed Native Khan in the belief that Fallon would be on him.
"The second and more fundamental point," he said, "is that when a person bets on a horse, he or she is running a multitude of risks, including that the particular jockey may not be riding as the result of injury. I accept that the risk of an injunction is rather less than the risk of injury but it is one of the vicissitudes of life.
"Fallon has brought this predicament on himself by his deliberate and cynical disregard for a contract recently entered into. He did not improve his position by putting forward evidence which, it is now common ground, must be treated as untruthful."
McPherson relayed an initial reaction from Fallon, who spoke by telephone with his solicitor shortly after the verdict. "He's obviously very disappointed by the decision but accepts it," McPherson said, "wishes all the connections of Native Khan the very best of luck this afternoon. He will watch with great interest from the changing room to see how it all unfolds."
Speaking for Araci, the solicitor Mehmet Ali Erdogan expressed satisfaction with the outcome and added: "The Derby and the justice system are much bigger than Kieren Fallon."
Though it might stretch credulity to imagine Fallon riding Native Khan again, McPherson said he had been advised by Araci's representatives that the owner was still prepared to consider booking the jockey to ride his horses in the future