Mullins loses Royal appeal
A judge ruled the Jockey Club appeal board's decision to uphold the disqualification after the horse failed a post-race drugs test for morphine was "not amenable to judicial review".
Mullins was not fined but was ordered to pay £5,000 in legal costs.
The judge said: "Morphine may be found in a horse entirely innocently. It was accepted by the Jockey Club that the morphine found in Be My Royal resulted from contaminated foodstuff, and that the claimant bore no blame."
Dismissing Mr Mullins' application for judicial review, made on the basis the case raised important issues of public law, the judge said: "Review of the disciplinary decisions of the Jockey Club and its organs is a matter of private law, not public law."
Be My Royal suffered what was thought to be a career-ending tendon injury when beating Gingembre by half a length in the Newbury showpiece and connections announced his retirement.
However, Dr David Chapman-Jones was given the horse by former owner Archie O'Leary and nursed the Be My Native gelding back to full health with micro-current therapy.
The 11-year-old, who is now in training with Tom George, ran five times last season without success.
Dismissing Mullins' judicial review challenge, the judge ordered him to pay legal costs on an indemnity basis, the highest level available.
He said a previous case involving the Aga Khan, which decided the Jockey Club was not susceptible to public law remedies by way of judicial review, was "clearly binding", and an application for indemnity costs was "appropriate".
Mullins is now considering whether to transfer his legal action to the Queen's Bench Division of the High Court so he can pursue his claim under private law.
The judge ordered Mullins to make an interim costs payment of £35,000.
The judge said, so far as other outstanding costs were concerned, they would be decided after Mullins made his application to transfer his action early next month.
Whether Mullins would be given permission to appeal against yesterday's ruling to the Court of Appeal on the basis it raises issues of general importance would also be considered at the same hearing.
During a two-day hearing earlier this month, Tim Kerr QC, for Mullins, said the aim of the court action was "to put right a serious injustice by establishing that Be My Royal was the true and lawful winner of the 2002 Hennessy Cognac Gold Cup".
He described the "opprobrium and slur on Mr Mullins' honour arising from an unjust conviction for a doping offence".
He said many in the sporting world "would regard being robbed of the achievement of winning the Hennessy Gold Cup as far worse than a breach of any human right short, perhaps of the right to life".
The complaint at the centre of Mullins' case was the Jockey Club appeal board wrongly heard the appeal on the basis that any trace of morphine, however small, was a breach of the rules.
In fact the Jockey Club had earlier adopted a threshold of 50 nanograms per millilitre of post-race urine, below which the presence of the drug was not reportable. At that level of concentration, the drug was to be regarded as irrelevant because it could not affect performance.
Mullins did not hear of the existence of the reporting threshold until November 2003.
The trainer's laboratory expert estimated a concentration of 33 nanograms in this case. The Jockey Club's expert put it much higher, but no attempt was made to prove the point on the basis that even a small amount was against the rules.
The appeal board's decision was, in the circumstances, "arbitrary and capricious" and the horse's disqualification unlawful, said Mr Kerr.
The Jockey Club disputed the claim.
