MISSION STATEMENT

SOCIF is a body of racing industry and consumer stakeholders, whose mission is to create Best Practice Recommendations that comply with the principles contained within consumer protection and business legislation, helping racehorse syndicate and club businesses achieve high standards of service provision to consumers. SOCIF works with Trading Standards and aims to improve integrity, confidence and growth in the shared ownership and clubs' industry.

INTRODUCTION

Consumer confidence in how syndicates and clubs are run and regulated, is a key strategy for industry growth.

The shared ownership and clubs' industry is governed by public law, including, but not limited to, the Provision of Services Regulations 2009.

The BHA is currently acting as industry Regulator and those entities offering the sale of ownership shares in racehorses and memberships in racing clubs, are acting as Service Providers. Both the Regulator and Service Providers are required by law to help protect consumer and fair trader interests. However, the current Regulator, the British Horseracing Authority (a non-statutory private business) has declared that they are not a 'competent authority' pursuant to the Provision of Services Regulations 2009 and as such:-

BHA text:-
"The BHA is not concerned with the regulation of any services provided by clubs or syndicates. The BHA does not mandate, supervise, or regulate how any horse owner provides any service to another person."

"Insofar as any such service activities are provided by clubs or syndicates, they are a matter entirely beyond the BHA’s governance and are instead regulated by common law or statute."

A competent independent body will be required to mandate, supervise, and regulate syndicates and clubs pursuant to common law or statute, including, but not limited to the Provision of Services Regulations 2009 and start the process of formulating a potential licensing scheme for syndicate and club service providers.

SOCIF has produced a set of best practice recommendations (a work in progress) which should give a new regulatory body a running start. These recommendations can be viewed below.

Consumers and industry representatives are encouraged to contribute to the SOCIF work (email: secretary@socif.co.uk) Recommendations are submitted to government departments such as Trading Standards to help verify the legality and fairness of relevant matters, prior to inclusion.

The fundamental difference between a syndicate and a racing club is that a syndicate business-to-consumer (B2C) offer involves shared ownership of a racehorse, whereas a B2C racing club membership offer does not involve shared racehorse ownership - it is imperative that consumers are made aware of the difference, to enable an informed purchasing decision to be made.

SOCIF BEST PRACTICE RECOMMENDATIONS

(A work in progress)

INTERPRETATIONS

The "Rules of Racing" means the set of rules designed by racing's participants to help protect integrity within all aspects of British horseracing and currently administered and managed by the BHA.

"BHA" - British Horseracing Authority - a non-statutory trading business of British Horseracing Authority Ltd, a private company limited by guarantee without share capital (company no. 02813358).

"GBR" - Great British Racing, a BHA Group subsidiary undertaking.

"Subsidiary undertaking" means an undertaking (a business activity) controlled by another undertaking (the parent or holding company). The financial statements of a subsidiary undertaking are normally included in the consolidated financial statements of the group.

"Syndicator" means any individual or entity with fiscal liability to consumers and businesses, whilst engaged in the forming, promoting, managing, and running of a shared racehorse ownership scheme, whether or not for profit.

"Fiscal liability" means financial and other direct and indirect liabilities.

"syndicate" means racehorse ownership divided into defined equal percentage shares, (the product of the Syndicator's offer to consumers).

"syndicate manager" means either the Syndicator or a person(s) without fiscal liability, appointed/employed by the Syndicator to manage the day-to-day operation of the syndicate.

"syndicatee" means a consumer who joins a syndicate. (A syndicate member).

"Racing Club" means an entertainment associated with racehorses, where the Members acquire no ownership or beneficial ownership rights to the racehorse but may acquire certain benefits such as the sharing of race prize money.

"consumer" means any individual (a syndicatee for example) who, in relation to a commercial practice, is acting for purposes which are outside their business.

"CMA" Competition and Markets Authority.

"FCA" Financial Conduct Authority.

"HMRC" His Majesty's Revenue & Customs.

"Competent Authority" means a body or authority having supervisory or regulatory functions in the United Kingdom in relation to service activities.

"Participant Services" is the BHA department responsible for authorising, registering, monitoring, and administering shared racehorse ownership entities (syndicates and partnerships) and also racing clubs.

"VAT" means Value Added Tax.

"IP" means 'intellectual property'. The associated rights belonging to a business (syndicate or racing club for example) including copyright, design, patents and trademarks.

"DBT" The Department for Business and Trade, formerly named "BEIS" (Business, Energy and Industrial Strategy).

"ORRPI" Overriding Reasons Relating to the Public Interest.

"Service Provider" means a person who provides, or offers to provide, a service. (The term 'person' includes business undertakings.)

"Weatherbys" a UK conglomerate whose wide range of activities include the administration of British horseracing on behalf of the BHA.

"Pinhooking" the purchasing of a racehorse with a view to reselling at a profit. Commonly associated with buying a foal with the intention of reselling for a profit as a yearling.

BEST PRACTICE RECOMMENDATIONS

1. The current BHA shared racehorse ownership and racing club registration categories.

(1.1) Sole ownership - For people who wish to own a horse outright.

(1.2) Company - For organisations wishing to own a horse under the name of a company or business.

(1.3) Partnership - For two or more registered owners that wish to own a horse together. Partnerships are likely to comprise family or friends and allow owners to jointly share in the responsibilities and liabilities of racehorse ownership.

Note (1.3 i) a partnership is a private, racehorse ownership arrangement where the partners assume legal responsibility for the horse and for all payments and other associated obligations under the Rules of Racing (for example, the payment of training fees). If one or more partners or their agents, advertise/offer the shared ownership arrangement to consumers, the arrangement becomes a syndicate and should be re-registered as such with the BHA..

(1.4) Syndicate - A form of shared ownership where the Members own, or lease, an interest in racehorse(s) and the Syndicator receives remuneration for their role and/or the method of attracting participation in the entity includes invitations to the public.

Note (1.4 i) A 'syndicate' is the division of the ownership (or beneficial ownership) of a racehorse(s), with defined percentage shares amounting to 100% of the whole horse(s).

Note (1.4 ii) The same racehorse cannot be the subject of more than one registered syndicate.

Note (1.4 iii) The BHA only register/authorise entities in one category. It therefore follows, for example, that an entity cannot be a syndicate and a partnership. Therefore if a Syndicator wishes to allow partners to part-own a syndicated racehorse, those partners must become part of the syndicate and allocated the relevant percentage of shares. An example could be 'XYZ Syndicates & Partner' registered racehorse ownership entity with the BHA. In such a case, in the interests of transparency and consumer protection, the partner(s) racehorse ownership percentage must be included in the 100% figure. For example, a partner may own 40% of the horse and the Syndicator may own 60% of the horse. The partner automatically becomes a member of the syndicate. The 40% has already been allocated and therefore the Syndicator will only be in a position to sell 60% of the horse. Consumers would not be in a position to make an informed purchasing decision if, for example, a partner was paying less than the other syndicate members for an equal percentage.

Note (1.4 iv) A 'microshare' is an unofficial term that applies to a small ownership share in a syndicated racehorse. For example; a syndicate where shares are divided into 1000 equal units, each share would represent 0.1% of the whole and is referred to by some as a 'microshare'. The term cannot be applied to the sale of memberships in a racing club.

(1.5) Racing Club - An entertainment associated with racehorse(s), where the Members acquire no ownership rights to, or lease an interest in, any racehorse(s) but may acquire certain benefits such as the sharing of prize money.

Note (1.5 i) BHA Regulation update (April 2022) -

"BHA defines a racing club as an entertainment associated with racehorses, where the members acquire no ownership rights to, or lease an interest in, any racehorses. Considering this, promotion must not portray racing club membership as bestowing ownership, part-ownership or leased ownership on any individual - use of the words 'owner' or 'ownership' should be avoided.

Racing clubs should be promoted based on the benefits afforded to members and what their subscription fee grants, such as regular updates from the trainer, days at the yard, the chance to watch the club's horse(s) in action as well as potentially receiving a split of any prize-money won.

It is important to remember that even if prize-money won by the racing club's horse(s) may be shared amongst members, the sale of a membership should not be described as purchasing a 'share in a horse'. The term 'share' implies the member is securing ownership of, or a legal leasehold interest in, a racehorse and should, therefore, not be used when promoting a racing club.

With regard to syndicates, the BHA defines them as a form of shared ownership where the syndicate members own, or lease, an interest in racehorses. As such, the member is purchasing a share in a horse and any promotion should be aligned with that."

Note (1.5 ii) Although a 'Racing Club' is defined by the BHA as an 'ownership entity', this refers to the status of the racing club business, not to the entity's consumer offer or the standing of the racing club members.

Note (1.5 iii) There are two BHA codes of conduct applicable to entities - a syndicate code and a racing club code. The two codes sit separately. Entities are bound by the Rules of Racing to comply with rules relevant to the BHA authorised type. For example, where the BHA have authorised the registration of a racing club racehorse, the racing club entity is NOT required to abide by the syndicate code of conduct. Registration details can be found at; britishhorseracing.com

Note (1.5 iv) Even in the case of, for example, a pub landlord organising a racehorse syndicate amongst his customers, or a small social club activity, the invitation to participate in the syndicate, is bound to contain; an offer to treat, a contract containing terms and conditions, engagement of the services of a professional racehorse trainer, an agreement to be bound by the Rules of Racing, responsibility for VAT registration and VAT recovery (where applicable), obligatory registration under the Data Protection Act, responsibility for the collecting and banking of often substantial sums of money, distribution of race prize money and any other income, compliance with FCA collective investment schemes (where applicable) - these factors alone could appear to constitute a “venture in the nature of trade” and therefore create a strong argument that all syndicators should be equally treated by a competent authority, regardless of size. A small syndicate entity could potentially be run by persons with limited knowledge of the intricacies/requirements of shared ownership and club arrangements. Equal treatment of all syndicates and clubs by a competent authority would help protect consumers and help reduce the risk of unscrupulous exploitation of loopholes.

Note (1.5 v) People joining a BHA registered partnership, as opposed to a BHA registered syndicate, may not be afforded the same level of protection as members of a syndicate, given that partnership entities are not obliged to comply with BHA syndicate rules.

(2.1) Persons forming a shared racehorse ownership arrangement, or forming a racing club, are required to produce a set of terms and conditions and make them available to potential participants in a durable medium, prior to conclusion of agreement to make a purchase.

Note (2.1 i) 'persons' means an individual, a business or any legal entity.

Note (2.1 ii) 'durable medium' - The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013: “durable medium” means paper or email, or any other medium that—

(a)allows information to be addressed personally to the recipient,

(b) enables the recipient to store the information in a way accessible for future reference for a period that is long enough for the purposes of the information, and

(c)allows the unchanged reproduction of the information stored.

Note (2.1 iii a) The BHA present requirement is that the Syndicator must provide the consumer with a written agreement/contract (terms and conditions) in a durable format at the point the consumer joins (has paid for) a share in a racehorse OR joins (has paid for) a racing club membership.

Note (2.1 iii b) Given that consumer legislation requires terms and conditions to be made available to a consumer BEFORE they are bound by a contract with a trader, the BHA have agreed (October 2023) to review the BHA requirement at (2.1 iii a).

Note (2.1 iv) Associated Benefits - where an entity offers ownership shares in a racehorse or the membership of a racing club to consumers as part of an associated or third-party transaction, on a free of charge basis or otherwise, the associated terms and conditions should comply with the BHA Rules of Racing and consumer protection legislation.

(2.2) The Consumer Rights Act 2015 requires B2C terms and conditions to be transparent. T&C's should be expressed in plain and intelligible language and if in writing, be legible. Small print within terms and conditions cannot be used to hide/dilute the important/critical elements of the consumer offer. Small print must not contradict the large print.

Note (2.2 i) The Regulations require a Service Provider to make it easy for consumers to read the important elements within terms and conditions and highlight anything that could come as a surprise or that may have a significant impact on them.

Note (2.2 ii) Enforcers (such as the CMA and Trading Standards) can take legal action to stop the use of unfair terms in B2C offers.

Note (2.2 iii) Members of syndicates and racing clubs are required by the BHA to abide by the Rules of Racing (a wide-ranging document with sections relevant to various participants). However, the BHA are not extracting/highlighting the relevant terms that would enable syndicators, racing club entities and consumers to easily establish what applies to them. The BHA do recommend that consumers pay particular attention to Section J (Integrity) and Section L (BHA Investigations and Disciplinary Action), with emphasis on understanding restrictions on 'lay betting' and 'inside information'. However, some of these rules require updating to account for developments in syndication and racing clubs over the past 10+ years. Consumer protection legislation appears to place an onus on syndicators and racing club entities to advise consumers that they are bound to abide by the Rules of Racing PRIOR to selling shares or memberships, however, it is commonly accepted that the average consumer will not have the time to wade through (extract and understand) applicable BHA Rules of Racing before ticking an 'acceptance box'. SOCIF will continue to call upon the BHA for an updating of, and explanatory precis of, relevant Rules.

(2.3) Where a business to consumer (B2C) offer is portrayed on a website-

  1. the full terms and conditions shall be prominently displayed, without a requirement for a consumer; to
  2. refer to another website; or
  3. take secondary action such as having to register an interest prior to obtaining the B2C terms and conditions; or
  4. make a phone call or any other action to obtain details of the full terms and conditions.

Note (2.3 i) B2C offers include 'for profit' or 'not for profit' and 'charitable' schemes.

Note (2.3 ii) The BHA operate a syndicate code of conduct and a racing club code of conduct. Because a racing club may be incorrectly registered by the BHA as a syndicate (the BHA say that they do not have sufficient resources to establish the difference when inspecting B2C terms and conditions, prior to authorisation), consumers, businesses and others cannot safely rely on BHA authorisation to identify an entity as either a syndicate or a racing club.

Note (2.3 ii) Where the BHA allow a Syndicator to change the established BHA authorisation of a syndicate entity to a partnership, this may fundamentally change the status of the original syndicate offer/agreement, because for example, the Syndicator will no longer be bound to offer the syndicate member the protection of the BHA Syndicate Code of Conduct. Therefore, each syndicate member should immediately be made aware of the fundamental change of status and offered an opportunity to cancel the original agreement, obtain a refund and be offered the opportunity to enter into a new agreement under revised conditions which clearly specify the legal and BHA obligations placed on members of partnerships.

3. Collective investment schemes.
(awaiting verification)

(3.1) The sale of a racehorse ownership share, and a racing club membership, constitutes a 'collective investment scheme' and as such, entities are required by law to register with the Financial Conduct Authority; save where-

the entity's B2C offer meets the definition of an Unregulated Collective Scheme (UCIS), which effectively states that the B2C offer must not be portrayed as an investment opportunity and must comply with consumer protection legislation such as the Consumer Protection from Unfair Trading Regulations 2008.

Note (3.1.i) The penalties for breaching the relevant laws can be severe and therefore much caution is needed.

Note (3.1 ii) The current BHA advice on the subject, states; "Before setting up a syndicate, seek independent legal advice to satisfy yourself that (i) the Co-Ownership Entity would not fall within the definition of a "Collective Investment Scheme" as defined in section 235 of the Financial Services and Markets Act 2000 (FSMA); or (ii) an exclusion applies to the Co-Ownership Entity under the FSMA (Collective Investment Schemes) Order 2001."

Note (3.iii) Pinhooking involves the purchasing of a racehorse with the view to selling it on at a profit. An invitation to consumers to invest in a pinhooking syndicate would automatically render it a 'Collective Investment Scheme' as opposed to an 'Unregulated Collective Investment Scheme' and failure to register the pinhooking scheme (the syndicate offer) with the FCA could potentially be a criminal offence.

4. Service Providers cannot state or imply that a B2C offer is an investment opportunity.

5. Price transparency.

(5.1) Where the price of a syndicated share includes the capital value of the racehorse, the sum paid by the Syndicator-

  1. at public auction or by private transaction, the purchase price (inclusive, exclusive or not subject to VAT) of the horse(s) must be declared in B2C offers; together with
  2. all associated purchase costs included within the retail price of a share.

Note (5.1 i) the Regulator may request documentary proof, for example, an invoice for a sum charged to the Syndicator for the racehorse.

(5.2) Where the price of a syndicated share in the ownership of a racehorse is specified in advertisements, websites or any medium, the VAT status (plus VAT, or inclusive of VAT, or not subject to VAT) must be stated.

Note (5.2 i) Thirty years ago, the racing industry negotiated a concession scheme with HMRC, allowing consumers to reclaim their racing associated VAT payments.

Note (5.2 ii) The existence of the HMRC Racehorse VAT Concession Scheme adds considerable relevance to why the VAT status must be declared.

Note (5.2 iii) It is imperative that the racing industry protects the integrity of the VAT concession scheme.

Note (5.2 iv) The VAT concession applies to the members of syndicates and partnerships but NOT the members of racing clubs.

Note (5.2 v) It is the Syndicator's role to apply to HMRC for refunds on the syndicatee's behalf. Weatherbys, issue a D2 Application Form to enable this function to be performed by the Syndicator (information can be found at weatherbys.co.uk).

Note (5.2 vi) Weatherbys act as agent for the BHA and as part of their D2 Authorisation process they will need to ensure that the entity is a syndicate and not a racing club (meaning that they will need to scrutinise the terms and conditions of the entity to establish that the consumer offer does not have the characteristics of a racing club). Once Weatherbys are satisfied that the application meets the requirements of the VAT concession scheme, they will officially authorise it and pass the application back to the Syndicator, who will then be able to make a refund application to HMRC on behalf of the syndicatees..

Note (5.2 vii) The VAT concession DOES NOT APPLY to the trading activities of syndicate and racing club businesses because the businesses reclaim their VAT in accordance with normal VAT rules.

(5.3) Where the Syndicator obtains a VAT refund on behalf of the syndicate member, the whole of that sum must be passed to the syndicate member and not retained in whole or part by the Syndicator, for example, to offset the Syndicator's expenses.

6. Logos.

(6.1) Logos of organisations cannot be used on B2C websites or advertisements to give the impression that they offer some form of consumer protection when they do not.

Note (6.1 i) There is currently no known commercial organisation with a recognised code of conduct that protects syndicatee or racing club member payments.

7. Syndicate and racing club business names.

(7.1) A business/trading name cannot be used to imply that the B2C offer is something that it is not. For example, where the consumer offer has the characteristics of a racing club, a name such as 'Hythe Racing Owners Club' could not be used, as the average consumer may believe that the offer includes some form of racehorse ownership.

Note (7.1 i) Where the consumer offer involves both a racing club and a syndicate, the two entities must be clearly distinguishable by name with separate terms and conditions. For example; 'Hythe Racing Club' and 'Hythe Racing Syndicates'.

8. Racehorse fit for purpose.

(8.1) Syndicators should take reasonable steps to ensure that a horse is in a fit enough condition to withstand training at the point of purchase. By subsequently omitting to bring a consumer's attention to material information, for example, that a horse has a known injury preventing it from racing, a Syndicator may be committing a criminal offence.

9. Share registers.

(9.1) A Syndicator is required to maintain a 'share register' listing the names of the syndicate members against the relevant share numbers allocated to those persons. For example, in a 50-share syndicate, each share number would be between 1 and 50, therefore if Mr. John Smith purchased share number 24, it would be recorded as such in the 'share register' and the syndicate member notified of that unique number in the relevant named racehorse.

Note (9.1 i) Each 'share register' must be open for inspection by a governing authority and, on the understanding that a governing authority does not capture the data for any commercial purpose, the Syndicator will allow a governing authority to contact up to ten randomly selected syndicate members for the purpose of establishing the validity of the relevant shares.

10. Third Party Insurance.

(10.1) The Syndicator must have third party insurance in place for the full duration of the syndicate period, to cover the respective liabilities incurred by syndicate members under the Animals Act 1971.

11. Leasing.

(11.1) Where a Syndicator purchases a racehorse, the Rules of Racing permit the Syndicator to form a syndicate where the syndicate members are invited to enter into a leasing arrangement, provided each lease agreement is materially the same and includes full beneficial ownership of the defined percentage share of the racehorse.

Note (11.1 i) Where a racehorse is the subject of a lease arrangement between the legal owner and a lessee(s), a lease form must be completed and lodged with the Registrations Team at Weatherbys.

GOVERNING LAWS

(Regulatory Information provided by Trading Standards)

Whilst the Rules of Racing play a role in determining certain integrity matters in business-to-consumer (B2C) offers, public law requires fairness and transparency in B2C offers and are subject to Trading Standards and/or Competition and Markets Authority (CMA) enforcement action.

Syndicators and racing club businesses are required by law to portray offers to consumers, in a fair, honest and transparent manner. There are three relevant elements of consumer protection legislation, the Consumer Protection from Unfair Trading Regulations 2008, the Consumer Rights Act 2015 and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013..

Consumer Protection from Unfair Trading Regulations 2008

The Consumer Protection from Unfair Trading Regulations 2008 (henceforth the CPRs) address unfair commercial practices by traders when dealing with consumers, creating associated criminal offences.

A consumer is defined as "...an individual acting for purposes that are wholly or mainly outside that individual's business."

A trader is "...a person acting for purposes relating to that person's business, whether acting personally or through another person acting in the trader's name or on the trader's behalf and [except in relation to consumer's rights to redress] includes a person acting in the name of or on behalf of a trader."

A commercial practice is defined as "...any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product."

A product includes goods, a service, digital content, immovable property, rights or obligations and a trader who demands payment from a consumer in full or partial settlement of their liabilities, or purported liabilities, is considered to be offering to supply a product to the consumer.

Goods means any tangible moveable items, with certain proviso for water, gas and electricity.

Consumer Rights Act 2015

The Consumer Rights Act 2015 (henceforth the CRA) provides consumers with certain statutory rights when being supplied with goods and/or services by traders. It also prohibits the use of unfair terms in consumer contracts (those between consumers and traders with the exception of contracts of employment or apprenticeship). Under the CRA a trader claiming that an individual was not a consumer must prove it.

The CRA defines a consumer as "...an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession." However, for many of the CRA's provisions a person is not a consumer in relation to a sales contract if the goods are second-hand goods sold at public auction, provided individuals have the opportunity of attending the sale in person.

A trader is defined as "...a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf."

Goods has the same definition as in the CPRs.

Generally, a trader cannot rely on a term that attempts to restrict a consumer's statutory rights in relation to either goods or services.

Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (henceforth ICAC) apply to most contracts between consumers and traders and introduce rules around the provision of information to consumers as well as a 14 day cooling off period during which a consumer can choose to cancel certain contracts provided it were agreed away from business premises or via a distance method ( such as online or over the phone).

ICAC differentiates between sales contracts and service contracts.

A sales contract "...means a contract under which a trader transfers or agrees to transfer the ownership of goods to a consumer and the consumer pays or agrees to pay the price, including any contract that has both goods and services as its object."

A service contract "...means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer agrees to pay the price."

Definitions of consumer and trader are identical to those in the CRA.

GENERAL NOTES

Once the fine detail of SOCIF 'best practice recommendations' is completed, a shortened version will be produced to complement the main body of text.

SOCIF's Best Practice Recommendations were being submitted to the BHA for comment prior to the BHA's decision (on 6th December 2023) to withdraw from participation. The BHA said, "Ultimately, what SOCIF proposes to include on its website is a decision for SOCIF itself and is not something that the BHA supports or endorses."

Given that SOCIF is working hard to help consumers and traders in the complex area of shared racehorse ownership and racing club memberships, this withdrawal of participation has strengthened SOCIF's resolve to work hard to help protect consumer and trader interests. SOCIF takes this opportunity to thank Trading Standards for its continued help with Best Practice Recommendations.

CONTACT

Contact: secretary@socif.co.uk