Nov 8
The claimant was a member and fellow of the Association of Chartered Certified Accountants, a professional body managed and regulated in accordance with its Royal Charter and byelaws. In disciplinary proceedings conducted in 2018, the association’s disciplinary committee found that the claimant had acted dishonestly and imposed the sanction of excluding the claimant from its membership. The claimant sought permission to appeal, which was refused on the papers by the chairman of the appeal committee although the claimant was advised by the association that he could renew his application for permission to appeal to the appeal committee by 2 January 2019. On 1 January 2019 the association’s Rulebook (“the 2019 Rulebook”) was updated and published online, including changes to the appeal regulations by removing the provision for consideration of a renewed application notice by a full appeal committee and the ability to seek a hearing in which oral submissions could be made. The claimant renewed his application for permission to appeal the following day. He was informed that his application for reconsideration would be dealt with by the chairman on the papers alone and without a hearing, in accordance with the provisions of the 2019 Rulebook. The chairman refused the application and found that the claimant was not entitled to any further consideration of it under the 2019 Rulebook, which governed the application as the rules in place when that application for reconsideration had been submitted. By a claim for judicial review the claimant contended that the application of the 2019 Rulebook rather than the 2018 iteration, thereby removing the claimant’s right to have his application for permission to appeal reconsidered by the full appeal committee with the opportunity of an oral hearing, amounted to a failure properly to apply the association’s byelaw 11(c) which provided that all disciplinary proceedings would be conducted “in accordance with the byelaws and regulations in force at the time of such proceedings”. The judge allowed the claim, holding that the chairman’s conclusion as to the rules to be applied had been reached without apparent consideration of byelaw 11(c) and thus overlooked the fact that the association’s Royal Charter itself provided that the regulations to be applied were those in force at the time of the disciplinary proceedings, which had taken place in 2018.
On the association’s appeal—
Held, appeal dismissed. The relevant rights to an oral reconsideration by the full appeal committee under the 2018 appeal regulations could reasonably be thought to be of significant practical value and importance to an appellant. As such, once the underlying disciplinary order had been made, or at very least once an application notice seeking permission to appeal had been filed in accordance with regulation 3(1) of the 2018 appeal regulations, it would be manifestly unfair to an appellant to remove those rights and to apply the amended provisions of the 2019 appeal regulations to the determination of that application instead. Absent very clear words to the contrary, the bye-laws and regulations of the association were not to be interpreted so that the provisions of the 2019 appeal regulations applied to the determination of an application for permission to appeal that had been filed prior to the date upon which those provisions came into force. It followed that the judge had been right to conclude that the pre-existing rights under the 2018 appeal regulations 2018 continued to apply to the determination of the claimant’s application for permission to appeal (paras 37, 62, 63, 66–67).
Paul Ozin QC (instructed by the Association of Chartered Certified Accountants) for the association.
Joshua Hitchens and Siân McGibbon (instructed by Advocate) for the claimant.