Coke-Wallis, R (on the application of) v The Institute of Chartered Accountants of England & Wales

A professional disciplinary complaint based on a conviction is distinct from a complaint alleging the underlying conduct where the applicable rules make the conviction conclusive evidence of discreditable conduct, but do not make the conviction itself the relevant act or default. A failed conviction-based complaint therefore does not necessarily bar a later conduct complaint based on the same underlying facts.

The rule in Henderson v Henderson is not automatic. Whether later proceedings are abusive requires a broad, merits-based assessment balancing public and private interests. In professional discipline, the public interest in maintaining professional standards and confidence may justify a later complaint, particularly where the first complaint failed for an evidential or procedural error.

The claimant, a chartered accountant, had been convicted in Jersey of failing to comply with a direction issued by the Jersey Financial Services Commission. The Institute then brought a disciplinary complaint relying on the conviction and Disciplinary Bye-Law 7(1). That complaint was dismissed because the Jersey offence did not correspond to an indictable offence in England and Wales.

The Institute subsequently brought a complaint under Disciplinary Bye-Law 4(1)(a), alleging that the claimant had breached the direction by attempting to remove records from Jersey. The claimant challenged the refusal to dismiss the second complaint, relying on autrefois acquit, res judicata, legitimate expectation and abuse of process.

1. Application dismissed. The conviction complaint and the conduct complaint were not the same or substantially the same.
2. Disciplinary Bye-Law 7(1) gives a conviction of an indictable offence, or a corresponding foreign offence, evidential effect. It makes the conviction conclusive evidence that an act or default amounting to discreditable conduct occurred. It does not make the conviction itself the act or default for the purposes of Disciplinary Bye-Law 4(1)(a).
3. A complaint relying on Bye-Law 7(1) need not prove the specific conduct underlying the conviction. By contrast, a conduct complaint must prove the relevant direction, the claimant’s knowledge of it and the acts said to constitute its breach. The complaints therefore had a substantive distinction, despite sharing the same factual background.
4. The Tribunal’s reasoning that the claimant had committed the act of being convicted was erroneous, but its conclusion that the complaints were distinct was correct. The Tribunal’s purported factual findings in dismissing the conviction complaint had no evidential foundation once reliance on the conviction failed.
5. The Institute’s general leaflet did not create a substantive legitimate expectation. It was not a specific representation that a second complaint would never be brought. The principle in Niazi v Secretary of State therefore did not assist the claimant.
6. Under Henderson v Henderson, as explained in Johnson v Gore Wood, later proceedings are not automatically abusive merely because the matter could have been raised earlier. The court must make a broad, merits-based assessment of all the circumstances and balance public and private interests.
7. The public interest in maintaining professional standards and confidence, identified in Bolton v Law Society, was compelling. The claimant’s private interests, including delay, did not outweigh it. The conduct complaint could proceed.

• Disciplinary Tribunal: The conviction complaint was dismissed on 19 April 2005 because the Jersey offence was not shown to correspond to an indictable offence in England and Wales.
• Disciplinary Tribunal: On 7 December 2006, a differently constituted Tribunal refused to summarily dismiss the subsequent conduct complaint.
• High Court (Administrative Court): The judicial review application was dismissed.