Coke-Wallis v Institute of Chartered Accountants In England and Wales

Autrefois acquit in disciplinary proceedings requires the later complaint to concern the same offence in fact and law. Complaints arising from the same factual nexus are not necessarily the same where one relies on a conviction as conclusive evidence and the other alleges the underlying conduct. The first complaint must be assessed by its pleaded particulars and evidential basis. Separately, abuse of process is a broad, merits-based judgment that weighs finality and protection against repeated proceedings against all public and private interests. A second disciplinary complaint is not necessarily abusive merely because it could have been brought earlier. Where the first complaint failed on an evidential technicality, without a merits determination, and the member can contest the underlying conduct, the public interest in professional standards may justify proceeding.

The appellant, an accountant and Institute member, had been convicted in Jersey of failing to comply with a direction under Article 20(9) of the Financial Services (Jersey) Law 1998. The Institute first brought a disciplinary complaint relying on the conviction. The tribunal dismissed it because the Jersey offence did not correspond to an indictable offence in England and Wales. The Institute later brought a complaint alleging the underlying conduct. A preliminary tribunal refused to dismiss the second complaint summarily. Owen J dismissed the appellant’s judicial review claim at [2008] EWHC 2690 Admin. The issues were whether the complaints were the same for autrefois acquit or res judicata, and whether the second complaint was an abuse of process.

Appeal dismissed. Sir Anthony May P gave the judgment. Arden LJ and Jacob LJ agreed.

1. Autrefois acquit and res judicata. The principle applies only where the later complaint concerns the same offence in fact and law. Identical underlying facts or witnesses are insufficient. The court applied the narrow approach identified by Lord Devlin in Connelly v DPP [1964] AC 1254 and recognised in R v Beedie [1998] QB 356. The evidence and facts necessary for each complaint were materially different.
2. The two disciplinary complaints. Bye-law 7(1) was an evidential provision. A qualifying conviction conclusively proved discreditable conduct under bye-law 4(1)(a), but the conviction was not itself the relevant act or default. The first complaint could be established only by proving the conviction. The second required proof of the underlying conduct. The common bye-law and factual nexus therefore did not make the complaints the same. Findings made by the first tribunal did not alter that conclusion, and the first complaint could not have been amended in the appellant’s absence.
3. Harry Lee Wee. Harry Lee Wee v Law Society of Singapore [1985] 1 WLR 362 did not establish that autrefois acquit applied here. Its decision was based on abuse of process. It was materially different because the statutory scheme contained a free-standing conviction ground and the solicitor had already been punished in the first proceedings.
4. Abuse of process. Applying Johnson v Gore Wood [2002] 2 AC 1, the question was whether, considering all public and private interests and all the circumstances, the second complaint misused the disciplinary process. It was not automatically abusive merely because it could have been brought earlier. The first proceedings had failed on an evidential technicality and had not determined the merits. The appellant had an opportunity to contest the underlying conduct. The strong public interest in professional reputation and integrity was compelling, and there was nothing unfair, unjust or oppressive in allowing the second complaint to proceed.

1. Court of Appeal (Civil Division): dismissed the appeal.
2. Administrative Court: Owen J dismissed the judicial review claim concerning the preliminary tribunal’s refusal to summarily dismiss the second complaint, at [2008] EWHC 2690 Admin.