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

The Court of Appeal held that a disciplinary complaint based solely on a foreign conviction under bye-law 7(1) was substantively distinct from a later complaint based on the underlying conduct and therefore the plea of autrefois acquit or res judicata did not bar the second complaint. The court applied the tests in Connelly v DPP and adopted Lord Devlin’s narrow formulation that, for autrefois acquit to apply, the later charge must be the same in both fact and law; here the legal characteristic of the first complaint was the conviction itself, whereas the second concerned the attempted removal of documents. The court also rejected an abuse of process challenge, applying the broad merits-based balancing from Johnson v Gore Wood and holding that the public interest in professional discipline and the absence of any prior adjudication on the merits outweighed the appellant’s interest in finality.

Background and parties: The appellant, an ICAEW member, was convicted in Jersey in 2003 of failing to comply with a direction of the Jersey Financial Services Commission (Article 20(9) Financial Services (Jersey) Law 1998). The Institute’s Investigation Committee brought a disciplinary complaint relying on the conviction under bye-law 7(1) (the conviction complaint). A disciplinary tribunal dismissed that complaint because the tribunal was not satisfied the Jersey offence corresponded to an indictable offence in England and Wales.

Subsequent proceedings: The Institute then brought a second complaint (the conduct complaint) alleging discreditable conduct under bye-law 4(1)(a) based on the underlying conduct of attempting to remove client records from Jersey. A preliminary tribunal refused to summarily dismiss the conduct complaint as duplicative. The appellant obtained permission to judicially review that preliminary decision; Owen J dismissed the application ([2008] EWHC 2690 (Admin)). The appellant appealed to the Court of Appeal.

Nature of the application: The appellant sought to prevent the conduct complaint on grounds that it was the same or substantially the same as the earlier conviction complaint, invoking autrefois acquit/res judicata, and alternatively that the second complaint was an abuse of process.

Issues framed:

• Whether, as a matter of construction of the Institute’s bye-laws, the conviction complaint and the conduct complaint were the same or substantially the same for the purposes of autrefois acquit/res judicata.
• Whether the bringing of the conduct complaint would amount to an abuse of process.

Court’s reasoning: The court analysed Connelly v DPP, adopting Lord Devlin’s formulation that the later charge must be the same both in fact and law. It found the conviction complaint alleged the conviction itself as the discreditable act (relying on bye-law 7(1) as conclusive evidence), whereas the conduct complaint alleged the underlying conduct; as such they were not the same in fact and law and autrefois acquit did not apply. On abuse of process, the court applied the broad balancing approach in Johnson v Gore Wood, recognising competing public interests in finality and in maintaining professional standards. Because the earlier tribunal did not decide the merits and the dismissal resulted from a legal/ evidential technicality, the court held the conduct complaint was not an abuse. The Privy Council decision in Harry Lee Wee was distinguished as a case where punishment had already been imposed under the first proceedings and therefore the second set of proceedings amounted to abuse on its facts.

Subsidiary findings and implications: The court noted bye-law 7(3) made findings of foreign courts prima facie evidence of the facts found, but also observed the appellant had not sought to rebut the factual case. The decision emphasised the strength of the public interest in maintaining professional reputation and integrity and that technical procedural error should not bar substantive disciplinary adjudication.

Appeal dismissed. The Court of Appeal held that the conviction-based complaint and the conduct-based complaint were not the same in fact and law for the purposes of autrefois acquit or res judicata, and that, applying Johnson v Gore Wood, bringing the conduct complaint was not an abuse of process because the first proceedings failed on an evidential/legal technicality and there remained a compelling public interest in allowing substantive disciplinary consideration of the underlying conduct.

Appeal from the Administrative Court (Owen J) where the appellant's judicial review challenging the preliminary tribunal decision was dismissed ([2008] EWHC 2690 (Admin)). The Court of Appeal dismissed the appeal ([2009] EWCA Civ 730).