R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales

Cause of action estoppel applies to successive proceedings before a professional disciplinary tribunal, including a non-statutory domestic tribunal. Where an earlier complaint has been finally dismissed on its merits, the tribunal cannot entertain a second complaint involving the same parties and disciplinary cause merely because the prosecutor relies on different evidence or a different method of proof.

Professional disciplinary proceedings are civil in nature. The applicable doctrine is therefore res judicata rather than autrefois acquit. Cause of action estoppel creates an absolute bar. The courts should not create a general public-interest exception for disciplinary proceedings; any exception tailored to the risks presented by particular professions is a matter for Parliament.

The appellant, a chartered accountant, was convicted in Jersey of failing to comply with a regulatory direction after attempting to remove client records from the island. The Institute brought a disciplinary complaint alleging discreditable conduct. It relied on the conviction as conclusive evidence under its bye-laws, but the disciplinary tribunal dismissed the complaint because the Jersey offence had not been shown to correspond to an indictable offence in England and Wales.

The Institute then brought a second complaint based directly on the same underlying conduct. A differently constituted tribunal refused to dismiss it, and the appellant's judicial review claim and subsequent appeal were dismissed. The Court of Appeal held in [2009] EWCA Civ 730 that the complaints concerned different conduct. A later tribunal found the second complaint proved and excluded the appellant from membership, subject to the outcome of this appeal.

The central issue was whether the second complaint was barred by autrefois acquit, res judicata or abuse of process.

1. Appeal allowed unanimously. Lord Clarke, with whom Lord Phillips and Lord Rodger agreed, held that the second complaint was barred by cause of action estoppel. Lord Collins agreed with the result and Lord Dyson agreed entirely with Lord Clarke's reasoning and conclusions.
2. Professional disciplinary proceedings are civil rather than criminal. The applicable principle is res judicata, not autrefois acquit. Res judicata applies to non-statutory disciplinary tribunals as well as courts and statutory public-law tribunals. A competent domestic tribunal's final decision binds the parties even if the decision was wrong.
3. On the true construction of bye-laws 4 and 7, liability arose from an act or default likely to bring discredit on the member, the Institute or the profession. A qualifying conviction was conclusive evidence of that act or default; it was not itself the discreditable act. Both complaints therefore alleged the same underlying breach: failure to comply with the Jersey direction by attempting to remove records. The change from reliance on the conviction to reliance on the underlying evidence did not create a different disciplinary cause.
4. The first tribunal's dismissal was final and on the merits. The hearing had been fixed and conducted as a merits hearing. The Institute consciously chose to rely exclusively on the conviction as conclusive evidence, although the underlying facts and other evidential routes were available. Its failure to establish the required corresponding English offence did not make the dismissal preliminary or non-final.
5. All the elements of cause of action estoppel were satisfied. In particular, the same parties were before a competent judicial tribunal; a final merits decision had been pronounced; and it determined the same question raised by the second complaint. Workington Harbour & Dock Board v Trade Indemnity Co Ltd (No 2) [1938] 2 All ER 101 supported the conclusion that a claimant cannot bring a second proceeding concerning the same breach merely by changing the evidence used to prove it.
6. Cause of action estoppel creates an absolute bar, unlike issue estoppel, for which special circumstances may potentially provide an exception. The Court declined to create a public-interest exception for disciplinary proceedings. The risks vary between professions, and the design of any exception is a policy matter for Parliament.
7. The abuse-of-process issue was academic once the complaints were held to be the same, and the Court expressed no opinion on it. The Institute was not entitled to bring or proceed with the second complaint, so the resulting exclusion decision could not stand.

1. United Kingdom Supreme Court: Allowed the appeal unanimously. It held that the second disciplinary complaint was barred by cause of action estoppel and displaced the decisions below.
2. Court of Appeal: In [2009] EWCA Civ 730, dismissed the appeal on 15 July 2009. It held that the first complaint concerned the Jersey conviction while the second concerned the underlying misconduct.
3. High Court: Owen J dismissed the application for judicial review on 6 November 2008.
4. Disciplinary tribunal: On 7 December 2006, refused summarily to dismiss the second complaint. On 9 December 2009, a tribunal later found that complaint proved, excluded the appellant from membership and awarded costs; the sanctions were suspended pending this appeal.