Hill, R (On the Application Of) v Institute of Chartered Accountants In England And Wales (Rev 1)

A professional disciplinary tribunal may adopt a fair procedure for a temporary absence by one member where its governing rules do not prohibit that procedure. A rule permitting the remaining members to continue if a member cannot attend does not, without more, exclude a member’s temporary absence and return.

Where oral evidence is heard, a deciding member’s absence will normally breach procedural fairness unless the evidence is uncontroversial or the affected person has given voluntary, informed and unequivocal advance agreement. Valid advance consent means that the agreed procedure is not unfair; it is preferable not to describe the position as a breach later waived. A properly qualified advocate may ordinarily give that procedural agreement for the client.

The appellant, a chartered accountant, was found guilty of unprofessional conduct by a disciplinary tribunal of the Institute of Chartered Accountants in England and Wales. He was excluded from membership, fined and ordered to pay costs. His internal appeal was dismissed.

During the disciplinary hearing, one lay member left before the end of the appellant’s cross-examination. The parties’ advocates agreed that the tribunal would continue, that a transcript would be obtained, and that the absent member would read it before returning to participate. The tribunal later found the charge proved.

Lang J dismissed the appellant’s judicial-review claim: [2012] EWHC 1731 (QB). She held that the tribunal had power to adopt the procedure, but regarded the resulting procedural unfairness as waived. The central issue on appeal was whether the procedure was unlawful or contrary to natural justice despite the advocate’s agreement.

1. Appeal dismissed. The court unanimously upheld the dismissal of the judicial-review claim. The disciplinary tribunal had power to permit a member’s temporary absence, followed by return after reading a transcript.

2. The relevant bye-law addressed the different situation in which a member was unable to continue attending and the two remaining members continued. It did not prohibit a short absence and return. Professional disciplinary rules cannot be expected to prescribe every contingency. The proper question was whether the procedure was prohibited and, if not, whether it was fair. The court applied the approach in Virdi v Law Society, [2010] 1 WLR 2840.

3. The ordinary requirement that the decision-maker hear oral evidence remains important. A member who is absent without agreement while a witness gives oral evidence will normally breach natural justice by later deciding the case after reading a transcript. This is particularly serious where the evidence is that of the person facing disciplinary proceedings. A transcript may suffice where the evidence is comparatively uncontroversial: Ng v The Queen, [1987] 1 WLR 1356.

4. However, the requirement of procedural fairness is personal to the affected party. The tribunal had constitutive authority to determine the complaint and to adopt the agreed procedure. Any complaint concerned its adjudicative exercise of that authority and was capable of agreement or waiver. Where, before any breach, the affected person voluntarily, knowingly and unequivocally agrees to an otherwise fair procedure, the preferable analysis is that no breach of natural justice occurs.

5. A tribunal may normally rely on the agreement of a properly qualified advocate. There was no evidence that the appellant’s agreement was involuntary or uninformed. There was also a substantial interval before the hearing resumed, during which he could have objected. His agreement was unequivocal. The court therefore held that there had been no breach of natural justice, rather than a breach subsequently waived. It was unnecessary to determine the respondent’s alternative contention that no relief should be granted because no prejudice had occurred.

• Court of Appeal (Civil Division): Appeal dismissed: [2013] EWCA Civ 555.

• High Court, Administrative Court: Lang J dismissed the judicial-review claim. She held that the tribunal had power to adopt the procedure and that any breach of natural justice had been waived: [2012] EWHC 1731 (QB).

• Institute Appeal Committee: Dismissed the internal appeal on 4 February 2011, while reducing the costs bill.

• Disciplinary Tribunal: Found the charge of unprofessional conduct proved, excluded the appellant from membership, imposed a fine and ordered costs.