Hollis, R (on the application of) v The Association of Chartered Certified Accountants

In professional disciplinary proceedings, a finding of fact in a civil judgment bears its ordinary meaning. It is not limited to findings necessary for the earlier court’s ultimate decision, or to findings made after notice of disciplinary allegations.

Under regulation 11 of the Chartered Certified Accountants Complaints and Disciplinary Regulations 2014, the general justice and fairness requirement operates as a gateway for admitting evidence. Once admitted, a relevant finding of fact is prima facie evidence under regulation 11(2)(d). The disciplinary tribunal must then assess its weight in light of all the evidence, including the fairness and circumstances of the earlier proceedings.

The claimant, a licensed insolvency practitioner and ACCA member, faced disciplinary charges arising from critical findings about his conduct in Mourant & Co. Trustees Ltd v Sixty UK Limited (in Administration) [2010] EWHC 1890 (Ch). ACCA’s Disciplinary Committee admitted parts of that judgment as prima facie evidence under regulation 11(2)(d) of the Chartered Certified Accountants Complaints and Disciplinary Regulations 2014.

The claimant sought judicial review, arguing that “finding of fact” required a finding necessary to the earlier decision, made with procedural fairness and expressed unconditionally. Alternatively, he argued that the Committee had failed to exercise a discretion to exclude the material on fairness grounds.

1. Application dismissed. The Disciplinary Committee lawfully admitted the relevant passages of the judgment in Mourant & Co. Trustees Ltd v Sixty UK Limited (in Administration) as prima facie evidence.
2. The phrase “finding of fact” has the same meaning in regulations 11(2)(c) and 11(2)(d). It bears its ordinary meaning and covers any matter in a civil judgment properly described as a finding of fact. It is not confined to findings necessary for the earlier court’s ultimate ruling, findings made with notice of disciplinary allegations, or findings which are unconditional.
3. Regulation 11(2)(a) is the general evidential gateway. It permits admission of evidence of any kind, subject to the overarching requirements of justice and fairness. That filter applies before the specific consequences in regulations 11(2)(c) and 11(2)(d) arise.
4. Bye-law 8(e)(ii) has a narrower operation. Conclusive proof of misconduct requires a clear and unequivocal finding of dishonesty, necessary to the earlier proceedings, made against a party who was clearly and distinctly on notice of the allegation and had a full opportunity to defend it. The finding concerning paragraph 58 of the earlier judgment did not satisfy that standard.
5. Where an admitted finding of fact is outside Bye-law 8(e)(ii), regulation 11(2)(d) requires it to be treated as prima facie evidence. The Committee must determine its weight at the substantive hearing, considering the evidence as a whole. The member may give evidence and adduce other evidence challenging the finding, as explained in General Medical Council v Spackman [1943] AC 627.
6. There was no additional supervening discretion under regulation 11(2)(d) requiring exclusion. The judgment was centrally relevant, careful and considered. Its warnings about the absence of the claimant and the lack of a disciplinary focus were matters going to weight, not admissibility. The claimant’s application was therefore dismissed.