Mandic-Bozic, R (on the application of) v British Association for Counselling and Psychotherapy & Anor

Res judicata and abuse of process principles apply equally to quasi-judicial disciplinary proceedings. Where two professional bodies regulate the same practitioners under materially identical ethical standards, and identical allegations have been fully adjudicated by one body, the second body may be barred from rehearing them.

Cause of action estoppel may apply where the parties are the same in reality, including where a complainant is treated as a privy or the second body has adopted and agreed to recognise the first decision. Alternatively, duplicative proceedings may constitute a collateral attack where allowing them to continue would be manifestly unfair or bring the administration of justice into disrepute.

The claimant, a psychotherapist regulated by both the British Association for Counselling and Psychotherapy and the United Kingdom Council for Psychotherapy, faced disciplinary proceedings before both bodies concerning identical allegations by the same complainant.

The UKCP conducted an extensive adjudication. It rejected the contested allegations, found some admitted conduct to constitute misconduct, but imposed no sanction because the conduct was remediable. The claimant challenged BACP’s refusal to stay its parallel proceedings by judicial review.

The issues were whether the second proceedings were barred by cause of action estoppel or, alternatively, constituted an abusive collateral attack, and whether it was unfair or irrational for the complainant to act as the formal prosecutor.

1. First ground allowed. The complaints, ethical standards and charges before the two bodies were substantively identical. The UKCP had fully adjudicated all the allegations, whether through preliminary sifting or after its full hearing.
2. Res judicata principles apply to quasi-judicial disciplinary proceedings. The relevant doctrines include cause of action estoppel, issue estoppel and the collateral attack doctrine. The hierarchy and governing principles explained by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 were adopted as the applicable framework.
3. Although a strict analysis treated the parties in the two proceedings as different, that did not reflect the realities. The complainant could be regarded as the true prosecutor in both proceedings and therefore as the interested party’s privy. Alternatively, by agreeing to recognise the UKCP decision, BACP had adopted it and became bound by it. Cause of action estoppel therefore barred BACP from adjudicating the complaint.
4. Alternatively, permitting the second identical complaint to proceed would be manifestly unfair and would amount to an abusive collateral attack. The case was indistinguishable in principle from The Secretary of State for Business, Innovation and Skills v Weston [2014] EWHC 2933 (Ch), where a second disqualification application was refused after an earlier attempt had failed.
5. The second ground failed. It was neither unfair nor irrational for the complainant to act as formal prosecutor in the BACP proceedings. BACP would assist her, and the absence of independent assistance would not itself make the process unfair.

The two regulatory bodies were urged to establish arrangements for dealing with identical simultaneous complaints in future.