Awodola v Association of Chartered Certified Accountants

Where disciplinary proceedings are governed by rules specifying that the regulations in force at the time of the proceedings apply, an appeal or permission stage forming part of those proceedings remains governed by the earlier rules. A later procedural amendment cannot remove an existing right during the continuing disciplinary process merely because the application was made after the amendment took effect. Applying the later rules in that situation is a misinterpretation of the governing instrument and may be procedurally unfair.

The claimant, a member and fellow of the Association of Chartered Certified Accountants, was excluded from membership following disciplinary proceedings completed in 2018. His paper application for permission to appeal was refused. He renewed the application within the prescribed period, but after the ACCA Rulebook had changed on 1 January 2019.

The amended rules provided for reconsideration by a single chairman on the papers and removed the possibility of reconsideration by the full Appeal Committee with an oral hearing. The claimant challenged the application of the 2019 rules. Permission for judicial review was granted on the issue whether the renewed application remained part of the 2018 disciplinary proceedings.

1. Judicial review allowed. The decision of the second chairman dated 14 February 2019 was quashed.

2. Bye-law 11(c) required disciplinary proceedings to be conducted under the bye-laws and regulations in force when those proceedings took place. The disciplinary hearings, the Disciplinary Committee’s decision and the application for permission to appeal all occurred in 2018. The renewed application made in January 2019 formed part of the same continuing disciplinary proceedings.

3. The renewed application did not restart or terminate the proceedings. The expiry of the 28-day period for renewal had not brought the proceedings to an end. The fact that the application was submitted after the new rules came into force therefore did not make the 2019 Rulebook applicable.

4. Applying the 2019 Rulebook wrongly removed the claimant’s existing entitlement to have the renewed application considered by the full Appeal Committee, with an oral hearing if requested by a party or directed by the committee. The error was consequently procedurally unfair. The ACCA’s desire to streamline its processes could not justify changing the applicable rules during the proceedings.

5. The court did not need to determine the alternative arguments concerning fettering of discretion or legitimate expectation. The renewed application was ordered to be considered by the Appeal Committee under regulations 6(3)(g)(ii) and 6(4) of the 2018 Rulebook. That order did not indicate that permission to appeal should be granted.

The judgment records the following procedural history:

• High Court (Administrative Court): permission for judicial review was refused on the papers on the first three grounds by Richard Clayton QC on 25 June 2019, but permission was later granted on the fourth ground by Michael Fordham QC, sitting as a Deputy High Court Judge.
• High Court (Administrative Court): the claim succeeded. The ACCA’s decision was quashed and the renewed application for permission to appeal was remitted to the full Appeal Committee under the 2018 Rulebook.