Association of Chartered Certified Accountants v Makanju Awodola

Professional disciplinary regulations should not be construed to remove valuable appeal rights in pending proceedings unless very clear words require that result. The court should assess the practical value and importance of the rights affected, rather than mechanically classify a change as substantive or procedural. A regulatory body is presumed not to intend unfair consequences for members, particularly where disciplinary sanctions may affect professional reputation and livelihood. General provisions bringing amended regulations into force do not necessarily have retrospective effect. Specific transitional provisions should identify how changes apply to extant proceedings.

The Association appealed against a decision of the Administrative Court, reported at [2020] EWHC 3059 (Admin) and [2020] 4 WLR 162, which quashed the refusal of a single Chairman to reconsider Mr Awodola’s application for permission to appeal against his exclusion from membership.

When Mr Awodola made his application, the Appeal Regulations 2018 allowed reconsideration by the full Appeal Committee and permitted an oral hearing. Amended regulations came into force on 1 January 2019, shortening the time limit, transferring reconsideration to a Chairman and removing the right to request an oral hearing. The central issue was whether the amended provisions governed an application for permission to appeal filed before they came into force.

Snowden LJ gave the judgment, with Carr LJ and Asplin LJ agreeing.

1. Appeal dismissed. The pre-existing Appeal Regulations 2018, governing reconsideration by the Appeal Committee and an oral hearing, continued to apply to Mr Awodola’s application. The Administrative Court reached the correct result, although the Court of Appeal followed a different interpretative route.
2. The Association’s Charter, bye-laws and regulations had contractual force as regards its members. Their interpretation was a unitary exercise, requiring the ordinary and natural meaning of the words to be read in the context of the instrument as a whole and tested against the consequences of rival constructions. The court applied Wood v Capita Insurance Services Limited [2017] AC 1173.
3. Bye-law 11(c), read with bye-laws 11(a) and (b), principally distinguished the rules governing liability for matters complained of from the rules governing later disciplinary proceedings. It did not clearly address whether amended appeal procedures applied during pending proceedings. Appeal Regulation 24 dealt only with the grounds of appeal and the test for permission, and did not resolve the issue.
4. By analogy with R v Secretary of State for the Home Department ex parte Chowdry [1998] INLR 338, Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 and l'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, the Association was presumed not to intend unfair consequences for members unless very clear words showed that intention. The relevant question was practical fairness, including the degree of retrospectivity, the value of the affected rights and the clarity of the language. The court declined to treat the substantive/procedural distinction as mechanically determinative. The approach had also been applied in professional disciplinary procedures in R v The Prothetists and Orthotists Board ex parte Lewis [2001] ACD 57, affirmed [2001] EWCA Civ 837, and R v General Dental Council ex parte P [2017] 4 WLR 14.
5. The right to seek permission to appeal was important. Once the disciplinary order had been made, or at least once the application notice had been filed, the rights to reconsideration by the full Appeal Committee and to request an oral hearing had significant practical value. Applying the amended Appeal Regulations 2019 at that stage would be manifestly unfair. The general commencement and application provisions did not provide sufficiently clear words to remove those rights. R v Makanjuola [1995] 1 WLR 1348 did not state the current law.
6. The Association could change its disciplinary regime for the future, including for members subject to extant disciplinary proceedings, but should use specific transitional provisions and give appropriate publicity to the intended consequences. It was unnecessary to decide whether the Association’s conduct also created separate public-law rights or legitimate expectations.

1. Court of Appeal (Civil Division): Appeal dismissed. The court upheld the quashing of the Chairman’s decision, while reaching the same result by a different interpretative route.
2. Queen’s Bench Division, Administrative Court: HHJ Karen Walden-Smith, sitting as a Deputy High Court Judge, allowed the judicial-review claim and ordered reconsideration under the 2018 Appeal Regulations: [2020] EWHC 3059 (Admin); [2020] 4 WLR 162.