Thomas Ward & Anor v Secretary of State for Business, Energy & Industrial Strategy

A finding made by one tribunal does not automatically create res judicata in later proceedings involving a different public body. Strict res judicata depends on the parties and their privies. A collateral challenge may nevertheless be an abuse of process where re-litigating the same issues would be manifestly unfair and would risk bringing the administration of justice into disrepute. Abuse of process is distinct from strict res judicata and requires an evaluative judgment on the particular facts. Where proceedings have been managed so that a specialist tribunal determines factual issues first, and later proceedings would inevitably involve a collateral challenge to those findings with a risk of inconsistent decisions, permission to appeal may properly be refused if the broader abuse argument would inevitably succeed.

The Financial Conduct Authority’s Regulation Committee issued warning notices and a recommendation concerning Mr Ward and Mr Page. On a reference, the Upper Tribunal found breaches of regulatory standards and imposed a financial penalty on Mr Ward.

Parallel proceedings under the Directors Disqualification Act were managed to await the Upper Tribunal’s determination. At the start of the disqualification trial, His Honour Judge Rawlings held that the defendants were bound by the Upper Tribunal’s relevant findings under the principles of issue estoppel and res judicata, and could not challenge them.

Mr Ward sought permission to appeal. The central issue was whether the Upper Tribunal’s findings could be challenged in the disqualification proceedings, either because strict res judicata applied or because such a collateral challenge would constitute an abuse of process.

1. Application refused. The judge’s use of res judicata was not justified in its strict sense. Strict res judicata prevents a decision of a tribunal with jurisdiction over a cause or matter being challenged in subsequent proceedings by the parties or their privies. The Secretary of State had not been a party to the Upper Tribunal proceedings, and it was seriously arguable that he was not the FCA’s privy.
2. Strict res judicata differs from abuse of process. The latter requires an evaluative judgment on the facts of the particular case. It is not invariably abusive to re-litigate issues determined in earlier proceedings. Secretary of State v Bairstow and Allsop v Banner Jones demonstrated that the question is fact-sensitive.
3. Nevertheless, if the matter were advanced by respondent’s notice on the broader basis of abuse of process, there was no realistic prospect of resisting it. The issues had been decided by a specialist tribunal; the disqualification proceedings had been managed to follow the Upper Tribunal’s determination; and permitting a challenge would create a collateral challenge and a risk of inconsistent findings.
4. Those features made the proposed re-litigation abusive because it would be manifestly unfair and risk bringing the administration of justice into disrepute. The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): permission to appeal was refused.
• Upper Tribunal: on a reference following FCA regulatory proceedings, found breaches of regulatory standards and imposed a financial penalty on Mr Ward. Permission to appeal was refused, with that refusal confirmed by Lady Justice Whipple.
• Disqualification proceedings: His Honour Judge Rawlings held that the defendants were bound by the Upper Tribunal’s relevant findings under issue estoppel and res judicata.