Makanju Awodola, R (on the application of) v Association of Chartered Certified Accountants

In a disciplinary appeal concerning costs, a rule restricting appeals on costs does not create a freestanding route of appeal. It adds a further requirement to the substantive appeal grounds. The relevant financial position is ordinarily that existing when the costs order was made. Later evidence is not “new evidence” merely because the person chose not to provide information that was previously available. Whether a costs order is disproportionate or unreasonable must be assessed in light of the disciplinary findings and the proceedings as actually conducted. A disciplinary committee may proceed on the available material and may infer an ability to meet costs where the member was invited to provide financial information but did not do so.

The claimant, a fellow member of the defendant professional accountancy body, challenged the Appeal Committee’s refusal of permission to appeal against a disciplinary costs order. The Disciplinary Committee had found serious misconduct, excluded him from membership and ordered payment of £24,260.50. He later relied on evidence of his financial circumstances and argued that the costs order was disproportionate, unreasonable and capable of causing severe financial hardship.

Permission for judicial review was granted on the issue whether Appeal Regulation 3(3) had been misconstrued, including the significance of later financial evidence and the date at which hardship fell to be assessed.

1. The judicial review claim was dismissed. The Appeal Committee had correctly refused permission to appeal the disciplinary costs order.

2. Appeal Regulation 3(3) does not provide a freestanding route of appeal. The substantive grounds are those in Regulation 5(2), and Regulation 3(3) imposes an additional restriction where an appeal concerns costs. Severe financial hardship alone therefore cannot justify an appeal unless the requirements of the appeal regulations are otherwise met.

3. The relevant date for assessing financial circumstances and severe financial hardship is ordinarily the date of the costs decision. That approach is required by the finality of costs decisions and is consistent with the guidance, which directs the disciplinary committee to consider means when deciding whether to make an order and its amount. The Appeal Regulations do not indicate that later financial circumstances can retrospectively make the original decision wrong.

4. Regulation 5(2)(d) requires genuinely new evidence that was not previously available and would have altered the findings or order. Evidence of means was available before the disciplinary costs decision. The claimant had been invited to provide it but chose not to do so. The court referred by analogy to the principles concerning fresh evidence in Ladd v Marshall [1954] 1 WLR 1489, Thune v London Properties Ltd [1990] 1 WLR 562 and Al-Koronky v Time Life Entertainment Group Ltd [2006] CP. Rep. 47.

5. The natural reading of Regulation 5(2)(e) requires both disproportionality and unreasonableness to be judged in light of the committee’s findings. In context, the costs could not plausibly be characterised in either way given the issues, duration and hearing required.

6. The Disciplinary Committee was entitled to proceed without specific financial information and to presume that the claimant could meet a costs order of the order claimed, particularly after he had received substantial costs schedules and made no objection. The costs order took immediate effect, so the date of the disciplinary decision remained the relevant date for hardship.

The judgment records earlier stages in the same disciplinary dispute:

• High Court (Administrative Court): the claimant succeeded in an earlier judicial review concerning the procedural rules applicable to permission to appeal: [2020] EWHC 3059 (Admin); [2020] 4 WLR 162.
• Court of Appeal: the appeal was dismissed: [2021] EWCA Civ 1635; [2022] 4 WLR 17.
• High Court (Administrative Court): the present judicial review claim was dismissed.