England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Stanley Burnton)

		The Royal Courts of Justice Strand London WC2 Tuesday 9th July, 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the decision of Stanley Burnton J given on 24th April 2002 when he declined to grant permission to bring judicial review proceedings, on their face directed to a decision dated 12th November 2001 of Mr Derek Morris, the Reviewer of Complaints for the Institute of Chartered Accountants in England and Wales. He on that date declined to reconsider an earlier decision of his made on 15th August 2000. By that first decision Mr Morris had found that there was no prima facie case disclosed in a certain complaint made by the applicant, Mr Gorlov, to the Investigation Committee of the Institute against one Mr Gay. Both the applicant and Mr Gay, as I understand it, are members of the Institute. At the relevant time Mr Gay was Secretary of the Investigation Committee, and I think Head of investigation, of the Professional Standards Office at the Institute.
2. I can do no better than describe the genesis of the complaint against Mr Gay by reference to what was said by the learned judge below at paragraphs 3 and 4 of his judgment:

"3. In the course of the disciplinary proceedings which are the basis of the present proceedings, the Investigation Committee of the Institute had made a decision in relation to the complaint against Mr Gorlov which effectively was an offer to dispose of the complaint against Mr Gorlov on the basis of mutual consent as to what the result of that complaint would be. The committee made its decision on 4th May. A letter was drafted by Mr Gay on 7th May 1999. As I understand the matter, 7th May 1999 was a Friday. On that day Mr Gay went on holiday, leaving the letter to be approved by the Chairman of the committee and then posted. The letter was not in fact received until 18th May, according to Mr Gorlov's evidence. It required a response within 21 days. The date of the expiration of the 21 days was not specified. It is clear that the letter was posted after 7th May. It seems that it was franked on, I think, 10th May but did not arrive, so it would seem, for some days thereafter. The letter, when addressed, had an error, namely that one digit from the postal code was omitted. That may or may not account for the delay in its receipt. As I stated above, it called for a response by Mr Gorlov within 21 days. Of course, a substantial part of that time had expired by the time he received the letter. By the time he did receive it Mr Gay had returned from holiday. When Mr Gorlov received the letter he was concerned about the time given for him to respond to it and sent a fax to the Institute, which came to the attention of Mr Gay, stating that he would assume that his time ran from 21 days from receipt of the letter, that is to a date in June, unless he heard to the contrary. Mr Gay did not respond to that. According to the evidence of Mr Gay, no response was called for as the fax itself stated that Mr Gorlov would assume that his time was extended if he received no reply. In due course Mr Gorlov in fact rejected the offer of a consent order, as was his privilege.

4. From then on a number of complaints were made as to the conduct of Mr Gay, summarised in a document produced by the claimant. On examination they appear to be, in the main, either complaints of an administrative nature, such as the fact that a digit was omitted from a postcode or that the letter, when drafted, required a response within 21 days from an unspecified date, or his failure to respond to the fax asking for an extension of time for Mr Gorlov to consider the matter; or they relate to matters in respect of which Mr Gay had a line responsibility, that is to say he was responsible for the conduct and decisions of those within his office, but which he did not necessarily personally attend to."

3. The judge then proceeded to describe Mr Morris' consideration of the matter thus:

"7. That gives some sense of the kind of complaints that went before the Investigation Committee. The Investigation Committee decided that there was no prima facie case against Mr Gay. Its decision was reviewed by Mr Morris. Mr Morris considered the various complaints that had been made. In doing so he summarised them, it would seem accurately. He applied a correct test on all matters, bar possibly one. He came to the conclusion that the mistakes of Mr Gay were, at worst, of a trivial nature and that not every mistake or single act that falls short of best practice necessarily gives rise to a disciplinary offence. I am not suggesting for a moment that that examination of Mr Morris was, as I understand it, perverse in his decision or made an error of law. The real attack has been on his decision that the constitution of the committee was such that it could not be seen to be independent of Mr Gay. The complaint is that those in the committee had a personal knowledge of him. Mr Morris dealt with it in two ways. First, apart from the substance of the complaints themselves, he took the view that although the members of the committee would have known Mr Gay in a professional capacity, there was nothing to suggest that they were in any way dependent or lacked independence or that their judgment would be affected. In any event, the position was that there was no other committee that could deal with this matter because it was not possible for there to be any ad hoc members recruited to the committee. As I understand it, it has not been suggested that anyone on the committee was a particularly close personal friend, or indeed a friend in any sense, but only that those on the committee would personally have known Mr Gay."

4. The judge refused permission in part on delay grounds. This is what he said (paragraph 11, second sentence):

"In my judgment, there has not been shown any reason for an extension of time to be granted in these proceedings; a conclusion I have come to the more readily having regard to the substance of the disciplinary proceedings against Mr Gay. It seems to me that Mr Morris' categorisation of most of the complaints, if not all, as being at the worst of a trivial nature was justified. If I were to set aside Mr Morris' decision and if he or someone else in his position were to review it, and if he were then to send the matter back to the Investigation Committee, I have no doubt that the decision of the Investigation Committee in respect of the complaint against Mr Gay would only have one result. The matters which constitute the complaint against Mr Gay are largely administrative and largely matters relating to the proper working of his office. They are not personal defects or defaults of the kind one expects to see as subject to disciplinary proceedings.

12. When I put together the nature of those complaints and the delay in this case, the care with which Mr Morris addressed this matter, and the inevitable result that there would be if these proceedings were to succeed, I have come to the clear conclusion that it would be quite wrong for permission to be given in this case. Accordingly, permission is refused."

5. I indicated to Mr Harper QC in the course of argument that I would not hold the alleged or actual delay in this case against his client. So it is necessary only to consider the potential merits of the challenge. The applicant seeks to say, inter alia, that Mr Morris was not concerned with the merits of the complaint against Mr Gay. Under the relevant disciplinary byelaw, paragraph 17(5), he was obliged to remit the case to the Investigation Committee if:

"there is reason to suspect a lack of independence on the part of any member of the Investigation Committee who took part in the consideration of the complaint, and the Committee's consideration of the complaint has been prejudiced by that complaint."

6. In the course of his economical and extremely helpfully focused submissions, Mr Harper really concentrates on two propositions by reference to some of the other documents in the case. One is that the Reviewer, the prospective defendant here, adopted a wrong approach to his own role. Material shows, says Mr Harper, that he was in fact engaged in a merits appeal rather than a review which was his proper role under the rules.
7. Secondly, it is said that he misapprehended the applicable or proper test of bias; seeming to believe, so Mr Harper submits, that what had to be shown to raise a case of bias was actual bias as opposed to apparent bias. I asked Mr Harper what he had to say about the apparent, indeed I have to say real, triviality of the complaints made here against Mr Gay. Mr Harper replied, making no bones about it, that this was or was proposed to be public interest litigation. I certainly accept that there are cases in which there is a role for issues to be litigated on purely public interest grounds. The courts are now well familiar with that.
8. My approach to this case starts with my agreement with the judge that really if the matter went back and was reconsidered, the result would be inevitable. There is no sensible complaint here in the substance of the matters that were alleged against Mr Gay. I do not think this is a case in which the proceedings should go forward on public interest grounds. I do not detect any systemic failures here. If there were some general point to be litigated of importance for the processes that this case involved that might be different. But it seems to me, leaving delay aside, that the judge was right and I would refuse the application.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)