England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Administrative Division)

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/11/2008

The Honourable Mr Justice Owen :

1. The issue to which this application gives rise is whether the Tribunal of the Disciplinary Committee of the Council of the Institute of Chartered Accountants of England and Wales, ("the Institute"), acted unlawfully in refusing summarily to dismiss a disciplinary complaint against the claimant.
2. The claimant is a Chartered Accountant and a member of the Institute. On 16 September 2003 he was convicted at the Royal Court of Jersey of the criminal offence of failing to comply with a direction of the Jersey Financial Services Commission (JFSC) contrary to Article 20(9) of the Financial Services (Jersey) Law 1998.
3. In November 2004, the Institute brought a disciplinary complaint against the claimant based on his conviction (the "conviction complaint"). The conviction complaint was brought under Bye-Law 4(1)(a) of the Institute's Disciplinary Bye-Laws, the claimant being accused of having –

"…committed any act or default likely to bring discredit on himself, the Institute or the profession of accountancy."

4. On 19 April 2005 the complaint was dismissed on the basis that the Tribunal was not satisfied that the Jersey conviction corresponded to an indictable offence in England and Wales.
5. On 7 March 2006 the Institute brought a second disciplinary complaint against the claimant based on the conduct that had given rise to the conviction (the "conduct complaint").
6. On 7 December 2006 a Tribunal, differently constituted from the Tribunal that had dismissed the conviction complaint, refused the claimant's application to dismiss the conduct complaint. The claimant contends that the Tribunal acted unlawfully or irrationally in refusing to dismiss the conduct complaint. He seeks an order quashing the decision of 7 December 2006, requiring the Institute to withdraw the conduct complaint, and prohibiting it from preferring further disciplinary proceedings based on the same or substantially the same facts and matters as the conviction complaint.
7. In essence there are two strands to the claimant's argument, namely that -

1. the conduct complaint is the same or substantially the same as the conviction complaint, and the Tribunal's decision is therefore contrary to the principles of autrefois acquit, res judicata and legitimate expection, and,

2. even if the conduct complaint is not the same as the conviction complaint, then under the principle in Henderson v Henderson (1843) 3 Hare 100, it was an abuse of process not to have brought the conduct complaint at the original Tribunal hearing, and there are no compelling public policy reasons justifying its pursuit.

8. It is the Institute's case that there are no grounds for interfering with the Tribunal's decision and that –

1. as a matter of construction of the Institute's Disciplinary Bye-Laws, the conviction complaint and the conduct complaint are not the same or substantially the same, and that accordingly the principles of autrefois acquit, res judicata and legitimate expectation are not engaged; and

2. in any event it was not an abuse of process, in the circumstances of the case, to pursue the conduct complaint after the conviction complaint was dismissed. The public interest in maintaining high standards of professional conduct among members, and in maintaining public confidence in the accountancy profession requires the Institute to pursue a complaint against the claimant in respect of the conduct underlying his conviction.

9. The Institute's Objects and Powers

The Institute was incorporated by Royal Charter in 1880 to promote the profession of accountancy by compelling the observance of strict rules of conduct for its members and by setting a high standard of professional education. By a Supplemental Royal Charter of 1948 the principal objects of the Institute were declared to include the maintenance of high standards of practice and professional conduct by all its members. Its activities were succinctly and aptly described by Beldam LJ in ICAEW v Customs and Excise Commissioners [1998] 4 All ER 115, at 127 as –

"…activities which Parliament has decreed should be carried out for the protection of the public and are to be regarded as the exercise of public control over those who engage in financial services, auditing and insolvency practice."

10. The Institute's professional disciplinary arrangements are set out in its Disciplinary Bye-laws. In summary the first stage in the disciplinary process is an assessment of a complaint by a team of assessors that includes staff qualified as accountants and lawyers. Where a complaint warrants further consideration, a decision will be made as to whether an attempt should be made to resolve it by conciliation. Cases which progress from assessment, but are not allocated to conciliation, proceed to investigation by the Investigation Committee. A report will be prepared for the Investigation Committee by a Case Manager, a member of the investigation team which comprises employed Chartered Accountants with a range of skills and experience including audit, insolvency and investment business. The report will set out the complaint, any technical information and relevant regulations or parts of the applicable Ethical Code, findings and conclusions. It will also include a recommendation. When it receives a report, the first step taken by the Investigation Committee is to decide whether there is a prima facie case for disciplinary action. If satisfied that there is, it has a range of actions open to it including preferring the complaint to the Disciplinary Committee as a formal complaint.
11. The Disciplinary Committee works through the medium of Tribunals comprising two Chartered Accountants and one non-accountant. Each Tribunal sits with an independently qualified assessor who will advise on matters of law. Where a Tribunal finds that a formal complaint is proved in whole or in part, it may make no order, or make inter alia an order (i) that the member be reprimanded; (ii) that the member be severely reprimanded; (iii) that the member's practising certificate be removed either permanently or for a specified period; or (iv) in more serious cases that the member be excluded from membership.
12. The Disciplinary Bye-Laws relevant to this application are in the following terms –

Liability of members and provisional members to disciplinary action

4(1) A member or provisional member shall be liable to disciplinary action under these bye-laws in any of the following cases, whether or not he was a member or provisional member at the time of the occurrence giving rise to that liability –

(a) if in the course of carrying out professional work or otherwise he has committed any act or default likely to bring discredit on himself, the Institute or the profession of accountancy;

(b) if he has performed his professional work or the duties of his employment, or conducted his practice, inefficiently or incompetently to such an extent, or on such a number of occasions, as to bring discredit on himself, the Institute or the profession of accountancy;

(c) if he has committed a breach of the by-laws or of any regulations or has failed to comply with any order, direction or requirement made, given or imposed under them;

(d) …

(e) …

Proof of certain matters

7(1) The fact that a member, member firm or provisional member has, before a court of competent jurisdiction, pleaded guilty to or been found guilty of an indictable offence (or has, before such a court, outside England and Wales, pleaded guilty to or been found guilty of an offence corresponding to one which is indictable in England and Wales) shall for the purposes of these bye-laws be conclusive evidence of the commission by him of such an act or default as is mentioned in bye-law 4(1)(a) or 5(1)(a), as the case may be.

7(2)…

7(3) A finding of fact –

(a)…

(b) in any civil or criminal proceedings before a court of competent jurisdiction in the United Kingdom or elsewhere;

…

shall for the purposes of these bye-laws be prima facie evidence of the facts found.

13. The factual background

The claimant and his wife were directors and shareholders in a number of trust companies carrying out regulated financial services work in Jersey. The companies were required to be registered and monitored under Jersey law. It appears that the JFSC became concerned as to the corporate governance structure of the trust companies, and entered into an extensive correspondence with the claimant and his wife in an attempt to secure the improvements that it considered to be necessary. But on 27 August 2002, and as a result of the unsatisfactory response to the suggested improvements, the JFSC directed the companies and their directors to appoint accountants to report on a number of aspects of corporate governance. The direction was given under Article 20 of the Financial Services (Jersey) Law 1998. On 18 December 2002 the JFSC issued a further direction to the effect that the companies cease to take on new trust business and that there be an orderly winding-up of the companies' affairs to begin on 18 January 2003. The direction made provision for the appointment of persons to supervise the winding up, and for the appointment of additional third party signatories to all bank accounts and other accounts of the companies. It also directed that "no records or files in respect of the Companies or any customers shall be removed from the offices of the Companies".

14. On 22 December 2002 the claimant was apprehended by the police at St Helier, Jersey, having checked his car onto the ferry to St Malo. On searching the car, the police discovered suitcases containing extensive documentary files relating to clients, computer equipment, network servers and backup tapes. The documents included original deeds of trust, trust and company documents, share certificates, company memorandum and articles, and letters of wishes. The claimant was arrested and charged with the offence of failing to comply with the direction of 18 December 2002. On 16 September 2003 he was convicted on one count of failing to comply with a direction issued by the JFSC, contrary to Article 20(9) of the Financial Services (Jersey) Law 1998. He was duly sentenced on 22 October 2003. On 14 January 2004 the Jersey Court of Appeal refused leave to appeal.
15. On 10 February 2004 an investigation case manager wrote to the claimant to notify him that the Institute was investigating a complaint against him, namely "that a conviction was recorded against you at the Royal Court of Jersey on 22 October 2003 on one count of failure to comply with the directive issued on 18 December 2002 by the Jersey Financial Services Commission…". The letter enclosed inter alia the Institute's leaflet "What happens when a complaint is made against you" which contained the following passage–

"If the Disciplinary Committee dismisses the case, that is the end of the matter so far as the Institute is concerned."

16. In due course the case was reported to the Investigation Committee; and on 2 November 2004 the committee preferred the conviction complaint which stated that the claimant –

"…is liable to disciplinary action under Disciplinary Bye-law 4(1)(a) namely he has:-

"… in the course of carrying out professional work or otherwise he has committed any act or default likely to bring discredit on himself, the Institute or the profession of accountancy"

IN THAT HE: -

" was convicted upon indictment at the Royal Court of Jersey on 16 September 2003 of failing to comply with a direction issued on 18 December 2002 by the Jersey Financial Services Commission contrary to Article 20(9) of the Financial Services (Jersey) Law 1998".

17. The complaint came before a Tribunal on 19 April 2005. The claimant did not appear and was not represented, but had communicated with the Investigation Committee by e-mail and fax seeking a postponement of the hearing. The Tribunal did not consider there to be any basis for an adjournment, and decided to proceed with the hearing on the basis that the claimant denied the complaint. Counsel representing the Investigation Committee, Ms Peto, then presented her case. She began by saying that the matter had been brought under bye-law 4(1)(a) and " is based on the defendant's conviction…before the Royal Court of Jersey on the 16 September 2003". She went on to make reference to bye-law 7(1), saying that if she was able to satisfy the Tribunal that the conviction fell within it, that was conclusive proof of an offence under bye-law 4(1)(a) and " then without more ado you are entitled to find that the defendant's conduct has brought discredit and is liable to disciplinary action". She then outlined the facts that had given rise to the conviction by reference to the transcript of the hearing before the Court of Appeal at which the claimant had sought leave to appeal against his conviction. But at a relatively late stage in the proceedings, the Legal Assessor raised the question of whether the offence of which the claimant had been convicted corresponded to one that is indictable in England and Wales, so as to satisfy the requirements of bye-law 7(1). Ms Peto was unable to satisfy the Tribunal that that was the case; and in consequence the complaint was dismissed. The Tribunal expressed its finding in the following terms –
"FINDING

THE CHAIRMAN: We are satisfied that the defendant was convicted on indictment in the Royal Court of Jersey of failing to comply with a direction issued under the Financial Services (Jersey) Law, 1998, prohibiting the removal of files and documents. We notice that it was alleged (and not disputed by the defendant) that, jointly with his wife, he was caught by the police removing from the jurisdiction of the Jersey authorities original documents and records concealed in the back of his car, in breach of this requirement. This is not the sort of conduct that is to be expected of a member of this Institute.

However, we have to be satisfied that this offence corresponds to one which is indictable in England and Wales. Our attention has been drawn to sections 165, 173 and 177 of the Financial Services & Markets Act 2000. We're not satisfied that any of the offences set out in the sections corresponds to the offence of which he was convicted in Jersey. We therefore dismiss the complaint."

18. There is also a formal record of the decision. It contains a section headed "THE TRIBUNAL FOUND THE FOLLOWING FACTS". There then followed seven numbered paragraphs, the first five of which contained a summary of the facts giving rise to the conviction. The sixth summarised the written material put before the Tribunal by the claimant; and the seventh summarised bye-law 7(1). The concluding paragraph of the record was in the same terms as the FINDING recorded in the transcript of the hearing.
19. In her witness statement, Tracey Rebecca Owen, Head of Legal Services in the Institute's Professional Standards Directorate, sought to explain the misconceived attempt to proceed by bye-law 7(1) in the following terms –

"In view of the conviction being for an indictable offence in the Royal Court of Jersey, the Investigation Case Manager proceeded on an assumption that there was a corresponding offence in England and Wales and that Bye-law7(1) would apply. To the extent that it was considered at all, the Case Manager would not have been inclined to proceed with a detailed and lengthy investigation gathering witness statements from officials at the JSFC, at least to Jersey police officers and the Chartered Accountant who had inspected all the material found in the boot of the claimant's car, when he had the option of relying just on the fact that Mr Coke-Wallis had been convicted."

20. But it is clear that either no proper consideration was given to the question of whether there was a corresponding offence in England and Wales, or that the question was addressed, but answered incorrectly.
21. On 7 March 2006 the Investigation Committee preferred a further complaint, the conduct complaint. It stated that the claimant –

"…is liable to disciplinary action under Disciplinary Bye-law 4(1)(a) namely he has:-

"… in the course of carrying out professional work or otherwise he has committed any act or default likely to bring discredit on himself, the Institute or the profession of accountancy"

IN THAT HE: -

" on Sunday 22 December 2002, attempted to remove from Jersey, accounts books and records as listed in the witness statement of Peter Howard Beamish dated 18 February 2003 in contravention of the direction issued to him on 18 December 2002 by the Jersey Financial Services Commission in accordance with Article 20(9) of the Financial Services (Jersey) Law 1998".

22. On 7 December 2006 the Tribunal held a preliminary hearing at which the claimant, who was both present and represented, sought a summary dismissal of the complaint. The application was made on the basis that the conduct complaint was the same, or effectively the same, as the conviction complaint. The Tribunal's reasoning in dismissing the application is clear from the record of its decision which contains the following passages –

"It is common ground that the conduct complaint relies on the same nexus of facts as the first DC complaint. An important distinction, however, is that the Investigation Committee alleges that the Defendant breached the direction; the Defendant denies that he did.

The key distinguishing feature between the first DC complaint and the conduct complaint, says the Investigation Committee, is that, while the Defendant is once more alleged as being liable for disciplinary action under Disciplinary bye-law 4(1)(a), it is not because he was convicted of an indictable offence (per Bye-law 7(1)) but because in removing or attempting to remove records and files he disobeyed the Direction giving rise to the conviction. The Defendant's case is that there is no such distinguishing feature in any meaningful sense, or at all. It is this distinguishing feature, or lack of one, that lies at the heart of the current dispute."

…

"The first DC complaint alleged that the Defendant was liable to disciplinary action under bye-law4(1)(a) because " in the course of carrying out professional work or otherwise… has committed any act or default likely to bring discredit on himself, the Institute or the profession of accountancy." That "act" was, self-evidently, being convicted of the Jersey offence. No other act or default was relied upon, as is plain from the face of the complaint.

…

"It is plain, therefore, that the first DC complaint was that (i) the Defendant was liable to disciplinary action under bye-law4(1)(a) because (ii) he committed the act of being convicted of the Jersey offence."

Proof of the integrity of this analysis is found in the decision of the Tribunal; it dismissed the complaints solely because the "act" does not correspond to one in England and Wales because, quite simply, it is not possible to be convicted of an indictable offence there. Thus, there was no proof of the conviction of an indictable offence. The first DC complaint failed because of a lack of proof."

23. Having posed the question "Is the conduct complaint the same as the first DC complaint?", the Tribunal set out the particulars of the conduct complaint, and continued –

"It is obvious that the conduct complaint is not literally the same as the first DC complaint and the Tribunal so finds.

But are the two complaints effectively the same? If they are, Counsel for the Defence argues, then that would be unfair because it would amount to "institutional intimidation and harassment" and an "abuse of process". He argues that they are effectively the same to all intents and purposes; this is the linchpin of his case.

He asserts that the two complaints are based on exactly the same factual circumstances, the same evidence, the same conduct, the same parties, the same surrounding circumstances and crucially "exactly the same act or default (breach of the Direction)", which is a reference to an act or default under bye-law 4(1)(a).

Counsel for the Investigation Committee disagrees. While it is conceded by him that the two complaints share the same nexus of fact, they concern two wholly and substantively distinct bye-law 4(1)(a) "acts". One act is the conviction for the Jersey offence. The other is the breach of the direction by the removal or the attempted removal of the files and records.

24. The issues

The application gives rise to the following issues -

1. As a matter of construction of the Institute's Disciplinary Bye-laws, are the conviction complaint and the conduct complaint the same or substantially the same?

2. If 1 is answered in the affirmative, was the decision to bring the conduct complaint -

a) contrary to the principles of autrefois acquit,

b) contrary to the principles of res judicata?

3. Was the decision to bring the conduct complaint contrary to a legitimate expectation raised by the Respondent's leaflet 'What happens when a complaint is made against you'?

4. Did the bringing of the conduct complaint amount to an abuse of process?

25. It is common ground that if I find that the conviction complaint and conduct complaint were not the same or substantially the same, then the issues of autrefois acquit and res judicata (Issue 2) fall away.
26. Issue 1

Mr Lawrence Jones, who appeared for the claimant, submitted that the relevant bye-laws are clear and unequivocal. Bye-law 4(1) gives rise to liability, whereas bye-law 7 has a purely evidential function. Under 4(1) a member will be liable to disciplinary action if, inter alia, he has committed any discreditable act or default. Bye-law 7 provides for the proof of such discreditable conduct. Under 7(1), the fact of conviction is "conclusive evidence of the commission by him of such an act or default as is mentioned in bye-law 4(1)…". He argues that on the proper construction of the bye-laws, a conviction cannot of itself amount to an act or default within the meaning of 4(1)(a), and that the effect of 7(1) is that proof of a conviction is conclusive evidence of the conduct that gave rise to it. Thus in the instant case the conviction complaint and the conduct complaint are based upon precisely the same act on the part of the claimant, namely the failure to comply with the direction issued by the JFSC.

27. Mr Jones also placed reliance on the findings of fact made by the Tribunal that considered the conviction complaint (see paragraph 18 above). He argued that if the conduct complaint were to be permitted to proceed, the Investigation Committee would be seeking to establish the same facts. There is apparent force in that argument; but on close analysis it does not hold up. The Investigation Committee attempted to establish liability to disciplinary action simply by reliance upon the conviction, which would have been conclusive evidence of the commission of an act or default amounting to discreditable behaviour. But the attempt failed because there was no corresponding offence in the law of England and Wales. Thus there was no evidential basis for the findings of fact that the Tribunal purported to make. Having found that the Investigation Committee could not rely on the conviction, it was not open to the Tribunal to make findings of fact against the claimant. In those circumstances the purported findings of fact must in my judgment be disregarded.
28. The Honourable Michael Beloff QC submitted on behalf of the Institute that the conviction complaint and the conduct complaint are demonstrably different both in form and substance. As to form he points to the particulars relied on by the Investigation Committee as giving rise to liability to disciplinary action, in the conviction complaint simply the conviction, and in the conduct complaint specific acts on the part of the claimant. As to substance he argued that the difference between them is clearly demonstrated by consideration of what has to be proved in relation to each. In the case of a complaint brought in reliance on 7(1), liability to disciplinary action is established by proof of the conviction, and where necessary that there is a corresponding offence in the law of England and Wales. Whereas in a conduct complaint the Investigation Committee must establish liability to disciplinary action by proof of the conduct the subject of the complaint. Thus liability to disciplinary action under the conduct complaint would be established by proof of the direction issued by the JFSC, of its service on the claimant (or at least proof that he was aware of it) and of the acts amounting to a breach of the direction. Mr Beloff acknowledged that those are the very matters that gave rise to the conviction, but argued that they did not have to be proved to establish the claimant's liability to disciplinary action in the conviction complaint brought in reliance on 7(1).
29. He went on to argue that …"conviction provides conclusive evidence of the commission of an act or default within the meaning of Bye-Law 4(1)(a), and therefore (my emphasis), that where Bye-Law 7(1) is relied on, the conviction is the relevant "act or default". That was the argument that had found favour with the Tribunal which held that "It is plain that the first DC complaint was that (i) the Defendant was liable to disciplinary action under bye-law 4(1)(a) because (ii) he committed the act of being convicted of the Jersey offence".
30. In seeking to persuade me that the Tribunal was correct in construing the bye-laws as having that effect, Mr Beloff invited me to adopt a purposive approach, and if persuaded that they are ambiguous, to construe them in a manner consistent with common sense. But in my judgment they are clear and unambiguous. Under 7(1) a conviction is conclusive evidence of the commission of an act or default amounting to discreditable conduct within the meaning of 4(1)(a). But it does not follow that the conviction is itself the relevant act or default. To construe 7(1) as having that effect is to stretch the natural meaning of the words beyond breaking point. I do not consider that a conviction can of itself sensibly be said to be an act or default on the part of the person the subject of a disciplinary complaint. It follows that in my judgment the Disciplinary Tribunal erred in treating the conviction as the relevant act or default.
31. But that conclusion is not fatal to the argument that the complaints were neither the same nor substantially the same. Under 7(1) proof of conviction of an indictable offence is conclusive evidence of an act or default such as to give rise to liability to disciplinary action. The conviction is proof of the commission of an act or default, unspecified, but of a sufficiently serious nature to amount to an indictable offence. In other words to commit an indictable offence will be discreditable conduct such as to give rise to liability to disciplinary action under 4(1)(a). The Investigation Committee does not need to prove the conduct itself. That is not the purpose for which 7(1) is deployed. The facts that give rise to the conviction will be relevant to the action to be taken by the disciplinary committee, but they do not need to be established to give rise to liability. Thus the flaw in Mr Jones' analysis is that 7(1) is not used to prove the specific facts giving rise to the conviction, rather the fact that there have been acts or defaults, unspecified, that resulted in conviction, a fine distinction but in my judgment nevertheless real.
32. I am therefore satisfied that there was a distinction of substance between the complaint brought in reliance on 7(1) and the conduct complaint. In simple terms the one required proof of the conduct relied upon, the other did not. It follows that in my judgment the Tribunal was right in its conclusion that the complaints were not the same or substantially the same, although the reasoning by which it arrived at that conclusion, namely that the claimant was liable to disciplinary action under 4(1)(a) "because he committed the act of being convicted of the Jersey offence", was faulty.
33. I should add that in the course of argument Mr Beloff invited my attention to other professional disciplinary codes in support of his submissions as to the proper construction and application of the bye-laws. They demonstrate that it is common for liability to disciplinary action to be established by the fact of conviction as an alternative to proof of the conduct underlying the conviction. But the relevant provisions are not in the same form as the Institute's bye-laws, and I did not find them to be of any great assistance, save that they give rise to the obvious comment that it would have been open to the Institute to have made the position clear by drafting its bye-laws so as to provide that conviction of an indictable offence will of itself give rise to disciplinary action.
34. Issue 2

It follows from my conclusion as to issue 1, that issue 2 does not arise for consideration.

35. Issue 3

Mr Jones submitted that the Respondent's decision to bring the conduct complaint was contrary to a legitimate expectation raised by its own literature. He relies on the passage to be found in the explanatory leaflet "What happens when a complaint is made against you" sent to the claimant with the first complaint. I have set out the passage in question at paragraph 15 above, but it is important that it should be considered in context.

"Disciplinary Committee

Penalties available to the Disciplinary Committee are set out in the Bye-laws and include fines, withdrawal of practising rights and exclusion from membership. If the Disciplinary Committee dismisses the case, that is the end of the matter as far as the Institute is concerned."

36. The first point to be made is that to the extent that the statement is capable of giving rise to a legitimate expectation, it could only be the expectation that the claimant would not have to face the same 'case' that had been dismissed. Given my conclusion as to issue 1, he will not have to do so.
37. But secondly I do not consider that the statement is capable of giving rise to a legitimate expectation. The principles underlying the doctrine of legitimate expectation have recently been authoritatively reviewed in Niazi v Secretary of State [2008] EWCA Civ 755. Laws LJ reiterated in that case, at paras 43-46, that in order to found a substantive legitimate expectation, there must be a specific undertaking or representation directed at a particular individual or group which gives rise to a legitimate expectation of a substantive benefit. There was no such representation in this case. The statement in question was not a representation that a second disciplinary complaint would not be laid against the Claimant; it was merely a statement couched in general terms in the context of a leaflet giving general advice as to disciplinary proceedings, that in the ordinary course of events, the dismissal of a complaint will bring an end to disciplinary proceedings.
38. Issue 4

It was argued before the Tribunal that the pursuit of the conduct complaint would amount to an abuse of process, principally upon the basis that it would amount to a repeat of the first hearing. That argument no longer runs given my conclusion as to issue 1. But the claimant argues in the alternative that in any event it was an abuse of process not to have brought the conduct complaint forward with the conviction complaint at the first disciplinary hearing. He seeks to rely upon the principle in Henderson v Henderson (1843) 3 Hare 100 that the court will prevent a party from raising in subsequent proceedings matters which could and should have been litigated in earlier proceedings. The point was taken before the Tribunal which in its "RECORD OF DECISION OF A PRELIMINARY ISSUE" made express reference to the decision of the House of Lords in Johnson v Gore Wood [2002] 2 AC 1, in which the House made clear that the rule in Henderson v Henderson is based on the need to protect both the process of the court from abuse and the defendant from oppression, see Lord Bingham at page 31 and Lord Millett at page 59. But in a passage cited by the Tribunal Lord Bingham noted the limits on the rule in Henderson and Henderson:

"It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before." (page 31 D-E)

39. Thus it is not necessarily abusive merely to litigate something which could have been litigated before. Whether or not it is abusive to do so will depend upon the facts of the case, and on the balance to be drawn between the public and private interests involved.
40. As to the facts, there was an obvious explanation for the decision not to raise the matters relied upon in the conduct complaint at the first hearing. As Ms Owen explained in paragraph 49 of her witness statement, the case could be dealt with most economically and efficiently by framing the complaint by reference to Bye-law 7(1) rather than by proving the underlying conduct, which would have required a detailed investigation involving the gathering of witness statements from officials of the JFSC and police officers in Jersey. But it must also be borne in mind that the Investigation Committee was in error in proceeding by way of 7(1).
41. As to the public interest in the pursuit of the second complaint, Mr Beloff invited my attention to the decision of the Court of Appeal in Bolton v Law Society [1994] 1WLR 512 in which Sir Thomas Bingham, then Master of the Rolls, explained the purpose of disciplinary proceedings before a professional body. His observations were made in the context of the regulation of solicitors, but plainly apply with equal force to other professions, including accountancy.

"It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth." (page 518 F-H)

42. Mr Beloff also referred me to an unreported decision of the Divisional Court in In the Matter of a Solicitor, and In the Matter of the Solicitors Act 1974 CO/2504/2000, 20 November 2000, in which the court held that the public interest in maintaining the standards of the profession permitted the Law Society to bring two sets of disciplinary proceedings against a solicitor arising out of the same facts. In the first set of disciplinary proceedings, the solicitor was found guilty of conduct unbefitting a solicitor by reason of misappropriating client funds. Because of very strong mitigating circumstances, the first Tribunal merely suspended him from practice for three years. Subsequently, the solicitor was convicted of six offences of theft arising out of the same facts, and was sentenced to a term of imprisonment. Following the conviction, the Law Society brought a second complaint against him based on his criminal conviction. It was argued that the second set of proceedings was an abuse of process.
43. Lord Woolf, giving the judgment of the Court, found that the fact of the conviction was in itself an important element to which the profession had to have regard in deciding whether it was appropriate for an individual to continue in practice. In reaching the conclusion that it was not an abuse of process to bring the second set of proceedings, he relied on the wider purpose of disciplinary proceedings in maintaining and upholding the standards of the particular profession, saying at para 18 of his judgment -

"… there need to exist special circumstances before a second set of proceedings which can result in punishment arising out of the same facts are permissible if the second set of proceedings are not to amount to an abuse of process. Here, if it is necessary to identify special circumstances, it is the nature of disciplinary proceedings, in relation to a member of the legal profession, which is capable of amounting to such special circumstances."

44. The facts of the instant case are clearly to be distinguished in that the conviction complaint was dismissed, whereas in the above mentioned case the individual concerned was the subject of both a conduct complaint and conviction complaint, and was subjected to disciplinary action in relation to both. But Lord Woolf's judgment is a powerful demonstration of the public interest in the maintenance of professional standards by disciplinary action, and provides strong support for the argument that in the instant case the conduct complaint should be permitted to proceed notwithstanding that in principle it could have been brought at the same time as the conviction complaint. The public interest in allowing it to proceed is compelling.
45. Moreover I do not consider that the claimant's private interests outweigh that public interest. I recognise that he has suffered from the delay in final resolution of the disciplinary action, a delay caused by the failure on the part of the Investigation Committee to realise that there was no indictable offence in England and Wales corresponding to the offence of which he was convicted. But he will now have the opportunity to prove that, notwithstanding the findings of the Royal Court of Jersey, he was not guilty of any breach of a direction by the JFSC, or that if he was, it did not bring discredit on himself or the profession.
46. I am not therefore persuaded that the pursuit of the conduct complaint would amount to an abuse of process.
47. It follows that this application must be dismissed.