Supreme Court decision signifies importance of res judicata principles in disciplinary matters

R (on the application of Coke-Wallis) (Appellant) v Institute of Chartered Accountants in England and Wales (Respondent) [2011] UKSC 1, 19/01/2011

This appeal is concerned with the relevance and application of the principles of autrefois acquit, res judicata and abuse of process in the context of successive proceedings before a regulator or disciplinary tribunal.
 
The Respondent's Disciplinary Committee dismissed the 'first complaint' in 2005. The Respondent's Investigation Committee subsequently preferred a 'second complaint' in 2006, but the substance of the underlying conduct was precisely the same in both complaints. A differently constituted Disciplinary Committee found the 'second complaint' proved and ordered that the Appellant be excluded from membership of the Institute.
 
During the course of the proceedings relating to the 'second complaint', the Appellant sought to have the 'second complaint' summarily dismissed on the grounds of autrefois acquit or res judicata or stayed on the grounds that, having regard to the dismissal of the 'first complaint', the 'second complaint' was an abuse of process. This argument was considered as a preliminary issue in the proceedings but the Disciplinary Committee dismissed the application. The Appellant subsequently issued an application for judicial review but this was also dismissed. Permission was then granted to appeal to the Court of Appeal, but the Court of Appeal also dismissed the appeal. The Appellant lodged a petition for permission to appeal to the Supreme Court, but before the petition was determined, the Disciplinary Committee had already found the 'second complaint' proved.
 
Having determined that the 'second complaint' was precisely the same as the first, the question for the Supreme Court was what was the legal effect? The Supreme Court concluded that the Appellant's appeal should succeed on both grounds of autrefois acquit and res judicata because once the first complaint had been dismissed, that decision was final, and so it was contrary to principles of res judicata to allow the Respondent to proceed with the second complaint. The Supreme Court did not express an opinion on whether this also amounted an abuse of process. 
 
In summary therefore, where a regulator seeks to repackage old and unsuccessful allegations/charges, for example, by redrafting the charges with perhaps a different emphasis, but where the allegations are still precisely or essentially the same, there are good grounds to robustly challenge the second prosecution. View the full judgment

David Bennett
On behalf of Hailsham Chambers Regulatory & Disciplinary Group