The claimant, H, was a chartered accountant and respondent in disciplinary proceedings brought by his professional body the Institute of Chartered Accountants in England and Wales, (“the Institute”).
The claimant, H, was a chartered accountant and respondent in disciplinary proceedings brought by his professional body the Institute of Chartered Accountants in England and Wales, (“the Institute”). The charge was that he had committed an act or default likely to bring discredit on himself, the Institute or the profession of accountancy.
His case was considered by a disciplinary tribunal convened by the Institute, consisting of two professional members and one lay member. At that hearing, which spanned six days across four sessions, H was represented by an experienced solicitor.
On day 4 of the hearing, the lay member had an appointment which meant that he could sit no later than 5pm. At the beginning of the day the Chair said that the hearing would have to conclude for the day at 5pm. At 3pm, when H was still giving evidence in chief, the Chair explained that the reason for this was that the lay member needed to leave at 5pm. H's solicitor, after asking whether a transcript would be available, did not object to the hearing continuing.
It was, however, contended by H that, despite his solicitor's agreement to the way matters proceeded, there was in fact no power on the part of the disciplinary tribunal to permit one of its members to depart during the hearing and then take part in the remainder of the hearing. H also said that there was a breach of the rule of natural justice that “he who decides must hear” and that that breach was not waived. He argued that all proceedings after 5pm on day 4 of the hearing were therefore a nullity including the decision of the tribunal that the charge was proved.
It was held by the High Court that there was power for the tribunal to allow the member to leave and later return after he had read a transcript of the part of the hearing which he did not attend. The High Court considered that there had been a breach of the rules of natural justice, but that this had been waived by H's solicitor's agreement to the procedure which was voluntary, informed and unequivocal.
The Court of Appeal unanimously dismissed the appeal. In giving the leading judgment, Longmore LJ, whilst noting that there would normally be a breach of natural justice where a Tribunal member absented himself without consent, and then later took part in decision making (which could not be cured by reading a transcript, unless the evidence was relatively uncontroversial), held that natural justice would not be breached if the respondent agreed to this, voluntarily, unequivocally, and on an informed basis.
In the circumstances of the case, there had been no breach of natural justice, because there had been an agreement by H to the proposed course of action that was informed, voluntary, and unequivocal. It was considered by all three judges that this was a better analysis than that there was such a breach but that it was waived.
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His case was considered by a disciplinary tribunal convened by the Institute, consisting of two professional members and one lay member. At that hearing, which spanned six days across four sessions, H was represented by an experienced solicitor.
On day 4 of the hearing, the lay member had an appointment which meant that he could sit no later than 5pm. At the beginning of the day the Chair said that the hearing would have to conclude for the day at 5pm. At 3pm, when H was still giving evidence in chief, the Chair explained that the reason for this was that the lay member needed to leave at 5pm. H's solicitor, after asking whether a transcript would be available, did not object to the hearing continuing.
It was, however, contended by H that, despite his solicitor's agreement to the way matters proceeded, there was in fact no power on the part of the disciplinary tribunal to permit one of its members to depart during the hearing and then take part in the remainder of the hearing. H also said that there was a breach of the rule of natural justice that “he who decides must hear” and that that breach was not waived. He argued that all proceedings after 5pm on day 4 of the hearing were therefore a nullity including the decision of the tribunal that the charge was proved.
It was held by the High Court that there was power for the tribunal to allow the member to leave and later return after he had read a transcript of the part of the hearing which he did not attend. The High Court considered that there had been a breach of the rules of natural justice, but that this had been waived by H's solicitor's agreement to the procedure which was voluntary, informed and unequivocal.
The Court of Appeal unanimously dismissed the appeal. In giving the leading judgment, Longmore LJ, whilst noting that there would normally be a breach of natural justice where a Tribunal member absented himself without consent, and then later took part in decision making (which could not be cured by reading a transcript, unless the evidence was relatively uncontroversial), held that natural justice would not be breached if the respondent agreed to this, voluntarily, unequivocally, and on an informed basis.
In the circumstances of the case, there had been no breach of natural justice, because there had been an agreement by H to the proposed course of action that was informed, voluntary, and unequivocal. It was considered by all three judges that this was a better analysis than that there was such a breach but that it was waived.
Read the case here.