R (on the application of Hollis) v The Association of Chartered Certified Accountants [2014] EWHC 2572 (Admin)

Posted on
The Claimant applied for judicial review of a decision of the Disciplinary Committee of the Association of Chartered Certified Accountants ["ACCA"] to admit material into evidence in disciplinary proceedings against the Claimant, to stand as prima facie evidence of misconduct by the Claimant.

The Claimant was a licensed insolvency practitioner and a member of ACCA. The disciplinary charges faced by the Claimant were as a result of Henderson J's judgment in Mourant & Co. Trustees Ltd v Sixty UK Limited (in Administration) and Peter Hollis and Nicholas O'Reilly (in their capacity as Joint Administrators and Supervisors of Sixty UK Ltd) [2010] EWHC 1890 (Ch); [2010] BCC 882.

The Claimant had been appointed as one of the joint administrators for Sixty UK Limited ["Sixty"]. As one of the joint administrators, the Claimant had been responsible for promoting a company voluntary arrangement ["CVA"] to Sixty. Henderson J, in his judgment, was very critical of the conduct of the administrators of Sixty in promoting the CVA. As a result of this judgment, the ACCA investigated the case and brought seven charges of professional conduct against the Claimant, the most serious being engaging in dishonest behaviour.

During a case management hearing, the Disciplinary Committee admitted parts of Henderson J's judgment as prima facie evidence in the proceedings, on the basis that these were to be considered findings of fact under Regulation 11(2) of the Chartered Certified Accountants Complaints Regulations 2014. The Claimant challenged this decision.

The application for judicial review was dismissed.

It was held that the meaning of 'finding of fact' in Regulation 11(2)(c) and Regulation 11(2)(d) were the same. It was noted that the Committee seemed to have treated the terms of Byelaw 8 of the Regulations as controlling its meaning in Regulation 11(2)(c) in order to give it a different meaning from Regulation 11(2)(d). It was held that the phrase used in Regulation 11(2)(c) had an unchanging meaning and thus this meaning would be the same in Regulation 11(2)(d).

However, it was further held that the Claimant's arguments as to the conditions required for a 'finding of fact' were incorrect and that the meaning used should be the ordinary one as considered in Constantinides v Law Society  [2006] EWHC 725 (Admin); (2006) 156 N.L.J. 680. It was held that the admission of all forms of evidence in disciplinary proceedings was considered by the Regulations and included findings of fact made in legal proceedings. It was noted that justice and fairness are required when admitting evidence and so a broad discretion is conferred on the Committee.