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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Coke- Wallis, R (on the application of) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1 (19 January 2011) URL: https://www.bailii.org/uk/cases/UKSC/2011/1.html Cite as: [2011] WLR (D) 3, [2011] ICR 224, [2011] UKSC 1, [2011] 2 AC 146, [2011] 2 WLR 103, [2012] WLR(D) 24, [2011] 2 All ER 1 |
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Hilary Term
[2011] UKSC 1
On appeal from: [2009] EWCA Civ 730
JUDGMENT
R (on the application of Coke-Wallis) (Appellant) v Institute of Chartered Accountants in England and Wales (Respondent)
before
Lord Phillips, President
Lord Rodger
Lord Collins
Lord Clarke
Lord Dyson
JUDGMENT GIVEN ON
19 January 2011
Heard on 8 and 9 November 2010
Appellant Lawrence Jones Joseph Curl (Instructed by Marriott Harrison) |
Respondent Michael Beloff QC Catherine Callaghan (Instructed by Bates Wells & Braithwaite LLP) |
LORD CLARKE (with whom Lord Phillips and Lord Rodger agree)
Introduction
The background facts
The issues
The bye-laws
"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;
…
(e) if any of the circumstances set out in paragraph (2) exist with respect to him."
Paragraph (2) sets out a number of specific circumstances. They include, for example, failure to satisfy a judgment debt. They do not, however, include conviction of a criminal offence.
"(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.
…
(3) A finding of fact
…
(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."
Complaints 1 and 2 compared
"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."
The complaint then set out a summary of the complaint, which referred to the Jersey conviction and set out the underlying facts which led to it in some detail. The summary concluded by saying that the appellant had been convicted of failing to comply with the direction and that the conviction was conclusive evidence for the purposes of bye-law 7(1) of the commission by him of such an act as is mentioned in bye-law 4(1)(a).
"… 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".
The complaint continues:
"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."
There follows a summary of the complaint.
Autrefois convict
"No one would dispute that the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a statutory code by which any profession is governed."
The Judicial Committee plainly thought that such principles should be applied in a case of this kind.
Res judicata
"The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first species, which I will call 'cause of action estoppel,' is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, ie judgment was given upon it, it is said to be merged in the judgment, or, for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim 'Nemo debet bis vexari pro una et eadem causa.' In this application of the maxim 'causa' bears its literal Latin meaning."
Res judicata, or estoppel per rem judicatam, is thus a generic term of which cause of action estoppel and issue estoppel are two species. The distinction between the two species is of potential importance because the former creates an absolute bar, whereas the latter does not: see para 47 below.
"The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro una et eadem causa.' These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions."
The House of Lords thus stressed the importance of the res judicata principle in terms which in my opinion apply equally to cause of action estoppel and to issue estoppel.
"They are, by reason of the committee's decision, res judicatae, as much as if instead of the committee it had been the Supreme Court unappealed from, that has so held. That rests on the well known rule that a competent court or other tribunal has jurisdiction to give a wrong judgment, and if there is no appeal in the strict sense, then its decision, whether right or wrong, must stand, and cannot be questioned in any subsequent proceedings elsewhere."
"Every domestic tribunal, including any arbitrator, or other person or body of persons invested with authority to hear and determine a dispute by consent of the parties, court order, or statute, is a 'judicial tribunal' for present purposes, and its awards and decisions conclusive unless set aside."
In addition to Meyers v Casey and other cases, the editors cite Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 per Diplock LJ at p 643C, where he said that, the parties having chosen an arbitration tribunal to determine the issues, they are bound by an interim arbitration award on specific issues under the principle of issue estoppel. He added at p 643E that the power of an arbitrator to make an interim award was first conferred by the Arbitration Act 1934 and that, before then, the only kind of award he could make was a final award which determined all the issues between the parties. It is implicit in Diplock LJ's judgment that in such a case the principles of cause of action estoppel would apply.
"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 note 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 and Markets Act 2000. We are not satisfied that any of the offences set out in these sections corresponds to the offence of which he was convicted in Jersey. We therefore dismiss the complaint."
"The question will always be open whether the second action is for the same breach or breaches as the first, in which case the ordinary principles governing the plea of res judicata will prevail. In the present case, in my opinion, the plaintiffs are suing on precisely the same breaches as those in the first action, and for the same damages, though on different evidence. … I am satisfied that the first action raised the issue of all the contractors' breaches, and treated, and meant to treat, the engineers' certificate as conclusive proof of both the breaches and the losses arising therefrom. … The result is that the plaintiffs, who appear to have had a good cause of action for a considerable sum of money, fail to obtain it, and on what may appear to be technical grounds. Reluctant, however, as a judge may be to fail to give effect to substantial merits, he has to keep in mind principles established for the protection of litigants from oppressive proceedings. There are solid merits behind the maxim nemo bis vexari debet pro eadem causa."
That maxim states what Lord Bridge described in Thrasyvoulou as a fundamental principle in the law. For the reasons I have given above, it is a fundamental principle which applies to successive disciplinary proceedings.
Abuse of process
Conclusion
LORD COLLINS
LORD DYSON