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“The Interpretation Adopted By The Association Leads To Results Which Are Both Absurd And Harsh”

The above are the words coming from Lady Justin Asplin in a decision in which the ACCA appeal was dismissed by the Court of Appeal. The decision was unanimous.

Overview ACCA Appeal Dismissed By The Court Of Appeal

The case of Association of Chartered Certified Accountants v Awodola [2021] EWCA Civ 1635 was heard by the Court of Appeal on 21 October 2021.

The ACCA sought to appeal a decision granting a claim for judicial review to a member, Mr Makanju Awodola (“MA”), who had been the subject of disciplinary proceedings.

The ACCA amended its regulations concerning appeals against orders made by the Disciplinary Committee (“DC”) of the ACCA.

On 19 October 2018 the DC issued a decision, finding MA had acted dishonestly and ordered his exclusion.

Appeal To The Appeal Committee

MA sought leave to appeal to the Appeal Committee (“AC”) of the ACCA against all findings and sanction imposed.

The Chairman dismissed MA’s application for permission to appeal on 30 November 2018 but did issue notice that a request could be made for reconsideration. MA did that on 2 January 2019, seeking an oral hearing (“the Reconsideration Request”).

However, the day before the Reconsideration Request was issued the ACCA changed its AC regulations which had three effects:

  • the time within which a request for reconsideration of an application for permission to appeal had to be made was reduced from 28 days after the initial refusal on paper, to 21 days
  • the reconsideration of the application for permission to appeal was to be undertaken by the Chairman rather than by the full Appeal Committee
  • the applicant was not able to request an oral hearing to reconsider the application

A new Chairman looked at MA’s request and also refused leave whilst noting that MA objected to starting under one set or rules and finishing under another:

reconsideration is not formally part of the appeal process; had [Mr. Awodola] served the [request for reconsideration] before 1 January 2019, it would have been dealt with under the [Appeal Regulations 2018]; … the [request for reconsideration] has been submitted after the Appeal Regulations 2018 have ceased to have effect and can only be considered under the [Appeal Regulations 2019].

Judicial Review Proceedings

Permission For Judicial Review

MA applied for Judicial Review on 9 May 2019 in respect of the Chairman’s decision on 14 February 2019. He was granted permission to do exactly that by Michael Fordham QC on the basis as follows:

ACCA erred by not allowing the appeal committee to hear [the application for permission to] appeal as stipulated in their appeal procedure but instead applying new rules to the existing appeal.

Judgment At Judicial Review

The judge appear to note some unfairness in the approach of the ACCA, which sought to refer to the new rules:

While it is understandable that ACCA wished to streamline its processes, the interpretation given by ACCA that the renewed application for permission to appeal was governed by the 2019 Rulebook has had the impact that the effect of removing a right that Mr. Awodola already enjoyed and is consequently procedurally unfair…I will quash the determination of ACCA dated 14 February 2019 that Mr Awodola’s application for a renewed application for permission to appeal is refused by the single Chairman and order that his renewed application for permission to appeal the determination of the Disciplinary Committee made on 19 October 2018 is considered by the Appeal Committee in accordance with the provisions of regulations 6(3)(g)(ii) and 6(4) of the 2018 Rulebook.

Court Of Appeal Judgment On ACCA’s Position

Lord Justice Snowden

The leading decision in the Court of Appeal was from Lord Justice Snowden who said:

…the first point to note is that given the status of the Association, the operation of, and sanctions which can be imposed under, the Association’s disciplinary regime are capable of having the most profound impact upon the professional reputation and livelihood of its members. Accordingly, it should be obvious that the disciplinary regime must be operated with scrupulous fairness and the effect of changes to the regime upon those subjected to it should be carefully scrutinised.
Secondly, it should be noted that the relevant changes at issue in this case concern a right to seek permission to appeal that was conferred by Regulation 3(1) of the Appeal Regulations (which was unchanged on 1 January 2019). Appeal Regulation 3(1) provides,
“Any relevant person who is the subject of a finding or order made by the Disciplinary Committee … may apply for permission to appeal within 21 days after service of the written statement of the reasons for the decision of such Committee …”
It is self-evident that such right to file an application for permission to appeal against a disciplinary order is an important right of significant value to a member of the Association.

Thirdly, either from the date of the disciplinary order itself when time starts to run under Appeal Regulation 3(1), or certainly once the application notice seeking permission to appeal has been filed, the identity of the person or persons who will make the decision on the grant of permission is a matter of considerable importance to the appellant.

Fourthly, although a system under which an appellant is not entitled to request an oral hearing may be entirely fair, there may be significant practical differences for an appellant between reconsideration at an oral hearing and a determination of his application on the papers alone. For example, written submissions for determination on the papers alone may need to be prepared in a very different way to a document which is designed as a summary to be elaborated upon at an oral hearing where particular points can be further articulated, clarified and emphasised. Accordingly, where (as here) the request for reconsideration needed to be supported by a reasoned document, to remove the right to request an oral hearing one day before the end of the 28 day period for preparation of such document carried a real risk of prejudice to an appellant.

Albeit by a different route, I have reached the same result as the Judge below – namely that the pre-existing Regulations 6(3)(g)(ii) and 6(4) of the Appeal Regulations 2018 continued to apply to the determination of Mr. Awoloda’s application for permission to appeal, rather than the equivalent provisions of the Appeal Regulations 2019. In my judgment, therefore, the Judge was right to quash the decision of the Chairman given on 14 February 2019, and the appeal must be dismissed.

I cannot, however, leave the case without dealing briefly with two related points.
First, and as I have indicated above, Mr. Ozin submitted that the result reached in this case might inhibit the Association from implementing changes to its disciplinary regime in future. I do not agree. The answer is simple: if the Association wishes to alter rights enjoyed by its members who are the subject of extant disciplinary proceedings (including appeals), it should take care to consider the potential consequences of the proposed changes on such members. The Association can (and should) then make it clear what consequences it intends for such members, by enacting specific transitional provisions and giving them appropriate publicity.

That leads to the second point. In the instant case, it is unclear what, if any, consultation process, led to the changes on 1 January 2019. However, the changes were not publicised within or without the Association until they appeared on its website, and nor were the hearing officers dealing with existing cases made aware of them in advance. That explains why the letter sent to Mr. Awodola on 30 November 2018 did not mention, or even hint, that a change in the relevant Appeal Regulations was afoot. Nor did the letter warn Mr. Awodola that if he did take until the end of the stated period to file his request for reconsideration and supporting grounds, this would be dealt with in an entirely different way from that stated in the Association’s letter.

As it is, however, the conclusions on interpretation that I have reached above mean that it is not necessary to consider whether this approach by the Association, which led to its hearing officer sending the letter of 30 November 2018, gave rise to any other discrete rights or legitimate expectations, breach of which Mr. Awodola could have complained as a matter of public law, independently of the position under the Association’s Charter, bye-laws and regulations.

Lady Justice Asplin

Then Lady Justice Asplin stepped in and said:

One hardly needs authority for the proposition that a construction which results in manifest unfairness of any kind, is unlikely to be the correct one, unless there are very clear words which point in that direction. It seems to me that the reasonable bystander would start from such a premise. This is likely to be all the more so given the relevant factual matrix. The Association is a regulatory body and the Appeal Regulations are concerned specifically with appeals from disciplinary orders and a disciplinary order may have extremely serious consequences for the member or fellow.

As Snowden LJ has pointed out, the interpretation adopted by the Association leads to results which are both absurd and harsh. That is a very clear indicator that that interpretation cannot be correct. Furthermore, it cannot be justified on the basis of certainty and efficiency. It seems to me, therefore, that if one applies the normal principles of construction, one arrives at the conclusion that the changes to Appeal Regulations 2018 by the shortening of the time to make a request for reconsideration of an application for permission to appeal from a disciplinary order, the change in the person or body by whom or by which such an application is considered and the removal of the right to an oral hearing, contained in the Appeal Regulations 2019, should not be construed to have had retrospective effect.

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