“Fair play in action”: Court of Appeal considers the rules of natural justice

5 June 2013 by

PAjusticeHill, R(on the application of) v Institute of Chartered Accountants of England and Wales  [2013] EWCA Civ 555 – read judgment

The concept of fairness embodied in the different strands of natural justice have to be seen as flexible and as not requiring the courts to lay down over rigid rules, so that where it had been agreed that a tribunal member could be temporarily absent for part of the hearing, there had been no breach of the rules of natural justice.

The appellant chartered accountant had been found guilty of unprofessional conduct by the respondent Institute.  He appealed against the Administrative Court’s refusal of his application for judicial review of the Institute’s decision ([2012] EWHC 1731 (QB)).  He maintained that there had been a breach of natural justice in the proceedings because one of the tribunal members had missed a large part of the hearing, and that all proceedings of that tribunal after one of its members left were therefore a nullity, including the decision of the tribunal that the charge was proved. Mr Hill contended in particular that  the breach of natural justice that “he who decides must hear” had been so grave that the tribunal had acted without jurisdiction, and acting without jurisdiction could not be consented to, and that any consent had to be from the appellant personally.

The appeal was dismissed.

Reasoning behind the judgment

Under the bye-laws governing the proceedings of the Institute, express power is given to a tribunal to carry on as a tribunal of a lesser number if one member is “unable to continue… to attend”. This power is given so that, if a member cannot continue at all, the tribunal itself can continue rather than reconstitute itself and start all over again. Longmore LJ pointed out that it would be “surprising” if there were no power at all for a disciplinary tribunal (with its relatively informal procedures) to permit one member to depart and return if all parties agreed. That would introduce a degree of rigidity into the proceedings which would be undesirable.

When one is dealing with bye-laws and regulations of professional disciplinary bodies one cannot expect every contingency to be foreseen and provided for. The right question to ask of any procedure adopted should therefore be not whether it is permitted but whether it is prohibited (Virdi v Law Society [2010] EWCA Civ 100).  In the instant case, the procedure adopted was not prohibited.

Although reading a transcript is normally no substitute for hearing evidence from a live witness given orally,  strict adherence to the rules of natural justice should not create insuperable obstacles for professional tribunals in this area. It was not a breach of the rules of natural justice if a defendant or his duly authorised advocate has agreed that a member of a tribunal can be absent for a part of the hearing and that he has read a transcript of the evidence given in his absence and, having read it, return, has continued the hearing and contributed to the decision.

Although it is often said that a decision reached in breach of the rules of natural justice is a nullity, I cannot accept that it would be a decision reached without “jurisdiction” in any relevant sense.

It may well be that the distinction between saying that there was no breach of the rules of natural justice by virtue of the parties’ agreement and saying that there was a breach of the rules of natural justice, but that it was waived, was a “mere matter of words”. (para 31).  As Beatson LJ observed in his concurring judgment:

Where a person is offered the opportunity to be heard by a procedure which is fair but declines the offer, it is a distortion of language to regard the making of the decision without hearing him as a breach of natural justice which has been waived.

The most it could be was a breach of the tribunal’s adjudicative jurisdiction, and there was no reason why such a breach could not be agreed to or waived. Further, if there was an agreement to the procedure adopted, it was preferable to say that there had been no breach of natural justice at all.

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