Coke Wallis, R (on the application of) v Institute of Chartered Accountants in England and Wales [2011] UKSC 2  

Coke Wallis, a chartered accountant and member of the Institute of Chartered Accountants of England and Wales (the ICAEW), was convicted on a charge of failing to comply with a direction of the Jersey Financial Services Commission. As a result of the conviction, disciplinary proceedings were bought against him by ICAEW for discreditable conduct under section (4) (1) (a) of its byelaws.

The complaint was dismissed by the disciplinary committee who were not satisfied that the conviction corresponded with any indictable offence in England and Wales.

The ICAEW then brought a second complaint under the same byelaw, relying not on the conviction itself but on the conduct that had led to the conviction. The disciplinary committee upheld the second complaint and the membership of Coke Wallis was terminated.

Coke Wallis appealed the decision on the basis of autrefois acquit, res judicata and abuse of process. The judge at first instance found the same as the disciplinary committee, that the two complaints did not allege the same thing and the Court of Appeal subsequently supported that reasoning.

The Supreme Court overturned the decision and was of the opinion that on a construction of the byelaws the second complaint was the same as the first.

It was held that, given the civil nature of the proceedings, the principle in question was res judicata and not autrefois aquit. The Supreme Court went on to consider the application of res judicata to disciplinary proceedings and stated that it could see no reason why the principle of res judicata should not apply to such proceedings.

The critical question, having found that the two complaints raised were the same, was whether the first decision was final and on the merits. If it was, it followed that the first decision determined the same issue that was raised in the second proceedings.

The Supreme Court found that the decision to dismiss the first complaint was final and on its merits, and that all the elements of cause of action estoppel, one of the two limbs of res judicata, were established on the facts.

The court considered the submission that, given the disciplinary context, a public interest exception to the strict application of the doctrine of cause of action estoppel should be created. The court found that the introduction of such a principle was a matter for parliament and not the courts.

The court accordingly allowed the appeal. As Lord Collins summarised; 'it is unfortunate that the Institute's procedural error should have had such far-reaching (and absurd) consequences but there is no principled basis for upholding the decision of the Court of Appeal.'

The case demonstrates the importance of careful drafting of disciplinary proceedings.