R (on the application of Hill) v Institute of Chartered Accountants of England & Wales (2012) EWHC 1731 (QB)
The High Court has held that although it was a breach of the rules of natural justice to proceed with a disciplinary hearing while a tribunal member was temporarily absent, the appellant had waived that breach and accordingly the decision of the tribunal was upheld.
Mr Hill was a chartered accountant and a member of the Institute of Chartered Accountants in England & Wales (the Institute). Following a six-day hearing a tribunal of the Disciplinary Committee of the Institute (the tribunal) found 14 allegations against Mr Hill proved and ordered that he (i) be excluded from the Institute's membership, (ii) pay a fine of £25,000 and (iii) pay costs of £32,000. An appeal committee later affirmed the tribunal's order. Mr Hill sought to review these decisions judicially for several reasons, including the fact that a tribunal member had been temporarily absent during the hearing.
On day four of the tribunal hearing, one of the panel members, Mr Mander, left at 5.00pm with the agreement of both sides. Mr Mander left shortly after cross-examination of Mr Hill had begun, and was absent for most of that cross-examination, which concluded at 6.35pm that day. When the hearing resumed some five weeks later, Mr Mander was provided with a transcript of the cross-examination.
The court considered the issues under three heads, namely:
- Did the tribunal have power under its rules to proceed with the hearing in the absence of Mr Mander?
- Was it a breach of the rules of natural justice/fairness to proceed in the absence of Mr Mander, in the circumstances of this case?
- Was there an effective waiver of the breach?
In respect of the first question, the court found that the tribunal had validly exercised its power, under Regulation 28 of its procedural rules, to regulate its own procedure subject to its Regulations and the requirements of fairness.
In considering the second question, the court considered that the requirements of fairness varied according to circumstances and accepted that the absence of a panel member would not render every hearing unfair. In the court's view, it was relevant to consider the duration of the absence, the part of the proceedings which the panel member did not attend, and the steps taken to mitigate the disadvantage of the member's absence. The court noted that although Mr Mander had only been absent for around an hour and thirty five minutes, he had missed a 'crucial part' of Mr Hill's evidence, namely almost the entirety of Mr Hill's cross-examination. The court stated that in its view Mr Hill's 'credibility was in issue, as well as his honesty and integrity. In such circumstances, the tribunal members ought to have assessed Mr Hill's demeanour while he gave his oral evidence, and as everyone who has attended a trial knows, cross examination is the most revealing part of a witness' examination'.
The court considered that it had not been strictly necessary for the tribunal to proceed in Mr Mander's absence and that it had only elected to do so because it would have been convenient if Mr Hill's evidence was concluded that day. It also considered that on the authorities, the consent of the parties to a potential breach of the rules of natural justice or fairness is a factor to take into account whether or not there has been a breach, but it is not conclusive.
The court concluded that, as a result of Mr Mander's absence, the tribunal had failed, without justification, to conduct the proceedings in accordance with the rules of natural justice and fairness.
However, the court found that Mr Hill had waived that breach. Having reviewed the manuscript of the hearing, the court found that it was 'beyond argument' that Mr Hill (through his legal adviser) had agreed with the tribunal's proposal to proceed in Mr Mander's absence. The court took account of the fact that Mr Hill and his legal adviser had ample time to consider the proposal on the day, and failed to raise any concerns about Mr Mander's absence on subsequent hearing days. Reviewing the authorities, the court found that it was well established in English law that procedural irregularities could be waived by the parties, and that procedural rights protected by Article 6 of the European Convention on Human Rights were capable of being waived, provided that waiver (i) did not run counter to any important public interest, (ii) is established in an unequivocal manner, and (iii) accords with minimum guarantees commensurate to the right's importance.
Accordingly the appeal was dismissed.