Hollis, R (on the application of) v The Association of Chartered Certified Accountants [2014] EWHC 2572 (Admin)

Case No CO/1078/2014[2014] EWHC 2572 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/07/2014
Before
THE HONOURABLE MR JUSTICE SALES
Between
The Queen on the application of Peter Roy HollisClaimantThe Association of Chartered Certified AccountantsDefendant
Stephen Davies QC & Ross Fentem (instructed by Edwin Coe LLP) for ClaimantNigel Giffin QC & Christopher Knight (instructed by Herbert Smith Freehills LLP) for DefendantHearing Hearing date: 15/7/14
Judgment

Introduction

[1]This is an application for judicial review of a decision of the Disciplinary Committee of the Association of Chartered Certified Accountants (“ACCA”) at a case management hearing in relation to disciplinary proceedings against the claimant, Mr Hollis, to admit material into evidence in those proceedings to stand as prima facie evidence of misconduct by Mr Hollis.[2]Mr Hollis is a licensed insolvency practitioner and member of ACCA. He is subject to standards of professional discipline and disciplinary processes administered by ACCA.[3]Mr Hollis is facing disciplinary charges arising from a judgment of Henderson J, sitting in the Companies Court in July 2010, in which Henderson J revoked a company voluntary arrangement (“CVA”) proposed by the administrators of a company, Sixty UK Ltd (“Sixty”): Mourant & Co. Trustees Ltd v Sixty UK Limited (in Administration) and Peter Hollis and Nicholas O’Reilly (in their capacity as Joint Administrators and Supervisors of Sixty UK Ltd) [2010] EWHC 1890 (Ch); [2010] BCC 882. Mr Hollis is the administrator of Sixty who was principally responsible for promoting the CVA. In his judgment, Henderson J was very critical of the conduct of the administrators of Sixty in promoting the CVA.[4]The present application for judicial review relates to the decision of the Disciplinary Committee of ACCA issued on 13 December 2013 (after a hearing on 9 December 2013) to admit parts of the judgment of Henderson J in Mourant into evidence under regulation 11(2)(d) of the Chartered Certified Accountants Complaints and Disciplinary Regulations 2014 (“the Regulations”), to stand “as prima facie evidence in the proceedings” against Mr Hollis. The Disciplinary Committee decided to admit these parts of the judgment on the basis that each of them comprised a “finding of fact” by the Judge, within the meaning of that phrase in regulation 11(2)(d).[5]The hearing of the disciplinary charges against Mr Hollis was originally scheduled to commence in February 2014. It has been postponed until September 2014 to allow for the resolution of an internal appeal by Mr Hollis against the Disciplinary Committee’s decision, which has now been dismissed.[6]On the application for judicial review, the primary case for Mr Hollis, presented by Mr Davies QC, is based on a short submission of law. Mr Davies contends that the Disciplinary Committee misconstrued regulation 11(2)(d). The relevant parts of the judgment in Mourant did not qualify as relevant “findings of fact” for the purposes of that regulation. Accordingly, they could not be treated as admissible as prima facie evidence in the proceedings. Mr Davies accepts that the Disciplinary Committee can read and have regard to relevant passages in the judgment in Mourant, but only under its general powers under regulation 11(2)(a) and without attaching prima facie evidential weight to them. In the alternative, Mr Davies submits that the Disciplinary Committee had a discretion under regulation 11(2)(d) not to admit the parts of Henderson J’s judgment in question, on grounds of fairness to Mr Hollis, and that it failed properly to consider the exercise of that discretion.

Factual Background

[7]The detail of the circumstances in which the CVA was proposed by the administrators of Sixty in 2009 is set out in the judgment in Mourant. The following summary is sufficient for present purposes.[8]Sixty was the tenant of two retail units at the Met Quarter shopping centre in Liverpool. The Mourant company claimants in the proceedings before Henderson J were the landlords of those units. Sixty’s obligations under the tenancy agreements were guaranteed by Sixty’s parent company, based in Italy (“Sixty SpA”).[9]Sixty got into financial difficulties and the administrators were appointed. On 17 March 2009 they issued proposals for a CVA. Those proposals were approved at a meeting of Sixty’s creditors on 2 April 2009, with the Mourant companies voting against the proposals. The administrators were appointed as the supervisors under the CVA.[10]The CVA was structured so as to seek to take advantage of the decision in Prudential Assurance Co. Ltd v PRG Powerhouse Ltd [2007] EWHC 1002 (Ch); [2007] BCC 500, which established that in certain circumstances a CVA could be structured in a manner which would deprive a creditor landlord of the benefit of a third party guarantee of the tenant debtor company. The CVA in relation to Sixty was structured so as to have the effect of releasing Sixty SpA from all liability under the guarantee in favour of the Mourant companies upon payment of £300,000. The Mourant companies objected that this was considerably less than the true commercial value of the guarantee and that the CVA was unfairly prejudicial to their interests as creditors of Sixty.[11]The Mourant companies applied to the High Court under section 6(1) of the Insolvency Act 1986 to seek an order to revoke the CVA and thus preserve the value for them of the guarantee. They were successful in their application, for the reasons set out in Henderson J’s judgment.[12]In the event, the administrators were not represented at the hearing of the application, by reason, Mr Hollis says, of legal advice he received. This meant that Henderson J did not have the benefit of evidence and argument from Mr Hollis.[13]In his judgment, Henderson J emphasised the importance of the duties of administrators to be neutral as between different groups of creditors when putting forward proposals for a CVA: para. [79], referring to SISU Capital Fund Ltd v Tucker [2005] EWHC 2170 (Ch); [2006] BCC 463 at paras. [116] and [118]. Henderson J’s view was that Sixty’s administrators should have known these principles, but that they chose to disregard them and allowed Sixty SpA to dictate the offer to be made to the Mourant companies (limiting the sum to be paid to £300,000, much less than the true commercial value of the guarantee), secure in the knowledge that the CVA would be passed by the large majority of unsecured creditors who would be paid in full: para. [79]. Henderson J was very critical of the conduct of the administrators, as appeared in many passages in his judgment.[14]Perhaps his most devastating criticism is at para. [58] of the judgment, where he said this:
“58. Correspondence then continued with Italy, and in the course of the next few days agreement was reached with Sixty SpA on the final form of the proposal. Meanwhile, Mr Hollis informed Davies Arnold Cooper [the solicitors for the Mourant companies] that the "wrong Appendix C" [the appendix to the CVA proposals setting out the assumptions for valuation of the guarantee given by Sixty SpA for the purposes of the CVA] had been included in the draft proposal sent to them. On 10 March, they asked for the right version of the appendix to be supplied. In reply, Mr Hollis said this: ” "The amendments to the CVA are likely to be slight. Your clients' claim has been uplifted to £300k, to match [Appendix C]. This too has been amended in the light of advice on current market conditions/options. I attach a copy (still draft, of course at this stage)." The attached revision of Appendix C was in the reduced form subsequently included in the final proposal. There is no trace in the papers disclosed by the administrators of the "advice on current market conditions/options" which was said by Mr Hollis to justify the amendment. I am driven to conclude that this was a deliberate misrepresentation of the true position, and that Mr Hollis was unwilling to disclose the truth, which was that the level of the payment offered to the landlords was being dictated by Sixty SpA and bore no relation whatever to the only advice which had been obtained on the subject, namely Mr Cartwright's report. The inclusion of the original Appendix C in the draft proposal sent to Davies Arnold Cooper must have been a mistake, and the administrators now had to invent a justification for the reduced version which eliminated (for each unit) the reverse premium of £275,000 payable to the new tenant and the yield up costs of £40,000.”
I have supplied italics, to indicate one of the passages in the judgment admitted into evidence by the Disciplinary Committee under regulation 11(2)(d). "The amendments to the CVA are likely to be slight. Your clients' claim has been uplifted to £300k, to match [Appendix C]. This too has been amended in the light of advice on current market conditions/options. I attach a copy (still draft, of course at this stage)."[15]There is an extensive range of other passages which the Disciplinary Committee decided to admit into evidence under the same regulation, including the Judge’s conclusion that there was every reason to regard Sixty SpA’s covenant as a strong one at the date of the CVA ([73]); his findings that in a liquidation the Mourant companies would still have had the full benefit of the guarantees given by Sixty SpA ([75]) and that it would not have been difficult to enforce them in Italy ([76]); his ruling that it was unreasonable and unfair in principle to require the Mourant companies to give up their guarantees ([77]); his observation that the principles of neutrality to be observed by office-holders should have been well known to the administrators, but that they chose to ignore them ([79]); his analysis of the facts in relation to the commercial position at the time of the CVA ([80]-[85]); his conclusion that the CVA was fatally flawed and should be set aside ([86]); and the following passages in italics in para. [78]:
“Even if my conclusion on the above point is wrong, the applicants' challenge to the value of £300,000 assigned to their claim is in my judgment unanswerable. Both the expert evidence of Mr Wright, and the advice which Sixty itself obtained from Mr Cartwright, show that a figure in the region of £1 million was the least that could fairly be regarded as appropriate. The position is made worse by the fact that £300,000 was not, in fact, a genuine estimate of the value of the applicants' claim, but was instead dictated to the administrators by Sixty SpA, the company which stood to benefit from the release of the guarantees. Mr Arden [for the Mourant companies] submitted, and I agree, that the picture disclosed by the documentary evidence is a disquieting one. The administrators appear to have abdicated their responsibilities as office holders and put forward a proposal for the CVA which they must have known could not be objectively justified, and which was based on a cynical calculation by Sixty SpA of what it hoped it could get away with. The administrators then compounded their dereliction of duty by falsely representing in the proposal that the figure of £300,000 was based on advice they had received. The shameless substitution of the reduced version of Appendix C for the original version used by Mr Cartwright speaks for itself, and on the material before me is impossible to justify. Furthermore, if there were a justification, one would expect the administrators to have explained what it was in evidence, and to have appeared at the trial to ensure that the court had a full understanding of all the relevant circumstances.”
[16]Other passages from the judgment were admitted into evidence by the Disciplinary Committee by its ruling, but only under regulation 11(2)(a), not under regulation 11(2)(d). Mr Davies makes no objection to this. Indeed, his submission is that the passages which the Disciplinary Committee admitted into evidence under regulation 11(2)(d) ought properly to have been admitted only under regulation 11(2)(a). Mr Davies submits that the Disciplinary Committee had no power to admit these passages under regulation 11(2)(d), and that by doing so it subjected Mr Hollis to an unfair burden of having to persuade the Disciplinary Committee at the substantive hearing that it should disagree with these passages in Henderson J’s judgment.[17]At paras. [87]-[90], Henderson J made some concluding comments. Those at [87]-[89] were ruled by the Disciplinary Committee to be admissible in the disciplinary proceedings under regulation 11(2)(a), but not regulation 11(2)(d). Henderson J observed that the CVA “should never have seen the light of day”, so unfair was it to the Mourant companies ([87]); he emphasised that it is the duty of administrators or other office holders, in the circumstances of a case like this, “to maintain an independent stance, to act in good faith, and only to propose a CVA if they are satisfied that it will not unfairly prejudice the interests of any creditor, member or contributory of the company” ([88]); and he continued thus, at [89]-[90]:
“89. Unfortunately, the administrators in the present case seem to have lost a proper sense of objectivity, and they allowed themselves to side with the Sixty group against the interests of the guaranteed landlords of the closed stores. They permitted Sixty SpA to dictate the crucial terms of the CVA, and they misrepresented the true position to the creditors. It is only thanks to the persistence of the applicants and their legal advisers that this regrettable state of affairs has come to light. 90. I am conscious, of course, that I have not heard the administrators' side of the story, because of their decision not to participate in the trial. Nevertheless, I am satisfied that there is a prima facie case of misconduct on their part which ought to be considered by the professional bodies to which they are answerable. I therefore propose to direct that copies of my judgment should be sent to the appropriate bodies by which they are licensed to act as insolvency practitioners.”
[18]Mr Davies emphasised Henderson J’s comments at para. [90]. He said that they indicated that the judge had not, on proper construction of regulation 11(2)(d), made any “findings of fact” against Mr Hollis.[19]As a result of the judgment in Mourant, ACCA investigated the case and has brought seven charges of professional conduct against Mr Hollis, that may be summarised as follows:(i) he engaged in dishonest behaviour in relation to presentation of Appendix C (and the assumptions regarding the value of the guarantees given by Sixty SpA) to the Mourant companies as part of the CVA proposals;(ii) alternatively, his conduct in that regard was in breach of standards of competence and due care;(iii) his failure to follow the expert valuation advice in relation to the fair value of the Mourant companies’ claims or to obtain further advice, and in presenting a proposal for a CVA to the creditors’ meeting which he knew or should have known was unfair to the Mourant companies, was in breach of standards of competence and due skill;(iv) his failure to make a proper comparison between the CVA and the outcome on a liquidation was in breach of standards of competence and due skill;(v) his conduct in proposing a CVA which he knew or should have known was not fit or feasible was in breach of standards of competence and due skill;(vi) his conduct in proposing a CVA which was unfairly prejudicial to certain creditors was in breach of standards of objectivity; and(vii) his failure to attend the hearing before Henderson J, in circumstances where his professional conduct was likely to be under consideration, was in breach of standards of professional behaviour. Charge (i) is particularly serious, since ACCA’s Guidance for Disciplinary Sanctions indicates that, if a charge of dishonesty is made out against a member, there is a real possibility that the sanction will be that the member is struck off the register of members.[20]Mr Hollis strenuously denies the charges of misconduct against him. He says he acted properly, on legal advice.

Regulation 11(2) and Bye-law 8

[21]It is common ground that the relevant procedural rules governing the disciplinary proceedings against Mr Hollis are the Regulations of 2014. Regulation 11 is headed, “Disciplinary Committee: procedure and evidence at hearings”. Paragraphs (1) and (2) provide as follows:
“(1) General Subject to this regulation 11 and to these regulations generally, the Disciplinary Committee shall conduct the hearing in its discretion having regard to the interests of justice, the public, of the relevant person, and of the profession as a whole. (2) Evidence (a) Subject to the requirements of justice and of fairness to the relevant person, a Disciplinary Committee considering any allegation may admit oral or documentary evidence whether or not such evidence would be admissible in a court of law. As a general principle, the Disciplinary Committee shall take into account the fact that any disputed oral evidence of a witness has not been tested in cross-examination when considering what weight, if any, should be attached to it. (b) Where any witness who has been required to attend for cross-examination is not in attendance, the Disciplinary Committee shall continue to hear the case on the available evidence but may admit the written evidence of the witness if it is satisfied that it is in the interests of justice to do so, and if admitted shall attach such weight to the written evidence of the witness as it considers appropriate, taking into account the lack of opportunity given to challenge the contested evidence of the witness. (c) The status of any criminal conviction, court judgment or finding of fact in any court proceedings is as set out in the bye-law 8 which was in force at the time the matters complained of took place, and the Disciplinary Committee shall apply the provisions of that bye-law to its proceedings. (d) Subject to the requirements of the applicable bye-law 8, any other finding of fact in any civil proceedings before a court of competent jurisdiction in the United Kingdom or elsewhere shall be admissible as prima facie evidence in the proceedings.”
[22]The bye-law 8 which was in force at the relevant time, as referred to in regulation 11(2)(c), was contained in the 2009 version of ACCA’s bye-laws (“Bye-law 8”). Bye-law 8 is headed, “Liability to disciplinary action”.

(e) :

“(e) The following shall be conclusive proof of misconduct: (i) the fact that a member, relevant firm or registered student has pleaded guilty to, or been found guilty of, any offence discreditable to him or, as the case may be, it, or derogatory to the Association or the accountancy profession, before a court of competent jurisdiction in the United Kingdom or before a court of competent jurisdiction in any other country where such court’s judgments are in the opinion of Council (or relevant committee of Council) relevant; (ii) the fact that a member, relevant firm or registered student has been found to have acted fraudulently or dishonestly in any civil proceedings before any court of competent jurisdiction in the United Kingdom or before a court of competent jurisdiction in any other country where such court’s judgments are enforceable in the United Kingdom.” (i) the fact that a member, relevant firm or registered student has pleaded guilty to, or been found guilty of, any offence discreditable to him or, as the case may be, it, or derogatory to the Association or the accountancy profession, before a court of competent jurisdiction in the United Kingdom or before a court of competent jurisdiction in any other country where such court’s judgments are in the opinion of Council (or relevant committee of Council) relevant; (ii) the fact that a member, relevant firm or registered student has been found to have acted fraudulently or dishonestly in any civil proceedings before any court of competent jurisdiction in the United Kingdom or before a court of competent jurisdiction in any other country where such court’s judgments are enforceable in the United Kingdom.”
[23]A new version of Bye-law 8 was promulgated in 2014, but it is not relevant to the disciplinary proceedings against Mr Hollis and, notwithstanding a submission by Mr Davies that it is an aid to construction of the 2014 Regulations, I did not find it of assistance in that regard.

The Disciplinary Committee’s Decision

[24]At the case management hearing, the prosecutor for ACCA submitted that different passages in the judgment in Mourant should be admitted under three distinct parts of regulation 11(2). He submitted that the finding of dishonesty in para. [58] of the judgment, set out above, should be treated as a “finding of fact” within the scope of regulation 11(2)(c), with the effect that it should be treated as conclusive proof of misconduct under paragraph (e) of Bye-law 8. In relation to the other findings by the judge referred to above, the prosecutor submitted that they were admissible as prima facie evidence under regulation 11(2)(d), and that it would be a matter for the Disciplinary Committee at the substantive hearing to determine what weight should be given to them. In relation to a further set of passages in the judgment, not amounting to findings of fact but described as “comments, statements of reasoning or opinion by Henderson J”, the prosecutor submitted that they were admissible by virtue of regulation 11(2)(a), subject to the requirements of justice and fairness.[25]Mr Davies appeared for Mr Hollis at the case management hearing. He submitted that none of the passages in the judgment in Mourant on which ACCA sought to rely could properly be regarded as a “finding of fact” within the scope of either regulation 11(2)(c) or (d), as properly construed, since they were not matters necessary to support the ultimate conclusion or judgment to which Henderson J came, and were only observations or comments made in a context where standards of natural justice in relation to Mr Hollis had not been applied. The proceedings before Henderson J had not involved any allegations of dishonesty against Mr Hollis, he had not been given notice that any would be made, and the findings in relation to him were made in his absence, since he had decided, on legal advice, not to attend the hearing. The Disciplinary Committee also had its attention drawn to the cautionary words of Henderson J in para. [90] of the judgment, and was invited to consider their effect.[26]The Disciplinary Committee rejected the prosecutor’s submission under regulation 11(2)(c) with respect to para. [58] of the judgment. It ruled instead that the finding in this paragraph was a “finding of fact” within regulation 11(2)(d), and constituted only prima facie evidence under that regulation rather than conclusive proof of misconduct.[27]The Disciplinary Committee accepted the prosecutor’s submissions regarding the admissibility under regulation 11(2)(d) of the other passages in the judgment identified by him as “findings of fact”. It also accepted his submissions regarding the admissibility under regulation 11(2)(a) of the further passages in the judgment on which ACCA sought to rely.[28]In ruling upon the prosecutor’s submission under regulation 11(2)(c), the Disciplinary Committee rejected both the submission for ACCA and the contrary submission for Mr Hollis, and followed instead the advice given to it by its Legal Adviser (para. 29 of the decision). The Legal Adviser’s advice regarding regulation 11(2)(c) was set out at paras. 21 to 25 of the decision, as follows:
“21. The Legal Adviser advised the Committee that it had to consider whether the finding in paragraph 58 of the Judgment relied on by ACCA was properly to be regarded as a finding of fact within the meaning of regulation 11 (2) (c) [of the Regulations]. As part of its decision making process, the Committee had to consider the scope of the words ‘finding of fact…’ in sub-paragraph (c). 22. The words ‘finding of fact’ had potentially a broad meaning. For example they could include any finding of dishonesty, even if it was not central to the case, or necessary to be made to determine issues raised in the case. Such a broad scope of ‘finding of fact’ was to be contrasted with the far narrower scope of the words preceding it, namely ‘conviction; and ‘court judgment’. The preceding words were narrower in scope because in the case of a conviction or judgment, any finding of dishonesty would be central to the conviction or court judgment. 23. The Legal Adviser advised the Committee that as a matter of construction, the words ‘finding of fact’ were limited by the preceding words and were, as a result, to be given a narrow construction. Thus a ‘finding of fact’ contemplated by regulation 11 (2) (c) was a finding of dishonesty that was necessary to be made or resolved in order to determine the ultimate issue in the case being decided. It was not just any finding of fact. The matter in issue in the proceedings before Henderson J was whether creditors’ interests had been unfairly prejudiced by the CVA, with the result that it should be set aside. 24. The Committee therefore had to decide whether paragraph 58 constituted a ‘finding of fact’ for the purposes of regulation 11 (2) (c) having regard to the ultimate issue in the proceedings before Henderson J and to the entirety of the Judgment. 25. The Legal Adviser advised the Committee that it should also consider what, if any effect it should give to the judge’s cautionary words at paragraph 90 of the Judgment, namely that he was satisfied that there was ‘a prima facie case of misconduct…’”
[29]The Disciplinary Committee’s own ruling on ACCA’s submission based on regulation 11(2)(c) was set out at paras. 31 to 35 of the decision, as follows: “31. The Committee noted ACCA’s submission that any finding of dishonesty would suffice for the purposes of regulation 11(2)(c) …, whether or not it was necessary to be made or resolved in order to determine the ultimate issue in the Mourant case, namely whether the CVA should be set aside on the grounds that it unfairly prejudiced creditors’ interests. Following the advice of the Legal Adviser, the Committee did not accept this submission. The Committee accepted that it ought to take a narrower construction of the words and decided that a ‘finding of fact’ contemplated by regulation 11(2)(c) … was one that was necessary to be made in order to determine the ultimate issue in the case before Henderson J.32. The Committee did not consider that the finding of dishonesty against Mr Hollis made in paragraph 58 of the Judgment was necessary to determine the ultimate issue in the Mourant case. For these reasons the Committee decided that the finding in paragraph 58 of the Judgment was not a ‘finding of fact’ within the meaning of regulation 11(2)(c).33. The Committee considered however that the same conclusion could be reached by an alternative route. The Committee noted Mr Davis-White QC’s [the prosecutor’s] submission that the finding of dishonesty in paragraph 58 of the Judgment was crystal clear: a deliberate lie had been told. Looking only at paragraph 58, that submission was plainly correct. The Committee considered however that it was necessary also to have regard to what Henderson J had said in paragraph 90: ‘I am conscious of course that I have not heard the administrator’s side of the story because of their decision not to participate in the trial. Nevertheless, I am satisfied that there is a prima facie case of misconduct on their part which ought to be considered by the professional bodies to which they are answerable.’34. As noted above, Mr Hollis had not attended the trial. The Committee had been told that this was a decision made on legal advice that he had received. The Committee noted also that no express allegation of dishonesty had been made against Mr Hollis prior to the commencement of the trial and neither had there been any express notice to him that such an allegation might be made. The skeleton argument put in by the Applicants (which the Committee was told Mr Hollis had in fact never seen) had described Mr Hollis’ conduct in relation to Appendix Committee as ‘misleading’ and no more than that. The fact that Mr Hollis had not had a chance to answer any suggestion that he had acted dishonestly was clearly a point that Henderson J had very much in mind, and his description of a ‘prima facie’ case of misconduct emphasises this. It seemed to the Committee very likely that Henderson J, in making his observations in paragraph 90, had in mind the concerns relating to the necessity for compliance with the principles of natural justice that Lord Diplock had discussed in his speech in Mahon v Air New Zealand [1984] 3 All ER 884, to which Mr Davies QC had referred the Committee. It seemed to the Committee also that awareness of the necessity to comply with those principles had prompted the judge to make the comments he did make in paragraph 90. The view of the Committee was that taking paragraph 90 of the Judgment into account, the finding in paragraph 58 was properly to be treated as no more than a conditional or prima facie finding of dishonesty. It was, and was intended by Henderson J to be one which Mr Hollis should have the opportunity to rebut. Thus it did not fall within the definition of a finding of dishonesty for the purposes of 11(2)(c) …, even giving ‘finding’ the wide definition contended for by ACCA. 35. In consequence, whether or not Mr Hollis had acted dishonestly in relation to Appendix Committee was a matter that the Committee itself would have to resolve at the final hearing. The findings of Henderson J in paragraph 58 were, in the view of the Committee, admissible as prima facie evidence under 11(2)(c) …. The weight to be given to such a finding would be a matter for the Committee to assess at the final hearing.” ‘I am conscious of course that I have not heard the administrator’s side of the story because of their decision not to participate in the trial. Nevertheless, I am satisfied that there is a prima facie case of misconduct on their part which ought to be considered by the professional bodies to which they are answerable.’[30]The Legal Adviser’s advice in relation to regulation 11(2)(d) (set out at paras. 26 and 27 of the decision) was that since the phrase “any other finding of fact” in regulation 11(2)(d) was not preceded by words with a restricted meaning, it would include any conclusions on the facts set out in the judgment, whether or not they were necessary to support a judgment or matter in issue. Having rejected ACCA’s submission based on regulation 11(2)(c), the Disciplinary Committee decided, in line with this advice, that since the relevant phrase in regulation 11(2)(d) was not preceded by any limiting words, “it was appropriate to construe it more widely than was the case with [regulation] 11(2)(c)”, to cover “any conclusions on the facts in the Judgment” (para. 36). The Disciplinary Committee rejected Mr Davies’s submission that none of the findings relied on by ACCA were admissible under regulation 11(2)(d), because they were made in breach of the principles of natural justice; rather, it would take account of any natural justice points in deciding what weight should be given to those findings (para. 37 of the decision).[31]The Disciplinary Committee accepted ACCA’s submission that the further passages in the judgment on which ACCA sought to rely were admissible under the very wide words of regulation 11(2)(a), and it held that there was no basis for saying that it would be unjust or unfair to admit them; again, the question of what weight they should be given would be a matter for argument at the substantive hearing (para. 38 of the decision).[32]At para. 39 of the decision, the Disciplinary Committee expressed its conclusion thus:
“In conclusion the Committee decided that the finding of dishonesty, as set out in paragraph 58 of the Judgment, was not a finding falling within regulation 11(2)(c) …. However this finding, together with other findings of fact identified in Appendix 1 [to the directions issued by the Committee], was admissible as prima facie evidence under regulation 11(2)(d) ….

(a) …”

.

The Grounds of Challenge

[33]Mr Davies, for Mr Hollis, submits that the Disciplinary Committee has misconstrued regulation 11(2)(d). The point forcefully made by Mr Davies is that the Disciplinary Committee drew an illogical distinction between the meaning of the term “finding of fact” in regulation 11(2)(c), which it held did not cover any passages in the judgment in Mourant, and the meaning of the same words in regulation 11(2)(d), which it held did cover substantial passages in that judgment.[34]Mr Davies submits that, on proper construction of the Regulations, the phrase “finding of fact” has the same meaning in both sub-paragraphs (c) and (d) of regulation 11(2). He maintains that in order to qualify as such a matter contained in a judgment has to satisfy three conditions:(i) it has to be necessary to decide the ultimate issue for determination by the court (as the Disciplinary Committee correctly decided in relation to regulation 11(2)(c): see para. 32 of the decision);(ii) it has to be the product of a procedure which respects the requirements of natural justice and procedural fairness (as was correctly recognised by the Disciplinary Committee, at least implicitly, in para. 34 of the decision in relation to regulation 11(2)(c)); and(iii) it has to be unconditional in nature (as was correctly accepted by the Disciplinary Committee in relation to regulation 11(2)(c) in paras. 33 and 34 of the decision).[35]Mr Davies submits, further, that none of the passages in the judgment in Mourant which the Disciplinary Committee held would be admissible under regulation 11(2)(d) can qualify as “findings of fact” on this construction of the Regulations. None of them satisfy any of these three conditions:(i) none was necessary for Henderson J’s ultimate ruling in Mourant that the CVA should be revoked (in particular, his finding in para. [58] was not a factual finding necessary for him to make that ruling);(ii) all the passages were affected by a want of natural justice and procedural fairness in relation to Mr Hollis, since he was not on notice that any finding of dishonesty or professional misconduct might be made against him and he did not attend the hearing; and(iii) all the findings in relation to Mr Hollis were provisional in nature, as Henderson J himself made clear in para. [90] of the judgment.[36]Further and in the alternative, Mr Davies submits that, on proper construction, regulation 11(2)(d) is subject to an implicit requirement of fairness. He says that, in considering whether to admit the relevant findings as prima facie evidence under that regulation, the Disciplinary Committee has failed to address its mind to the question whether it would be fair to do so. He further submits that it would not be fair for those findings to be admitted as prima facie evidence against Mr Hollis under regulation 11(2)(d). That would impose an unfair burden on him to dissuade the Disciplinary Committee from accepting the comments and observations of a High Court judge in a case such as this.

Discussion

[37]The parties referred me to a range of authorities, but they dealt with the disciplinary schemes of other professions, which are not drafted in the same terms as regulation 11 in ACCA’s Regulations. Since the issues in this case turn on the interpretation of regulation 11, the authorities were of very limited assistance.[38]With respect to all those involved in the Disciplinary Committee’s case management hearing, I am bound to say that I find aspects of the analysis adopted to be somewhat confusing, although I consider that the reasoning of the Disciplinary Committee is appropriate and sufficient to support the ruling it has made regarding the admission of the relevant passages in the judgment in Mourant under regulation 11(2)(d).[39]In my judgment, Mr Davies is correct in his submission that the meaning of the phrase “finding of fact” in regulation 11(2)(c) is the same as the meaning of that phrase in regulation 11(2)(d). The same language is used in successive sub-paragraphs in the same regulation; there is in my view no contextual feature to indicate that a different meaning is intended to apply; and the use of the word “other” before the phrase “finding of fact” in regulation 11(2)(d) is a positive indicator that regulation 11(2)(c) and regulation 11(2)(d) are provisions addressing a class of subject matter (“findings of fact”) which is the same in each case.[40]The Disciplinary Committee appears to have treated the terms of Bye-law 8 as controlling the meaning of “finding of fact” in regulation 11(2)(c) so as to give it a different meaning from that phrase in regulation 11(2)(d). However, in my judgment, this is not a correct interpretation. The terms of regulation 11(2)(c) recognise that there may be cross-reference to different versions of Bye-law 8, depending on what was in force at the time of the matters complained of. Accordingly, it is difficult to see how any one version of Bye-law 8 could control the meaning of “finding of fact”, as that phrase is used in regulation 11(2)(c). It is not a plausible interpretation of regulation 11(2)(c), which directs attention to a range of other instruments, that the true meaning of the phrase in “finding of fact” used in that regulation is supposed to change, depending on which other instrument happened to apply at the time of the matters complained of. To my mind, the better view is that the phrase has a stable and unchanging meaning in regulation 11(2)(c) and that it has the same meaning in both the places it appears in regulation 11.[41]However, I do not accept Mr Davies’s submissions regarding the conditions which have to be satisfied before a matter qualifies as a “finding of fact” in regulations 11(2)(c) and (d). In my judgment, the meaning of that phrase is straightforward and accords with the ordinary meaning attached to those words. It covers any matter in a judgment in civil proceedings which, as a matter of ordinary language, is properly described as a finding of fact made by the court in the course of giving its judgment. The notion of a “finding of fact”, when used in reference to a judgment, is one which is very familiar, and there is no indication that the drafter of regulation 11 intended the phrase to bear any strained or unusual meaning when used in that provision. (I note in passing that the Divisional Court in Constantinides v The Law Society [2006] EWHC 725 (Admin), when considering a rule in the Law Society’s disciplinary code which stated that “the findings of fact upon which … a judgment is based shall be admissible as prima facie proof of those facts”, appeared to have no difficulty in giving the term its ordinary meaning: see para. [28], “… There will be cases when a finding of fact, be it in a civil or criminal case, of dishonesty will be prima facie evidence of that dishonesty …”).[42]It is in relation to this aspect of the Disciplinary Committee’s decision that I consider its reasoning went somewhat awry, when setting out its reasons for holding that regulation 11(2)(c) does not apply in relation to para. [58] in the judgment in Mourant. To explain, I will first set out how I consider regulation 11(2) operates.[43]In my judgment, the first sentence of regulation 11(2)(a) covers the admission of all forms and items of evidence in disciplinary proceedings, including findings of fact made in the course of legal proceedings. It does three things:(i) it makes it clear that the Disciplinary Committee may admit oral or documentary evidence of any kind, even if it would not be admissible in court proceedings (i.e. formal rules of evidence relevant in court proceedings are disapplied, including rules of evidence which ordinarily provide that findings made in court proceedings are inadmissible in other court proceedings as evidence of the facts so found);(ii) it provides that overarching requirements of justice and fairness to the relevant person govern the admissibility of any material on which the Disciplinary Committee might seek to rely as evidence, including any criminal conviction, court judgment or finding of fact referred to in sub-paragraphs (c) and (d) of regulation 11(2); and (iii), subject to those overarching requirements and to any more precise provisions appearing in sub-paragraphs (a), (b), (c) and (d), it confers on the Disciplinary Committee a broad discretion as to what items will be admitted into evidence.[44]It is only if a criminal conviction, court judgment or finding of fact in any court proceedings is admitted into evidence by the Disciplinary Committee through the gateway in the first sentence in regulation 11(2)(a) – i.e. if the Committee is satisfied that it is in accordance with the requirements of justice and fairness to admit that material into evidence – that regulation 11(2)(c) comes into operation. It stipulates that such material is to have the status set out in Bye-law 8, if that bye-law covers it, and requires the Disciplinary Committee to apply that bye-law. The 2009 version, Bye-law 8, is the relevant version applicable in the context of the disciplinary proceedings against Mr Hollis. Bye-law 8(e) does not cover every finding of fact in a civil judgment, but only that sub-category of findings of fact set out in sub-paragraph (ii) of Bye-law 8(e).[45]In my view, the approach proposed by the Legal Adviser to the Disciplinary Committee and followed by the Committee is correct, provided it is read as the proper approach to interpretation of Bye-law 8(e) rather than for interpretation of the phrase, “finding of fact”, in regulation 11(2)(c). Although the Disciplinary Committee referred in paras. 31-34 of its decision to the interpretation of that phrase in regulation 11(2)(c), I think it is clear from the substance of the advice they were given by the Legal Adviser and their own reasoning that they did indeed focus upon the effect of Bye-law 8(e): see, in particular, para. 34 of the decision, and the discussion whether para. [58] of the judgment in Mourant fell “within the definition of a finding of dishonesty for the purposes of [regulation] 11(2)(c) …, even giving ‘finding’ the wide definition contended for by ACCA”.[46]For the purposes of Bye-law 8, the Disciplinary Committee rightly took a very narrow approach to the concept of a member having “been found to have acted fraudulently or dishonestly in any civil proceedings [etc]”. In the context of Bye-law 8, a narrow interpretation of that concept is justified by(i) the extreme nature of the consequence stipulated in the Bye-law (it is “conclusive proof of misconduct”) and(ii) the fact that it operates as a civil law analogue for a finding of guilt in criminal proceedings. In relation to (i), by reason of the effect of such a finding within ACCA’s disciplinary code and the importance given within it to fairness to a relevant person, it is natural to infer that the drafter intended that the Bye-law would only apply in cases where a member had been clearly on notice of the nature of the charge against them, in proceedings directed against them personally in circumstances where that the charge was a central part of the case against them and not in relation to a peripheral matter, and thus where they had had a full opportunity to defend themselves on that charge. In relation to (ii), conviction on a criminal charge is generally a court ruling which fulfils these criteria, which supports this interpretation.[47]Therefore, read as hingeing on the interpretation of Bye-law 8(e)(ii), I think that the reasoning of the Disciplinary Committee in paras. 31-34 of its decision is correct. In my opinion, there would not be a relevant finding of dishonesty for the purposes of Bye-law 8 unless it was a finding necessary to determine the ultimate issue in the legal proceedings in question, was made in proceedings in which the ACCA member was a party and in which he had been clearly and distinctly on notice of the charge against him, and where the court’s finding of dishonesty was clear and unequivocal. Mr Hollis, of course, does not complain about the ruling of the Disciplinary Committee to the effect that the finding in para. [58] of the Mourant judgment does not have relevant status under regulation 11(2)(c) and Bye-law 8; and Mr Giffin QC for ACCA accepted the correctness of this conclusion and, indeed, presented arguments in support of it.[48]If a finding of fact in a relevant judgment which has been admitted into evidence through the fairness filter in regulation 11(2)(a) is not one which falls within (in the present context) Bye-law 8(e)(ii), then its status is undetermined by that provision and it falls within regulation 11(2)(d). This provides that it “shall be admissible as prima facie evidence in the proceedings.” This means that the weight ultimately to be given to that evidence is a matter for the Disciplinary Committee on due consideration of all the evidence in the round at the substantive hearing. A member has the right to give evidence themselves and adduce other evidence to challenge the correctness of the conclusion of fact arrived at by the court, in the same way as was explained by Viscount Simon LC in a similar professional disciplinary context in General Medical Council v Spackman [1943] AC 627, at 635. This is an important protection for the member, in the interests of fairness and justice.[49]In my view, therefore, the Disciplinary Committee was correct in its ruling on the effect of regulation 11(2)(d). The weight to be given to the findings of fact made by Henderson J in the Mourant judgment is a matter at large for determination at the substantive hearing, on the basis of evidence and submissions at that stage (cf In re A Solicitor [1993] QB 69, DC, at 80F-H).[50]Matters which may be found to be relevant are likely to include whether, in the circumstances of the proceedings before Henderson J, Mr Hollis was on notice that his professional conduct might be the subject of criticism at the hearing before Henderson J and whether Mr Hollis had good reason for failing to attend the hearing. On both points, a factual examination of the circumstances will be required. Mr Davies made strong submissions to me that Mr Hollis was not on notice that he might be criticised and had good reasons for not attending the hearing. For present purposes, it suffices to say that I consider, from reading the judgment in Mourant and the brief review of some of the materials available before Henderson J which I was invited to make, that there is a case against Mr Hollis which merits investigation. Although Mr Davies appeared to come close to inviting me to dismiss the case against Mr Hollis as unsustainable on the merits, I was unpersuaded that this was a matter on which I could form any concluded view on the limited materials and review at the hearing before me.[51]I would add that I do not think that it is helpful to describe the effect of regulation 11(2)(d) as creating, in formal terms, an evidential burden upon any person wishing to disprove a finding of fact in a judgment which falls within that provision. The regulation simply does what it says. It makes a relevant finding of fact in a judgment admissible as prima facie evidence in the proceedings, but no more. Something can be prima facie evidence in proceedings and yet ultimately be found to have no weight at all, such as a witness’s evidence in a witness statement or a document which, on full examination of the case, is shown to be wholly mistaken or irrelevant.[52]However, the more a finding of fact in a judgment represents the considered view of a judge after hearing detailed argument and evidence, with full notice to the ACCA member involved and an opportunity for them to participate in the hearing, the greater the weight it is likely to carry. This may impose a practical onus on the member to be willing to come forward before the Disciplinary Committee to give their own, exculpatory version of events. In this way, the weight to be given to a finding of fact will be modulated by, amongst other things, issues regarding the fairness of the underlying proceedings to the member and a nuanced assessment of the probative force in the context of the disciplinary proceedings against the member of the finding made by the court in a different context.[53]I should say that both Mr Davies and Mr Giffin were resistant to the suggestion, which I put to them, that regulation 11(2)(a) operates as a general gateway for the admission of evidence in the manner I have set out above. Although Mr Giffin maintained alternative submissions predicated on that interpretation of regulation 11(2)(a), his primary submission was that regulation 11(2)(d) operates as an entirely distinct, stand-alone basis for the admission of evidence. Mr Davies made the same submission. But Mr Giffin made his submission in order to suggest that there is no fairness or justice filter when one is considering the admission into evidence of a finding of fact under regulation 11(2)(d), whereas Mr Davies made his submission in order to suggest that a justice or fairness filter should be implied into that regulation.[54]I did not find either of these positions attractive or plausible as a true interpretation of regulation 11(2). As to Mr Giffin’s position, in the context of professional disciplinary proceedings in which an individual’s continued membership of a profession and livelihood may be in jeopardy, I do not think that it is difficult to imagine situations in which it may be unfair and unjust to admit certain judgments containing findings of fact, even though those findings cannot be said to be irrelevant. Even taking an English judgment, a case could arise in which wide-ranging and critical findings are made in relation to an ACCA member who was a witness or who played some role in the factual background but who was not a party to the proceedings and in relation to whom the hostile findings are peripheral to a disciplinary charge later brought against them. It might be very unfair to introduce such a judgment or findings into evidence against them, thereby imposing a substantial burden on them of having to respond to and deal with a mass of peripheral matters and forcing them to divide and dissipate their attention and resources in doing so, rather than being able to focus on the main thrust of the charge against them. Moreover, the wide range of jurisdictions from which a judgment falling within regulation 11(2)(d) might come (i.e. a court of competent jurisdiction anywhere in the world), where very different standards of proof and procedural fairness might be applied, again suggests that the drafter of regulation 11 would have intended that the regulation should operate with some overarching fairness filter, to screen out findings of fact in judgments where it could be seen at the outset that it would be unfair to admit the judgments into evidence and impose on the member the burden of dealing with them in the context of disciplinary charges against them. Simply leaving it to the discretion of the Disciplinary Committee to give such findings such weight as it thought fit at the end of the day under regulation 11(2)(d) would not be a sufficient safeguard in relation to this sort of problem. Generally, it is difficult to see why there should be an overarching fairness filter for all other forms of evidence, but none in relation to findings of fact or other matters in judgments referred to in regulation 11(2)(c) and (d).[55]As to Mr Davies’s position, it is difficult to find in regulation 11(2)(d), taken by itself, a proper basis for implication of some general fairness standard regulating admissibility of findings of fact in a relevant judgment.[56]The better view, in my opinion, is to interpret regulation 11(2)(a) as operating in the way set out above, so as to provide the relevant overarching fairness filter which one would expect to find (contrary to the submission ofMr Giffin), but located in the language used by the draftsman (contrary to the submission ofMr Davies).[57]I think that this interpretation of regulation 11(2) is further supported by consideration of the arguments which Mr Davies presented on the footing (which I reject) that a matter dealt with in a relevant judgment only constitutes a “finding of fact” within regulation 11(2)(d) if it satisfies the requirements referred to in paragraph [34], that it is necessary to decide the ultimate issue between the parties, it is the product of a process which satisfies the requirement of fairness and it is not a conditional or prima facie finding (cf paragraphs [45]-[46] above, regarding the interpretation of Bye-law 8).[58]First, in the circumstances of the Mourant case, Henderson J undoubtedly attached considerable importance to the cumulative impact of the various findings he made in relation to the conduct of the administrators. It is difficult to say whether any individual finding was absolutely necessary for his decision to revoke the CVA. I do not think it is plausible to suppose that the drafter of regulation 11(2)(d) intended the Disciplinary Committee to have to determine such a difficult, vague and indeterminate question before turning to apply their practical common sense in deciding what weight to give to a finding in a judgment, in the light of all the relevant circumstances.[59]Secondly, in Mourant, the findings made by Henderson J were based on the evidence presented to him and pursuant to a procedure which undoubtedly satisfied the requirements of fairness, so far as was necessary to justify him in making those findings for the purposes of the proceedings before him. So, for example, had the administrators or another interested party, such as Sixty SpA or an unsecured creditor, sought to appeal against Henderson J’s ruling, the Court of Appeal would clearly not have said that he had acted wrongly or in an unfair way in making the findings he did. But this is not to gainsay the point to which Henderson J himself drew attention in para. [90] of his judgment, that the proceedings had not been centrally focused on charges of misconduct against the administrators, so that he did not take himself to be finally deciding issues of misconduct against them. Again, I do not think it is plausible to suppose that the drafter of regulation 11(2)(d) intended its operation to depend upon an odd and difficult-to-apply distinction between a judge who has acted fairly for the purposes of the proceedings in which he gives his judgment, but somehow has not acted fairly for other purposes. It makes more sense to interpret regulation 11(2)(d) as requiring such subtle differences to be brought into consideration when the Disciplinary Committee considers the weight to be given to the findings of fact which the judge made, rather than at the preliminary stage of determining their admissibility as prima facie evidence.[60]Finally, the suggestion by Mr Davies that Henderson J did not really make any “finding of fact” at all because of what he said in para. [90] of his judgment about them being provisional is also unsustainable. Henderson J did undoubtedly make final and non-provisional findings of fact (including in respect of the behaviour of the administrators) in the course of his judgment, which were the justification for his decision to make an order revoking the CVA. However, by para. [90], he wished it to be noted that the court’s attention had not been focused on the related but distinct question whether the administrators’ conduct was such as to merit disciplinary sanction. He had not examined whether it might in some way be excusable or explicable for the purposes of disciplinary proceedings. Once again, I do not think it is plausible to suppose that the drafter of regulation 11(2)(d) intended its operation to depend upon this further odd and difficult-to-apply distinction, between a judge who has made findings of fact in his judgment, but who somehow at the same time has not made findings of fact.[61]The better inference appears to me to be that the drafter of regulation 11(2) intended that, once a judgment (or parts thereof) has been admitted into evidence after passing through the justice and fairness filter in regulation 11(2)(a), then, for the purposes of regulation 11(2)(d), the Disciplinary Committee should simply look to see if it includes a finding of fact (understood in the straightforward and ordinary sense indicated above) and, if it does, should treat that finding as prima facie evidence in the proceedings. The Committee should then apply its own practical experience and common sense to decide what weight to give it. This seems to me to be an interpretation which is consistent with the requirements of fairness to a member of ACCA and consistent with the sorts of decisions which it is reasonable to expect a body of professional experts and laypersons like the Disciplinary Committee to be equipped to take. Both these matters are contextual considerations which the drafter may be taken to have had at the forefront of his mind in devising the evidence rules in regulation 11(2).[62]There is one further aspect of the interpretation of regulation 11(2) set out above which I should mention, but which I do not need to resolve for the purposes of the present application. If, as I think is the better view, the first sentence of regulation 11(2)(a) operates as a gateway for the admission of any material (including in court judgments) as evidence in disciplinary proceedings before the Disciplinary Committee, does that mean that the Committee has a general discretion under that regulation whether or not to admit findings of fact in a judgment (apart from applying a check to ensure that it would not be contrary to the requirements of justice and fairness to do so), before regulations 11(2)(c) and (d) fall to be applied? It might be said in favour of such a view that regulation 11(2)(c) just purports to regulate the status of any criminal conviction, court judgment or finding of fact (i.e. after it has been admitted under paragraph (a)) and that regulation 11(2)(d) can be read in the same way, as simply stipulating what status any other finding of fact in a relevant judgment should have, if it has been admitted into evidence under paragraph (a). Against such a view, it might be said that, apart from the criteria of justice and fairness, regulation 11(2)(a) supplies no clear standards to govern a general discretionary power whether to admit evidence, and that in fact regulations 11(2)(c) and (d) do something more than just stating what the status of a finding of fact in a judgment would be, if admitted into evidence, in that they operate to govern how the Disciplinary Committee should exercise its discretion in the cases which fall within them. The latter part of regulation 11(2)(c) says that “the Disciplinary Committee shall apply the provisions of [the relevant version of Bye-law 8] to its proceedings”, and the words “shall be admissible” in regulation 11(2)(d) are capable of being read as indicating that this is the way in which the Disciplinary Committee’s discretion as to admission of evidence should be exercised in a case falling within that regulation.[63]My provisional view is to favour this latter interpretation. It can said that this interpretation gives due weight to the considerations of fairness to a member which the drafter intended to be reflected in regulation 11(2). If it would be simply unfair to admit a judgment or any part of it into evidence at all, it would be excluded by the justice and fairness filter in regulation 11(2)(a); but once it has gone through that filter, it is appropriate for it to be admitted into evidence with the effect stipulated in regulation 11(2)(d), since issues of fairness and probative force can all be assessed by the Disciplinary Committee in exercising its power of evaluative judgment in deciding what weight to give it.[64]Turning to the particular circumstances of this case, Mr Davies accepts that at the case management hearing he did not suggest on behalf of Mr Hollis that the Disciplinary Committee should exclude admission of Henderson J’s judgment or any part of it under regulation 11(2)(a). He accepted that all relevant parts of the judgment would be admissible under regulation 11(2)(a), but asked the Committee to rule that the parts of the judgment which contained findings of fact on which ACCA sought to rely under regulation 11(2)(d) should be ruled to be outside that regulation, on its proper construction. Mr Davies did not ask the Committee to exercise any discretion said to be inherent in regulation 11(2)(d) to exclude those findings from being admitted as prima facie evidence in the disciplinary proceedings against Mr Hollis, although he now invites this Court to hold that there is such a discretion and to set aside the decision of the Disciplinary Committee to treat the findings as prima facie evidence under regulation 11(2)(d) on the basis that the Disciplinary Committee failed to consider how to exercise that discretion.[65]In my judgment, on the true interpretation of regulation 11(2) as a whole and of regulation 11(2)(d) in particular, Mr Hollis’s application for judicial review falls to be dismissed.[66]Mr Davies was right to accept that all relevant parts of Henderson J’s judgment in Mourant should be admitted into evidence under regulation 11(2)(a). The judgment is focused on, among other things, the conduct of the administrators in relation to the CVA and could not be said to be of a character any part of which ought to be excluded from evidence at the outset, on the grounds that it would be contrary to the requirements of justice or fairness to Mr Hollis to admit it (contrast the type of case discussed at para. [54] above).[67]The relevant parts of the judgment included a range of matters each of which constituted a “finding of fact”, the effect of which was not determined by Bye-law 8 (pursuant to regulation 11(2)(c)) and hence which fell within regulation 11(2)(d), as properly construed as set out above.[68]Since the relevant parts of the judgment were admitted in evidence under regulation 11(2)(a), then by virtue of regulation 11(2)(d) the Disciplinary Committee was required to treat the findings of fact in the judgment as “admissible as prima facie evidence in the proceedings”. The Disciplinary Committee has ruled accordingly, and was correct in doing so.[69]The Disciplinary Committee cannot be criticised for failing to exercise some supervening discretion said to be implicit in regulation 11(2)(d), for three reasons. First, on proper interpretation, regulation 11(2)(d) contains no supervening discretion for the Committee to exercise.[70]Secondly, even if it did, I do not think that the Committee can be said to have acted unlawfully by failing to give consideration to any such discretion in circumstances where a member, appearing before the Committee by counsel, did not suggest that there was such a discretion in regulation 11(2)(d) which ought to be considered and exercised in his favour. The Disciplinary Committee was not required to seek out and make a case for Mr Hollis which his counsel did not put forward on his behalf.[71]Thirdly, and in any event, in the circumstances of this case there was no proper basis on grounds of fairness for excluding the parts of Henderson J’s judgment in issue from the operation of regulation 11(2)(d), whether one locates a supervening requirement of fairness in regulation 11(2)(a) (as I think is correct) or in regulation 11(2)(d). These parts of the judgment are plainly of central relevance to the case against Mr Hollis. Henderson J’s judgment was careful and considered, and very fairly drew attention in para. [90] to matters going to the weight to be given to the findings he had made. The judgment is the foundation for and provides the relevant background to the disciplinary charges brought against Mr Hollis. In my view, the relevant parts of it are manifestly properly admissible as evidence in the proceedings against him. It is in fact difficult to see, in this context, any significant practical difference between admitting these parts of the judgment into evidence under regulation 11(2)(a) and doing so under regulation 11(2)(d). The same factors relevant to the weight they should be given will be applicable either way. The Committee’s ruling leaves proper scope for arguments and evidence relevant to questions of notice of potential criticism of Mr Hollis in the proceedings before Henderson J and so forth to be addressed at the substantive hearing, in the context of debate about the weight to be attached to the evidence constituted by admission of these parts of the judgment into evidence. In my judgment, there is no unfairness to Mr Hollis in proceeding in this way.

Conclusion

[72]For the reasons given above, this application for judicial review is dismissed.

Cited in 1 later judgment