MR JUSTICE JAY:
- This is a renewed application for judicial review of what is technically the defendant appeal committee's decision given on 26th July 2016 that the claimant's name be removed from ACCA's register for a minimum period of five years, that he be ordered to pay costs in the sum of £8,012.20 and that his name be advertised on ACCA's website and local journals.
- This case has a complex and chequered history. The court has been presented with multitudinous documents, many of which are now irrelevant. The claimant's case has evolved over time. In essence, however, the issues which now fall to be considered in the context of the arguability threshold are in my judgment not particularly difficult.
- There are two fundamental issues which have really beset this case from the outset. First of all, the claimant until recently has been acting in person. He has been doing so in the context of serious disciplinary proceedings with an outcome, given the nature of the allegations, which could be of fundamental importance to him. That in my judgment was a mistake.
- I have investigated with counsel the level of the claimant's understanding and fluency in the English language. It is clear that he has considerable proficiency in English. He has been here effectively since 2000, although no doubt has returned to Pakistan from time to time. His first language is of course Urdu. So really no proper explanation has been given for his failure to instruct counsel at an early stage. Had he been assisted by Mr James Harris of counsel, as he has been today, at earlier stages of the proceedings, who knows, the outcome may have been different.
- The other point which causes me concern from the claimant's perspective is that he made a decision not to travel from Pakistan to the United Kingdom to attend the hearing on 1st April 2014. That too was a mistake. He should have got on the plane to defend himself at the very least, even if that was going to be in person. Many of the subsequent difficulties which have arisen flow from the claimant's decision, although I fully apprehend and understand the force of the point that it was for the disciplinary committee to decide on 1st April 2014 how it should be proceeding in relation to someone who was appearing at the other end of a telephone without even the benefit of a video link somewhere in Pakistan in a time zone four or five hours ahead of the UK.
- I return to the facts. In 2009 the claimant became an affiliate of ACCA, which is a worldwide regulatory body in the field of accountancy. In 2011 the defendant began disciplinary investigations into the claimant's conduct. In due course, three charges were raised against him alleging dishonesty in relation to a job application and a LinkedIn profile.
On 1st April 2014 the hearing before the defendant's disciplinary committee commenced with the claimant in attendance by telephone. The hearing lasted a number of days and the charges were found proved. The claimant then applied for permission to appeal to the appeal committee on various grounds. Permission was refused on the majority of those grounds, but was granted on two, namely the order in relation to costs and the length of the claimant's removal from the register. On 26th July 2016 the appeal committee dismissed the appeal and refused the claimant's renewed applications for permission to appeal on the rejected grounds. I should add that on that occasion the claimant appeared in person before the committee.
- The claimant's case in these judicial review proceedings has not remained constant over time. His original grounds were comprehensively rejected in a detailed ruling on the papers by Mr David Foxton QC sitting as a Deputy High Court Judge. The claimant, still acting in person, submitted revised grounds in relation to a renewal application which, to be fair to him, considerably narrowed his case. He then instructed counsel through the Direct Access Scheme and a number of revised or amended grounds were advanced orally before Collins J on 27th June 2017. Given that those grounds had not been reduced to writing, Collins J ordered that they must be and today's hearing is the adjourned hearing of the claimant's renewed application for judicial review on revised grounds or amended grounds which appear at pp.280 to 283 of the appendix to the revised summary grounds of resistance.
- I had taken the opportunity to pre-read the decision of the disciplinary committee, the decision of the single member on the permission to appeal application, the decision of the appeal committee and many of the documents in the original core bundle, but by no means all of them. I had also read most of the appendix to the defendant's amended summary grounds of resistance, together of course with the skeleton arguments prepared for the purposes of today's proceedings. I took some time too to read the transcript of the proceedings before Collins J and noted his view that some of the grounds were arguable. He did not quite put it in those terms, but that is certainly the strong tenor of what he said. I however must give the matter independent consideration.
- The amended grounds, which I have already identified, allege as follows. First of all, breach of procedural requirements. This ground has two limbs. First, it is said that the disciplinary committee failed to apply Regulation 9.2 of the Chartered Certified Accountants' Complaints and Disciplinary Regulations 2014 and, in particular, failed to adjourn the case. The second limb is that the disciplinary committee wrongly failed to admit hearsay evidence in the form of the witness statements of Ms Amanda Mandary and Mr Roye Peter. Both limbs have various sub-limbs, but in essence that is the first ground.
- The second ground is that in the event that the failure to adjourn was not in breach of the Regulations or, I would add, the failure to admit the hearsay evidence, it is said that the adjournment decision was Wednesbury unreasonable. I can deal with that ground straightaway. If Mr Harris cannot succeed on his first ground, Wednesbury adds nothing to this case. It is completely unarguable. So that ground can immediately be disposed of.
- The third ground is breach of natural justice. Here the point being made is that the proceedings were inherently unfair. This is the point which clearly troubled Collins J. We had a situation where the claimant, with an allegation of dishonesty being maintained against him, was at the other end of a telephone, could not properly cross-examine the witnesses who did attend because he could not see them and there were practical difficulties which arose during the course of the hearing with power cuts in Pakistan which rendered the whole proceedings fundamentally unfair. That is the third ground.
- The fourth ground is that it is said that the committee "may have seriously misapprehended aspects of the case." Put in those terms, the ground is not particularly promising, but, to be fair to him, Mr Harris elevated the case somewhat and went so far as to submit, as indeed he had to, that the committee did misapprehend aspects of the case or at least for these purposes it is arguable that they did, since I continue to remind myself that this is merely a permission application. The nature of the misapprehension ground I will need to cover in due course.
- This judicial review challenge is to the appeal committee's decision not to the disciplinary committee's decision. This cuts two ways. First, the claimant could not bring judicial review proceedings against the decision of the disciplinary committee. He had to exhaust his appeal rights. If the appeal committee failed properly to deal with failings in the disciplinary committee's decision, then the appeal committee's errors would in principle be amenable to judicial review. Secondly, however, the claimant can only be heard to complain in these proceedings about the disciplinary committee's failings if he raised those complaints in his notice of appeal to the appeal committee. He cannot take them for the first time in this court.
- Notwithstanding that this second point is clear law, I propose to deal with this application on the basis which is artificially favourable from the claimant's prospective that he has a free reign to seek to argue what he chooses before this court on this permission application. In other words, I will deal with the merits of his points and park, if I may, the objection made by Ms Shaheed Fatima QC in relation to some of his grounds that he is raising them for the first time in the forum of judicial review.
- There were two other points which I need, as it were, to park or at least treat on the basis most favourable to the claimant. The first is that having carefully considered the papers in this case and further, with the benefit of detailed submissions from counsel which submissions took in the region of two hours, I am firmly of the view that the claimant's case is implausible. It depends on a series of coincidences and something which is inherently unlikely. However, that is my own personal view about the merits of the case and the judicial review points fall to be scrutinised for what they are and not on the basis that the underlying case always was and is inherently weak.
- The second related point which I take in the claimant's favour is that Ms Fatima has the submission that under the amendments to the Senior Courts Act 1981 the outcome would highly likely have been the same. This is related to the point I have just made in the sense that the underlying merits are weak and it could be argued that whatever might have happened in this tribunal, with the claimant being a litigant in person working on the telephone from Pakistan, the outcome would have been the same even if the position had been very different. I am not going to take that point against the claimant on this permission application. Indeed, I think I would go slightly further to say that Mr Harris's objection to it may have some force since I cannot be satisfied, at least on a permission application, that had he, for example, been acting for the claimant at the hearing or indeed on a more attenuated basis had the claimant himself been there rather than been working on the phone, the outcome would certainly have been the same or very likely have been the same. I simply cannot go that far.
- Before I consider the claimant's amended grounds, some further procedural background unfortunately is required, but I can deal with it quite briefly. In 2012 the claimant had been sent the documentary evidence and witness statements in support of the defendant's case. On 23rd January 2014 he was informed by email that the disciplinary committee hearing had been listed to take place to be heard in London on 1st and 2nd April 2014. On 14th February 2014 the defendant emailed the claimant a further formal notice dated 13th February of the disciplinary committee hearing and the bundle for that hearing. The email explained that if the claimant could not appear in person, the defendant would cover the cost of a video or telephone link.
- Hard copies of those documents were sent to an address in Essex rather than the address in Pakistan where the claimant was residing at the time and of which he had notified the defendant back in 2013. Under the Regulations it was the wrong address. Having been informed by the claimant of this, the defendant then posted hard copies of documents to the claimant's Pakistan address where they arrived on 4th March 2014. This was 27 days before the hearing, not the 42 days required by Regulation 9.1(b) of the Disciplinary Procedure Rules. On my understanding, within those hard copy documents were a number of documents which had not been previously emailed to the claimant in February. On my reckoning, there were 567 documents which fell within that category. However, it became clear during the course of the hearing that the claimant had seen those documents before. These documents included exchanges between him and ACCA between 2011 and 2013. It was not suggested by Mr Harris that the claimant had not seen them before. Merely the point was that the claimant was being informed for the first time that the defendant was expressly relying on them for the purposes of the disciplinary proceedings.
- On 11th March 2014 the claimant emailed the defendant stating that he wished to attend the disciplinary committee hearing by telephone. On 15th and 16th March he sent further emails asking for an adjournment of at least four weeks so that he could have a reasonable time to travel to the United Kingdom to attend in person. I have carefully examined those emails and they appear under tabs 16 and 17 of the defendant's appendix. Nowhere is there any explanation as to why he could not travel to the United Kingdom to attend the hearing on 1st April 2014. Rather he was taking the point that the hearing could not take place on those dates because the defendant was in breach of what were described as byelaws.
- The proceedings commenced on 1st April 2014 with the claimant attending by telephone in Pakistan. I have already made the point that that was not satisfactory in a case of this sort. Dishonesty was at the heart of the defendant's case against the claimant and his credibility and reliability were in question. He would surely understand, and the committee too would understand, that credibility and reliability are best assessed with an individual in person so that aspects of demeanour, intonation et cetera can properly be visualised. The question arises as to whether proceedings by telephone are so fundamentally or inherently unfair that without more it gives rise to an arguable judicial review point. That is the claimant's third amended ground, his natural justice point, and of course I will be coming to it.
- I come then to the claimant's grounds as amplified by Mr Harris's skeleton argument and in oral argument. Reference is made to Rule 9.2 of the 2014 Regulations. It is submitted that consideration should have been given at the outset as to whether exceptional circumstances existed to justify proceeding on the given date rather than adjourning the matter for such period and under such directions as the committee saw fit. In the exercise of its discretion under Rule 9.2, and here I am paraphrasing, not setting it out verbatim, the committee must consider the appropriateness of short notice and the degree of urgency and weigh up the public interest as against any prejudice to the registrant.
- Mr Harris accepts that the claimant did not make an application to adjourn the hearing. Indeed, he was asked on several occasions by the chair of the disciplinary committee whether he was content to proceed. It is clear from what the claimant said that he was so content. Looking at the transcript of the proceedings, it seems clear to me that what the claimant was saying was that the documents which arrived late, that is to say the 567 documents to which I have already made reference, should be excluded from consideration and could not be relied on by the prosecutor at all.
- The legal adviser advised the disciplinary committee that there was no power under Rule 9.2 to exclude documents on the suggested basis. What the committee decided at the time was not to exclude the documents and by implication to go ahead. No detailed reasons were given. The reasons for the decision on Regulation 9.2 are set out in the final determination of the disciplinary committee on the merits of the case. Those reasons appear between para.9 and para.10. Express reference is made to the issue of short service and Regulation 9.2. Express reference is also made to an apparent absence of power in the committee to order that the prosecutor cannot rely on any particular evidence. The basic point being made in para.10 is that there was no prejudice to the claimant by short service, no power to direct that the prosecutor abandon evidence and that the matter should therefore proceed.
- It is submitted by Mr Harris that this was an erroneous approach and that in essence the committee should have interpreted the submission of the claimant as an application to adjourn or, alternatively, should have adjourned the matter of its own motion. When pressed by me, Mr Harris submitted on my understanding that there probably was implied power in the committee to exclude documents if unfairness would have resulted. The way I sought to put Mr Harris's submission, perhaps doing the best I could to put it as highly and as clearly as it might be put, is that the committee should really have put the prosecutor to an election. It either should have said to the prosecutor you cannot rely on the documents or, alternatively, if you do want to rely on the documents the justice of the case demands or mandates that the matter be adjourned. That did not happen and so no proper consideration was given to the issue of adjournment at all.
- In my judgment, there is an inherent and fundamental difficulty with the submission and it is that the claimant was not seeking an adjournment at all. I think that it is arguable that there was power to exclude reliance on these documents under the committee's inherent powers, but, fundamentally, there was no prejudice to the claimant in permitting the prosecutor to rely on these documents. This was because the claimant had seen all the documents before. True it is that he did not know until 4th March that the documents were going to be expressly relied on against him by the prosecutor in these disciplinary proceedings. They could hardly have been a surprise to him. Insofar as there were relevant matters set out in the documents, he had had ample opportunity to deal with them and undertake any relevant necessary investigations before March 2014. As it happens, on a brief reading of the documents, there is not much in them in any event. The really material documents lie elsewhere.
- Given therefore that in my judgment there was no prejudice, or at least the committee was certainly entitled to conclude that there was no prejudice, and given that there was no application to adjourn, even had the committee presented or put the prosecutor to its election, as I have previously indicated, the outcome would have been the same. The matter would have gone ahead with the documents. I appreciate that the committee did not make express reference to the need to establish urgency, but in my view this scarcely arose as a free-standing point and in any event the committee must have taken the view that much delay had already occurred in this case, and that it was appropriate to proceed. I cannot accept Mr Harris's submissions on that point. Indeed, I did not call on Ms Fatima to deal with this aspect of the procedural case.
- I turn then to consider the issue of hearsay. There is extremely wide power under Rule 11 to admit hearsay evidence but it is subject to the requirements of justice and fairness to the claimant. The evidence in question was two witness statements, which I am prepared to accept for present purposes related to witnesses who the claimant always thought would give live evidence. It was only on 1st April that he understood for the first time that the prosecutor was seeking to adduce that evidence as hearsay.
- The evidence in question is, first of all, a witness statement from Ms Mandary which refers to two telephone calls in October 2011 from someone who claimed to be the claimant asking ACCA not to pursue the disciplinary proceedings against the claimant. The second piece of hearsay evidence was a witness statement from Mr Peter who was an IT technician within ACCA. He undertook a search of the server in relation to an email address which is [email protected]. That search did reveal two sets of email communications on 24th June 2011 and 27th June 2011. They relate to the payment or rather non-payment of the ACCA membership subscription pertaining to Mr Sipra. The emails came from the relevant email account and gave the name of a Mr Sipra and a matching membership or registration number. The claimant objected to the adduction of this evidence as hearsay and said that he contested it. At the time the objection was made, in other words before the decision was made to admit it under Regulation 11, no further details were given. Much later however it was suggested in relation to Mr Peter's evidence that he fabricated, or must have fabricated, the exhibit to his witness statement by copying and pasting it onto a Word document, but that was not the point he took at the time the evidence was admitted.
- The way the disciplinary committee dealt with the hearsay evidence appears at para.13 and para.14 of its determination. At the time of admitting the evidence it did not give any reasons, but para.13 and para.14 contained the reasons. Reference is made to the relevant rule and the advice from the legal adviser. Under para.14 it is said that the committee considered the evidence, thought that the evidence was relevant, noted that the evidence would not be tested in cross-examination, but would decide in due course what weight to give to the evidence in those circumstances. Then it is said "accordingly, the committee determined that it was in the interests of justice for this evidence to be read". The fact that the committee did not give reasons at the time, in my judgment, gives rise to no judicial review point. The issue is not properly pleaded by Mr Harris. In any event, I do not think it is arguable that the reasons which we see in the final determination were not the committee's true reasons, albeit unexpressed on 1st April 2014.
- There is some merit in the point, although it was not quite the way Mr Harris put it, that the interests of justice consideration came at the very end of para.14 when it should really have come at the very start. However, I have to look at the matter in the round on the basis of the submissions made to the committee and the inherent nature of this evidence. Looking at the evidence of Ms Mandary, the position is that she received two telephone calls from someone who claimed to be Mr Sipra. The notion that she has entirely fabricated that evidence and there are no such telephone calls from anyone is inherently unlikely, indeed close to being ridiculous. If someone was impersonating Mr Sipra, which on my understanding is the claimant's real case, well then there was nothing about which Ms Mandary could have been effectively cross-examined. It would be a matter of comment or inference.
- In relation to Mr Peter's evidence, I have already made the observation that the claimant did not submit to the committee, at least at that stage, that he had fabricated his exhibit. The committee therefore had to address the evidence on the basis of what they knew at the time, namely simply it was contested. But that in itself did not give rise to any real concerns in the context of the interests of justice. All that the witness had done was run an IT search and we see the fruits of that search. The inferences to be drawn would be considered in due course. Overall, I do not consider it is arguable that the committee's decision under Regulation 11 was flawed.
- I turn to the third ground, which is the natural justice ground. That is a full-frontal attack on the way in which the matter proceeded with, as I have said, the claimant at the other end of the phone working in difficult circumstances, unable to see the committee who were trying him, unable to see witnesses whom he was required to cross-examine, acting in person of course throughout and with the committee unable to see him and, therefore, unable properly to assess his credibility and reliability. I note and respect Collins J's view that this sort of thing should really never happen, but in my judgment and with respect that is not the correct question. There is certainly power to proceed in these circumstances. No one is suggesting that there is not.
- Plainly, it was open to the claimant at the outset of the hearing to make the very points I have just made or at least the essence of those points. Had he made the points, the outcome could not of course be predicted, but he did not make those points. Instead, he made rather a different point covering the matters I have already examined. I regret to say that I agree with Ms Fatima that the objection, and it is a fundamental objection to the process, was waived by the claimant in not making an application to adjourn or rather, and it can be put more strongly in ACCA's favour, not taking up the invitation of the chair of the disciplinary committee and instead agreeing to proceed.
- The disciplinary committee were not, it is fair to say, inviting the claimant to make an application which they would necessarily accede to, but what they were doing was checking more than once, indeed on several occasions, that the claimant was content to proceed in these circumstances. In my judgment, it cannot be said that the upshot was so inimical to the interests of justice overall that this court should interfere.
- The final ground relates to the merits of the case in a number of respects, in particular to two aspects of the case. The first matter relates to the email address to which I have already referred, namely [email protected]. It is said that a submission was clearly made to the committee that this was not Mr Sipra's true email address and that someone had created it for the purposes of impersonating him. Alternatively, although I am not sure that the point was necessarily clearly made in this way, someone had hacked into his email address. Mr Harris made a submission which came close to that. It is said that although that submission was made by the claimant towards the end of the proceedings, particularly in the context of the exhibit to Mr Peter's witness statement, the committee misunderstood the point when they addressed the case against Mr Sipra starting at para.29 of the determination.
- I agree with Ms Fatima that the issue has to be considered in the round, not merely in the context of the assertion being made in connection with the email, but with regard to the entirety of the evidence. It was Mr Sipra's case that it was not he who travelled to Belfast for interview on 18th August 2011 and it must therefore have been someone else. The email address was not the only evidence against the claimant. There was a plethora, frankly, of other evidence which the committee addressed in some detail starting at para.29 of the determination. Included in that evidence is live evidence from two witnesses, Mr Gray and Mr Gardener, who were present in Belfast on that occasion and who testified before the committee giving positive identification evidence of the claimant. There was also evidence relating to a visitor's book and then disbelief of an alibi witness and, finally, consideration being given to the email. The committee certainly had the point that Mr Sipra was saying that someone was impersonating him. We can see that from para.34 of the determination.
- The committee thought that, having regard to all of the evidence in the case, the contention that someone was impersonating the claimant with reference to his address, his telephone number and his email was completely implausible having regard to all of the evidence in the case. In my judgment, that was a conclusion it was entitled to reach and it did not misunderstand the case that was being put by the claimant. When one examines the contents of the emails exhibited to Mr Peter's statement, one can understand even more fully the implausibility of that case, because whoever was sending that email knew the correct registration number and was also seeking an indulgence in relation to payment of fees. But the point is, regardless of the merits, that the committee did understand the case that was being put.
- The last point relates to the LinkedIn address. This is item 2 under this rubric at p.283. It is said that the committee misapprehended the issue of whether the claimant had a LinkedIn account. The committee stated incorrectly that the claimant accepted that he had such an account, whereas the opposite is true. Now, at para.35 of the determination the committee does appear to have misunderstood what the claimant accepted. It said that he accepted that he had a LinkedIn profile, but that was not the case. He denied that he had a profile, although there was a profile which purportedly related to the claimant. What the committee did do was examine the evidence, particularly in relation to Bahari Associates, and concluded in the context of the contention that the profile was highjacked that this was highly unlikely to have been the case. Ms Fatima characterises this as a makeweight point, but I am not quite sure that that is quite right since it was one of the charges against Mr Sipra that he was dishonest in relation to the LinkedIn profile. This is allegation three set out under para.15 of the determination.
- I think the stronger point is that whatever the error which was made by the committee it was not determinative of the analysis, namely it rejected the assertion that someone had highjacked this profile. It was just as implausible really as the case that someone had high-jacked by impersonation, or by whatever other means, the email address. The committee gave detailed reasons in relation to the email address, which reasons I consider to be unimpeachable. So the error in misapprehension as to the nature of the concession which was not made by Mr Sipra was not critical to the eventual conclusion under para.35.
- I conclude, therefore, after a lengthy hearing which has taken some three hours and a judgment which has taken I think some 50 minutes, that there is no arguable merit in any of the points sought to be raised by the claimant and this application must therefore be refused.
MS FATIMA: My Lord, when permission was refused on paper an order was made for our costs of preparing the acknowledgment of service. As a result of that, there was some correspondence between my instructing solicitors and the claimant in which he was sent our schedule of costs and explanations were given for that schedule in response to the points that he had raised. We attach that correspondence to our skeleton argument.
MR JUSTICE JAY: And the upshot is?
MS FATIMA: The upshot is that we do seek a record for the costs that are claimed in that schedule, which are the costs that were incurred in preparing the grounds of resistance. No further costs are being claimed. The costs that are claimed for the acknowledgement of service and grounds of resistance were counsel's costs only. My instructing solicitors are not seeking their costs. The costs that were incurred then were incurred in my work on the case.
I had previously been instructed in relation to another judicial review that Mr Sipra brought in which he challenged the joinder. So I had read in and been involved in that case some years earlier. I was instructed again prior to taking silk and, once this case was issued, I settled the documents. The money relates to my work on the acknowledgement of service alone. We explained the basis of my work and we have had no further----
MR JUSTICE JAY: What is the bottom line? How much is it?
MS FATIMA: It is £17,500, my Lord, which is approximately fifty hours work at £350, which was my pre-silk rate which is the rate that we continued to work under even though this was a post-silk. The fifty hours, my Lord, also includes reading two and a half thousand pages of the transcript and the numerous submissions.
Mr Sipra has subsequently put in a costs schedule in which he is claiming a thousand hours for the work that he has spent. The fifty hours was work that was undertaken in relation to both trying to understand what had gone on before through the various proceedings and also trying to work out what his case was, because it kept changing. As I say, no fees have been claimed since that date. All the work that we did before Collins J in reformulating our resistance and the skeleton argument, today's attendance, none of Herbert Smith's costs have been claimed at all, but we do seek the order for the £17,500.
MR JUSTICE JAY: Mr Harris, what do you say about that?
MR HARRIS: I cannot contest costs in principle. All I can do is draw attention to the slight disparity between the amount sought for my learned friend's services, however effective they were, £17,500 is the sum effectively claimed. The sum claimed by my client is a little over £11,000.
MR JUSTICE JAY: Yes, but he is claiming at a different rate. He is claiming at a litigant in person rate.
MR HARRIS: He certainly is, but it all comes down to figures at the end of the day.
MR JUSTICE JAY: It does not really. Ms Fatima's junior rated was £350.
MR HARRIS: I can say no more.
MR JUSTICE JAY: I suspect it is a junior rate for this class of work. It would not have been doing all cases, but she is entitled to say that is her rate for this class of work.
MR HARRIS: Indeed it is, my Lord. I have said my piece. I will say no more. I am already eating into your Lordship's lunchtime and I regret that, but I can say no more on costs.
MR JUSTICE JAY: I think they are entitled to their costs in the amount claimed, £17,500. I do not think £350 an hour for this sort of work is unreasonable.
MS FATIMA: My Lord, I am grateful. We will have the normal days for payment.
MR JUSTICE JAY: Yes. Thank you. Is there anything else, Mr Harris?
MR HARRIS: No, thank you, my Lord.
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