Professional Disciplinary Case Digest – April 2017
A summary of legally noteworthy judicial reviews and High Court appeals regarding professional disciplinary panels and their decisions.
R (Zai Corporate Finance Ltd) v AIM Disciplinary Committee of the London Stock Exchange PLC & Anor [2017] EWHC 778 (Admin)
o Hearing disciplinary proceedings in private
o Recusal of panel members due to alleged competition and apparent bias
Malins v Solicitors Regulation Authority [2017] EWHC 835 (Admin)
o Alleging dishonesty in disciplinary charges
R (Pitt and Tyas) v General Pharmaceutical Council [2017] EWHC 809 (Admin)
o Disciplinary standards regarding professionals’ private lives
Hearing disciplinary proceedings in private
Recusal of panel members due to alleged competition and apparent bias
The applicant was a company facing disciplinary proceedings brought by the London Stock Exchange before the Alternative Investment Market (AIM) Disciplinary Committee (ADC). It sought judicial review against case management decisions of the ADC.
The first such decision was to hear the proceedings in private. The Court’s interpretation of the ADC rules was that private hearings were the presumption, and that a public hearing could only be requested by the applicant, not demanded. Therefore the onus was on the applicant to demonstrate “good reason” for a public hearing, the Court inserting language used by the Court of Protection. The applicant’s reliance on the standard virtues of open justice were not sufficient to establish a good reason.
Arguments reliant on art. 6 ECHR also failed. The Court was sceptical that art. 6 was engaged by ADC proceedings. Instead of determining that question, however, it found that there was no violation of the right in any event. Provided the ADC published its results in public it was compliant with art. 6 (and the “interests of justice” exception under art. 6). Full reasoning for the result was not necessarily required.
The second decision was the ADC’s refusal to recuse its panel members. The applicant alleged apparent bias because of the members’ connections to competitors of the applicant. The Court found that a mere connection was not sufficient to establish apparent bias, and, upon enquiry into those connections, rejected the assertion of apparent bias.
Permission for judicial review was refused.
As general guidance, the Court noted that lengthy reasons for case management decisions are not generally required: “less is more”.
Malins v Solicitors Regulation Authority [2017] EWHC 835 (Admin)
Alleging dishonesty in disciplinary charges
The appellant solicitor sought to challenge being struck off by the SRA. It was alleged that in the course of litigation, he had created documents that bore the wrong date and had then relied upon those backdated documents during settlement negotiations with the other side. He was charged with breaching his obligations of integrity in relation to both the creation of the documents and the reliance upon them, but was only charged with dishonesty in relation to the reliance. The charges were upheld by the SRA tribunal.
On appeal, the Court considered that the terms “honesty” and “integrity” were synonymous (expressly disagreeing with Holman J in SRA v Wingate & Anor [2016] EWHC 3455 (Admin), where the Court had held that honesty tests involve both objective and subjective analyses, whereas integrity tests involve only an objective analysis). The mistaken distinction between the terms had effectively led the disciplinary tribunal to make dishonesty findings against the appellant in relation to all of the charges.
The Court was unequivocal that if someone faces charges of dishonesty, that should be known to them by clearly stating it in the charges.
The appeal therefore succeeded. The faulty charges in relation to the creation of the backdated documents could not be corrected at this late stage. Therefore only the charge in relation to the reliance on the backdated documents could be pursued against the appellant on retrial.
R (Pitt and Tyas) v General Pharmaceutical Council [2017] EWHC 809 (Admin)
Disciplinary standards governing professionals’ private lives
Two members of the Pharmacists’ Defence Association sought judicial review against the new terms of the Standards for Pharmacy Professionals introduced by the GPC. Most notably, the applicants challenged the following term: “The standards need to be met at all times, not only during working hours.”
The first challenge was that the term was ultra vires, the GPC having no statutory authority to adjudicate on pharmacists’ private lives. The Court rejected this, finding that the misconduct relied upon by the GPC was no different from the misconduct as defined in case law. Such definition has historically included conduct outside of professional practice that nonetheless brings the profession into disrepute.
The second challenge was that of uncertainty. This argument failed given the impossibility of strictly defining all acts of misconduct.
Reliance on arts 8 and 10 ECHR also failed. Where no disciplinary charges had been pursued against the applicants, they could not be considered to have victim status; their case was not akin to “potential victim” cases. In any event, there was no violation of their rights. If in their application the new professional standards did give rise to a rights violation, the standards would give way to the protections of the Human Rights Act 1998, given that they lack statutory force.
Permission for judicial review was therefore refused.