Andreou v Institute of Chartered Accountants in England and Wales [1998] 1 All ER
| DOI | https://doi.org/10.1108/eb025890 |
| Pages | 254-255 |
| Date | 01 January 1999 |
| Published date | 01 January 1999 |
| Author | Jason Haines |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 6 No. 3 — Disciplinary Proceedings
DISCIPLINARY PROCEEDINGS
Andreou v Institute of Chartered Accountants in
England and
Wales
[1998] 1 All ER
Jason Haines
In 1972, Mr Andreou became a member of the
Institute of Chartered Accountants for England
and Wales (The Institute). On 14th December
1993,
the disciplinary committee of the Institute
found him guilty of serious disciplinary charges
and as a result he was excluded from membership.
Mr Andreou wished to overturn this decision but
failed to bring an internal appeal within 28 days,
the time prescribed by the Institute's by-law 85(c).
Mr Andreou was refused an extension of time in
which to appeal, being informed in a letter from
the Institute that stated 'The Institute had no dis-
cretion to extend the time limit'. Being unable to
appeal, Mr Andreou then made an application for
leave to apply for judicial review in order to chal-
lenge the
vires
of by-law 85(c) and the decision of
the Institute that it had no power to extend time.
On 26th April 1995, Mr Andreou was granted
leave by the Court of
Appeal.
He was also allowed
to amend his application to include a claim for
damages. However, he failed to enter a notice of
motion within 14 days required by RSC Ord 53
r5(5).
He then applied for an extension of time in
which to enter his notice of motion. This was
refused on the grounds of unjustified delay. The
Court of Appeal dismissed his appeal against that
decision but ordered that the claim continue as if it
begun by writ pursuant to RSC Ord 53 r9(5). By
amended notice the plaintiff applied for an order
of
certiori
quashing the Institute's decision of 22nd
February. A declaration that the by-laws insofar as
they imposed the 28-day period for appeal without
exception, were unlawful and damaging. The
application was dismissed on the ground that the
complaint was of
a
private character, notwithstand-
ing it involved an examination of the Institute's
by-laws. The Institute appealed.
CLAIM
The plaintiff contended that it was an implied
term of the membership contract that the Insti-
tute's express power to make by-laws as it thought
fit would be exercised fairly and reasonably. Also it
was submitted on behalf of the plaintiff that if the
Institute is a public body it is not a public body for
all purposes and that not every decision it reaches
is reviewable on judicial review. Further if the
issue in these proceedings is a mixed issue of pri-
vate law and public law, then the application for
judicial review is neither the only nor the most
appropriate avenue by which the defendant might
seek a remedy. In any event this is a case which is
more appropriately resolved in a private law action.
The Institute applied to strike out the applica-
tion as an abuse of the process of the court on the
following grounds. The main submissions of the
Institute on this appeal can be paraphrased under
four heads:
(1) The disciplinary functions of the Institute are a
matter of public law and the exercise of these
functions can only be challenged by judicial
review. A claim in private law is therefore mis-
conceived and bound to fail.
(2) Further, as formulated, the private law claim is
contingent on establishing the invalidity of by-
law 85(c) and therefore cannot succeed
because the Court of Appeal has established
that an attack on the by-law by means of
judi-
cial review is now precluded by the procedural
mistakes which were made.
(3) In addition, if one takes the account of the
history of the proceedings, the claim is an
abuse of process because the Court of Appeal
has already decided that the public law claim
should not be allowed to proceed and that this
is an attempt to resurrect that claim.
(4) In any event the private law claim is bound to
fail,
because even if by-law 85(c) could be
shown to be unreasonable, the court would
not hold the rule to be void or unenforceable
on that ground alone.
Page 254
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