R Vesna Mandic-Bozic v British Association for Counselling and Psychotherapy United Kingdom Council for Psychotherapy (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Mostyn
Judgment Date07 December 2016
Neutral Citation[2016] EWHC 3134 (Admin)
Docket NumberCase No: CO/3036/2016
CourtQueen's Bench Division (Administrative Court)
Date07 December 2016

[2016] EWHC 3134 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Mostyn

Case No: CO/3036/2016

Between:
The Queen on the application of Vesna Mandic-Bozic
Claimant
and
British Association for Counselling and Psychotherapy
Defendant

and

United Kingdom Council for Psychotherapy
Interested Party

Alison Foster QC and Rory Dunlop (instructed by Kingsley Napley LLP) for the claimant

Ijeoma Omambala (instructed by Russell-Cooke) for the defendant

The interested party was not represented

Hearing date: 29 November 2016

Mr Justice Mostyn
1

The claimant is a psychotherapist. She is a member of the British Association for Counselling and Psychotherapy (the defendant). She is also a member of the United Kingdom Council for Psychotherapy (the interested party). Both the defendant and the interested party are professional bodies for psychotherapists and counsellors. Psychotherapists and counsellors are not regulated by statute. The government is seemingly content with the system of voluntary regulation that prevails, notwithstanding that it is not a legal requirement that a practitioner must be a member of one or other body. In the real world a practitioner has to be member of at least one body. They would not get any work otherwise. Most are members of both.

2

The existence of two separate bodies regulating the same field is surprising. It was explained to me that this is a historical accident. It was argued by Miss Omambala that the interested party's membership is a larger set than that that of the defendant; but I do not accept that. Both cover psychotherapists and counsellors. The sets of practitioners governed by the defendant and the interested party are not intersecting but congruent. They are the one and the same. Similarly, the two sister bodies stipulate common ethical standards for their members. It is unthinkable that they should differ. Those standards may be expressed in different language by the two bodies, but they are nonetheless the same. Of that there can be no doubt.

3

The claimant asserts that the defendant's decision to take disciplinary proceedings against her for alleged misconduct amounts to an abusive duplicative action and is therefore unlawful. She says this because the interested party has concluded an exhaustive disciplinary proceeding against her based on identical facts alleged by the complainant. In that proceeding none of the contested facts were found proved. Some facts were admitted by the claimant. In relation to some of those admitted facts the disciplinary panel found that the claimant was guilty of misconduct, but it held that her fitness to practise was not impaired and it imposed no sanction. The claimant is appealing the findings of misconduct made by the disciplinary panel of the interested party. She says that when that process concludes that should be the end of the matter. She says that it is unfair, oppressive and unlawful that she should face a re-run of the process at the hands of the defendant.

4

The law about the restraint of duplicative proceedings goes back a long way. In the field of criminal law, the defences of autrefois convict or acquit can be traced back to the very earliest days of the common law. Only in highly exceptional circumstances can a defendant who has been acquitted or convicted be tried again on the same facts. The rule against double jeopardy is a constitutional right in the USA under the Fifth Amendment. The rule is incorporated in the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

5

In the civil sphere the law's aversion to duplicative proceedings finds expression in the doctrine of res judicata. This means literally "the matter has been adjudged". The legal principles have been given magisterial exposition by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 [2014] 1 AC 160 at [17]–[26]. He explains that there is in effect a hierarchy of types of duplicative cases, and that the higher up the hierarchy the case is, the harder it will be to open the door to a second hearing. That hierarchy is as follows.

i) First, is "cause of action estoppel". This is where both the parties and the subject matter of the litigation are the same in both the first action and the prospective second action. Here, there is a near absolute bar on litigating the matter twice. The only exceptions are where fraud or collusion can be proved. A party cannot get round the bar by putting up a front-man to litigate anew. Whether the parties are the same has to be judged realistically not literally. Further, a party cannot get round the bar by seeking to argue new points which were not argued first time round. The subject matter of the original litigation extends to "every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time" ( Henderson v Henderson (1843) 3 Hare 100 at 115 per Sir James Wigram V-C).

ii) Next, is "issue estoppel". Here the parties must be the same (in reality), but the subject matter of the litigation in the prospective second action is not the same as that in the original action. In this scenario a bar may arise "where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue" ( Arnold v National Westminster Bank plc [1991] 2 AC 93 at 105E per Lord Keith of Kinkel). In this situation, the bar is not absolute. Here, the public policy on which the doctrine is based and principles of justice have greater force. A discretion arises to do justice. It is in principle possible to challenge the previous decision on the relevant issue not just by taking a new point which could not reasonably have been taken on the earlier occasion, but even to reargue in materially altered circumstances an old point which had previously been rejected.

In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd Lord Sumption summarised the principles relating to these two species of estoppel at [22] as follows:

(1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action.

(2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised.

(3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.

iii) Finally, there is the situation where something has been decided in the original action which is sought to be re-argued in a second action but where the parties to the two actions are different, and therefore neither issue estoppel nor cause of action estoppel can operate. Lord Sumption explains at [25] that the famous case of Johnson v Gore-Wood & Co [2002] 2 AC 1, HL was in fact just such a case. He explains that in this type of case the court is deploying its procedural powers to prevent abusive conduct rather than applying rules of substantive law, although he accepts that the different means have "the common underlying purpose of limiting abusive and duplicative litigation".

This has been labelled the "collateral attack" doctrine. The most well-known case on the subject is probably the decision of the House of Lords in Hunter v Chief Constable of West Midlands Police [1982] AC 529, where Lord Diplock stated that the circumstances in which this abuse of process can arise are very varied. The entire jurisprudence was summarised in a definitive judgment of Sir Andrew Morritt V-C in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, CA. At [38] he formulated four principles, of which of which I need only cite the first and fourth:

(1) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court.

(4) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be re-litigated or (ii) to permit such re-litigation would bring the administration of justice into disrepute.

It can be seen that in this scenario there is no starting point that the earlier decision should act as a bar to a second action. Rather, it is the other way round. It is for the party trying to stop the second action to show that either it would be manifestly unfair to him or her that the same issues should be re-litigated, or that to permit re-litigation would bring the administration of justice into disrepute. Subsequent cases applying (or not applying) this doctrine show that they are highly fact-specific: see, for example, the recent decision of Shalabayev v JSC BTA Bank [2016] EWCA Civ 987, where Gloster LJ stated at [55] that "it all depends on the particular circumstances concerned as to whether the principle is engaged".

6

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