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Mr Awodola had sought to appeal a decision striking him off as an accountant. The Association refused his appeal and wrote to him in November 2018 informing of his right to apply for reconsideration of the refusal and for such an application to be considered at an oral hearing. On 01 January 2019, the Association changed its Regulations abolishing the right to an oral reconsideration hearing. On 02 January 2019, Mr Awodola filed his application for an oral hearing supported by written reasons within the 28-day time limit referenced in the November letter. The Association held that it had no discretion to grant an oral hearing as its new Regulations no longer provided for such a hearing. Mr Awodola brought judicial review proceedings arguing that the Association had erred in applying the 2019 Regulations retrospectively.
In the Administrative Court, HHJ Walden-Smith, sitting as a judge of the High Court, quashed the Association’s decision. The Association appealed to the Court of Appeal.
Snowden LJ, giving the leading judgment held that on a proper construction, the Association’s Regulations do not apply retrospectively. The Court held that the case law relating to the retrospective application of Statutes assisted and that in construing the Regulations, one should start from the presumption that the Association did not intend to cause results that were unfair to its members. Asplin LJ held that the interpretation adopted by the Association led to results which are both absurd and harsh.
In guidance that is likely to have application to all professional bodies, the Court gave guidance. Firstly, the Court held that if ACCA wishes to alter the accrued rights of members in extant disciplinary proceedings, it should carefully consider the potential impact of changes on members and then make clear what changes are to apply retrospectively by enacting specific transitional provisions.
Secondly, the Court set out the consequences where proper consultation and communication of rule changes do not take place. It is understood that ACCA’s error in interpreting its own rules has affected a number of other cases.
Josh Hitchens appeared unled alongside Sian McGibbon of 4-5 Gray’s Inn. They were both instructed through Advocate.
Read the full judgment here:
https://www.bailii.org/ew/cases/EWCA/Civ/2021/1635.html
Joshua Hitchens practices in Public, Commercial and Employment Law. He is a member of the Equality and Human Rights Commission’s Panel of Counsel and has acted both led and unled in a number of high profile judicial review and public law matters in the High Court and the Privy Council.
To find out more about Joshua please contact Paul Barton or Mark Gardner on +44 (0)20 7353 6381 for a confidential discussion.
News 12 Nov, 2021
