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On appeal from: [2009] EWCA Civ 730

The appellant accountant was convicted in Jersey of failing to comply with a direction of the Jersey Financial Services Commission. The Institute brought a complaint against the appellant that he was liable to disciplinary action under the Institute’s rules that he had committed an act or default liable to bring discredit on himself, the Institute or the profession. Under the Institute’s rules, a conviction outside England and Wales was conclusive evidence of such an act or default if it corresponded to one which was indictable in England and Wales. The disciplinary action was dismissed on the grounds that the offence did not correspond with any indictable offence in England or Wales. The Institute brought a second complaint, relying on the conduct that led to the conviction in Jersey. The tribunal held that the second complaint could be brought as the two complaints did not allege the same thing, and the appellant applied for judicial review.

Held: unanimously allowing the appeal. The principle of res judicata required that the second complaint be dismissed. On a true construction of the Institute’s bye-laws the role of a conviction was only to provide conclusive proof of a breach of the bye-laws. It followed that a conviction was not capable of being itself the act complained of as breach of a bye-law. Principles of res judicata not autrefois convict applied to disciplinary proceedings, which are civil in nature. Res judicata is a generic term of which cause of action estoppel and issue estoppel are two species. The appellant successfully replied on the former, which creates an absolute bar.

For judgment, please download: [2011] UKSC 1
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