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Disciplinary and Regulatory Proceedings

FROM £125.00

Examines the general principles that apply to all regulatory and disciplinary tribunals

Disciplinary and Regulatory Proceedings is the leading work on this important and dynamic area of law. For 20 years it has provided authoritative guidance to lawyers, tribunals, and other experts dealing with professional discipline and regulation.

This new edition has been written by a new team of specialist authors and covers all the major regulatory fields of expertise.  The text has been substantially rewritten and restructured into four major parts: General; The Disciplinary Process; Specific Regulatory Regimes; and Data Protection and Freedom of Information.

As with previous editions it looks in detail at the application of the general principles that govern this area of law, together with greater analysis of case-law, rules and practice directions of the various disciplinary bodies and guidance issued by the various professional bodies. It also provides in depth treatment of the relevant procedures to be followed, including an extended section on the decision to prosecute.

This edition includes a new chapter on disclosure and confidentiality, and up-to-date chapters on healthcare, financial services and legal services, which have all been substantially rewritten to reflect major legislative changes.

Visit the authors' regulatory law webpage

Part I: Disciplinary and Regulatory Proceedings

  • The Basis of the Jurisdiction
  • The Right to a Fair Trial
  • The Common Framework
  • The Grounds for Disciplinary Action
  • The Role of Ethical Guides and Codes of Practice
  • Commencing an Investigation
  • The Investigation
  • The Decision to Prosecute
  • The Tribunal
  • Pre-trial Issues
  • Public Hearings
  • Witnesses, Evidence and Proof
  • The Hearing
  • Penalties, Powers and Costs
  • Appeal and Judicial Review
  • Regulatory Functions
  • The Enforcement Powers of the Financial Services Authority
  • Healthcare Regulation
  • The Regulation of Legal Services
  • The Civil Liability of Disciplinary and Regulatory Bodies
  • The Retrospective Effect of Rule Changes
  • Data Protection and Freedom of Information

Part II: Disciplinary and Regulatory Arrangements in Practice

  • Practical Advice
  • Exemplars

Appendix

  • The Human Rights Act 1998
"a well crafted breath of fresh air on a relatively dynamic subject of growing complexity and interest ... an excellent source textbook ... the only comprehensive legal reference book on regulatory and disciplinary proceedings ... an invaluable aid ... immensely practical focus ... This makes for a text that is highly readable"
Academy of Experts
Click here for the full review

"This book provides an accessible and thorough account of the general underlying all disciplinary and regulatory proceedings ... a first port of call."
PI Brief Update
Click here for the full review

"The definitive work of reference on regulation ... well-established work ... an essential tool ... an authoritative source of guidance ... All regulatory lawyers should have a copy."

Phillip Taylor and Elizabeth Taylor of Richmond Green Chambers
Click here for the full review

"The new edition provides authoritative guidance on all relevant aspects of the law in this field ... re-structured in a helpful and clear way"
Association of Regulatory and Disciplinary Lawyers Bulletin

REVIEWS OF THE PREVIOUS EDITIONS

"hard pressed practitioners will certainly applaud the authors' overall aim of making this complex subject as accessible as possible ... together with its accompanying website, the book is an indispensible resource for practitioners involved in any way with disciplinary and/or regulatory proceedings"
Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

"one of the leading textbooks in the field of disciplinary and regulatory proceedings, providing an authoritative examination of the general principles that apply to the majority of regulatory and disciplinary tribunals"
Association of Regulatory and Disciplinary Lawyers Bulletin

"the leading work on this important area of law ... Eminently readable as well as thorough and analytical"
Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

"this excellent and authoritive work is an invaluable aid not only to regulatory enforcement lawyers but to anyone working in a regulated industry or dealing with public bodies"
Association of Regulatory and Disciplinary Lawyers Bulletin

"the first source of reference for anyone dealing seriously with this subject"
New Law Journal

"the latest edition of this excellent and authoritive work is an invaluable aid not only to regulatory enforcement lawyers but to anyone working in a regulated industry or dealing with public bodies"
Sidney Myers, Partner, Allen & Overy LLP
Association of Regulatory and Disciplinary Lawyers Bulletin


"truly authoritative and highly relevant. It is an elegant and beautifully crafted tome... It has everything you need and more beside in a highly readable text"
Justice of the Peace

"essential for those dealing in this area of law"
Professional Briefing

"provides an excellent and practical overview of the world of disciplinary proceedings ... a textbook that is not only eminently readable but also enjoyable!"
Michael Williams, Barrister

CHAPTER 5

THE INVESTIGATION

Gregory Treverton-Jones QC, Peter Mant

(1) WHAT MAY TRIGGER AN INVESTIGATION?

5.01 A disciplinary investigation may be triggered by input from a variety of sources, including:
  • a complaint narrowly defined, for example, from a client, a competitor, a member of the public, or, in the case of lawyers, a judge;
  • a report from the monitoring arm of the regulator;
  • a report from an employer or individual in accordance with a requirement of the regulator;
  • information passed from one regulator to another;
  • publicly available information, for example the press
  • the report of an official investigation or inquiry, whether published generally or not.
Complaints from clients and third parties

5.02 For most regulators the largest single source of complaint is the dissatisfied client. Many client complaints are trivial, deriving more from bad client relations than misconduct, but it is vital for the good name of the regulator that they should be adequately dealt with, though not necessarily through the full rigour of disciplinary proceedings.

5.03 Paradoxically, the most serious forms of misconduct may not give rise to an external complaint. The complaint may involve sums of money so large, or other issues so important, that nothing short of litigation is likely to satisfy the aggrieved party. After the conclusion of the claim the injured party may consider that he has little to gain from pursuing a complaint. In such cases it will be up to the regulator to take up the matter of its own initiative if it becomes aware of the matter.

5.04 A common clause in professional indemnity insurance policies provides that the details of a settlement may not be disclosed and that no complaint may be made concerning the subject matter of the settlement. Such clauses are prohibited by some regulators.

5.05 It is not customary to restrict complainants to those who are directly affected by the actions of the person complained against.

Complaints arising from monitoring

5.06 Since the advent of statutory regulation many trades and professions have been subject to regular monitoring by a regulator. Most defaults thrown up by monitoring visits are trivial and can be dealt with by remedial counselling and/or an informal warning, followed up, if necessary, by a return visit in orderto ensure that the practices have in fact improved. Sometimes, however, nature or extent of the defects calls for disciplinary action, or furtherinvestigation with a view to disciplinary action.

5.07 It may seem surprising that, following a monitoring visit, further investigation is necessary before disciplinary proceedings can be commenced.
An investigation may, however, be needed for three reasons:

(1) what the compliance partner or director may have admitted at the closing meeting with the inspectors may be repudiated by the senior partner or managing director when the spectre of disciplinary proceedings is raised or realised;

(2) both the inspectors and the firm may have been misled as to whether on a proper construction of the regulations a breach has in fact occurred; and

(3) even if there is prima facie evidence of a breach, it is necessary (since this is not usually the function of the inspectors) for evidence to be gathered sufficient to prove it before a tribunal.

Complaints and reports from fellow members and competitors

5.08 Such complaints are not infrequent. There is no reason, in principle, for them to be treated differently to complaints from clients. However, regulators will be aware that some complaints are made in order to secure a competitive advantage. For instance, during litigation one side’s lawyers may complain about the other side’s lawyers in an attempt to de-stabilise the opposition, and/or to seek to secure the removal of the other party’s lawyers.

Complaints from employees and whistle-blowers

5.09 Whistle-blowers, that is to say, people, typically employees, who disclose wrongdoing in their company or other organisation benefit from certain statutory protections. These protections were brought in under the Public Interest Disclosure Act 1998 which introduced amendments to the Employment Rights Act 1996 (‘the 1996 Act’). The Enterprise and Regulatory Reform Act 2013 introduced further amendments, extending the scope of the protections and making them subject to a ‘public interest’ requirement.

5.10 Under s 47B of the 1996 Act, as amended, a worker (widely defined in s 43K) has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer (also widely defined), or by any act or deliberate failure to act by another worker or agent of his employer (whose acts are treated as those of his employer), done on the ground that the worker has made what is called a protected disclosure; and a complaint may be made to an employment tribunal accordingly (s 48(1A)). Dismissal on the ground of aprotected disclosure constitutes unfair dismissal (s 103A). And a term in a contract which purports to preclude the worker from making a protected disclosure is void (s 43J).

5.11 A disclosure is only protected under the 1996 Act if it is:

(a) a qualifying disclosure; and
(b) is made in any one of the situations set out in ss 43C–43H (s 43A).

5.12 A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:

(a) that a criminal offence has been committed, is being committed or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;

(d) that the health or safety of any individual has been, is being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be damaged; or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed (s 43B).

5.13 The requirement that the person making the disclosure must reasonably believe it to be in the public interest is a new requirement added pursuant to amendments under the Enterprise and Regulatory Reform Act 2013 (s 17).

5.14 It has been said that:

‘[I]n each of the instances identified in the six subsections (of section 43B(1) of the Employment Rights Act 1996, as inserted), the whistle-blower has to establish a reasonable belief that the information being disclosed “tends to show” one or more of the situations identified in s 43B(1)(a) to (f).’

And

‘… whilst an employee claiming the protection of ERA 1996, section 43(1) must have a reasonable belief that the information he is disclosing tends to show one of more of the matters listed in section 43B(1)(a) to (f), there is no requirement upon him to demonstrate that his belief is factually correct; or, to put the matter slightly differently, his belief may still be reasonable even though it turns out to be wrong. Furthermore, whether or not the employee’s belief was reasonably held is a matter for the Tribunal to determine.’ (Per Wall LJ in Babula v Waltham Forest College).

5.15 Section 47B of the 1996 Act will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistle-blower.

The situations conferring protected status under s 43A are (in summary) where:

(a) the disclosure was made either to: (1) the worker’s employer; or (2) where the worker reasonably believed that the relevant failure related solely or mainly to: (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that person. (An employer authorised scheme for disclosure to someone other than the employer is treated as disclosure to the employer (s 43C)); or

(b) the disclosure was in the course of obtaining legal advice (s 43D); or

(c) the disclosure was to a minister of the Crown where the employer isappointed under statute or is a member of a body of persons so appointed(s 43E); or

(d) disclosure to a prescribed person where he reasonably believed that: (i) the matter fell within the description of matters for which the person has been prescribed, and (ii) the information disclosed, and any allegation contained in it, were substantially true (s 43F). (The prescribed persons include the Financial Conduct Authority and other financial regulators); or

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