Colclough v The Association of Chartered Certified Accountants
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 21 February 2018 |
| Neutral Citation | [2018] IEHC 85 |
| Court | High Court |
| Docket Number | 2016 No 465 JR |
| Date | 21 February 2018 |
[2018] IEHC 85
THE HIGH COURT
Barrett J.
2016 No 465 JR
Company – Practice & Procedure – Order 11 of the Rules of the Superior Courts 1986 – Judicial review – Constitutional rights – Administrative matters – Brussels Recast Regulation – Exclusive jurisdiction
Facts: The applicant sought an order of certiorari, by way of an application of judicial review, for quashing the decision of the Appeal Committee of the respondent for refusing to permit the applicant to file an appeal against the decision of the Admissions and Licensing Committee (‘ALC’). The key issue in the application was whether the respondent was the subject of the Irish-law judicial review proceedings in Ireland as the respondent was a body incorporated in London. The respondent filed an application for setting aside of the service of summons on the ground that the Courts in Ireland had no jurisdiction to deal with the present matter.
Mr. Justice Max Barrett granted the motion filed by the respondent and set aside the service of summons served on the respondent. The Court dismissed the proceedings filed by the applicant. The Court held that there was non-compliance of o. 11, r.1 of the Rules of the Superior Courts 1986. The Court noted that the applicant had become a member of the respondent institution by signing the relevant document, which included the acceptance of the jurisdictional clause contained in the Bye-Laws, and that clause would be determinative of the jurisdiction between the parties in case of any dispute.
The key issue arising in the within proceedings is whether the Association of Chartered Certified Accountants, a company incorporated by Royal Charter and having its global head-office in London, can properly be the subject of Irish-law judicial review proceedings in Ireland.
(i) Incorporation and Purpose.
Although originally established as an unincorporated association in 1904, the Association of Chartered Certified Accountants (ACCA) has, since 1974, had the legal form of a company registered in England and Wales. It was incorporated by Royal Charter, granted by HM Queen Elizabeth II, on 25th November, 1974. ACCA is established as a global body for professional accountants according to the provisions of the Royal Charter. That Charter may only be amended with the consent of the Privy Council. ACCA has its registered office and global head-office in London.
ACCA's principal objects and purposes are set out in para.3 of the Royal Charter, which provides as follows:
‘The principal objects and purposes for which the Association is hereby constituted are to…promote the highest standards of competence, practice and conduct among members of the Association so engaged; to protect and preserve their professional independence and to exercise professional supervision over them; and to do all such things as may advance and protect the character of the profession of accountancy’.
Unlike many professional bodies which are organised on a strictly national basis, ACCA has developed an international presence and membership in pursuit of its objects and purposes. The Royal Charter sets out, at para.4, powers which include:
‘(l) to form…committees…in any part of the world with such powers and subject to such conditions as the Council may from time to time determine…;
(m) to procure the Association to be registered or recognised in any overseas country or place and to exercise any of its objects or powers in any part of the world.’
An obvious advantage to professional members of an international, rather than a purely national, professional body is that a member's professional qualification will be recognised in other countries without any need to re-qualify; in consequence, it is easier for members to take up employment or practice opportunities outside their home countries.
The principal professional qualification offered by ACCA is that of Chartered Certified Accountant which may be awarded following, inter alia, completion of relevant professional examinations. The full ACCA qualification is regarded as the equivalent of a taught United Kingdom Master's Degree by the United Kingdom's National Recognition Information Centre (UK NARIC). Likewise, Ireland's Higher Education and Training Awards Council (HETAC) considers qualification as a Chartered Certified Accountant to be a Level 9 qualification akin to postgraduate qualifications such as Master's Degrees. The ACCA qualification is also legally recognised as a qualification to practice as an accountant in all current member states of the European Union and the European Economic Area under the Mutual Recognition Directive, subject to some additional local professional qualification requirements. In many countries outside the European Union, the ACCA qualification is also legally recognised as a qualification to practice as an accountant and to conduct accountancy activities. This is thanks, inter alia, to mutual recognition arrangements and strategic partnerships that ACCA has put in place in countries in Europe, Asia, Africa, the Americas, and Oceania. Today, ACCA has about 188,000 members and 480,000 students in 178 countries. As an organisation and as a professional body, ACCA is a remarkable British and international success story.
(ii) The Association of Chartered Certified Accountants in Ireland.
a. In General.
ACCA has 20,000 members (including student members) in Ireland. However, it does not have any statutory establishment here. Instead, it has a representative branch office in Dublin (as it does, apparently, in many other countries). The role performed by this representative branch office within the ACCA framework is limited and purely administrative, with all matters relating to the renewal of membership and disciplinary procedures being conducted from ACCA's offices in the United Kingdom. Local offices, it seems, have no function in this regard and are reliant on ACCA's United Kingdom-based offices for direction and decision-making in almost all regards.
b. At Law.
ACCA is one of a number of accountancy membership bodies permitted by law in Ireland to authorise members to conduct audit, insolvency and investment business work in Ireland. The entitlement of such accountancy membership bodies (including ACCA) to admit members who are by such membership qualified to perform audits of companies to which the Irish companies code applies has been recognised in Irish law since the enactment of s.162 of the Companies Act 1963, as reinforced by s.187(1) of the Companies Act 1990 (both since superseded). As a condition of such recognition, any such accountancy membership body had to satisfy the Minister for Enterprise, etc., under s.191 of the Act of 1990 as to the sufficiency of the standards it applied to its members in the areas of ethics, codes of conduct and practice, independence, and like matters. The effect of the foregoing was that non-Irish accountancy bodies could not be recognised in Ireland as allowed to admit members who (by virtue of such membership) were qualified to perform audit, insolvency and business work in Ireland, unless they first satisfied the Minister that they met whatever standards the Minister considered appropriate in Ireland.
The role performed by the Minister for Enterprise, etc., passed to the Irish Auditing and Accounting Supervisory Authority (IAASA) under the Companies (Auditing and Accounting) Act 2003. The role of IAASA in this regard is now set out in the Companies Act 2014. One of IAASA's stated objects under the Act of 2014, is per s.904(1)(a), ‘[to] supervise how the prescribed accountancy bodies regulate and monitor their members’. IAASA may, per s.905(2)(c), ‘ require changes to and approve (i) the constitution and bye laws of each prescribed accountancy body, including its investigation and disciplinary procedures and its standards’. IAASA may, pursuant to s.930 of the Act of 2014, also grant recognition to a body of accountants for the purposes of the European Communities (Statutory Audits) ( Directive 2006/43/EC) Regulations 2010, if satisfied, inter alia, as to the standards that such body applies to its members in the areas of ethics, codes of conduct and practice, independence, etc. ACCA is deemed, by s.930(2) of the Act of 2014, to have been granted such recognition. ACCA apparently has frequent engagements with IAASA to ensure that IAASA's requirements are met and that ACCA therefore retains its prescribed accountancy body status in Ireland, to the benefit and in the interests of ACCA members who choose to practice in Ireland.
Under s.933(2) of the Act of 2014, IAASA may, following a complaint or on its own initiative, for the purpose of determining whether a prescribed accountancy body has complied with the approved investigation and disciplinary procedures, enquire into (a) a decision by a prescribed accountancy body not to undertake an investigation into a possible breach of its standards by a member, (b) the conduct of an investigation by a prescribed accountancy body into a possible breach of its standards by a member, or (c) any other decision of a prescribed accountancy body relating to a possible breach of its standards by a member.
The provisions of the Act of 2014 which give IAASA rights to approve or require changes to ACCA's disciplinary procedures and the right to intervene after an issue has arisen as to the proper application or effectiveness of an investigative and/or disciplinary procedure by ACCA, do not establish or regulate any right on the part of a recognised accountancy body, such as ACCA, to...
To continue reading
Request your trial