Lidl Ireland GmbH v Chartered Accountants Ireland and The Independent Review Committee of the Chartered Accountants Ireland

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Cian Ferriter
Judgment Date03 March 2022
Neutral Citation[2022] IEHC 141
Docket NumberRecord No. 2020/446JR
Between
Lidl Ireland GmbH
Applicant
and
Chartered Accountants Ireland and The Independent Review Committee of the Chartered Accountants Ireland
Respondents

and

Grant Thornton
Notice Party

[2022] IEHC 141

Record No. 2020/446JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Fair procedures – Duty to give reasons – Applicant challenging a decision of the second respondent – Whether the decision breached a specific duty to give reasons imposed on the second respondent

Facts: The applicant, Lidl Ireland GmbH, challenged a decision of one of the bodies established under the disciplinary regulations (the Regulations) of the first respondent, Chartered Accountants Ireland (CAI). The body in question, the second respondent, was an Independent Review Committee (IRC). In a decision taken on 16th March 2020, the IRC determined that the notice party, Mr Thornton, a member of the CAI, had no case to answer in respect of a complaint made by the applicant to the effect that the manner in which the notice party devised and conducted a retail price comparison survey (in which the applicant featured) involved a breach of the notice party’s professional obligations. The applicant contended that the decision was arrived at in breach of its entitlement to fair procedures under the relevant disciplinary regulations. It also contended that the decision breached a specific duty to give reasons imposed on the IRC by those regulations. CAI and the IRC sought to answer the case by disputing whether the decision in issue was one amenable to judicial review at all, by challenging the applicant’s standing to bring the proceedings if the decision was so amenable, and by disputing that the applicant was entitled to fair procedures in the manner it contended for or that the reasons given in the decision were in breach of any duty to give reasons.

Held by Ferriter J that the decision of the IRC under challenge by the applicant in this case was one which was amenable to judicial review. Ferriter J held that the applicant had a sufficient interest within the authorities to confer standing on it to challenge a decision addressed to it pursuant to the Regulations. In Ferriter J’s view, CAI/the IRC did not act in breach of fair procedures in not furnishing the applicant, for its response, with the notice party’s letter of 4th March 2020 or other documentation or submissions furnished by the notice party to CAI/the IRC in the course of the process leading to the decision in issue in the proceedings. Ferriter J concluded on the very particular facts of this case that the IRC acted in breach of its duty to give reasons for its decision which were intelligible to the applicant and which would enable the applicant to assess whether the decision was lawful. Given the range and number of issues the subject of submission by the notice party in its letter of 4th March 2020 to the IRC, Ferriter J did not believe that this would be an appropriate case to direct reasons; this was not a case where, for example, no reasons were furnished by the decision-maker to the subject of the decision but where the evidence suggested that contemporaneous reasons did exist on file which could be furnished.

Ferriter J granted the order of certiorari sought and remitted the matter for fresh assessment by a differently constituted independent review committee.

Application granted.

Judgment of Mr Justice Cian Ferriter dated this 3rd day of March 2022

Introduction
1

These proceedings involve a challenge by way of judicial review to a decision of one of the bodies established under the disciplinary regulations of Chartered Accountants Ireland (“CAI”). The body in question is an Independent Review Committee (“IRC”). An IRC in certain circumstances makes a final determination as to whether a complaint against a CAI member in relation to a disciplinary matter discloses a case to answer such as to warrant a full disciplinary hearing.

2

In a decision taken on 16th March 2020, which is the decision in issue in these proceedings, an IRC determined that the notice party to these proceedings, which is a member of the CAI, had no case to answer in respect of a complaint made by the applicant to the effect that the manner in which the notice party devised and conducted a retail price comparison survey (in which the applicant featured) involved a breach of the notice party's professional obligations.

3

The applicant contends that the decision was arrived at in breach of its entitlement to fair procedures under the relevant disciplinary regulations. It also contends that the decision breached a specific duty to give reasons imposed on the IRC by those regulations. CAI and the IRC seek to answer the case by disputing whether the decision in issue is one amenable to judicial review at all; by challenging the applicant's standing to bring the proceedings if the decision is so amenable; and by disputing that the applicant is entitled to fair procedures in the manner it contends for or that the reasons given in the decision were in breach of any duty to give reasons.

Background
4

The factual background to the proceedings is as follows. The notice party was commissioned by the PR consultants for the Aldi supermarket chain to conduct a price comparison survey into a basket of retail goods in five Irish supermarket chains, including the applicant and Aldi. It conducted this survey in February 2018. The outcome of the survey was that Aldi came out in first place, as being marginally cheaper than the applicant (who was in second place in the survey) in respect of a basket of consumer goods. The results of the survey were widely publicised.

5

The applicant was concerned that it was unfairly suffering adverse publicity vis-a-vis Aldi, a major competitor, where Aldi had been presented by the survey as the cheapest supermarket and where the applicant believed there were fundamental flaws with the methodology by which the survey was compiled. The applicant accordingly lodged a complaint with CAI on 17th April 2018 contending that “the methodology used to compile this report was fundamentally flawed, and as a result [the notice party] have widely published inaccurate information at Aldi's behest, therefore misleading consumers”. The letter of complaint alleged that product selection for the survey was flawed in that the notice party had selected more expensive products in certain instances. The complaint also alleged errors in the consistency of prices selected. In essence, it was complained that the methodology of the survey was flawed in not comparing like with like.

6

Before detailing how CAI addressed and investigated the complaint, it is useful to briefly sketch the origin and structure of the disciplinary regulations pursuant to which the complaint was made and determined.

The CAI and its disciplinary procedures
7

The Institute of Chartered Accountants in Ireland, as CAI was formerly known, was established by Royal Charter in 1888. The Royal Charter granted to the Institute the power to make bye-laws regulating its affairs. The Royal Charter was amended by the Institute of Chartered Accountants in Ireland (Charter Amendment) Act, 1966. The “principal bye-laws” in force at the time of the events the subject of these proceedings were the bye-laws with an effective date of 5th October 2015, which had been amended with effect from 30th September 2016 and 21st March 2018.

8

There were also disciplinary bye-laws in force which empowered CAI to make or continue in existence, disciplinary regulations governing the process whereby the activities of its members may be investigated and its members may be disciplined. Disciplinary regulations pursuant to these bye-laws and the principal bye-laws were made with effect from 5th October 2015, the relevant version with which we are concerned in these proceedings being those amended on 30th September 2016.

9

As is now common in respect of the disciplinary processes applicable to members of regulated professions, CAI's disciplinary regulations involve a “preliminary screening” procedure whereby a complaint is assessed to determine whether it concerns a “disciplinary matter” and, if it does, the complaint is then investigated to determine whether it discloses a “case to answer” in respect of that disciplinary matter. The procedures involved in determining whether or not there is a case to answer on foot of an admissible complaint are quite elaborate and can involve, variously, the CAI's Head of Professional Conduct; a Conduct Committee; a review by an Independent Reviewer of a decision of a Conduct Committee that there is no case to answer; and, in the event that an Independent Reviewer remits a disciplinary matter following such a review, a consideration by an Independent Review Committee of the question of whether or not there is a case to answer in respect of the disciplinary matter.

10

If a complaint in respect of a disciplinary matter is determined to disclose a case to answer, the matter, if it is not dealt with on consent, may then be referred, on foot of formal allegations, for hearing and determination by a Disciplinary Tribunal.

11

As will become clear, the issues arising in this case concern aspects of the preliminary screening procedure applied by CAI, following its determination that the applicant's complaint did concern a disciplinary matter, and an ultimate decision of an Independent Review Committee that the complaint did not disclose a case to answer.

The investigation of the complaint
12

In accordance with the disciplinary regulations (the “Regulations”), the complaint was assessed as concerning a “ disciplinary matter” within the meaning of the Regulations and the CAI's Head of Professional Conduct appointed an investigator to investigate the complaint in accordance with Regulation 20.3 of the Regulations. CAI wrote separately to the applicant and the notice party on...

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  • Wolfe v Personal Injuries Assessment Board
    • Ireland
    • High Court
    • 17 June 2022
    ...The Court was of the view that the test must be dispassionate and detached. 38 In Lidl Ireland GmbH v. Chartered Accountants Ireland, [2022] IEHC 141, Ferriter J. granted certiorari on the basis that it was unknown as to what key factors the independent review committee relied on to ground ......

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