THE TAXATION DISCIPLINARY SCHEME REGULATIONS 2010
The Taxation Disciplinary Board Limited (“the TDB”), in exercise of the powers conferred on it by the Taxation Disciplinary Scheme (“the Scheme”) established by the Chartered Institute of Taxation and The Association of Taxation Technicians and all other powers enabling it, hereby makes the following Regulations:-
PART ONE
1.CITATION, COMMENCEMENT AND APPLICATION
1.1These Regulations may be cited as the Taxation Disciplinary Scheme Regulations 2010.
1.2These Regulations shall take effect on 1 August 2010 and replace all previous Regulations.
PART TWO
2.INTERPRETATION
2.1In these Regulations the Interpretation Act 1978 shall apply except where the context otherwise requires. The following words and phrases shall have the meanings respectively ascribed to them:
(a)“Appeal Tribunal” means the Appeal Tribunal established by the Scheme to hear appeals from decisions of the Disciplinary Tribunal
(b)“Appellant” means the party who has given Notice of Appeal against a decision of the Disciplinary Tribunal
(c) “Association” means the Association of Taxation Technicians
(d)“Board” means the Board of Directors of the TDB
(e)“Chairman” means the person appointed by the TDB to chair a Committee or Tribunal as the case may be
(f)“Charge” means a charge or charges framed following the referral of a complaint by the Investigation Committee to the Disciplinary Tribunal
(g)“Clerk” means the Clerk to the Disciplinary Tribunal or the Appeal Tribunal
(h)“Complainant” means a person or body who has made a complaint against a Member to the TDB or the TDB itself when investigating matters of its own volition
(i)“Complaint” means an allegation of a breach or a series of breaches of:
(a)in relation to the Institute, the Charter, the Byelaws and/or the Regulations and/or any other provisions regulating the activities of Members, or their conduct, including any disciplinary scheme established by the Institute alone or in co-operation with other bodies;
(b)in relation to the Association, any regulations, rules and bye-laws for the time being in force promulgated by the Council and/or any other provisions regulating the activities of Members, or their conduct, including any disciplinary scheme established by the Association alone or in co-operation with other bodies;
(c)in relation to any other participant, the terms of the governing or regulatory instruments or published guidance, professional standards or codes of conduct of that participant
(j)“Conduct Unbefitting” means conduct on the part of a Member, including in a personal or private capacity, which tends to bring discredit upon the Member and/ or tends to harm the standing of the profession and/ or the Association or the Institute (as the case may be);
(k)“Defendant” means a Member against whom a complaint has been made
(l)“Disciplinary Assessor” means the person appointed by the TDB to conduct a preliminary review of an appeal from the Disciplinary Tribunal
(m)“Disciplinary Panel” means the panel appointed by the Board from which members of the Disciplinary Tribunal or Appeal Tribunal shall be selected
(n)“Disciplinary Tribunal” means the Disciplinary Tribunal established by the Scheme to adjudicate on matters referred to it by the Investigation Committee or the Reviewer
(o)“Evidence” includes statements made by a witness before the Disciplinary Tribunal and any document produced for the purpose of any hearing before the Disciplinary Tribunal or the Appeal Tribunal
(p)“Inadequate Professional Service” means such conduct towards a complainant or performance of professional services for that complainant which falls significantly short of that which is to be reasonably expected of a professional tax adviser in all the circumstances
(q)“Indicative Sanctions Guidance” means guidance issued by the Board to the Disciplinary Tribunal and the Appeal Tribunal
(r)“Institute” means The Chartered Institute of Taxation
(s)“Investigation Committee” means an Investigation Committee established by the Scheme to consider whether to refer a complaint to a Disciplinary Tribunal
(t)“Investigation Panel” means the panel appointed by the Board from which members of the Investigation Committee shall be selected
(u)“Investigatory Assessor” means the person appointed by the TDB to conduct a review of referrals from the Reviewer or appeals from the Investigation Committee
(v)“Lay member” means a person who is not a Member
(w)“Legally qualified” means a solicitor, barrister, or member of the Institute of Legal Executives (ILEX)
(x)“Member” means a firm, member, student, associate or any other person or body subject to the jurisdiction of any one or more of the participants
(y)“Money laundering register” means any anti-money laundering register kept by any participant in accordance with the Anti-Money Laundering (AML) Compliance Scheme
(z)“Notice of Appeal” means a Notice under Regulation 16
(aa)“Participant” means the Institute or the Association or any other body from time to time paying part of the costs of the TDB and whose members come within the jurisdiction of the Scheme
(bb)“Presenter” means a person appointed by the TDB to present a case to the Disciplinary Tribunal or Appeal Tribunal
(cc)“Prima Facie Case” means a factual allegation or series of factual allegations which, if proved, would result in the Defendant’s being guilty of a disciplinary offence
(dd)“Proceedings” means any action taken by the TDB or any person or body established by the Scheme in dealing with a complaint
(ee)“Regulations” mean these Regulations (as amended from time to time) made by the Board pursuant to the Scheme
(ff)“Representative” means a solicitor or barrister or other person appointed by any party for the purposes of a hearing before a Tribunal
(gg)“Respondent” means a party responding to an appeal from the Disciplinary Tribunal
(hh)“Reviewer” means the person appointed by the TDB to undertake the initial consideration of a complaint
(ii)“Scheme” means the Taxation Disciplinary Scheme adopted by the Council of the Institute on 8 January 2008 and by the Council of the Association on 11 December 2007, as amended from time to time
(jj)“Simplified Procedure” means the procedure followed by the Disciplinary Tribunal when considering a complaint referred to it by the Reviewer
(kk)“TDB” means the Taxation Disciplinary Board Limited
(ll)“Tribunal” means the Disciplinary Tribunal or Appeal Tribunal as the context requires.
Words importing the singular may include the plural and vice versa. Words importing the masculine gender include the feminine.
PART THREE
3.COMPLAINT
3.1On receipt of a Complaint, as a result of its own inquiry or as a result of information received, the TDB will consider such Complaint, inquiry or information in accordance with these Regulations.
3.2The initial consideration of the Complaint shall be undertaken by the Reviewer.
3.3No Complaint, inquiry or information shall be considered where it is lodged in excess of 12 months after the last incident relied on or in excess of 12 months from when that last incident became known to the Complainant, unless in the opinion of the Reviewer:
(a)there are issues of such public interest that pursuing the Complaint is appropriate;
(b)the Complaint raised is of sufficient importance or gravity that pursuing the Complaint is appropriate; or
(c)there is a valid reason for the delay in the Complaint being brought to the attention of the TDB.
3.4If the Reviewer considers that a Complaint, inquiry or information does not fall within the jurisdiction of the Scheme or Regulations, he shall take no further action.
3.5If the Reviewer considers that the Complaint, inquiry or information is vexatious or of such a minor nature that, in his view, it would not if proved merit a sufficiently serious sanction to justify prosecution, the Reviewer may determine that no further action shall be taken.
3.6If the Reviewer determines to take no further action under Regulation 3.3, 3.4 or 3.5, he shall immediately inform the Complainant. If a Complainant is dissatisfied with such decision of the Reviewer, the Complainant may by written notice to the Reviewer request that the Complaint be referred to the Investigatory Assessor.Any such notice must be sent to the Reviewer within 14 days of receipt of the decision of the Reviewer by the Complainant.
3.7The Investigatory Assessor may uphold the decision of the Reviewer or order the Reviewer to refer the matter to an Investigation Committee.
3.8In cases where the Reviewer refers a report of the Complaint to an Investigation Committee to consider, he shall first have provided the Defendant with an opportunity to comment on the Complaint. The Defendant will have 21 days to respond to the Reviewer’s request. If the Defendant fails to respond as above the Reviewer may refer the case to an Investigation Committee.
3.9Following determination of any referral the Investigatory Assessor shall give written reasons for his determination to the Reviewer and the Complainant or Defendant within 28 days.
3.10The Investigatory Assessor’s decision shall be final.
3.11If the Reviewer considers that the only complaints raised are breaches of a Participant’s administrative requirements, rules or procedures, the Reviewer may impose a financial penalty on the Defendant to a maximum of £500 for each breach. Such financial penalty must be paid within 14 days of the Defendant being notified of such decision, and the reasons for it, unless the Reviewer grants an extension of time.
3.12If a Defendant is dissatisfied with the decision of the Reviewer to impose a financial penalty, the Defendant may by written notice to the Reviewer request that the Complaint be considered by the Disciplinary Tribunal.
3.13Any request under Regulation 3.12 above shall be of no effect unless it states the grounds under which the review is to be considered.
3.14The grounds under which a request under Regulation 3.12 may be made are limited to the following:
(a)that the decision of the Reviewer was unfair or unreasonable;
(b)that new evidence pertinent to the Complaint which could not reasonably have been produced at the time the Reviewer made his decision has become available and that evidence would materially have affected the decision of the Reviewer
3.15Such a request must be sent to the Reviewer within 14 days of receipt of the decision of the Reviewer.
3.16If a member fails to respond within the specified time to a decision to impose a financial penalty, the Reviewer shall refer the matter to a Disciplinary Tribunal under the procedure set out in Regulation 7.7.
PART FOUR
4.INVESTIGATION COMMITTEE
4.1Where a Complaint is to be considered by an Investigation Committee, the TDB shall select such an Investigation Committee from the members of the Investigation Panel.
4.2The Investigation Committee shall have a quorum of three members.One of these shall be a Member, and a majority shall be lay members.The members of the Investigation Committee shall not include any person who has had any involvement with the Complaint before it was referred to the Investigation Committee.
4.3The Investigation Committee shall consider as soon as practical the report prepared by the Reviewer.
4.4In considering a Complaint, and at any time before reaching a decision, the Investigation Committee may require the Defendant to provide such further information and documents relating to the complaint as the Committee thinks necessary for the effective, expeditious, fair and economic disposal of the case and to supply such further copies of any document as it considers requisite.The time for compliance with such a request shall be specified, but shall not be less than seven days unless the Defendant agrees or the Investigation Committee otherwise directs.It shall be the duty of the Defendant to provide such information as is requested..
4.5Nothing in these Regulations shall be taken as requiring the Defendant to produce any document or reveal any advice received which is subject to legal professional privilege, nor to waive any such privilege that he has in such a document or such advice, nor to produce a document or reveal advice which is the subject of legal professional privilege belonging to his client save where the client consents to the production of that document or the revealing of that advice
4.6Before reaching its decision the Investigation Committee must be satisfied that the Defendant has been given a reasonable opportunity to make written representations to it or, if not so satisfied, it shall give the Defendant such reasonable opportunity.
4.7If the Defendant fails to co-operate or reply to correspondence, the Investigation Committee may of its own volition refer that failure to the Disciplinary Tribunal as a separate Complaint.
4.8Any decision of the Investigation Committee shall be unanimous or made by majority. The Investigation Committee shall not reach a decision save when an uneven number of members is present to vote on that decision.
5.Prima Facie Case
5.1The Investigation Committee shall consider whether the Complaint discloses a Prima Facie Case.
5.2A Prima Facie Case can include, but is not limited to a case involving:
(a)a breach of professional standards and guidelines; or
(b)inadequate professional service; or
(c)Conduct Unbefitting.
5.3If the Investigation Committee finds that a Prima Facie Case against the Defendant has not been made out it shall so notify the Defendant, the Complainant and the appropriate Participant.
5.4The Investigation Committee may:
(a)in circumstances where it finds that no Prima Facie Case has been made out, rule that the Complaint be rejected;
b)in circumstances where it finds that a Prima Facie Case has been made out, but the Complaint is of such a minor nature that, in the Investigation Committee’s view, it would not if proved merit a sufficiently serious sanction to justify prosecution, rule that the Complaint shall lie on file for the period of three years starting from the date of its decision;
(c)before deciding whether to make the direction provided for in Regulation 5.4(b) above, the Committee may take into account any facts or matters which have been considered by an Investigation Committee on previous occasions in relation to the Defendant, in respect of which, although a Prima Facie Case has been made out, either no further action was taken or the Complaint was ordered to lie on file.If it is decided to refer the Complaint to the Disciplinary Tribunal,
i)the Investigation Committee shall state in its written reasons for its decision that a material factor in its decision to refer the Complaint to the Disciplinary Tribunal was that there had been a previous Complaint made against the Defendant in respect of which it had been ordered that no further action be taken or that the Complaint had been ordered to lie on file;
ii)in respect of any previous Complaint which was ordered to lie on file pursuant to Regulation 5.4(b) above, the Investigation Committee may order that the said earlier Complaint should now go forward to the Disciplinary Tribunal together with the current Complaint;
iii)in respect of any other previous Complaint, the Investigation Committee shall make no order;
(d)in circumstances where it finds that a Prima Facie Case has been made out, rule that no further action be taken if, in its opinion, the evidence is not of sufficient strength to establish the facts in question before a Disciplinary Tribunal;
(e)where it considers that a Prima Facie Case has been made out, refer the whole or appropriate part of the Complaint to the Disciplinary Tribunal.
5.5The Investigation Committee shall provide written reasons for all its decisions. If the Investigation Committee decides pursuant to Regulation 5.4(b) or (d) that, even though a Prima Facie Case is made out against the Defendant, the Complaint should be ordered to lie on the file or be subject to no further action, then written reasons for that decision must be sent to the Defendant and the Complainant. Any such written record of the decision must include the Investigation Committee’s findings with particular reference to the duty of the TDB and the relevant Participant or Participants to protect the public and to protect the reputation of the profession.
6.Referral to Investigatory Assessor from the Investigation Committee
6.1Any party objecting to a decision of the Investigation Committee under Regulation 5.4(a), (b) and (d) shall have a right of appeal to an Investigatory Assessor. Notice of any such appeal must be served upon the TDB within 14 days of service of the Investigation Committee’s written reasons for its determination.The Investigatory Assessor shall determine the appeal and shall give written reasons for his determination to the TDB and the Complainant within 28 days.The Assessor may uphold the decision of the Investigation Committee or order that the Complaint be referred to a new Investigation Committee (“the Second Investigation Committee”).
6.2The TDB shall appoint the Investigatory Assessor for the purposes of Regulation 6.1 above from members of the Investigation Panel who have not previously been involved in the consideration of the Complaint.
6.3No appeal shall be considered if in the opinion of the Investigatory Assessor it is frivolous or vexatious.
6.4The Investigatory Assessor’s decision shall be final.
6.5If the Investigatory Assessor rules that the Complaint must be referred to the Second Investigation Committee, such a committee must be convened as soon as reasonably practicable.
6.6Where pursuant to Regulation 6.5 a Complaint is to be considered by the Second Investigation Committee, the TDB shall appoint the Second Investigation Committee from the members of the Investigation Panel.The provisions of Regulation 4.2 shall apply mutatis mutandis to the Second Investigation Committee.
6.7The Second Investigation Committee’s decision shall be final.
7.Referral to the Disciplinary Tribunal
7.1If the Investigation Committee decides that a Complaint should be referred to the Disciplinary Tribunal pursuant to Regulation 5.4(c) or (e) above, it shall, within 21 days, send to the Presenter and to the Defendant its decision with a summary of the evidence on which the decision is based and shall notify any Complainant that the Complaint is being referred to the Disciplinary Tribunal.In the event that any party appeals against the decision pursuant to Regulation 6.1, the operation of Regulations 7.2 to 7.5 below shall be suspended pending the determination of that appeal.
7.2On receipt of the decision of the Investigation Committee pursuant to Regulation 7.1, the Presenter may, within 28 days of actual receipt of the decision, refer the Complaint back to the Investigation Committee if he considers that no Prima Facie Case is disclosed by the Complaint.
7.3Save where the Presenter has referred a Complaint back to the Investigation Committee pursuant to Regulation 7.2 above, the Presenter shall draft such charges against the Defendant as naturally arise from the decision of the Investigation Committee.
7.4Save in the circumstances provided in Regulation 10.5, the Presenter shall have no discretion to add charges:
(a)alleging breaches of rules of professional conduct or the provision of Inadequate Professional Service or Conduct Unbefitting which are not expressly the subject of the Investigation Committee’s decision;
(b) alleging breaches of rules of professional conduct in relation to which the Investigation Committee has expressly decided there is no Prima Facie Case or that there is a Prima Facie Case but that it should lie on file pursuant to Regulation 5.4(b) or no further action should be taken pursuant to Regulation 5.4(d).
7.5The Presenter shall comply with Regulation 7.3 above within 28 days of actual receipt by him of the Investigation Committee’s decision pursuant to Regulation 7.1 above.
7.6The Presenter may at any time refer a Complaint back to the Investigation Committee if it appears to him that there is no realistic prospect of securing a finding against the defendant.
7.7Where the Reviewer refers a complaint to the Disciplinary Tribunal under Regulation 3.12 or 3.16 above, he shall, within 21 days, forward the following papers to the Clerk:
(a)a copy ofthe Complaint;
(b)a note of the grounds upon which the Defendant has sought a review under Regulation 3.13 above;
(c)a summary of the evidence on which the Reviewer has based his decision.
PART FIVE
8.DISCIPLINARY TRIBUNAL
8.Appointment
8.1The TDB shall select a Disciplinary Tribunal from the members of the Disciplinary Panel to hear the charge and shall appoint a Chairman for that Tribunal.
8.2The Disciplinary Tribunal shall have a quorum of three members. One of these shall be a Member, and a majority shall be lay members. The Chairman of the Disciplinary Tribunal shall be a legally qualified person. No person who has had any previous involvement with the Complaint may sit upon the Disciplinary Tribunal.
9.Simplified Procedure for cases referred by the Reviewer
9.1On receipt of a Complaint under Regulation 7.7 above, the Clerk will send a notice to the Defendant setting out the Complaint and notifying him of the date (which shall, unless the Defendant otherwise agrees, be not earlier than 28 days after the date on which the notice is sent to the Defendant) time and place of the hearing.
9.2The Clerk will also send to the Defendant:
(a)a copy of the information sent under Regulation 7.7 above
(b)a copy of the Scheme and these Regulations
9.3The provisions of Regulation 12, 13 and 14 inclusive shall apply save that any reference made to the Presenter will be understood as a reference to the Reviewer, and any reference to a Charge shall be understood as reference to a Complaint.
9.4The provisions of Regulations 15.3, 15.4 shall apply.
9.5The Disciplinary Tribunal may make an order to uphold, vary or overturn the decision of the Reviewer.
9.6Where the Disciplinary Tribunal overturns the decision of the Reviewer, it may do so only on the grounds referred to in Regulation 3.14 above.
9.7If the Disciplinary Tribunal upholds or varies the decision of the Reviewer, it may impose a financial penalty on the Defendant to a maximum of £5,000 for each breach.Such financial penalty must be paid within 14 days of the Defendant being notified of such decision, and the reasons for it, unless the Chairman of the Disciplinary Tribunal which imposed the penalty grants an extension of time.
9.8The provisions of Regulations 15.6(c), 15.7, and 15.8 shall apply.
9.9The decision shall be treated as effective on the date such order as is made pursuant to Regulation 9.5 above is deemed served on the Defendant.
9.10The Clerk shall send a copy of the order to the Defendant as soon as practicable.
9.11Notice of the decision shall be given to the Participant of which the Defendant is a member.
9.12The decision of the Disciplinary Tribunal under the Simplified Procedure will be final.
10.Initial Procedure for Cases Referred from the Investigation Committee
10.1On receipt of the Charge the Clerk shall send the following documents to the Defendant, either together or at different times and supplemented as necessary from time to time:
(a)A notice setting out the Charge against the Defendant notifying him of the date (which shall, unless the Defendant otherwise agrees, be not earlier than 28 days after the date on which the notice is sent to the defendant), time and place of the hearing
(b)a copy of the Scheme and these Regulations
(c)a letter requiring the Defendant to indicate in writing:
i)whether he accepts all or any of the charges made against him, and if not on what grounds he denies them
ii)if he accepts any of the charges made against him whether he has any explanation or mitigation
iii)whether or not he intends to attend and/or be represented at the hearing and, if so, by whom and whether that Representative is authorised to accept service of documents on his behalf
10.2Subject to Regulation 10.3, at least 28 days before the day fixed for the hearing, or such other period as may be determined in accordance with Regulation 10.1(a):
(a)Each party shall serve on the other:
i)a written statement of any witness, each statement to be signed, dated and to include the name and address of the maker; and
ii)a list of all witnesses he intends to call at the hearing; and
iii)a paginated and indexed bundle of all documents on which that party intends to rely at the hearing
(b)Each party shall serve on the clerk four copies of each such statement and bundle of documents for use at the Tribunal
10.3Nothing shall prevent the Chairman of the Disciplinary Tribunal directing such alternative time period for the purposes of Regulation 10.2 as he may specify.
10.4Nothing shall prevent the TDB from joining other complaints received after the case has been referred by the Investigation Committee and involving the Defendant to those already before the Disciplinary Tribunal that in its opinion are of importance or gravity or that have issues involving the protection of the public or of the profession.
10.5If the TDB joins other Complaints under Regulation 10.4 the Presenter may bring further charges against the Defendant.If he does so he shall forward to the Clerk a notice setting out the additional charges.
10.6On receipt of the additional charges the Clerk shall serve on the Defendant a notice setting out the additional charges and a letter requiring the Defendant to indicate in writing:
(a)whether he accepts any or all of the additional charges made against him, and if not on what grounds he denies them
(b)if he accepts any or all of the additional charges made against him, whether he has any explanation in mitigation
(c)whether or not he intends to attend and/or be represented at the hearing, and if so by whom and whether that Representative is authorised to accept service of documents on his behalf
11.Powers of Disciplinary Tribunals
11.1On receipt of the papers, or at any time thereafter, the Chairman of the Disciplinary Tribunal may serve a notice on any party directing that party within the time specified in the notice:
(a)to deliver to the Disciplinary Tribunal such particulars as the Disciplinary Tribunal may consider are required for the purposes of determining any of the issues in the proceedings; or
(b)to make available for inspection by the Disciplinary Tribunal all such documents in the party’s possession or power as may be specified or described in the notice, being documents which, in the opinion of the Disciplinary Tribunal contain or may contain information relating to the subject complaint of the proceedings
11.2Subject to the prior agreement of the TDB, the Chairman of the Disciplinary Tribunal may hold a preliminary hearing and/or give directions to ensure the just, fair and expeditious progress of the complaint.
11.3The Disciplinary Tribunal may hear charges against two or more Defendants in the same hearing.
11.4A shorthand or stenographic note may be taken or a tape recording of the proceedings made.
12.Hearings
12.1At a hearing a Defendant may appear before the Disciplinary Tribunal or be represented by such persons as he may wish. The Defendant shall be deemed present when he appears by his Representative. The Disciplinary Tribunal shall give the Defendant or his Representative a fair and reasonable opportunity of being heard before it.
12.2If unable to serve a notice on the Defendant the Presenter may make an application to the Chairman of the Disciplinary Tribunal for an order of substituted service.
12.3If the Defendant does not attend and is not represented at the hearing then, provided the Disciplinary Tribunal is satisfied that the notice required was served on him, or that any order under Regulation 12.2 has been complied with, the Disciplinary Tribunal may proceed with the hearing in his absence.
12.4Before deciding to hear and determine any proceedings in the absence of the Defendant or his Representative the Disciplinary Tribunal shall consider any representations, in writing or otherwise, submitted by or on behalf of the Defendant in response to the notice of hearing and shall give any party present at the hearing an opportunity to be heard in regard to those representations.
12.5The Disciplinary Tribunal shall not sit with less than three members, and shall not sit other than with an uneven number of members.In the event that it is not possible for any reason for the Disciplinary Tribunal to sit with three or a greater, uneven, number of members, the hearing shall be adjourned.
12.6No objection shall be upheld due to any technical fault in the Charge or in the procedure of the Disciplinary Tribunal, provided that the proceedings are fair to the Defendant.
13.Conduct of the hearing
13.1At the beginning of the hearing the Chairman of the Disciplinary Tribunal or any person to whom he shall delegate such task shall read out the Charge and invite the Defendant to state whether he admits or denies the Charge and any part of it.
13.2The Chairman shall, except where he considers it unnecessary to do so, explain the order of the proceedings that the Disciplinary Tribunal proposes to adopt.
13.3The Presenter shall outline the case against the Defendant and, subject to Regulation 10.2, call any witnesses and produce any document.
13.4At the conclusion of the Presenter’s case, the Defendant, or his Representative, shall be entitled to address the Tribunal and, subject to Regulation 10.2, to call any witness to give evidence and produce any document. The Defendant may give evidence.
13.5 A witness called for one party may be questioned by or on behalf of the other party and by the Disciplinary Tribunal.A witness so questioned may be re-examined by or on behalf of the party calling him.
13.6Subject to the consent of the Disciplinary Tribunal the Presenter may adduce rebuttal evidence after the Defendant’s case has been heard and may address the Disciplinary Tribunal.
13.7The Defendant or his Representative may make a closing address to the Disciplinary Tribunal.
14.Adjournments
14.1The Chairman of the Disciplinary Tribunal, shall at his absolute discretion decide whether or not to grant an application for an adjournment of any hearing which has not begun.After the hearing has begun any application for an adjournment shall be decided by the members of the Disciplinary Tribunal hearing the case.
14.2If at any time during the hearing the Chairman of the Disciplinary Tribunal is of the opinion that it is impracticable or would be contrary to the interests of justice for the hearing to be continued or completed by that Disciplinary Tribunal, he shall direct that the charge be re-heard by a newly appointed Disciplinary Tribunal.
14.3A newly appointed Disciplinary Tribunal shall not include any member of the previous Disciplinary Tribunal.
15.Disciplinary Tribunal decision
15.1In determining whether or not a charge has been proved, the Disciplinary Tribunal may have regard to any code of practice, ethical or technical, affecting the Defendant and laid down or approved by any of the Participants of which the Defendant is a member.
15.2Any decision of the Disciplinary Tribunal shall be unanimous or made by majority.
15.3The burden of proof before the Disciplinary Tribunal shall be on the Presenter.
15.4The standard of proof shall be to the Civil Standard.
15.5If the Disciplinary Tribunal is of the opinion that the Charge has been proved wholly or in part it shall make a finding to that effect, otherwise it shall dismiss the Charge.If the Charge is dismissed, the Disciplinary Tribunal may order the TDB to pay to the Defendant such sum by way of costs as, in its absolute discretion, the Tribunal thinks fit. No award for costs shall be made under this provision unless the Tribunal is of the opinion that the charge was brought maliciously or without justification.
15.6If the Disciplinary Tribunal finds that the Charge has been proved wholly or in part, the following provisions shall apply:
(a)the Presenter shall inform the Disciplinary Tribunal of any previous cases in which the Investigation Committee found a Prima Facie Case against the Member but ruled that no action should be taken;
(b)the Presenter shall inform the Disciplinary Tribunal of any previous disciplinary findings made against the Defendant by the Disciplinary Tribunal, the Appeal Tribunal or any predecessor of those two tribunals and of any orders made
(c)the Defendant or his representative shall be allowed to address the Disciplinary Tribunal in mitigation
(d)the Disciplinary Tribunal must take into consideration any previous cases where a Prima Facie Case was found but no action was taken against the Defendant, the past disciplinary record (if any) of the Defendant, the Disciplinary Tribunal’s view as to the nature and gravity of the charges (so far as they are proved) and any other circumstances the Disciplinary Tribunal considers to be relevant. The Tribunal shall also take into account the Indicative Sanctions Guidance issued by the Board.
(e)The Disciplinary Tribunal may:
i)order the Complaint to rest on file for 3years
ii)require the Defendant to apologise to the Complainant or another party
iii)warn the Defendant as to his future conduct
iv) censure the Defendant
v)fine the Defendant a sum not exceeding £20,000 for each proven Charge
vi)suspend the Defendant from membership of any Participant. Such suspension may be for a fixed period of no less than one month to a maximum period of two years
vii)expel the Defendant from membership of any Participant
viii)order the Defendant to pay a sum or sums as compensation to a limit of £5,000
ix)impose conditions on the Defendant
x)recommend the suspension or removal of the Defendant from any register maintained by the Participants
xi)impose such other sanctions as are appropriate to students, associates or any other persons or bodies subject to the jurisdiction of the Participants
xii)order the Defendant to pay a sum by way of costs
(f)In awarding costs as above under Regulation 15.6(e)(xii), the Disciplinary Tribunal must have regard to any relevant guidance issued by the Board.
15.7If notwithstanding its finding that a Complaint has been proved, the Disciplinary Tribunal is of the opinion that in all the circumstances of the case no sanction is appropriate, it may make an order that no further action be taken.
15.8The decision of the Disciplinary Tribunal shall be given at the end of the hearing, save in exceptional circumstances, when it may be reserved. In either event it shall be recorded in an order which shall contain a statement of the facts found by the Disciplinary Tribunal and the reasons for the decision dated and signed by the Chairman of the Disciplinary Tribunal. This shall be completed as soon as possible.
15.9The decision shall be treated as effective on the date such order as specified in Regulation 15.8 above is deemed served on the Defendant.
15.10The Clerk shall send a copy of the order to the Defendant as soon as practicable and shall inform the Complainant of the decision.
15.11Notice of the decision shall, unless appealed against, be given to the Participant of which the Defendant is a member.
15.12The copy of the order recording the decision sent to the Defendant shall be accompanied by a notification of the provisions of these Regulations relating to appeals from the Disciplinary Tribunal and of the time limit within which, and the manner in which, such appeals may be made.
PART SIX
16.APPEAL TRIBUNAL
16.1The Board or a Defendant against whom any order has been made by a Disciplinary Tribunal may, within the period of 21 days beginning with the effective date of the order, or such longer period as the Chairman of that Tribunal may allow, give Notice of Appeal in accordance with these Regulations.
16.2Any such Notice of Appeal shall be in writing addressed to the Clerk and shall be of no effect unless it states the grounds of appeal.The grounds so stated shall not thereafter be amended except with the leave of the Appeal Tribunal.
16.3The grounds of appeal are limited to the following:
(a)that there was a serious procedural or other irregularity in the proceedings before the Disciplinary Tribunal;
(b)that:
i)the finding of the Disciplinary Tribunal was wrong; and/ or
ii)the sentence passed was unreasonable having regard to all the circumstances made known to the Disciplinary Tribunal;
(c)that new evidence pertinent to the charge which could not reasonably have been produced at the time to the Disciplinary Tribunal which heard the charge has been adduced in the appeal and that evidence would materially have affected the findings of the Disciplinary Tribunal.
16.4An appellant may withdraw a Notice of Appeal by serving notice to that effect on the Clerk.
16.5On receipt by the Clerk of a Notice of Appeal, he shall notify the TDB, which shall appoint from the members of the Disciplinary Panel an individual to conduct a preliminary appeal review (“Disciplinary Assessor”).The Disciplinary Assessor shall be a person who has not had any prior involvement with the Complaint.
16.6The Disciplinary Assessor shall consider whether the appeal is vexatious or fails to meet the grounds of appeal set out at Regulation 16.3, and may reject the appeal.
16.7Where the appeal is rejected the Disciplinary Assessor will promptly serve written reasons for his decision on the Appellant, the Complainant, the Respondent and the TDB.
16.8The Disciplinary Assessor’s decision shall be final.
16.9Where the Disciplinary Assessor considers that the appeal meets one or more of the grounds set out at Regulation 16.3, he will inform the Clerk of his decision as soon as possible.
16.10On receipt by the Clerk of the Disciplinary Assessor’s decision in regulation 16.9 above, the TDB shall select from the members of the Disciplinary Panel an Appeal Tribunal and Chairman for the Appeal Tribunal.
16.11The Appeal Tribunal shall have a quorum of three members. One of these shall be a Member, and a majority shall be lay members. The Chairman of the Appeal Tribunal shall be a legally qualified person. No person who has had any previous involvement with the Complaint may sit upon the Appeal Tribunal.
16.12As soon as practicable after receipt of the decision from the Disciplinary Assessor, the Clerk shall send notice in writing to the Appellant, the Complainant and the Respondent of the date (which shall, unless the parties agree otherwise, be not earlier than 28 days after the date on which the said notice is sent to the parties) the place and time fixed for the hearing of the appeal.
16.13The Chairman of the Appeal Tribunal may, on application from the Appellant or of his own volition, stay the order of the Disciplinary Tribunal on such terms as the Chairman sees fit.
16.14In complaints where the order of the Disciplinary Tribunal has been stayed, if before the appeal has been determined, the Appellant by notice to the Board withdraws the Notice of Appeal, the Disciplinary Tribunal’s order shall take effect on the date on which the notice of withdrawal is served on the Board.
17.New Evidence
17.1The Appeal Tribunal may, on the application of either party, hear any witness or allow the production of any material which was not before the Disciplinary Tribunal which heard the Charge.
17.2Any such application must be made to the Chairman of the Appeal Tribunal not less than 14 days before the date fixed for the hearing of the appeal and give reasons for the application and specify the relevance to the grounds of appeal.
17.3If an application to submit new evidence is granted, the successful party must immediately provide a copy to the other party and make available for the Appeal Tribunal four copies of any new material and of any statement of any witness to be called at the hearing.
17.4If one party is given leave to introduce new evidence for the appeal hearing, the other party may introduce evidence in rebuttal, provided that they give the first party copies of any such material or statements and make four copies available for the Appeal Tribunal, not less than seven days before the date fixed for hearing.
18.Appeal hearing
18.1The Appeal Tribunal shall not sit with less than three members, and shall not sit other than with an uneven number of members.In the event that it is not possible for any reason for the Appeal Tribunal to sit with three or a greater, uneven, number of members, the hearing shall be adjourned.
18.2An Appellant may make written representations to or appear before the Appeal Tribunal in person or be represented by such person as he may wish. An Appellant shall be deemed present when he appears by his Representative. The Appeal Tribunal shall give the Appellant’s case a fair and reasonable opportunity of being considered or heard before it.
18.3If unable to serve on the Appellant or the Respondent the notice described in Regulation 16.12, the Clerk may make an application to the Chairman of the Appeal Tribunal for an order of substituted service.
18.4If a party does not attend and is not represented at the hearing, then provided the Appeal Tribunal is satisfied that the requisite notice was served on that party, or any order under Regulation 18.3 has been complied with, the Appeal Tribunal may hear the appeal in that party’s absence.
18.5Either party may instruct a representative to appear on his behalf at the hearing of the appeal.
18.6On any appeal the Appeal Tribunal shall take into consideration the evidence given and the documents produced to the Disciplinary Tribunal but may re-hear any witness permitted to give evidence before that Disciplinary Tribunal.
18.7 The Chairman of the Appeal Tribunal shall in his absolute discretion decide whether or not to grant an application for an adjournment of any hearing which has not begun.After the hearing has begun any application for an adjournment shall be decided by the members of the Appeal Tribunal hearing the case.
18.8Subject to the prior agreement of the TDB, the Chairman of the Appeal Tribunal may hold a preliminary hearing and/or give directions to ensure the just, fair and expeditious progress of the complaint.
18.9The Appeal Tribunal may hear two or more appeals from an appellant at the same time.
18.10The Appeal Tribunal may hear the appeals of two or more appellants at the same time.
18.11The decision of the Appeal Tribunal shall be given at the end of the hearing, save in exceptional circumstances, when it may be reserved. In either event it shall be recorded in an order which shall contain a statement of the facts found by the Appeal Tribunal and the reasons for the decision dated and signed by the Chairman of the Appeal Tribunal. This shall be completed as soon as possible.
19.Appeal Tribunal Orders
19.1If the Appeal Tribunal decides that the appeal should be dismissed it shall make an order to that effect.
19.2The Appeal Tribunal may uphold an appeal only on the grounds referred to in Regulation 16.3 above.
19.3If the Appeal Tribunal upholds the appeal on ground (a) or (b) of Regulation 16.3, the Appeal Tribunal may by order:
(a)overturn the findings of the Disciplinary Tribunal
(b)affirm, vary or rescind the sanction applied or the decision made; or
(c)substitute for any order of the Disciplinary Tribunal any other order or orders that the Disciplinary Tribunal could have made as it thinks appropriate; and/or
(d)direct that the record of the decision of the Appeal Tribunal to be published shall not include the name of the Defendant
19.4In implementing Regulation 19.3 (b) or (c) above, the Appeal Tribunal must apply any Indicative Sanctions Guidance and take account of the provisions of Regulations 20-23 below.
19.5Any decision of the Appeal Tribunal shall be unanimous or made by majority.
19.6If the Appeal Tribunal upholds the appeal on ground (c) of Regulation 16.3, the Appeal Tribunal may by order remit the case to the Disciplinary Tribunal to be re-heard in accordance with these Regulations, but only where no reasonable order can be made by the Appeal Tribunal in all the circumstances.
19.7An order made by the Appeal Tribunal shall take effect on the date of the order unless it directs that it shall take effect from some later date specified in the order.
19.8Notice of any order of the Appeal Tribunal, accompanied by its findings, shall as soon as practicable be:
(a)served on the parties
(b)given to each Participant of which the Defendant is a member
(c)given to the Complainant
19.9Onany appeal the Appeal Tribunal may:
(a)affirm, vary or rescind any order for costs made by the Disciplinary Tribunal
(b)order any party to pay such sum by way of costs as, in its absolute discretion, it thinks fit
19.10Noorder for costs shall be made against the TDB unless the Appeal Tribunal is of the opinion that the Charge was brought maliciously or without justification
19.11In awarding costs as above under Regulation 19.9, the Appeal Tribunal must have regard to any relevant guidance issued by the Board.
19.12Onany appeal, the Appeal Tribunal may:
(a)affirm, vary or rescind any order for compensation made by the Disciplinary Tribunal
(b)order the Defendant to pay such sum by way of compensation as the Appeal Tribunal thinks fit, subject to the same limit as provided in Regulation 15.6(e)(viii) above.
PART SEVEN
20.Compensation
20.1If a finding of Inadequate Professional Service is made by the Disciplinary Tribunal or the Appeal Tribunal, the Tribunal may consider compensation as a remedy in respect of such inadequate service.The Tribunal may direct the Defendant to pay compensation in such sum as was the result of the Inadequate Professional Service rendered by the defendant.
20.2Indetermining whether any sum is to be paid, or in fixing the amount of such sum, the Tribunal shall in particular have regard to any loss suffered as a result of the Inadequate Professional Service, the availability of other forms of redress, the gravity of the conduct complained of and the amount of any fee claimed by or paid to the Defendant for that Inadequate Professional Service.
20.3Any sums awarded under Regulations 20.1 and 20.2 above shall be subject to the limit specified in Regulation 15.6(e)(viii) above.
21.Fines
21.1 The maximum fine per proven charge is £20,000.
21.2A fine imposed by a Disciplinary Tribunal shall, unless some other date is imposed in the order of that Tribunal (whether by instalments or not), be paid within 28 days of the service of such order on the Defendant, save that if Notice of Appeal is given such fine shall not be payable until the determination of the appeal and then subject to any order made in consequence of such appeal.
21.3Where a fine ordered by a Disciplinary Tribunal is affirmed or varied in amount by the Appeal Tribunal it shall be paid within 28 days of the date of the order of the Appeal Tribunal unless a longer period is allowed in that order.
21.4A fine or any unpaid balance of a fine not paid by the due date shall bear interest at the rate determined by the TDB under Regulation 27.1.
21.5Where any fine imposed under these Regulations is payable by instalments and an instalment is not paid by the due date, the whole of that fine or so much of it as then remains unpaid shall become due for payment immediately, together with interest on that fine or unpaid balance from the date of first default in payment until payment in full.
22.Costs
22.1Any costs which the Disciplinary Tribunal or Appeal Tribunal orders to be paid shall, unless a longer period for payment (whether by instalments or not) is allowed by the order, be paid within 28 days of service of the order upon the person ordered to pay the costs.
22.2If within the period allowed, a party serves Notice of Appeal against an order made by a Disciplinary Tribunal, then a costs order shall not become payable until the appeal has been determined under these Regulations, it shall then be payable, if at all, in accordance with the following provisions of these Regulations.
22.3If, before the appeal has been determined, the Appellant by notice withdraws the Notice of Appeal, the Disciplinary Tribunal’s order for payment of costs shall take effect at the end of the period of 14 days beginning with the date on which the notice of withdrawal is served on the TDB.
22.4Any costs ordered by the Appeal Tribunal, together with any unpaid costs ordered by the Disciplinary Tribunal, or so much, if any, of those unpaid costs as remain payable after any reduction or cancellation shall, unless a longer period for payment (whether by instalment or not) is allowed by order of the Appeal Tribunal, be paid within 28 days.
22.5Where any costs ordered under these Regulations are payable by instalments and any instalment is not received by the due date, the whole of those costs or, as the case may be, so much of them as then remain unpaid, shall become due for payment.
22.6Any costs or any unpaid balance of such costs not paid by the due date shall bear interest from that date until payment in full, such interest to be at the rate determined by the TDB under Regulation 27.1.
22.7Wherethe Disciplinary Tribunal or Appeal Tribunal considers that the conduct of any person has resulted in wasted costs being incurred by any party to the proceedings, it may order the person who has caused the costs to be wasted personally to compensate the party responsible for paying the said costs, such compensation to be in full or in part at the Tribunal’s discretion, subject to the provisions of Regulations 15.5 and 19.10.
22.8Any such application for a wasted costs order must be made with a schedule of all costs applied for; and the person against whom the order is sought must be given reasonable opportunity to reply.
23.Publication of findings and orders
23.1Where a Disciplinary Tribunal or Appeal Tribunal makes an order under these Regulations, it shall order that a record of its order shall be published as soon as practicable in such manner as it thinks fit.
23.2The record of the order shall normally be published without naming the Defendant:
(a)where the Disciplinary Tribunal has dismissed the charge or ordered that no further action be taken on the Complaint; or
(b)where the Appeal Tribunal has upheld in full an appeal by the Defendant
23.3Unless the Disciplinary Tribunal or the Appeal Tribunal otherwise directs, any such publication shall state the name of the Defendant and describe the order or orders made against him, but need not include the name of any other person concerned in the Complaint or appeal.
23.4Unless the Disciplinary Tribunal otherwise directs, no publication shall be made until after the expiry of the relevant appeal period referred to. If a valid Notice of Appeal under the Regulations is served then, unless the appeal is abandoned, no publication of the Disciplinary Tribunal’s order shall be made until disposal of that appeal and then subject to the decision of the Appeal Tribunal.
23.5If the Disciplinary Tribunal makes any direction limiting publication the TDB shall have a limited right of appeal in respect of that direction; such appeal shall lie directly to the Appeal Tribunal. The Appeal Tribunal shall have power to uphold, vary or overturn the original direction made.
23.6 The TDB may publish information about forthcoming Tribunal hearings, including the names of Defendants and brief details of the charges or grounds of appeal.
PART EIGHT
24.Public Hearings
24.1All hearings by a Tribunal shall be held in public, but the chairman of a Tribunal may exclude the press and public (but not the Complainant) from all or any part of the proceedings if it appears to him desirable to do so in the interests of justice or for any other reason.
25.Procedure and Evidence
25.1Proceedings before the Investigation Committee and all hearings shall be conducted in a manner consistent with the principles of natural justice.
25.2Subject to these Regulations, at any hearing a Tribunal may adopt any method of procedure which it may consider fair and which gives each party an opportunity to have their case presented.
25.3The hearing of any preliminary issue shall be in private unless, either on the application of one of the parties or of his own volition, the Chairman of the Tribunal directs otherwise.
25.4The strict rules of evidence shall not apply to the proceedings of the Investigation Committee, the Disciplinary Tribunal and the Appeal Tribunal. Any oral evidence received shall not be given on oath. Accordingly, the Investigation Committee and a Tribunal may admit any evidence, whether oral or written, whether direct or hearsay, and whether or not that evidence would be admissible in a court of law.
25.5In proceedings before the Investigation Committee, Disciplinary Tribunal or the Appeal Tribunal which involve the decision of another court or tribunal, the following rules of evidence shall apply provided that it is proved in each complaint that the decision relates to the relevant party to the application:
(a)conviction of a criminal offence may be proved by producing a certified copy of the certificate of conviction relating to the offence.Proof of a conviction in this manner shall constitute conclusive evidence that the relevant party was guilty of the offence the subject thereof
(b)the finding and sentence of any tribunal in or outside England and Wales exercising a professional disciplinary jurisdiction may be proved by producing a certified copy of the finding and penalty.
(c)the judgment of any civil court may be proved by providing a certified copy of the judgment
25.6In respect of any complaint to which Regulation 25.5 is relevant, the findings of fact by the court or tribunal upon which the conviction, finding, penalty or judgment is based shall be admitted as prima facie evidence of those facts.
26.General
26.1For the avoidance of doubt it is hereby declared that all charges shall be dealt with under these Regulations unless:
(a)the Complaint had already been considered by the TDB before the commencement of the Scheme 2008; and
(b)it would in the opinion of the relevant Tribunal be unfair or unjust to the Defendant to have the complaint determined in accordance with the Taxation Disciplinary Scheme 2008 and these Regulations
26.2Any notice or document may be served by the Defendant by leaving the notice or document at, or sending it by first class registered or recorded delivery post addressed to the clerk to the relevant Tribunal or to the TDB, at an address to be notified to the Defendant when the complaint is served.
26.3Any notice or document required to be served on the Defendant may be served upon him personally or by sending it by first class registered or recorded delivery post addressed to the Defendant at his last known place of business or his last place of abode appearing in the register of Members held by a Participant of which the Defendant is a Member.Where documents are served by post, service shall be deemed to have been effected on the second business day after the letter was despatched.
27.Interest
27.1Interest payable under these Regulations shall be paid at such rate as the TDB shall from time to time determine.
28.Power to dispense with the requirements of the Regulations
28.1TheInvestigation Committee, Disciplinary Tribunal and Appeal Tribunal may in exceptional circumstances dispense with any requirement of these Regulations in respect to notices, witnesses, evidence, service of documents or timelimits in any case where it appears to the relevant Committee or Tribunal to be just so to do. Such a decision must be justified by the Investigation Committee, Disciplinary Tribunal and Appeal Tribunal and be reasonable in all the circumstances.
