Adami v The Ethical Standards Officer of the Standards Board for England

1. LORD JUSTICE AULD: This is a statutory appeal by the Ethical Standards Officer of the Standards Board for England against the order of Bean J on 28th June 2005 quashing findings on 24th June 2004 by a case tribunal of the Adjudication Panel for England against the respondent, Mr David Adami, a councillor of the North Dorset District Council, that he had breached the Council's code of conduct, and disqualifying him from holding office as a councillor for four years. It is a second appeal. The judge's sole reason for quashing the tribunal's findings and order for disqualification was for want of adequate reasons. The appeal is limited by direction of Latham LJ, granting permission for it, to the question whether the judge should have ordered an adjournment of the appeal to him and remitted the matter to the case tribunal with a direction to it to state its reasons, or, alternatively, to have quashed the decision and the order and remitted it to the tribunal for its reconsideration and reformulation of its decision in adequately stated reasons.

2. The statutory basis for the proceedings giving rise to the appeal is Part 3 of the Local Government Act 2000 which provides a mechanism for establishing standards and, for the purpose, a code of conduct by each local authority to govern the conduct of its members and employees. The Act has established a Standards Board for England and a procedure by which individuals may make written allegations that a member of a local authority has, or may have failed to comply with its code of conduct. If the Board considers that the allegation should be investigated, the Act requires it to refer the matter to an Ethical Standards Officer ("an ESO"). An ESO following investigation has a number of options, one of which is to refer the matter to the President of a body called the Adjudication Panel for adjudication by a case tribunal consisting of three members of the panel. The role of the case tribunal is, in the words of section 79(1) of the Act, to:

"... decide whether or not any person to which that matter relates has failed to comply with the code of conduct of the authority."

3. The history of the matter leading up to the decision in question has been well summarised by the judge in paragraphs 3 to 16 of his judgment on which, given the limited issue arising for decision on the appeal to this court, I adopt with gratitude by appending his judgment to those of this court.

4. Suffice it to say here, the judge found that the matter had been conducted with great thoroughness and fairness by all concerned up to the stage of its decision. The ESO had conducted an extensive investigation with great thoroughness and fairness, interviewing Mr Adami and the other principal players in the events the subject of the allegations. He, the ESO, concluded that the allegations called for adjudication by a case tribunal of the panel. His report to the panel was, in the judge's view:

"... an extensive and formidable document, carefully reasoned, examining the allegations made against Mr Adami."

A report, incidentally, that, before the full submission to the panel, the ESO had sent to Mr Adami for his comments but without reply.

5. The panel after attempting, without success, to identify from Mr Adami a hearing date to suit his and the panel's convenience, eventually arranged for a case tribunal to hear the matter on 24th 2004. At the tribunal hearing on that day the ESO was represented by counsel, Miss Yvette Genn. Mr Adami did not attend and had provided no written representations to the tribunal for submission at the hearing.

6. The tribunal noted, correctly as the judge found, that there was no dispute as to findings of fact. The matter proceeded before it without oral evidence, largely on the basis of the ESO's report, setting out the undisputed factual narrative and his and Mr Adami's respective submissions as to the allegations arising out of that narrative.

7. The judge made a point in his judgment of observing that the report contained:

"... a fair and clear summary of the points which it was understood were being made by Mr Adami in answer to the complaints."

The judge was of the view that thus far Mr Adami had no cause for complaint about the procedures leading up to and in the conduct by the case tribunal of the hearing of the allegations against him.

8. The document containing the tribunal's decision set out in considerable detail the procedural history of the matter, its findings of fact in relation to each of the allegations, largely taken from the voluminous and unchallenged documentation giving rise to and forming part of the ESO's report, a rehearsal of Mr Adami's and the ESO's respective cases on each of the allegations, the former of which the judge commented:

"... set out admirably the points which Mr Adami had made to the ESO in the course of the investigation and might be expected to make to the tribunal if he were present."

9. Having set out all that detail as to the unchallenged evidence of facts and the competing cases of the ESO and Mr Adami as to whether they disclosed breaches of the code, the tribunal in paragraph 7.6 of the document expressed its decision in the following short form:

"The tribunal found that on the basis of its findings of fact, the respondent had breached the following provisions of North Dorset District Council's code of conduct."

identifying ten provisions in the code alleged to have been breached.

10. Then in paragraph 7.7 of the document the tribunal purported in very short form, and by reference only to the ESO's report, to set out its reasons for that decision, namely:

"The tribunal finds that the respondent breached these provisions by the conduct identified in paragraphs 7.1 to paragraphs 7.8 of the report of the ESO with one immaterial exception. The tribunal adopts the reasoning of the ESO as set out in his report."

11. In his appeal to the judge, which was under section 79(15) of the 2000 Act, Mr Adami raised many grounds of challenge. The judge rejected all of them. However, he found in Mr Adami's favour on the reasons point of his own motion. He ruled, as I have indicated, that the tribunal's reasons in that short form were inadequate, and on that account quashed the case tribunal's findings of Mr Adami's breaches of the code and its order of disqualification. He did so notwithstanding Miss Genn's representations that, if he was of that view, he should adjourn the matter to give the case tribunal an opportunity to secure an affidavit from its chairman amplifying or explaining its findings and/or its reasons.

12. There is no issue on the appeal in the way in which it has been permitted to come to this court on the judge's findings that the case tribunal's reasons for its decision were inadequate. The issue is purely whether the judge should not have quashed the tribunal's decision without first adjourning the matter and remitting it to the tribunal to give adequate reasons, or whether, having quashed the tribunal's decision, he should have remitted the matter to the tribunal for it to reconsider and reformulate its reasons for its findings, and, if appropriate, as to the order of disqualification.

13. The judge in paragraph 21 of his judgment explained his refusal to adopt the first of those courses as the only one put to him because he considered that an adjournment would only achieve anything if such an affidavit were permissible and in his view it was not. He went on in paragraphs 22 and 23 to set out his understanding of recent jurisprudence as to the need for adequate reasons, citing, in particular, the well-known guidance of this court in English v Emery Reimbold and Strick Limited [2002] 1WLR 2409 to emphasise the need for a tribunal to give its own reasons for its decision and in such a way as to make plain to the losing party which of his arguments have been rejected and why.

14. In so doing the judge commented in paragraph 23:

"The submissions [of Mr Adami] so admirably set out in paragraphs 5.1 to 5.8 of the decision ... were drafted after the report of the ESO ... It is not apparent at all from the tribunal's decision why each of those submissions were rejected. There may have been very good reasons grounds for rejecting them; I can well imagine what a judgment turning down those submissions one by one might have said. But the tribunal did not say it: and although Ms Genn's valiently tried to argue that their reasons for rejecting them were to be found in the last sentence of paragraph 7 of the tribunal's decision, I am afraid she has not persuaded me."

15. In paragraphs 25 and 26 of his judgment the judge, while expressing the view that it would be wrong by remitting the matter to the tribunal to put it in the position of relying upon ex post facto reasoning, made clear that he had no basis for questioning the validity of the likely reasoning of the tribunal, simply its failure to express it. This is what he said in those two paragraphs:

"25. Given the serious deficiency in the adequacy of the tribunal's decision, it would not be right to adjourn the case in order to enable the chairman of the tribunal to produce now what would inevitably be ex post facto reasoning. That would go far beyond the procedure for amplifying reasons or explaining ambiguities in reasons identified in any of the cases of the Court of Appeal, or for that matter the Employment Appeal Tribunal, so far. It seems to me that we must proceed with the material we have and on that basis the decision cannot stand.

26. I should make it clear in reaching the conclusion that this appeal must be allowed that I do not in any way criticise the Ethical Standards Officer whose report, as I have said, seems to me a careful and admirably reasoned document; nor anyone who was concerned with bringing the case to a hearing; and certainly not Ms Genn who appeared for the ESO at the hearing. My concerns have been simply that the decision which the tribunal gave is not a reasoned decision on the critical issue, which is what section 79 of the 2000 Act requires them to make."

16. Mr Rabinder Singh QC, who appears today with Ms Genn in support of the ESO's appeal, submitted that the judge erred in failing to resubmit the decision for rehearing or provision of adequate reasons to the same or a newly constituted case tribunal. Not only, he maintained, was it an error of law as a matter of principle, but it was one in which the judge failed to have regard to his view expressed in the words that I have read and italised in my notes of judgment in paragraph 23 of his judgment, that the tribunal might well have had good grounds for rejecting each one of Mr Adami's responses to the allegations.

17. However, reverting to principle, Mr Singh submitted on the authorities, particularly the guidance given by Lord Phillips MR, as he then was, giving the judgment of the court in English v Emery Reimbold that where an appellate court is of the view that the reasons for a decision under challenge before it are inadequate, the norm should be (1) to remit the matter to the tribunal below for it to set out its reasons adequately, or (2) to remit the matter for the decision to be taken again and with adequate reasons.

18. He submitted that there are particular reasons for following that norm in this case. First, where, as here, there is no valid criticism of the procedure giving rise to the decision, no other criticism of or suspicion as to the likely soundness of the decision, a "reasoned" challenge without more should be the least vulnerable to quashing on review because of the availability of remission for articulation of adequate reasons or rehearing.

19. Secondly, where, as here, the decision under challenge is that of a specialist tribunal, governed by a specialist regulatory framework, the High Court, Mr Singh submitted, should not usurp the function of the tribunal so as to nullify the effect of specialist legislation by simply quashing a decision for an error which may be remediable by remission or a new decision.

20. As the matter came to the High Court by way of statutory appeal pursuant to section 79(15) of the 2000 Act, the court's power to remit, though not expressly described as such, is governed by CPR 52.10(2)(b) or (c) empowering it respectively to refer the claim or "any issue" for determination back to the lower court, or to order a new trial or hearing.

21. The breadth of those provisions in CPR 52, where the Court of Appeal itself may frequently be the decision maker, rather than simply acting by setting aside the decision of the court below and referring it back, are to be compared with those in Part 54 of the CPR which provides for the powers of the court when concerned with matters that have come to the High Court by way of judicial review. In such cases (cases of judicial review) the norm, the starting point, is very much more often one of quashing the decision of the court below. So the powers set out in part 54 are designed to meet the consequences more often than not of a quashing order, and one of those powers is an express power to remit a matter for reconsideration by the court below. However, as I have said, the provisions of Part 52 are widely expressed and there is clear power in them for reference to the court below of any issue, as well as any claim, and any issue may involve adequacy of reasons as to the decision under challenge. Such a course, therefore, of adjournment, followed by remission, or quashing, setting aside, followed by remission, was plainly available to the judge in this case.

22. Sedley J, sitting with Mann LJ, in R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242 giving the judgment of the court, in an obiter observation at pages 257 to 258 was clearly of the view that in the context of judicial review and in an appeal process from a statutory tribunal it would, or should be open to the court to refer an inadequately reasoned decision back to the tribunal below without first quashing it. In Burns v The Royal Mail Group Plc [2004] ICR 1103 such a course, remission as a step short of quashing, the Employment Appeal Tribunal stated that it considered, and so applied the English v Emery Reimbold practice in appropriate cases, as applicable to all stages of the procedures of employment tribunals. At first sight if either such power had been contemplated by the judge in this case it might be thought that the former, remission short of quashing, would be the more appropriate in the circumstances of this case. But that is a matter to which I will return.

23. There was no challenge by Mr Adami to the material facts found by the tribunal which gave rise to its findings of breaches of the code of conduct. As Mr Singh observed, the range and number of those facts, at the very least, indicated a strong possibility of such findings of breach and imposition of sanction. In such circumstances, where inadequacy of reasons is the only candidate for attacking a decision, remission with or without quashing for identification or clarification is likely to be the most efficient, as well as just, way of dealing with it.

24. In my view, the short answer to this appeal is to be found in the reasoning of Lord Phillips in the much cited passages from paragraphs 24 and 25 of his judgment in English v Emery Reimbold which are clearly of broad application. An appellate court should, of course, be wary when considering remission of the possibility of the tribunal below embarking on ex post facto reasoning in the sense of considering what it had not considered before, or drifting, perhaps unconsciously, into ex post facto rationalisation, but such a response, particularly where, as here, on the unchallenged evidence all the signs are that the tribunal based a rational decision on it, is not inevitable as the judge seems to have thought in paragraph 25 of his judgment which I have read. Nor in the circumstances need it or is it likely to "go far beyond the procedure for amplifying reasons or ambiguities" as the judge also seemed to have assumed in the same paragraph.

25. The judge had a judgment or discretion in the matter which he seems to have put to one side despite his acceptance earlier and later in his judgment of the likely integrity of the tribunal decision. Instead, he appears to have concluded that his finding of inadequacy of reasons of its own required him to quash the tribunal's potentially rational decision without giving it an opportunity adequately to explain it, the norm as indicated by Lord Phillips in English v Emery Reimbold .

26. If any further justification for remission either short of quashing or along with quashing is to be required, it is, as Mr Singh noted in his skeleton argument, to be found in the principle of proportionality, particularly where the appellate body is dealing with the decision making process of statutory and specialist tribunals. I respectively accept and adopt his proposition that in this context to quash a decision without more is likely to be a disproportionate and inappropriate response to a failure to give adequate reasons.

27. As he observed, the regulatory framework from which this appeal arises is designed to control the behaviour of councillors. By failing to remit it could be said, he submitted, that the judge usurped the function of the specialist regulatory body. Save in circumstances strongly indicating to the contrary, an inadequately reasoned decision, which is not otherwise and plainly invalid, should in my view be remitted for explanation or reconsideration and reformulation in the light of the appellate court's judgment. That is, it seems to me, a plain application of the guidance in English v Emery Reimbold .

28. As this court observed in Barke v Seetec Business Technology Centre Limited [2005] EWCA Civ 578 at paragraph 47:

"The underlining justification for this is that judges and members of employment tribunals are trusted for their professionalism and integrity and, in many cases, it is better to remit to the original court or tribunal."

29. It follows from what I have said that I am of the view that Bean J clearly had a jurisdiction to remit this matter for want of it being inadequately reasoned either without quashing it at all, or to quash it but nevertheless remit it to the same tribunal for it to reconsider the matter and reformulate and adequately express its reasons for decision.

30. I have hesitated as to whether the judge should have taken the first or the second of those courses, but have no hesitation in concluding that he should have taken one of them. On balance, it seems to me that the preferable course for the court to adopt would be (1) to direct, as the judge did, that the tribunal's findings of the breaches of the code and order of disqualification be set aside and (2) that the matter should be remitted to the tribunal for its reconsideration and adequate formulation of its reasons going both to the issue as to proof of the alleged breaches, and if and to the extent that affects the order of disqualification made in the light of its reasoning so far the sanction to be imposed.

31. I opt for that course because both elements of the tribunal's order may have to be considered together in the light of the reformulation in the course of reconsideration by the tribunal of its reasons for decision. Accordingly, I would allow the appeal and make the order that I have indicated.

32. LORD JUSTICE MAURICE KAY: I entirely agree and add only this out of deference to one point made by Mr Adami in the course of his address to the court. He observes that it is now some 18 months since the decision of the tribunal. He submits that in those circumstances that passage of time in itself ought to dissuade this court from taking the course to which my Lord has just referred.

33. I am unpersuaded by his argument based on the passage of time. A delay is always regrettable, but, in my judgment, the delay in this case is not a crucial or determinative factor. It remains practicable and reasonable for the tribunal to revisit its decision and to amplify the reasons for that decision. I do not consider that the circumstances are such that the risks of ex post facto reasoning, in the pegorative sense of those words, are so great that such a course ought to be resisted. In that regard I emphasise that this tribunal is a statutory body of independent members carrying out an important function of a judicial nature in the public interest.

34. I, too, would allow the appeal and I agree with the disposal with which my Lord concluded his judgment.

35. LORD JUSTICE LLOYD: I agree with both judgments and would likewise allow the appeal and remit the case to the same case tribunal on the basis that my Lord has explained.

ORDER: Appeal allowed. No order as to costs.