Richard Thomas Barnes v The Royal Institution of Chartered Surveyors

By this claim, the Claimant seeks an order for costs, alternatively damages, together with interest consequential upon orders made against him by the Defendant exercising its regulatory capacity.

The Defendant seeks an order striking out the Particulars of Claim, alternatively for summary judgment. The claim was filed in the County Court at Stockport and was transferred to Manchester pursuant to an order of District Judge Lettall made on 23 January 2023. Whilst there may be some ambiguity as to whether the intention of this order (or the later order of District Judge Richmond dated 9 March 2023) was for the case to proceed in the High Court rather than County Court, it has not in fact been transferred to the High Court and therefore continues for all purposes (most particularly the route of appeal) in the County Court. On 5 May 2023, District Judge Richmond directed that the application be heard by a judge sitting in the Business and Property Courts who is also authorised to sit in the Administrative Courts.

Pursuant to this order, the application came before me on 28 June 2023, following which I reserved judgment.

The Defendant is a body incorporated by Royal Charter. It is a membership body concerned with providing groups of qualifications for surveyors and maintaining professional standards. Membership is not compulsory and there are other routes through which one can practice as a surveyor.

The Claimant is a surveyor. He applied to join the Defendant in 2006 and became a member on 1 January 2007. In 2015 he successfully applied to become a Fellow.

It is common ground that the relationship between the Defendant and its members is contractual in nature. The Claimant pleads a claim for breach of contract and the Defendant accepts that contractual duties arise.

In 2019, the Claimant applied to join the RICS President’s Panel of Construction Adjudicators. As part of that process, he was required to submit an adjudication decision of his. The Defendant’s regulations permitted candidates to submit either an actual arbitration decision (where the candidate was already sitting as an arbitrator) or a “mock” decision, for example one created by the candidate when training to be an adjudicator. The Claimant submitted a document which purported to be a mock adjudication decision (“the Decision”).

As part of the investigation process, the Claimant was interviewed. One question raised of him related to the process of obtaining information from the parties for the adjudication decision that he had submitted. One interviewer commented, “I’m interested in what you take into account because I was a bit concerned that you might have a standard template, and that worries me slightly. There is no harm in having a standard template, but one size doesn’t fit all.” The Claimant responded, “No, no, and I appreciate that obviously depending on what obviously was received from the RICS and the documents, it may be sensible to change that. But obviously there is – it’s good to have a standard template as a guideline and obviously to vary from that if required. And so from that template I would invite the parties – I would set out the information that I received so far, confirm who the parties are. I would request the documents are sent to me electronically in the native format because I think it’s important to use native format documents. Not a lot of adjudicators do that, but I think as time moves on I think we’ll see more of that because obviously a lot of documents now are searchable. So I think that’s a personal benefit for me, so that’s something that I’ve developed from the standard template. I would confirm my terms to the parties as well.”

However, on investigation it became clear that document he had submitted was substantially similar to an adjudication decision by another adjudicator, Mr Michael Conway (“the Conway Decision”). This led to the Defendant conducting an investigation, following which charges against the Claimant of dishonesty and lack of integrity in submitting the Decision were referred to a hearing in front of a disciplinary panel (“the Disciplinary Panel”).

The Disciplinary Panel found that, in submitting the Decision, the Claimant had submitted work that was not his own. They found that he knew the work was not his own and that in consequence the two charges of dishonesty and four of the five charges of lack of integrity were made out. The Panel particularly commented on the Claimant’s description of his use of a template in the interview referred to above, stating, that if the Claimant “held a genuine belief that his methodology in producing the Decision was legitimate, he would have taken the opportunity at that stage to disclose his use of Mr Conway’s decision as a template. Instead, he talked about his use of templates in general by reference to a basic structure to which he would add the relevant detail.”

The Disciplinary Panel went on to find that, by reason of their findings, the Claimant was liable to disciplinary action and imposed a sanction by way of reprimand, a fine of £5000 and the imposition of conditions preventing the Claimant from making an application for inclusion on the RICS President’s Panel until a period of 5 years had elapsed from the date of the decision; requiring that any application made by the Claimant to the RICS President’s Panel must meet the criteria by other means than a “mock adjudication from other forums;” and requiring the Claimant to attend a course on professional ethics within 24 months of the date of the decision.

The Claimant exercised his right to appeal, contending that the panel had erred in tis findings. The Defendant cross appealed, alleging that the sanction was unduly lenient. Both appeals were heard by an appeal panel (“the Appeal Panel”). Both were dismissed.

The admission and registration of members by the Defendant was, at the relevant time, governed by their bye-laws dated February 2020.

Pausing here, it is common ground that, pursuant to the contractual terms between the parties as a result of the Claimant giving an undertaking under Bye-Law 23.5, the Defendant was empowered to investigate allegations that the Claimant was guilty of conduct likely to bring the Defendant into disrepute or had failed to adhere to its Bye-Laws or to Regulations or Rules governing members’ conduct; that, after due enquiry, the Defendant’s Regulatory Tribunal was empowered to impose one of a variety of disciplinary penalties if such conduct was found proved; and that the Regulatory Tribunal was empowered to make such order as it considered just and reasonable in relation to the Defendant’s costs in connection with any investigation and/or hearing.

The Defendant’s Standards and Regulation Board has authorised the exercise of the powers under B5.4 in the Regulatory Tribunal Rules (“the Rules”). Relevant parts of the Rules include:

The Defendant’s Sanctions Policy, referred to in the Rules, sets out a variety of factors relevant to the imposition of sanctions in different circumstances.

CPR 3.4 deals with the court’s power to strike out statements of case:

“(2)

The court may strike out a statement of case if it appears to the court:

(a)

that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)

that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c)

that there has been a failure to comply with a rule, practice direction or court order.”

The law concerning applications to strike out statements of case under CPR 3.4(2)(a) was neatly summarised by Pepperall J in Tejani v Fitzroy Place [2020] EWHC 1856:

“21.

The principles are not controversial:

21.1

The whole or part of a statement of case may be struck out pursuant to r.3.4(2)(a) if it does not disclose a ground of claim or defence known to law (e.g. Price Meats Ltd v. Barclays Bank plc[2000] 2 All ER (Comm) 346) or where the court is otherwise certain that the claim or defence is bound to fail (Harris v. Bolt Burdon [2000] CP Rep 70; Hughes v Colin Richards & Co. [2004] EWCA Civ 266, [2004] PNLR 35).

21.2

As Clarke LJ (as he then was) observed in Royal Brompton Hospital NHS Trust v. Hammond [2001] EWCA Civ 550, at [104], the focus in applications under r.3.4(2)(a) is upon the statement of case rather than the evidence. In that respect, the approach differs from applications for summary judgment under Part 24. Accordingly, on this application, the court must assume the truth of the Claimant's pleaded case.

21.3

While there are other categories of abuse that are not relevant to this application, the court may strike out Particulars of Claim under r.3.4(2)(b) where they are so badly drafted that they fail to identify the case that the Defendant has to meet. In such cases, strike out is, however, very much a remedy of last resort and the court should usually first allow the Claimant an opportunity to file a coherent and intelligible claim.

21.4

The hurdle is, as one would expect, high. Striking out is an exceptional course and most cases should simply be defended on their merits.”

The court’s power to give summary judgment arises under CPR24. CPR24.2 provides:

“The court may give summary judgment against a Claimant or Defendant on the whole of a claim or on a particular issue if –

The principles to be applied on such an application were formulated by Lewison J in Easyair v Opal Telcom [2009] EWHC 339 and approved by the Court of Appeal in JC Ward v Catlin [2009] EWCA Civ 1098. They can be summarised as follows:

In Begum v Maran (UK) Limited [2021] EWCA Civ 326, the Court of Appeal affirmed the earlier line of authorities to the effect that that the test in an application for summary judgment under CPR 24.2 is the same as the test for strike out under CPR 3.4(2)(a)

The Claimant’s Particulars of Claim are extremely prolix, running to 108 paragraphs, some of which have several sub paragraphs. They contain considerable amounts of comment and submission. They certainly do not amount to a “concise statement of the nature of the claim” (as required by CPR 16.2(1)(a)). The importance of discipline in the drafting of Particulars of Claim (and statements of case more generally) is well recognised. Leggatt J, as he then was, observed in Tchenguiz v Grant Thornton UK LLP [2015] EWHC 405 (Comm):

“Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial.”

In any event, the following claims by way of breach of contract are identifiable, for example by reference to paragraph 53 of the Particulars of Claim.

Paragraph 53 of the Particulars of Claim also includes a claim in respect of the Claimant’s own costs before the Disciplinary Panel and the Appeal Panel. Clearly that is a second order remedy, consequential upon the Claimant making out its case on one of the alleged breaches of contracts.

The Defendant contends as follows:

On the first of these arguments, that the Particulars of Claim do not disclose reasonable grounds for bringing the claim and/or the claim carries no real prospect of success, the Defendant contends that the court can, and as a matter of proper case management, should conclude that the Claimant’s case as pleaded is fundamentally flawed on the first three of the cases advanced in paragraph 53 of the Particulars of Claim and that on the fourth case, which is a costs argument predicated on success on one or more of the first three cases, the Claimant is therefore bound to fail.

The Defendant rejects the argument that either the Disciplinary Panel or the Appeal Panel erred in assessing the evidence as to the Claimant’s alleged dishonesty and/or lack of integrity by failing adequately to take into account the Claimant’s evidence as to what he believed to be the case and/or took into account matters that were not relevant to its assessment of those issues.

The Defendant contends that the Disciplinary Panel, in considering allegation of dishonesty, was obliged to apply the test approved by the Supreme Court in Ivey v Genting Casino [2017] UKSC 67:

“[74] When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the Defendant must appreciate that what he has done is, by those standards, dishonest.”

The Defendant says that this was exactly the test applied by the Disciplinary Panel. This is apparent from its summary of the legal advice received at paragraph 32 of the determination but more importantly it can be seen from the reasoning of the Panel to have been applied in coming to its conclusions about the Claimant’s lack of honesty and/or integrity within paragraph 34 of the determination. The same care can be seen in the appeal panel’s approach to the decision of the Disciplinary Panel.

As it is put at paragraph 42 of the Defendant’s skeleton argument:

“Both Panels considered the question of Mr Barnes’ subjective beliefs on the question of plagiarism, and found that his explanations was untenable considering his intelligence and experience. While Mr Barnes evidently disagrees with the Panel’s finding, it is inescapable that it was reached in accordance with the terms of the contract between Mr Barnes and the RICS – that is, after “due inquiry”, and having accorded Mr Barnes a right to be heard.”

Turning to the argument that the costs exceeded that which the Disciplinary Panel and/or Appeal Panel could properly award, the Defendant contends that this claim too is fundamentally flawed. The Claimant’s case is that the power to award costs was limited by Supplement 2 to the Sanctions Policy. However the Defendant contends that this is unarguable. On a simple reading of the contractual material, the court should conclude that Supplement 2 is not contractually binding in so far as it is argued to limit the sums awarded by way of costs. The undertaking signed by the Claimant incorporates into the contract between the parties the Bye-laws, Rules and Regulations of the Defendant (including the Regulatory Tribunal Rules), but there is no reference to the Sanctions Policy. Further, whilst the Defendant concedes that Rule 125 of the Regulatory Tribunal Forms expressly limits the powers of a Disciplinary Panel in imposing a fine by reference to the guidance in the Supplement to the Sanctions Policy, at no other point is the Sanctions Policy (or Supplement 2) incorporated into the Bye-laws, Rules or Regulations. Accordingly, apart from on the exercise of a power to fine, compliance with the Sanctions Policy is not a term of the contract between the parties.

As to the argument that Rule 125(d) incorporates Part 3 of Supplement 2 into the contract on the ground that an order for costs amounts to a “fine”, the Defendant rejects this, contending that:

In any event, the Defendant says that, on its true construction the Sanctions Policy does not limit the sums that the Disciplinary Panel can award to those set out in part 3 of Supplement 2, since clause 3.1 of the Sanctions Policy makes clear that in an appropriate case the Disciplinary Panel can depart from the Policy. It would only be in the circumstance that Supplement 2 was incorporated into the contract but the Sanctions Policy more generally was not that the incorporation of Supplement 2 would assist the Claimant by making a blanket restriction on that which is recoverable.

As to the Claimant’s alternative argument that the Defendant is limited in recovering costs to that which it has actually incurred, the Defendant does not necessarily disagree with the premise of the argument but does not accept the Claimant’s case that the costs that were ordered exceeded that which the Defendant had in fact incurred.

In oral submission, the Defendant raised in passing a question as to whether the Claimant is in fact entitled to recover the figure paid over by way of costs pursuant to the contract as pleaded in the Particulars of Claim. The Defendant says that what he seeks is more in the way of a restitutionary remedy, which has not been pleaded. However, the Defendant conceded this to be a pleading point rather than a point of substance.

The second argument for strike out is based on the vagueness and deficiency of the Particulars of Claim. The Defendant contends that this is a long winded document which fails properly to particularise the Claimant’s case. The Claimant fails properly to particularise the contractual relationship alleged between the Defendant and himself and specifically the basis upon which it is said that the Sanctions Policy and Supplement 2 form part of the contract between the parties. Further, the Claimant’s criticism both of the Disciplinary Panel and the Appeal Panel is discursive in nature, failing to identify how the alleged failings amount to a breach of contract.

The third argument for strike out, that the Claimant has failed to comply with a rule, practice direction or court order, is based on the contention that the Claimant paid the wrong issue fee. The fee of £332 that was paid is the proper fee for a claim that is otherwise than for the recovery of a sum of money (see paragraph 1.5 of Schedule 1 to the Civil Proceedings Order 2008). However, the Claimant claims to recover a sum of money (see paragraphs 105 and 106 of the Particulars of Claim). Accordingly, this is a claim for the recovery of money but because no limit is placed on the claim in the Claim Form, the fee payable under paragraph 1.1 of column 1 of Schedule 1 to the 2008 Order is £10,000.

As I indicated during the course of argument, I consider the Defendant’s argument on this point to be correct. I am however satisfied that the failure to pay the correct sum is an oversight rather than a deliberate manipulation of the court’s process and in those circumstances an order striking out the claim on this ground would be draconian. Accordingly, if the claim is otherwise permitted to proceed, it is necessary for the Claimant to pay the difference between the fee actually paid and the appropriate fee (whether £10,000 for a claim that is unlimited or some lesser sum if the Claimant were to amend by limiting the claim) but no further order by way of strike out would be appropriate unless the Claimant failed to pay the relevant fee. Accordingly I do not need to consider this argument further.

I deal first with the Claimant’s argument that the Disciplinary Panel erred in its assessment of his evidence when concluding that he acted dishonestly and/or without integrity. The Claimant’s starting position is that the Defendant is only entitled to make disciplinary findings following a process of “due enquiry.” If the Defendant’s enquiry is flawed as a matter of law, it would not be “due enquiry” and therefore any consequential disciplinary finding and/or sanction and/or costs order would not be open to the Defendant pursuant to the terms of the contract.

The Claimant contends that, in assessing his evidence, the Disciplinary Panel was required to consider two matters:

In considering the first of these issues, the Disciplinary Panel was required to make an assessment of the Claimant’s state of mind on a subjective basis. On the second, it was concerned only with the objective standards of ordinary decent people.

The Claimant contends that, in analysing his knowledge and/or belief, the Disciplinary Panel failed to have regard to a number of factors:

The Claimant also contends that both the Disciplinary Panel and the Appeal Panel were unduly influenced by the Claimant’s acceptance that he should not have used the Conway Decision as a basis for his own document. That concession is recorded in paragraph 7 of the opening note prepared on behalf of the Claimant for the hearing before the disciplinary panel. The exact wording is:

“With the benefit of the insight, and hindsight, that the investigation process leading to this hearing has afforded Mr Barnes, it is accepted that

7.1

the Decision bore excessive similarity to the adjudication decision previously made by Mr Conway; and

7.2

Mr Barnes accepts that he should not have sought to provide documentary support for his application to join the Panel by using the Decision, or by using it in the manner in which he did.”

This paragraph is cited at paragraph 33 of the determination of the Appeal Panel, with the exclusion of the opening words, “With the benefit of the insight, and hindsight, that the investigation process leading to this hearing has afforded Mr Barnes…” The Claimant contends that this exclusion distorts the meaning of the quote and demonstrates that the reasoning of the Appeal Panel was flawed. Further, he contends that the Disciplinary Tribunal was unduly influenced by his acceptance of the excessive similarity without bearing in mind that this was an acceptance with the benefit of hindsight.

As to the determination of the appeal panel, the claimant’s primary focus is upon the test which is applied in determining the appeal. Rule 165 of the Regulatory Tribunal Rules (which contract between the parties) referred to the Appellant bearing a burden of showing that the decision of the Disciplinary Panel was “wrong”. The Appeal Panel cited this rule at paragraph 3 of its determination. Further, Rule 180(a) refers to the Appeal Panel only allowing an appeal where the previous decision was “wrong.” However, the Claimant has drawn attention to an email of 26 May 2022, which includes a written determination by the Chair of the Appeal Panel dealing with a number of issues, including a request for an oral hearing, disclosure issues and the admission of new evidence. In that determination, it is stated. “The heavy onus is on Mr Barnes to establish that the seemingly well argued Determination of the Tribunal is wrong in law…”

The Claimant accepts that the hearing before the Appeal Panel was by way of review not rehearing. But he contends that the reference to showing that the Disciplinary Panel’s decision was “wrong in law” misstates the test to be applied. In particular, he contends that the Appeal Panel was bound to consider what factual evidence as well as the legal test applied by the Disciplinary Panel.

Turning to his argument as to costs, the Claimant’s core contention it that the costs as awarded exceeded that which is permitted under Supplement 2 to the Sanctions Policy. In arguing that Supplement 2 is incorporated into the contract between the parties, there are two potential mechanisms by which Supplement 2 to the Sanctions Policy might be argued to be incorporated into the contract between the parties:

The Particulars of Claim do not deal with the basis upon which Supplement 2 is alleged to be incorporated into the contract. Within both that document and the Claimant’s skeleton argument, there is passing reference to Rule 125(d) of the Rules, although neither make clear the basis upon which the Claimant says that this incorporates into the contract the terms of the Supplement as to the amount of recoverable costs.

During the course of oral submission, it became apparent that the Claimant’s argument as to the express incorporation of Supplement 2 sets into the contract is as follows:

Additionally or in the alternative, the Claimant contends that the Defendant is acting inconsistently in respect of Supplement 2. At various times, both before the Disciplinary Panel and before the Appeal Panel, the Defendant has sought to rely upon supplement 2, as set out at paragraph 23 of the Claimant’s skeleton argument. It is not open to the Defendant to “blow hot and cold” on whether Supplement 2 is binding.

More generally, the Claimant invites the Court to construe the contract in a manner which incorporates Supplement 2. For example, paragraph 26 of the Claimant’s skeleton argument invites the Court to determine how the schedule of costs within Supplement 2 should operate.

I am not entirely clear how, as a matter of law, the Claimant contends that the court is to have regard to Supplement 2 if it is not incorporated into the contract between the parties. In my judgment, the only plausible basis for a finding that the Defendant’s power to award costs is limited by the provisions in Supplement 2 is a finding of some contractual term to that effect. The only basis upon which this is put as an express term is the argument in respect of Regulation 125(d) referred to above. If this argument fails, the Claimant would have to show incorporation of the schedule by means of an implied term.

If the Claimant shows incorporation of part three of Supplement 2 into the contract, he contends that he has a good arguable case that the costs awarded by the Disciplinary Panel exceed that permitted by part three. The costs claimed by the Defendant were as follows:

Of these costs, only the hearing costs arguably exceed the amount stated in Part 3 of Supplement 2. The hourly rates for investigation costs and solicitor costs fell within the scale prescribed. However the Claimant argues that the hearing costs for £2,650 within Part 3 is not a daily rate but a total figure. If this were correct, the recoverable costs would be limited to £18,000, less than the Claimant has paid. (I should note that, whether the hearing costs is to be treated as a daily or a global figure, the difference between the cost in paragraph 3 of £2,650 and the cost claimed of £2,170 is explained by the reduced cost of holding a hearing remotely using Teams.)

The Claimant contends in the alternative that the Defendant is limited to recovering costs that it has actually incurred. Bye-law 5.4.6, permitting an order for the payment ofcosts that are “just and reasonable … in connection with any investigation and/or hearing” must on its true construction be limited to costs actually incurred by the Defendant. The table of costs at Part 3 of Supplement 2 refers to solicitors’ costs at £200 per hour and the costs of investigating and/or work by paralegals at £75 per hour. However, as the Claimant seeks to demonstrate by the production of documents next to a letter dated 30 December 2022, these hourly rates are far in excess of what the Defendant pays to solicitors, investigators and/or paralegals.

In considering the Claimant’s allegations of breach of contract in respect of the conduct of the proceedings before the Disciplinary Panel and the Appeal Panel, I accept for the purpose of this application the Claimant’s starting position that, if he can show that either the Disciplinary Panel or the Appeal Panel (or both) erred in law in dealing with the proceedings brought against the Claimant, the Defendant would not have been entitled to make disciplinary findings against him and any consequential sanction and/or costs order which it purported to impose would amount to a breach of contract. An enquiry that involved the wrong application of the law or that reached factual conclusion outside of the range of reasonable conclusions open to the Disciplinary or Appeal Panel on the material before it would not amount to “due enquiry” as contemplated by the Bye-Law 5.4.2. In so far as any sanction or costs order was outside of the powers of the panel on a proper construction of the terms of the contract between the parties, it would equally be inconsistent with the contractual terms.

I deal first with the allegations that the Disciplinary Panel failed properly to deal with the Claimant’s evidence as to the use of the Conway Decision as a template. In my judgment, the determination of that panel shows a conspicuously careful analysis of the issue of dishonesty and the evidence relating thereto. First, the Panel clearly correctly stated the law within the determination. The Claimant does not seriously dispute this. Of course, the mere fact that the law was correctly stated does not mean that it is correctly applied. However, in paragraph 34 the determination, the Panel looks with considerable care at the Claimant’s use of the Conway Decision. In particular, it is clear that the panel rejected the suggestion that the Conway Decision was a “template” in the normal sense of that word or, crucially, that the Claimant believed it to be so in the normal sense of that word.

It follows that the Claimant’s belief as to whether it was legitimate to use a template was irrelevant to the Panel’s determination. It found that he did not believe that he was using a template and furthermore that he obfuscated when interviewed about this issue. This conclusion also undermines the argument that the disciplinary misunderstood the concession that the Claimant made in his draft opening. The Appeal Panel dealt with this point in paragraph 34 of its determination – the Claimant’s evidence as to his state of mind when he submitted the Decision was rejected by the Disciplinary Panel.

It is said that the determination of the Disciplinary Panel does not include reference to everything that the Claimant had to say about the preparation of the Decision. However, if one looks, for example, at the bottom of page 14 and the top of page 15 of the Decision (using the internal numbering of the document) one can see that the Panel has taken care to analyse the Claimant’s evidence as to the changes that were made to the Conway Decision. A review of the bundle of material before the court shows that the Disciplinary Panel had a large amount of material in front of it. It could not be expected to refer to every factual assertion that had been made. To do so would have been to produce a determination of disproportionate length. In complying with its duty to perform “due enquiry”, I cannot see that the Panel was obliged, in giving its reasons, to go beyond that which it is well established is the duty of the court in giving reasons, namely to show the parties and the appeal court the principles upon which it acted and the reasons that led to its decision (see English v Emery Reimbold [2002] EWCA Civ 605 and Union of Construction and Allied Trades Technicians v Brain [1981] IRLR 225.)

As to the argument that the Appeal Panel misstated or misunderstood the law, it is true to say that the Chair’s determination referred to in the email of 26 May 2022 contained a gloss on the wording of the Regulatory Tribunal Rules. However, I see no material that could lead to the conclusion that the Appeal Panel in fact misapplied the relevant test.

In my judgment, the Claimant has no real prospect of success in showing that the Defendant was in breach of contract in its due enquiry into and determination of the disciplinary proceedings brought against him.

I turn to consideration of the issue as to whether the Defendant is contractually entitled to recover the sums claimed under the costs order.

The argument that the costs regime in the Sanctions Policy was expressly incorporated into the contract between the parties by virtue of Rule 125(d) of the Regulatory Tribunal Rules, is flawed for the following reasons:

As to the incorporation of the Sanctions Policy generally or Supplement 2 particularly, by way of implied term, the Claimant’s pleaded case and indeed his written and oral arguments on the application do not address the issue. Doing the best I can, I see no ground for implying a term incorporating either in the contract between the parties as a matter of law. As for the argument that a term might be implied in fact, it would be necessary for such implication to pass one of the two grounds set out by Lord Hughes in Ali v Petroleum Company of Trinidad and Tobago [2017] UKPC 2 at [5] that the implication of such a term either “is so obvious that it goes without saying” or “is necessary to give the contract business efficacy.”

Either argument has the immediate problem that those responsible for drafting the Defendant’s regulatory scheme saw fit to incorporate the part of the Sanctions Policy dealing with fines into the Regulatory Tribunal Rules and therefore, by virtue of the undertaking, into the contract between the Defendant and its members, whereas they did not see it be necessary to include that part of the Sanctions Policy dealing with costs.

At a more basic level, I do not see that the alleged implied term meets the test either of obviousness or of business efficacy. It is not obvious that a detailed Sanctions Policy would be contractually binding between the Defendant and its members. It is certainly not necessary for such a term if the contract of membership is to have business efficacy. Accordingly, the Claimant fails to show that either the Sanctions Policy generally or Supplement 2 specifically were incorporated into the Claimant’s contract of membership of the Defendant.

If I were wrong on this, the question would arise as to whether the costs order made by the Disciplinary Panel and affirmed by the Appeal Panel exceeded that which is permitted under the terms of Part 3 of Supplement 2. I should note that the issue appears not to have been taken either before the Disciplinary Panel or before the Appeal Panel. It follows that this court does not have the benefit of the analysis of those Panels. It would appear that the Disciplinary Panel considered that the sum for hearing costs in Part 3 was not a global figure of £2,560 but rather a daily rate of that sum since, had it considered otherwise, it would presumably have stated reasons for not limiting itself to that set out in Supplement 2, given the obligation to do so under Paragraph 3.1 of the Sanctions Policy.

In my judgment:

Accordingly, had I found the terms of Supplement 2 to be incorporated into the contract (whether or not the remainder of the Sanctions Policy was incorporated), I would have refused summary judgment on the claim based on the recovery of costs to the extent that I would have found the Claimant had a real prospect of success in showing that Sanctions Policy limited the recoverable hearing costs to a total figure of £2,650, but not otherwise.

As to the second and third grounds of the strike out application:

In the course of oral submissions, the Claimant asserted that he did not consider that he had had a fair trial either before the Disciplinary Panel or before the Appeal Panel. This appeared to be a somewhat broader criticism of the whole process than was put in his Particulars of Claim. If such criticism had merit, it would need to be pleaded if it were to be permitted to proceed to a trial. No amended pleading has been put before this Court, but I bear in mind that the Claimant is a litigant in person, who, though subject to the same procedural code as any other litigant, is entitled to argue that, if his case might be put right by amendment, the Court should carefully consider giving the opportunity for such an amendment to be drafted. Apart from anything else, this might amount to “some other substantial reason” to allow the claim to proceed to trial.

The Claimant put his argument on the basis that it would be one thing if the Disciplinary Panel had found him to have told “a pack of lies.” They did not do so. The disciplinary process was therefore disproportionate and unfair.

One can see that such a challenge to the disciplinary process is more in the form of a public law claim than one based upon contractual rights. That might be the reason why it has not been pleaded. However, even on the Claimant’s own terms, it is far from obvious that the process was disproportionate and/or unfair. It is true that the Disciplinary Panel did not describe the Claimant as having lied. However they did find that he had deliberately obfuscated matters when he was asked by the interview panel about the use of a template and that, at the time of submitting the Decision he knew that it was not genuinely his own work. Those findings amount to a significant criticism of a professional person and are clearly capable of justifying a finding of dishonesty and/or lack of integrity. I can see nothing in this more general criticism of the disciplinary process to justify the conclusion that it was unfair or to lead to the conclusion that this claim should be permitted to proceed.

For the reasons identified above, I am satisfied that the Claimant has no real prospect of succeeding on the claim. I have considered whether there any other compelling reason why the case should be disposed of at trial. I am not satisfied that there is any such reason. Accordingly, the Defendant is entitled to summary judgment on the claim against it.

Had I not entered summary judgment, I would have struck the claim out as disclosing no reasonable ground for bringing the claim.

I invite the parties to seek to agree an order consequential open this judgment. If they are not able to do so, the case will be listed for hearing remotely at 11am on 1 September 2023.