UK: Concurrent Proceedings are not Inherently Unfair

Last Updated: 30 May 2003

In R (on the application of Land & Ors) v Executive Council of the Joint Disciplinary Scheme [2002] EWHC 2086 the Administrative Court considered whether the existence of concurrent proceedings gives rise to an inherent unfairness that the court should take into account when determining an application for a stay of disciplinary proceedings.

An application was made by Ernst & Young (E&Y) seeking an order staying the investigation by the Executive Council of the Joint Disciplinary Scheme (JDS) into E&Y’s role as auditor of Equitable Life Assurance Society and subsidiaries (Equitable) until after the completion of civil proceedings brought by Equitable against E&Y. The application was made on the ground that the continuation of the investigation would give rise to a serious risk of prejudice to E&Y. The prejudice alleged was in relation to the litigation, the JDS investigation and any subsequent disciplinary tribunal proceedings, and the private and professional lives of the E&Y partners and personnel who were involved in the firm’s audits and regulatory work for Equitable.

Mr Justice Stanley Burton referred to the general principles applicable to an application for a stay of regulatory proceedings, which were set out by Dyson J in R v Executive Council of the JDS, ex parte Hipps (1996 New Law Transcript 296069202). He noted that one of the factors to be considered by the court was that unless a party seeking a stay can show that there is a real risk of serious prejudice which may lead to injustice in one or both sets of proceedings, a stay must be refused. E&Y sought to argue that one of the factors relevant to the issue of prejudice was that there was an inherent unfairness in two tribunals concurrently considering the same issue. 

This issue was the subject of conflicting opinion. In R v ICAEW, ex parte Brindle [1994] BCC 297, the Court of Appeal held that concurrent proceedings should be regarded as inherently unfair. By contrast, the Divisional Court in R v Chance, ex parte Smith [1995] BCC 1,095 did not consider that Brindle had laid down a general proposition and considered that it had been determined on its facts.

 Stanley Burton J said that, looking at the issue at a general level, he preferred the approach of the Divisional Court in Smith. He observed that "[r]egulatory investigations and disciplinary proceedings perform important functions in our society" and that the proceedings of disciplinary tribunals should no longer be regarded as providing second class justice. He also said that it would be "highly regrettable if the bringing of civil proceedings were to be regarded as necessarily supporting a stay of a regulatory investigation or of disciplinary proceedings conducted in and for the public interest".

In considering the issue as to whether there is an inherent unfairness in concurrent proceedings, the judge said there were essentially two issues before him. The first was the added pressure on the resources of the defendants/respondents in the civil and disciplinary proceedings. He said that whether an injustice would arise from increased pressure on resources depended on the facts of the case.

The second issue was whether, as E&Y argued, concurrent proceedings gave rise to a risk of inconsistent decisions. The judge accepted that, at least in theory, as neither the court nor the disciplinary tribunal is bound by the decision of the other on a finding of fact, there is an inherent risk that inconsistent decisions may arise. However, he did not consider that such a risk is inherently a cause of unfairness. As he considered that it was not obvious that the Court of Appeal in Brindle had laid down a general statement of law on this issue, he accepted the Divisional Court’s judgment in Smith and concluded that concurrent proceedings are not inherently unfair or productive of injustice.

The Judge also observed that the proposition that the existence of parallel regulatory and civil proceedings is inherently unjust is inconsistent with the Court of Appeal decision in R v Panel on Takeovers and Mergers, ex parte Fayed [1992] BCC 524. He also noted, as a general point, that the court will give great weight to the evaluation of those responsible under a regulatory scheme of the public interest in the continuation of its proceedings.

On the evidence before him, the judge did not consider that E&Y had established that there was a real risk of serious prejudice and therefore refused the stay. However, he did say that the position may be different in the future based on different factual considerations then arising.


This case adopts the Divisional Court’s approach in Smith that concurrent proceedings are not inherently unfair and that each case should be considered on its own facts. Much will therefore depend on the prejudice alleged to be suffered in the circumstances of each case.

Article by Christa Band

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.