Waiver of natural justice
The right to an adjudication by all the members comprising a tribunal may be waived.
In the case of R (on the application of Hill) v Institute of Chartered Accountants  EWHC 1731 (QB) Mrs Justice Lang DBE dismissed an accountant’s claim for judicial review of disciplinary proceedings brought against him by his Institute where the partial absence of a tribunal member had been explicitly waived by his legal adviser.
The learned judge held that,
‘In so far as it is possible to draw any general conclusions from [the] authorities, it appears that the principle “he who decides must hear” has been strictly applied in criminal cases and in cases with juries, but a more flexible approach has been taken in civil cases without a jury. Factors such as the consent of the parties to the substitution; the potential injustice caused by a re-trial; the availability of witnesses and the cost of a re-trial have led the courts to conclude that the interests of justice were best served by allowing the substitute Judge to determine a part-heard case without hearing all the evidence first hand… The requirements of fairness vary according to the circumstances, and I accept that not every absence by a panel member will render a hearing unfair. It will depend upon the duration of the absence, which part of the proceedings he does not attend, and what steps are taken to mitigate the disadvantage of his absence.’
She went on to say that, despite the fact that the member, ‘was only absent from the hearing for about an hour and thirty five minutes, he missed a crucial part of [the defendant’s] evidence, since he missed almost the entirety of [the defendant’s] cross-examination. The charge against [the defendant] was that he had committed acts likely to bring discredit on himself and his profession and that he had entered into improper transactions without authority and failed to make appropriate disclosure. I accept [the Institute’s] point that the key facts were not in dispute, but [the defendant] was vigorously defending his actions, disputing that there had been impropriety. In my view, his credibility was in issue, as well as his honesty and integrity. In such circumstances, the Tribunal members ought to have assessed [his] demeanour while he gave his oral evidence, and as everyone who has attended a trial knows, cross examination is the most revealing part of a witness's examination. The fact that his evidence in cross examination did not differ markedly from his evidence in chief made it all the more important to assess his demeanour.’
6th Edition » | Chapter 9