The settlement order process allows formal complaints to be dealt with more swiftly and efficiently, and with less cost for both the respondent / respondent firm and ICAEW. It also enables disciplinary sanctions to be applied at an earlier stage by consent where the respondent or respondent firm accepts liability to disciplinary action, which the ICAEW Regulatory Board believes is in the public interest.
Under DBL 18B, a respondent / respondent firm may enter settlement discussions with the head of staff* at any time after a formal complaint has been referred by the Investigation Committee to the Disciplinary Committee for hearing and prior to the substantive hearing of the Disciplinary Tribunal. If the parties agree terms of settlement, a proposed settlement agreement and draft settlement order will be prepared by ICAEW’s Professional Conduct Department for approval by a Settlement Agreement Chair (SAC). A SAC is a member of the Disciplinary Committee who is either a barrister or solicitor and who has been approved to chair disciplinary tribunals by a nominations committee of ICAEW.
The proposed settlement agreement may specify one or more of the sanctions that are available to the Disciplinary Committee under DBLs 22 – 24A. It may also include an order that the respondent / respondent firm pay to ICAEW a sum by way of costs of the investigation and disciplinary proceedings.
It will be for the SAC to determine whether the proposed settlement agreement and draft settlement order are in the public interest and should be approved. In carrying out their review, the SAC will have regard to such matters as:
a) the seriousness of the formal complaint(s) compared with the nature and extent of the respondent / respondent firm’s admissions;
b) the degree to which the respondent / respondent firm has displayed insight into the conduct giving rise to the formal complaint(s);
c) the strength of the documentary evidence in relation to the formal complaint(s) and the potential benefits in a tribunal hearing additional oral evidence;
d) the public interest in achieving an earlier conclusion to the case;
e) the degree to which the respondent / respondent firm has put in place safeguards to prevent similar issues arising in the future;
f) any remedial action taken by the respondent / respondent firm in relation to the formal complaint(s);
g) the ICAEW Guidance on Sanctions.
If the SAC approves the proposed settlement agreement:
- They will sign the proposed settlement agreement and make the settlement order on behalf of the Disciplinary Committee
- The settlement order will take effect after 7 days of service of the order on the parties; and
- The settlement order will be published.
If the SAC declines to approve the proposed settlement agreement, the draft settlement order will not be made and the formal complaint(s) will proceed to hearing before a Disciplinary Tribunal in the usual way. Any subsequent tribunal will not be advised of the content of any settlement discussions between the respondent / respondent firm and ICAEW so as not to prejudice the tribunal hearing (although a tribunal may be advised that settlement discussions are ongoing). Likewise, the SAC will not be appointed as a member of that tribunal.
*Note – in the Professional Standards context, the ‘head of staff’ is the Chief Officer, Professional Standards.