Opinion: The decision of the Institute of Chartered Accountants in Ireland (ICAI) to bring member Mr Richard Guiney before its disciplinary tribunal will provide further fodder to those who argue that the institute is incapable of self-regulation.

Cases are only supposed to be sent to the tribunal where the institute's complaints committee rules that a prima facie case exists.

So why did the institute proceed with this? Was it in too much haste to prove that it could publicly discipline a member?

The case, which was dismissed, is extraordinary and raises serious questions regarding the complaints committee. It should be asked: has not Mr Guiney a valid complaint against it?

He was charged with failing to perform his duties with sufficient speed. The complaint was made by a former client, the Artists Association of Ireland (AAI). The committee held he had a prima facie case to answer and he was asked if he would consent to the complaint being upheld. When this was refused, the complaint was sent to the tribunal for the hearing.

What is surprising is that the ICAI, represented by Mr Brian Farren BL, did not produce any expert witness to give an opinion on whether or not Mr Guiney had failed to produce the AAI accounts with expedition. In contrast, Mr Paul Fogarty BL produced Mr John Donnelly, a well-respected accountant who retired in the early 1990s (he is on a number of boards and is chairman of HVB Bank in the IFSC).

In characteristic style he told the tribunal: "If I thought there were open issues in relation to any set of accounts, I would not give them to the client." He said he thought the time taken by Mr Guiney in that audit was reasonable and that the steps he took were reasonable. And even AAI auditor Mr John Webb (to whom Mr Guiney was reporting) said he was kept aware of Mr Guiney's work in verifying the accounts and did not disagree with it.

There was only one witness called by the ICAI, the then chairperson of the AAI Ms Kelly FitzGerald, who was appointed in August 2002. But Mr Aedan McGovern SC, tribunal chairman, noted that she had no personal knowledge of the events. Most of Mr Guiney's dealings with AAI were through its chief executive, Ms Stella Coffey, who has complained to the ICAI that she was not called to give evidence.

The core of the dispute involved the grant paid by the Arts Council during the verification process of the 2000 accounts. The AAI had dismissed Mr Guiney in mid-February 2001 and wanted completion of the accounts by the end of February.

The tribunal heard that, after the accounts were delivered, Mr Guiney was asked to alter them and insert a wrong grant figure. Following his refusal, the complaint was made to the institute.

One can only wonder what action the ICAI would have taken if a complaint about a delay in the completion of audit accounts was made against a partner of one of the major accountancy practices.

Accountant KPMG, for example, took almost nine months to sign off Elan Corporation's 2002 accounts. What would have happened if Elan had made a complaint to the ICAI? Elan didn't - but one director did express his disquiet at the delay following the sixth missed deadline.

But that delay was understandable. Elan had satisfied US regulator the Securities & Exchange Commission (SEC) following replies to several questions.

But, as KPMG was not a party to the agreement with the SEC, it had to examine and agree to it separately.

And with the question marks over audit firms, KPMG had to be certain it could stand over those accounts. Otherwise, it could have faced actions down the road.

The ICAI could try to dismiss any criticisms over its handling of the latest tribunal case by pointing to the nine cases heard by the tribunal in 2002, all of which went against the accountants.

There were 104 complaints made in 2002. Of these, 62 were closed at secretariat level and 33 (24 were consent orders) were closed by the complaints committee. That shows plenty of activity but does not excuse the handling of the latest case.

The ICAI could also argue that the process does in fact work. The tribunal heard the case and the named auditor was cleared of misconduct. But surely, based on the evidence presented, the case should never have gone to the tribunal in the first place.

Now that the die have been cast, doesn't the institute have a duty of care for a fellow member who has had to endure the ordeal, and costs, of the tribunal?

The complaints committee was responsible for bringing the case, so doesn't it deserve some sanction against it? But will the ICAI go against its own committee? Hardly.

The ICAI rules do not allow the tribunal to make an order on costs where the charges are dismissed. It is only possible to make an order in relation to costs in a case where a charge is upheld.

Those rules are plainly archaic. Sure if someone is guilty, that party should pay his/her costs. But it is ludicrous, and inequitable, for an innocent party to pay his/her costs.

The ICAI has moved a good way up the transparency ladder but, if it wants to be judged as an even-handed and equitable institute, it should change those yesterday rules.