O'Connor v Bar Standards Board
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lady Hale,Lord Kerr,Lord Wilson,Lady Black |
| Judgment Date | 06 December 2017 |
| Neutral Citation | [2017] UKSC 78 |
| Date | 06 December 2017 |
| Court | Supreme Court |
[2017] UKSC 78
Lady Hale, President
Lord Kerr
Lord Wilson
Lady Black
Lord Lloyd-Jones
Appellant
Mark Anderson QC
S Chelvan
(Instructed by Pegasus Legal LDP)
Respondents
Alison Padfield
(Instructed by BLM)
Heard on 4 October 2017
( with whomLady Hale, Lord Kerr, Lord WilsonandLady Blackagree)
In these proceedings the appellant, Ms O'Connor, a practising barrister, claims damages under the Human Rights Act 1998 against the respondent, the Bar Standards Board ("the BSB"), alleging discrimination in her enjoyment of the right to a fair trial, in breach of article 14 of the European Convention on Human Rights ("ECHR") considered in conjunction with article 6 ECHR. The appellant, who is black, alleges that the BSB discriminated against her on grounds of her race in bringing disciplinary proceedings which ended in her acquittal on appeal in August 2012.
On 9 June 2010 the BSB Complaints Committee brought 6 disciplinary charges against the appellant. Charges 1–3 each alleged professional misconduct in that she had conducted litigation by signing a statement of truth on behalf of a party to litigation. Charge 4 alleged professional misconduct in that, in conducting litigation by signing a statement of truth on behalf of a party to litigation, she failed to have regard to Public Access Work Guidance for Barristers, issued by the General Council of the Bar. Charge 5 alleged professional misconduct in that she engaged in conduct discreditable to a barrister by committing an offence under section 70(8) of the Courts and Legal Services Act 1990 as a member of an unregulated limited liability partnership which "filed" a defence and counterclaim with the claimant's solicitor, thereby unlawfully conducting litigation. Charge 6 alleged professional misconduct in that she engaged in conduct likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute by committing the offence contrary to section 70(8) of the Courts and Legal Services Act 1990 referred to in Charge 5.
On 23 May 2011 a Disciplinary Tribunal found Charges 1–5 proved. Charge 6 was dismissed.
The appellant appealed to the Visitors to the Inns of Court ("the Visitors"). (It should be noted that the procedure for an appeal to the Visitors with which we are concerned in this case is no longer in force, having been replaced by an appeal to the High Court. See section 24(1) of the Crime and Courts Act 2013 which came into force on 7 January 2014; Tariq Rehman v The Bar Standards Board [2016] EWHC 1199 (Admin), at para 22, Hickinbottom J.) On 17 August 2012 her appeal was allowed. The Visitors found that none of the conduct alleged against the appellant involved any breach of the Code of Conduct of the Bar of England and Wales. Sir Andrew Collins, delivering the judgment of the Visitors, observed that they had no doubt that none of these charges should stand. In the light of this conclusion it was not necessary for the Visitors to rule on two further submissions, namely that there had been procedural unfairness in the course of the hearing and that there was a lack of reasons in the decision of the tribunal. The Visitors observed, however, that there was in their view considerable force in those submissions.
The appellant issued the present proceedings against the BSB on 21 February 2013. The appellant relied on various causes of action including allegations of violation of articles 6 and 14 ECHR, contrary to section 6 of the Human Rights Act 1998. By its defence the BSB denied the appellant's allegations and also maintained that the claims under the 1998 Act were time-barred. On 9 October 2013 the appellant issued an application for directions. These included an application for permission to amend her particulars of claim and directions for the service of a reply. The draft amended pleading did not answer the BSB's plea that the claim was time-barred. The appellant did not serve a reply.
On 3 January 2014 the BSB issued an application seeking an order that the statement of case be struck out pursuant to CPR rule 3.4(2) on the grounds that it disclosed no reasonable grounds for bringing the claim or that summary judgment be given in its favour pursuant to CPR Part 24. On 28 March 2014 Deputy Master Eyre heard the application. The BSB maintained that none of the claims had a real prospect of success and that, in any event, the limitation defence was bound to succeed. Deputy Master Eyre granted the application with costs. He held:
"(1) The allegation is on its face time-barred and there is no application to extend the time limits; and
(2) So far as the allegation rests on the allegations supporting misfeasance it must fail.
(3) The allegation rests also on a general assertion that the defendant is habitually or systematically unfair to black barristers, an allegation which is demurrable.
(4) The evidence is quite to the contrary."
The appellant's appeal was heard by Warby J [2014] EWHC 4324 (QB) who on 18 December 2014 held that there was sufficiently pleaded a case that the BSB indirectly discriminated against the appellant on racial or ethnic grounds by bringing the disciplinary proceedings against her. He did not consider that it was possible for the court to determine that the appellant had no real prospect of establishing that the statistics on which she relied were significant (at paras 63, 65). However, he held (at para 79) that the claim was time-barred by section 7(5) of the 1998 Act.
"Here, the 'act complained of' in the one human rights claim that I have held to be both adequately pleaded and sustainable for the purposes of a summary judgment application is the BSB's 'prosecution' of the appellant. The decision to bring proceedings was taken on 9 June 2010 or at the latest in late July 2010 when the charges were served on the appellant. If time runs from either of those dates then the one-year time limit expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB's 'prosecution' of the appellant is considered to be a continuing state of affairs up to the tribunal decision, time under section 7 expired in May 2012."
Warby J also rejected (at para 81) the submission on behalf of the appellant that the deputy master had been wrong not to grant her an extension of time under section 7(5)(b) of the 1998 Act.
The appellant appealed to the Court of Appeal. In its judgment of 25 July 2016 the Court of Appeal (Lord Dyson MR, Elias and Sharp LJJ) [2016] 1 WLR 4085 held that the one year time limit under section 7(5)(a) of the 1998 Act had started to run when the Disciplinary Tribunal had found the charges against the claimant proved and so had expired before she had issued her claim. The Court of Appeal refused a renewed application for permission to appeal on the ground that the limitation period should have been extended pursuant to section 7(5)(b) of the 1998 Act.
On 8 December 2016 the Supreme Court granted permission to appeal only in respect of the issue under section 7(5)(a) of the 1998 Act.
The following issues arise on this appeal.
(1) Are the disciplinary proceedings brought by the BSB against the appellant to be considered a series of discrete acts or a single continuing act for the purposes of section 6(1)(a) of the 1998 Act?
(2) If the latter, does that act end with the verdict of the Disciplinary Tribunal or with the verdict of the Visitors?
Furthermore, by a respondent's notice, the BSB contends that the decision of the Court of Appeal should be affirmed on grounds other than those relied on by that court, namely that Warby J erred in holding that the article 14 claim had a real prospect of success. In this regard, the BSB also seeks permission to adduce new evidence of fact, thereby replicating a respondent's notice and related application to adduce new evidence which were before the Court of Appeal.
Article 6(1) ECHR provides in relevant part:
"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …"
Article 14 ECHR provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Section 6 of the 1998 Act provides in relevant part:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
…
(6) 'An act' includes a failure to act …"
Section 7 of the 1998 Act provides in relevant part:
"(1) A person who claims that a public authority has acted
(or proposes to act) in a way which is made unlawful by section 6(1) may —
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal; or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
…
(5) Proceedings under subsection (1)(a) must be brought
before the end of —
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
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