O'Connor v Bar Standards Board
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Elias,Lady Justice Sharp |
| Judgment Date | 25 July 2016 |
| Neutral Citation | [2016] EWCA Civ 775 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2015/0139 |
| Date | 25 July 2016 |
[2016] EWCA Civ 775
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE WARBY
HQ13X00782
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Elias
and
Lady Justice Sharp
Case No: A2/2015/0139
Hugh Southey QC (instructed by Pegasus Legal LDP) for the Appellant
Alison Padfield (instructed by Berrymans Lace Mawer LLP) for the Respondent
Hearing date: 13/07/2016
Approved Judgment
The appellant is a practising barrister. She is black. In these proceedings, she claims damages from the Bar Standards Board ("BSB") inter alia in respect of disciplinary proceedings that were brought against her which ended in her acquittal on appeal in August 2012. She makes a number of allegations in her particulars of claim. The only one with which this appeal is concerned is that the BSB infringed her right to a fair trial in breach of article 14 (read in conjunction with article 6) of the European Convention on Human Rights ("the Convention").
Article 14 provides:
"The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour……"
Section 6(1) of the Human Rights Act 1998 (" HRA") provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". Section 7(5) of the HRA provides that proceedings in which a person claims that a public authority has acted in a way which is made unlawful by section 6(1) "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. "
The amended particulars of claim allege:
"22. The Defendant infringed the Claimant's right to a fair trial on grounds of her race, in breach of Article 14 of the Convention.
23. The refusal to allow sufficient time to prepare is in line with the Defendant's general complaints process which impacts disproportionately on black and ethnic Barristers. Black and ethnic Barristers are more likely to have a complaint referred for disciplinary action, are more likely to be convicted, and are more likely to have those convictions upheld. The Claimant avers that the fact that every element of the Defendant's disciplinary system impacts on black and ethnic Barristers more adversely indicated that there is a systemic bias against black and ethnic Barristers.
24. There is no objective or reasonable reason why given that black and ethnic Barrister make up such a small proportion of the Bar, they are more likely to be investigated following a complaint, more likely to have a complaint referred for prosecution, more likely to be prosecuted, more likely to be convicted and more likely to have those convictions upheld. There is no objectively reason why the Defendant ignored its own rules and prosecuted the Claimant.
…
29. The Defendant discriminated against the Claimant indirectly in breach of Section 53(2), 53(3) of the Equality Act 2010, Section 1 of the Race Relations Act 1976 and Article 14 of the Convention. The Defendant's rules are applied in such a way that although the Code of Conduct of the Bar applies to all Barrister's in England and Wales it particularly disadvantages ethnic Barristers who make up only a small proportion of the membership of the Bar. The Claimant again repeats paragraph 20 of these Particulars."
On 9 June 2010, the BSB Complaints Committee decided to bring six disciplinary charges against the appellant. The charges were that she had conducted litigation in breach of the Bar Code of Conduct by signing statements of truth on statements of case; she had failed to have regard to guidance on Public Access Work issued by the Bar Council; and that she had committed an offence under section 70(8) of the Courts and Legal services Act 1990 by filing and sending a defence and counterclaim as a member of an unregulated LLP, thereby being guilty of conduct which was discreditable to a barrister and was likely to diminish confidence or the administration of justice or otherwise bring the legal profession into disrepute.
On 23 May 2011, a Disciplinary Tribunal (independent of the BSB) found five of the charges proved. She appealed to the Visitors to the Inns of Court. 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.
The appellant issued the present proceedings against the BSB on 21 February 2013. By its defence, the BSB denied the appellant's allegations. It also alleged that the claims under the HRA 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 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 under CPR 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 under CPR Part 24.
BSB's application was heard by Deputy Master Eyre on 28 March 2014. The grounds relied on before the Deputy Master were that (i) all of the appellant's claims (including the article 14 claim) had no real prospects of success; and (ii) in any event the limitation defence was bound to succeed.
The Deputy Master held:
"[The Claimant] alleges… That the Defendant's conduct infringed her rights under the Human Rights Act. However:
1) The allegation is on its face time-barred, and there is no application to extend the time-limit; 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. The judge decided that the Deputy Master was wrong to hold that the article 14 claim had no real prospects of success. But he also held that the claim was barred by section 7(5) of the HRA. At para 79, he said:
"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 s7 expired in May 2012."
He also rejected the submission made on behalf of the appellant that, even if "aspects" of the claim were in time, the Deputy Master had been wrong not to grant her an extension of time under section 7(5)(b) of the HRA.
The issues arising on this appeal
Mr Southey QC submits that the judge was wrong (i) to hold in relation to the article 14 claim that none of the acts complained of had taken place on or after 22 February 2012; alternatively (ii) to refuse to grant an extension of time under section 7(5)(b). Longmore LJ granted permission to appeal on (i) but refused permission to appeal on the other grounds which the appellant wished to advance. She has renewed her application in respect of these. By a respondent's notice, the BSB seeks to uphold the judge's decision on the additional ground that he was wrong to hold that the article 14 claim had real prospects of success.
The main limitation issue: section 7(5)(a)
Mr Southey relies on the fact that section 6(6) of the HRA provides that an "act" includes a failure to "act". He submits that this implies that, where an initial decision is taken to act in a way that violates a person's human rights, the "act" for the purposes of the 1998 Act continues until the public authority decides to cease violating that person's rights. That is because there is a failure to act to bring the violation to an end. The act of prosecuting the appellant started with the bringing of the six disciplinary charges in June 2010. It continued until 17 August 2012 when the appeal was allowed. The prosecution could have been withdrawn by the BSB at any time before 23 May 2011 when the Disciplinary Tribunal found five of the charges proved. Once the appellant decided to appeal against that decision, the BSB continued to defend the Tribunal's decision. It could have conceded the appeal at any time before 17 August 2012. In short, the BSB brought the charges and maintained the appellant's guilt throughout the period culminating with the allowing of the appeal. Its conduct should be viewed as a single continuing act.
Mr Southey relies on Montgomery v HM Advocate [2003] 1 AC 641 in support of his submissions. The issue in that case was whether pre-trial publicity made it impossible for the defendants to have the fair trial to which they were entitled by article 6 of the Convention. At p 646H, Lord Nicholls said that he had no difficulty in envisaging there might be circumstances "where the initiation or continuation of a prosecution by the Lord Advocate, or the manner in which he conducted a prosecution, would amount to an act of his incompatible with...
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