Daphne Evadney Portia O'Connor (Claimant/Appellant) v Bar Standards Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] EWHC 4324 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X00782 |
| Date | 18 December 2014 |
[2014] EWHC 4324 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ13X00782
Hugh Southey QC (instructed by Pegasus Legal LDP for the Appellant
Alison Padfield (instructed by Berrymans Lace Mawer LLP) for the Respondent
Hearing date: 9 December 2014
Introduction
This is an appeal against an order of Deputy Master Eyre by which he struck out the appellant's statements of case and dismissed the action with judgment for the defendant with costs.
The appellant is a practising barrister. She has sued the Bar Standards Board (BSB) for damages in respect of disciplinary proceedings against her which ended in her acquittal on appeal in August 2012, and two complaints against her which were dismissed in September 2012.
The appellant originally framed her complaints under four heads: (a) misfeasance in public office, (b) breach of the Human Rights Act 1998 (" HRA") by violations of her human rights under Articles 6 and 14 of the Convention, (c) harassment contrary to the Protection from Harassment Act 1997 and (d) discrimination contrary to the Equality Act 2010. The Master held all of these to be unsustainable. His decisions in respect of the claims in misfeasance in public office and the Equality Act were not challenged. I refused permission to appeal against his decision to dismiss the claim in harassment. I granted permission to appeal against the Master's dismissal of the appellant's claims under the HRA.
Factual background
On 30 September 2009 the BSB received a complaint about the appellant from a solicitor named Mr Cunliffe on behalf of Black Horse Limited, part of the Lloyds TSB group. The complaint alleged that in 2009, in two cases brought by Black Horse, the appellant had acted in ways which amounted to conducting litigation, contrary to the Courts and Legal Services Act 1990 and the Bar Code of Conduct ("the Code"). The factual allegations were that she had signed statements of truth, provided an address for service, and filed /served statements of case.
The dates and details of the documents in question were provided. Copies of the relevant parts of the documents were submitted with the complaint. The complainant stated that "In relation to the above I believe that Ms O'Connor is conducting litigation contrary to the Courts and Legal Services Act and the Bar Code of Conduct. Whilst Ms O'Connor is licensed for Public Access, the Bar Council's guidance on this notes that this does not allow a Barrister to sign a statement of truth, to provide an address for service or file or serve statements of case."
On 18 October 2009 the BSB's Complaints Officer recommended an investigation, and on 21 October the Complaints Commissioner decided that an investigation should be undertaken. On 2 November 2009 the BSB wrote to the appellant to inform her of the complaint and the decision to carry out a formal investigation. Copies of the complaint form and supporting documents were enclosed. On 3 November 2009 the BSB wrote again, summarising the complaint and asking the appellant for her comments. The summary was that "The complainant alleges that … you have conducted litigation in that you have signed statements of truth, provided an address for service and filed/served statements of case".
On 23 November 2009 the appellant replied in some detail. She suggested the complaint was malicious and denied that it had any foundation. She accepted that she had signed statements of truth but said that she was permitted to do so under the Civil Procedure Rules ( CPR 22.1(6)(a)(ii) and 2.3(b)), and that this did not involve a breach of the Code. She denied the remaining allegations, including the allegation of breach of the 1990 Act, pointing out that it had been extensively amended in 2007. A response was obtained from Mr Cunliffe, who denied the complaint was malicious.
The papers were then considered by the Complaints Officer, who reported on 25 January 2010 to the Complaints Commissioner. On 26 January the Commissioner asked for the complaint to be referred to a Complaints Committee member. On 1 February 2010 it was referred to a QC who was a member of the BSB Complaints Committee. The appellant was informed of this by letter of the following day. The Committee member provided a written report with draft charges on 28 May 2010. On 9 June 2010 the BSB Complaints Committee met and considered the complaint in the light of all the evidence and decided that it should form the subject of disciplinary charges. On 10 June 2010 the BSB wrote to inform the appellant of this decision. The draft charges prepared by the Committee member were reviewed by junior Counsel on behalf of the BSB and charges were finally settled by him on 16 July 2010. Charges were served in late July 2010.
There were six charges. The first three alleged that the appellant had conducted litigation in breach of the Code by signing statements of truth on statements of case dated 22 April 2009, 26 May 2009 and 30 June 2009. Charge 4 alleged that by signing the third of these statements the appellant had failed to have regard to guidance on Public Access Work issued by the Bar Council. Charges 5 and 6 each alleged that in or about September 2009 she had committed an offence under s 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. Charge 5 alleged this was conduct discreditable to a barrister and Charge 6 that it was conduct likely to diminish confidence or the administration of justice or otherwise bring the legal profession into disrepute. The factual allegations were to all intents and purposes the same as those contained in the original complaint by Black Horse Ltd.
On 13 September 2010 the appellant gave notice that she wished to apply to have the charges dismissed on the grounds that they could not be proved. On 30 September 2010 she submitted a 52 paragraph document containing written representations in support of an application for the charges to be dismissed. At the heart of her arguments were the proposition that barristers were allowed to sign statements of truth by the CPR and not prohibited from doing so by the Code or the relevant legislation. On 2 November 2010 the appellant provided to the BSB a number of documents on which she relied in support of her application to dismiss.
On the same day the appellant emailed the BSB to ask for "a stay of matters until the 1 st week in December 2010". She explained that she was leading on a matter in the Court of Appeal on 29 or 30 November 2010, which involved very demanding legal and preparation work. In addition, she said she had conduct of three cases involving disputes of many hundreds of thousands [of pounds] awaiting final hearing dates but requiring continuous attention. She said she was finding it very, very difficult. The BSB replied the same day declining to agree to the stay requested, stating that professional conduct proceedings were as important as professional work and that it was under a public duty to proceed as expeditiously as possible. The BSB then submitted written representations to the Tribunal dated 8 November 2010.
The appellant pressed again on 11 November 2010 for a stay, making clear that she wished to present her application to strike out in person. This further representation was rejected by the BSB the same day. On 15 November 2010 the appellant submitted written representations as to directions in which she applied for an oral hearing and sought particulars of the charges against her. The BSB put in submissions in response on 17 November 2010.
On 2 December 2010 Field J, as Directions Judge in the disciplinary proceedings, gave a written ruling on the appellant's application to dismiss the charges. He refused her request for an oral hearing on the grounds that the matter could fairly be dealt with on the papers, and dismissed her application to strike out the charges. He directed the BSB however to give further particulars of its case under charges 1 to 5, that the signing of statements of truth and filing of pleadings constituted the conduct of litigation for the purposes of the pleaded paragraphs of the Code. Particulars were given on 14 December 2010.
On 23 March 2011 a Disciplinary Tribunal chaired by Rosalind Wright QC found five of the charges proved. The appellant was advised as to her future conduct and ordered to pay £292 in costs. She appealed to the Visitors to the Inns of Court and on 17 August 2012 her appeal was allowed by a Panel chaired by Sir Andrew Collins. The Visitors found that none of the conduct alleged against the appellant involved any breach of the Code.
In the meantime, the BSB had received two further complaints alleging professional misconduct against the appellant. The first was dated 19 July 2011 and made by a solicitors' firm named Mushtaq & Co, alleging a conflict of interest. The second complaint was dated 25 November 2011 and made by a firm of solicitors named Cleggs. The substance of this complaint was that the appellant had conducted litigation at a time when she was not authorised to do so. The first complaint was dismissed by the BSB on 12 September 2012. The second complaint was dismissed by the BSB on 24 September 2012.
In February 2013 the BSB published a report entitled "Report on Diversity of Barristers Subject to Complaints 2013." The report made a number of findings about the relative likelihood of BME (black and minority ethnic) barristers being subject to disciplinary action. It recommended the appointment of external quality experts to investigate the BSB's complaints handling process. On...
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O'Connor v Bar Standards Board
...an allegation which is demurrable. (4) The evidence is quite to the contrary." 7 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 o......