Katherine Jane Lumsdon and Others v Legal Services Board General Council of the Bar (acting by the Bar Standards Board) and Others (Interested Parties)

JurisdictionEngland & Wales
JudgeSir Brian Leveson,Mr Justice Bean,Mr Justice Cranston
Judgment Date20 January 2014
Neutral Citation[2014] EWHC 28 (Admin)
Docket NumberCase No: CO/12583/2013
CourtQueen's Bench Division (Administrative Court)
Date20 January 2014

[2014] EWHC 28 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

( Sir Brian Leveson)

Mr Justice Bean

Mr Justice Cranston

Case No: CO/12583/2013

Between

The Queen on the application of

(1) Katherine Jane Lumsdon
(2) Rufus Taylor
(3) David Howker QC
(4) Christopher Hewertson
Claimants
and
Legal Services Board
Defendant

and

(1) General Council of the Bar (acting by the Bar Standards Board)
(2) Solicitors Regulation Authority
(3) ILEX Professional Standards
(4) Law Society
Interested Parties

Dinah Rose QC, Tom de la Mare QC, Mark Trafford, Charlotte Kilroy and Jana Sadler-Forster (instructed by Baker & McKenzie) for the Claimants

Nigel Giffin QC and Duncan Sinclair (instructed by Field Fisher Waterhouse) for the Defendant (LSB)

Timothy Dutton QC and Tetyana Nesterchuk (instructed by Bevan Brittan) for the First Interested Party (BSB)

Chloe Carpenter (instructed by Kingsley Napley) for the Second Interested Party (SRA)

Helen Mountfield QC and Chris Buttler (instructed by Natalie Turner) for the Fourth Interested Party (Law Society)

The Third Interested Party did not appear and was not represented

Hearing dates: 28–29 November and 2 December 2013

The President of the Queen's Bench Division:

This is the judgment of the Court, to which we have all contributed.

Introduction

1

It is a critical test of the freedom inherent in our democratic society that those accused (usually by the State) of committing criminal offences can and should be represented by capable criminal advocates, independent in spirit who, subject to the rules of law and procedure which operate in our courts and to the dictates of professional propriety, are prepared to put the interests of their clients at the forefront and irrespective of personal disadvantage. Similarly, advocates instructed to prosecute crime must be impartial, balanced and fair. These are the values, to the great advantage of the rule of law in this country, that have long been embedded in the practice of advocates before our criminal courts. Those who have the responsibility for the regulation of advocates (whether barristers or solicitors) are imbued with the same sense of the centrality of independence and mindful both of the need to maintain standards and the critical importance of supporting professional independence.

2

The importance of these principles was underlined in our common law as recently as 1967 when the House of Lords, in Rondel v Worsley [1969] 1 AC 191, resoundingly reaffirmed the immunity of the advocate from liability for negligence: this immunity survived until its overthrow in 1978 in Saif Ali v Mitchell [1980] AC 198. Apart from potential liability at law, powers were also developed to deal with professional misconduct by barristers (through the judges of the High Court acting as Visitors to the Inns of Court) and solicitors (who, as officers of the court, are subject to its inherent jurisdiction as now reflected in s. 5)(2) of the Solicitors Act 1974).

3

A standing scheme dealing with inadequate professional standards has been developed even more recently. As for solicitors, powers in this area were given to the Solicitors' Disciplinary Tribunal (established by section 46 of the Solicitors Act 1974); they were also given to the Disciplinary Tribunals for the Bar (established by Paragraph 1(f) of the Constitution of the Council of the Inns of Court ("COIC"), following a Resolution of the Judges dated 26 November 1986). Both main branches of the profession had requirements for initial qualification and in due course for continuing education, but there were no checks on the performance of advocates once qualified and established in practice. It was simply assumed that market forces would prevail: poor quality solicitors would lose clients, and poor quality barristers would not be instructed by solicitors.

4

In 2003, a report of the Department for Constitutional Affairs ("DCA") described the legal regulatory framework as "outdated, inflexible, over-complex and insufficiently accountable or transparent". The then Lord Chancellor, Lord Falconer of Thoroton, commissioned a former Deputy Governor of the Bank of England, Sir David Clementi, to review arrangements and write a report on legal regulation.

5

The Clementi Review, published in December 2004, criticised the legal profession for, among other things, contributing to delay and cost in court proceedings, and for failing to provide a competitive market for customers.

6

The recommendations were bold, starting with a split between representative and regulatory functions of both the Bar Council and the Law Society, ultimately leading to the creation of the Bar Standards Board ("BSB") in 2006, and the Solicitors Regulation Authority ("SRA") in 2007. The creation of the Legal Services Board as an oversight regulator, with significant lay representation, was also recommended.

7

In parallel with these developments, concern was also expressed about legal aid. In 2006, the Legal Services Commission ("LSC"), then responsible for publicly funded legal services, published a report which had been commissioned from Lord Carter of Coles and which looked at legal aid procurement. Chapter 5 of the Carter Report considered inter alia proposals for improving the quality of legal service provision, and the need of lay clients to have externally accredited information about such quality. This related to legal advice, litigation and advocacy alike. The LSC, in conjunction with the Ministry of Justice ("MoJ"), took preliminary steps towards developing a scheme for the quality assurance of advocates ("QAA"). This project was overtaken by events.

8

In Autumn 2006, the BSB commissioned research by Ipsos MORI. It painted a positive picture of the quality of advocacy although the then chair of the BSB acknowledged that there were a number of pressing issues requiring attention. One such issue was that the research revealed that a significant number of respondents did not believe that the existing regulatory machinery was up to dealing with barristers who were not up to standard, incompetent or who behaved in an unethical fashion.

The Legal Services Act 2007

9

The Clementi Review was given legislative expression by the Legal Services Act 2007 ("the Act"); this overhauled the framework for the provision of legal services in England & Wales. At the heart of the Act are the eight regulatory objectives expressed in section 1:

(1) In this Act a reference to "the regulatory objectives" is a reference to the objectives of—

(a) protecting and promoting the public interest;

(b) supporting the constitutional principle of the rule of law;

(c) improving access to justice;

(d) protecting and promoting the interests of consumers;

(e) promoting competition in the provision of services within subsection (2);

(f) encouraging an independent, strong, diverse and effective legal profession;

(g) increasing public understanding of the citizen's legal rights and duties;

(h) promoting and maintaining adherence to the professional principles.

(2) The services within this subsection are services such as are provided by authorised persons (including services which do not involve the carrying on of activities which are reserved legal activities).

(3) The "professional principles" are—

(a) that authorised persons should act with independence and integrity,

(b) that authorised persons should maintain proper standards of work,

(c) that authorised persons should act in the best interests of their clients,

(d) that persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice, and

(e) that the affairs of clients should be kept confidential.

(4) In this section "authorised persons" means authorised persons in relation to activities which are reserved legal activities [which are defined at s12(1) as including exercising rights of audience].

10

Part 2 of the Act established the Legal Services Board ("LSB"), the Defendant in the present matter. Sections 3 and 4 provide:

3 (1) In discharging its functions, the Board must comply with the requirements of this section.

(2) The Board must, so far as is reasonably practicable, act in a way –

(a) which is compatible with the regulatory objectives, and

(b) which the Board considers most appropriate for the purpose of meeting those objectives.

(3) The Board must have regard to –

(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and

(b) any other principle appearing to it to represent the best regulatory practice.

4. The Board must assist in the maintenance and development of standards in relation to –

(a) the regulation by approved regulators of persons authorised by them to carry on activities which are reserved legal activities, and

(b) the education and training of persons so authorised.

11

Part 4 (sections 27–70 inclusive) of the Act concerns the role of the LSB in overseeing the work of the "approved regulators". In relation to the Bar, this function is delegated by the Bar Council to the BSB, for the Law Society it is the SRA and the regulatory arm of the Chartered Institute of Legal Executives ("CILEx") is ILEX Professional Standards ("IPS"). Other bodies are listed in paragraph 1 of Schedule 4 to the Act. In particular, by section 28 of the Act, the...

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