R (Kaur) v Institute of Legal Executives Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SIMON,MR JUSTICE FOSKETT |
| Judgment Date | 23 November 2010 |
| Neutral Citation | [2010] EWHC 1129 (Admin),[2010] EWHC 3321 (Admin) |
| Docket Number | CO/12227/2009,CO/12227/09 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 November 2010 |
[2010] EWHC 1129 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Simon
CO/12227/09
Mr M Beaumont (instructed by Aila David & Co) appeared on behalf of the Claimant
Mr McCartney (instructed by Ilex Appeal Tribunal) appeared on behalf of the Defendant
: This is a renewed application for permission to bring judicial review proceedings.
The claimant was a registered student member of the second defendant, the Institute of Legal Representatives (Ilex). Ilex is the professional body representing legal executives and trainees. Ilex has a two tier disciplinary procedure: a disciplinary tribunal, DT; and an appeal tribunal, AT, which considers appeals from the DT.
Following a hearing before a DT on 2nd and 3rd March 2009, which the claimant did not attend, she was found to have cheated in an exam, and as a result had “engaged in conduct unbefitting to Ilex, or likely to bring Ilex into disrepute”, contrary to rule 1(1) of the Code of Conduct, and/or conducted herself in a manner such as to cast doubt on her professional, contrary on rule 1(2).
The three member DT Panel consisted of a serving Ilex council member, Mr N Hanning, and two lay members. The penalty imposed was exclusion from membership of Ilex, for a minimum of 5 years, and an order that she pay costs of £1700. The claimant appealed, and at the hearing of her appeal, before the AT on 24th June 2009 was represented. That appeal was unsuccessful. The three member AT panel consisted of a lay chairman and a lay member and Miss J Gordon-Nichols, the Vice Chair of the Ilex Council.
Three issues arise from the grounds of appeal, and it is convenient to start with ground 2, which relies on a lack of evidence on support of the finding of cheating. The Investigation Disciplinary and Appeal Rules (IDAR) provide by rule 72(l)(h) that one of the grounds of appeal before an AT is that “there was no evidence or other material to justify the making of the decision”.
Ground 2 challenges the basis of the finding of cheating made by the DT. It seems to me that this argument has no prospect of success. In paragraphs 46 to 47, 74 and 82 of the DT reasons, the DT sets out clearly the basis on which they could be sure of the claimant's cheating in relation to one of the exams. The contention in Mr Beaumont's argument that no disciplinary tribunal reasonably directing itself on the evidence could have been sure that the claimant had cheated, in my view, stands no real possibility of success in a judicial review. Grounds 1 and 3 raise similar points in relation to the constitution of the DT and AT. Both tribunals had a member of the Ilex Council on the panel. Mr Hanning in the case of the DT and Miss Gordon-Nichols in the case of the AT. It would have been a breach of the IDAR rules if there had not been a council member for a hearing of a DT and Vice Chairman in the case of the AT (see rule 59(1) and 73(1)(a)). However, what is said, to put the matter broadly, is that it was illegitimate for the tribunals to have been constituted with a person who had a senior governing role in Ilex, where Ilex was in effect the prosecutor of the claimant before the two tribunals. The claimant's case is advanced on a similar and overlapping principle, the doctrine of apparent bias arising under the common law and the rights under Article 6(1) of the ECHR to an independent tribunal.
Mr Beaumont refers to the presence on the tribunals of a serving Ilex council member and a serving Ilex Vice-President. He points to a number of cases which he submits demonstrate the principle of separation of management roles on the one hand and quasi judicial roles on the other, as well as the importance of avoiding an appearance of bias with partiality: Porter v Magill [2001] UKHL 37; General Dental Council v Price [2001] UKPC, 31 (paragraph 20); Tehrani v Nursing and Midwifery Council [2001], a decision of the outer house of the Court of Session at paragraph 87; R v Bow Street Metropolitan ex parte Pinochet (No 2) [2000] 1 AC 119 and Findlay v United Kingdom [1997] 24 EHRR 221 at 245. He accepts, realistically, that although these cases establish broad principles, all cases are fact specific.
I am conscious that in summarising his argument, I have not done full justice to it. It is set out clearly in the skeleton argument and was articulated clearly during the course of oral submissions.
He submits further that the AT should have recognised that there had been a breach of natural justice in the constitution of the DT, and should therefore have allowed the appeal under rule 72(1)(a).
In the defendant's summary grounds of resistance and argument, Mr McCartney submitted that in October 2008 Ilex had created the Ilex Professional Standards Limited (IPS) which separated the leadership and regulatory functions of Ilex. The effect of this change was that no member of the DT or the AT took part in the investigation or screening of the case, or the presentation of the case. In his submission, the defendant cannot properly be regarded as judge in its own cause, as the investigation and prosecution process was conducted by IPS. Whilst there is complaint about the decision made by the DT, it is not suggested that the proceedings themselves were in any way unfair, merely that there was a risk of unconscious or subconscious bias on the part of Mr Hanning and Miss Gordon-Nichols; or, one might add, a perception by an objective standard that that was the position. He draws a distinction between the facts of this case and the case of Re: P (A Barrister) [2005] 1 WLR 3019, a case in which the Panel member had been a member of the Professional Conduct and Complaints Committee, which had been responsible for the prosecution of misconduct before the Bar Council. I should add that Mr Beaumont accepts that this is a very different case to the case of Re P.
Mr McCartney also draws a distinction between the present case and the Pinochet case, a case in which there was present on the tribunal which decided the matter a director of a company which carried out much of the work for an interested party.
In the present case Mr McCartney submits the council members of Ilex were concerned with the disciplinary regulation of Ilex, with no identical identifiable interest in the outcome for either party. Indeed, he submits, as a member of Ilex, they would be subject to the same disciplinary procedures as the claimant.
He points out that, save for the complaint about the composition of the DT and the AT, there is no other suggested real or perceived bias. The broad proposition advanced on behalf of the claimant, that the presence of a council member would automatically lead to a perception of unconscious or subconscious bias is, he submits, misconceived. He draws a stark distinction between the present case and that of Re: P (A Barrister), where a fair-minded observer might conclude that there was a risk that the lay member or members may have been influenced in their capacity by various matters which had been in her mind, or thereabouts, in a different capacity.
In response, Mr Beaumont submits that this is not a valid distinction. He accepts that IPS prosecuted, but he submitted they prosecuted, as he puts it, “on behalf of Ilex”, and that IPS was the agent of Ilex.
It seems to me that Mr McCartney's argument is well made in relation to this point. It is a factual position similar to that of Sadler v GMC [2003] 1 WLR 2259, where at 79, the Privy Council said this, referring to the argument of counsel:
“Mr Hendy did not challenge these points. Nor did he rely on any matter evincing actual or apparent bias other than the bare fact that the CPP was constituted by medical and lay members of the GMC. Their Lordships are satisfied that the CPP did meet the tests laid down in Albert and le Compte and Bryan. ”
Those being earlier cases.
In the circumstances of this case, the fact that a member of the Ilex Council or a Vice-President sat on the DT or AT respectively, does not give rise, without more, to a legitimate perception of bias. This is a very different case to Price, where some of the members of the relevant tribunal had a distinct screening role, and where there was a predominance of members of the governing body on the Tribunal. As Mr Beaumont was constrained to agree on the facts of the present case, the issue was straightforward, although the answer may not have been, whether the claimant had engaged in unbefitting conduct. In short, whether she had cheated in an exam. This was not an issue in which the member of the Council or the Vice-President had any ulterior interest, either directly or indirectly. I regard the claim as not being properly arguable and accordingly the renewed application is refused.
: Thank you both for your submissions.
Yes?
My Lord, there is an application for costs.
: Right.
I hope that my Lord has received a schedule of the defendant's costs up to 4th March.
: I am not sure I have this.
Can I pass it up?
: No no, I have it, schedule of defendant's costs.
Yes. Can I apologise my Lord because, the second one, it says 14th March 2010.
: What is the total that I should be looking at £5,164?
Might I just turn my back for a moment until I clarify.
: Why yes, of course.
I am sorry, my Lord.
To continue reading
Request your trial
-
The Queen (on the application of Darsho Kaur) (Claimant / Appellant) v Institute of Legal Executives Appeal Tribunal and Another
...permission on paper by Elias LJ, but judicial review was refused by Foskett J from whose judgment and order dated 23 November 2010, [2010] EWHC 3321 (Admin), she now appeals to this court. She obtained permission to appeal from Lloyd LJ. 5 The short issue on this appeal is whether the pres......