R Yash Mehey and Others v Visitors to the Inns of Court Bar Standards Board (Interested Party/Respondent and Cross-Applicant in respect of costs)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Ryder,Lady Justice Sharp |
| Judgment Date | 16 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1630 |
| Docket Number | Case No: CO/2013/3232 C1/2013/3592 CO/2014/0457 CO/2014/0458 C1/2014/2328 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 2014 |
[2014] EWCA Civ 1630
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE RIGHT HONOURABLE LORD JUSTICE MOSES
THE HONOURABLE MR JUSTICE KENNETH PARKER
AND MR JUSTICE DINGEMANS
CO/2985/2012, CO/9851/2011, CO/12383/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Ryder
and
Lady Justice Sharp
Case No: CO/2013/3232
C1/2013/3276
C1/2013/3592
CO/2014/0457
CO/2014/0458
C1/2014/2328
and
Mr John Hendy QC and Mr Marc Beaumont (instructed by Howard Kennedy LLP) for Miss Russell
Mr Mehey and Miss Hayes appeared in person
Mr Paul Nicholls QC and Mr Tom Cross (instructed by Berrymans Lace Mawer) for the Interested Party
Hearing date: 26 th November 2014
This judgment is in eight parts, namely:
| Part 1. Introduction | Paragraphs 2 to 10 |
| Part 2. The discipline and regulation of barristers | Paragraphs 11 to 24 |
| Part 3. The facts | Paragraphs 25 to 36 |
| Part 4. The judicial review proceedings | Paragraphs 37 to 44 |
| Part 5. The proceedings in the Court of Appeal | Paragraphs 45 to 49 |
| Part 6. The main issue of principle | Paragraphs 50 to 84 |
| Part 7. The remaining issues | Paragraphs 85 to 106 |
| Part 8. Executive summary and conclusion | Paragraphs 107 to 114 |
This is a group of applications for permission to appeal raising related issues. The one overarching question is whether, arguably, disciplinary proceedings against a number of barristers are invalid on the ground that some of the individuals who heard those proceedings or appeals therefrom were disqualified from sitting. Three cases are now before us. Other cases are pending which raise similar issues.
The three barristers who are seeking permission to appeal are Yash Mehey ("Mr Mehey"), Josephine Hayes ("Miss Hayes") and Carron-Ann Russell ("Miss Russell"). I shall refer to those three applicants collectively as "the three barristers" or "the barristers".
Each of the three barristers has brought judicial review proceedings challenging the validity of disciplinary proceedings brought against him or her. Having been unsuccessful at first instance, each of the barristers now seeks permission to appeal.
The fourth applicant for permission to appeal is the Bar Standards Board, to which I shall refer as "BSB". The BSB is an interested party in the judicial review proceedings. The BSB is seeking permission to appeal in respect of costs.
I shall refer to the Legal Services Act 2007 as "the 2007 Act". Under section 20 of the 2007 Act and Schedule 4 the General Council of the Bar of England and Wales ("the Bar Council") is an approved regulator. The reserved activities in respect of which it is regulator include the exercise of a right of audience and the conduct of litigation. The Bar Council discharges its regulatory functions through the BSB, which is independent of the Bar Council.
Section 21 (1) of the 2007 Act defines "regulatory arrangements" as follows:
"(1) In this Act references to the "regulatory arrangements" of a body are to —
….
(e) its disciplinary arrangements in relation to regulated persons (including its discipline rules),
(f) its qualification Regulations."
Section 176 of the 2007 Act provides:
"Duties of regulated persons
(1) A person who is a regulated person in relation to an approved regulator has a duty to comply with the regulatory arrangements of the approved regulator as they apply to that person.
(2) A person is a regulated person in relation to an approved regulator if the person —
(a) is authorised by the approved regulator to carry on an activity which is a reserved legal activity, or
(b) is not so authorised, but is a manager or employee of a person who is so authorised."
In this judgment I shall use the following abbreviations:
"BMIF" means Bar Mutual Indemnity Fund.
"The Browne Report" means the final report from the Council of the Inns of Court Disciplinary Tribunals and Hearings Review Group, chaired by Mr Desmond Browne QC.
"COIC" means the Council of the Inns of Court.
The "COIC pool" or "the pool" means the pool of persons which COIC established in 2006 for the purpose of dealing with disciplinary proceedings or appeals concerning barristers. The COIC pool comprises four lists, namely (i) lay representatives, (ii) barristers, (iii) Queen's Counsel and (iv) clerks.
"CPR" means the Civil Procedure Rules 1998, as amended.
"ECHR" means the European Convention for the Protection of Human Rights and Fundamental Freedoms.
"MOU" means the Memorandum of Understanding signed by the President of COIC and the Chairman of the Bar on 29 th September 2010.
"The President" means the President of COIC.
"TAB" means the Tribunals Appointments Body set up by COIC in 2006.
"TOR" means the terms of reference of TAB.
"The 2009 Regulations" means the Disciplinary Tribunals Regulations 2009.
"The 2010 Rules" means the Hearings before Visitors Rules 2010.
After these introductory remarks, I must now explain the arrangements for the discipline and regulation of barristers.
From the thirteenth century onwards the judges of the King's courts determined who was entitled to appear before them as advocates. At an early date it became the normal practice of the judges to grant rights of audience to persons who had been called to the Bar by one of the Inns of Court. By the mid-seventeenth century that practice had become invariable. Every person called to the Bar by one of the Inns of Court was entitled to practise in the courts. Accordingly it was the function of the Masters of the Bench ("benchers") of each Inn to determine (a) who was fit to be called to the Bar and (b) who should be disbarred, alternatively temporarily suspended from practising, by reason of misconduct. The benchers of each Inn exercised these powers on behalf of and with the consent of the judges: see the excellent historical summary in In re S (A Barrister) [1970] 1 QB 160.
These arrangements remained in place following the enactment of the Judicature Acts 1873 to 1875, which established the Court of Appeal and the divisions of the High Court. In 1966 each of the Inns of Court passed a resolution creating a new body, the Senate of the Four Inns of Court ("the Senate"). By those resolutions the Inns transferred to the Senate their former function of disciplining barristers. At the same time the judges of the three divisions of the High Court passed a resolution confirming that the Senate should exercise disciplinary powers over barristers. In this way all the powers to discipline barristers, which historically had been exercised first by judges and then by benchers, devolved upon the Senate. The Senate established a Disciplinary Committee to consider allegations of misconduct and to determine the appropriate punishment for any misconduct which was proved. The only residual role of the benchers of each Inn was to promulgate and give effect to any punishments which the Senate's Committee may impose upon errant members of that Inn.
In 1986/7 there was another upheaval. The Senate was dissolved and a new body, the Council of the Inns of Court ("COIC"), was created. COIC's constitution has been amended from time to time. It currently includes the following provisions:
" COMPOSITION OF THE INNS' COUNCIL
2. The Inns' Council shall be composed of the following members:
(a) The President
(b) (i) The Treasurers of the Inns
(ii) Eight members to be appointed by the Inns
(c) The Officers
(d) The Chairman of the Bar Council's Training for the Bar Committee.
(e) The Chair and Vice Chair of the Bar Standards Board.
(f) The Chair of the Bar Standards Board's Education and Training Committee.
THE PRESIDENT
3. The President shall be elected by the members of the Inns' Council specified in clause 2(b) hereof. The President shall be a Bencher of one of the Inns, but shall not be one of the members specified in such clause 2(b), (c) or (d). The President shall hold office for three years and shall be eligible for re-election. The President shall be entitled to vote on any matter at any meeting of the Inns' Council. If the President resigns or ceases for any reason to be able to act, a successor shall be elected as soon thereafter as practicable.
….
THE BAR COUNCIL AND THE BAR STANDARDS BOARD
7. The Bar Council and Bar Standards Board members specified in Clause 2 (c), (d), (e) and (f) shall not be entitled to vote."
During 1986 the four Inns of Court passed resolutions transferring the disciplinary powers of the Senate to COIC. On 26 th November 1986 the Lord Chancellor and the three heads of divisions of the High Court (on behalf of all High Court judges) signed a resolution confirming the transfer of disciplinary powers to COIC.
I turn now to clause 1 (f) of COIC's constitution. It will be necessary to trace the history of that provision. Clause 1 (f) (as originally drafted) stated that one of COIC's functions was "to appoint Disciplinary Tribunals in accordance with the provisions of Schedule A hereto". Clause 1 of Schedule A provided that the Professional Conduct Committee of the Bar Council should have the duty of preferring charges of misconduct against barristers. Clause 4 (a) of Schedule A provided that a Disciplinary Tribunal should consist of a judge as chairman, a lay representative "from a panel appointed by the Lord Chancellor"...
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