The Queen (on the application of Darsho Kaur) (Claimant / Appellant) v Institute of Legal Executives Appeal Tribunal and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Sullivan,Lady Justice Black |
| Judgment Date | 19 October 2011 |
| Neutral Citation | [2011] EWCA Civ 1168 |
| Docket Number | Case No: C1/2010/2924 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2011 |
[2011] EWCA Civ 1168
Lord Justice Rix
Lord Justice Sullivan
and
Lady Justice Black
Case No: C1/2010/2924
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE FOSKETT
CO/12227/2009
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Marc Beaumont (counsel instructed under the Bar Public Access scheme) for the Appellant
Mr Gregory Treverton-Jones QC and Mr Kevin McCartney (instructed by Russell-Cooke LLP) for the Respondents
Hearing dates: Friday 15 th July 2011
Darsho Kaur was a student member of the Institute of Legal Executives (ILEX). In May 2007 she and other student members sat certain law and practice examinations set by the London College of Advanced Studies where she had undertaken her legal studies. The rules applicable to those examinations naturally precluded certain matters which can colloquially be described as cheating. Similarities in certain students' scripts led to suspicion falling on her and a number of other candidates, as a result of which their papers were examined by ILEX. Following investigations and a decision by the ILEX investigating committee, Mrs Kaur and five other student members of ILEX were charged with various disciplinary offences, such as conduct unbefitting to ILEX or likely to bring ILEX into disrepute in that "either alone or with others – She cheated in two ILEX examinations; 2. She produced two examination scripts that were not wholly her own work; or 3. Were not wholly from her own knowledge or memory". It was inferred and alleged that she must have had access to the course manual during two examinations.
These and similar charges against five others were brought before the ILEX Disciplinary Tribunal ("DT") in March 2009. Only one student attended the proceedings, Mrs Kaur did not. However she had denied the allegations in her defence. The DT dismissed the charge against her in relation to one examination but found the case proved in respect of the second examination. Of the other students, one was entirely acquitted, but the charges were found proved in the case of the remaining four. Each of the five was excluded from ILEX for a minimum period of five years and ordered to pay costs in the sum of £1,700. The DT had power under its rules to impose up to £3,000 by way of fine or as costs.
Mrs Kaur appealed to ILEX's Appeal Tribunal ("IAT") which heard her appeal (and that of one other) on 24 June 2009. The appeals were rejected. Under ILEX's rules the possible issues for appeal are limited to issues of law (or fresh evidence) including the question of whether the decision of the DT involved a breach of natural justice. While continuing to protest her innocence, and raising numerous other issues, Mrs Kaur also raised as a preliminary matter an objection to the presence on the IAT of ILEX's vice-president. As recorded in the IAT's decision (at paras 15/21) this objection did not embrace a complaint that one of the three members of the DT had been a council member and director of ILEX. Nor had that complaint been made before the DT itself. Mrs Kaur was legally represented at the appeal hearing.
Having exhausted the ILEX appeal process, Mrs Kaur has brought her complaint by way of judicial review to the courts, resting on the doctrine of apparent bias, in one or other of its manifestations. On 14 April 2010 Simon J refused her renewed application for permission to bring these proceedings. She was granted 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.
The short issue on this appeal is whether the presence of an ILEX council member and director of ILEX on the DT and of the council's vice-president on the IAT was in breach of the doctrines that no one may be a judge in his own cause and/or of apparent bias, requiring those decisions to be quashed. In brief, it is said on behalf of ILEX that a decision in favour of Mrs Kaur would be irreconcilable with the nature of self-regulation by ILEX; but that is disputed on behalf of Mrs Kaur, who submits that her case fits within one or other limbs of the modern doctrine of apparent bias. It has at all times been emphasised that there is no suggestion of actual bias.
ILEX and its regulatory regime
ILEX is the professional body representing approximately 22,000 practising legal executives and trainees. It is a company limited by guarantee, governed by elected representatives known as the council. Council members are responsible for ensuring that the affairs of the Institute are conducted "diligently, legally and honestly". They are automatically made directors of the company and as such are required to exercise the duties, fiduciary and otherwise, of any director. Among ILEX's objects as set out in its memorandum of association is the following, on which Mr Marc Beaumont, counsel on behalf of Mrs Kaur, places emphasis:
"3.4 To promote and secure professional standards of conduct amongst Fellows and those who are registered with ILEX, and regulate Fellows and Registered Persons in the public interest and to ensure compliance with those standards."
Fellows of ILEX are as I understand it fully trained executives and as it were full members of the Institute. Registered persons are not full members or fellows but are registered for a more limited purpose, such as being trained as law students; but they may also be registered to provide legal services or services ancillary to legal services (para 3 of the memorandum of association).
The council is presided over by a president and vice-president. At the time of Mrs Kaur's appeal the vice-president was Miss Gordon-Nicholls, who was a member of the IAT which heard Mrs Kaur's appeal.
On or about 1 October 2008, ILEX formed a subsidiary company, ILEX Professional Standards Limited ("IPSL") to deal with its professional regulation responsibilities. The intention of forming IPSL was to put the investigatory and prosecutorial arms of regulation in a body separate from ILEX itself. However, IPSL is a company limited by shares and as such is subject to the exercise of the control, management and supervision of ILEX as its sole shareholder (held in the name of its chief executive). Its memorandum of association states that its objects are to carry out "on behalf of ILEX" the functions and responsibilities of ILEX as an approved regulator designated as such by the Legal Services Act 2007, and also to carry out "on behalf of ILEX" such functions and responsibilities of ILEX as a regulator of its membership generally, as ILEX may from time to time delegate to IPSL. This reflected the powers in ILEX's own memorandum of association: para 4.3 stated as one of its objects "To form…any company whose objects directly or indirectly benefit ILEX (including but not limited to any company intended to provide a regulatory function)"; and para 18C of its articles of association gave its Council power to "delegate to any subsidiary company of ILEX any or all of its powers relating to the regulation of professional conduct including (but not limited to) disciplinary matters". Thus regulatory functions were regarded as of direct or indirect benefit to ILEX and IPSL was ILEX's agent to prosecute disciplinary matters. That said, IPSL had its own board of directors, and council members of ILEX could not be on IPSL's board.
The DT which heard Mrs Kaur's case comprised three members, two of whom were lay members and the third was a serving ILEX council member, Mr Hanning. The IAT which heard Miss Kaur's appeal also comprised three members, two of whom were lay members (one of whom chaired the appeal) and the third was Miss Gordon-Nicholls, then the council's vice-president (and at the time of the hearing before Foskett J its president). Both Mr Hanning and Miss Gordon-Nicholls were therefore serving directors of ILEX at the relevant times.
The disciplinary hearings were governed by ILEX's Investigation, Disciplinary and Appeals Rules ("IDAR"). They were approved by the Master of the Rolls. These specified that lay members were appointed to a panel by the Master of the Rolls, and that the appeal tribunal should consist of either the president or the vice-president of the council and two lay members who had not sat on the original disciplinary tribunal. The IAT decision was to be made by a majority. It had power to affirm or vary the findings and order of the DT and to make such ancillary orders, including orders for costs, as seemed just and appropriate to it.
The leading cases on apparent bias
The leading cases concerned with apparent bias and its ancillary doctrine that no one must be a judge in his own cause ( nemo debet esse judex in propria causa) are too well known to need extensive revisiting in this judgment. I would merely seek as briefly as possible to lay the ground by referring to the essence of them.
In Regina v. Bow Street Metropolitan Stipendiary Magistrate (ex parte Pinochet) [2000] 1 AC 119 ( Pinochet No 2) it was held that Lord Hoffmann had been automatically disqualified to sit on the House of Lords judicial committee hearing Pinochet No 1 because he was an unpaid director of a subsidiary of Amnesty International when the latter had intervened as a party in the proceedings....
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