O'Connor (Appellant) v Bar Standards Board (Respondent) - [2017] UKSC 78

Michaelmas Term

[2017] UKSC 78

On appeal from: [2016] EWCA Civ 775

JUDGMENT

O’Connor (Appellant) v Bar Standards Board (Respondent)

before

Lady Hale, President

Lord Kerr
Lord Wilson
Lady Black
Lord Lloyd-Jones

JUDGMENT GIVEN ON

6 December 2017

Heard on 4 October 2017

Appellant Respondent

Mark Anderson QC Alison Padfield
S Chelvan

(Instructed by Pegasus (Instructed by BLM)
Legal LDP)
LORD LLOYD-JONES: (with whom Lady Hale, Lord Kerr, Lord Wilson and Lady Black agree)
1. In these proceedings the appellant, Ms O’Connor, a practising barrister,

claims damages under the Human Rights Act 1998 against the respondent, the Bar
Standards Board (“the BSB”), alleging discrimination in her enjoyment of the right
to a fair trial, in breach of article 14 of the European Convention on Human Rights
(“ECHR”) considered in conjunction with article 6 ECHR. The appellant, who is
black, alleges that the BSB discriminated against her on grounds of her race in bringing disciplinary proceedings which ended in her acquittal on appeal in August 2012.
2. On 9 June 2010 the BSB Complaints Committee brought 6 disciplinary charges against the appellant. Charges 1-3 each alleged professional misconduct in that she had conducted litigation by signing a statement of truth on behalf of a party to litigation. Charge 4 alleged professional misconduct in that, in conducting litigation by signing a statement of truth on behalf of a party to litigation, she failed to have regard to Public Access Work Guidance for Barristers, issued by the General Council of the Bar. Charge 5 alleged professional misconduct in that she engaged in conduct discreditable to a barrister by committing an offence under section 70(8) of the Courts and Legal Services Act 1990 as a member of an unregulated limited
liability partnership which “filed” a defence and counterclaim with the claimant’s
solicitor, thereby unlawfully conducting litigation. Charge 6 alleged professional misconduct in that she engaged in conduct likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute by committing the offence contrary to section 70(8) of the Courts and Legal Services Act 1990 referred to in Charge 5.
3. On 23 May 2011 a Disciplinary Tribunal found Charges 1-5 proved. Charge

6 was dismissed.
4. The appellant appealed to the Visitors to the Inns of Court (“the Visitors”). (It should be noted that the procedure for an appeal to the Visitors with which we are concerned in this case is no longer in force, having been replaced by an appeal to the High Court. See section 24(1) of the Crime and Courts Act 2013 which came into force on 7 January 2014; Tariq Rehman v The Bar Standards Board [2016] EWHC 1199 (Admin), at para 22, Hickinbottom J.) On 17 August 2012 her appeal was allowed. The Visitors found that none of the conduct alleged against the appellant involved any breach of the Code of Conduct of the Bar of England and Wales. Sir Andrew Collins, delivering the judgment of the Visitors,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] UKSC 78
Decision Date

CaseChat Overview and Summary

In the case of O'Connor v Bar Standards Board, the appellant, a practising black barrister, brought claims under the Human Rights Act 1998 against the BSB, alleging discrimination in her right to a fair trial under articles 6 and 14 of the European Convention on Human Rights. The BSB had brought disciplinary proceedings against the appellant, which were ultimately dismissed on appeal. The appellant's claim in the Supreme Court was focused on the issue of limitation under section 7(5)(a) of the 1998 Act. The central issue was whether the disciplinary proceedings were a series of discrete acts or a single continuing act for the purposes of section 6(1)(a) of the 1998 Act, and if the latter, when did that act end? The BSB also sought to argue that Warby J had erred in finding that the article 14 claim had a real prospect of success and sought permission to adduce new evidence.

The court found that the disciplinary proceedings should be considered a single continuous act rather than a series of discrete acts. The essence of the complaint was the initiation and pursuit of the proceedings to their conclusion. The limitation period under section 7(5)(a) of the 1998 Act began to run when the continuing act ceased, which in this case was when the Visitors allowed the appeal on 17 August 2012. As the appellant's proceedings were commenced on 21 February 2013, they were within the one-year limitation period. The court rejected the BSB's contention that Warby J had erred in finding that the article 14 claim had a real prospect of success, stating that the appellant was entitled to rely on the evidence presented in support of her discrimination claim. The application to adduce new evidence was also refused.

The final orders of the court were to allow the appeal, set aside the decision of the Court of Appeal, and remit the matter to the Court of Appeal for further consideration in light of the Supreme Court's judgment.

Orders