High Court: barrister has arguable discrimination claim against BSB

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19 December 2014


High Court: outside limitation period

A black barrister had an arguable case that she was indirectly discriminated against by the Bar Standards Board (BSB) through its disciplinary procedures, the High Court ruled yesterday.

However, the case brought by Portia O’Connor could not proceed because she brought it outside the limitation period.

Ms O’Connor, who in 2010 became the first barrister to become a partner in a legal disciplinary practice, was originally convicted of five counts of professional misconduct for signing the statement of truth appended to a statement of case, and for discreditable behaviour in writing a letter to a firm of solicitors enclosing a copy of a defence and counterclaim that had been filed with the court.

But the Visitors to the Inns of Court, led by Sir Andrew Collins, comprehensively allowed her appeal, and also criticised the way the Bar tribunal had handled the case.

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Her claim for compensation, based on misfeasance in public office and breaches of her human rights, was struck out by Deputy Master Eyre in May. The High Court granted her leave to appeal this decision on the human rights points alone.

The successful part of the appeal centred on BSB research published in 2013 which found that BME barristers were disproportionately over-represented in the complaints process, were more likely than white barristers to have a complaint referred to disciplinary action, and were more likely to be have complaints upheld.

However, an external review commissioned by the BSB in the wake of these findings concluded that the disciplinary procedure itself was not at fault. “This means that other factors, as yet unidentified, are causing the disproportion shown in the data,” it said.

Ms O’Connor claimed under article 14 of the European Convention on Human Rights – which protects against discrimination in the enjoyment of other convention rights – that the BSB had indirectly discriminated against her in respect of her fair trial rights under article 6.

Mr Justice Warby said her case did not amount to allegations of conscious discrimination nor of inherently discriminatory rules. “They are allegations that rules which are not said to be discriminatory in themselves are implemented or applied in practice in a way as to affect an ethnic group in a way that is disproportionately prejudicial…

“The appellant states a case that she has been the subject of one of the allegedly discriminatory practices, by virtue of being ‘prosecuted’ by the BSB.

“It is clear that there exists statistical evidence to support the appellant’s pleaded allegation that BME barristers were, at the material time, proportionately more likely than others to be referred by the BSB for prosecution.”

Warby J said the findings of the external review were not strong enough to suggest that the BSB would be bound to succeed at a trial in demonstrating an objective and reasonable justification for the difference in treatment.

As a result he ruled that Ms O’Connor’s particulars of claim “adequately state a case, which is not fanciful, that by bringing disciplinary proceedings against the appellant the BSB indirectly discriminated against her contrary to article 14. To that extent the Master’s decision was in my judgment wrong”.

But he went on to rule that the claim was outside the one-year limitation period imposed by the Human Rights Act as it began to run in summer 2010, when the decision to prosecute was taken, and there were insufficient grounds to grant an extension.

Sara Jagger, the BSB’s director of professional conduct, said: “We note the judge’s comments, which refer to statistical evidence from 2007 to 2011, and of course take them extremely seriously. We are satisfied that our disciplinary processes are not discriminatory – this has been independently verified in a review, which we published last year.

“We have since acted on the report’s recommendations and will review afresh the latest statistical evidence to determine whether the previous issues still persist.”

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