High Court rejects challenge to BSB disciplinary tribunals

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17 October 2013


Inns of court: rules and regulations criticised

A High Court judgment that refused three applications for judicial review of barristers’ disciplinary decisions is to be appealed, after the court found that anomalies in tribunal panel member appointments did not affect the validity of the findings.

Lord Justice Moses, sitting with Mr Justice Kenneth Parker, dismissed as “totally without merit” all but two of the arguments raised by the barristers, Yash Meahy, David Leathley and Josephine Hayes. But it rejected the applications on the two it judged arguable.

Doubts were cast over hundreds of disciplinary decisions last year after a series of revelations involving tribunals run at arm’s length from the Bar Standards Board (BSB) by the Council of the Inns of Court (COIC); namely irregularities over appointments to tribunal panels. A report by Desmond Browne QC – commissioned by COIC – last year found there were “systemic failures” in the administration of the tribunals.

In Leathley, Mehey, Hayes v Visitors to the Inns of Court, the court refused the applications after hearing arguments that some members of the tribunals sat when their appointments were time expired, and – on the part of two of the three – that there had been unreasonable delays in hearing their appeals.

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A number of other grounds, raised jointly or individually by the claimants, were each described as “totally without merit” by Moses LJ. They included the security of tenure of lay panel members, panel members’ independence due to the fact they were paid fees or expenses, and the connections between COIC and the BSB – which was an interested party in the actions.

But the judge complained that both the regulations governing the disciplinary tribunals and rules on hearings before the Visitors were “opaque”. He said this exposed the Bar Council to “an allegation that it has failed to have regard to its legal obligation to abide by the principles of transparency” imposed by the Legal Services Act

Barristers John Hendy QC and Marc Beaumont represented Mr Mehey and Mr Leathley, instructed by Joel Leigh of CKFT Solicitors, while Ms Hayes acted in person. The BSB was represented by Berrymans Lace Mawer, and Paul Nicholls QC and Tom Cross, both of 11KBW.

Mr Beaumont said in response to the judgment: “The Divisional Court has held that the argument that a disciplinary judge had an undisclosed income from the BSB as the prosecuting authority was totally without merit, that it does not matter if a disciplinary judge’s tenure has expired, that the agreed process for appointing disciplinary judges can be ignored totally, that it does not matter that the prosecuting authority appointed disciplinary judges to the COIC “pool” for several years and that serious delays in the Visitorial appeals process do not matter either.

“In my opinion as counsel at the coalface who defends barristers in disciplinary cases, these issues do matter enormously to the Bar at large and to all those prosecuted by the BSB. This case is about due process and a fair deal for the Bar by the Bar. The matter will now go to appeal.”

The BSB said in a statement: “The judgment confirms the [BSB’s] original view: that most of the historic anomalies, while a matter of great concern to us, did not affect the validity of the findings made in the cases that were potentially affected.”

It said it had noted Moses LJ’s comments about the Disciplinary Tribunal regulations and “will be considering the points raised”. It added: “We will, by the end of the year, have issued a report setting out the progress made in improving the system a year after the Browne review and its 82 recommendations.”

 

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One Response to “High Court rejects challenge to BSB disciplinary tribunals”

  1. One of the main points, I thought, was that the tribunal panels, including Rabinder Singh QC, as he then was, were all appointed by a member of the prosecuting committee! I can’t see from the judgment how the BSB got round that. Desmond Browne QC clearly thought the point was arguable – it is a wonder that Moses LJ didn’t. Is there something I’m missing here?

  2. David Tyne on October 17th, 2013 at 9:44 am

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