Visitors throw out conviction of pioneering barrister for conducting litigation

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By Legal Futures

31 August 2012

Signature of truth: not conducting litigation

The first barrister to become a partner in a legal disciplinary practice has overturned a disciplinary tribunal ruling that she conducted litigation in breach of the Bar’s code of conduct, with both the tribunal and the Bar Standards Board (BSB) coming in for criticism.

Portia O’Connor, who set up Pegasus Legal Research in 2010 under the auspices of the Solicitors Regulation Authority, was 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.

Ms O’Connor represented herself at the tribunal and on appeal, the Visitors of the Inns of Court – led by High Court judge Sir Andrew Collins – found that the tribunal’s failures to allow her to make final submissions or comment on the evidence, and to give any proper reasons for the basis on which they reached their decision, were unfair and breached natural justice. They laid down a “marker” that they did not expect to see a repetition of this in other tribunals.

The Visitors then reconsidered the case on its merits, and emphatically overturned the convictions, indicating that the BSB code of conduct was not sufficiently clear on the conduct of litigation.

They said the fact the Civil Procedure Rules allow a barrister representing a litigant to sign a statement of truth was determinative, despite the code of conduct implying that it was likely to amount to conducting litigation.

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The charge of discreditable behaviour was also dismissed, with the Visitors finding that BSB guidance had not caught up with the Court of Appeal’s 2005 Agassi ruling that a barrister dealing with the other side was not to be regarded as conducting litigation.

The full judgment is not yet available, but a note taken by Ms O’Connor’s solicitors – Collyer Bristow – indicates that Sir Andrew said it would be absurd to regard sending to the other side a copy of the statement of case lodged at court as conducting litigation. He added that even if there had been a technical breach, it was not discreditable; in fact, Ms O’Connor was showing courtesy to the other side.

“There is no question that this is a bad decision,” he is reported to have said, ordering the BSB to pay the costs of the hearing. Ms O’Connor was represented before the Visitors by Marc Beaumont of Windsor Chambers, a specialist in legal disciplinary matters.

Collyer Bristow partner Rhory Robertson said: “I am very pleased that we assisted in securing a just outcome for Ms O’Connor. I hope, indeed expect, that in the future disciplinary tribunals will pay heed to the coruscating criticisms of Sir Andrew Collins as to the way in which they conducted themselves in the O’Connor hearing.”

Mr Beaumont said: “Not even Parliament in successive statutes since 1990 has been able to define the meaning of the ‘conduct of litigation’ with any precision.” He added that the breaches of the rules of natural justice by the tribunal were compounded by the fact that the chair of the panel was only an honorary QC and, as was stated in the recent Browne report, honorary QCs cannot chair disciplinary panels. It is believed that several other cases have been chaired by honorary QCs.”

A BSB spokeswoman said: “The BSB respects the decisions of the Visitors and the integrity of the appeal process which is an essential component of the disciplinary system. While disciplinary tribunal decisions are often upheld by the Visitors on appeal, on this occasion they were not.

“Once the judgment is available, the BSB will be able to assess what action needs to be taken. This will include considering existing guidance, especially in the light of the proposed terms of the new code of conduct which put forward a relaxation of the rules on conduct of litigation in the consultation held earlier this year.”

Ms O’Connor’s lawyers had also raised issues around the composition of the tribunal – in light of the problems reported on this website as recently as yesterday – but the court did not need to consider them given its finding of procedural unfairness.

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