CA: Barrister’s conduct of own litigation “not a private matter”

Lewis: Application dismissed

A High Court judge was right to hold that a barrister’s conduct of litigation in her own right was not a private matter beyond the Bar Standards Board’s (BSB) reach, the Court of Appeal has ruled.

Lord Justice Lewis said Mr Justice Bourne had been “entitled, indeed correct, to take the view that the conduct in question, although occurring in litigation conducted by the appellant on her own behalf, was capable of amounting to conduct which breached core duty 5 (acting in a way likely to diminish public trust and confidence in the barrister or the profession) and as undermining the barrister’s honesty and integrity” (rule 8).

The court was hearing an application for permission to bring a second appeal by Sophia Cannon, who at the time of the Bar disciplinary tribunal hearing in January 2020 was an unregistered (ie, non-practising) barrister.

She was disbarred after the tribunal found four charges of professional misconduct proved against her, three of which were upheld by Bourne J in October 2020 and one overturned.

She was found to have misled a court and not complied with four court orders during family court proceedings she brought involving the father of her children.

What was called ‘charge 4’ related to findings and orders made by a number of judges that Ms Cannon had made applications that were totally without merit, along with the imposition of a limited civil restraint order.

Initially, the BSB sought to refer charge 4 to the tribunal but then discovered that it could not for procedural reasons. It only did so after the rules were changed.

Ms Cannon, through a litigation friend, appealed Bourne J’s decision on three main grounds, including that the conduct in question could not amount to a violation of CD5 as they concerned matters within her private life

Bourne J said there was “no doubt at all” that the conduct would be professional misconduct if committed in the course of a barrister’s professional practice.

“In my judgment it was open to the tribunal to rule that conduct of that kind was professional misconduct though committed in a personal capacity if, in fact it infringed a provision such as CD5 or r8.2.”

Refusing permission to appeal on this point, Lewis LJ said there was “nothing arguably wrong in the judge’s approach or his conclusion”.

Ms Cannon sought to introduce new evidence as part of a submission that she lacked capacity to participate in the hearing before the tribunal and give instructions in relation to the conduct of the appeal to the High Court.

Lewis LJ – giving the unanimous decision of the court – said the new evidence was not enough to rebut the presumption that she had capacity to take the decisions necessary to participate in both hearings, and refused permission to adduce it. This meant the ground of appeal had no realistic prospect of success either.

Third, Ms Cannon argued that the principle of res judicata meant the BSB should not have been able to proceed with charge 4 for a second time.

Lewis LJ said this submission was “misconceived”. There had been no adjudication on the charge which the BSB had initially decided to refer to the tribunal.

“The principle of res judicata did not prevent the BSB taking a second decision to refer the charge when it had power to do so.

“There may be principles governing whether charges may be referred where that would be oppressive or an abuse of process. But no such claim is made here.”

Again, he held there was no realistic prospect of the ground of appeal succeeding and no other compelling reason for an appeal to be heard.

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