Court scolds QC but decides against referring him to BSB

Divisional Court: QC told to explain himself

A QC who misused the urgent applications procedure for a Brexit-related judicial review has been ticked off by the Divisional Court but escaped being referred to the Bar Standards Board (BSB).

The unnamed counsel was hauled before the court after Mr Justice Swift – judge in charge of the Administrative Court – found nothing to justify the request for an urgent application, “which only served to divert limited judicial resources away from cases that did require urgent attention”.

The claim was a challenge to regulations made on 4 December 2020 under section 8 of the European Union (Withdrawal) Act 2018. Brought by a non-for-profit organisation, it raised “the constitutional issue of the limits on the use of the powers” conferred by the section, recorded Lord Justice Lewis, sitting with Swift J.

Instead of the defendant having 21 days to file an acknowledgement of service, the application said the case had to be considered within 48 hours, even though it was asking the court to make an order that would not be effective for another four weeks.

The application was refused by Swift J within the 48 hours and he ordered that the matter be referred under the court’s Hamid jurisdiction – which deals with abuse of the court’s processes – to determine whether any further action should be taken against the claimant’s lawyers.

The solicitors, leading counsel and junior counsel each provided witness statements, in which leading counsel took responsibility for the advice that led to the application being made.

No further steps were taken against the solicitors or junior counsel as a result but the QC had to attend court to explain why he should not be reported to the BSB.

Lewis LJ – handing down a decision in late May that was only published yesterday – ruled that the use of the urgent applications procedure was “inappropriate” in this case and counsel’s advice that it was the only proper course of action was “a serious error of judgment”.

However, he accepted that the QC “acted in good faith at all times and genuinely believed that the use of the urgent applications procedure was appropriate”.

The judge went on: “Counsel is an experienced lawyer with at least 19 years’ experience of public law practice. He has never previously been involved in conduct which has been called into question.

“He fairly and creditably took responsibility at the outset for what occurred, thereby sparing his junior and solicitors the anguish of having to deal with these matters.

“He accepted that it was not necessary to ask that the matter be considered within 48 hours, and he apologised for that. He acted throughout in good faith. He thought that what he was doing was acceptable. It was not.”

As a result, the court decided not to refer him to the BSB. “Counsel has expressed regret and confirmed that he will follow a different course in the future. We regard this judgment as providing a sufficient expression of the court’s disapproval of the course of action that was taken in this case…

Lewis LJ also used the ruling to clarify the proper use of the urgent applications procedure.

He added that, given it was a case of an error of judgment, not misconduct, it was “neither necessary nor right” to identify the barrister.

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