Dyson: case was “very thin”
A barrister who claimed she was the victim of racial discrimination by the Bar Standards Board (BSB) has lost her appeal against a ruling that her case was brought out of time.
Portia O’Connor, who is black and was the first barrister to become a partner in a legal disciplinary partnership, was claiming compensation from the BSB for misfeasance in public office and breaching her human rights after five misconduct findings made against her by a disciplinary tribunal in May 2011 were then overturned by the Visitors to the Inns of Court in August 2012.
She started the present action in February 2013.
In May 2014, Deputy Master Eyre struck out Ms O’Connor’s claim for compensation, saying it was on its face time-barred – because the prosecution began in summer 2010 – and anyway the evidence did not support it.
Mr Justice Warby ruled that her appeal against this should be allowed in relation to one aspect of her human rights claim, but agreed that it failed on limitation grounds.
Giving the main judgment of the court, the Master of the Rolls, Lord Dyson, said that the one-year limitation period to challenge the BSB ran from when the disciplinary tribunal reached its initial verdict. He rejected Ms O’Connor’s lawyers assertion that the appeal against it formed part of a single continuing act.
“In my view, the prosecution comes to an end with the verdict when the prosecution has run its course. In opposing an appeal by a convicted defendant, the prosecutor is not continuing the prosecution. He is seeking to uphold the decision of the court or tribunal that has convicted the defendant. That is a categorically different act from the act of prosecuting.”
Lord Dyson also rejected the argument that Deputy Master Eyre should have granted an extension of time, “for the simple reason that [Ms O’Connor] had not asked him to grant one”.
As a result of the limitation failure, Lord Dyson did not come to a conclusion on the substance of Ms O’Connor’s claim, but said that “at best, the appellant’s case on the basis of the evidence she has adduced so far, is very thin”.
Though agreeing, Lord Justice Elias suggested that had Ms O’Connor contended that systemic discrimination was continuing, or had ceased less than a year before proceedings were commenced, her claim would have been in time: “It would be irrelevant whether the individual prosecution had occurred within that period or not, and equally irrelevant whether the prosecution of the claimant was seen as a distinct or continuing act.”
But he concluded: “Since the limitation point has not at any stage been argued on that basis and we have heard no argument about it, it would in my view be inappropriate for this court to engage with that argument of its own motion.
Lady Justice Sharp also agreed with Lord Dyson.
