The High Court has overturned a decision to suspend a barrister for failing to comply with a Legal Ombudsman (LeO) direction – because he was already suspended at the time of the events.
The Bar Standards Board (BSB) admitted that the case of Henry Hendron had exposed a “lacuna” in its rules and the legislative framework.
Mr Justice Fordham said: “The BSB accepts that, because Mr Hendron was at the material times already suspended in relation to an earlier matter, the ombudsman had no power to make the direction and the BSB no power to discipline Mr Hendron for non-compliance with it. Everyone agrees that the appeal must therefore succeed.”
The live question before the court was what it should do next.
In 2017, Mr Hendron was suspended for three years following his high-profile conviction on two charges of possessing controlled drugs with intent to supply. The suspension was backdated to the date of conviction in May 2016, when his practising certificate had been suspended by the BSB.
In the meantime, a direct access client, ‘H’, instructed him in July 2015. A hearing was scheduled for May 2016, but because his practising certificate had been suspended a few days earlier, Mr Hendron was unable to represent her.
He was required to reimburse her £650 that she had paid on account. He wrote her a cheque but it bounced.
H complained to LeO, which ordered the barrister to pay the money and a further £200 in compensation by 16 May 2017. For a variety of reasons, he failed to pay.
In July 2019, a Bar disciplinary tribunal suspended Mr Hendron for three months for failing to comply with the LeO determination. He was also prohibited from accepting and carrying out public access instructions for nine months.
At the time of the tribunal hearing, the money was still outstanding, but it has now been paid.
The BSB discovered the lacuna while preparing for Mr Hendron’s appeal: the rule requiring barristers to co-operate with LeO only applied to BSB-regulated (or authorised) persons, and the BSB’s position was that this did not cover a barrister whose practising certificate has been suspended.
Mr Hendron was also found guilty of behaving in a way which was likely to diminish the trust and confidence which the public places in him or in the profession, contrary to Core Duty 5.
Though this provision does apply to non-practising (or unregistered) barristers, the Legal Services Act 2007 provides that barristers fall within LeO’s jurisdiction by virtue of having been an ‘authorised person’ at the time of the act/omission complained of. Again, at the time of the non-payment, he was not practising and so not an authorised person.
On next steps, the BSB wanted to go back to the start and reformulate a fresh charge that Mr Hendron breached its rules by the underlying failure to reimburse the £650 in fees.
He argued that this should not happen because he would have won his appeal anyway, a contention that Fordham J dismissed.
However, the judge agreed with his alternative submission that remittal was in any event not a fair and justified course in all the circumstances.
Fordham J gave several reasons, including that, although the appeal suspended the sanctions imposed by the tribunal, the eight months Mr Hendron had been “under the shadow of findings of breach” had had “a real, detrimental impact” on his practice.
He also observed that the “substantial change in the focus of the charge” was driven by a problem of law recognised by the BSB “but only extremely belatedly”. The regulator could have originally charged him over failing to reimburse the £650 but chose not to.
Another relevant factor was that Mr Hendron had successfully challenged the legal validity of the BSB’s first tribunal referral over the matter, as a result of which the BSB had to amend its Handbook. He was then referred a second time.
Referring him for a third time “would stand to involve a very lengthy period of uncertainty together with a very lengthy period taken up with yet further disciplinary proceedings”, the judge ruled.
Refusing to do so did not dilute the professional standards owed by Mr Hendron in the future: “That is now the appropriate focus for energies, going forward. There is an insufficient justification for the order of remittal which I have been invited to make. I therefore decline to do so.”
The judge said it was “to the great credit” of the BSB and its counsel, Zoe Gannon, that they identified and raised the lacuna. “Such ethical standards are a foundational principle on which our system of justice operates, but recognition and appreciation are never out of place.”
LeO declined an offer to intervene in the case. Acknowledging the lacuna, it said it had nothing to add to the BSB’s submissions.