Supreme Court: limitation issue

The Bar Standards Board (BSB) has found itself under attack from multiple directions this week, including the Supreme Court announcing yesterday that it would hear an appeal about a case involving claims of race discrimination in its disciplinary processes.

Further, the regulator has been hit with a major costs bill over a separate disciplinary case which it was found to have “seriously mishandled”, while a group of 505 barristers – including former Lord Chief Justice Lord Woolf – have spoken out against its plans to reform training.

In O’Connor v BSB, Supreme Court is to consider whether Portia O’Connor, who is black and was the first practising barrister to set up in partnership with a solicitor, can bring her claim of race discrimination against the regulator.

In May 2011, a disciplinary tribunal advised Ms O’Connor as to her future conduct after finding proven five charges of engaging in the unauthorised conduct of litigation. She successfully appealed to the Visitors to the Inns of Court in August 2012.

In their judgment, the Visitors raised concerns about the fairness of the procedures adopted by the tribunal and the delay in proceedings being determined.

Ms O’Connor issued a claim against the BSB in February 2013 and one of her grounds (the only one now relevant) was that its complaints process and prosecution discriminated against her on grounds of race contrary to article 14 of the European Convention on Human Rights.

A deputy master of the High Court struck out her claim, finding that the claim was brought outside of the one-year time limit in section 7 of the Human Rights Act 1998. Her appeals to the High Court and Court of Appeal were dismissed.

The question that the Supreme Court has agreed to hear is whether the time to bring her case ran from the date of the original tribunal ruling or the date of the Visitors’ decision.

Ms O’Connor told Legal Futures that she was pleased the Supreme Court had granted leave. The BSB said it would be inappropriate to comment at this stage.

Meanwhile, in November, Mr Justice Collins overturned a disciplinary finding against barrister Julian Smith after finding that the BSB “seriously mishandled” his case. The regulator let the key witness’s solicitors take his evidence, even though it was in the solicitors’ interests to blame Mr Smith for what had occurred.

The judge has now issued his costs order and in addition to the BSB paying the costs of the appeal – including an interim payment of £40,000 – he ordered that it also pay Mr Smith’s costs of the original tribunal, which are said to run into six figures.

Costs do not follow the event in disciplinary cases and Collins J said the authorities made clear that “a regulator will not be ordered to pay costs unless the judge is satisfied that there was a failure in some way by the regulator or, I would add, the tribunal which mean that the institution or conduct of the proceedings can be said to have been unsatisfactory in some way”.

Here, he went on, “I have no doubt that… both the BSB and the tribunal failed to meet the appropriate standards expected of them”.

Marc Beaumont, the specialist disciplinary barrister who acted for Mr Smith – and, by coincidence, for Ms O’Connor before the Visitors – said: “It is only where a regulator has conducted itself entirely unreasonably that it is held liable for trial costs. The BSB investigation was deeply flawed. But the costs order also reflects a jejune and unfair trial.”

The letter signed by 505 barristers and various other stakeholders, including the chief executives of 39 Essex Chambers and 4 Pump Court, described the current arrangements for the Bar professional training course (BPTC) as shameful, but took aim at the BSB’s consultation on creating more routes to qualification.

“It is not guided by a proper understanding of the BSB’s statutory objectives of promoting and protecting the public interest,” the letter said.

“There are just 430 pupillages available every year, but over 1,500 people commencing the BPTC. The BSB’s focus should be on ensuring that those with a realistic prospect of obtaining pupillage receive high-quality training at the most efficient cost.”

It continued that the BSB had failed to identify the “underlying cause” of the current problems, namely “the fact that BPTC provision has become a self-serving industry that has vastly outgrown its raison d’être of training people in preparation for their becoming one of the people who commence providing legal services every years as members of the Bar”.

The letter said it would be difficult for a small profession such as the Bar to sustain multiple routes to qualification while ensuring high quality. Instead, the signatories threw their weight behind the option put forward by the Bar Council and Council of the Inns of Court, which was added late to the consultation.

This would split the BPTC into two, allowing students to learn procedure and evidence however they want before undergoing compulsory skills training.

Finally, the BSB did score one success this week with the successful prosecution of Michael Wolkind QC, who was found guilty of misconduct by a disciplinary tribunal because of various claims on his website, such as that he was “the UK’s top criminal barrister”, that he could not substantiate, as well as a testimonial from a lay client that said “Michael Wolkind QC could get Stevie Wonder a driving licence”.

He was reprimanded and fined £1,000. The decision is still open for appeal.


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