O'Connor v Bar Standards Board

The appellant is a practising barrister. She is black. In these proceedings, she claims damages from the Bar Standards Board (“BSB”) inter alia in respect of disciplinary proceedings that were brought against her which ended in her acquittal on appeal in August 2012. She makes a number of allegations in her particulars of claim. The only one with which this appeal is concerned is that the BSB infringed her right to a fair trial in breach of article 14 (read in conjunction with article 6) of the European Convention on Human Rights (“the Convention”).

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour……”

Section 6(1) of the Human Rights Act 1998 (“HRA”) provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Section 7(5) of the HRA provides that proceedings in which a person claims that a public authority has acted in a way which is made unlawful by section 6(1) “must be brought before the end of ----

“(a)

the period of one year beginning with the date on which the act complained of took place; or

(b)

such longer period as the court or tribunal considers equitable having regard to all the circumstances. ”

The amended particulars of claim allege:

“22.

The Defendant infringed the Claimant’s right to a fair trial on grounds of her race, in breach of Article 14 of the Convention.

23.

The refusal to allow sufficient time to prepare is in line with the Defendant’s general complaints process which impacts disproportionately on black and ethnic Barristers. Black and ethnic Barristers are more likely to have a complaint referred for disciplinary action, are more likely to be convicted, and are more likely to have those convictions upheld. The Claimant avers that the fact that every element of the Defendant’s disciplinary system impacts on black and ethnic Barristers more adversely indicated that there is a systemic bias against black and ethnic Barristers.

24.

There is no objective or reasonable reason why given that black and ethnic Barrister make up such a small proportion of the Bar, they are more likely to be investigated following a complaint, more likely to have a complaint referred for prosecution, more likely to be prosecuted, more likely to be convicted and more likely to have those convictions upheld. There is no objectively reason why the Defendant ignored its own rules and prosecuted the Claimant.

…

29.

The Defendant discriminated against the Claimant indirectly in breach of Section 53(2), 53(3) of the Equality Act 2010, Section 1 of the Race Relations Act 1976 and Article 14 of the Convention. The Defendant’s rules are applied in such a way that although the Code of Conduct of the Bar applies to all Barrister’s in England and Wales it particularly disadvantages ethnic Barristers who make up only a small proportion of the membership of the Bar. The Claimant again repeats paragraph 20 of these Particulars.”

On 9 June 2010, the BSB Complaints Committee decided to bring six disciplinary charges against the appellant. The charges were that she had conducted litigation in breach of the Bar Code of Conduct by signing statements of truth on statements of case; she had failed to have regard to guidance on Public Access Work issued by the Bar Council; and that she had committed an offence under section 70(8) of the Courts and Legal services Act 1990 by filing and sending a defence and counterclaim as a member of an unregulated LLP, thereby being guilty of conduct which was discreditable to a barrister and was likely to diminish confidence or the administration of justice or otherwise bring the legal profession into disrepute.

On 23 May 2011, a Disciplinary Tribunal (independent of the BSB) found five of the charges proved. She appealed to the Visitors to the Inns of Court. On 17 August 2012, her appeal was allowed. The Visitors found that none of the conduct alleged against the appellant involved any breach of the Code.

The appellant issued the present proceedings against the BSB on 21 February 2013. By its defence, the BSB denied the appellant’s allegations. It also alleged that the claims under the HRA were time-barred. On 9 October 2013, the appellant issued an application for directions. These included an application for permission to amend her particulars of claim and directions for the service of a reply. The draft amended pleading did not answer BSB’s plea that the claim was time-barred. The appellant did not serve a reply.

On 3 January 2014, the BSB issued an application seeking an order that the statement of case be struck out under CPR 3.4(2) on the grounds that it disclosed no reasonable grounds for bringing the claim or that summary judgment be given in its favour under CPR Part 24.

BSB’s application was heard by Deputy Master Eyre on 28 March 2014. The grounds relied on before the Deputy Master were that (i) all of the appellant’s claims (including the article 14 claim) had no real prospects of success; and (ii) in any event the limitation defence was bound to succeed.

The Deputy Master held:

“[The Claimant] alleges… That the Defendant’s conduct infringed her rights under the Human Rights Act. However:

1)

The allegation is on its face time-barred, and there is no application to extend the time-limit; and

2)

So far as the allegation rests on the allegations supporting misfeasance, it must fail.

3)

The allegation rests also on a general assertion that the Defendant is habitually or systematically unfair to black barristers, an allegation which is demurrable.

4)

The evidence is quite to the contrary.”

The appellant’s appeal was heard by Warby J. The judge decided that the Deputy Master was wrong to hold that the article 14 claim had no real prospects of success. But he also held that the claim was barred by section 7(5) of the HRA. At para 79, he said:

“Here, the “act complained of” in the one human rights claim that I have held to be both adequately pleaded and sustainable for the purposes of a summary judgment application is the BSB’s “prosecution” of the appellant. The decision to bring proceedings was taken on 9 June 2010 or at the latest in late July 2010 when the charges were served on the appellant. If time runs from either of those dates then the one year time limit expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s “prosecution” of the appellant is considered to be a continuing state of affairs up to the Tribunal decision time under s7 expired in May 2012.”

He also rejected the submission made on behalf of the appellant that, even if “aspects” of the claim were in time, the Deputy Master had been wrong not to grant her an extension of time under section 7(5)(b) of the HRA.

Mr Southey QC submits that the judge was wrong (i) to hold in relation to the article 14 claim that none of the acts complained of had taken place on or after 22 February 2012; alternatively (ii) to refuse to grant an extension of time under section 7(5)(b). Longmore LJ granted permission to appeal on (i) but refused permission to appeal on the other grounds which the appellant wished to advance. She has renewed her application in respect of these. By a respondent’s notice, the BSB seeks to uphold the judge’s decision on the additional ground that he was wrong to hold that the article 14 claim had real prospects of success.

Mr Southey relies on the fact that section 6(6) of the HRA provides that an “act” includes a failure to “act”. He submits that this implies that, where an initial decision is taken to act in a way that violates a person’s human rights, the “act” for the purposes of the 1998 Act continues until the public authority decides to cease violating that person’s rights. That is because there is a failure to act to bring the violation to an end. The act of prosecuting the appellant started with the bringing of the six disciplinary charges in June 2010. It continued until 17 August 2012 when the appeal was allowed. The prosecution could have been withdrawn by the BSB at any time before 23 May 2011 when the Disciplinary Tribunal found five of the charges proved. Once the appellant decided to appeal against that decision, the BSB continued to defend the Tribunal’s decision. It could have conceded the appeal at any time before 17 August 2012. In short, the BSB brought the charges and maintained the appellant’s guilt throughout the period culminating with the allowing of the appeal. Its conduct should be viewed as a single continuing act.

Mr Southey relies on Montgomery v HM Advocate [2003] 1 AC 641 in support of his submissions. The issue in that case was whether pre-trial publicity made it impossible for the defendants to have the fair trial to which they were entitled by article 6 of the Convention. At p 646H, Lord Nicholls said that he had no difficulty in envisaging there might be circumstances “where the initiation or continuation of a prosecution by the Lord Advocate, or the manner in which he conducted a prosecution, would amount to an act of his incompatible with article 6 of the Convention”. Similar observations were made by Lord Hope at p 664B:

“It is [the Lord Advocate’s] acts in initiating and continuing with the proceedings that have put in issue the question whether they can receive a fair trial in the determination of the charge which he has brought against them. That question will remain in issue if, as he proposes to do, he maintains the indictment against them when the diet is called at the trial diet.”

HM Advocate v R [2004] 1 AC 462 at para 90 is to the same effect. In my view, these cases are of little assistance in resolving the question whether a prosecutor’s opposition to an appeal by a defendant following a conviction amounts to the continuation of the “act” of initiating the prosecution. It is one thing to say that seeing a prosecution through to a verdict is a continuation of the prosecution. It is another thing to say that opposing an appeal is a further continuation of the prosecution.

A little more assistance is to be derived from the House of Lords decision in Somerville v Scottish Ministers [2007] 1 WLR 2734. The petitioners were serving prisoners. At various times they were segregated from other prisoners pursuant to monthly orders and authorisations for segregation that were made over a period of time. Several of the periods of segregation were concluded more than one year before the proceedings were brought. They sought judicial review on the grounds that the decisions to segregate them were in breach of article 8 of the Convention. The House held that the acts of the Scottish Ministers were outside the limits of their devolved competence in terms of the Scotland Act 1998. That did not justify the conclusion that the claims could only be brought under the HRA and it was therefore unnecessary to express an opinion on the question of whether the claims were brought within one year of “the date on which the act complained of took place”. Nevertheless, their lordships did consider this question.

Lord Hope expressed the view that the phrase “the date on which the act complained of took place” means, in the case of what may properly be regarded as a continuing act of alleged incompatibility that time runs from the date when the continuing act ceased, not when it began (para 51). At para 52, he reserved his opinion on whether the monthly orders and authorisations for segregation of the prisoners (giving rise to a continuous period of segregation) should be viewed as one continuing act or as separate acts for the purpose of section 7(5). At para 197, Lord Mance viewed them as separate acts in respect of which separate one year limitation periods would run, leaving a claimant seeking to challenge a period of segregation which had lasted more than a year to seek an equitable extension of time under section 7(5)(b). Lord Rodger preferred to express no view, but considered that Lord Mance’s approach was “at least arguable” (para 145). Lord Walker said that he agreed on all issues with Lord Hope and Lord Rodger (para 167). Lord Scott noted that “act” includes “a failure to act” and therefore concluded that the “one year beginning with the date on which the act complained of took place” should “simply be calculated back from the date on which the section 7(1)(a) proceedings were commenced” (para 81).

I have set this out in a little detail because it appears to be the only authority which sheds any light on the question that arises in the present case. As a matter of ordinary language, the wording of section 7(5)(a) contemplates that an “act” is a single event which occurred on a single date. No express provision is made for an act which extends over a period of time. There is no difficulty in applying this approach in the paradigm case of a single act which takes place at a clearly identifiable point of time. The act should not be confused with its consequences. If it takes place more than one year before proceedings are brought, the claim is barred by section 7(5)(a) even if its consequences do not appear until later. There are also cases where the complaint is a failure to act. It may be difficult to determine when a failure to act occurs. This problem does not, however, arise in the present case.

There are also cases like Somerville where the question is whether the acts complained of are to be regarded as a single continuing act or as a series of discrete acts with continuing consequences. The fact that there was a difference of opinion on this question in Somerville shows that it is not always easy to decide how to classify the acts in such a case. It will depend on the particular circumstances and the nature of the particular complaint.

In the present case, the complaint is that the prosecution was in breach of article 14. I see force in the argument that normally the institution and conduct of a prosecution up to conviction or acquittal should be regarded as a single continuing act for the purposes of section 7(5)(a). The prosecution is a single process during which the prosecutor takes many steps. It cannot have been intended by Parliament that each such step would be an “act” to which the one year limitation period would apply. If that is right, the one year period starts to run from the date of the conclusion of the prosecution by conviction or acquittal.

But it is not necessary to express a concluded view about this in the present case. The question that arises here is whether opposing an appeal by a convicted defendant should be regarded as a continuation of the prosecution. I do not consider that it should be so regarded. 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. The defendant (now appellant) may complain of a breach of the Convention in relation to the conduct of the appeal. But such a complaint is different from a complaint about the decision to prosecute or the manner in which the prosecution has been conducted. There is no allegation in the present case that the BSB acted in breach of article 14 in relation to the appeal.

I should mention that Mr Southey places some reliance on the fact that a criminal case continues for the purposes of article 6 of the Convention until any appeal is finally determined: see, for example, Eckle v Germany App 8130/78 at para 76. In my view, this principle is of no relevance here. It is undoubtedly the law that the “reasonable time” for a hearing required by article 6(1) covers the whole of the proceedings, including appeal proceedings. But that does not touch the question whether the role of the prosecutor in appeal proceedings is to be considered as a continuation of the act of prosecuting the defendant in the first place.

I conclude, therefore, that the one year period in the present case started to run from 23 May 2011 when the Disciplinary Tribunal found five of the charges proved. The period expired before the appellant issued the present proceedings on 21 February 2013. It is, therefore, time-barred unless the period of one year is extended under section 7(5)(b).

The judge dealt with the question of extension of the period in the following terms:

“81.

I do not accept these points. In my judgment it is not reasonable for a party, least of all a legal professional, to complain on appeal that the first instance court failed of its own motion to take a point of this kind in their favour. It is clearly established that the onus lies on the party seeking an extension of time to establish that it should be granted: Cameron v Network Rail Infrastructure [2007] 1 WLR 163, [47] (cited with evident approval in A v Essex County Council [2011] 1 AC 280). It seems to me in accordance with principle and good practice that just as the time bar under the HRA is a defence to the remedy which must be pleaded by a defendant so also a claimant who seeks an equitable extension must expressly claim it and show good grounds in support. This is the well-established position when it comes to other provisions permitting extensions or disapplications of limitation periods, such as ss 32A and 33 of the Limitation Act 1980.

82.

In the present case the limitation point was pleaded in the Defence but no Reply was served. Nor did the appellant at any point assert in evidence or in her written submissions a claim to an extension or any grounds on which it would be equitable to allow her claim to proceed. The BSB’s skeleton argument, in its section on limitation, expressly referred to the jurisdiction to extend time on equitable grounds, yet no application was made. I therefore do not consider that the Master was at fault in the approach he adopted.

83.

I do not consider that the grounds now advanced for an extension are persuasive in any event. There is no evidence that the appellant in fact decided to wait until after her appeal to bring proceedings. I would not accept, either, that such a decision was reasonable. The purposes of a time bar include bringing certainty and the avoidance of stale claims. A party who wishes to preserve a right from the operation of a time bar in such a situation should ensure that the potential defendant is aware of the claim, and seek a standstill agreement with the potential defendant or failing that issue proceedings and, if appropriate, seek a stay.”

Mr Southey submits as follows. There is a good reason for allowing individuals to wait until a prosecution ends before requiring them to bring proceedings under the HRA regarding the prosecution. Persons should not be required to bring satellite litigation if they cannot know whether criminal proceedings will provide them with relief because the proceedings have not run their course. Section 7(5)(b) gives the court a wide discretion to extend time having regard to all the circumstances: see Dunn v Parole Board [2009] 1 WLR 728 at para 31. Although in principle the burden is on a claimant to demonstrate that time should be extended, the reality is that the application of a burden of proof is rarely appropriate. Instead a “holistic” approach is required. In A v Essex County Council [2011] 1 AC 280, Lord Kerr considered the correct approach to applications to extend time. He said at para 167 that he preferred to approach the question by:

“…an open ended examination of the factors that weigh on either side of the argument that this is a case in which the discretion of the court should be exercised to extend the time”.

Mr Southey also submits that Deputy Master Eyre was correct to link the merits of the claim to the decision to refuse to extend time. Matters such as the strength of the claim and its importance are potentially relevant. It was wrong to place weight on the absence of an application to extend time. The appellant plainly wished to proceed. The importance of the need to combat racism has been emphasised by the ECtHR on many occasions: see, for example, DH v Czech Republic (2008) 47 EHRR 3 at para 176. Furthermore, the judge’s own exercise of discretion in para 83 was flawed because he failed to take account of such matters as the importance of the claim. He concentrated on the justification for the timing of the claim. He also failed to recognise that, by implication, the appellant was seeking an extension of time to the extent that this was necessary. Finally, since the failure to comply with a limitation period bars the remedy and not the right, there was no need for the appellant to apply for an extension of time in any event.

I would reject these submissions essentially for the reasons advanced by Ms Padfield. The appellant did not ask the Deputy Master to exercise his discretion to extend time. He was not at fault in failing to consider whether to extend time on his own initiative. If the appellant had been a lay person and there were obvious grounds for extending time, it is perhaps arguable that the Deputy Master should have raised the issue and asked her whether she wished to apply for an extension of time. But the judge was fully justified in holding that it was not reasonable for a legal professional such as the appellant to complain that the Deputy Master did not raise the issue on his own initiative on the facts of this case. The dicta of Lord Kerr in A v Essex CC do not justify a different conclusion. They were directed to the question of how the discretion should be exercised, not whether there was an obligation to exercise it.

In my view, a party who wishes the court to grant an extension of time must make that clear to the court and to the opposing party and set out the grounds and any evidence on which he or she relies. It is the appellant’s failure to do this that is fatal to her argument that the Deputy Master was at fault in not granting her an extension of time in this case. I am prepared to accept that the principle that limitation defences generally bar the remedy and not the right applies to section 7(5)(a) of the HRA. But that is irrelevant to the question whether the court is under a duty to consider granting an extension of time even where the party out of time does not ask for one.

I reject the submission that the appellant was seeking an extension of time by implication. Her decision to appeal to the judge was consistent with her believing that the claim was not time-barred because she had started proceedings within one year of the act of which she complained. On that basis, she did not need to ask and was not asking for an extension of time. If she wanted an extension of time, it was incumbent on her to ask for it.

The judge was right to refuse to reverse the Deputy Master’s decision for the simple reason that she had not asked him to grant one. For good measure, the judge went on at para 83 to give cogent reasons for holding that the reasons advanced before him (but not before the Deputy Master) were in any event insufficient to persuade him that he should grant an extension of time. Mr Southey rightly acknowledges that he has to identify an error of principle in this paragraph if he is to succeed in impugning its reasoning. In my view, there is no such error. I would therefore refuse permission to appeal on this ground.

Since I would dismiss this appeal for the reasons that I have given, I can deal with the points raised by the respondent’s notice briefly. Having reviewed the evidence in some detail, the judge concluded at para 73 that the particulars of claim both in their unamended and draft amended forms “adequately state a case, which is not fanciful, that by bringing disciplinary proceedings against the appellant, the BSB indirectly discriminated against her contrary to article 14”. The evidence included a report by Inclusive Employers entitled “Diversity Review Bar Standards Board’s complaints system”. It related to the period January to June 2013. It also made a number of recommendations for improvements. The report stated that the conclusions that could be drawn from the results of the data that had been provided to it by the BSB included that: (i) BME barristers were disproportionately over represented in the complaints process; (ii) BME barristers were more likely to have a complaint referred to disciplinary action; and (iii) BME barristers were more likely to have complaints upheld. The BSB has now applied for permission to adduce a further report dated January 2016 entitled “Complaints at the Bar: An analysis of ethnicity and gender 2012-2014”. This report stated that the analysis undertaken identified “a range of characteristics that contribute to a higher or lower likelihood of a complaint being closed without investigation or referred to disciplinary action that are more significant predictors than ethnicity” (para 4).

By its respondent’s notice, the BSB seeks to challenge the conclusion stated at para 73 of the judgment. Ms Padfield submits that, even without recourse to the January 2016 report, she can demonstrate this the conclusion is unsustainable. Her main point is that the claim that the appellant seeks to prove is based on Strasbourg jurisprudence such as that set out in DH:

“188.

In these circumstances, the Court considers that when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. That does not, however, mean that indirect discrimination cannot be proved without statistical evidence.

189.

Where an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden than shifts to the respondent State, which must show that the difference in treatment is not discriminatory.”

Ms Padfield also relies on Orsus v Croatia (2011) 52 EHRR 300 paras 150 to 155 in support of her submission that the appellant’s case does not have real prospects of success without statistics sufficient to raise a prima facie case of discrimination. General statements of disproportionate impact are unlikely to be sufficient.

In my view, there is considerable force in the points made by Ms Padfield. At best, the appellant’s case on the basis of the evidence she has adduced so far, is very thin. But since it is unnecessary for me to do so, I do not propose to express a concluded view on this issue.

For the reasons I have given, I would dismiss this appeal.

I too would dismiss this appeal, for the reasons given by the Master of the Rolls. In my judgment a decision to resist an appeal, and the implementation of that decision, cannot sensibly be seen as a continuation of the original decision to prosecute. On the appellant’s analysis, many acts which are plainly one-off would retrospectively be converted into continuing acts simply by virtue of being challenged. Take a case where a person claims a social welfare benefit, is refused, and challenges that decision by a process of internal appeal. The department can at all times revoke the decision and pay the benefit. The decision to refuse the benefit itself could not properly be described as a continuing act; it is manifestly a single act, albeit with potentially continuing adverse consequences. Yet on the appellant’s analysis it becomes a continuing act once it is challenged simply by virtue of the fact that the appeal is not conceded, with the consequence that time does not begin to run. I can envisage situations where the fact that there is an internal appeal may well be material to the question whether or not time should be extended, but it cannot in my view delay the commencement of the limitation period itself.

I should add that I think that there has been a certain amount of confusion over the article 14 claim. In so far as the allegation is the discriminatory treatment of the appellant herself - and para.22 and the last sentence of para.24 of the Amended Particulars of Claim (see para 4 above) would suggest that this was the principal way in which the case was put - the focus has to be on the act or acts directed against her, and the limitation period is determined by reference to that act or acts. The disproportionate treatment of BME barristers is then potentially evidence of discrimination against the appellant herself. The operation of the limitation period has at all points been argued on the assumption that it runs by reference to acts directed against the appellant, and that gives rise to the question whether the decision to prosecute her, as an alleged act of discrimination, is a continuous act or not and if so, whether it runs until the appeal is determined. But in so far as the article 14 argument is based on the case of DH, it is really a distinct submission that there is systemic discrimination against BME barristers. It does not follow from this that each BME barrister subjected to the disciplinary process has been subject to unlawful racial discrimination, although each such barrister would, on the analysis of the DH case, be a victim with the right to take action to challenge the wider systemic discrimination. As Mr Southey QC accepted in argument, the remedy in this type of article 14 challenge would not be the same as it would where the claimant alleges that she has personally been unlawfully discriminated against.

However, it seems to me that it is highly arguable that in this type of case, the limitation period runs from a different time. If the claimant were contending that the DH type of systemic discrimination was continuing, or had ceased less than a year before proceedings were commenced, the claim would surely be 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. However, 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.

For the reasons given by the Master of the Rolls, I would also dismiss this appeal.