Ekperigin v Bar Standards Board

This is a statutory appeal to the High Court pursuant to section 24 of the Crime and Courts Act 2013 from a decision of the Bar Standards Board in relation to the qualification or training of the appellant barrister. By section 24(6) of that Act the High Court may, on such an appeal, make such order as it thinks fit. So I have a very wide discretion, although I must of course exercise it on a principled basis. By a decision communicated by a letter dated 19 September 2018 the Authorisations Review Panel of the Bar Standards Board refused the appellant's application for a complete exemption from the non-practising period (viz. the first six months) of pupillage. He now appeals from that decision.

The essential factual background and context is as follows. The appellant completed all the examined stages of training for the Bar and completed his Bar Vocational Course in August 2011. He was called to the Bar by the Middle Temple in October 2011. Under the scheme established by the Bar Standards Board, a 12-months pupillage is normally the essential prerequisite before a barrister who has been called to the Bar can in fact embark upon practice in his own right. It is very well known indeed that there is currently, and has for some time been, an acute shortage of pupillage places such that a far greater number of people are being called to the Bar than there are pupillages available for.

The effect of that shortage is very well demonstrated by what this appellant said in his applications to the Bar Standards Board in relation to himself. He made a first application for exemption from all or part of the non-practising, and also the practising (or second six months) stages of pupillage in 2016. In support of that application, he said:

In September 2016, based upon that application, the Bar Standards Board did indeed grant a reduction of two months in each of the non-practising and the practising stages of pupillage, so that in relation to each stage this appellant was only required to undertake four months. He still faced the utmost difficulty in obtaining pupillages, and so in 2017 he made a further application for a complete dispensation from the non-practising stage of pupillage.

I completely accept what the appellant said with regard to his difficulties and experience in seeking pupillages, and I approach this appeal with the utmost sympathy for his situation. He has clearly worked hard to obtain the formal qualifications and be called to the Bar. He has also worked hard since then in employed roles. He has asserted, and repeats to me today, his absolute determination to emerge as a fully-fledged practising barrister, and it must be deeply frustrating to him that he has so far not been successful.

At all events, having been granted that first reduction of two months in each stage of pupillage, the appellant commenced employment with an organisation called HB Public Law. HB in fact stands for Harrow and Barnet Councils and is structured to provide legal advice and services to those two local authorities and indeed three others, namely

The essence of the appellant's application for a complete dispensation from the non-practising stage of the pupillage was, and is, that through his work with HB Public Law he has been exposed to, and acquired, a range of legal experiences at least equal to those that he might acquire through the non-practising stage of a pupillage. He says, further, that whilst working for HB Public Law he was appropriately supervised by more experienced lawyers and so the required element of supervision was present in his work.

The application was first considered by an officer of the Bar Standards Board, namely Sarah Okran, who is a supervisor and authorisation officer. By a letter dated 3 May 2018 Sarah Okran rejected the application. She gave reasons, namely that:

The appellant complains strongly, and it is one of his grounds of appeal, that there was unlawful or inappropriate delegation of his application to an officer of the level of Sarah

On 21 May 2018 the appellant made his application for a review. Paragraph 3.3 of the Bar

The application came before the Authorisations Review Panel at a meeting on 6 June 2018. The appellant was not present at that meeting, nor invited to attend. However, he has expressly said today that it is not a ground of his appeal that in some way justice or fairness required there to be an oral hearing. It appears that the normal procedure of the

Their decision was communicated by a letter dated 19 September 2018, which is clearly the formal decision letter which is now the subject of this appeal. During the course of these appeal proceedings, however, the appellant sought and obtained from the Bar

It is clear that the panel felt, amongst other matters, that there had been insufficient supervision of the work that the appellant had done and was doing for HB Public Law so as to satisfy the element of scrutiny and supervision that is contemplated by the non-practising stage of a pupillage. The appellant complains most strongly that if the panel were concerned about the degree of supervision, or the absence of evidence about the degree of supervision, they could and should have adjourned their deliberations and asked him for further information. The Guidance Notes of the Bar Standards Board at Note 2.6, now at bundle page 48, say as follows:

So, within that paragraph, one clearly sees express recognition of the power of the BSB to request further information or documentation; but one also sees, as is perhaps obvious, that the primary responsibility is on the applicant to provide all relevant information and supporting evidence. In support of this particular point, the appellant relies also on what he had said in his letter of 13 February 2018, now bundle p.188, in which he wrote:

Further, the appellant had placed before the panel a letter dated 1 June 2018 from Mr Paresh Mehta, a senior lawyer and team leader at HB Public Law, who was also supervising the work of the appellant. I will refer later to the contents of that letter, but it concluded with the following:

So, the appellant now complains that instead of taking the view that his level of supervision was insufficiently demonstrated, the panel should have taken up the invitation of himself in his letter of 13 February, and/or of Mr Mehta in his letter of 1 June 2018, and asked for more information with regard to supervision. I do not accept that as a significant ground of criticism of the approach and decision of the panel, and certainly not as one which in any way undermines or vitiates their decision. After all, as is clearly set out in paragraph 2.6 from which I have quoted, the primary responsibility was upon the applicant to provide all relevant information and supporting evidence to them.

However, I have today granted to the appellant his application for permission to adduce in evidence at this appeal, and to rely upon, his supervision sheets from HB Public Law. That, frankly, was a generous decision on my part, since these sheets were all in existence before, and in some cases long before, the decision of the panel and could clearly have been made available and placed before them. So, the first requirement of the rules in Ladd v Marshall is, frankly, not satisfied. Nevertheless, I accept that it came as something of a surprise to

Before I consider the substance of the appellant's application to the Bar Standards Board and the approach and decision of the panel, I mention the position of the appellant as it now is under the so-called "five-year rule". Rule Q32 of the Qualification Rules of the Bar provides as follows:

As I have said, the appellant completed his Bar Vocational Course in August 2011. So, five years after that date elapsed in August 2016. On the face of it, therefore, whatever outcome is reached on the present appeal, the appellant could not embark on whatever part of the non-practising pupillage that he is still required to undertake, nor (if exempted from the whole of that stage) could he embark on the practising stage of a pupillage without first obtaining the permission of the Bar Standards Board as rule Q32 requires. That is dealt with more fully in published Guidelines from the Bar Standards Board which, under a heading

I observe, therefore, that even if this appellant is successful on the present appeal, and even if I were to reduce the period of the non-practising pupillage to zero so as to extinguish it, he will still need to obtain the approval of the Bar Standards Board before embarking even on the practising stage of a pupillage, now that well over five years have elapsed since he completed the vocational stage of his training.

I turn from that aside to consider the actual application in relation to which the appellant now appeals. This fell, and falls, to be considered by reference to the "Criteria for Applications" published by the Bar Standards Board and now set out in p.51 to p.53 of the present bundle. The over-arching principle is to be found in paragraph 1.2, namely that:

Pausing there, it is apparent that the overall approach and test is whether, as a result of knowledge and experience obtained elsewhere, it is "unnecessary" for the applicant to undertake the non-practising stage of a pupillage. Paragraph 1.6 provides as follows:

Pausing there, that paragraph clearly emphasises the view of the Bar Standards Board that the non-practising stage of a pupillage is important and explains that, accordingly, it will not readily be reduced. However, paragraph 1.7 goes on to provide that:

It is of course on the basis of previous experience gained outside a pupillage that this appellant relies. Paragraph 1.8 provides as follows:

Pausing there, that paragraph sets out an approach that the Bar Standards Board, or in this case its panel, will require to determine that the relevant knowledge and experience "clearly makes it unnecessary" for the applicant to undertake any part of the non-practising stage of pupillage before the requested exemption would be granted. That is repeated again at paragraph 1.13 which provides as follows:

Returning to paragraph 1.9 of the criteria, that provides as follows:

Pausing there, it is to be noted that an identified circumstance is "the level of supervision and assessment." At paragraph 1.11 the criteria provide that:

Finally, I quote in part from paragraph 1.1.12 which includes:

Pausing there, the appellant did have several years of earlier experience working for the London Borough of Tower Hamlets, but the particular experience that he was relying upon was that with HB Public Law, which had endured about 15 or 16 months by the time the panel were considered his application in June 2018. The “preliminary starting point” is a reduction of about two months' pupillage for that experience. As I have described, the Bar Standards Board had already granted to this appellant a reduction of two months in each of the two stages of the pupillage. Further, that reduction contemplated by paragraph 1.12 is "usually in the practising period of pupillage" whereas it is in the non-practising period that this appellant seeks his further reduction. So, those were the criteria that the panel were required to apply and which, indeed, I apply in my approach to the present appeal.

In support of his application, the appellant had made a very full personal statement setting out the nature of his work with HB Public Law and describing some of his casework there. Further, he submitted and relied upon the letter to which I have referred from Paresh Mehta dated 1 June 2018. That letter is quite long and I can only quote rather selectively from it. On the first page Mr Mehta described the nature and functions of HB Public Law and continued:

That paragraph does need to be emphasised, for in it Mr Mehta himself is clearly explaining that although HB Public Law trains solicitors, it does not provide, and I assume is not registered or qualified to provide, training for pupil barristers. Mr Mehta then continues by describing that the appellant has his own personal caseload to manage, and that typically he has sole conduct of between 40 to 60 cases, the majority of them being possession claims where the authority are seeking possession against tenants for arrears of rent. He says:

Mr Mehta explains that the appellant drafts pleadings as well as interlocutory applications, orders, skeleton arguments and so on as required. It is clear from the letter of Mr Mehta and other material that the appellant has appeared as advocate at many court hearings on behalf of his clients. The letter continues:

That paragraph, as it seems to me, is very important, and indeed was influential on

The metaphor of a "shadow" is of a person attached to their pupil supervisor as closely as a shadow is attached to the body casting the shadow. The first six months of a pupillage is not about "independence" or "limited supervision", but, on the contrary, about constant close proximity, so that the pupil sees or hears everything done and said by the pupil supervisor, and is indeed able to discuss it with him or her. At all events, that was the evidence of

As I gave him permission to adduce as further evidence the supervision sheets, I will briefly refer to them. These indicate reviews at 8, 16 and 26 weeks of his employment with HB Public Law. They are essentially tick box forms which indicate that under a variety of headings such as "job related knowledge", "experience", "skills and abilities" his performance has in every case been "satisfactory". The appellant particularly wished to rely on a note on the second page of the supervision sheet dated 5 May 2017 which includes

The difficulty with that is, first, that in his underlying application form he described his supervisors as being other people, not including Mrs Victoria Seifert, and he merely mentioned that she is a barrister employed by HB Public Law. Second, there is no evidence from Victoria Seifert as to her degree of supervision or oversight of the work of the appellant; and, third, as I have been told today, Victoria Seifert is not herself a registered pupil supervisor.

The appellant wished to stress also in the supervision sheet signed on 3 July 2017 a note that there is "good feedback on written advocacy. Continue to expand" and references in the supervision sheet of 21 August 2017 to his having conducted 24 hearings on his own and that his written advocacy continues to be good.

I do entirely accept that, so far as HB Public Law was concerned, the performance of the appellant was entirely satisfactory. That is evidenced by those supervision sheets and also by the reference letter from Paresh Mehta dated 1 June 2018. It is not, however, his performance which is in issue. It is whether or not the appellant has been exposed to the sort of osmosis that is expected to take place from close proximity to a practising barrister (whether in private practice or in the employed Bar) during the pre-practice stage of a pupillage.

The decision letter dated 19 September 2018 extends to some three and a half pages and I can only quote very selectively from it. The overall conclusion on the first page, now at bundle p.182, is that:

Passages were then set out from the guidelines and criteria which I have quoted above. The panel then went on to consider the decision of Sarah Okran and felt there was no substance in any of the grounds of complaint made by the appellant from that decision, but they then clearly turned to consider the application "afresh", as they were required to do. On the third page of the decision letter, now at bundle p.184, the panel say:

That paragraph, as it seems to me, encapsulates in the words of the panel the reasons for, and the belief of the Bar Standards Board in, the importance of pupillage generally and the non-practising period specifically. The decision letter continues a little further on:

Pausing there, it is to seek to contradict that sentence that the appellant wished to draw my attention to Mrs Victoria Seifert; but, as I have said, there is nothing, even now, to indicate any particular level of supervision from Mrs Seifert, who in any event is not registered with the Bar Standards Board to provide it. The letter continued:

It seems to me that that reasoning by the panel cannot seriously be faulted on the totality of the evidence in this case, and certainly cannot be characterised as wrong.

I turn, however, from the formal decision letter to the "meeting notes" of the meeting of the panel itself, which I gave permission to the appellant to admit in evidence today. Those notes indicate that the panel consisted altogether of five named individuals. I have been told

The notes of the meeting do record one of the lay members of the panel, Sarah Brown, as saying "potential floodgates outcome if we do approve this application." The appellant very strongly submits that that note indicates the panel, or at any rate that member of the panel, taking into account an inappropriate and prejudicial consideration when considering his application. To that extent, I agree with the appellant. The Bar Standards Board and this panel are clearly required to consider applications on a case-by-case and case-specific basis. They must of course have regard to the published rules and guidelines which I have quoted above, but any kind of policy approach based on a "floodgates" argument or consideration is, in my view, inappropriate and, indeed, mistaken and wrong.

It does not seem to me, however, that that short reference to "potential floodgates outcome" in the meeting notes invalidates or vitiates, or makes wrong the decision as a whole. There is nothing to indicate that other members of the panel took up or in any way developed the "floodgates" point, nor even that Sarah Brown, who made a number of further contributions to the meeting, was motivated by a floodgates consideration at the end. Thus, she said further on, according to the meeting notes:

That is not a reference to floodgates at all. So, I accept the complaint and grievance of the appellant in regard to the improper reference to "floodgates", but I cannot accept that it thereby vitiates the whole decision.

The appellant further complains that he had some "legitimate expectation" that his application would be granted. With respect, that argument is completely unsustainable. He may well have had a personal subjective expectation that his application would be granted,

The appellant complains that the decision as a whole was not a reasonable or proportionate one, but it seems to me that it was one that was well within the discretion of the panel. The over-arching question for me is whether, nevertheless, I, in my discretion, consider that decision to have been wrong so that in exercise of my powers under section 24 of the Act I should now substitute a decision of my own, either further reducing, or even extinguishing altogether, the requirement of the non-practising stage.

In my view, the decision was not wrong. Indeed, it was wholly justifiable and right. There is, as the materials I have quoted indicate, a very distinct purpose and importance in the non-practising stage of a pupillage. It is the stage in which, by a form of "osmosis", a barrister at the outset of his career learns and absorbs what it is to be a barrister, the conduct and etiquette that is required and expected of a barrister, and the attributes that are required of a barrister in dealing with a client, with courts, with instructing solicitors and with opponent lawyers.

The importance of all of this can clearly be seen from the "pupillage checklist", which a pupil supervisor is required to complete and sign at the end of both the first and the second stages of a pupillage. Frankly, although the appellant has worked well and entirely satisfactorily for HB Public Law, there is simply nothing to indicate that he had the level of supervision and scrutiny that is contemplated by being a "shadow" of a pupil supervisor, and nothing to indicate that he had much proximity at all to a registered pupil supervisor barrister. On the contrary, as I have already said, the letter itself of Mr Mehta dated 1 June

Paradoxically, as it seems to me, the work that the appellant did at HB Public Law might more strongly have supported an application for a further reduction of the practising stage of a pupillage, where the embryo barrister may often spend a great deal of time handling his or her own caseload and appearing as an advocate in a variety of courts, just as this appellant has done. But I am concerned today with the non-practising stage and, for the reasons I have given, I regret that I do not consider the decision of the panel to have been wrong and this appeal must be dismissed.

I wish however to say, in conclusion, that during the course of today the appellant has demonstrated to me his own strengths (and some weaknesses) as an advocate. He has been clear and cogent. He has demonstrated a mastery of the documents. He has displayed the utmost courtesy to the court, even when things were not going his way. These are all hallmarks of good advocacy and tend to indicate the degree of experience that the appellant has already obtained as an advocate. So, although dismissing his appeal, I can only, with sincerity, wish him good luck in the future and in his continued quest ultimately to emerge as a fully qualified practising barrister.

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