O'Connor v Bar Standards Board

This is an appeal against an order of Deputy Master Eyre by which he struck out the appellant’s statements of case and dismissed the action with judgment for the defendant with costs.

The appellant is a practising barrister. She has sued the Bar Standards Board (BSB) for damages in respect of disciplinary proceedings against her which ended in her acquittal on appeal in August 2012, and two complaints against her which were dismissed in September 2012.

The appellant originally framed her complaints under four heads: (a) misfeasance in public office, (b) breach of the Human Rights Act 1998 (“HRA”) by violations of her human rights under Articles 6 and 14 of the Convention, (c) harassment contrary to the Protection from Harassment Act 1997 and (d) discrimination contrary to the Equality Act 2010. The Master held all of these to be unsustainable. His decisions in respect of the claims in misfeasance in public office and the Equality Act were not challenged. I refused permission to appeal against his decision to dismiss the claim in harassment. I granted permission to appeal against the Master’s dismissal of the appellant’s claims under the HRA.

On 30 September 2009 the BSB received a complaint about the appellant from a solicitor named Mr Cunliffe on behalf of Black Horse Limited, part of the Lloyds TSB group. The complaint alleged that in 2009, in two cases brought by Black Horse, the appellant had acted in ways which amounted to conducting litigation, contrary to the Courts and Legal Services Act 1990 and the Bar Code of Conduct (“the Code”). The factual allegations were that she had signed statements of truth, provided an address for service, and filed /served statements of case.

The dates and details of the documents in question were provided. Copies of the relevant parts of the documents were submitted with the complaint. The complainant stated that “In relation to the above I believe that Ms O’Connor is conducting litigation contrary to the Courts and Legal Services Act and the Bar Code of Conduct. Whilst Ms O’Connor is licensed for Public Access, the Bar Council’s guidance on this notes that this does not allow a Barrister to sign a statement of truth, to provide an address for service or file or serve statements of case.”

On 18 October 2009 the BSB’s Complaints Officer recommended an investigation, and on 21 October the Complaints Commissioner decided that an investigation should be undertaken. On 2 November 2009 the BSB wrote to the appellant to inform her of the complaint and the decision to carry out a formal investigation. Copies of the complaint form and supporting documents were enclosed. On 3 November 2009 the BSB wrote again, summarising the complaint and asking the appellant for her comments. The summary was that “The complainant alleges that … you have conducted litigation in that you have signed statements of truth, provided an address for service and filed/served statements of case”.

On 23 November 2009 the appellant replied in some detail. She suggested the complaint was malicious and denied that it had any foundation. She accepted that she had signed statements of truth but said that she was permitted to do so under the Civil Procedure Rules (CPR 22.1(6)(a)(ii) and 2.3(b)), and that this did not involve a breach of the Code. She denied the remaining allegations, including the allegation of breach of the 1990 Act, pointing out that it had been extensively amended in 2007. A response was obtained from Mr Cunliffe, who denied the complaint was malicious.

The papers were then considered by the Complaints Officer, who reported on 25 January 2010 to the Complaints Commissioner. On 26 January the Commissioner asked for the complaint to be referred to a Complaints Committee member. On 1 February 2010 it was referred to a QC who was a member of the BSB Complaints Committee. The appellant was informed of this by letter of the following day. The Committee member provided a written report with draft charges on 28 May 2010. On 9 June 2010 the BSB Complaints Committee met and considered the complaint in the light of all the evidence and decided that it should form the subject of disciplinary charges. On 10 June 2010 the BSB wrote to inform the appellant of this decision. The draft charges prepared by the Committee member were reviewed by junior Counsel on behalf of the BSB and charges were finally settled by him on 16 July 2010. Charges were served in late July 2010.

There were six charges. The first three alleged that the appellant had conducted litigation in breach of the Code by signing statements of truth on statements of case dated 22 April 2009, 26 May 2009 and 30 June 2009. Charge 4 alleged that by signing the third of these statements the appellant had failed to have regard to guidance on Public Access Work issued by the Bar Council. Charges 5 and 6 each alleged that in or about September 2009 she had committed an offence under s 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. Charge 5 alleged this was conduct discreditable to a barrister and Charge 6 that it was conduct likely to diminish confidence or the administration of justice or otherwise bring the legal profession into disrepute. The factual allegations were to all intents and purposes the same as those contained in the original complaint by Black Horse Ltd.

On 13 September 2010 the appellant gave notice that she wished to apply to have the charges dismissed on the grounds that they could not be proved. On 30 September 2010 she submitted a 52 paragraph document containing written representations in support of an application for the charges to be dismissed. At the heart of her arguments were the proposition that barristers were allowed to sign statements of truth by the CPR and not prohibited from doing so by the Code or the relevant legislation. On 2 November 2010 the appellant provided to the BSB a number of documents on which she relied in support of her application to dismiss.

On the same day the appellant emailed the BSB to ask for “a stay of matters until the 1^st week in December 2010”. She explained that she was leading on a matter in the Court of Appeal on 29 or 30 November 2010, which involved very demanding legal and preparation work. In addition, she said she had conduct of three cases involving disputes of many hundreds of thousands [of pounds] awaiting final hearing dates but requiring continuous attention. She said she was finding it very, very difficult. The BSB replied the same day declining to agree to the stay requested, stating that professional conduct proceedings were as important as professional work and that it was under a public duty to proceed as expeditiously as possible. The BSB then submitted written representations to the Tribunal dated 8 November 2010.

The appellant pressed again on 11 November 2010 for a stay, making clear that she wished to present her application to strike out in person. This further representation was rejected by the BSB the same day. On 15 November 2010 the appellant submitted written representations as to directions in which she applied for an oral hearing and sought particulars of the charges against her. The BSB put in submissions in response on 17 November 2010.

On 2 December 2010 Field J, as Directions Judge in the disciplinary proceedings, gave a written ruling on the appellant’s application to dismiss the charges. He refused her request for an oral hearing on the grounds that the matter could fairly be dealt with on the papers, and dismissed her application to strike out the charges. He directed the BSB however to give further particulars of its case under charges 1 to 5, that the signing of statements of truth and filing of pleadings constituted the conduct of litigation for the purposes of the pleaded paragraphs of the Code. Particulars were given on 14 December 2010.

On 23 March 2011 a Disciplinary Tribunal chaired by Rosalind Wright QC found five of the charges proved. The appellant was advised as to her future conduct and ordered to pay £292 in costs. She appealed to the Visitors to the Inns of Court and on 17 August 2012 her appeal was allowed by a Panel chaired by Sir Andrew Collins. The Visitors found that none of the conduct alleged against the appellant involved any breach of the Code.

In the meantime, the BSB had received two further complaints alleging professional misconduct against the appellant. The first was dated 19 July 2011 and made by a solicitors’ firm named Mushtaq & Co, alleging a conflict of interest. The second complaint was dated 25 November 2011 and made by a firm of solicitors named Cleggs. The substance of this complaint was that the appellant had conducted litigation at a time when she was not authorised to do so. The first complaint was dismissed by the BSB on 12 September 2012. The second complaint was dismissed by the BSB on 24 September 2012.

In February 2013 the BSB published a report entitled “Report on Diversity of Barristers Subject to Complaints 2013.” The report made a number of findings about the relative likelihood of BME (black and minority ethnic) barristers being subject to disciplinary action. It recommended the appointment of external quality experts to investigate the BSB’s complaints handling process. On 11 February 2013 the appellant served on the BSB an Equality Act 2010 questionnaire (“the EA questionnaire”) seeking information relating to issues of discrimination. On 21 February 2013 the appellant issued the claim form in these proceedings, alleging all four of the causes of action referred to above.

The BSB responded to the EA Questionnaire on 12 April 2013, when it provided the appellant with a copy of the Report of February 2013. On 11 June 2013 the claim form together with particulars of claim were served on the BSB by Pegasus Legal LDP, which represents the appellant in these proceedings. The particulars started with a reservation of the appellant’s right to amend the particulars “once the Defendant has provided the disclosure that was requested five months before the date of these particulars but is yet to be provided”. So far as is relevant for the purposes of this appeal the appellant’s particulars of claim made the following allegations.

The particulars referred to the complaint of Mr Cunliffe and the disciplinary proceedings which followed, including the appeal, alleging that the proceedings had been brought in breach of the BSB’s own rules. They also referred to the complaints of Mushtaq & Co and Cleggs, alleging that these had been out of time, but investigated nonetheless, in breach of the BSB’s rules for considering out of time complaints. It was alleged that the BSB is a public authority within the meaning of s 6 of the HRA, which has not been disputed. At paragraph 21 there were set out allegations of breach of the appellant’s fair trial rights under Article 6 of the Convention. One of these concerned alleged defects in the composition of the Tribunal, and has not been pursued in the light of the court’s decision in R (Leathley) v Bar Standards Board [2013] EWHC 3097 (Admin). The following further allegations were made, which are material:-

“(b)

The Defendant took an exorbitant amount of time to bring the charges against the Claimant. The complaint was made in September 2009. However, the charges were not until the end of July 2010. This delay infringed Article 6(3)(a) of the Convention;

(c)

The Defendant refused the request for extra time to prepare her defence. The refusal to allow sufficient time to prepare a Defence was in breach of Article 6(b).”

In addition, the appellant alleged that her fair trial rights had been infringed on discriminatory grounds, contrary to Article 14. The appellant, who is black, alleged as follows:-

“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 indicates 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.”

In paragraph 29 of the particulars of claim it was alleged that:

“The Defendant discriminated against the Claimant indirectly in breach of … 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 Barristers in England and Wales it particularly disadvantages ethnic barristers who make up only a small proportion of the membership of the Bar.”

A Defence was filed and served on 6 August 2013. As regards the human rights claims, the Defence denied that the period up to the laying of charges involved any infringement of Article 6(3)(a). As to time to prepare, the BSB contended that this complaint should have been brought before the tribunal and was not. The Defence asserted that the appellant had not stated how the enjoyment of her Article 6 rights had been affected by discrimination on grounds of race or colour. It said that her discrimination claim stood to be struck out as it had failed to identify which provision, criterion or practice had been applied with discriminatory effect. At paragraph 40 it was pleaded that:

“In any event, it averred that the claims under the Human Rights Act are time barred as they pertain to the Disciplinary Tribunal of 2011 or events leading the same, which occurred more than one year before the issue of proceedings. For that reason, if for no other, these claims stand to be struck out as having no reasonable prospect of success.”

On 9 October 2013 the appellant issued an application for directions which included permission to amend her particulars of claim and service of a Reply. She did not then provide any draft amendments. She never served any Reply. The BSB applied for and on 26 November 2013 obtained from Master Leslie an order for standard disclosure and a one day listing for the application which it then envisaged, for an order striking out or alternatively giving summary judgment on the whole of the appellant’s claim. The idea behind this was that having had full disclosure the appellant would, by the time the application to dismiss her claim was heard, be in as good a position to substantiate her claim as she would be at a trial. Both parties then gave disclosure. The BSB gave disclosure by list on 18 November 2013 and the disclosed documents were sent to the appellant on 20 December 2013.

On 3 January 2014 the BSB issued an application notice seeking an order “That the Particulars of Claim, Claim Form and Schedule of Damages be struck out or that summary judgment be given for the Defendant under CPR Part 24” and costs. The application was supported by a witness statement of the Defendant’s solicitor which asserted that:-

“As matters stand, there is nothing in the primary facts alleged by the Claimant which, even if true, could give rise to a finding that the Defendant has committed the alleged wrongs, and I am aware of no reason why this matter should be determined at trial rather than under Part 3 or Part 24. In particular, especially following the provision of disclosure, I have no reason to believe that any further information is likely to be forthcoming which will affect the strength of the claimant’s case on this matter.”

The wording of the application notice and witness statement make clear that the provision of Part 3 that was being relied on was CPR 3.4(2), which provides so far as material that “The court may strike out a statement of case if it appears to the court (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim”. CPR 24.2 provides so far as material that “The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) the claimant has no real prospect of succeeding on the claim or issue; …. and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

On 8 January 2014 the BSB provided the appellant with a copy of a report entitled “Diversity Review – Bar Standards Board’s complaints system” dated January – June 2013, prepared by an organisation called Inclusive Employers (“the Diversity Review report”). This represented the results of the external investigation recommended by the report of February 2013. The Diversity Review report explained the system: “The complaints procedure is the responsibility of the Bar Standards Board. Once a complaint has passed through this procedure and passes on to the disciplinary hearing stage, a separate procedure is followed the final decisions on which are the responsibility of an independent body (the Council of the Inns of Court).”

The Diversity Review report referred to data assembled by the Bar Council research team covering the period 2007-2011 in relation to all complaints in that period (a total of 2,711) and identified the conclusions that could be drawn from the data. These included the following:

•

“BME barristers are disproportionately over-represented in the complaints process in relation to the outcomes of external complaints.

•

BME barristers are more likely to have a complaint referred to disciplinary action.

•

White barristers are more likely to have a complaint dismissed without referral to disciplinary action.

•

BME barristers are more likely to be subject to a disciplinary action outcome of upheld; even when controlling for differences in the subjects of the complaints.”

“External” complaints for this purpose include those, such as the Cunliffe, Mushtaq, and Cleggs complaints, which originate with anyone other than the BSB itself.

The report described a review undertaken by Inclusive Employers of 100 case files in order to identify “any apparent inappropriate or inconsistent actions or treatment relating to BME barristers and white male barristers”, and “any aspects of apparent bias, prejudice or discrimination within the complaints system.” The review team assessed the BSB’s documentation, policies and procedures, interviewed personnel and sought feedback from representative groups. It concluded that the process was clear and balanced; that cases were handled in a way that was transparent, consistent, and fair, in an open culture; that documentation in case files was extremely detailed and thorough; and that “The procedure itself is not discriminatory.” Opportunities for improvement were identified including a broadening of training to include training in unconscious bias, and limits on the disclosure of names to committee members. The report concluded:

“Although there are a series of steps that the Bar Standards Board could take to improve the complaints process from an equality and diversity perspective, our view is that the procedure itself is not at fault. This means that other factors, as yet unidentified, are causing the disproportion shown in the data.”

On 19 March 2014 the appellant put forward draft amended particulars of claim in which she stated that her case was now fully pleaded. Extensive amendments were made to the allegations of fact, the misfeasance claim and the Equality Act claim. The claim remained focused however on the BSB’s handling of the Cunliffe complaint and the complaints of Mushtaq & Co and Cleggs. No amendments were made to the sections of the particulars alleging human rights breaches that I have quoted above.

On 28 March 2014 Deputy Master Eyre heard the BSB’s application of 3 January 2014, together with the appellant’s application for permission to amend. Consistently with the BSB’s application notice and evidence, the skeleton argument of Ms Padfield, for the BSB, made clear that its application was made under CPR 3.4, on the basis that the appellant’s statements of case disclosed no reasonable grounds for bringing the claim, alternatively CPR 24.2 on the grounds that the claimant had no real prospect of success and there was no other compelling reason why the claim should be disposed of at trial. The grounds relied on reflected broadly what had been pleaded in the Defence, and included reliance on the limitation defence. It was submitted that unless an equitable extension was sought and granted limitation was a complete answer to the human rights claims.

The hearing bundles, prepared on behalf of the appellant, ran to 4 lever arch files, amounting to over 1,500 pages. The Diversity Review report was one of the documents included. The appellant represented herself. In her written submissions in relation to the human rights claim she stated that “In relation to Article 14, the Claimant’s claim is that the convention right, which is a right to a fair trial … was interfered with because of her ethnicity. This argument is backed up by the Defendant’s own publication which showed that black and ethnic minority barristers are disproportionately investigated and prosecuted and there is no justification for such disparity. The only difference that can be found is those Barristers’ ethnicity.”

On 2 April 2014 the Master made an order that:

“… UPON the Defendant’s application for an order striking out the Claimant’s statements of case and dismissing the action, alternatively for summary judgment AND for the reasons given below

IT IS ordered as follows:---

1

The Defendant’s application is granted.

2

The Claimant’s statements of case are struck out, and the action dismissed, with judgment for the Defendant for costs. ….”

The Master’s reasons for dismissing the human rights claims were that:-

“7.

She alleges …

b)

That the Defendant’s conduct infringed her rights under the Human Rights

Act. However:-

i)

The allegation is on its face time-barred, and there is no application to

extend the time limit; and

ii)

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

iii)

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

iv)

The evidence is quite to the contrary.”

Nothing turns on the Master’s reason (ii) for the purposes of this appeal. The Master struck out the misfeasance claim on the grounds that the pleaded case of bad faith did not identify any individual of whom it could be said that he acted incompatibly with the BSB’s powers, knowing this would harm the claimant, and that there was not “the least evidence that either might be the case”. Mr Southey QC, who now appears for the appellant, accepts that in these circumstances no reliance can be placed on those same allegations for the purposes of the human rights claims and he disavows any such reliance. As he points out, bad faith is not a necessary part of the human rights claims. It is not disputed that a human rights claim can be advanced without identifying an individual responsible for the alleged breach.

There has been debate on this appeal about how the Master’s order should be interpreted. Mr Southey accepts that the order and reasons address all the Article 6 and 14 claims. He submits, however, that the wording of paragraph 2 of the order means that it should be read as a decision solely under CPR 3.4(2), striking out the claims on pleading grounds alone. I do not think that is right. The order should be read as a whole, in the context of the nature of the applications made and the Master’s stated reasons, which expressly refer to the evidence. Read in that way my conclusion is that the Master’s decision amounts to a dismissal of all the human rights claims on the basis that (a) no application having been made for an extension, the BSB’s limitation defence is bound to succeed and summary judgment is appropriate; (b) the Article 14 discrimination claim discloses no reasonable basis for a claim (for which the term “demurrable”, though little-used today, is legal shorthand); and (c) the human rights claims have no real prospect of success in any event as they are all contrary to the evidence.

On that footing, the relevant grounds of appeal are that the Master was wrong to dismiss the human rights claims because (1) the Article 6 claims cannot be said to have no real prospect of success; (2) the Article 14 claims are sufficiently pleaded and cannot be said to have no real prospect of success; (3) the Master should not have treated the limitation defence as conclusive because (a) to do so was wrong in principle (b) some aspects of the claims were in time and (c) as regards others the Master should have considered whether an extension should be granted, and should have granted one, to allow the claim to be considered as a whole.

The BSB, by a Respondent’s Notice, maintains that the Article 6 and 14 claims are bound to fail on their merits for reasons additional to those given by the Master, and that his order should be upheld for those reasons as well as or in the alternative to the reasons given by the Master. Some of the grounds relied on by the BSB are points of law that had not been argued before the Master. However, no objection is taken by Mr Southey who has chosen instead to meet the points by argument.

By s 6(1) of the HRA “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” The Convention Rights relied on by the appellant are as follows: -

“Right to a fair trial

Article 6

1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

…

3.

Everyone charged with a criminal offence has the following minimum rights:

(a)

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)

to have adequate time and facilities for the preparation of his defence;”

….

Prohibition of discrimination

Article 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Section 7 of the HRA contains the following relevant provisions:-

“7.— Proceedings.

(1)

A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, …

but only if he is (or would be) a victim of the unlawful act.

…

(5)

Proceedings under subsection (1)(a) 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, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

…

(7)

For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.”

A statement of case will be struck out as disclosing no reasonable basis for a claim only if it is plain that even if the facts alleged were proved the claim would fail. The test for summary judgment is whether a claim or defence has a real as opposed to a fanciful prospect of success; the court should not conduct a mini-trial: Swain v Hillman [2001] All ER 91. Where a short point of law or construction arises the court should decide the point if it has all the evidence necessary and is satisfied that the parties have had an adequate opportunity to address the point in argument: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, [12]. By the same token, the court should beware of deciding complex or difficult points or resolving issues of law summarily on the basis of only relatively brief or limited argument.

An appeal court will allow an appeal if satisfied that the decision of the court below was wrong: CPR 52.11(3)(a). However, unless the appeal court otherwise orders its function is to review the decision of the lower court and not to re-hear the application made to that court: CPR 52.11(1). Sometimes, as here, the appeal court will entertain arguments of law which were not advanced before the court of first instance. However, the general rule is that an appeal court will not receive evidence which was not before the lower court: CPR 52.11(2)(b).

Although disciplinary proceedings are not criminal proceedings for Convention purposes and do not necessarily lead to a determination of civil rights or obligations within the meaning of Article 6(1), proceedings which put in issue the right to practise a profession may attract the protection of Article 6(1) on the grounds that this is a “civil right” for those purposes. The principles set out in Articles 6(3)(a) and (b) of the Convention are applicable in the same way to disciplinary proceedings which are subject to Article 6(1) as they are in the case of a person charged with a criminal offence: Albert & Le Compte v Belgium (1983) 5 EHRR 533, [39]. Although the appellant’s right to practise was unaffected by the sanction imposed, the BSB has not disputed that the disciplinary proceedings against her fell within the scope of Article 6(1).

Article 6(3)(a) requires that the person “charged” be given notice in detail of the acts he is alleged to have committed and on which the accusation is based, and the legal characterisation given to those acts: Pelissier & Sassi v France (2000) 30 EHRR 715, [51]-[52]. As the court pointed out in that case, this is an important aspect of the right to fairness and is closely linked with the right to sufficient time to prepare a defence. The appellant’s pleaded claim treats this requirement as complied with when the formal charges were served in late July 2010 but criticises the BSB for delay prior to that, which is said to be a breach of the requirement that notice be given “promptly.”

Mr Southey submits that this complaint should not have been dismissed but is deserving of a trial. He does not cite authority concerned specifically with Article 6(3)(a), but treats it as an aspect of the guarantee under Article 6(1) that issues must be determined within a reasonable time. One purpose of that guarantee is to avoid a person charged remaining too long in a state of uncertainty about his fate: Stogmuller v Austria (1979-80) 1 EHRR 155, [5]. It is well known that delay cases in Strasbourg usually concern lengthy periods. However, Mr Southey makes the point that every case depends on its facts, and offers illustrations of short periods of delay which have been held to violate Article 6(1). He points to Eckle v Germany (1982) 5 EHRR 1, where a delay of 11 months in drafting and serving a judgment after it had been delivered was held unjustifiable, and Foti v Italy (1982) 5 EHRR 313 where the same was said of a delay of 15 months in transferring a file from one court to another.

Mr Southey relies on Zimmermann & Steiner v Switzerland (1983) 6 EHRR 17 [at 24] where the court held that in order to decide whether the reasonable time guarantee has been broken the Court must have regard to “the complexity of the factual or legal issues raised by the case, to the conduct of the applicants and the competent authorities, and what was at stake for the former”. Thus, Mr Southey submits, every case requires an investigation of its particular facts and the fact-sensitive nature of the judgment to be made means that it cannot be said that this claim is bound to fail.

In my judgment, however, the relevant facts are clear enough and do not need further investigation in order to reach the conclusion that on this aspect of the claim the appellant has no real prospect of success. I consider that Ms Padfield is right to submit that the information given to the appellant in early November 2009 satisfied the requirements of Article 6(3)(a). There is a “charge” for the purposes of Article 6 in criminal matters when there is a “official notification by the competent authority of an allegation that he has committed a criminal offence”: Eckle [73]. Here, that occurred on 2 November 2009.

The complaint form and its supporting documents which were provided to the appellant on that date identified with precision the acts of the appellant which were alleged by Mr Cunliffe to amount to professional misconduct. The nature of the misconduct alleged, that is to say conducting litigation in specified ways, was also made clear. If there was any lack of clarity, the letter of 3 November 2009 made that deficiency good. The “legal characterisation” of the misconduct was also in my judgment sufficiently clear for the appellant to understand it. It was obvious that the complainant was of a breach of the Code. Express reference was made to Bar Council guidance and to the Courts and Legal Services Act 1990. It is relevant to note that the appellant did not herself complain at the time that the nature of the complaint against her was lacking in clarity. Rather, she responded with a detailed denial. It cannot be and is not said that the period between 30 September and 3 November 2009 represents a lack of promptness.

Even if I am wrong in that conclusion I consider this aspect of the claim would be bound to fail. The initial investigation process, up to the receipt of Mr Cunliffe’s response to the appellant’s claims about him, took some two months, which was entirely reasonable. Making allowance for the Christmas and New Year period the period taken after that to refer the matter to a Committee member was some 6-7 weeks. That referral took place in early February. It then took some 3 ½ months for the Committee member to advise and formulate draft charges, and a further 2 months for the charges to be finalised and provided to the appellant. This is undoubtedly longer than ideal, and these processes could have been undertaken more swiftly. It could perhaps be said that there was some 3-4 months of inadequately explained delay. However, it is not possible in my judgment to characterise this as delay which violated the appellant’s human rights under Article 6.

As Mr Southey accepts, individual periods of delay have to be viewed in the context of the proceedings as a whole. In Eckle the total period of delay was over 17 years. In Foti it was over 4 years, and the 15 month delay within that period which is relied on by Mr Southey was wholly unexplained. In the present case, even if one treats the proceedings as starting as early as November 2009 they took a total of some 18 months to reach a determination at the Tribunal hearing. It is not alleged by the appellant that this period was unreasonably long in breach of Article 6(1). Rightly so, in my judgment. My conclusion is that the facts of the present case do not come close to establishing a violation and this aspect of the appeal must fail.

The appellant’s claim based on Article 6(3)(b) does not relate to the time she had to prepare for the Tribunal hearing in May 2011, but to the BSB’s November 2010 refusal of a one month stay. Ms Padfield raises a threshold point, not taken before the Master, that the fact that the appellant was acquitted on appeal means that she cannot claim to be a “victim” in this respect within the meaning of s 7(7) of the HRA so that by reason of s 7(1)(a) of the HRA she has no claim to bring under s 6. Ms Padfield relies on a line of Strasbourg authority starting with the Commission’s decision of 13 March 1980 in X v United Kingdom no 8083/77 and most recently exemplified by the decision of the court in Lenev v Bulgaria Application no 41452/07 Judgment of 4 December 2012. That was a case involving allegations of breaches of Article 6(2) by the investigating and prosecuting authorities. The applicant had been acquitted on appeal and the court held at [158] that:

“According to the Court’s and the former Commission’s settled case-law a person may not claim to be a victim of a breach of his or her right to a fair trial that allegedly took place in the course of proceedings in which he or she was acquitted or which were discontinued.”

Mr Southey however cites the decision of the Grand Chamber in Scordino v Italy (No 1) (2007) 45 EHRR 7, [180] that:

“a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention”.

This decision is representative of a separate strand of authority which appears to go back to Amuur v France (1996) 22 EHRR 533. The authorities in this strand include Article 6 cases, one being Eckle, another being Posokhov v Russia Application no 63486/00, Judgment of 4 March 2003, and Scordino itself being a third. Scordino and Eckle were both concerned with breach of the “reasonable time” guarantee, but Posokhov was not. Neither Counsel was able to propose any satisfactory reconciliation of the apparent conflict of authority. It seems to me that I should treat the Grand Chamber’s decision as the more authoritative and that a claim of the kind under consideration here is more likely to fall within the Scordino line of authority in any event.

As to the merits of the claim based on Article 6(3)(b), Mr Southey submits that like the claim relying on Article 6(3)(a) it requires a detailed investigation of the facts which can only properly be undertaken at a trial. Again, however, I consider that the facts are sufficiently clear to allow a decision at this stage. The appellant had prepared and submitted her written grounds for dismissing the claim on 30 September 2010, over a month before she asked for the stay. What remained for her to do as at 2 November was to make written submissions as to directions, in particular as to whether there should be an oral hearing of her application to dismiss. She would then, if successful in that application, have had to prepare for the oral hearing. At that time the Court of Appeal hearing for which she had to prepare and which was causing her concern about time was nearly a month in the future.

The ultimate consequence of the BSB’s refusal to agree a stay was that the appellant had to spend time over the period from 11-15 November 2010 preparing her written submissions asking for an oral hearing and directions. The fact that she chose to do this rather than apply, as she could have done, to the Directions Judge for more time indicates that she did not feel unduly pressurised. I have reviewed the appellant’s submissions dated 15 November 2010 and they show no sign of suffering from being prepared in undue haste. Assuming without deciding that Article 6(1) is engaged by a complaint such as this, I see no real prospect that a court would uphold this claim. It is in my judgment fanciful to suggest that she did not have adequate time to prepare these submissions.

Article 14 protects against discrimination in the enjoyment of other Convention rights and therefore applies only in conjunction with such a right, where the complaint falls within the “ambit” of the other right, a concept to which I shall have to return. At the risk of over-simplification the appellant’s case as presented by Mr Southey on this appeal can be summarised in this way.

In his oral submissions Mr Southey has presented the appellant’s discrimination case as one encompassing the entire disciplinary system, and stated that her complaints of discrimination concern not only the disciplinary proceedings arising from the Cunliffe complaint but also the BSB’s handling of the Mushtaq and Cleggs complaints.

In DH the applicants were Roma living in the Czech Republic who had been sent to special primary schools in the town of Ostrava. In domestic proceedings they alleged that they were the victims of discrimination in the general functioning of the education system, under a practice which had resulted in de facto racial segregation. They produced statistics showing that in Ostrava 56% of special school children were Roma, though they represented only 2.26% of the total primary school pupils. The education provided in the special schools was said to be of inferior quality to that in mainstream primary schools. The domestic proceedings were dismissed. The Grand Chamber held that there had been a violation of Article 2 of the First Protocol in conjunction with Article 14.

The Grand Chamber recalled at [175] its case law that discrimination means “treating differently, without an objective and reasonable justification, persons in relevantly similar situations” and that “a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory … and that discrimination potentially contrary to the Convention may result from a de facto situation.” At [177] it observed that “the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified”. This was explained at [179] where the Court stated that “In certain circumstances, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.” The court noted at [180] that in recent cases the Court had “relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations”.

In the particular case before the court the issue did not arise from the implementation of an indirectly discriminatory law or rule. As the Court put it at [185]:

“It was common ground that the impugned difference in treatment did not result from the wording of the statutory provisions on placements in special schools in force at the material time. Accordingly, the issue in the instant case is whether the manner in which the legislation was applied in practice resulted in a disproportionate number of Roma children – including the applicants – being placed in special schools without justification, and whether such children were thereby placed at a significant disadvantage.”

The court held at [188] 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.” The court accepted the data presented by the applicants, which was based on questionnaires sent out to the head teachers of Ostrava schools and was not disputed or the subject of any alternative statistical evidence, and held at [195] that:

“In these circumstances, the evidence submitted by the applicants can be regarded as sufficiently reliable and significant to give rise to a strong presumption of indirect discrimination. The burden of proof must therefore shift to the government, which must show that the difference in the impact of the legislation was the result of objective factors unrelated to ethnic origin.”

The government’s attempt to establish objective and reasonable justification was unsuccessful, and the court concluded at [209] that it had been established that “the relevant legislation as applied in practice at the material time had a disproportionately prejudicial effect on the Roma community” and that the individual applicants accordingly suffered the same discriminatory treatment.

For the BSB, Ms Padfield points out that there is no allegation of direct discrimination in this case. She submits that a viable case of indirect discrimination cannot be pleaded or proved without identifying some rule, measure, or policy with a discriminatory impact on a particular group, which was applied to the complainant. She lays stress on the use by the Court in DH of the terms “policy or measure”. However, the Court also referred to a “practice” and its decision did not as I read it depend on the identification of any law, rule, or policy that had intrinsically discriminatory impacts. On the contrary, paragraph [185] makes clear that this was not so; the applicants’ case depended on the manner in which the relevant legislation was applied in practice.

The decision in DH does appear to me to support the proposition that a prima facie case of indirect discrimination contrary to Article 14 can be made out by proving that, in a case where the facts are within the ambit of another Convention right, the applicant is a member of a group which has been treated differently in practice from others in a comparable situation, in a way which is disproportionately prejudicial to members of that group. DH also shows that in an appropriate case statistics may be relied on to establish the difference in treatment, and thereby shift the onus to the state (or, in domestic proceedings, the public body concerned) to provide evidence of an objective and reasonable justification for the difference.

The relevant parts of the appellant’s particulars of claim could be more clearly formulated and do contain some surplus wording. In my judgment however she has, within paragraphs 22-24 and 29, sufficiently pleaded a case that the BSB indirectly discriminated against her on racial or ethnic grounds by bringing the disciplinary “prosecution” against her. At 23 and 24 she alleges that in practice the complaints process impacts disproportionately on BME barristers in particular ways. These include the allegation that BME barristers are more likely to have a complaint referred for prosecution. She also alleges, though it may not be necessary for her to do so, that there is no objective reason to justify this different treatment. At 29 she expressly alleges indirect discrimination in that the relevant rules “are applied in such a way” by the BSB that “it particularly disadvantages black barristers”.

These allegations bear comparison with the allegations made by the applicants in DH. They do not amount to allegations of conscious discrimination nor of inherently discriminatory rules. They are allegations that rules which are not said to be discriminatory in themselves are implemented or applied in practice in a way as to affect an ethnic group in a way that is disproportionately prejudicial. In paragraph 24 the appellant states a case that she has been the subject of one of the allegedly discriminatory practices, by virtue of being “prosecuted” by the BSB.

It is clear that there exists statistical evidence to support the appellant’s pleaded allegation that BME barristers were, at the material time, proportionately more likely than others to be referred by the BSB for prosecution. The statistics are referred to in the Diversity Review report, albeit not fully set out in that report. According to DH statistics may amount to prima facie evidence casting cast a burden on the state to justify such a situation if they are “reliable and significant”. Ms Padfield does not submit that the Bar Council statistics are not reliable but she notes that the statistics in DH were very striking indeed, and submits that there is nothing of that nature here. I do not consider, however, that it is possible for the court to determine on this appeal that the appellant has no real prospect of establishing that the statistics are significant.

The Diversity Review report does of course also contain the conclusion that the BSB’s “procedure itself” is not discriminatory and not at fault. Ms Padfield submits that for this reason the Master was entitled to reach the conclusion that the evidence is contrary to the appellant’s case. In my judgment, however, Mr Southey is right to submit or would at least has a real prospect of establishing at a trial (a) that the relevant question is whether it follows from that finding that the BSB would be bound to succeed at a trial in demonstrating an objective and reasonable justification for the difference in treatment, and (b) that this does not follow: the report’s conclusions do not establish such a justification; they find that the disproportionate impacts on BME barristers are not explained by discriminatory procedures but leave open the question of how it comes about that the system has such disproportionate impacts. Ms Padfield rightly submits that it may be that there is a rational and justifiable explanation for the differential treatment of BME barristers revealed by the statistics, which does not involve discrimination as defined by the Court in DH. The Diversity Review report does not however contain such an explanation.

In these circumstances it is not necessary for me to decide whether to admit the fresh evidence which the appellant sought to introduce on this appeal. The purpose of the application was to bolster the evidential case in support of what is pleaded, if that were necessary.

Ms Padfield submits that this claim could not succeed for two further reasons: the facts do not fall within the ambit of Article 6 and the appellant, having been acquitted, is in any case not a victim. I have dealt already with the second point. The submission that the facts are not within the ambit of Article 6 is another new point, neither pleaded nor taken before the Master. In support of her submission Ms Padfield relies on an admissibility decision of the Commission dated 8 April 1991 in Mosbeux v Belgium Application 17083/90. The applicant there complained of an inability under Belgian law to object to his committal for trial in the criminal court. This was held to be a purely preparatory procedure which determined neither rights nor obligations nor any criminal charge and hence involved no arguable breach of Article 6. The application was dismissed as manifestly ill-founded.

The BSB accepts however that the disciplinary proceedings brought before the Tribunal do fall within the scope of Article 6. The approach to be taken to determining the “ambit” of a Convention right for the purposes of Article 14 was considered in R (Clift) v Home Secretary [2007] 1 AC 484, a case concerned with Articles 5 and 14, where Lord Bingham cited at [12] the following passage from Stec v United Kingdom (2005) 41 EWHRR SE 295 as a summary of the well-established jurisprudence:

“38.

The court recalls that article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions (see, amongst many authorities, Sahin v Germany (2001) 36 EHRR 765 , para 85). The application of article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall ‘within the ambit’ of one or more of the Convention articles (see, among many other authorities, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 , para 71; Schmidt (Karlheinz) v Germany (1994) 18 EHRR 513 , para 22; and Petrovic v Austria (1998) 33 EHRR 307 , para 22).”

Lord Bingham explained at [13] that:

“Plainly, expressions such as ‘ambit’, ‘scope’ and ‘linked’ used in the Strasbourg cases are not precise and exact in their meaning. They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M [v Secretary of State for Work and Pensions [2006] 2 AC 91] at para 14, for a value judgment. The court is required to consider, in respect of the Convention right relied on, what value that substantive right exists to protect.”

At [14] Lord Bingham identified the core value which Article 5 exists to protect as the fundamental right to liberty and personal security. Ms Padfield submits that the core value protected by Article 6 is the right to a fair trial, a fair determination of rights, obligations and criminal charges, and that its ambit does not extend to decisions on whether a person should or should not be prosecuted. Put another way, and not in Counsel’s words, the submission is that the value protected by Article 6 is due process and not equal treatment in the determination of rights and obligations.

I find this an unattractive submission which, if right, would seem to lead to some unfortunate conclusions. On this view a policy of granting BME barristers less time to prepare their defence than other groups would, at least in the more serious disciplinary cases which engage Article 6, involve a breach of Article 14 whereas a deliberate policy of “prosecuting” predominantly BME barristers in such cases would involve no breach, provided all were treated alike procedurally. I am disinclined to accept such an argument. There is much to be said for the view that the fair and impartial application of laws and rules to those in relevantly similar situations is an integral part of the notion of procedural fairness which Article 6 exists to safeguard. This however is a point of law of some considerable importance the argument on which has not been very fully developed on this appeal. For that reason, I confine myself to holding that the appellant’s contention that the BSB’s conduct in prosecuting her before the Tribunal falls within the ambit of Article 14 is not fanciful.

For these reasons, I have concluded that the particulars of claim in their unamended and draft amended form 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. To that extent the Master’s decision was in my judgment wrong.

However, I reject Mr Southey’s submission that the particulars of claim state further and broader claims which are adequately pleaded and have a real prospect of success and therefore ought to have survived the hearing before the Master.

Mr Southey’s first point is that the BSB and the Master erred procedurally in the way they dealt with the limitation point. Since a limitation period bars the remedy not the right it cannot be said that a claim brought outside the limitation period discloses no reasonable basis for a claim; the only correct approach is to plead limitation and apply to strike the claim out as frivolous, vexatious and an abuse of process, submitted Mr Southey. He relied on Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398, CA, 404D.

That case was however decided long before the introduction of the CPR, which made it possible for a defendant to apply for summary judgment. In 1983 an application to dismiss for abuse was the only procedural mechanism available to bring the merits of a limitation point before the court for summary determination. The position is different under the CPR, which allow a summary judgment application by a defendant. I can see nothing procedurally inappropriate in a defendant using the Part 24 mechanism for the dismissal of a claim on limitation grounds in an appropriate case. It was plain enough that this is what the BSB was seeking to do in this case, and the Master was in my judgment entitled to proceed as he did. I note that Ronex does not appear in the notes to the current White Book.

Mr Southey’s second point was, as indicated above, that “aspects” of the appellant’s claim were brought within the one year time limit set by s 7 of the HRA. He referred in this connection to the conclusion of the appeal before the Visitors on 17 August 2012 and to the dismissal of the Mushtaq and Cleggs complaints on 12 and 24 September 2012. From that starting point he sought to argue that other aspects of the claims, which were not in time, should have been allowed to proceed by the application of the power to grant an extension of time where equitable. In support of this argument he referred to some obiter dicta in Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734.

In Somerville, the complaint was of unlawful segregation within a prison. An issue arose as to whether the claims were barred under s 7 HRA. The claim failed on its merits but at [81] Lord Scott, noting that an “act” for the purposes of s 7 “includes a failure to act” considered that the segregation arose from a failure by the governor to exercise his power to cancel the segregation so that the “act complained of” took place from day to day. In that event he considered that if some segregation occurred within the year before the proceedings were started there would be a clear case for the court to extend the limitation period to allow the action to cover the whole segregation period. Lord Mance at [197] contemplated a similar approach.

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 s 7 expired in May 2012.

Mr Southey submits that even if his argument that “aspects” of the claim were in time is wrong the Master ought not to have required the appellant to apply for an equitable extension of time but should have considered of his own motion whether to grant one. He submits that such an extension should have been granted as it is “obvious that it was reasonable for the appellant to wait until disciplinary proceedings had been concluded before commencing a claim” under the HRA. That is said to be so because the outcome would have been relevant to relief. By the conclusion of the proceedings Mr Southey means the decision on the appeal to the Visitors, which was some 15 months after the first instance decision.

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.

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.

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.

For the reasons given above whilst I find, in disagreement with the Master, that the appellant did have one adequately pleaded human rights claim which was not fanciful, I am otherwise in agreement with the Master. That one claim is barred by limitation. There was no other adequately pleaded claim with a real prospect of success. I therefore dismiss the appeal.