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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O'Connor v Bar Standards Board [2016] EWCA Civ 775 (25 July 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/775.html Cite as: [2016] 1 WLR 4085, [2016] EWCA Civ 775, [2016] WLR 4085, [2016] WLR(D) 421 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE WARBY
HQ13X00782
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ELIAS
and
LADY JUSTICE SHARP
____________________
| DAPHNE EVADNEY PORTIA O'CONNOR |
Appellant |
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| - and - |
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BAR STANDARDS BOARD | Respondent |
____________________
Alison Padfield (instructed by Berrymans Lace Mawer LLP) for the Respondent
Hearing date: 13/07/2016
____________________
Crown Copyright ©
Master of the Rolls:
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").
"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……"
"(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. "
"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 ethnicBarristers.
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 ethnicBarrister
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 theBar
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."
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.
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.
"[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 blackbarristers,
an allegation which is demurrable.
4) The evidence is quite to the contrary."
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."
The issues arising on this appeal
The main limitation issue: section 7(5)(a)
"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."
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.
barred
unless the period of one year is extended under section 7(5)(b).
Extension of the period under section 7(5)(b)
"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 timebar
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 timebar
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."
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".
bars
the remedy and not the right, there was no need for the appellant to apply for an extension of time in any event.
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.
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 respondent's notice
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).
"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."
Conclusion
Lord Justice Elias:
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.
Lady Justice Sharp: