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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: http://www.bailii.org/ew/cases/EWCA/Civ/2016/775.html Cite as: [2016] EWCA Civ 775, [2016] WLR(D) 421, [2016] 1 WLR 4085, [2016] WLR 4085 |
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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:
"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 ethnic Barristers. Black and ethnic Barristers are more likely to have a complaint referred for disciplinary action, are more likely to be convicted, and are more likely to have those convictions upheld. The Claimant avers that the fact that every element of the Defendant's disciplinary system impacts on black and ethnic Barristers more adversely indicated that there is a systemic bias against black and ethnic Barristers.
24. There is no objective or reasonable reason why given that black and ethnic Barrister make up such a small proportion of the Bar, they are more likely to be investigated following a complaint, more likely to have a complaint referred for prosecution, more likely to be prosecuted, more likely to be convicted and more likely to have those convictions upheld. There is no objectively reason why the Defendant ignored its own rules and prosecuted the Claimant.
…
29. The Defendant discriminated against the Claimant indirectly in breach of Section 53(2), 53(3) of the Equality Act 2010, Section 1 of the Race Relations Act 1976 and Article 14 of the Convention. The Defendant's rules are applied in such a way that although the Code of Conduct of the Bar applies to all Barrister's in England and Wales it particularly disadvantages ethnic Barristers who make up only a small proportion of the membership of the Bar. The Claimant again repeats paragraph 20 of these Particulars."
"[The Claimant] alleges… That the Defendant's conduct infringed her rights under the Human Rights Act. However:
1) The allegation is on its face time-barred, and there is no application to extend the time-limit; and
2) So far as the allegation rests on the allegations supporting misfeasance, it must fail.
3) The allegation rests also on a general assertion that the Defendant is habitually or systematically unfair to black barristers, an allegation which is demurrable.
4) The evidence is quite to the contrary."
"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."
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 time bar under the HRA is a defence to the remedy which must be pleaded by a defendant so also a claimant who seeks an equitable extension must expressly claim it and show good grounds in support. This is the well-established position when it comes to other provisions permitting extensions or disapplications of limitation periods, such as ss 32A and 33 of the Limitation Act 1980.
82. In the present case the limitation point was pleaded in the Defence but no Reply was served. Nor did the appellant at any point assert in evidence or in her written submissions a claim to an extension or any grounds on which it would be equitable to allow her claim to proceed. The BSB's skeleton argument, in its section on limitation, expressly referred to the jurisdiction to extend time on equitable grounds, yet no application was made. I therefore do not consider that the Master was at fault in the approach he adopted.
83. I do not consider that the grounds now advanced for an extension are persuasive in any event. There is no evidence that the appellant in fact decided to wait until after her appeal to bring proceedings. I would not accept, either, that such a decision was reasonable. The purposes of a time bar include bringing certainty and the avoidance of stale claims. A party who wishes to preserve a right from the operation of a time bar in such a situation should ensure that the potential defendant is aware of the claim, and seek a standstill agreement with the potential defendant or failing that issue proceedings and, if appropriate, seek a stay."
"…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".
The respondent's notice
"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:
Lady Justice Sharp: