R (on the application of Mehey and others) v Visitors to the Inns of Court [2014] EWCA Civ 1630

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R (on the application of Mehey and others) v Visitors to the Inns of Court [2014] EWCA Civ 1630. Three barristers brought judicial review proceedings challenging disciplinary proceedings brought against them on the grounds that the proceedings were invalid as some of the individuals who had heard the proceedings were in fact disqualified from sitting on the panel. The barristers had been unsuccessful at first instance and at this hearing, sought permission to appeal. Each barrister also adduced a range of individual grounds as a basis for their leave to appeal. The Bar Standards Board ["BSB"] was an interested party in the proceedings and sought permission to appeal in respect of costs. The Court of Appeal held that the Divisional Court was correct to conclude that the individuals in question were entitled to sit on the disciplinary panel and that therefore no permission to appeal was awarded. All other grounds cited for permission to appeal were also rejected.

Background

The case considered the regulation of barristers. In 1986, the power to discipline barristers was transferred to the Council of the Inns of Court ["CoIC"]. The powers of the CoIC were set out in various Disciplinary Tribunal Regulations. The 2009 Regulations set out the composition of the Disciplinary Tribunals which, considered allegations of misconduct and sentencing. In addition, all High Court judges are 'Visitors' to the Inns of Court and are therefore empowered to hear appeals from barristers aggrieved by findings of misconduct and sanction. The Hearings before Visitors Rules 2010 sets out the composition of such panels. Under the Legal Services Act 2007 the BSB was established as the body which brought cases of alleged misconduct before the Disciplinary Tribunals.

In this case, the three barristers seeking leave to appeal had all been found guilty of misconduct. Mr Mehey had been disbarred following charges relating to an application for judicial review which, he knew was not properly arguable. Miss Hayes had been charged with failing to complete the required hours of continuing professional development and with failing to pay a fine imposed on her. Miss Russell had been charged for knowingly making an untrue statement to a Law Society investigator. All of the above charges were found proved.

Mr Mehey, Miss Hayes and Miss Russell appealed against the finding of misconduct and the subsequent sanctions given. All the appeals were dismissed and the Appellants commenced proceedings for judicial review. Mr Mehey and Miss Hayes advanced a number of individual grounds but both advanced the ground that certain persons who had sat on the Disciplinary Tribunal as 'Visitors' were not qualified to do so. Miss Russell also commenced judicial review on a variety of grounds. The relevant one for this hearing was that the Disciplinary Tribunal, before which she appeared, was unlawfully constituted. The BSB applied for costs which were refused. Permission was refused for all applications to proceed with judicial review. The four applications for permission to appeal were referred to the Court of Appeal.

This case

According to Jackson LJ, the "main issue of principle" was whether individuals who were not properly appointed and current members of the CoIC pool were entitled to sit on Disciplinary Tribunals as 'Visitors'. In Re P (a barrister) [2005] 1 WLR 3019, a Visitor who heard P's appeal against misconduct was also a member of the Bar's Professional Conduct and Complaints Committee, the committee responsible for prosecuting allegations of misconduct. The Visitor was obliged to recuse herself in order to comply with applicable common law principles and Article 6 ECHR. Following this, the CoIC took measures to ensure that only eligible persons would be appointed to Disciplinary Tribunals or panels of Visitors. In particular, they set up the Tribunals Appointments Body ["TAB"] who would determine the membership of CoIC and drew up the Terms of Reference ["TOR"] under which the TAB would operate.

However, the TAB failed to comply with the TOR. In particular, the TOR set out how long members could remain in the CoIC pool. The TAB did not review the lists of members as required, meaning that many members remained in the pool after they should have done and continued to sit on Disciplinary Tribunals as Visitors. In addition, one member of TAB was also a member of the BSB's Professional Conduct Committee. These problems were uncovered in 2011 by a Review Group.

It emerged that two members of Mr Mehey's initial Disciplinary Tribunal were time-expired members of the CoIC, as was one of the Visitors who had heard his appeal. At least one of the Visitors who heard Miss Hayes' appeal was time-expired. One member of Miss Russell's initial Disciplinary Tribunal was time-expired.

Judgement

Handed down by Jackson LJ, Ryder LJ and Sharp LJ

The Appellant (Miss Russell) submitted that the court should read the TOR together with a memorandum of understanding ["MOU"] signed by the President of CoIC and the chairman of the BSB in 2010, as well as with the various rules of the CoIC's constitution. The Appellant argued that the documents showed that the intention was clearly that only people from the CoIC pool were to be appointed to hear disciplinary cases or appeals. Jackson LJ rejected this argument, commenting "they do not impose any express obligation to that effect". In fact, the documents merely set out procedures for ensuring that people in the CoIC pool would be suitable to serve on cases or appeals if they were so nominated. Jackson LJ stated that "if it had been intended to restrict appointments to members of the CoIC pool, both the Disciplinary Tribunals Regulations and the Hearings before Visitors Rules would have been amended at the time to say so. But this did not happen". Instead, Jackson LJ made it clear that there was no "absolute ban" on appointing people from outside the CoIC pool to panels. In particular, he explained that sometimes very specialist barristers may also be required who are not currently members of the pool. He rejected any suggestion that external candidates would not be independent and stated that Article 6 ECHR would be complied with.

The Appellant (Miss Russell) secondly submitted that all of these documents formed part of the Bar's "regulatory arrangements" as defined in section 21 of the Legal Services Act 2007. Under section 176, barristers are required to comply with the Bar's regulatory arrangements. As such, time-expired barristers would not be complying with these arrangements and so could not serve as members of Disciplinary Tribunals or as Visitors. This was rejected by Jackson LJ on the basis of his previous conclusion: the MOU and TOR did not prevent barristers from outside the CoIC pool sitting on disciplinary proceedings. As such, there was no breach of section 176.

Jackson LJ also considered whether, as the Divisional Court had held, the Tribunal members or Visitors who were allegedly not entitled to sit nevertheless had authority to act as de facto judges. The Appellant (Miss Russell) submitted that the common law doctrine of de facto judges could not stand based on developments in European and international law. Jackson LJ acknowledged the Appellant's "formidable arguments" and that, if the case turned on this issue, he would be minded to give permission to appeal. However, he concluded that the case did not turn upon this issue. He commented that further research on this area would help, asking for an international perspective of how other jurisdictions dealt with this issue.

The Appellant (Miss Russell) had also submitted that it was "quite wrong" that there was one member of TAB who was also a member of the BSB's Professional Conduct Committee. Jackson LJ acknowledged that this was "inappropriate" but, in itself, could not "vitiate any of the disciplinary proceedings with which we are concerned". He explained that this member did not themselves sit on any of the Tribunals or as a Visitor relevant to these proceedings and that the other members of CoIC would not be biased because of this member's dual membership.

Jackson LJ commented that, as well as the public interest concerning the rights and protection of barristers, there was a high public interest in protecting parties to litigation against misconduct by barristers. Therefore, the court would "be slow to strike down any regulatory system which protects that public interest" and would only do so if illegality had been demonstrated, which was not the case here.

Jackson LJ then turned to the individual grounds for claiming judicial review promulgated separately by the barristers. These included the health conditions of one of the barristers and an objection that one member of a Tribunal was not objective because he was also an examiner for the Bar Professional Training Course. All of these grounds were rejected.

Jackson LJ finally turned to the application by the BSB for permission to appeal against the Divisional Court's refusal to make a costs order in the BSB's favour. Jackson agreed with the previous judgement of Moses LJ which was critical of the situation created by the CoIC and the BSB, based on their conflicting rules and administrative errors. He agreed that the BSB and the CoIC should be setting the standards as to how institutions regulate themselves, rather than "lagging behind". Citing CPR 44.2, that the court has a wide discretion as to costs and that, as the Divisional Court had decided no order as to costs was to be made, Jackson LJ stated that the Court of Appeal would not interfere with that discretion.

Ryder LJ and Sharp LJ agreed.

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