19 January 2018

Appeal and Judicial Review Judgments

This section contains selected judgments from appeals against decisions of Disciplinary Tribunals since January 2012. The appeal route has changed over time, so some of the earlier decisions are from the Visitors to the Inns of Court while the more recent ones are judgments of the High Court. There are also several Court of Appeal decisions.

Decisions may also be challenged by Judicial Review, where the court will consider the lawfulness of the decision and whether the right procedures have been followed, instead of looking at the outcome of the processes.

This page also includes judicial review judgments handed down by the High Court or Court of Appeal.

You can download the full judgments by clicking on the case titles:

 

Bar Standards Board v Crawford - 4 December 2017

Unduly lenient sanction

BSB appeal against sanction. Grounds: Sanction inconsistent with established legal principles; the Tribunal erred in the exercise of discretion; and the sanction was, in all the circumstances, unduly lenient.

Appeal dismissed. Costs awarded against BSB.

 

McCarthy v BSB - 2 May 2017

Bias - undue influence - misdirection on sentence 

Appeal against finding and sentence of a case remitted following an appeal to the Court of Appeal. Grounds: 

(1) Bias - both actual and apparent alleged against the Chair of the Disciplinary Tribunal in 2016;

(2)  Undue influence - on the Panel by a Press release from the BSB, allegedly rendering the Panel unable to make a fair decision; and  

(3) Misdirection on sentence - in not being provided by either side with previous disciplinary findings in other cases of dishonesty which did not lead to disbarment; in not being referred to relevant case law (SRA v Sharma [2010] EWHC 2022); and in not taking into account length of time spent on suspension due to BSB conduct.

Appeal dismissed against both finding and sentence.

 

Howd v BSB  - 14 February 2017

Seriousness of conduct - honesty and integrity - medical evidence

Appeal against finding, BSB cross-appeal against sentence (grounds: too lenient).

Grounds: Conduct did not amount to professional misconduct in light of medical evidence. 

Appeal allowed, cross-appeal dismissed. Costs awarded against BSB.

 

Smith v BSB  - 3 November 2016  

Competence - failure to call witness - hearsay evidence

Appeal against finding.

Grounds: Smith did not receive a fair hearing due to BSB's failure to call a key witness and to obtain an independent witness statement, and that the finding was factually erroneous.

Appeal allowed, costs awarded against BSB.

 

Rehman v The Bar Standards Board (2) - 29 July 2016

Alleged Frauds and Conspiracies - Extended Civil Restraint Order

Appeal against findings of two disciplinary tribunals.

Grounds: various wide-ranging systemic failures, frauds and conspiracies, sought recusal.

Appeals dismissed. The Court made a two year extended civil restraint order against Mr Rehman.

 

O'Connor v Bar Standards Board (3) - 25 July 2016 

Human Rights Act - discrimination -continuing act - limitation

Appeal of the 2014 decision (see below) on the question of whether O'Connor's claim in discrimination (alleging breach of Article 14 of the European Convention on Human Rights) was time-barred.

Grounds: that the time limit ran as a continuing act from the commencement of disciplinary proceedings until the appeal against these was upheld.

Appeal dismissed.

 

BSB v Disciplinary Tribunal of the Council of the Inns of Court and Sivanandan - 24 May 2016

Costs in professional disciplinary proceedings - jurisdiction of Administrative Court on Judicial Review.

Appeal of BSB's judicial review of tribunal cost assessor's decision, which had succeeded on the grounds of the cost assessor's failure to have exercised independent discretion.

Grounds: no Divisional Court jurisdiction to fix the costs hourly rate, error of law.

Appeal dismissed, except on the issue of the Divisional Court's jurisdiction to fix the hourly rate, which was for the tribunal to fix.

 

Mehey v BSB - 10 July 2015

Application to adjourn on health grounds - proceeding in absence

Appeals against three findings and sentences.

As well as pursuing various grounds of appeal, Mr Mehey applied for an adjournment of his appeal on health grounds, which application was refused.

Appeals dismissed except for one appeal against sentence, which was allowed. 

 

R (on the application of Prescott) v General Council of the Bar - 7 July 2015

Bar Professional Training Course - Re-sits - Competency - Discretion - Proportionality - European Convention on Human Rights - Reasons

Challenge to BSB's refusal to permit Prescott to retake a discrete part of the Bar Professional Training Course.

Grounds: error of law, failure to exercise discretion, breach of duty not to act disproportionately, breach of article 8 European Convention of Human Rights, failure to provide reasons.

Review dismissed.

 

McCarthy v Visitors to the Inns of Court and BSB (2) - 20 January 2015

Public access - Rule 6 letters - Procedural unfairness - disclosure of evidence

Appeal of an appeal of a judicial review of a decision.

Grounds: BSB unfairness and breach of rules in failing to disclose a principal witness statement. 

Appeal allowed, decision quashed and matter remitted for rehearing.

 

O'Connor v BSB (2) - 18 December 2014 

Human Rights Act - discrimination - right to a fair trial 

Appeal against an order striking out the appellant's claims.

Appellant was seeking damages under the Human Rights Act 1998 (for alleged violations of her human rights under Articles 6 and 14 of the European Convention on Human Rights) following her 2012 acquittal on appeal (see below) and the dismissal of two other professional misconduct charges.

Appeal partially allowed, claim for indirect discrimination reinstated but then barred on limitation grounds.

 

Mehey, Hayes, Russell v Visitors to the Inns of Court v BSB - 16 December 2014

Tribunal composition - members not properly appointed from pool

Applications for permission to appeal the Divisional Court's refusal of applications for Judicial Review.

Grounds: that the disciplinary proceedings were invalid due to the disqualification of members sitting on the tribunal panel.

Permission refused.

 

Norton v BSB - 31 July 2014

Proceeding in absence - application for adjournment

Appeal against finding.

Grounds: that the tribunal was wrong to proceed in Norton's absence and to refuse his application for an adjournment, when it had not properly considered the relevant regulation nor the case ofR v (Anthony) Jones2002 UKHL.

Appeal allowed, remitted to a fresh tribunal. 

 

Conlon, Gordon & Williams v BSB - 4 July 2014

Visitors composition - Tribunal composition - pupillage applications - delegation of responsibility - costs -Baxendale-Walker

Three joined appeals against findings.

Grounds: composition of Visitors, composition of tribunal, reasonable steps in delegating responsibilities to head of pupillage.

W & G - appeal allowed, W awarded costs against BSB. C - appeal dismissed.  

 

BSB v O'Riordan [2014] - 28 February 2014

Dishonesty - Appeal against sentence by the BSB - fresh evidence of dishonest mitigation

BSB appeal against sentence of three year sentence.

Grounds: new evidence that O'Riorgan had been dishonest in his mitigation put forward to the tribunal. 

Appeal allowed, disbarment substituted.

 

Craven v BSB- 30 January 2014

Appeal against finding - bringing bar into disrepute - sending offensive emails - public or private - Articles 8 and 10 ECHR

Appeal against finding.

Grounds: that the email was private and not likely to bring the profession into disrepute and that the finding interfered with Craven's right to a private life and freedom of expression under Articles 8 and 10 ECHR.

Appeal dismissed.

 

Evans v BSB - 16 December 2013

Professional embarrassment - "knowingly" accepted instructions -mens rea- seriousness - remorse

Appeal against finding and sentence.

Grounds: barristers are required to have actual knowledge that a firm of solicitors had been named in a Withdrawal of Credit Direction to breach this part of the Code, and that appellant had demonstrated remorse.

Appeal against decision dismissed, appeal against sentence upheld and reprimand substituted.

 

Walker v BSB - 19 September 2013

Seriousness-professional misconduct- cross-examination

Appeal against finding.

Grounds: conduct not so serious to characterise as professional misconduct.

Appeal allowed.    

 

Rehman v BSB - 19 July 2013

Discreditable conduct - compliance with County Court judgment

Appeal against finding.

Alleged that failing to comply with a County Court judgment was not discreditable to a barrister and that, in any event, he had complied.

Appeal dismissed.

 

Ahmed v BSB - 14 June 2013

Professional misconduct - imprisoned appellant - disbarment - ultra vires - costs - undue hardship - mitigation - guilty plea

Appeal against finding and costs award.

Grounds: sentence beyond Tribunal's powers, costs order would cause undue hardship, guilty plea not taken into account, inaccurate characterisation of offending by the Tribunal.

Appeal dismissed.

 

Russell v BSB - 23 May 2013 (Russell 2)

Refusal of tribunal to make debarring order - permitting respondent to reopen its case - composition of tribunals - apparent bias  - lack of independence and impartiality

Appeal against finding.

Grounds: erroneous decision to refuse making a debarring order to prevent the BSB's relying upon the evidence of a witness and to permit the BSB to reopen its case, also challenged the appointment of the tribunal members and alleged that the tribunal lay members were tainted by apparent bias and/or were not independent.

Appeal dismissed.    

 

Ashiq v BSB - 27 March 2013

Conduct likely to diminish public confidence or bring profession into disrepute - failure to pay debtors - duty to respond to BSB - refusal to provide bank documents to BSB - adverse inference - burden of proof

Appeal against finding and sentence.

Alleged error of law in reversing burden of proof by making adverse inferences in relation to appellant's refusal to provide relevant evidence, namely redacted bank statements.

Appeal dismissed.

 

Quinn v BSB   - 25 February 2013

Dishonest or discreditable conduct - prejudicial to administration of justice - reasons - costs -Baxendale-Walker

Appeal against finding and sentence.

Alleged Tribunal had given inadequate reasons in its decision, particularly with regards significant documentary evidence.Baxendale-Walkercosts pursued.

Appeal allowed, costs awarded against BSB.

 

Panesar v BSB - 14 December 2012 

Failure to comply with Tribunal order -constitution of tribunals- de facto authority

Appeal against finding and sentence.

Grounds: that a tribunal Panel member's membership was time-expired and that they were disqualified by virtue of being a non-practising barrister.

Appeal dismissed.

 

O'Connor v BSB (1) - 17 August 2012

Conducting litigation - signing statement of truth - CPR - sending correspondence

Appeal against finding.

Grounds: signing a statement of truth and sending documents to the other side's solicitors did not amounting to "conduct of litigation".

Appeal allowed.

 

Russell v BSB   (Russell 1) - 12 July 2012

Constitution of tribunals -nomination of tribunal member - de facto authority

Appeal against finding.

Grounds: flawed appointment of one tribunal member.  

Appeal dismissed.

 

McCarthy v BSB (1) - 24/25 January 2012 

Direct Access - forged client care letters - natural justice - withholding evidence

Appeal against finding and sentence.

Alleged serious procedural error in BSB withholding statement, wrong burden of proof applied, failure to make necessary findings and/or give adequate reasons.

Appeal dismissed.

 

Leathley v BSB - 20 January 2012

Discreditable conduct - apparent bias of lay tribunal members - challenge to appointment of Judicial Visitor- training/guidance to panel members by regulator does not give rise toan appearance of bias  

Appeal against finding.

Grounds: bias of lay members of tribunal as their fees and expenses came from the BSB, guidance pack for tribunal prepared by BSB contained 'subliminal messages', conduct proved at tribunal was not conduct for which he should be held responsible as he was not acting as a barrister, recusal of Judicial Visitor sought.

Appeal dismissed.