22 May 2017

Annexe M - Hearings before the Visitors Rules

From 6 January 2014 the Bar should refer to a  new Handbook for rules and guidance on their conduct as barristers.

Updated on 1st November 2011

Amended on 25th April 2013

 

 

1.  Citation and commencement                               

2.  Interpretation                                                      

3.  Service of documents                                          

4.  Notice of Intention to Appeal                                

5.  Directions Judge                                                 

6.  No appeal from Directions Judge                           

7.  Service of Petition                                                  

8.  Fees                                                                 

9.  Petition of Appeal                                                 

10. Service of other documents                                  

11. Answer                                                            

12. Appointment of panel to hear appeal                    

13. Date of Hearing                                                 

14. Procedure at hearing                                          

15. Findings of the Visitors                                         

16. Barristers' Exclusion from providing representation funded by the Legal   Services Commission as part of the Community Legal Service  or Criminal Defence Service.                          

17. Costs                                                                 

18. Transition                                                            

19. Revocation                                                           

                                                                    

We, the Judges of Her Majesty's High Court of Justice, in the exercise of our powers as Visitors to the Inns of Court, hereby make the following rules for the purpose of appeals to the Visitors from Disciplinary Tribunals of the Council of the Inns of Court and certain other appeals to the Visitors:

 

Citation and Commencement

1. These rules may be cited as the Hearings before the Visitors Rules 2010 and shall come into effect on 1st September 2010.

 

Interpretation

2. (1) The Interpretation Act 1978 shall apply in relation to the interpretation of these Rules as it applies to the interpretation of an Act of Parliament.

(2) In these Rules, unless the context otherwise requires

"answer" means an answer served pursuant to rule 11;

"appellant" means an appellant wishing to appeal to the Visitors against a relevant decision;

"BSB" means the Bar Standards Board;

"defendant" means the barrister against whom an order of a Disciplinary Tribunal was made;

a Judge of the Court of Appeal includes a person who has been a Judge of the Court of Appeal provided that he remains permitted by virtue of Section 9 of the Senior Courts Act 1981 to be requested to act as a Judge of the Court of Appeal;[1]

a Judge of the High Court includes a person who has been a Judge of the High Court provided that he remainspermitted by virtue of Section 9 of the Senior Courts Act 1981 to be requested to act as a Judge of the High Court;[2]

"Directions Judge" means a Judge nominated pursuant to rule 5(1);

"directions function" means any of the functions and powers conferred on aDirections Judge by rule 5;

"petition" means the petition of appeal served pursuant to rule 7;

 "relevant decision" means

- a decision of a Disciplinary Tribunal; or

- a decision, on review, by the BSB under Part X of the Bar TrainingRegulations (where the Bar Training Regulations provide for an appeal to theVisitors againstsuch a decision), herein a "Qualification Decision";

"respondent" means the person with an interest in upholding a relevant decision,being:

- in the case of an appeal by the BSB against a decision of a DisciplinaryTribunal, the defendant;

- in all other cases, the BSB;

"Disciplinary Tribunal" means a Disciplinary Tribunal of the Council of the Innsof Court; and

"the Visitors" means the panel nominated to hear the appeal pursuant to rule 12 or,in the case of an appeal within rule 12(3)(c) or 12(5), the single judge nominated tohear the appeal.

(3) Where a Disciplinary Tribunal has made a finding and imposed sentence in two separate decisions, whether in accordance with regulation 19(5) of the Disciplinary Tribunal Regulations or otherwise, the date of the relevant decision shall be deemed to be the date of the later decision.

(4)  Where the relevant decision is a decision, on review, under Part X of the Bar Training Regulations, the date of the relevant decision shall be deemed to be the date upon which notice of the decision was sent by the BSB to the person affected by the decision.

(5) Any term defined in the Code of Conduct shall carry the same meaning as it does in Part X of the Code of Conduct.

(6) The powers conferred upon the Lord Chief Justice by these Rules can be exercised on his behalf by a Judge of the Court of Appeal or a Judge of the High Court who is selected by him to act in this capacity. This delegation does not prevent the Lord Chief Justice from exercising these powers.  Nor does it prevent the Judge designated to exercise these functions on behalf of the Lord Chief Justice from hearing an appeal.[3]

(7) In these Rules a period of time expressed as a number of days shall be computed as clear days.

 

Service of Documents

3. (1) Where pursuant to these Rules any document is to be served on any of the persons specified in the first column of Table 1 in the Schedule to these Rules, that document shall be served on that person by sending it to the person specified and the address specified in the second column of that table against the person to be served.

(2) Such documents shall be served

(a) by recorded delivery post, or

(b) by hand delivery, if a written confirmation of receipt is obtained, or

(c) (save where any fee is payable on the service of a document) by  fax or other electronic means in accordance with paragraph (4) below.

(3)  Where, in accordance with Table 1, the address for service on a respondent is his last known address, service by first class post shall constitute good service.

(4) Where a document is to be served by fax or other electronic means, the party who is to be served must previously have indicated in writing to the party serving:

(a) that the party to be served is willing to accept service by fax or other electronic means; and

(b) the fax number, e-mail address or other electronic identification to which it must be sent.

(5)  Documents shall be deemed to be served on the date set out in Table 2 in the Schedule to these Rules.

(6) For the purpose of this rule, a "written confirmation of receipt" means a receipt signed by or on behalf of the intended recipient.

 

Notice of Intention to Appeal

4. (1) Written notice of intention to appeal against the relevant decision must be served by the appellant on the Clerk to the Visitors within the period of 21 days beginning with the date of the relevant decision or within such further time as may be allowed by the Directions Judge.

(2) A copy of the notice of intention to appeal should also be served by the appellant on the respondent and (when the appeal is against a decision of a Disciplinary Tribunal) on the Council of the Inns of Court.

(3) When serving a notice of intention to appeal, an appellant (other than the BSB) shall give notice of a current address at which service is to be made on the appellant.

(4) An appellant (other than the BSB) must ensure that the Clerk to the Visitors is informed of any change to the appellant's address.

 

 Directions Judge

5. (1) The Lord Chief Justice shall nominate judges of the High Court or the Court of Appeal to exercise the functions conferred by this Rule.

(2) No person shall act as a Directions Judge in relation to any appeal if they were a member of any committee of the BSB at any time when the matter was being considered by that committee.

(3) A Directions Judge shall consider the course of any appeal and may at any time prior to the appointment of a panel to hear the appeal give such directions and take such steps as appear to him to be necessary or desirable for the purpose of securing the just, expeditious and economical disposal of the appeal.

(4) Any applications to be heard by a Directions Judge must be served on the Clerk to the Visitors.

(5) Any applications to the Directions Judge will be heard on paper and without an oral hearing, unless there is good reason for an oral hearing.

(6) The directions that may be given and the steps that may be taken by the Directions Judge may relate to (but shall not be limited to) the following matters-

(a)  the anticipated duration of the hearing (which shall not, absent good reason, exceed one day);

(b) the variation of any timetable specified in these Rules;

(c) further procedural steps that should be taken before the hearing;

(d) the failure by either party to comply with any timetable specified in these Rules or directed by him;

(e) the adjournment of the hearing; and

(f) where (in the case of an appeal against a decision of a Disciplinary Tribunal) the sentence of the original Disciplinary Tribunal has been pronounced, whether it should be stayed pending the outcome of the appeal.

(7) The Directions Judge may, on application made by the appellant (which must be served on the BSB at the time of making the application) and after giving the BSB the opportunity to respond to the application, vary or set aside an order made against the appellant under regulation 30(3) or (4) of the Disciplinary Tribunal Regulations on such terms and subject to such conditions (if any) as he considers appropriate.

(8) If, at any time, the Directions Judge concludes that a party has failed to comply with any obligation imposed by, or timetable specified in, these Rules or directed by him in exercise of his directions functions (as the case may be), he may also-

(a) make a final order for compliance by the party in default;

(b) direct that that party may not serve a petition or answer;

(c) dismiss or strike out the petition or answer of that party;

(d) order that any further step that appears to him to be necessary or desirable in order to provide for a fair and expeditious hearing of the matter be undertaken within a specified period;

(e) direct an expedited hearing where the party in default has been prohibited from serving an answer or the answer has been struck out.

 

No appeal from Directions Judge

6. There shall be no appeal against an order of the Directions Judge.

 

Service of Petition

7. (1) A written petition of appeal containing the information required by rule 9 below must be served by the appellant on the persons specified in paragraph (2) below within the period of 42 days beginning with the date of the relevant decision or within such further time as may be allowed by the Lord Chief Justice or the Directions Judge.

(2) The persons to be served are

(a) the Clerk to the Visitors; and

(b) the respondent;

(3) Service of the petition will be valid only if

(a) the petition is served on both persons identified in paragraph (2) above, and

(b) where the appellant is a defendant,

(i) the petition served on the Clerk to the Visitors is accompanied by any fee payable in accordance with rule 8(1) below, or by an application pursuant to rule 8(2), and

(ii) a copy of such fee or such application is served on the BSB. 

(4) If an application for an extension of the period of 42 days specified in paragraph (1) above is made, the Directions Judge may, if he sees fit, extend the period within which the petition must be served.

 

Fees

8. (1) Where an appeal is lodged with the Visitors by the defendant, the petition must (subject to the provisions of this rule) be accompanied by the sum of £250 payable to the BSB to defray expenses, such sum to be refunded in the discretion of the Visitors in the event of an appeal which is successful wholly or in part.

(2) Where payment of the sum required by paragraph (1) above would cause undue hardship to the appellant, the appellant may apply to the Directions Judge for an order reducing the amount payable.

(3) If the Directions Judge is satisfied that payment of the sum required by paragraph (1) above would cause undue hardship to the appellant, he shall:

(a) direct that some lesser (or nil) amount be paid; and

(b) (where applicable) direct by when such amount be paid.

 

Petition of Appeal

9. (1)  Where the appeal is against a decision of a Disciplinary Tribunal, the petition shall state whether the appeal is against the findings or sentence of the Disciplinary Tribunal, or both, and shall contain the following particulars-

(a) the charges;

(b) a summary of the facts on which the charges were based;

(c) the findings of the Disciplinary Tribunal;

(d) the sentence;

(e) any finding against which the appellant appeals (if any);

(f) the grounds for appeal, including for each matter appealed against the specific evidence on which the appellant will place reliance;

(g) the relief sought; and

(h) if the hearing is estimated to last longer than one day, an estimate of the time required for the hearing and the reasons for that estimation.

(2) In the case of an appeal against sentence the petition may also refer to

(a) any factors which it is contended make the sentence unduly severe (or lenient) in relation to the appellant's (or the defendant's) record; and

(b) sentences in other similar cases.

(3) Where the appeal is against a Qualification Decision, the petition shall contain the following particulars:

(a) the decision, on review, of the BSB against which the appeal is being made;

(b) a summary of the facts giving rise to that decision;

(c) the grounds for appeal; and

(d) the relief sought.

(4) Subject to rule 11(5), the appellant may not, without the permission of the Directions Judge, support the appeal on a ground not relied upon before the body which took the relevant decision.

 

 Service of other documents

10. (1) Subject to paragraph (2) below, the appellant against a decision of a Disciplinary Tribunal shall, at the same time as serving the petition, serve on the Clerk to the Visitors the number of copies specified in paragraph (4) below of the transcript of the proceedings before the Disciplinary Tribunal whose decision is being appealed.

(2) If any transcript to be served pursuant to paragraph (1) above is not available when the petition is served, the copies of that transcript shall be served on the Clerk to the Visitors as soon as practicable thereafter.

(3) Not less than 14 days before the date set for the hearing of an appeal

(a) a copy of every document intended to be produced at the hearing by any party shall be served by that party on every other party; and

(b) the number of copies of any such document specified in paragraph(4) below shall be served on the Clerk to the Visitors.

(4) The number of copies required to be served on the Clerk to the Visitors is

(a) if the appeal is of a type falling within rule 12(2) below, three copies; and

(b) in any other case, two copies.

 

Answer

11. (1) The respondent may (or, if so directed by the Directions Judge, shall) serve on the Clerk to the Visitors an answer to the petition within the period of 28 days starting with the date on which the petition is served or on which the transcript of the lower hearing is provided pursuant to rule 10(2) (whichever is the later) or such further time as may be allowed by the Directions Judge.

(2) Where an answer is served pursuant to paragraph (1) the respondent shall also serve forthwith a copy of that answer on the appellant.

(3) The answer shall follow the form of the petition and shall state which points in the petition are accepted and which are rejected.

(4) If, in the view of the person serving an answer, the hearing is likely to last longer than one day, the answer shall include an estimation of the time required for the hearing and the reasons for that estimation.

(5) The BSB may, in any answer it serves in respect of an appeal against a decision of a Disciplinary Tribunal, refer to any factors which it is contended make the sentence unduly lenient in relation to the appellant's record or to sentences in other cases.

 

Appointment of panel to hear appeal

12. (1) When a petition is served upon the Clerk to the Visitors (whether or not served in time), and after the period for service of any answer in accordance with rule 11(1) above has elapsed, the Lord Chief Justice shall nominate the persons who are to hear the appeal.

(2)  An appeal against a decision of a Disciplinary Tribunal presided over by a Judge of the High Court shall be heard by a panel comprised of-

(a)  a Judge of the Court of Appeal. 

(b) a Queen's Counsel; and

(c) a lay representative.

(3) Subject to paragraph (c) below, an appeal that is not of a type mentioned in paragraph (2) and is an appeal against a decision of a Disciplinary Tribunal shall be heard by a panel comprised of-

(a) a Judge of the High Court  or the Court of Appeal; [4]

(b) a barrister (who, where the defendant is a Queen's Counsel, shall himself be a Queen's Counsel); and

(c) a lay representative.

(4) An appeal that is not of a type mentioned in paragraph (2) and that is an appeal against a decision of a Disciplinary Tribunal may be heard by a Judge of the High Court or of the Court of Appeal sitting alone, if the Lord Chief Justice or the Directions Judge directs that the appeal relates solely to a point of law and is appropriate to be heard by a judge sitting alone.

(5) Any other appeal shall be heard by a Judge of the High Court or the Court of Appeal.

(6) No person shall be nominated to serve on a panel if they

(a) are a member of the Bar Council or of any of its committees; or

(b) are a member of the BSB or of any of its committees; or

(c) were a member of any committee of the BSB at any time when the matter was being considered by that committee.

 

Date of Hearing

13. (1) Unless the Directions Judge orders otherwise, the time allocated for the hearing of an appeal shall be one day.

(2) The appeal shall be listed by the Clerk to the Visitors for a hearing on the first available date after the expiry of a period of four weeks beginning with the date of service on the Clerk to the Visitors of the answer (or, where no answer is served, beginning with the last date for service of the answer under rule 11(1) above).

(3) A notice of the hearing of the appeal shall be served on the appellant and on the respondent at least 14 days before the date fixed for hearing of the appeal.

 

Procedure at hearing

14. (1) Subject to the following paragraphs of this Rule, the Visitors may give any directions with regard to the conduct of, and procedure at, a hearing of an appeal they consider appropriate.

(2) The Visitors may give such directions before or during the hearing.

(3)  The hearing shall be held in public unless either party has made an application that the hearing shall not be in public and the public interest does not require that it shall be held in public.

(4) A hearing may proceed in the absence of an appellant (or defendant), but not in the absence of a representative of the BSB.

(5) No witness may be called at the hearing without the consent of the Visitors.

(6) Evidence that was not before the Disciplinary Tribunal whose decision is being appealed may be given at the hearing only in exceptional circumstances and with the consent of the Visitors.

(7) Grounds of appeal based on issues that were not relied upon before the body making the relevant decision may be relied upon only with the permission of the Directions Judge in accordance with rule 9(4) above or, in exceptional circumstances, with the consent of the Visitors.

(8) An appellant or defendant (as the case may be) may only challenge before the Visitors a decision of a court of law on which the relevant decision was based in exceptional circumstances and with the consent of the Visitors.

(9) The proceedings of the Visitors shall continue to be valid notwithstanding that one or more of the members of the panel becomes unable to continue or becomes disqualified from continuing to act, if the remaining members of the panel include the judicial member of the paneland a lay representative.[5]

(10) A full record shall be made of the hearing.

(11) A transcription of the audio recording shall be provided upon request to either party to the hearing but at his own expense.

 

Findings of the Visitors

15. (1)  The findings of the Visitors shall be pronounced in a single decision.  The decision shall state whether it has been reached unanimously or by a majority.

(2)  The findings may be pronounced in public or in private but should normally be pronounced in public unless a party to the hearing requests otherwise and the public interest does not require that the findings be pronounced in public.

(3) In respect of an appeal against a decision of a Disciplinary Tribunal, the Visitors may

(a) dismiss the appeal;

(b) allow an appeal in whole or in part;

(c) confirm or vary an order of the Disciplinary Tribunal whose decision is being appealed;

(d) order a re-hearing on such terms as they may deem appropriate in the circumstances;

(e) in the case of an appeal brought by the BSB against a decision of a Disciplinary Tribunal, issue a declaration, but only where this will have no consequences whatsoever for the defendant.

(4)  In respect of an appeal against a Qualification Decision, the Visitors may:

(a) allow an appeal in whole or in part;

(b) confirm or vary the decision of the BSB;

(c) order the BSB to reconsider its decision on such terms as the panel appointed to hear the panel may determine to be appropriate in the circumstances.

(5) The Visitors shall give reasons for their decision.  These reasons may be given orally or in writing.

(6) The Visitors may order, in the event of an appeal against a decision of a Disciplinary Tribunal by the defendant which is successful wholly or in part, a refund to the appellant of any sum paid to the BSB in accordance with rule 8 above.

(7) There is no appeal against a decision of the Visitors.

 

Barrister's Exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service

16. (1) These Rules shall apply in relation to an appeal against an order of the Disciplinary Tribunal that a barrister's exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service pursuant to section 42(3) of the Administration of Justice Act 1985 (as substituted by Section 33 of the Legal Aid Act 1988 and amended by section 24, Schedule 4, paragraphs 32 and 35 of the Access to Justice Act 1999) is not to be terminated, subject to the following modifications set out in the following paragraphs of this rule.

(2) The petition shall contain the following particulars

(a) the date of the order of the Disciplinary Tribunal that excluded the appellant from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service;

(b) the charges in respect of which that order was made;

(c) a summary of the facts on which those charges were based;

(d) the findings of the Disciplinary Tribunal;

(e) the findings against which the appeal is brought; and

(f) the grounds for appeal.

(3) An order of the Disciplinary Tribunal to terminate a barrister's exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service only from a date that is subsequent to that order shall, for the purposes of any appeal, be treated as an order that the barrister's exclusion from such work is not to be terminated.

 

Costs

17. (1)  The Visitors may make such order for costs of the appeal as they consider appropriate.

(2) Any order for costs made may include an order for payment of the cost of any transcript required for the purposes of the appeal.

 

Transition

18. Where any appeal has been commenced before 1 September 2010 but has not been completed by that date, these rules shall apply to that appeal from that date but any steps that have been taken in relation to that appeal pursuant to any provision of the Hearings Before the Visitors Rules 2005 shall be regarded as having been taken pursuant to the equivalent provisions of these Rules.

 

Revocation

19. The Hearings before the Visitors Rules 2005 are hereby revoked.

 

On behalf of the Judges of Her Majesty's

High Court of Justice 

Lord Chief Justice

President of the Queen's Bench Division

President of the Family Division

The Chancellor of the High Court

 

 

SCHEDULE Rule 3(1)

 

Table 1: Addressee and Place for Service of Documents

 

Person to be served

Addressee and place of service

 

The Clerk to the Visitors

Addressed to the Clerk to the Visitors at the Royal Courts of Justice, Strand, London WC2A 2LL.

The Council of the Inns of Court

Addressed to the President of the Council of the Inns of Court, 9 Gray's Inn Square, London, WC1R 5JF

The BSB

In respect of a decision of a Disciplinary Tribunal: Addressed to the Secretary to the Complaints Committee of the BSB at 289-293 High Holborn, London WC1V 7HZ.

In respect of a Qualification Decision: Addressed to the Secretary to the Qualifications Committee of the BSB at 289-293 High Holborn, London WC1V 7HZ.

An appellant other than the BSB

Addressed to him at the address specified by him pursuant to rule 4(3). 

A defendant

Addressed to him at -

(a) the address notified by him pursuant to Paragraphs 202(d) or 206.1(a)(i) of the Code of Conduct of the Bar of England and Wales (or any provisions amending or replacing those paragraphs);

(b) if he has specified in writing an address to which documents may be sent, that address; or

(c) where no address has been notified pursuant to the provisions mentioned in paragraph (a) above or specified as mentioned in paragraph (b) above, to his last known address.

 

Table 2: Deemed Date of Service of Documents

 

Method of service

Deemed date of service of document

 

First-class post

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.

Hand delivery

If the document is served personally before 4.30 pm on a business day, on that day; or in any other case, on the next business day after that day.

Recorded delivery

If it is delivered to or left at the permitted address on a business day before 4.30 pm, on that day; or in any other case, on the next business day after that day.

Fax

If the transmission of the fax is completed on a business day before 4.30 pm, on that day; or in any other case, on the next business day after the day on which it was transmitted.

E-mail or other electronic transmission

If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent.

 

Guidance on the application of the Hearings before the Visitors Rules 2010

 


[1] Amended 1 November 2011

[2] Amended 1 November 2011

[3] Amended 1  November 2011

[4] Amended 1 November 2011

[5] Amended 1 November 2011

[6] Amended 25 April 2013