24 June 2017

Annexe P - Adjudication Panel and Appeals Rules (No longer applicable)

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

1. Introduction

2. Powers of Panels

3. Investigation and Procedure

4. Appeals

5. Definitions

6. Commencement and Transitional Arrangements

 

 

 

 

 

 

Introduction

1. Adjudication Panels ("Panels") shall be appointed by the President of the Council of the Inns of Court ("the President") to determine complaints considered by the Committee not to raise a prima facie case of professional misconduct, but to raise a prima facie case that the barrister concerned has provided inadequate professional service to the complainant. No person shall be appointed to an Adjudication Panel if they are a member of the Bar Standards Board or any of its committees or of the Bar Council or any of its committees or if they were a member of the Complaints Committee of the Bar Standards Board ("the Complaints Committee") at any time when the matter being dealt with by the Panel was considered by the Complaints Committee.

2. Panels shall consist of two lay representatives, one of whom shall act as Chairman ("the Chairman of the Panel") and two barrister members, at least one of whom shall be a Queen's Counsel.  

3. Anything required by these Rules to be done or any discretion required to be exercised by, and any notice required to be given to, the President, may be done or exercised by, or given to, any person authorised by the President (either prospectively or retrospectively and either generally or for a particular purpose).

Powers of Panels

4. The powers of a Panel shall be:

(a) to consider any complaint referred to it pursuant to the Complaints Rules and to direct such investigations as they see fit in respect thereof;

(b) to dismiss any complaint without making a finding as to the existence or otherwise of inadequate professional service if they conclude that due to lapse of time, disputes of fact which cannot fairly be resolved by the Panel, or for any other reason it cannot fairly be determined;

(c) to determine whether the barrister concerned has provided inadequate professional service in respect of the matter complained of;

(d) to determine what remedy should be granted to the complainant in respect of such inadequate service.

Investigation and Procedure

5. The Secretary shall notify both the barrister and the complainant of the matters that the Complaints Committee has directed the Panel to consider.  As soon as practicable thereafter, he shall prepare a bundle of papers to be considered by the Panel and shall copy those to the barrister and the complainant and shall invite their written comments within 14 days (which period may be extended with the permission of the President).

6. Written comments received by the Secretary shall be copied to the barrister and the complainant. The complainant shall be invited to make any further comments in writing within 14 days (which period may be extended with the permission of the President). Such comments shall be copied by the Secretary to the barrister and the Panel.

7. At the expiration of the time limit specified in paragraph 6, the Secretary shall copy any further papers that are to be considered by the Panel to the barrister and the complainant and shall request the President to appoint the Panel and set a date for it to meet.

8. The President shall set the date for the Panel to consider the complaint and both the barrister and the complainant shall be informed of this date.

9. The Panel may consider complaints and the results of any investigations in whatever manner they think fit, and may adjourn consideration of any complaint at any time, and for any reason. The Panel shall give written reasons for any adjournment.

10. Following such consideration, the Panel may decide:

(a) that for any reason the complaint cannot fairly be determined by them, whereupon it shall dismiss the complaint and shall give notice in writing of its decision and the reasons for it to the barrister and the complainant;

(b) that the complainant has not established on the balance of probabilities that the barrister concerned has provided inadequate professional service to the complainant, whereupon it shall dismiss the complaint and shall give notice in writing of its decision and the reasons for it to the barrister and the complainant; or 

(c) that the complainant has so established, whereupon it shall consider what remedy should be granted to the complainant in respect of the service which it has found to have been inadequate.

11. Following a finding under paragraph 10(c) above, the Panel may determine that it is not appropriate to take any further action in respect of the inadequate professional service or  may make one or more of the following orders:

(a) direct the barrister to make a formal apology to the complainant for the inadequate service provided,

(b) direct the barrister to repay or forego all or part of any fee rendered in respect of the inadequate service,

(c) direct the barrister to pay compensation to the complainant in such sum as the Panel shall direct not exceeding £15,0001,

(d) direct the barrister to complete continuing professional development of such nature and duration as the Tribunal shall direct and to provide satisfactory proof of compliance with this requirement to the Complaints Committee.

Where a barrister is directed to apologise to the complainant under paragraph (a) hereof, the Panel may direct that such apology is to be approved by the Chairman of the Panel, or a person nominated by the Chairman of the Panel, prior to being sent to the complainant.

In determining whether any sum is to be paid under paragraph (c) hereof, or in fixing the amount of such sum, the Panel shall in particular have regard to any loss suffered by the complainant as a result of the inadequate professional service, the availability to the complainant of other forms of redress, to the gravity of the conduct complained of, and to the fee claimed by the barrister for the inadequate service.

12. Following any such finding as is mentioned in paragraph 10(c) hereof, the Panel shall give notice in writing to the barrister and to the complainant of the respects in which they have found the barrister to have provided inadequate professional service, and the reasons for such finding, and of the remedy to be granted to the complainant under paragraph 11 above.

13. If the Panel is not unanimous on any issue, the finding made shall be that of the majority of them.  If the Panel is equally divided, the burden of proof being on the complainant, the finding shall be that most favourable to the barrister.

14. Whether or not the Panel shall have determined that the barrister has provided an inadequate professional service, it may refer any matter of policy which arises to the relevant committee of the Bar Standards Board.

15. Save as required by law, no finding of an Adjudication Panel or of an Appeal Panel shall be publishable except:

(a) by the Commissioner in any annual or other report on his work, in which case the identities of the parties shall so far as possible be concealed, unless the barrister concerned seeks that any finding be published.  In that case the manner and extent of publication shall be at the discretion of the Commissioner; or

(b) if the Adjudication Panel considers that the circumstances of the complaint are relevant to the barrister's capacity as a pupil supervisor, it may notify the barrister's Inn of its concern in such manner as it sees fit; or

(c) in respect of an application by a barrister for silk, if a finding of inadequate professional service has been recorded against the barrister concerned, the Bar Standards Board shall disclose the finding and penalty; or

(d) where the finding has been made in a public hearing.

Appeals

16. An appeal shall lie at the instance of a barrister against a finding that he has provided inadequate professional service, and against any decision as to the remedy to be granted to the complainant in respect of such inadequate service.

17. Any such appeal shall be heard and determined by a panel ("the Appeal Panel") appointed by the President of the Council of the Inns of Court consisting of two barristers, of whom at least one shall be a Queen's Counsel and shall chair the Appeal Panel, at least one shall be a junior of more than five years' call, and two lay representatives.

Provided that:

(a) no person shall be appointed to an Appeal Panel if they are a member of the Bar Standards Board or any of its committees or of the Bar Council or any of its committees or if they were a member of the Complaints Committee of the Bar Standards Board ("the Complaints Committee") at any time when the matter being dealt with by the Appeal Panel was considered by the Complaints Committee; and.

(b) none of the members of the Appeal Panel shall have been members of the tribunal which made any finding appealed against.

18. An appeal shall be made by the barrister sending to the Secretary within 28 days of the relevant date (which period may be extended with the permission of the President) a notice stating the findings to be appealed against, the decision the barrister contends for, and the grounds of such appeal, accompanied by the sum of £100 payable to the Bar Standards Board to defray expenses. The relevant date shall be:

(a) (in the case of an appeal from an Adjudication Panel) the date of the written notice under paragraph 12 above; or

(b) (in the case of an appeal from a Disciplinary Tribunal) the date on which the order of the Disciplinary Tribunal was made or, if later, the date on which sentence was imposed pursuant to such order.

19. Service of notice of an appeal by a barrister shall operate as a stay of any order made.

20. The Chairman of the Complaints Committee shall have an opportunity to respond to the grounds of appeal stated in the notice within 28 days of the Secretary receiving the notice of appeal (which period may be extended with the permission of the President).  For the purpose of so responding the Chairman of the Complaints Committee may seek information or assistance from such persons and in such manner as he sees fit.

21. On such an appeal,

(a) the procedure shall be informal, at the discretion of the chairman of the Appeal Panel;

(b) the barrister, the complainant and the Chairman of the Complaints Committee may attend or be represented;

(c) the Appeal Panel may make such order as they think fit in relation to the complaint, including any order which the tribunal appealed from had the power to make, save that they may not make any order in relation to the costs of the appeal;

(d) the appeal shall be by way of a re-hearing;

(e) the hearing shall be in private, unless the barrister requests otherwise;

(f) if the Appeal Panel allows an appeal, in whole or in part, it may in its discretion direct the refund to the barrister of the sum deposited under paragraph 18 above; and

(g) whether or not the appeal is allowed, the Appeal Panel may refer any issue of policy which arises to the relevant committee of the Bar Standards Board.

22. Where a barrister appeals against a finding of inadequate professional service by a Disciplinary Tribunal which also found that he had infringed one or more provisions of the Code referred to in paragraph 901.1 and in consequence thereof directed the Secretary to send a written warning to the barrister or that a financial penalty be imposed on him or both:

(a) the notice under paragraph 18 above shall identify the warning or financial penalty appealed against, the decision the barrister contends for and  the grounds of such appeal; and

(b) the Appeal Panel shall decide whether to set aside the written warning or financial penalty or both, as appropriate.

Definitions

23. In these Rules unless the context otherwise requires

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

(b) "The Complaints Rules" shall mean the rules prescribing the manner in which complaints are to be considered set out in Annex J to the Code of Conduct, and any term defined in the Complaints Rules shall carry the same meaning as it does in those Rules.

(c) Any reference to a person includes any natural person, legal person and/or firm.  Any reference to the masculine gender includes the feminine and the neuter, and any reference to the singular includes the plural, and in each case vice versa.

Commencement and Transitional Arrangements
 
24. 

(a) These Rules will come into effect on 1 June 2009. They shall apply to all complaints, including complaints referred to an Adjudication Panel prior to 1 June 2009, and to all Adjudication Panels and Appeals, including all Panels and Appeals pending as at 1 June 2009.

(b) Any step taken in relation to any Adjudication Panel or Appeal prior to 1 June 2009 pursuant to the provisions of the Rules then applying shall be regarded, unless otherwise decided, as having been taken pursuant to the equivalent provisions of these Rules.

25.2  

(a) From 31st March 2011, the Bar Council shall cease to have jurisdiction in respect of any aspects of any complaints involving inadequate professional service. Accordingly:  

(i) Any Adjudication Panel or Appeal Panel which is seized of any matter on that date shall, via the Bar Standards Board, transfer to the Legal Services Ombudsman any cases relating to any complaints involving inadequate professional service which have not been disposed of.

(ii) Save as set out at paragraph (i) above, these Rules shall cease to have effect on 31st March 2011.

1No direction that a barrister pay compensation in a sum exceeding £5,000 may be made in respect of any inadequate professional service provided to a client before 1st July 2008.
2Amended 6th October 2010