Ms O’Connor alleged that her professional regulator had discriminated against her by bringing and pursuing disciplinary charges. Her damages claim would be late if the one-year period ran from the disciplinary tribunal’s decision. It was in time if the regulator’s conduct continued through her successful appeal. The Court examined the role the Bar Standards Board played at each stage.
Background
Ms O’Connor, a practising barrister who is black, faced six disciplinary charges brought by the Bar Standards Board Complaints Committee on 9 June 2010. They alleged professional misconduct in conducting litigation, including by signing a statement of truth, and an offence under section 70(8) of the Courts and Legal Services Act 1990. On 23 May 2011 a Disciplinary Tribunal found five charges proved and dismissed the sixth. On 17 August 2012 the Visitors to the Inns of Court allowed her appeal, holding that none of the conduct breached the Code of Conduct. Sir Andrew Collins said that the Visitors had no doubt none of the charges should stand. They saw considerable force in further submissions about procedural unfairness and lack of reasons, but did not need to decide them. Appeal to the Visitors has since been replaced by appeal to the High Court.
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The claim and the time limit
On 21 February 2013 Ms O’Connor claimed damages under the Human Rights Act 1998. She alleged discrimination on grounds of race in the enjoyment of the right to a fair trial, contrary to article 14 of the European Convention on Human Rights read with article 6, in the bringing of the disciplinary proceedings. Section 7(5)(a) requires proceedings to be brought within one year of the date on which the act complained of took place, unless time is extended under section 7(5)(b).
Deputy Master Eyre held the claim time-barred. Warby J held that there was a sufficiently pleaded case of indirect discrimination, with a real prospect of success, but that it was out of time whether the act was the decision to bring proceedings in 2010 or continued only until the tribunal decision. The Court of Appeal held that time started when the tribunal found the charges proved and had already expired. The Supreme Court gave permission only on the section 7(5)(a) issue.
One continuing act
Lord Lloyd-Jones treated the complaint as a challenge to the Board’s conduct in Ms O’Connor’s individual proceedings. Evidence about the impact of its complaints process on Black and minority ethnic barristers supported her case. She was not asking the Court to determine a freestanding challenge to that process.
Although section 7(5)(a) speaks of the date an act took place, it can apply to a continuing course of conduct. Leaving such cases only to the discretion to extend time would be inappropriate. The disciplinary process involved many steps, but the complaint concerned the initiation and pursuit of the proceedings as a whole. Time therefore runs from when that continuing act ceased, not from when it began.
The Court of Appeal had treated the act as ending with the tribunal verdict, regarding opposition to an appeal as different from prosecution. For this regulatory scheme, the Supreme Court held that the Board’s role before the tribunal and the Visitors was one continuing act. The Visitors exercised a long-established supervisory jurisdiction and gave the final determination. A designated judge could give directions for the hearing. An appeal against a finding lay as of right, and the Visitors reheard the merits and could remedy procedural unfairness. Sentence could not be pronounced or implemented until after their decision. The act therefore continued until 17 August 2012, and the claim issued on 21 February 2013 was in time. An alternative argument based on failure to act did not need to be decided.
Whether the claim could proceed
The Board asked the Court to uphold the earlier result because the article 14 claim lacked a real prospect of success, and sought to introduce a 2016 report. Lord Lloyd-Jones agreed with Warby J. A 2013 Inclusive Employers report, using 2007–2011 data, found that BME barristers were disproportionately over-represented in external complaint outcomes, more likely to be referred for disciplinary action, and more likely to have complaints upheld. Ms O’Connor could rely on that evidence, so far as it went, with the history of the proceedings against her. Indirect discrimination need not be established by statistics alone. The Court refused to admit the later report, as it was not appropriate to resolve competing factual arguments on a strike-out application for the first time.
Verdict: The Supreme Court unanimously allowed the appeal. The continuing act ended on 17 August 2012, so proceedings issued on 21 February 2013 were in time. The indirect discrimination claim could proceed and the Board’s application to introduce new evidence was refused. Discrimination itself remained to be proved.
