The beginning of time... O'Connor v Bar Standards Board
A Human Rights Act claim based on alleged discrimination in the course of proceedings, appealed.
Supreme Court (Lady Hale, Lords Kerr, Wilson, Black and Lloyd-Jones) - 6 January
The date on which a cause of action for a Human Rights Act (HRA) claim based on alleged discrimination in the course of proceedings arose was upon the conclusion of the claimant’s appeal, bringing her claim within time. The Supreme Court also confirmed that such a continuous course of conduct amounted to an ‘act’ on which such a claim could be founded. On that basis, the claim under the HRA was within the applicable 12 month time limit.
On 9 June 2010 the claimant barrister was charged by the Bar Standards Board (BSB) with professional misconduct arising out of her actions in litigation. A disciplinary tribunal found the majority of the charges proved on 23 May 2011 and the claimant appealed, under the appeal regime then in operation, to the Visitors to the Inns of Court (the Visitors). That appeal was successful, Sir Andrew Collins delivering the Visitors’ judgment in the claimant’s favour on 17 August 2012.
On 21 February 2013 the claimant issued the instant proceedings against the BSB, claiming breach of her Article 6 and 14 rights. BSB denied the allegations and pleaded a limitation defence, also applying to strike out. On 28 March 2014 Deputy Master Eyre struck out the claim as having no real prospect of success and being out of time. The deputy master rejected a plea for the time limit to be extended in accordance with the discretion to do so under section 7(5)(b) of the HRA. The claimant appealed.
On 18 December 2014 Warby J heard the appeal. The judge did not consider it possible for the court to say that the claimant had no real prospect of success but upheld the strike out on the grounds of limitation. The judge held that the ‘act complained of’ arose in June 2010, when it was decided that charges would be brought or when they were served. On that basis, the claim was 17 or 18 months out of time. Even if the act complained of was the tribunal decision in May 2011, time still ran out a year later.
The claimant further appealed to the Court of Appeal. On 25 July 2016 that court held that the 12 month limitation period started to run when the disciplinary charges were found proved by the tribunal in May 2011. A renewed request for permission to appeal over the refusal to extend the time limit by discretion was rejected.
On 8 December 2016 the Supreme Court allowed the case to be heard for a further appeal.
The Supreme Court identified the issues as follows:
- Whether the disciplinary proceedings were a series of discrete acts or a single continuing act;
- If a single continuing act, did that act end with the verdict of the disciplinary tribunal or the Visitors?
Additionally, the BSB sought to have the Court of Appeal affirmed on the basis that Warby J was wrong to find a real prospect of success. In support of that argument, the BSB sought permission to adduce new evidence of fact.
Separate acts or single continuing act?
The Supreme Court noted that although ‘the date on which the act complained of took place’ was apt to describe a single event, the phrase was not to be construed narrowly. It was not appropriate to rely on the discretion to extend time to limit the scope of the trigger date. As the court observed: “The primary provision…must be capable of providing an effective and workable rule for situations where the infringement arises from a course of conduct.”
In the present case the court considered the alleged infringement of the claimant’s Convention rights to arise from a ‘single continuous course of conduct’. The essence of the complaint was ‘the entirety of the course of conduct as opposed to any component steps.’
The date the cause of action accrued?
The court considered features of the regulatory scheme and Visitors’ jurisdiction and concluded that taken together ‘the role of the BSB in initiating and pursuing [the] proceedings before the Tribunal and before the Visitors is essentially one continuing act.’ Accordingly, the cause of action arose and time started to run on 17 August 2012 and the proceedings issued on 21 February 2013 were in time.
Was Warby J wrong as to a real prospect of success?
This question was only before the court because the BSB had taken the limitation point, a point which had now failed. To that extent, re-visitation of Warby J’s decision as to prospects was only before the court adventitiously.
The Supreme Court endorsed Warby J’s decision. The BSB’s argument that an infringement of Article 14 could only be established by inference from statistical difference in treatment was fallacious: indirect discrimination could be proved without statistical evidence. Further, new evidence would not be addressed ‘for the first time in the course of these proceedings’. Considering competing submissions of fact was inapposite in a strike-out application.
The Supreme Court consideration of the relevant trigger date for an HRA claim based on a continuous course of conduct appears to both make sense and deliver justice to the claimant in this case.