Barrister’s Second Appeal Against Disbarment

16 March 2023

An unregistered barrister sought leave to bring a second appeal in relation to charges of professional misconduct which led to her disbarment by the Bar Disciplinary Tribunal, Bourne J having dismissed the first appeal in the Administrative Court: Cannon v Bar Standards Board [2023] EWCA Civ 278 Moylan, Lewis, Edis LJJ

The First ground of appeal was that the appellant lacked capacity (1) to participate in the hearing before the Tribunal in January 2020 and (2) to give instructions in relation to the conduct of the appeal to the High Court. Counsel sought on her behalf to adduce evidence of the appellant’s health.

CPR52(2)(b) provided that an appeal court would not receive evidence which was not before the lower court. Prior to the making of the CPR the admission of new evidence required the satisfaction of three conditions: See Ladd v Marshall [1954] 1 WLR 1489. That was no longer a rule but the three factors were relevant considerations governing the exercise of the discretion to admit new evidence: Terluk v Berezovsky [2011] EWCA Civ 1534.

The first question was whether the appellant lacked capacity to participate in the disciplinary process leading to the Tribunal hearing in January 2020. The appellant was presumed to have capacity unless it was established that she lacked capacity at the material time. Dr C could not and did not express a view about that question. His report review Dr A’s report but, given the limitations inherent in that exercise, and the fact that he had not assessed the appellant, he had no basis on which he could express the view that her findings were incorrect.

Lewis LJ did not consider that report assisted in assessing whether the appellant lacked capacity at the material time in the relevant respects. There was no proper evidential basis for concluding that the presumption was rebutted. Neither was there any proper evidential basis for concluding that her capacity to conduct the appeal proceedings culminating in the hearing in October 2020 was rebutted.

The second ground concerned the scope of the disciplinary offence. There was nothing arguably wrong in the judge’s approach or his conclusion. He was entitled – indeed, correct – to take the view that the conduct in question, although occurring in litigation conducted by the appellant on her own behalf, was capable of amounting to conduct which breached Core Duty 5 (acting in a way likely to diminish public trust and confidence in the barrister or the profession) and as undermining the barrister’s honesty and integrity. The way the judge expressed himself disclosed no realistic prospect of success and no other compelling reason for the court to hear an appeal.

The third ground arose because the BSB decided to refer charge 4 to the Tribunal in December 2017. When it was discovered that a complaint made by a third party against an unregistered barrister could not be referred to the Tribunal, no further steps were taken. Rather, the BSB waited until the rules were amended and then, in November 2018, decided to refer the second set of proceedings to the Tribunal.

The submission that the principle of res judicata identified in Henderson v Henderson applied was misconceived. There had been no adjudication on the charge which the BSB had decided to refer to the Tribunal in 2017. The principle of res judicata did not prevent the BSB taking a second decision to refer the charge when it had the power to do so.

The fourth ground of appeal arose because the judge agreed that his draft judgment could be shown to the father prior to it being handed down as his interests might be affected by reporting of the hearing or the judgment and he might wish to make applications in respect of that matter. In general, material that was provided to a judge as part of the process of dealing with a case should be shown to the parties in the case although there were exceptions to that general position. In the present case, however, the written representations had not had any material effect on the issue of reporting restrictions.

The Court unanimously refused permission to appeal on each ground.