Kaur, R (on the application of) v Ilex Tribunal

A professional body performing disciplinary functions with a significant public element may be amenable to judicial review, even where its powers also have a contractual source. Professional self-regulation remains lawful where appropriate safeguards secure fair and independent decision-making.

Service on a disciplinary tribunal by governing-council members does not, without more, establish automatic disqualification or apparent bias. The critical question is whether the adjudicator has an identifiable interest, an investigatory or screening role, or another factor capable of preventing objective judgment. A general duty to maintain professional standards is not such an interest.

The claimant, a student member of the Institute of Legal Executives, was found by its Disciplinary Tribunal to have committed a disciplinary offence involving cheating in examinations. The Appeal Tribunal rejected her internal appeal.

She sought judicial review, arguing that serving members of the ILEX Council had sat on the Disciplinary Tribunal and Appeal Tribunal. She alleged automatic disqualification, apparent bias and incompatibility with the requirements of a fair tribunal. The disciplinary arrangements had subsequently been changed, but the court had to determine whether the arrangements applicable at the time were legally flawed.

1. Amenability to judicial review. ILEX was amenable to judicial review. Its disciplinary functions served a branch of the legal profession and had a significant public element. A contractual source of power, or the fact that ILEX operated through a private company, did not create a jurisdictional bar.

2. Automatic disqualification. The principle in Pinochet did not apply. Unlike the situation there, the Council members had no identifiable interest in the outcome and had not been involved in investigating or prosecuting the allegations. The corporate relationship between ILEX and ILEX Professional Standards Limited did not alter that conclusion.

3. Apparent bias. Applying the fair-minded and informed observer test in Porter v Magill, there was no real possibility of bias. The Council members’ constitutional duty to promote professional standards did not amount to an interest in establishing the particular charge. The duty was consistent with deciding both to uphold and to dismiss allegations according to their merits.

4. Safeguards and self-regulation. Professional self-regulation was not prohibited by common law or Convention jurisprudence. Relevant safeguards included the absence of any investigatory or screening role, the presence of a majority of lay members, and lay chairs on both tribunals. The principles discussed in Davison v Scottish Ministers, Sadler v General Medical Council, Sadighi v General Dental Council and Re P (a barrister) supported that approach.

5. The judicial review claim was dismissed. The claimant was ordered to pay £3,000 in costs. Permission to appeal was refused.

• High Court (Administrative Court): Simon J refused a renewed application for permission to seek judicial review on 14 April 2010.
• Court of Appeal: Elias LJ granted permission on paper on 2 July 2010.
• High Court (Administrative Court): The substantive judicial review claim was dismissed, with costs of £3,000. Permission to appeal was refused.