Leathley & Ors, R (on the application of) v Visitors to the Inns of Court & Anor

The legal authority of members appointed to disciplinary tribunals and Visitors’ panels derives from the governing regulations and rules, not from an informal eligibility pool, unless those instruments expressly require selection from that pool. Where the appointment provisions permit nomination for a particular case and contain no tenure requirement, expiry of pool membership does not invalidate the tribunal or breach art 6 of the Convention. Regulatory arrangements may fall within the broad statutory definition of regulatory arrangements, but the Legal Services Act 2007 does not itself prescribe the content of those arrangements. The common-law de facto judge doctrine is, at least in principle, compatible with art 6 and art 47 of the Charter. Delay in an appeal may be close to unreasonable yet remain acceptable when assessed in the circumstances as a whole.

Three barristers sought judicial review of professional misconduct findings and appellate decisions of Visitors to the Inns of Court. The principal issues concerned whether members of the disciplinary tribunals and Visitors’ panels were unlawfully appointed because their time-limited membership of a Council of the Inns of Court pool had expired, whether the arrangements complied with art 6 of the European Convention on Human Rights, and whether delay in two appeals was unlawful.

The claimants also raised issues concerning independence, bias, security of tenure, remuneration, legitimate expectation, European Union law and the merits of the disciplinary findings. The court heard the common issues together and considered whether permission should be granted and, if so, whether judicial review should succeed.

1. Appointment and pool membership. Permission was granted on the expiry-of-eligibility and delay grounds, but all applications for judicial review were refused. The Disciplinary Tribunals Regulations 2009 conferred the power to nominate members on the President of the Council of the Inns of Court, subject to the qualifications in the Regulations. The Hearings Before the Visitors Rules 2005 conferred the power to nominate Visitors on the Lord Chief Justice. Neither instrument required selection from the COIC pool.
2. The COIC constitution, appointments arrangements and memorandum of understanding did not alter that conclusion. Although those arrangements could fall within the broad concept of regulatory arrangements in section 21 of the Legal Services Act 2007, they did not require appointments to be made from the vetted pool. Sections 28 and 30 did not prescribe the relevant qualifications or appointment method.
3. Article 6. The tribunals and Visitors’ panels were established by law because the appointments complied with the applicable regulations and rules. Those instruments contemplated nomination for one case and did not impose a continuing period of judicial office. There was therefore no breach of the Convention.
4. De facto authority. The court considered, obiter, that the de facto judge doctrine would apply where there was a basis or colourable authority for assumption of office and a general good-faith belief in lawful competence. It would not apply to a known unqualified person or usurper. The doctrine was not inconsistent with art 47 of the Charter, whose reference to a tribunal previously established by law did not add a different requirement.
5. Delay and other grounds. Delay in the appeals of Ms Hayes and Mr Leathley was troubling and, in one case, came close to being unreasonable. In the circumstances it was not unreasonable. The remaining grounds, including alleged bias, lack of tenure, remuneration, legitimate expectation, Directive 98/5, and challenges to the merits or meaning of discreditable conduct, were unarguable or unavailable on judicial review. Each such ground was categorised as totally without merit.

First-instance judicial review proceedings. Permission was granted on limited grounds concerning expiry of pool eligibility and delay, but the applications were refused.