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

In disciplinary proceedings against barristers, the President of COIC and the Lord Chief Justice were not confined to appointing tribunal or Visitors’ panel members from the COIC pool. The governing regulations and rules imposed no express pool-only requirement, and none could be implied from related administrative documents. Appointment by those senior judicial office-holders of persons considered suitable was sufficient to secure independence and freedom from outside pressure for article 6 ECHR. Past involvement in prosecuting misconduct did not automatically disqualify later adjudication after that involvement had ended. An inappropriate role in selecting the pool did not invalidate proceedings where the person did not sit in the case and apparent bias was absent. Permission to appeal was refused on all grounds, including delay and costs.

Three barristers challenged disciplinary findings and decisions of the Visitors to the Inns of Court by judicial review. They argued that some tribunal or appellate panel members were disqualified because they were time-expired members of the COIC pool, and raised related bias, delay and procedural issues. The Bar Standards Board sought permission to appeal against the refusal of a costs order.

The Divisional Court granted permission on limited grounds but dismissed the substantive claims in [2013] EWHC 3097 (Admin). A separate claim by Miss Russell had been refused permission in the High Court. The Court of Appeal considered the linked applications for permission to appeal. The central issue was whether appointments outside the current COIC pool invalidated disciplinary hearings or appeals.

1. Permission and outcome. The applicants had to show a real prospect of success or some other compelling reason for an appeal to be heard under rule 52.3(6)(b) of the Civil Procedure Rules 1998. None of the barristers or the Bar Standards Board satisfied that threshold. All applications were therefore refused.
2. Appointment of tribunal and Visitors’ panel members. Regulation 2 of the Disciplinary Tribunals Regulations 2009 gave the President power to nominate disciplinary tribunal members. Rule 12 of the Hearings before Visitors Rules 2010 gave the Lord Chief Justice power to nominate Visitors. Neither provision limited nominations to current members of the COIC pool. The Terms of Reference and Memorandum of Understanding indicated an expectation that the pool would be used, but imposed no absolute prohibition on appointments from outside it. Such a prohibition could not be implied against the express regulatory scheme.
3. Independence and statutory compliance. Appointment by the President or Lord Chief Justice of persons considered suitable was itself a sufficient guarantee of independence and freedom from outside pressure for article 6 ECHR. The definition of regulatory arrangements in section 21(1) of the Legal Services Act 2007 did not enlarge the scheme. Section 176 was therefore not breached by appointments outside the pool.
4. Bias and prior involvement. In Re P (A barrister) [2005] 1 WLR 3019 was distinguishable. Ms Artesi had not adjudicated in any challenged case and had merely been one of four people involved in selecting pool members. Her dual role, although inappropriate, did not vitiate the proceedings and would not cause a fair-minded and informed observer to suspect bias. Similarly, a former member of a prosecuting committee was not automatically disqualified after prosecutorial involvement had long ended. The de facto judge issue was left open and was not relied upon.
5. Remaining issues. The Court of Appeal would not interfere with the Divisional Court’s assessment of delay unless it had clearly gone wrong. The Divisional Court also acted within its wide costs discretion under rule 44.2 of the Civil Procedure Rules 1998.

• Court of Appeal (Civil Division): All applications for permission to appeal were refused, including the Bar Standards Board’s application concerning costs.
• Divisional Court of the High Court: The judicial review claims were dismissed after permission was granted on limited grounds in [2013] EWHC 3097 (Admin). The court made no order as to costs.
• High Court: Permission was refused in Miss Russell’s separate judicial review proceedings, first on the papers and then after an oral hearing.