O'Connor v Bar Standards Board

A claim under the Human Rights Act 1998 may be struck out or summarily dismissed where the pleaded facts cannot establish a Convention violation, but a claim of indirect discrimination under Article 14 need not identify an intrinsically discriminatory rule. It may rely on evidence that a practice has a disproportionately prejudicial effect on an ethnic group, including reliable and significant statistics capable of shifting the burden to the public authority to provide objective and reasonable justification. A claimant seeking an equitable extension of the one-year limitation period under section 7 must expressly seek it and establish grounds for it. A claim may be adequately pleaded yet still be barred by limitation.

A practising barrister appealed against an order of Deputy Master Eyre striking out her statements of case and dismissing her action against the Bar Standards Board. She claimed damages for alleged breaches of Articles 6 and 14 of the Convention arising from disciplinary proceedings and complaints which were ultimately dismissed or unsuccessful. The Master treated the human rights claims as time-barred, inadequately pleaded and unsupported by the evidence.

The appeal concerned the merits and pleading of the Article 6 claims, whether the Article 14 claim of indirect racial discrimination was sustainable, and whether limitation should have been extended under section 7 of the Human Rights Act 1998.

1. Appeal dismissed. Although one Article 14 claim was adequately pleaded and was not fanciful, it was barred by limitation. No other adequately pleaded human rights claim had a real prospect of success.
2. Under the summary judgment and strike-out principles, a statement of case discloses no reasonable basis only where the claim would fail even if the pleaded facts were proved. Summary judgment is appropriate where the claim has no real prospect of success and there is no compelling reason for trial. The court should decide a short point of law where the evidence is sufficient and the parties have had an adequate opportunity to argue it, but should avoid resolving complex or difficult issues summarily on limited argument.
3. The disciplinary proceedings fell within Article 6(1). The information supplied in November 2009 identified the alleged acts, the nature of the misconduct and its legal characterisation with sufficient precision for Article 6(3)(a). The period before formal charges did not therefore disclose an arguable breach. The refusal of a short stay also gave the Article 6(3)(b) claim no real prospect of success on the pleaded facts.
4. Article 14 can apply where the facts fall within the ambit of another Convention right. A prima facie case of indirect discrimination may be established by showing that a group was treated differently in practice in a comparable situation, with disproportionately prejudicial effects. Reliable and significant statistics may establish that prima facie case and shift the evidential burden to the public authority to provide objective and reasonable justification. The Diversity Review did not itself provide such a justification.
5. The court did not finally decide whether bringing disciplinary proceedings fell within the ambit of Article 6. It held only that the contention was not fanciful. The pleaded case did not adequately extend to alleged discrimination in the handling of later complaints or appeals.
6. The limitation defence could properly be determined under CPR Part 24. The pleaded Article 14 claim arose, at latest, when charges were served in July 2010, or possibly continued until the tribunal decision in May 2012. Proceedings issued in February 2013 were out of time. An equitable extension had to be expressly sought, with evidence of good grounds. None was sought or established.

• High Court (Queen's Bench Division): Deputy Master Eyre struck out the claimant’s statements of case and dismissed the action with judgment for the defendant. On appeal, the High Court upheld the dismissal, subject to its conclusion that one Article 14 claim had been adequately pleaded but was time-barred.