Court of Appeal (Lord Dyson MR, Elias and Sharp LJJ)

The Court of Appeal dismissed the appellant's challenge to the Bar Standards Board on the ground that her article 14 (read with article 6) Human Rights Act claim was time-barred under section 7(5)(a) of the Human Rights Act 1998. The court held that, as a general rule, the institution and conduct of a prosecution up to verdict should be treated as a single continuing act for limitation purposes, but opposing an appeal is not a continuation of the original act of prosecuting. Time therefore ran from the Disciplinary Tribunal's verdict of 23 May 2011 and expired before proceedings were issued.

The court also upheld the judge's refusal to grant an extension of time under section 7(5)(b): the claimant had not applied for an extension, the onus is on the claimant to seek relief and to provide evidence in support, and the reasons put forward were insufficient on the facts. Although the court considered evidence relied on by the claimant to support an indirect discrimination claim, it did not need to decide the merits and expressed that the claimant's statistical case was thin.

Background and parties.

• The appellant, a practising barrister, brought proceedings against the Bar Standards Board (BSB) alleging among other things that disciplinary proceedings brought against her amounted to racial discrimination in breach of article 14 read with article 6 of the European Convention and thus were actionable under the Human Rights Act 1998.
• The BSB had brought six disciplinary charges on 9 June 2010; a Disciplinary Tribunal found five charges proved on 23 May 2011; the appellant succeeded on appeal to the Visitors on 17 August 2012.

Procedural history. Proceedings against the BSB were issued on 21 February 2013. The BSB pleaded limitation. The BSB applied to strike out / for summary judgment before Deputy Master Eyre (he held aspects were time-barred and lacking in prospects). On appeal Warby J held that the article 14 claim could be adequately pleaded but was time-barred under section 7(5) of the HRA; the appellant appealed to the Court of Appeal.

Nature of the claim and issues before the court.

• Nature of claim: damages and declarations arising from alleged indirect racial discrimination and breach of the right to a fair hearing (article 14 in conjunction with article 6), and related equality law claims.
• Issues framed: (i) whether the acts complained of occurred on or after 22 February 2012 (the one-year cut-off) so as to be in time; (ii) whether the decision to prosecute and subsequent defence of the Tribunal's decision should be seen as a single continuing act extending to the determination of the appeal; (iii) whether the court should exercise its discretion under section 7(5)(b) to extend time; and (iv) secondarily, whether the article 14 claim had real prospects of success.

Court's reasoning.

• The Master of the Rolls concluded that usually institution and conduct of a prosecution up to conviction or acquittal is a single continuing act for limitation purposes and that the one-year period normally runs from the conclusion of the prosecution by verdict. However, opposing an appeal is not a continuation of the original act of prosecuting; it is a distinct act of defending a verdict. Because there was no allegation of a Convention breach in relation to the appeal itself, time ran from the Disciplinary Tribunal verdict on 23 May 2011 and the claim issued in February 2013 was out of time.
• On extension of time under section 7(5)(b), the court reaffirmed that the burden lies on the claimant to ask for and establish an extension and to provide supporting evidence; the appellant had not applied to the Deputy Master or provided evidence of equitable grounds and the proposed grounds were insufficient. The court therefore refused to grant an extension.
• The court observed that the appellant relied on evidence and reports to support an indirect discrimination / systemic discrimination case of the DH type, and that that strand might raise different limitation questions if argued, but it was not pursued to the court and no determination was required.

Conclusion. The appeal was dismissed for the reasons above: the article 14 claim was time-barred and no extension of time was justified on the facts before the court.

Appeal dismissed. The Court of Appeal held that the one-year limitation period in section 7(5)(a) of the Human Rights Act 1998 ran from the Disciplinary Tribunal's verdict of 23 May 2011 and that opposing an appeal is not a continuation of the original act of prosecuting. The appellant did not obtain an extension of time under section 7(5)(b) because she had not sought one or provided evidence to satisfy the court that it would be equitable to extend time and the reasons later advanced were insufficient.

Disciplinary Tribunal found five charges proved (23 May 2011). Appeal to the Visitors allowed (17 August 2012). Claim issued against BSB (21 February 2013). BSB sought strike out / summary judgment before Deputy Master Eyre (28 March 2014). Warby J (Queen's Bench Division) allowed appeal from the Deputy Master in part but held the article 14 claim time-barred under section 7(5) HRA (case HQ13X00782). The appellant's appeal to the Court of Appeal was dismissed ([2016] EWCA Civ 775).