Rehman v The Bar Standards Board

A statutory appeal from a professional disciplinary tribunal is a review, not a full rehearing. The appeal court may reconsider factual findings and legal issues, but the appellant must show that the tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. Appropriate deference is due to a specialist tribunal, particularly on oral evidence and evaluative judgments.

Where an instructed advocate receives public funds attributable to substitute advocates, the mechanics by which the claim was submitted do not displace the obligation to pay those advocates reasonably promptly. Judicial review must identify specific unlawful decisions. A general challenge to an entire regulatory scheme, unsupported by evidence, is unarguable.

The judgment determined two statutory appeals from findings of professional misconduct by Disciplinary Tribunals of the Council of the Inns of Court and two applications for permission to bring judicial review claims. The appeals concerned, respectively, failure to pay substitute barristers from monies received under the graduated fee scheme and alleged misconduct in the administration of chambers.

The judicial review claims challenged numerous decisions of the Bar Standards Board, Disciplinary Tribunal and Legal Ombudsman. One claim alleged systemic collusion and procedural corruption. The other principally challenged enforcement and related decisions by the Legal Ombudsman. The central issues were whether the disciplinary decisions were wrong or procedurally unjust, and whether any challenged public-law decision was arguable.

1. Statutory appeals. Under CPR Part 52, the appeal was confined to a review, although the court could examine factual findings and legal issues. The appellant had to show more than that another view was reasonably possible. He had to identify objective grounds requiring the appeal court to adopt a different conclusion. Deference was appropriate because the tribunal had been assigned the task by the legislature, was specialist, and had heard the oral evidence.
2. In the appeal concerning substitute advocates, the tribunal correctly treated the form and mechanics of the claim to the Legal Services Commission as immaterial. The charges concerned money received by the instructed advocate which belonged to other advocates. Once the appellant knew, or ought reasonably to have known, that the money had been received for them, paragraph 406.1 of the Bar Code of Conduct required payment forthwith, meaning reasonably promptly in the circumstances. Financial difficulty did not excuse the delay. The convictions and suspension were not arguably wrong.
3. The grounds challenging the second disciplinary determination disclosed no arguable breach of article 6, lack of impartiality, improper motive, inequality of arms or entitlement to a stay. The appeal was dismissed and declared totally without merit.
4. The systemic judicial review claim failed because it did not identify specific unlawful decisions, relied on unsupported allegations of collusion and corruption, and sought relief beyond the proper function of judicial review. Permission was refused and the claim was declared totally without merit.
5. The Legal Ombudsman’s enforcement decisions were not arguably unlawful where the underlying determinations had not been challenged and were final and binding. A non-binding recommendation to take jurisdiction was not itself amenable to judicial review. Permission was refused in the second judicial review claim, which was also declared totally without merit. There was no order for costs on the statutory appeals; specified defendants recovered their costs in the judicial review claims.

Disciplinary Tribunals of the Council of the Inns of Court: findings of professional misconduct were made in the decisions appealed from. The tribunal decisions were challenged by statutory appeals under section 24 of the Crime and Courts Act 2013.

High Court (Administrative Court): the appeals were dismissed. The two judicial review applications were refused and declared totally without merit.