Henry, R (on the application of) v The Bar Standards Board

A professional regulator may dismiss complaints where, after investigating the available evidence, it reasonably concludes that there is insufficient evidence of misconduct. Judicial review does not permit the court to substitute its own assessment of the facts for that of the regulator.

An extension of time may be granted by applying the Denton criteria, including the significance of the delay, its explanation, prejudice, and all the circumstances. A claim that is unarguable is not necessarily totally without merit. A civil restraint order is discretionary where the threshold for mandatory consideration is not met.

The claimant challenged the Bar Standards Board’s refusal to refer complaints against two barristers for disciplinary action. The complaints alleged that the barristers had falsely represented to the Chancery Division that administrators of Global Live Events LLP had consented to the terms of an order.

The claim form was issued within three months, but detailed grounds and evidence were filed late. Langstaff J refused an extension of time and permission. On renewal, the court considered whether to extend time, whether the proposed grounds disclosed an arguable error of law, and whether a civil restraint order should be made.

1. Extension of time. The court applied the criteria in Denton v TH White Ltd [2014] EWCA Civ 906, taking account of the significance and explanation of the delay, prejudice to the defendant, the gravity of refusing an extension, and all the circumstances. The claim form had been issued in time. The delay in filing the substantive grounds was significant but not at the most serious end of the spectrum. Any prejudice to the BSB could be addressed by costs. An extension was therefore granted.
2. Permission for judicial review. The PCC was entitled to assess each complaint separately and to conclude that there was insufficient evidence, to the criminal standard, that either barrister had misrepresented the administrators’ position. The administrators’ solicitors’ letter raised observations and questions about the proper construction and effect of the order. It did not complain of misrepresentation or state that the administrators had not consented to the order’s terms. The PCC’s reading of the evidence was reasonable and disclosed no arguable error of law. The fact that other allegations existed could not preserve complaints which were independently weak.
3. Totally without merit and civil restraint order. Having regard to Samia v SSHD [2016] EWCA Civ 82, the grounds were unarguable but were not so poor as to be certified totally without merit. The court was therefore not compelled to consider a civil restraint order under CPR 23.12. A further order remained discretionary, but the claimant’s assurances that future proceedings would be conducted through counsel justified declining to make one.
4. Permission for judicial review was refused. The BSB’s costs were summarily assessed at £3,194.

• High Court (Administrative Court): Langstaff J refused an extension of time and permission on the papers on 20 July 2016.
• High Court (Administrative Court): on renewal, Whipple J granted an extension of time but refused permission for judicial review and declined to make a civil restraint order.