O’Connor v Bar Standards Board

The Supreme Court held that, for the purposes of section 7(5)(a) of the Human Rights Act 1998, the bringing and pursuit of disciplinary proceedings by the Bar Standards Board constituted a single continuing act rather than a series of discrete acts. The court applied Article 14 ECHR (in conjunction with Article 6) and the statutory framework in sections 6 and 7 of the Human Rights Act 1998 to determine when the one-year limitation period began to run, concluding that time runs from the date when the continuing act ceased.

Applying that principle to the facts, the continuing act ceased when the Visitors to the Inns of Court allowed the appellant’s appeal on 17 August 2012, so the claimant’s proceedings issued on 21 February 2013 were within the one-year period. The court therefore allowed the appeal and rejected the respondent’s application to admit fresh factual evidence at this stage. The court also accepted that the article 14 claim had a real prospect of success as pleaded.

Background and procedural history:

• The appellant, a practising barrister, sought damages under the Human Rights Act 1998 alleging racial discrimination in the BSB’s conduct of disciplinary proceedings, in breach of Article 14 read with Article 6 ECHR. Six disciplinary charges were brought on 9 June 2010; a Disciplinary Tribunal found most charges proved on 23 May 2011; the appellant’s appeal to the Visitors succeeded on 17 August 2012.
• The claimant issued proceedings against the BSB on 21 February 2013. The BSB applied to strike out on limitation and no real prospect grounds; Deputy Master Eyre granted the application. Warby J in the High Court (Queen’s Bench Division) reversed that outcome in part, finding a sustainable article 14 claim but holding the claim time-barred under section 7(5) of the Human Rights Act 1998. The Court of Appeal upheld the limitation ruling. The Supreme Court granted permission to appeal on the section 7(5)(a) issue.

(i) Nature of relief sought:

The appellant sought damages and other relief under the Human Rights Act 1998 for alleged discrimination by the BSB in bringing and pursuing disciplinary proceedings.

(ii) Issues framed by the court:

• Whether the BSB’s disciplinary proceedings were a series of discrete acts or a single continuing act for the purposes of section 7(5)(a) HRA 1998.
• If a continuing act, whether it ended with the Disciplinary Tribunal’s verdict or with the Visitors’ decision on appeal.
• By respondent’s notice, whether the article 14 claim had any real prospect of success and whether new evidence should be admitted.

(iii) Court’s reasoning and conclusion:

The court interpreted the phrase "the date on which the act complained of took place" in section 7(5)(a) purposively so as to cover continuing courses of conduct. Relying on authorities and the structure of the disciplinary and appellate regime (including the supervisory and rehearing role of the Visitors, the powers to give directions, and the automatic deferral of implementation pending appeal), the court concluded that the BSB’s initiation and pursuit of disciplinary proceedings constituted one continuing act which ceased when the Visitors allowed the appeal on 17 August 2012. The Supreme Court therefore allowed the appeal, holding that the claim issued within one year of the cessation. The court also held Warby J was right that the article 14 claim had real prospects of success on the pleaded material and refused the BSB’s application to adduce new factual evidence before this court.

The court commented on the proper approach to statistical and other evidence in indirect discrimination claims, recognising that statistics can be dispositive in some cases but are not the sole possible basis for an allegation and that indirect discrimination may be proved without statistics.

Appeal allowed. The Supreme Court held that the conduct of the BSB in bringing and pursuing disciplinary proceedings against the appellant amounted to a single continuing act for the purposes of section 7(5)(a) of the Human Rights Act 1998; time runs from the date when the continuing act ceased. The continuing act ceased when the Visitors allowed the appellant’s appeal on 17 August 2012, so proceedings issued on 21 February 2013 were within one year. The court also concluded that the article 14 claim had a real prospect of success on the pleaded material and refused the respondent’s application to adduce fresh factual evidence before this court.

Disciplinary Tribunal: finding of misconduct 23 May 2011 (no neutral citation given). Appeal to the Visitors allowed 17 August 2012. Claim issued 21 February 2013. Strike out application allowed by Deputy Master Eyre 28 March 2014. High Court (Warby J) [2014] EWHC 4324 (QB) (permission to amend and some aspects considered; held claim time-barred). Court of Appeal [2016] EWCA Civ 775; reported [2016] 1 WLR 4085 (held limitation expired). Supreme Court permission limited to section 7(5)(a) issue; appeal allowed [2017] UKSC 78 (this judgment).