O’Connor v Bar Standards Board

For the one-year limitation period under section 7(5)(a) of the Human Rights Act 1998, alleged incompatibility may consist of a continuing course of conduct. Time then runs from the date when that continuing act ceases.

Whether disciplinary proceedings constitute one continuing act depends on the substance of the complaint and the governing regulatory scheme. Where the complaint concerns their initiation and pursuit as a whole, the individual procedural steps need not be treated as separate acts. An appeal may form part of the same act where it is a rehearing on the merits within a continuing supervisory jurisdiction and the original decision remains unenforceable pending appeal.

Indirect discrimination under article 14 can be proved without statistical evidence. Statistical material may instead be considered with the history and circumstances of the individual case.

A practising barrister claimed damages against the Bar Standards Board under the Human Rights Act 1998. She alleged that, because of her race, the Board had discriminated against her in bringing and pursuing disciplinary proceedings, contrary to article 14 read with article 6 of the European Convention on Human Rights. A Disciplinary Tribunal found five charges proved, but the Visitors to the Inns of Court subsequently allowed her appeal and held that none of the alleged conduct breached the Code of Conduct.

Deputy Master Eyre struck out the claim or granted summary judgment, including on limitation. Warby J, [2014] EWHC 4324 (QB), held that the indirect discrimination claim had a real prospect of success but was time-barred. The Court of Appeal, [2016] EWCA Civ 775; [2016] 1 WLR 4085, also held that the one-year period had expired.

The issues were whether the Board’s conduct was a series of discrete acts or one continuing act; whether any continuing act ended at the Tribunal’s verdict or upon the Visitors’ decision; and whether the claim nevertheless lacked a real prospect of success.

Lord Lloyd-Jones delivered the unanimous judgment of the court.

1. Appeal allowed. The relevant complaint concerned the Board’s initiation and pursuit of disciplinary proceedings against the appellant. It was not a free-standing challenge to systemic discrimination against barristers from black and minority ethnic groups. Evidence of disproportionate treatment could nevertheless support the allegation of discrimination against the individual appellant.

2. The expression “the date on which the act complained of took place” in section 7(5)(a) of the Human Rights Act 1998 must accommodate infringements arising from a course of conduct. Requiring a claimant to seek a discretionary extension under section 7(5)(b) whenever conduct continued for more than a year would not provide an effective and workable primary limitation rule.

3. The alleged incompatibility was a single continuing act. Although disciplinary proceedings involved numerous procedural steps, the substance of the complaint was the initiation and pursuit of the proceedings as a whole. Parliament could not have intended every step in that single process to attract a separate one-year period. Treating the steps separately could also force a claimant to commence a human rights claim before the disciplinary outcome was known.

4. Following Lord Hope’s approach in Somerville v Scottish Ministers [2007] UKHL 44, time for a continuing act runs from the date on which the act ceases. The alternative argument based upon a continuing failure to reverse the original decision therefore required no determination. Such an argument might, in other circumstances, subvert the statutory limitation scheme.

5. The Board’s participation before both the Disciplinary Tribunal and the Visitors formed one continuing act. The Visitors exercised a longstanding supervisory jurisdiction and reheard the case on its merits. They could correct procedural defects, the appellant enjoyed an appeal as of right, and the Tribunal’s decision could not be implemented while the appeal was pending. Those cumulative features distinguished the proceedings from the criminal-prosecution analogy adopted below.

6. The continuing act ended when the Visitors allowed the appeal on 17 August 2012. Proceedings commenced on 21 February 2013 were therefore within the one-year period.

7. The Board’s respondent’s notice was rejected. The available report disclosed disproportionate representation and outcomes for minority ethnic barristers. Although the disparities might not themselves establish a prima facie case, they could be considered with the history of the appellant’s proceedings. Indirect discrimination can be proved without statistical evidence. The claim therefore had reasonable grounds and a real prospect of success. Permission to introduce a later competing report was refused because factual disputes were unsuitable for determination for the first time on a strike-out application.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The court held that the claim was commenced within the limitation period under section 7(5)(a) of the Human Rights Act 1998. The respondent’s alternative ground was rejected: [2017] UKSC 78.
2. Court of Appeal: The appeal was dismissed because time was held to run from the Disciplinary Tribunal’s decision. The court refused renewed permission concerning an extension under section 7(5)(b): [2016] EWCA Civ 775; [2016] 1 WLR 4085.
3. High Court: Warby J held that the indirect discrimination claim was adequately pleaded and had a real prospect of success, but that it was time-barred: [2014] EWHC 4324 (QB).
4. Master: Deputy Master Eyre struck out the statement of case or granted summary judgment for the Board, holding among other matters that the human rights allegation was time-barred.