Ekperigin v Bar Standards Board

In deciding whether to reduce or dispense with pupillage, the relevant question is whether knowledge and experience gained elsewhere clearly make the required training unnecessary. The non-practising stage has a distinct purpose. It involves close observation, supervision and professional learning through proximity to a registered pupil supervisor. Experience involving substantial independent work, even with satisfactory performance and advocacy, may therefore be insufficiently equivalent. The assessment must remain case-specific. A generalised “floodgates” policy is improper, but an isolated reference to it will not invalidate a decision where it did not materially influence the outcome. A subjective hope that an exemption will be granted does not create a legitimate expectation in public law.

This was a statutory appeal under section 24 of the Crime and Courts Act 2013 from the decision of the Bar Standards Board Authorisations Review Panel, communicated on 19 September 2018. The panel had refused the appellant’s application for complete exemption from the non-practising stage of pupillage.

The appellant relied on legal employment with HB Public Law, including supervised casework and advocacy, and argued that the experience was equivalent to the first six months of pupillage. He challenged the earlier delegation of his application, the panel’s treatment of supervision evidence, its reference to possible “floodgates” consequences, alleged legitimate expectation, and the reasonableness and proportionality of the refusal. The central issue was whether the panel’s decision was wrong and should be replaced under section 24.

1. Appeal dismissed. Under section 24(6) of the Crime and Courts Act 2013, the High Court had a wide but principled discretion. The question was whether the panel’s decision was wrong so as to justify substitution of a different decision.
2. The review panel had considered the application afresh, as required by the Bar Standards Board Guidance Notes. Any complaint about the earlier officer’s delegation was therefore academic.
3. The governing criteria required the Board to determine whether the applicant’s relevant knowledge and experience clearly made some or all pupillage unnecessary. Relevant considerations included duration and variety of experience, supervision and assessment, the amount and quality of legal work, advocacy achievements and jurisdiction. The non-practising stage was important and was not readily reducible.
4. The first stage of pupillage was directed to close interaction with and observation of a pupil supervisor. It was intended to develop professional conduct, client management and ethics through a form of practical osmosis. The appellant’s satisfactory and substantial work at HB Public Law, although involving advocacy and independent case management, was performed with limited supervision and without the structured proximity to a registered pupil supervisor contemplated by non-practising pupillage.
5. The panel was entitled to conclude that the evidence did not establish equivalence. Its view that the experience might more strongly support a reduction in the practising stage did not require reduction of the non-practising stage.
6. The reference in the meeting notes to a possible “floodgates” outcome was inappropriate. Nevertheless, there was no sufficient evidence that it materially influenced the decision, which was otherwise case-specific and supported by the evidence. It did not invalidate the decision.
7. No legitimate expectation arose from the published rules or the appellant’s dealings with the Board. The decision was neither unreasonable nor disproportionate.
8. The court permitted fresh evidence concerning supervision, despite the first Ladd v Marshall requirement not being satisfied. The evidence did not alter the outcome. The court assessed costs thrown away pursuant to the earlier order of Lang J at £3,210 inclusive of VAT. There was no order as to the costs of and incidental to the appeal. The decision was final under section 24(4).

• High Court (Administrative Court): dismissed the statutory appeal from the Bar Standards Board Authorisations Review Panel decision communicated on 19 September 2018.
• Bar Standards Board: an officer first refused the application on 3 May 2018; the Authorisations Review Panel then reconsidered it afresh and refused the requested complete exemption.