Hendron v Bar Standards Board

A barrister whose practising certificate is suspended is an unregistered barrister under the applicable regulatory scheme. A rule applying only to specified regulated persons cannot impose a disciplinary duty on that barrister by implication.

Where the suspension existed when the underlying conduct occurred, the Legal Ombudsman lacks jurisdiction over the complaint because the respondent was not then an authorised person. A disciplinary finding based on non-compliance with the Ombudsman’s direction therefore cannot stand. Although an appellate court may remit a matter for fresh consideration, remittal should be refused where it would require a substantially new case after legally unsustainable proceedings, causing unfairness disproportionate to the public interest in further action.

Mr Hendron, a barrister, was suspended when he failed to reimburse £650 to a former direct-access client. The Legal Ombudsman later directed him to pay £850, comprising the reimbursement and compensation. Following his failure to pay, the Bar Standards Board charged him with professional misconduct under CD5 and rC71 of the BSB Handbook.

A Disciplinary Tribunal found both charges proved and imposed a three-month suspension and a concurrent nine-month prohibition on accepting direct-access instructions. On appeal, the BSB accepted that the Ombudsman lacked jurisdiction over the underlying complaint and that rC71 did not apply to a suspended barrister. The central issues were whether the appeal should be allowed and whether the case should be remitted for consideration of a fresh charge based on the original failure to reimburse the client.

1. Appeal allowed. The Disciplinary Tribunal’s findings and sanctions could not stand. At the relevant times Mr Hendron’s practising certificate was suspended, so he was an “unregistered barrister”. Under rC1.2 of the BSB Handbook, rC71 did not apply to him. The Ombudsman’s direction could not therefore found a lawful rC71 breach.
2. The Ombudsman also lacked jurisdiction over the underlying complaint. Under sections 125(1)(b), 128(1) and 128(7) of the Legal Services Act 2007, jurisdiction depended on the respondent being an authorised person at the time of the act or omission complained of. Mr Hendron was suspended when the failure to reimburse occurred. Non-compliance with the resulting direction could not lawfully constitute the CD5 breach charged.
3. The court rejected the additional grounds of appeal. The relevant amendment to the BSB Handbook concerned a procedural power of referral and did not retrospectively alter a substantive rule or vested right. Article 7 of the ECHR did not assist: the disciplinary proceedings were not criminal, public-protective suspension or restriction was not a penalty, and the later sanction was not heavier than the disqualification available under the earlier scheme.
4. The court also held that, absent the suspended-barrister problem, the Tribunal’s findings on impecuniosity, attempted payment, waiver, knowledge and the twin charges were open to it. The sanctions were likewise within the Tribunal’s judgment and entitled to considerable respect.
5. Remittal was refused. A fresh case would require a substantially refocused charge concerning the 2016 failure to reimburse, a new preliminary process and potentially a third referral. The client had been paid, no finding or sanction survived, the proceedings had cast a prolonged practical shadow over Mr Hendron, and the BSB had identified the fatal legal problem only belatedly. In the circumstances, further proceedings were not in the interests of justice or sufficiently justified by the public interest.

• High Court (Administrative Court): appeal from the Disciplinary Tribunal allowed. The findings of breach and sanctions were overturned, and the case was not remitted to the Bar Standards Board.