AB, (A Barrister) v Bar Standards Board

An appellate court may permit a pure point of law not taken below where the opposing party has adequate opportunity to answer it, has not suffered detriment from the omission, and can be protected in costs. Fresh evidence is admitted only where the applicable criteria are satisfied, including reasonable diligence, probable material influence and apparent credibility.

Private conduct by a barrister is generally outside the likely reach of professional discipline under the relevant guidance, but may amount to misconduct where it is closely connected with court proceedings and infringes core professional duties. Professional misconduct requires serious conduct, but not moral culpability. The hypothetical reasonable member of the public is the relevant standard; actual public knowledge is unnecessary.

The appellant, an unregistered barrister, appealed against a tribunal decision convicting her of misconduct and disbarring her. The charges arose from family proceedings involving her children and included misleading the court, repeated non-compliance with court orders, and making applications which led to a section 91 order and a civil restraint order.

She challenged the tribunal’s jurisdiction, fairness, findings, treatment of alleged mental illness, and sanctions. She also sought to introduce new legal arguments and psychological evidence on appeal. The central issues were whether those points and evidence could be received, whether the conduct amounted to professional misconduct, and whether the findings and sanctions were lawful.

1. New points and evidence. Pure points of law could be raised for the first time because the respondent had adequate opportunity to answer them, no material prejudice was shown, and the issues did not require new evidence. A factual Article 6 complaint requiring a searching evidential inquiry was refused permission. The application to adduce the psychologist’s report failed the Ladd v Marshall criteria. The report did not show that the evidence could not reasonably have been obtained earlier, would probably have influenced the result, or was sufficiently persuasive on causation.
2. Private conduct and professional duties. The guidance in paragraph gC27 was not a hard-edged rule. Private or personal conduct was generally not likely to breach CD5, but could do so for good reason where it was analogous to conduct prohibited by the Code. Misleading a court, disobeying court orders and misusing court proceedings could amount to professional misconduct even when undertaken in a personal capacity. The tribunal had applied that distinction correctly.
3. Meaning of “the public”. The assessment under CD5 and rC8 was objective and concerned the reaction of a hypothetical reasonable member of the public. It was unnecessary to prove that the public at large knew of the conduct. Conduct in private family proceedings could therefore diminish public trust or undermine perceptions of honesty and independence.
4. Seriousness and mental illness. A departure from professional rules must be serious to constitute professional misconduct. Moral culpability is not an additional threshold requirement, although it may assist in explaining why conduct is sufficiently serious. Repeated breaches of court orders and litigation leading to section 91 and civil restraint orders were sufficiently serious. There was no adequate evidence that mental illness caused the conduct, and permitting that defence on appeal would require a different trial.
5. Estoppel and evidence. No cause of action estoppel arose from the abandoned second proceedings because they had not ended by a judicial act. The tribunal’s finding on charge 3 was unsafe: the evidence did not establish to the requisite standard that the appellant had deliberately misled the court. The findings on charges 1, 2 and 4 were upheld.
6. Disposition. The finding of misconduct and concurrent disbarment on charge 3 were set aside. The appeal was otherwise dismissed. The sanctions on charges 1, 2 and 4 were not remitted because charge 3 had not been treated as aggravating the sanctions imposed for the other charges.

• Bar Tribunals and Adjudication Service tribunal: convicted the appellant of misconduct and imposed disbarment on charges 1, 3 and 4, together with a 12-month prohibition on applying for a practising certificate for charge 2.
• High Court (Administrative Court): allowed the appeal in respect of charge 3 and its concurrent disbarment sanction, and dismissed the appeal in all other respects.