Hewson v Bar Standards Board

Appellate courts should show deference to specialist disciplinary tribunals when reviewing sanctions. The appeal is by way of review, not rehearing, and intervention is justified only for an error of principle or an evaluative decision outside the range of decisions reasonably open to the tribunal. A final appeal dismissed by consent is not “finally determined” for the purposes of CPR r 52.30, because that rule concerns an appeal ruled upon by the court or a permission application dismissed by it. A consent order may nevertheless be varied under CPR r 3.1(7) in exceptional circumstances. A terminal diagnosis does not expunge misconduct, but is a significant mitigating factor capable of justifying a shorter professional suspension.

Barbara Hewson, a barrister, appealed against a two-year suspension imposed by a disciplinary tribunal after she admitted serious and offensive social-media misconduct. Her first appeal, which challenged the length of the suspension on grounds unrelated to her later illness, was dismissed by consent.

After being diagnosed with terminal pancreatic cancer, she brought a second appeal, seeking to set aside the consent order, extend time, substitute new grounds and rely on fresh medical evidence. The central issues were whether the earlier appeal could be reopened or the consent order revoked, whether the fresh evidence could be admitted, and whether the terminal diagnosis justified reducing the suspension.

1. Procedural jurisdiction. The first appeal could not be reopened under the Civil Procedure Rules 1998 (CPR) r 52.30. Although an appeal may be disposed of by settlement or withdrawal, it is not “finally determined” unless the court has ruled on the appeal or dismissed an application for permission. The highly restrictive and exceptional nature of r 52.30 would, in any event, have made relief unavailable on these facts.
2. CPR r 3.1(7) permits variation or revocation of an order, but its discretion is constrained by the public interest in finality and the distinction between appeal and reconsideration. Final consent orders require exceptional circumstances. Here, the respondent’s consent, the exceptional terminal diagnosis and the need to determine the appeal on its merits justified setting aside the consent order.
3. The short delay was extended under r 52.15. The appellant was permitted to substitute the new ground of appeal under r 52.17 and to rely on fresh evidence under r 52.21(2). The evidence satisfied the Ladd v Marshall test, [1954] 1 W.L.R. 1489: it could not have been obtained earlier, would importantly influence the result, and was credible.
4. Sanction. Review of a specialist disciplinary sanction is not a rehearing. Respect is due to the tribunal’s evaluative judgment, and intervention is justified only for an error of principle or where the decision falls outside the bounds of what the tribunal could properly and reasonably decide. The two-year suspension was plainly justified on the evidence before the tribunal and was within that permissible range, consistently with Bawa-Garba v General Medical Council [2018] EWCA Civ 1879.
5. The terminal diagnosis was nevertheless a material mitigating factor which the tribunal should and would have considered had it been known. It did not erase the misconduct or undermine public confidence in regulation, but required some reduction in the otherwise appropriate suspension. The appeal was allowed and the suspension was substituted with a period of one year.

1. High Court (Administrative Court) — the first appeal was dismissed by consent on 3 March 2020. The consent order was later set aside under CPR r 3.1(7); the revived appeal was allowed and the suspension reduced to one year.
2. Disciplinary tribunal — imposed a two-year suspension on 18 December 2019 after admissions of serious misconduct.