Sophia Cannon v Bar Standards Board

A person is presumed to have capacity unless sufficient evidence establishes a decision-specific and time-specific inability to understand, retain, use or weigh relevant information, or communicate a decision. Mental ill health, vulnerability and difficulty engaging in proceedings may require adjustments for fairness, but do not of themselves rebut that presumption.

Fresh evidence on appeal is admitted only in the court’s discretion. The former Ladd v Marshall conditions remain relevant considerations. Professional disciplinary rules may extend to conduct in private litigation where the conduct is capable of diminishing public trust in the profession or undermining honesty and integrity. Res judicata requires a prior adjudication or judicial act.

The appellant, an unregistered barrister, was found by a Bar Disciplinary Tribunal to have committed four acts of professional misconduct arising from litigation conducted in her personal capacity. The Tribunal imposed disbarment for three charges and a 12-month prohibition on applying for a practising certificate for another.

On appeal, the High Court allowed her appeal on one charge but dismissed it on the other three. The appellant sought permission for a second appeal. She relied on alleged incapacity during the Tribunal and High Court proceedings, the claimed private character of the conduct, res judicata in relation to a renewed referral of charge 4, and non-disclosure of submissions concerning reporting restrictions.

1. Permission to appeal was refused on all grounds. Lewis LJ gave the judgment, with which Edis and Moylan LJJ agreed.

2. The proposed fresh psychiatric and witness evidence could not establish that the appellant lacked capacity at either material time. The governing inquiry was decision-specific and time-specific. The evidence did not rebut the presumption of capacity or show an inability to understand, retain, use or weigh relevant information, or communicate decisions. It instead showed vulnerabilities and difficulty engaging with stressful proceedings. Those matters concerned procedural fairness and possible adjustments, rather than incapacity.

3. The court applied the discretionary approach to fresh evidence described in Ladd v Marshall, as explained in Terluk v Berezovsky [2011] EWCA Civ 1534. As the evidence would have had no important influence on the appeal, permission to adduce it was refused. The capacity ground consequently had no realistic prospect of success.

4. In any event, if the appellant had been a protected party during the High Court appeal, the court would have validated the steps already taken under CPR 21.3(3). She had wished to appeal, had advanced grounds through counsel, and had suffered no disadvantage through the absence of a litigation friend.

5. Conduct in personal litigation was capable of breaching Core Duty 5 and rule 8. The Handbook’s public/private distinction was a filter, not an immunity. Misleading a court, disobeying orders, or wasting court time could amount to professional misconduct even when done in a personal capacity.

6. The renewed referral of charge 4 was not barred by Henderson v Henderson (1845) 3 Hare 100. The earlier referral had not produced an adjudication or other judicial act. Its abandonment because of a gap in the regulator’s referral powers did not prevent a further referral after the rules were amended.

7. Although material supplied to a judge should generally be disclosed to the parties, the undisclosed representations about reporting restrictions had no material effect on the High Court’s decision. That ground also had no realistic prospect of producing a different result. The court left open the scope of the finality provision in section 24 of the Crime and Courts Act 2013.

• Court of Appeal (Civil Division): refused permission to adduce fresh evidence and refused permission for a second appeal: [2023] EWCA Civ 278.
• High Court, Administrative Court: allowed the disciplinary appeal on one charge and dismissed it on three charges.
• Bar Disciplinary Tribunal: found four charges of professional misconduct proved, imposed disbarment for three charges and a 12-month prohibition on applying for a practising certificate for one charge.