High Court: Sanction should stand despite one part of the appeal succeeding
A tribunal was entitled to disbar a barrister over her conduct of a dispute with the father of their children, during which she misled the court, the High Court has ruled.
In the latest case to consider the extent to which regulators can take action over events in a lawyer’s personal life, Mr Justice Bourne said the actions of ‘Ms X’ would have been misconduct in a professional setting and the Bar disciplinary tribunal was entitled to find it so even though it was here a personal matter.
Ms X was called to the Bar in 2001, had twins in 2008 and held a practising certificate until 31 March 2015.
Disputes about the children developed, leading to court proceedings between 2014 and 2016 over payment for the children’s education and applications by Ms X for non-molestation orders. Mr X complained to the Bar Standards Board (BSB) about Ms X’s conduct in those proceedings.
There were two disciplinary cases. In the first, the tribunal held that Ms X misled the court about Mr X’s receipt and/or knowledge of a draft order and/or an application (charge 1), failed to comply with four court orders (charge 2) and misled the court by telling a judge that a hearing had been listed on 17 June 2015 before Mostyn J when it had not (charge 3).
In the second case, the tribunal found that she made a range of court applications that were without merit, leading to the imposition of the family law equivalent of a civil restraint order (charge 4).
In relation to each charge, it said Ms X was in breach of core duty 5 (CD5) – not acting in a way that diminishes the trust and confidence which the public places in the barrister or the profession – and rule rC8: “You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).”
The tribunal disbarred Ms X in respect of charges 1, 3 and 4 and prohibited her from applying for a practising certificate for 12 months in respect of charge 2.
Ms X appealed on nine grounds, the first of which was that the conduct, if proved, should not have been treated as a breach of the BSB code of conduct.
Paragraph gC27 provides that conduct in a barrister’s private or personal life will not usually be treated as a breach of these duties and rules unless it involves abuse of their professional position or committing a non-minor criminal offence.
Bourne J rejected the submission of Ms X’s counsel, Marc Beaumont, that the BSB was bound by gC27 “as if it were a hard-edged rule and therefore was obliged to particularise any criminal offence or abuse of a professional position on which it relied”.
He explained: “It seems to me that, applying the guidance, conduct in a person’s private or personal life is in general not likely to be treated as a breach of CD5 but nevertheless can be so treated for good reason.
“The reason could be that the conduct, though personal or private, clearly is or is analogous to conduct which contravenes other provisions of the code.
“In the present case the relevant conduct involved acts and omissions in, or closely connected with, court proceedings. There is no doubt at all that conduct such as misleading a court, disobeying court orders and wasting or misusing the court’s time to the detriment of other court users would be professional misconduct if committed in the course of a barrister’s professional practice.
“In my judgment it was open to the tribunal to rule that conduct of that kind was professional misconduct though committed in a personal capacity, if in fact it infringed a provision such as CD5 or rC8.”
Other arguments rejected by the court included that Ms X did not have a fair trial because she was not provided with funding to be represented before the tribunal. Bourne J said she had not proved the proceedings were obviously unfair because of a lack of funding.
He dismissed the contention that the conduct could not have had a negative impact on the public because of the private nature of family proceedings.
“If it were right, then barristers providing professional services in private family proceedings could misbehave without fear of transgressing CD5 or rC8.”
However, the judge did overturn the tribunal’s finding on charge 3, saying the panel could not have been sure that Ms X was the author of a communication which deliberately misled the court.
But he decided against remitting the question of sanction, noting that the tribunal did not identify charge 3 as an aggravating factor in respect of any other charge.
“In my judgment there is no logical reason why the tribunal would change its decision on the sanction for charges 1 and 4, and no prospect that it would do so if invited to reconsider the case.
“Looking at charges 1, 2 and 4 afresh, I therefore see no grounds for overturning the sanction imposed and no risk of injustice.”
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