High Court: BSB encounters problems over using judges for disciplinary appeals
Barristers are increasingly instructing “fairly litigious” solicitors and other counsel to defend them in disciplinary proceedings, but to little effect, the Bar Standards Board (BSB) has said.
The increased involvement of the Bar Mutual Indemnity Fund (BMIF) in disciplinary cases has resulted in an increase in the number of defendant barristers instructing solicitors and counsel on a fee-paying basis, according to the annual report of the BSB’s professional conduct department.
Nonetheless, the BSB was successful in 91% of cases referred for disciplinary action in 2010, up from 76% just two years earlier.
While more representation of defendants was “broadly to be welcomed”, the report said it was creating additional work for the BSB “that is not necessarily warranted by the nature of the cases”.
It added: “This has caused some parts of disciplinary work to become more akin to contested litigation. The solicitors used by BMIF are proving to be fairly litigious, resulting in a disproportionate amount of time being spent dealing with solicitors’ correspondence and challenges to the process. The statistics regarding the BSB’s success in proving disciplinary charges demonstrate that these challenges are rarely successful.”
Figures in the report show that the three main causes of disciplinary action last year were failing to respond promptly to a complaint, failing to complete CPD, and failing to pay a non-disciplinary fine (for example, failing to complete CPD initially attracts a £300 administrative fine).
Meanwhile, the report revealed a massive jump in the number of complaints about dishonesty or discreditable conduct by barristers, from 10 in 2009 to 72 in 2010 – after incompetence (which is now a matter for the Legal Ombudsman), this was the most common type of complaint.
The report said: “Complaints in this category reflect potential breaches of paragraph 301(a) of the code and mostly relate to allegations about barristers’ behaviour outside their capacity as lawyers, for example in their private life or in an employed role unconnected with the provision of legal services.”
In all the BSB dealt with 682 complaints in 2010, a 6.4% drop on 2009 that was entirely attributable to the Legal Ombudsman opening in October and taking over all service complaints; without this, the number would almost certainly have gone up.
Finally, the BSB is to consider paying retired High Court judges to help clear a backlog in appeals against Bar Disciplinary Tribunal decisions.
Appeals are made to the Visitors to the Inns of Court, a separate jurisdiction to the court system which involves High Court judges sitting with lay and barrister members (the judges taking on the status of “Visitors” rather than sitting officially as judges). It has been accepted that this is an anachronism and should be replaced with appeals to the High Court, but there is no sign of the necessary legislation to effect it being introduced.
In 2010, 29 appeals were submitted, compared to 17 in 2009, but just eight have been heard in the past two years. Currently there are 32 appeals outstanding, the highest for five years.
The report said: “The problem lies in the fact the Visitors jurisdiction is not part of the standard work of the courts and therefore needs to be ‘tagged on’ to the High Court schedules, which are increasingly under pressure. The time taken by High Court judges to consider and hear appeals is funded through the court system and not by the Bar Council/BSB. Therefore it is not surprising that allocation of time for disciplinary tribunal appeals takes a low priority in relation to other High Court work.”
Sara Down, the BSB’s head of professional conduct, told last week’s board meeting that the only way to deal with the backlog was to pay retired judges to sit, at a cost of around £1,000 a day. This would have to be done at arm’s length through the Ministry of Justice as the BSB is the prosecuting authority.
graham Harry Moore 
I am the Architect of BCAS, the Barristers’ Complaints Advisory Service and was the first one to propose funded defence representation in Bar disciplinary cases.
It is simply not true that representation of Barristers in disciplinary cases serves no useful purpose. The BSB may not like having any organised opposition, but it must understand that when it prosecutes Barristers it causes immense anguish, holds back careers and jeopardises livelihoods. It is inevitable that such cases will be hard fought and right and proper that they should be.
The suggestion that representation makes little difference cannot be right and is not consistent with my own experience as a specialist adviser and defence Advocate in such cases. I have procured the dismissal of a number of BSB Charges, sometimes it must be said, because such Charges are misconceived and should never have been brought.
The BSB’s Complaints Committee is not and cannot be perfect and it DOES make mistakes from time to time.
It is surprising that the BSB is reported to have suggested that some BSB prosecutions do not warrant vigorous defence representation. The simple way to avoid a contest is not to cause one, save in the most serious and clearcut cases.
Not all Barristers are funded by BMIF in these cases: some have to fund their own representation. And BMIF do not readily grant funding.
A statutory right of appeal to the High Court is long overdue. This would bring the Bar into line with other professions. The Judges are not geared up to accommodating these cases and this causes delays in listing. Many of these cases are very serious indeed and an Appellant is entitled to a degree of expedition and efficiency in listing arrangements.
Prosecutions trespassing upon private life are potentially unlawful under section 6 of the Human Rights Act. The BSB in fact looks at these quite carefully and does not interfere and it is right to exercise such restraint.
Marc Beaumont