A barrister exonerated of conduct breaches at her pioneering practice has failed in a discrimination claim against the Bar Standards Board on the grounds she was too late in making it.
In O'Connor v Bar Standards Board, the Court of Appeal said Daphne Evadney Portia O’Connor’s claim was time-barred in that she had issued proceedings seven months after her appeal against BSB allegations was upheld.
O’Connor had accused the regulator of ‘systematic bias’ against black barristers and said the code of conduct applied in such a way as to disadvantage ‘ethnic barristers’.
O’Connor was the first barrister to become a partner in a legal disciplinary practice, in 2010.
In the same year she charged with six alleged breaches of conduct by the BSB, five of which were proved by tribunal. However in August 2012 the Visitors to the Inns of Court overturned the conviction. The discrimination proceedings were issued in February 2013.
Deputy Master Eyre ruled in March 2014 that the allegation that the BSB infringed O'Connor's right to a fair trial was ‘on its face time-barred’ as it was commenced more than a year after disciplinary proceedings began. This decision was upheld in the High Court by Mr Justice Warby.
Lawyers for O’Connor said the act of prosecuting her started with charges being brought in June 2010 and continued until August 2012 when the appeal was upheld. The BSB’s conduct over this whole period ‘should be viewed as a single continuing act’.
But on appeal the master of the rolls, Lord Dyson, said the one-year period started to run from May 2011 when the disciplinary tribunal found five of the charges proved.
‘The prosecution comes to an end with the verdict when the prosecution has run its course,’ said Dyson. ‘In opposing an appeal by a convicted defendant, the prosecutor is not continuing the prosecution.’
Dyson said O’Connor’s failure to set out the grounds of her challenge and any evidence for an extension of time was ‘fatal’ to her argument. He added: ‘The judge was right to refuse the deputy master’s decision for the simple reason that she had not asked him to grant one.’