A practising barrister who alleges that her regulator discriminated against her on grounds of her race in bringing disciplinary proceedings has won the backing of the UK's highest court. In O'Connor v Bar Standards Board, five Supreme Court justices unanimously granted Daphne Evadney Portia O'Connor's appeal against a Bar Standards Board decision to strike out a claim that the BSB had acted unlawfully in charging her with professional misconduct.
O'Connor, who was the first barrister to set up a legal disciplinary practice (LDP) in England, had been found guilty in 2011 of unlawfully conducting litigation, but was cleared the following year on appeal to the Visitors to the Inns of Court. She issued her proceedings against the BSB in 2013, alleging violation of articles 6 and 14 of the European Convention on Human Rights, contrary to section 6 of the Human Rights Act 1998.
The BSB maintained that O'Connor's claim was time-barred and in 2014 applied for the case to be struck out as it had no prospect of success. It also stated that the allegation rests on an assertion that the regulator is 'habitually or systematically unfair to black barristers', maintaining that the evidence is 'quite to the contrary'.
Ruling today, the Supreme Court said the case hinged on the mechanics of the disciplinary process rather than whether black and minority ethnic solicitors were more likely to be prosecuted. In particular it needed to decide whether the proceedings involving O'Connor and the BSB should be considered a series of discrete acts or a single continuous act.
Giving lead judgment, Lord Lloyd-Jones said that the alleged infringement of convention rights arose from a single continuous course of conduct. In passing the Human Rights Act, Parliament could not have intended that each step in a case would be an 'act' to which a one-year limitation should apply. Lady Hale, Lord Kerr, Lord Wilson and Lady Black concurred.
The Bar Standards Board said: 'We note the judgment of the Supreme Court which relates only to whether or not Ms O’Connor had brought her claim against the BSB within the time limits. It will now be for a future court to decide the substance of her claim. Given that the proceedings are still live, it would not be appropriate for us to comment further.'
O'Connor was represented by Mark Anderson QC and S. Chelvan of No5 Chambers, instructed by Pegasus LDP; the BSB by Alison Padfield of 4 New Square Chambers, instructed by BLM.