A disciplinary tribunal was right to disbar a barrister who misled the court during family proceedings even though she was acting in a personal capacity, the High Court has found.
'AB', who was called to the bar in 2001, was banned from practising earlier this year over her conduct in proceedings involving the father of her children. The dispute concerned the payment of their children’s school fees and the seeking of non-molestation orders.
The tribunal upheld that the appellant misled the court, failed to comply with court orders, and made a range of court applications that were without merit during two sets of proceedings between 2014 and 2016.
'AB' appealed the tribunal’s decision on nine grounds. She first contended that the conduct alleged by the charges, if proved, should not have been treated as a breach of the bar’s code of conduct because it was conducted in her private or personal life which did not involve any abuse of her professional position.
Mr Justice Bourne allowed AB to rely on this ground of appeal, stating that the public/private distinction is ‘a filter which a disciplinary tribunal is bound to apply in any case clearly involving a barrister’s conduct in his or her private life rather than in his or her practice as a barrister’.
However, the ground of appeal failed. ‘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,’ Bourne J said.
The court also rejected arguments that disbarment was ‘manifestly excessive and disproportionate’ and that AB did not have a fair trial because of lack of defence funding.
However, the judge did overturn the tribunal’s finding on Charge 3 - that AB misled the court by telling a judge that a hearing had been listed on 17 June 2015 before Mostyn J when it had not - saying the tribunal could not have been sure that AB was the author of a communication which deliberately misled the court.
In all other respects the appeal was dismissed and Bourne J did not remit the question of sanction to the disciplinary tribunal.
The number of barristers disbarred climbed to a three-year high in 2019/20 and a ‘considerably higher’ proportion of disciplinary cases related to conduct that fell outside professional life.