Mehey & Others v Visitors to the Inns of Court [2014] EWCA Civ 1630 - Jackson LJ (leading judgment)In this case the Court of Appeal upheld an earlier Divisional Court decision that individuals who
Mehey & Others v Visitors to the Inns of Court [2014] EWCA Civ 1630 - Jackson LJ (leading judgment)
In this case the Court of Appeal upheld an earlier Divisional Court decision that individuals who were not part of a pool specifically appointed to hear disciplinary cases could still sit on that panels, while leaving open the question of whether it had dealt correctly with the issue of de facto judges.
The Court of Appeal considered an appeal against the Divisional Court's decision in 2013 that barristers and lay representatives were entitled to hear disciplinary proceedings against barristers and consequent appeals, even if they were not members of the pool established by the Tribunals Appointments Body which the Council of the Inns of Court ('COIC') set up in 2006. The Court refused an application to appeal against that decision. Our summary of the High Court decision can be found here.
The Court held that there were no intrinsic or external limits on which particular judges, barristers and lay representatives could be selected to sit on disciplinary panels. If the intention had been to restrict appointments to members of the COIC pool, the Rules and Regulations would have been amended to this effect. However, they were not. In the circumstances, if the President or the Lord Chief Justice nominated barristers or lay representatives who, in their opinion, were suitable to hear a disciplinary charge or appeal, that constituted compliance with Article 6 ECHR. Moreover, the regulatory arrangements for the Bar did not explicitly prevent barristers from outside the COIC pool from sitting on disciplinary Tribunals or as Visitors for the purposes of appeals.
Interestingly, the Court declined to deal substantively with the Divisional Court's treatment of the de facto judge doctrine. The doctrine essentially states that where a judge is appointed to hear a case, has sufficient expertise to do so and is acknowledged by the parties as having authority to hear and decide the case, they (and their decision) will be treated as authoritative, even if it is later discovered that there was no statutory or legislative basis for the judge to sit. The Court of Appeal indicated that, if the matter were critical, it would have been inclined to grant permission on this issue. However, because the BSB succeeded on the main ground of its defence (namely that individual appointed by the President or LCJ did have authority to sit as Tribunal members or Visitors), the question did not fall to be decided. In order for the matter to be dealt with substantively, the Court indicated that more research on the issue would help, such as how other common law and civil jurisdictions dealt with it.
The Court made clear that this decision can be cited in future occasions and it appears likely that this is the final word in relation to the recent line of challenges to BSB disciplinary decisions based on arguments about the constitution of the panel. While likely to arise only in very rare circumstances, it appears that scope remains for the higher courts to consider the de facto judge doctrine.
In this case the Court of Appeal upheld an earlier Divisional Court decision that individuals who were not part of a pool specifically appointed to hear disciplinary cases could still sit on that panels, while leaving open the question of whether it had dealt correctly with the issue of de facto judges.
The Court of Appeal considered an appeal against the Divisional Court's decision in 2013 that barristers and lay representatives were entitled to hear disciplinary proceedings against barristers and consequent appeals, even if they were not members of the pool established by the Tribunals Appointments Body which the Council of the Inns of Court ('COIC') set up in 2006. The Court refused an application to appeal against that decision. Our summary of the High Court decision can be found here.
The Court held that there were no intrinsic or external limits on which particular judges, barristers and lay representatives could be selected to sit on disciplinary panels. If the intention had been to restrict appointments to members of the COIC pool, the Rules and Regulations would have been amended to this effect. However, they were not. In the circumstances, if the President or the Lord Chief Justice nominated barristers or lay representatives who, in their opinion, were suitable to hear a disciplinary charge or appeal, that constituted compliance with Article 6 ECHR. Moreover, the regulatory arrangements for the Bar did not explicitly prevent barristers from outside the COIC pool from sitting on disciplinary Tribunals or as Visitors for the purposes of appeals.
Interestingly, the Court declined to deal substantively with the Divisional Court's treatment of the de facto judge doctrine. The doctrine essentially states that where a judge is appointed to hear a case, has sufficient expertise to do so and is acknowledged by the parties as having authority to hear and decide the case, they (and their decision) will be treated as authoritative, even if it is later discovered that there was no statutory or legislative basis for the judge to sit. The Court of Appeal indicated that, if the matter were critical, it would have been inclined to grant permission on this issue. However, because the BSB succeeded on the main ground of its defence (namely that individual appointed by the President or LCJ did have authority to sit as Tribunal members or Visitors), the question did not fall to be decided. In order for the matter to be dealt with substantively, the Court indicated that more research on the issue would help, such as how other common law and civil jurisdictions dealt with it.
The Court made clear that this decision can be cited in future occasions and it appears likely that this is the final word in relation to the recent line of challenges to BSB disciplinary decisions based on arguments about the constitution of the panel. While likely to arise only in very rare circumstances, it appears that scope remains for the higher courts to consider the de facto judge doctrine.