O’Connor (Appellant) v Bar Standards Board (Respondent)  UKSC 78 – read judgment
The Supreme Court has ruled that a barrister’s claim against the Bar Standards Board for discrimination should not be time barred under the one year limit prescribed by the Human Rights Act. In her case, the Court said, the time limit for bringing proceedings only started running when she successfully appealed against disciplinary action taken against her. The decision to bring disciplinary proceedings and the subsequent hearings were part of a single process, not a series of disparate acts which set the time limitation period running.
The Court also concluded that the High Court judge was correct to conclude that the appellant’s claim of indirect discrimination in respect of her right to be treated equally under the law (Articles 14 and Article 6) did have a real prospect of success.
The following report is based on a combination of the full judgment and the Supreme Court’s press summary.
Background facts and law
Ms O’Connor is a practising barrister who faced a number of disciplinary charges brought against her by the Bar Standards Board in 2010. In May 2011, the Disciplinary Tribunal found most of these charges proved. The appellant, who is black, appealed to the Visitors of the Inns of Court and in August 2012 her appeal was allowed on the basis that none of the alleged conduct involved any breach of the Bar Code of Conduct.
In February 2013, the appellant issued the present proceedings, which included an allegation of violation of Article 14 of the ECHR together with Article 6. She claimed that the BSB, by bringing the disciplinary proceedings. had discriminated against her on racial or ethnic grounds. In particular, she alleged that the respondent had infringed her right to a fair trail on grounds of race.
Since this was a claim under section 6 of the Human Rights Act 1998 the limitation provisions under that Act applied. The BSB maintained that this claim was time – barred under section 7(5)(a) of the 1998 Act which provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place.
Shortly afterwards the respondent sought to strike out the case on the basis that none of the appellant’s had any real prospect of success and, in any event, there was a complete defence under section 7(5)(a) . Although the strike out was initially successful, on appeal Warby J in the High Court held that there was a sufficiently pleaded case that the respondent had indirectly discriminated against the appellant. However, he also held that the claim was indeed time – barred under the Human Rights Act.
The Court of Appeal held that the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the appellant proved and so had expired before she had issued her claim.
The appeal essentially turned on one question: when the ‘prosecution’ of the appellant commenced . If it started with the decision to bring proceedings was taken in 2010 then the one – year time limit had expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant was considered to be a continuing state of affairs up to the tribunal decision, time under section 7 only expired in May 2012, which meant that her discrimination claim was in time.
It was argued on behalf of the respondent that the decision to refer the appellant to a disciplinary tribunal, even if indirectly discriminatory, was a one – off act with potentially continuing consequences rather than a continuing violation.
The Court rejected the respondent’s argument and unanimously upheld the appeal.
Reasoning behind the decision
The preliminary question was the precise nature of the appellant’s claim. Her complaint was directed to the conduct of the BSB in bringing and pursuing disciplinary proceedings against her, not to an alleged state of affairs in which black and minority ethnicity lawyers were more likely to be the subject of such proceedings. Therefore, the bringing and pursuit of the disciplinary proceedings must be the focus of the investigation in terms of section 7(5)(a) of the 1998 Act.
There will be many situations in which the conduct which gives rise to the infringement of a Convention right will not be an instantaneous act but a course of conduct. The words of section 7(5)(a) should be given a meaning which enables them to apply to a continuing act of alleged incompatibility. [para 26]
Lord Loyd-Jones continued that, were it otherwise, a claimant would be placed in the difficult position of having to bring a human rights claim within one year of the commencement of what might be lengthy proceeding s, without knowing the outcome which might be very material to the claim.
As to the gravamen of Ms O’Connors’ complaint under Article 14, the respondent argued that any discrimination claim founded on similar Strasbourg cases such as DH v Czech Republic (2008 ) 47 EHRR 3 could have no real prospect of success without statistics sufficient to raise a prima facie case of discrimination. It was not sufficient to make general statements of disproportionate impact on BME lawyers. In this regard the respondent relied on Oršuš v Croatia (2011 ) 52 EHRR 7. The Court of Appeal had considerable sympathy for this view and Lord Dyson MR observed (at para 35) that, in his view, the appellant’s case, on the basis of the evidence she had adduced so far, was very thin.
The Supreme Court observed that, had this point been raised in isolation by BSB, it seems most unlikely that permission to appeal would have been granted. It would not have raised an important point of principle or practice. The point was therefore now adventitiously before this court only because BSB took a limitation point which in Lord Lloyd-Jones’ view, should fail. In any event, he continued,
the BSB’s submission in the present case rests on the fallacious assumption that an inference from statistical difference in treatment is the only way in which a claimant can establish an infringement of article 14.
As the Strasbourg court has made clear, indirect discrimination can be proved without statistical evidence (DH v Czech Republic at para 188; Oršuš at para 153).