O sued the Bar Standards Board ('BSB') for damages in respect of disciplinary proceedings against her which were ultimately not proved. The complaints against O alleged that she conducted litigation in her own right. O's defence was that she was entitled to take the steps she had taken (for example, signing statements of case) under the Civil Procedure Rules. In February 2013, the BSB published a report entitled 'Report on Diversity of Barristers Subject to Complaints 2013'. The report made a number of findings about the relatively likelihood of BME barristers being subject to disciplinary action.
O submitted a claim to the High Court for damages. One of the heads of claim alleged that her fair trial rights under Article 6 had been infringed, that she had not been given sufficient time to prepare her case, and that the BSB had indirectly discriminated against her in breach of Articles 6 and 14 of the ECHR. Her claim was initially struck out by a Deputy Master. He held that the Article 14 claim was time-barred, had no reasonable basis, and had no real prospect of success. O appealed this decision to the High Court on the basis that an extension should have been granted and that the claim should not have been struck out.
On appeal, Warby J held that there was at least an arguable suggestion that the disciplinary proceedings against O were sufficiently determinative of O's civil rights that they engaged the Article 14/non-discrimination claim. Moreover, he pointed to the statistical evidence in the February 2013 report that indicates that in practice the BSB disciplinary system impacts disproportionately on BME barristers. Rejecting the BSB's submissions on the point, he concluded that it would not be possible for the High Court to determine in the present appeal whether or not O had a real prospect of establishing that the statistics were significant. Notwithstanding this, he rejected the claim as being out of time since it was not brought within one year of the conduct complained of. O has since announced that she plans to appeal the decision that the claim is time-barred.
The case is a salutary reminder to regulators of the need to be aware of discrimination arguments in the context of disciplinary proceedings and of potential damages claims. The issue of whether professional disciplinary proceedings disproportionately impact on BME registrants has arisen in a number of professions recently and Warby J's judgment makes clear that where suggestions of indirect discrimination are supported by empirical evidence, the courts may be slow to strike out damages claims.