Judgment date: 17 August 2012

Court overturn finding of professional misconduct by Bar Standards Board disciplinary tribunal; what does and does not amount to ‘conducting litigation’?

The appellant was a self-employed barrister who had set up a Limited Liability Partnership (LLP). 

In May 2011, the appellant had been found guilty of five counts of professional misconduct by the Bar Standards Board (BSB) disciplinary tribunal (the tribunal).  A number of the counts related to the signing by the appellant of the statement of truth that attaches to the statement of case in proceedings. 

A further count related to a letter to a firm of solicitors that the appellant’s Partnership had sent, enclosing a copy of a defence and counterclaim that had been filed with the court.  The tribunal found that both of those actions amounted to her conducting litigation.  The appellant appealed this finding of the tribunal, which she submitted was wrong.

The Civil Procedure Rules 22.1 and paragraph 23 of the Civil Procedure Rules, Practice Direction 22 states that self-employed barristers can sign statement of truth appended to statements of case. 

However, the Bar Code of Conduct had, at the relevant time, indicated that signing such a statement of truth or engaging in correspondence between parties was likely to amount to conducting litigation.

The Court considered the case of Agassi v Robison (Inspector of Taxes) (Bar Council intervening) [2006] 1 All ER 900, which established that engaging in correspondence with the opposing party did not amount to ‘conducting litigation’.   It was held that the relevant statement in the Code of Conduct at the relevant time was guidance and not in any way a prohibition on signing statements of truth, and therefore that the signing of it by the appellant was not professional misconduct. In relation to the letter that had been sent, Agassi was clear authority that the sending of a letter to the other party’s solicitors did not amount to conducting litigation.