Hot on the heels of Michalak v GMC[1], the Supreme Court dealt with another case which arose in the context of a discrimination claim brought against a statutory regulator arising out of the regulator’s disciplinary proceedings.

O’Connor v Bar Standards Board[2]

In this case, the Appellant barrister had been the subject of disciplinary proceedings before the Bar Standards Board which ultimately resulted in her acquittal on appeal. She pursued a discrimination claim against the regulator in the High Court.

The Appellant’s complaint was that the disciplinary proceedings were brought against her for reasons which infringed her rights under Article 14 of the European Convention on Human Rights (ECHR) in conjunction with Article 6 contrary to Section 6 of the Human Rights Act 1998.

The Respondents maintained that the claim was time barred. The question for the Court was whether the disciplinary proceedings constituted a course of conduct, and if so, the timespan of that conduct and whether the claim was brought in time.

In the High Court Warby J had held that the claim was time barred under Section 7(5)(a) of the Human Rights Act 1998. On appeal, the Court of Appeal held that time had started to run for the purposes of the limitation period when the disciplinary tribunal had found the charges proved and consequently the claim was time barred.

The Supreme Court’s judgment

The Supreme Court held that:

‘[29]…the alleged infringement of Convention rights in the present case arises from a single continuous course of conduct. …the essence of the complaint made here is the initiation and pursuit of the proceedings to their conclusion i.e the entirety of the course of conduct as opposed to any component steps. …It cannot have been the intention of Parliament that each step should be an ‘act’ to which the one year limitation period should apply.’

The Court was also required to consider the Respondents’ arguments that the Article 14 ECHR claim of indirect discrimination had no real prospects of success. The Respondents based that argument on the absence of statistics sufficient ‘to raise a potential case of discrimination, general statements of disproportionate impact being unlikely to be sufficient.’

The Court noted the existing jurisprudence of the European Court of Human Rights to the effect that indirect discrimination claims can be proved without statistical evidence.

Comment

The decision will no doubt be an unwelcome development for regulators. It will take some time before the practical effects of the Supreme Court’s recent decisions in Michalak, R(UNISON) v Lord Chancellor and this case can be properly assessed. They will undoubtedly have financial implications for regulators, even though the proportion of claims which ultimately succeed on the merits may be very low.