Annexe M - The Hearings Before the Visitors Rules 2005

Annexe M - The Hearings Before The Visitors Rules 2005

We, the Judges of Her Majesty's High Court of Justice, in the exercise of our powers as Visitors to the Inns of Court, hereby make the following rules for the purpose of appeals to the Visitors from Disciplinary Tribunals of the Council of the Inns of Court and certain other appeals to the Visitors:

Citation and Commencement

1. These rules may be cited as the Hearings before the Visitors Rules 2005 and shall come into effect on 10th October 2005.

Interpretation

2. (1) The Interpretation Act 1978 shall apply in relation to the interpretation of these Rules as it applies to the interpretation of an Act of Parliament.

(2) In these Rules, unless the context otherwise requires

“answer” means the answer served pursuant to rule 11;

"appellant" means an appellant from an order of a tribunal;

"appellant student" means a student disciplined by or expelled from an Inn of Court, or a person refused admission to an Inn of Court as a student, who is appealing to the Visitors;

"appellant legal practitioner" means a legal practitioner wishing to appeal to the Visitors from a decision, on review, by the JRC under Part IV of the Consolidated Regulations of the Inns of Court;

"JRC" means the Joint Consolidated Regulations and Transfer Committee of the Inns' Council and the Bar Council or any successor body exercising the same responsibilities by whatever name called¹;

"Bar Council" means The General Council of the Bar;

“defendant” means the barrister against whom an order of a tribunal was made.

"Directions Judge" means a Judge nominated pursuant to rule 5;

“directions function” means any of the functions and powers conferred on a Directions Judge by rule 5;

"the Inns' Council" means the Council of the Inns of Court;

“petition” means the petition of appeal served pursuant to rule 7;

the “Professional Conduct and Complaints Committee” or “PCC” means the Professional Conduct and Complaints Committee of the Bar Council or any successor body exercising the same responsibilities by whatever name called²;

"the tribunal" means a Disciplinary Tribunal of the Council of the Inns of Court and includes a panel appointed to hear a summary case under the Summary Procedure Rules to be found at Annex L to the Code of Conduct of the Bar of England and Wales; and

"the Visitors" means the panel nominated to hear the appeal pursuant to rule 10 or, in the case of an appeal within rule 10(4) or (5), the single judge nominated to hear the appeal.

Any term defined in the Code of Conduct shall carry the same meaning as it does in Part X of the Code of Conduct.

The powers conferred upon the Lord Chief Justice by these Rules can be exercised on his behalf by a Judge of the Court of Appeal or a Judge of the High Court who is selected by him to act in this capacity.

Service of Documents

3. (1) Where pursuant to these Rules any document is to be served on any of the persons specified in the first column of the table in the Schedule to these Rules, that document shall be served on that person by sending it to the person specified and the address specified in the second column of that table against the person to be served.

(2) Such documents shall be served

(a) by recorded delivery post,

(b) by hand delivery, if a written confirmation of receipt is obtained, or

Notice of Appeal

4. (1) Subject to paragraph (2) below, written notice of intention to appeal against the finding or sentence of the tribunal must be served by the appellant on the person specified in paragraph (3) below within the period of 21 days beginning with the date on which the order of the tribunal was made or within such further time as may be allowed by the Lord Chief Justice or the Directions Judge.

(2) In the case of any appeal by the Bar Council against the acquittal of the defendant, written notice of intention to appeal against the finding or sentence of the tribunal must be served by the Bar Council on the person specified in paragraph (3) below within the period of 7 days beginning with the date on which the order of the tribunal was made or within such further time as may be allowed by the Lord Chief Justice or the Directions Judge.

(3) The notice of intention to appeal should be sent to the Clerk to the Visitors

4) The notice of intention to appeal shall specify the Inn of which the appellant or defendant (as the case may be) is a member.

(5) When serving a notice of intention to appeal, an appellant other than the Bar Council shall also give notice of an address at which service is to be made on the appellant;

Directions Judge

5. (1) Upon service on him of a notice of appeal under rule 4 above (whether or not served in time) the Lord Chief Justice shall nominate a single judge of the High Court or the Court of Appeal ("the Directions Judge") who is not a Bencher of the appellant’s or defendant’s (as the case may be) Inn to exercise the powers and functions conferred by this rule.

(2) Subject to paragraph (4) below, the Directions Judge may hold a hearing in order to determine how (if at all) he should exercise the directions functions.

(3) The Directions Judge shall consider the course of any appeal in relation to which he is appointed and may at any time give such directions and take such steps as appear to him to be necessary or desirable for the purpose of securing the just, expeditious and economical disposal of the appeal.

(4) In the case of any appeal by the Bar Council against the acquittal of the defendant, the Directions Judge shall hold a directions hearing no later than 21 days after service of the notice of appeal under rule 4 above and on that occasion, the Directions Judge shall determine whether the notice of appeal discloses a seriously arguable case that the Disciplinary Tribunal made an error of law which was material to its decision.

(5) On such a hearing under paragraph (4) above:

(a) If the Directions Judge determines that it is seriously arguable that the Disciplinary Tribunal made an error of law which was material to its decision, he shall give such directions and take such steps as appear to him to be necessary or desirable for the purpose of securing the just, expeditious and economical disposal of the appeal within a period not exceeding 28 days from the date of the Directions Hearing.

(b) If the Directions Judge shall determine that it is not seriously arguable that the Disciplinary Tribunal made any error of law which was material to its decision, he shall dismiss the appeal and make such order as to costs as he considers just.

(6) The directions that may be given and the steps that may be taken by the Directions Judge may relate to (but shall not be limited to) the following matters—

(a) the anticipated duration of the hearing;

(b) the variation of any timetable specified in these Rules;

(d) the failure by either party to comply with any timetable specified in these Rules or directed by him;

(e) the adjournment of the hearing; and

(f) where the sentence of the original tribunal has been pronounced, whether it should be stayed pending the outcome of the appeal.

(7) The Directions Judge may, on application made by the appellant (which must be served on the Bar Council at the time of making the application if the Bar Council is not the appellant) and after giving the Bar Council the opportunity to respond to the application, vary or set aside an order made against the appellant under regulation 28(2) of (3) of the Disciplinary Tribunal Rules on such terms and subject to such conditions (if any) as he considers appropriate.

(8) If, at any time, the Directions Judge concludes that a party has failed to comply with any obligation imposed by, or timetable specified in, these Rules or directed by him in exercise of his directions functions (as the case may be), he may also—

(a) make a final order for compliance by the party in default;

(b) direct that that party may not serve a petition or answer;

(d) order that any further step that appears to him to be necessary or desirable in order to provide for a fair and expeditious hearing of the matter be undertaken within a specified period;

(e) direct an expedited hearing where the party in default has been prohibited from serving an answer or the answer has been struck out.

(9) If, on an application made by the appellant, the Directions Judge concludes that payment of the sum required by the Disciplinary Tribunal Rules or by the Summary Procedure Rules to defray the expenses of the appeal would cause undue hardship to the appellant, the Directions Judge shall direct that such sum shall not be payable and that the petition of appeal may be served notwithstanding rule 7(5) below, and may grant any extension of time necessary for serving the petition of appeal.

No appeal from Directions Judge

6. There shall be no appeal against an order of the Directions Judge.

Service of Petition

7. (1) Save as provided in paragraph (2) below, a written petition of appeal containing the information required by rule 8 below must be served by the appellant on the persons specified in paragraph (3) below within the period of 42 days beginning with the date on which the order of the tribunal was made or within such further time as may be allowed by the Lord Chief Justice or the Directions Judge.

(2) In the case of any appeal by the Bar Council against the acquittal of the defendant, the written petition referred to in paragraph (1) above must be served by the appellant on the persons specified in paragraph (3) below within the period of 21 days beginning with the date on which the order of the tribunal was made or within such further time as may be allowed by the Lord Chief Justice or the Directions Judge.

(3) The persons to be served are

(a) the Lord Chief Justice;

(b) the Chairman of the Bar Council (unless the Bar Council is the appellant);

(d) the Treasurer of the Inn of which the appellant or defendant (as the case may be) is a member; and

(e) if the Bar Council is the appellant, the defendant.

(4) If an application for an extension of the period of 42 days specified in paragraphs (1) and (2) above is made to the Lord Chief Justice or the Directions Judge before the expiry of that period, the Lord Chief Justice or the Directions Judge may, if he sees fit, extend the period within which the petition must be served.

(5) Where no petition is served within the period specified in paragraphs (1) and (2) above or (where that period has been extended pursuant to paragraph (4)) the extended period, no further action may be taken in relation to the appeal unless the Lord Chief Justice directs otherwise.

(6) A petition of appeal may not be served, subject to any direction of the Directions Judge to the contrary under rule 5(9) above, unless any sum payable under the Disciplinary Tribunals Regulations or under the Summary Procedure Rules to defray the expenses of the appeal has been paid to the Bar Council.

Petition of Appeal

8. (1) The petition shall state whether the appeal is against the findings or sentence of the tribunal, or both.

(2) The petition shall contain the following particulars—

(a) the charges;

(b) a summary of the facts on which the charges were based;

(d) the sentence;

(e) any finding against which the appellant appeals (if any);

(f) the grounds for appeal, including for each matter appealed against the specific evidence on which the appellant will place reliance;

(g) in the case of an appeal by the Bar Council against an acquittal of the defendant on any charge, a concise statement of any errors of law which it is contended the Disciplinary Tribunal made and of why they were fundamental to its decision

(h) the relief sought; and

(i) if the hearing is estimated to last longer than one day, an estimate of the time required for the hearing.

(3) In the case of an appeal against sentence the petition may also refer to

(a) any factors which it is contended make the sentence unduly severe (or lenient) in relation to the appellant’s (or the defendant’s) record; and

(b) to sentences in other similar cases.

Service of other documents

9. (1) Subject to paragraph (2) below, the appellant shall, at the same time as serving the petition, serve on the Lord Chief Justice the number of copies specified in paragraph (4) below of the transcript of the proceedings before the tribunal whose decision is being appealed or, where the tribunal in question was a panel appointed to hear a summary matter, the statement of findings and sentence of the tribunal.

(2) If any transcript to be served pursuant to paragraph (1) above is not available when the petition is served, the copies of that transcript shall be served on the Lord Chief Justice as soon as practicable thereafter.

(3) Not less than 14 days before the date set for the hearing of an appeal

(a) a copy of every document intended to be produced at the hearing by any party shall be served by that party on every other party; and

(b) the number of copies of any such document specified in paragraph (4) below shall be served on the Lord Chief Justice.

(4) The number of copies required to be served on the Lord Chief Justice is

(a) if the appeal is of a type falling within rule 10(2) below, five copies; and

(b) in any other case, three copies.

Appointment of panel to hear appeal

10. (1) When a petition is served upon him (whether or not served in time), the Lord Chief Justice shall, nominate the persons who are to hear the appeal.

(2) An appeal against a decision of a tribunal presided over by a Judge of the High Court shall be heard by a panel comprised of—

(a) a Judge of the Court of Appeal.

(b) a Queen's Counsel; and

(3) Subject to paragraph (4) below, an appeal that is not of a type mentioned in paragraph (2) and is an appeal against a decision of a Disciplinary Tribunal shall be heard by panel comprised of—

(a) a Judge of the High Court;

(b) a barrister; and

(4) An appeal that is not of a type mentioned in paragraph (2) and that is an appeal against a decision of a Disciplinary Tribunal may be heard by a Judge of the High Court or of the Court of Appeal sitting alone, if the Lord Chief Justice or the Directions Judge directs that the appeal relates solely to a point of law and is appropriate to be heard by a judge sitting alone.

(5) Any other appeal shall be heard by a Judge of the High Court or the Court of Appeal.

(6) No judge or barrister member of the panel shall be a Bencher of the appellant’s or defendant’s (as the case may be) Inn.

(7) No person shall be nominated to a panel if they are a member of the PCC or of the Bar Council or any of its other Committees or if they were a member of the PCC at any time when the matter being dealt with by the panel was considered by the PCC.

Answer

11. (1) Subject to paragraph (2) below, the Bar Council or, if the Bar Council is the appellant, the defendant may (or, if so directed by the Directions Judge, shall) serve on the Lord Chief Justice an answer to the petition within the period of 28 days starting with the date on which the petition is served or such further time as may be allowed by the Directions Judge.

(2) In any case of an appeal by the Bar Council against the acquittal of the defendant on any charge, the defendant may (or, if so directed by the Directions Judge, shall) serve on the Lord Chief Justice an answer to the petition within the period of 14 days starting with the date on which the petition is served or such further time as may be allowed by the Directions Judge.

(3) Where an answer is served pursuant to paragraphs (1) or (2) the person serving it shall also serve forthwith a copy of that answer on the appellant.

(4) The answer shall follow the form of the petition and shall state which points in the petition are accepted and which are rejected.

(5) The Bar Council may, in any answer it serves, refer to any factors which it is contended make the sentence unduly lenient in relation to the appellant’s record or to sentences in other cases.

(6) If, in the view of the person serving an answer, the hearing is likely to last longer than one day, the answer shall include an estimation of the time required for the hearing and the reasons for that estimation.

Date of Hearing

12. (1) Unless it has been indicated either in the petition or answer that the time required for the hearing is likely to exceed one day, the time allocated for the hearing of an appeal shall be one day.

(2) Subject to paragraph (3), the appeal shall be listed by the Clerk to the Visitors for a hearing on the first available date after the expiry of a period of four weeks beginning with the date of service on the Lord Chief Justice of the answer (or, where no answer is served, beginning with the last date for service of the answer under rule 11 above)

(3) In any case of an appeal by the Bar Council against the acquittal of the defendant on any charge, the appeal shall be listed by the Clerk to the Visitors for a hearing in accordance with the directions given by the Directions Judge under rule 5(4) above, or such other period as the Directions Judge may subsequently direct.

(4) A notice of the hearing of the appeal shall be served on the Bar Council and on the appellant or defendant (as the case may be) at least 14 days before the date fixed for hearing of the appeal.

Procedure at hearing

13. (1) Subject to the following paragraphs of this Rule, the Visitors may give any directions with regard to the conduct of, and procedure at, a hearing of an appeal they consider appropriate.

(2) The Visitors may give such directions before or during the hearing.

(3) The hearing shall be held in public unless either party has made an application that the hearing shall not be in public and the public interest does not require that it shall be held in public.

(4) A hearing may proceed in the absence of an appellant (or defendant), but not in the absence of a representative of the Bar Council.

(5) No witness may be called at the hearing without the consent of the Visitors.

(6) Evidence that was not before the tribunal whose decision is being appealed may be given at the hearing only in exceptional circumstances and with the consent of the Visitors.

(7) An appellant or defendant (as the case may be) may only challenge before the Visitors a decision of a court of law on which the tribunal’s decision was based in exceptional circumstances and with the consent of the Visitors.

(8) The proceedings of the Visitors shall continue to be valid notwithstanding that one or more of the members of the panel becomes unable to continue or is or becomes disqualified from continuing to act, if the remaining members of the panel include a judge (other than a retired judge) and a lay representative.

(9) A full shorthand record shall be made of the hearing.

(10) A transcription of the shorthand record shall be provided upon request to either party to the hearing but at his own expense.

Findings of the Visitors

14. (1) The findings of the Visitors shall be pronounced in a single decision.

(2) The findings may be pronounced in public or in private but should normally be pronounced in public unless a party to the hearing requests otherwise and the public interest does not require that the findings be pronounced in public.

(3) Subject to paragraph (4), the Visitors may

(a) allow an appeal in whole or in part;

(b) confirm or vary an order of the tribunal whose decision is being appealed;

(4) In any case of an appeal by the Bar Council against the acquittal of the defendant on any charge, the Visitors may:

(a) Dismiss the appeal;

(b) Allow the appeal wholly or in part and remit the matter for a re-hearing before either the same or a differently constituted Disciplinary Tribunal;

(c) Allow the appeal wholly or in part and, if they are of the opinion that it is unnecessary or undesirable to direct a re-hearing before either the same or a differently constituted Disciplinary Tribunal, issue a declaration, but only where this will have no consequences whatsoever for the defendant.

(5) The Visitors shall give reasons for their decision.

(6) The Visitors may order, in the event of an appeal which is successful wholly or in part, a refund to the appellant of any sum paid to the General Council of the Bar in accordance with the Disciplinary Tribunal Regulations of the Inns' Council.

Barrister's Exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service

15. (1) These Rules shall apply in relation to an appeal against an order of the tribunal that a barrister's exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service pursuant to section 42(3) of the Administration of Justice Act 1985 (as substituted by Section 33 of the Legal Aid Act 1988 and amended by section 24, Schedule 4, paragraphs 32 and 35 of the Access to Justice Act 1999) is not to be terminated, subject to the following modifications set out in the following paragraphs of this rule.

(2) The petition shall contain the following particulars

(a) the date of the order of the tribunal that excluded the appellant from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service;

(b) the charges in respect of which that order was made;

(d) the findings of the tribunal;

(e) the findings against which the appeal is brought; and

(f) the grounds for appeal.

(3) An order of the tribunal to terminate a barrister's exclusion from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service only from a date that is subsequent to that order shall, for the purposes of any appeal, be treated as an order that the barrister's exclusion from such work is not to be terminated.

Appeals by an appellant student against a decision of an Inn.

16. (1) These Rules shall apply in relation to an appeal by an appellant student against a decision of an Inn subject to the modifications set out in the following paragraphs of this rule.

(2) In rules 4 and 7 references to the order, finding or sentence of the tribunal shall be construed as references to the decision of the Inn.

(3) Any documents required by rules 4 or 7 to be served shall, in place of the persons specified in those rules, be served on -

(a) the Lord Chief Justice;

(b) the Chairman of the Bar Council;

(d) the Treasurer of the Inn of which the appellant student is a member or the Treasurer of the Inn that has refused to admit the appellant student.

(4) There shall be substituted for rule 8

“8. The petition shall contain the following particulars:-

(a) the decision of the Inn against which the appeal is brought;

(b) a summary of the facts giving rise to the decision of the Inn;

(d) the relief sought.”

(5) Paragraphs (1) and (2) of rule 9 shall not apply.

(6) The appellant student shall serve on the Lord Chief Justice, with the petition, copies of all relevant documents including any complaint in respect of the appellant and the decision of the Inn.

(7) In paragraph (3) of rule 9, for the persons specified as the persons to be served there shall be substituted the persons specified in paragraph (3) of this rule.

(8) In paragraph (1) of rule 11 and paragraph (4) of rule 13 references to the Bar Council shall be construed as references to the Inn in question.

(9) There shall be substituted for paragraph (4) of rule 11—

“(4) The Inn may, in any answer it serves, refer to any factors that it took into account when making its decision, including the appellant student’s record and the Inn’s practice in similar cases.”

(10) Paragraphs (3) and (5) of rule 14 shall not apply.

(11) The panel appointed to hear the appeal may

(a) allow an appeal in whole or in part;

(b) confirm or vary the decision of the Inn; or

(c) order the Inn to reconsider its decision on such terms as the Visitors may determine to be appropriate in the circumstances.
(12) Rules 15 and 18 shall not apply.

Appeals not permitted under these Rules

17. (1) No appeal shall lie under these Rules from a decision of an educational institution (other than an Inn) or any officer or committee of such an institution in respect of any matter relating to a course recognised by the Bar Council as satisfying:

(a) the requirements of the Academic Stage of Training for the Bar (including Common Professional Examination requirements):

(b) the Vocational Stage of Training for the Bar;

(c) the Stage of Continuing Education and Training at the Bar; or

(d) any examination or assessment in connection with any such course.

(2) An appeal from a decision of a type mentioned in paragraph (1) above shall be made through the appropriate appeal procedures of the institution concerned.

Appeals by an appellant legal practitioner

18. (1) In an appeal by an appellant legal practitioner, these Rules shall apply subject to the modifications set out in the following paragraphs of this rule.

(2) In rules 4 and 7 any reference to the order, finding or sentence of the tribunal shall be construed as a reference to the decision, on review, of the JRC.

(3) Any documents required by rules 4 and 7 to be served shall, in place of the persons specified in those rules, be served on:

(a) the JRC;

(b) the Lord Chief Justice;

(d) the President of the Inns' Council.

(4) There shall be substituted for rule 8

“8. The petition shall contain the following particulars:

(a) the decision, on review, of the JRC against which the appeal is being made;

(b) a summary of the facts giving rise to that decision;

(d) the relief sought.”

(5) Paragraphs (1) and (2) of rule 9 shall not apply but the appellant legal practitioner shall serve on the Lord Chief Justice with the petition copies of any relevant documents, which shall include the decision of the JRC against which the appeal is brought.

(6) In paragraph (3) of rule 9, for the persons specified as the persons to be served there shall be substituted the persons specified in paragraph (1) of this rule.

(7) In paragraph (1) of rule 11 and paragraph (4) of rule 13 the references to the Bar Council shall be construed as references to the JRC.

(8) There shall be substituted for paragraph (4) of rule 11:

“(4) The JRC may, in any answer it serves, refer to any factors that it took into account when making its decision, including the appellant legal practitioner’s record and the JRC’s practice in similar cases.”

(9) Paragraphs (3) and (5) of rule 14 shall not apply.

(10) The panel appointed to hear the appeal may

(a) allow an appeal in whole or in part;

(b) confirm or vary the decision of the JRC; or

(c) order the JRC to reconsider its decision on such terms as the panel appointed to hear the appeal may determine to be appropriate in the circumstances.

(11) Rules 15 and 16 shall not apply.
Costs

19. (1) The Visitors may make such order for costs of the appeal as they consider appropriate.

(2) Any order for costs made may include an order for payment of the cost of any transcript required for the purposes of the appeal.

Transition

20. (1) Subject to paragraph (2) below, where any appeal has been commenced before 10th October 2005 but has not been completed by that date, these rules shall apply to that appeal from that date but any steps that have been taken in relation to that appeal pursuant to any provision of the Hearings Before the Visitors Rules 2002 shall be regarded as having been taken pursuant to the equivalent provisions of these Rules.

(2) In relation to appeals brought by students registered at the Inns of Court School of Law before 1 September 1997, the procedure provided by Rule 13 of the Hearings Before the Visitors Rules 1991 shall continue to apply in place of that provided by these Rules.

Revocation

21. The Hearings before the Visitors Rules 2002 are hereby revoked.

On behalf of the Judges of Her Majesty's
High Court of Justice

Lord Chancellor
Lord Chief Justice
President of the
Queen’s Bench Division
President of the
Family Division
The Chancellor of the High Court

SCHEDULE Rule 3(1)

Addressee and Place for Service of Documents

Person to be served Addressee and place of service

The Lord Chief Justice Addressed to the Clerk to the Visitors at the Royal Courts of Justice, Strand, London WC2A 2LL.
The President of the Inns' Council Addressed to the Secretary to the Council of the Inns of Court at The Treasury Office, The Honourable Society of Lincoln's Inn, London, WC2A 3TL
The Chairman of the Bar Council Addressed to the Chief Executive of the General Council of the Bar at 289-293 High Holborn, London WC1V 7HZ.
The JRC Addressed to the Chief Executive of the General Council of the Bar at 289-293 High Holborn, London WC1V 7HZ.
The Treasurer of an Inn Addressed to the Sub-Treasurer or Under-Treasurer (as the case may be) of that Inn at the treasury office of that Inn.
An appellant, appellant student or appellant legal practitioner Addressed to him at the address specified by him pursuant to rule 6(3).

A defendant Addressed to him at -(a) the address notified by him pursuant to Paragraphs 304(a)(i) or 402(a) of the Code of Conduct of the Bar of England and Wales (or any provisions amending or replacing those paragraphs);(b) if he has specified in writing an address to which documents may be sent, that address; or(c) where no address has been notified pursuant to the provisions mentioned in paragraph (a) above or specified as mentioned in paragraph (b) above, to his last known address.

¹Amended 1st January 2006
²Amended 1st January 2006