Annexe P - Adjudication Panel and Appeals Rules

Introduction

1. Adjudication Panels ("Panels") shall be appointed by the President of the Council of the Inns of Court (“the President”) to determine complaints considered by the Committee not to raise a prima facie case of professional misconduct, but to raise a prima facie case that the barrister concerned has provided inadequate professional service to the complainant. No person shall be appointed to an Adjudication 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 PCC.

2. Panels shall consist of two lay representatives, one of whom shall act as Chairman (“the Chairman of the Panel”) and two barrister members, at least one of whom shall be a Queen's Counsel.

3. Anything required by these Rules to be done or any discretion required to be exercised by, and any notice required to be given to, the President, may be done or exercised by, or given to, any person authorised by the President (either prospectively or retrospectively and either generally or for a particular purpose).

Powers of Panels

4. The powers of a Panel shall be:

(a) to consider any complaint referred to it pursuant to paragraph 28(e) of the Complaints Rules and to direct such investigations as they see fit in respect thereof

(b) to dismiss any complaint without making a finding as to the existence or otherwise of inadequate professional service if they conclude that due to lapse of time, disputes of fact which cannot fairly be resolved by the Panel, or for any other reason it cannot fairly be determined

(c) to determine whether the barrister concerned has provided inadequate professional service in respect of the matter complained of

(d) to determine what remedy should be granted to the complainant in respect of such inadequate service

Investigation and Procedure

5. When a complaint is referred to a Panel as set out in paragraph 4(a) above the Panel shall consider what, if any, further investigation is required to be made in order for the panel to deal fairly with the matters falling to it for decision, and the Secretary of the PCC (“the Secretary”) shall make such investigations as the Panel direct to assist the deliberations of the panel, such as whether the complainant claims to have suffered financial loss as a result of the conduct complained of, and if so the exact nature and amount of that claimed loss and the evidence available to support the claim, and from the barrister the nature of the work he carried out for the complainant out of which the complaint arose, the fee rendered for such work, and whether or not such fee has been paid.

6. The Secretary shall, whether or not there are to be additional investigations under paragraph 5 above, notify both the barrister and the complainant of the matters that the PCC has directed the panel to consider. As soon as practicable thereafter, he shall prepare a bundle of papers to be considered by the panel and shall copy those to the barrister and the complainant and shall invite their written comments within 14 days (which period may be extended with the permission of the Chairman of the Panel).

7. At the expiration of the time limit specified in paragraph 6 or on completion of any enquiries made under paragraph 5, the Secretary shall copy any further papers that are to be considered by the panel to the barrister and the complainant and shall request the President to appoint the panel and set a date for it to meet.

8. The President shall set the date for the hearing and both the barrister and the complainant shall be informed of the date of the hearing and the complainant shall be invited to make any further comments in writing which must arrive not less than seven days before the date of the hearing. Such comments shall be copied to the barrister and the panel.

9. The Panel may consider complaints and the results of any investigations in whatever manner they think fit, and may adjourn consideration of any complaint at any time, and for any reason and, in particular to enable the complainant to comment on any information provided by the barrister at the hearing which had not previously been disclosed by him

10. Following such consideration, the Panel may decide:

(a) that for any reason the complaint cannot fairly be determined by them, whereupon it shall dismiss the complaint and shall give notice in writing of its decision and the reasons for it to the barrister and the complainant

(b) that the complainant has not established on the balance of probabilities that the barrister concerned has provided inadequate professional service to the complainant, whereupon it shall dismiss the complaint and shall give notice in writing of its decision and the reasons for it to the barrister and the complainant

(c) that the complainant has so established, whereupon it shall consider what remedy should be granted to the complainant in respect of the service which it has found to have been inadequate.

11. Following a finding under paragraph 10(c) above, the Panel may:

(a) determine that it is not appropriate to take any action in respect of the inadequate service,

(b) direct the barrister to make a formal apology to the complainant for the inadequate service provided,

(d) direct the barrister to pay compensation to the complainant in such sum as the panel shall direct not exceeding £15,000.¹

In determining whether any sum is to be paid under paragraph (d) hereof, or in fixing the amount of such sum, the panel shall in particular have regard to any loss suffered by the complainant as a result of the inadequate professional service, the availability to the complainant of other forms of redress, to the gravity of the conduct complained of, and to the fee claimed by the barrister for the inadequate service.

12. Following any such finding as is mentioned in paragraph 10(c) hereof, the Panel shall give notice in writing to the barrister and to the complainant of the respects in which they have found the barrister to have provided inadequate professional service, and the reasons for such finding, and of the remedy to be granted to the complainant under paragraph 11 above.

13. If the panel is not unanimous on any issue, the finding made shall be that of the majority of them. If the panel is equally divided, the burden of proof being on the complainant, the finding shall be that most favourable to the barrister.

14. Whether or not the panel shall have determined that the barrister has provided an inadequate professional service, it may refer any matter of policy which arises to the relevant Committee of the Bar Council.

15. No finding of an Adjudication Panel shall be publishable except:

(a) by the Commissioner in any annual or other report on his work, in which case the identities of the parties shall so far as possible be concealed, unless the barrister concerned seeks that any finding be published. In that case the manner and extent of publication shall be at the discretion of the Commissioner; or

(b) if the Adjudication Panel considers that the circumstances of the complaint are relevant to the barrister's capacity as a pupil supervisor, it may notify the barrister's Inn of its concern in such manner as it sees fit.

(c) in respect of an application by a barrister for silk, if a finding of inadequate professional service has been recorded against the barrister concerned, the Bar Council shall disclose the finding and penalty.

Appeals

16. An appeal shall lie at the instance of a barrister against a finding that he has provided inadequate professional service, and against any decision as to the remedy to be granted to the complainant in respect of such inadequate service.

17. Any such appeal shall be heard and determined by a panel ("the Appeal Panel") appointed by the President of the Council of the Inns of Court consisting of two barristers, of whom at least one shall be a Queen's Counsel and shall chair the panel, at least one shall be a junior of more than five years' call, and two lay representatives.

Provided that:

(i) no person shall be appointed to an Appeal 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.

(ii) none of the members of the Appeal panel shall have been members of the tribunal which made any finding appealed against

18. An appeal shall be made by the barrister sending to the Secretary within 28 days of the date of letter notifying him of the decision appealed against a notice stating the findings to be appealed against, the decision the barrister contends for, and the grounds of such appeal, accompanied by the sum of £100 payable to the Bar Council to defray expenses.

19. Service of notice of an appeal by a barrister shall operate as a stay of any order made in favour of the complainant.

20. On receipt of such a notice, the President shall notify the Chairman of the PCC of the intended appeal, and shall afford him/her an opportunity to respond to the grounds of appeal stated in the notice. For the purpose of so responding the Chairman of the PCC may seek information or assistance from such persons and in such manner as he sees fit.

21. On such an appeal,

(a) the procedure shall be informal, the details being at the discretion of the chairman of the Appeal Panel including whether or not there should be an oral hearing in relation to the appeal

(b) the barrister, the complainant and the Chairman of the PCC may attend or be represented

(c) the Appeal Panel may make such order as they think fit in relation to the complaint, including any order which the tribunal appealed from had the power to make, save that they may not make any order in relation to the costs of the appeal

(d) the Appeal Panel shall not allow the appeal unless they are satisfied that the tribunal appealed from reached a wrong decision on any question of law, made a finding of fact which was against the weight of the evidence or exercised any discretion granted to it on a wrong basis

(e) if the Appeal Panel allows an appeal, in whole or in part, it may in its discretion direct the refund to the barrister of the sum deposited under paragraph 18 above

(f) whether or not the appeal is allowed, the Appeal Panel may refer any issue of policy which arises to the relevant Committee of the Bar Council.

22. Where a barrister appeals against a finding of inadequate professional service by a Disciplinary Tribunal or Summary Tribunal which also found that he had infringed one or more provisions of the Code referred to in paragraph 901.1 and in consequence thereof directed the Secretary to send a written warning to the barrister or that a financial penalty be imposed on him or both:

(a) the notice under Rule 18 shall identify the warning or financial penalty appealed against, the decision the barrister contends for and the grounds of such appeal

(b) the Appeal Panel shall decide whether to set aside the written warning or financial penalty or both, as appropriate;

Definitions

23. In these Rules unless the context otherwise requires

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

(b) "The Complaints Rules" shall mean the rules prescribing the manner in which complaints are to be considered set out in Annex J to the Code of Conduct, and any term defined in the Complaints Rules shall carry the same meaning as it does in those Rules.

(c) Any reference to a person includes any natural person, legal person and/or firm. Any reference to the masculine gender includes the feminine and the neuter, and any reference to the singular includes the plural, and in each case vice versa.

Commencement and Transitional Arrangements

24. (a) These Rules will come into effect on 1 October 2005. They shall apply to all complaints, including complaints referred to an Adjudication Panel prior to 1 October 2005, and to all Adjudication Panels and Appeals, including all Panels and Appeals pending as at 1 October 2005 save that no direction that a barrister pay compensation to the complainant in respect of inadequate professional service in a sum exceeding £5,000 but not exceeding £15, 000 may be made against a barrister in respect of any conduct of his which took place before 1 July 2008;²

(b) Any step taken in relation to any Adjudication Panel or Appeal prior to 1 October 2005 pursuant to the provisions of the Rules then applying shall be regarded, unless otherwise decided, as having been taken pursuant to the equivalent provisions of these Rules.

¹ Effective from 01/07/08

² Effective from 01/07/08