UK: Supreme Court Determines HRA Claim Was Brought In Time

In a decision likely to be welcomed by regulated professionals and their advisers, the Supreme Court in O'Connor v Bar Standards Board [2017] UKSC 78 held that, for the purposes of determining when time starts to run under section 7(5)(a) of the Human Rights Act 1998 (the "HRA"), the "act complained of" wording need not refer to an instantaneous act, but could be a continuing course of conduct.

Background

In June 2010 the Bar Standards Board (the "BSB") Complaints Committee brought disciplinary charges against the appellant, Ms O'Connor (a practising barrister, who is black), alleging professional misconduct. Five of the six charges were found proved by the Disciplinary Tribunal in May 2011, all of which were subsequently overturned on appeal to the Visitors of the Inns of Court (the "Visitors") in August 2012 (a procedure that is no longer in force, rather an appeal is now made to Court).

The appellant issued the current proceedings on 21 February 2013 claiming damages under the HRA against the BSB for breach of articles 6 and 14 European Convention on Human Rights, contrary to s.6 HRA, alleging that her regulator discriminated against her on grounds of her race in bringing disciplinary proceedings. The BSB sought to strike out the claim, maintaining that none of the claims had a real prospect of success but, in any event, the claim was time barred pursuant to s.7(5) HRA, which provides that proceedings under s.6 HRA must be brought before the end of "one year beginning with the date on which the act complained of took place".

Deputy Master Eyre granted the BSB's application. On appeal, both the High Court and Court of Appeal upheld the Deputy Master's decision that the claim was brought out of time. Permission was thereafter granted to appeal to the Supreme Court solely in respect of the limitation issue.

The Supreme Court Judgment

The Supreme Court unanimously upheld the appeal.

In doing so the Court first considered the nature of the appellant's claim, which had at all times during the proceedings been argued by reference to acts against the appellant as an individual, as opposed to a wider allegation that there is systematic discrimination against black and ethnic minority barristers. Accordingly, the bringing and pursuit of the disciplinary proceedings against the appellant was the focus of the investigation for the purposes of limitation.

The Supreme Court ruled that the language used in s.7(5)(a) HRA should not be interpreted narrowly as "there will be many situations in which the conduct which gives rise to the infringement of a Convention right will not be an instantaneous act but a course of conduct."

Were this not so, situations would arise where either:

• a claimant was put in the position of having to bring a claim under the HRA within one year of the commencement of potentially lengthy proceedings, the outcome of which would be unknown to the claimant at the time and which might have a material effect on the claim under the HRA; or
• a claimant that did not bring such precautionary proceedings would have recourse only to the discretionary remedy in s.7(5)(b) HRA, which the Supreme Court considered inappropriate.

The Supreme Court went on to conclude that the disciplinary proceedings brought by the BSB amounted to a single continuous course of conduct: the essence of the complaint made by the appellant was the initiation and pursuit of the proceedings to their conclusion i.e. the entirety of the course of conduct; 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 question then remained as to when the continuing act ceased, such that time would start running under s.7(5)(a) HRA. In all the circumstances, and considering the nature of the BSB complaints procedure and the role the Visitors played in the regulatory scheme, the Supreme Court concluded that both the referral to the Disciplinary Tribunal and the hearing before the Visitors was one continuing act. 

Accordingly the act ceased, and time for limitation purposes started to run, upon the decision of the Visitors in August 2012. The appellant had therefore brought the proceedings within the one year period provided by s.7(5)(a) HRA.

Comment

It is now settled law that the language of s.7(5)(a) HRA is not to be interpreted narrowly, and that an infringement of a Convention right may be a continuing course of conduct. Given the rationale behind this decision, which was essentially to avoid both proceedings under the HRA having to be brought prematurely, and penalising any potential claimant who did not do so, it is unlikely that this ruling will be confined solely to the BSB but will have wider application to other regulatory bodies. It is arguable that other disciplinary proceedings from regulatory bodies will also be deemed a course of conduct, such that time will not start running under s.7(5)(a) HRA for other regulated professionals until that course of conduct ceases.

Whilst the judgment does not provide any definitive answer as to identifying what represents a course of conduct, it is clear that an appeal of a regulator's decision can be a continuation of the original regulatory proceedings. It would seem that determining whether an appeal is a continuing course of conduct will be largely dependent on the finality of the original decision, and the influence the appellant body has over the regulatory proceedings generally. 

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