Deve v General Council Of The Bar [1996] UKEAT 1363_95_2911

EAT
Deve v General Council Of The Bar
[1996] UKEAT 1363_95_2911 · 1996-11-29
MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Mr Deve has an arguable point of law to raise against a decision of an Industrial Tribunal held at London (North) on 30 May, 22 August and 4 October 1995. Their decision runs to some twelve pages and was sent to the parties on 3 November 1995.The case brought by Mr Deve was against The General Council of the Bar alleging unlawful racial discrimination. It arose out of the way that the Bar Council dealt with a disciplinary matter, which was eventually referred to a disciplinary tribunal. It was accepted by Mr Deve that the disciplinary tribunal itself was not the responsibility of the Bar Council and no complaint of racial discrimination was made against that tribunal, in respect of its conduct of the proceedings or its finding that he was guilty of professional misconduct on two charges. The Industrial Tribunal set out the two charges on which they made their adjudication and we do not need to refer to them in this judgment.The Industrial Tribunal directed itself as to the law. There is no complaint save in one respect, which I will deal with in a moment, as to their direction in law, set out in paragraphs 5 and 6 of their Decision. The only complaint about their direction in law which is made relates to their finding in paragraph 4:
"... Mr Geoffrey Nice QC, who was the Barrister instructed to represent the Respondents in the Disciplinary Tribunal, would not be within Section 32 since 'counsel are never the agent of the person on whose behalf they appear in the sense that there is no vicarious liability for the acts of counsel when acting as an advocate. The Bar Council are not liable for the actions of counsel, nor is any other client responsible for the actions of their counsel'. Since no allegations of race discrimination on the part of Mr Nice were made by Mr Deve in his Originating Application or indeed in the evidence which he presented to the Tribunal at the hearing, we would have had considerable difficulty in taking such allegations into account, even if, as we accept, the Respondents are not liable for the discriminatory conduct of Mr Nice if proved. So far as this claim is concerned, such conduct has not been proved by the Applicant."
It seems to us in those circumstances that the Industrial Tribunal have addressed their minds to the activities of Mr Geoffrey Nice on two bases; firstly, that what he did might have caused the Bar Council to be vicariously liable, and secondly, on the basis that he was acting as a free agent. It was sensible of them to do that, because obviously they were then able to conclude that first of all that there had been no complaint against Mr Geoffrey Nice in the Originating Application or in the evidence, and therefore any complaint against Mr Geoffrey Nice would have been bound to fail.In those circumstances it seems to us that the fourth point raised by the prospective Appellant, namely whether the Respondents should be vicariously liable for actions of the Counsel appointed to prosecute the case, is simply a moot point, having regard to the findings that were made by the Industrial Tribunal and is not a matter of law with which this Court should be concerned.Having directed their minds as to the law, the Tribunal then made their findings of fact as to the circumstances in which the complaint was made and became referred to the disciplinary tribunal. The first point which is made by Mr Deve in his Skeleton Argument in support of the application before us today, relates to difficulties in relation to a transcript of a hearing before Mr Justice Simon Brown, which had taken place on 19 November 1992. What Mr Deve is saying, as we understand it, is that he was lied to about the existence of this transcript. He was told that none was available when in fact it was, and his first contention is that the Chairman of the Industrial Tribunal should have made an order requiring the Respondents to produce documents as requested by the Appellant, which included an application for disclosure of the transcript of the hearing in front of Mr Justice Simon Brown. He points to a written statement from Mr James, Head of Professional Standards of the Bar Council, (during 1992 he was the Secretary to the Professional Conduct Committee) which was prepared for the purposes of the Industrial Tribunal's hearing, which indicates that they had got in their possession the transcript to which I have referred, before the file was referred to Mr David Woolley QC, who produced the initial report which recommended that the case should go before a disciplinary tribunal.It seems to us that no point of law is raised by this first point made by Mr Deve. It was a matter of fact which was discussed at the Industrial Tribunal and in respect of which they made a finding in the Extended Reasons at paragraph 21(ii) of their Decision:
"Mr Deve maintains that that decision was taken on racial grounds for the following reasons:
a) 'When they took the decision the Committee did not have a complaint from Simon Brown.' But they did since Mr Woolley had seen the judge's judgment and his order that the matter should be referred to the PCC, before the final decision was taken in October 1992 to refer the case to a Disciplinary Hearing."It seems to us that a production of this transcript would not have been of any importance in the consideration which the Industrial Tribunal had to give to the matter. They have considered the complaint that was addressed to them, and they have fully dealt with it as it seems to us. The second point which is made by Mr Deve is that there had been a suppression by the Bar Council of documents in their possession. What is referred to is, I think, the same problem as I have just been referring to, namely, the transcript of the proceedings before Mr Justice Simon Brown. It seems to us that there is no basis for suggesting that there is an arguable point of law that Mr Deve has been discriminated against on the grounds of race. The fact that the transcript should have been made available, if it should have been, to the disciplinary tribunal, would not, it seems to us, found a complaint against the Bar Council. Rather, it is an attack on the way the disciplinary tribunal conducted its proceedings and the way that the proceedings were conducted before it.Thirdly, it is said that the Industrial Tribunal were wrong in their conclusions as to the alleged more favourable treatment of Mr David Pannick QC. The contention that is made here is that Mr David Pannick had information available to him, which would have shown quite clearly that as a result of information from the Togo Embassy in particular, the person who was concerned in this immigration matter, was manifestly no longer employed, and therefore there cannot have been any misunderstanding by the Immigration authorities as to his position.It seems to us that the Tribunal have given full consideration to the contentions made in the Industrial Tribunal's decision which are fully set out at paragraph 21(iii) under the heading More Favourable Treatment of David Pannick QC . Those were findings that they were fully entitled to make on the material before them. We do not consider that there is any arguable point of law fit for hearing before this court in relation to what they have concluded. In those circumstances we are satisfied that there is no arguable point of law raised by Mr Deve, to whom we are grateful for his submissions this morning. We must dismiss this appeal.