AC-2025-MAN-000091 - [2025] EWHC 2048 (Admin)

In Ahmad v Bar Standards Board [2024] EWHC 3248 (Admin) Lang J provided the following summary of the statutory context, which I gratefully adopt:

“33.

The Courts and Legal Services Act 1990 designated the Bar Council as the authorised body for the profession. The BSB was set up under the Legal Services Act 2007 to act as the specialist regulator of barristers in England and Wales. Its regulatory objectives derive from the Legal Services Act 2007, section (1). The BSB publishes the Bar Standards Handbook (“the Handbook”) which contains inter alia the Code of Conduct, comprising the Core Duties and rules which supplement the Core Duties. “Outcomes” and “Guidance” on the Code of Conduct are also published.

34.

As to rights of appeal, section 24 of the Crime and Courts Act 2013 abolished the jurisdiction of the Visitors of the Inns of Court, and made provision in subsection (2) for the General Council of the Bar and the Inns of Court to confer a right of appeal to the High Court in respect of, inter alia, a matter relating to regulation of barristers. Subsection (6) provides that the High Court may make such order as it thinks fit on an appeal. Rights of appeal are conferred by the Disciplinary Tribunal Regulations 2017, and under rE236, the Appellant has a right of appeal against findings and/or sanction”.

35.

CPR 52.20 confers power on the appeal court to affirm, set aside or vary the orders of the Tribunal. It has the same powers as the Tribunal.

36.

CPR 52.21 provides, so far as is material that:

“Hearing of appeals

52.11

(1)

Every appeal will be limited to a review of the decision of the lower court unless –

(a)

a practice direction makes different provision for a particular category of appeal; or

(b)

the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing…

(3)

The appeal court will allow an appeal where the decision of the lower court was –

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4)

The appeal court may draw any inference of fact which it considers justified on the evidence”.

At [37], Lang J observed that an appeal against the decision of a Disciplinary Tribunal is by way of review, not re-hearing. However, she explained that the nature of an appeal by way of review under rule 52.11 is “flexible and differs according to the nature of the body which is appealed against, and the grounds upon which the appeal is brought”. She cited the following passage from E I Dupont de Nemours & Co v S T Dupont [2003] EWCA Civ 1368, [2006] 1 WLR 2793, at [92]-[94], per Aldous LJ:

“92.

CPR Pt 52 draws together a very wide range of possible appeals. It applies, not only to the Civil Division of the Court of Appeal, but also to appeals to the High Court and county courts….it applies to a wide variety of statutory appeals where the nature of the decision appealed against and the procedure by which it is reached may differ substantially...

93.

It is accordingly evident that rule 52.11 requires, and in my view contains, a degree of flexibility necessary to enable the court to achieve the overriding objective of dealing with individual cases justly. But as Mance LJ said on a related subject in Todd v Adams and Chope (trading as Trelawney Fishing Co) [2002] 2 All ER (Comm) 97, it cannot be a matter of simple discretion how an appellate court approaches the matter.

94.

As the terms of rule 52.11(1) make clear, subject to exceptions, every appeal is limited to a review of the decision of the lower court. A review here is not to be equated with judicial review. It is closely akin to, although not conceptually identical with, the scope of an appeal to the Court of Appeal under the former RSC. The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material. Rule 52.11(4) expressly empowers the court to draw inferences....”.

At [39], Lang J cited Law Society v Salsbury [2008] EWCA Civ 1285, where the Court of Appeal upheld a decision of the Solicitors Disciplinary Tribunal striking a solicitor off the roll. At [30], having reviewed the authorities, Jackson LJ gave the following guidance as to the correct approach on an appeal of this nature:

“…the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR rule 52.11(1)”.

In Salsbury at [38], Jackson LJ held that in his view the Solicitors Disciplinary Tribunal’s decision was correct, both in law and on the facts. He continued:

“However, even if the case were regarded as being on the borderline, the Divisional Court was not entitled to interfere with the sentence imposed. The Court ought to have paid proper respect to the decision of the Tribunal, which was an expert and informed body, particularly well-placed to assess what measures were required to deal with Mr Salsbury and to protect the public interest. The Divisional Court could not be satisfied that the sentencing decision reached by the Tribunal was clearly inappropriate”.

Applying these principles, Lang J approached the appeal in Ahmad by asking whether the sanction imposed was either “wrong” or “clearly inappropriate”, finding that neither description applied on the facts: [64].