Letters roundup: 2 December 2022

Baseless complaints: beware disclosure

The furore surrounding the Bar Standards Board’s closure of a complaint made against Dinah Rose KC raises a critically important issue for consideration by practitioners who, following an accusation of wrongdoing, are subsequently informed that the complaint was baseless (or at least not sufficient to cross the threshold for investigation).

In this case, the provision of the regulator’s decision to the ‘complainant’, that it had closed its case against a practitioner, was from a policy perspective, unobjectionable. If the complainant then chooses to publish that decision, so long as what is reported is truthful, and because no confidentiality can be said to be attached to the decision, (as Private Eye successfully argued in the failed injunction brought against it by Napier and Another [2009] All ER (D) 31)), the practitioner may find themselves on the receiving end of adverse media attention, even though the regulator has declared that there is nothing for it to enquire into.

Professionals who are the subject of complaints that are closed (at the otherwise confidential stages of the BSB/ SRA processes) should take all available steps to ensure they have sight of and can make submissions on what is disclosed. It may be possible to make the point that disclosure might infringe the professional’s Article 8 rights; where publication might damage the professional’s reputation. While the potential damage must reach a certain threshold of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (as well as the publication being demonstrated to be a disproportionate interference with the Article 8 right), it is nevertheless a useful tool in the armoury of those who have been wrongfully accused or rightfully exonerated by their regulator.

Julie Norris

Partner, Kingsley Napley, London

Don’t rush fixed costs

It was apparent to everyone, apart from the Ministry of Justice it seems, that the MoJ would not be ready to implement its planned extension of fixed recoverable costs in April (‘Fixed costs extension delayed to October 2023’).

Only recently we heard that plans had changed significantly, with the introduction of an ‘intermediate track’ that the MoJ initially said was not necessary.

The whiplash reforms are a clear sign that these decisions cannot be rushed, forcing injured people, most of whom find the system too complicated to navigate without help, out into a legal market with vastly reduced choice because firms can no longer afford to operate. The complexity of cases was underestimated, meaning many are stuck in the system. For example, mixed tariff cases which are yet to be resolved.

These same issues apply to the extension of fixed costs and it is this the MoJ should be focusing on instead of setting another arbitrary deadline.

Qamar Anwar

Managing director, First4Lawyers, Huddersfield