Administrative law – Bias – Conflict of interest – Disciplinary tribunals

R (on the application of Kaur) v Institute of Legal Executives Appeal Tribunal: QBD (Admin) (Mr Justice Foskett): 23 November 2010

The claimant (K) applied for judicial review of the defendant tribunal’s decision confirming a finding of professional misconduct against her.

K, a student member of the Institute of Legal Executives (ILEX), had been charged with various disciplinary offences that purportedly arose from her improperly using course material in her examinations to become a legal executive. K did not attend the hearing of disciplinary proceedings against her but only one charge was confirmed by a disciplinary tribunal. That decision was upheld by the defendant tribunal. Both tribunals were constituted of two lay members sitting with a professional legal executive who was, as was required by the then tribunal scheme, a council member of ILEX. ILEX was a private limited company and its articles of association stated that it existed, among other things, to promote and secure professional standards of conduct among its members. Council members of ILEX were also directors of ILEX and as such were required to promote its articles of association. ILEX later changed its disciplinary hearings so that the professional legal executives who sat in its tribunals were no longer council members. Issues arose as to whether: (i) decisions of the tribunal were amenable to judicial review; (ii) the decision of the tribunal was vitiated by apparent bias because its professional members, as council members, had a purported conflict of interest between the duty that each member owed as a director of ILEX to uphold the institute’s articles of association.

Held: (1) Decisions of disciplinary tribunals of ILEX were amenable to judicial review. It could not be said that because the tribunal’s jurisdiction had a contractual source its decisions were not amenable to judicial review as: (a) ILEX was an approved regulator under the Legal Services Act 2007; (b) it was a given fact that the professional bodies of other professions within the legal profession and similar professions such as the medical profession had long been amenable to judicial review, R v Disciplinary Committee of the Jockey Club Ex p Aga Khan [1993] 1 WLR 909 CA (Civ Div) and R v Insurance Ombudsman Bureau Ex p Aegon Life Assurance Ltd [1995] LRLR 101 DC considered.

(2) It was apparent that the self-regulation of a professional body was acceptable provided that appropriate safeguards were maintained, Sadler v General Medical Council [2003] UKPC 59, [2003] 1 WLR 2259 considered. The fundamental concern was whether either of the two council members had taken any part in the investigation into disciplinary proceedings and it was clear that they had not, Sadighi v General Dental Council [2009] EWHC 1278 (Admin) considered. There was no reason to conclude that the tribunal had not acted fairly or that the professional members had any ulterior motive. Accordingly, it could not be said that a fair minded observer would have thought that there was an appearance of bias, R v Bow Street Metropolitan Stipendiary Magistrate Ex p Pinochet Ugarte (No2) [2000] 1 AC 119 HL and Davidson v Scottish Ministers (No2) [2004] UKHL 34, [2005] 1 SC (HL) 7 followed.

Application refused.

Marc Beaumont (instructed by Bar Public Access Scheme) for the claimant; Kevin McCartney (instructed by Russell-Cooke) for the defendant.