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overturned on appeal to the Visitors of the Inns of Court (the "Visitors") in August 2012 (a procedure that is no longer in force, rather an appeal is now made to Court).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...