Ekperigin v Bar Standards Board [2019] EWHC 1292 (Admin)

Ekperigin v Bar Standards Board [2019] EWHC 1292 (Admin) concerned a statutory appeal under section 24 of the Crime and Courts Act 2013 by a barrister against the refusal by the Bar Standards Board’s Authorisations Review Panel to grant him a complete exemption from the non-practising period (first six months) of pupillage. The appeal was dismissed.

Mr Ekperigin had completed his Bar Vocational Course in August 2011 and been called to the Bar in October 2011. He made some 100 pupillage applications over six years but secured no conventional pupillage. In September 2016 the Bar Standards Board had granted him a reduction of two months in each of the non-practising and practising stages of pupillage, leaving him with four months to complete in each. From March 2017 he had been employed as a lawyer with HB Public Law, a body providing legal services to five local authorities. In 2017 he applied for a complete exemption from the four-month non-practising period on the basis that his work with HB Public Law had given him knowledge and experience equivalent to that which a pupillage would provide.

An officer of the Bar Standards Board, Sarah Okran, refused that application on 3 May 2018. Mr Ekperigin sought a review. The Authorisations Review Panel met on 6 June 2018 and by a decision letter dated 19 September 2018 also refused the application. The panel concluded that his work was more akin to that of a paralegal than a non-practising pupil and was unlikely to be of a comparable level of difficulty or complexity. The panel noted in particular that Mr Paresh Mehta, the senior lawyer at HB Public Law who had written a supportive reference, had said that Mr Ekperigin worked with “limited supervision” and “generally independently”. The panel emphasised that the non-practising period of pupillage involves close shadowing of a registered pupil supervisor so that the pupil absorbs by proximity and osmosis the conduct, etiquette and attributes of a barrister. The panel was not satisfied that Mr Ekperigin had presented evidence that might stand as a satisfactory substitute for the structured assessment by a pupil supervisor that forms the basis of awarding a Provisional Practising Certificate at the end of the non-practising period.

Mr Ekperigin appealed in person. He complained that it had been unlawful to delegate the initial decision to an officer; that the panel should have sought further information about the level of supervision he had received rather than finding the evidence insufficient; that he had been denied an oral hearing; and that the decision was unreasonable and disproportionate. He obtained permission from Mr Justice Holman to adduce as fresh evidence his supervision sheets from HB Public Law showing periodic reviews and satisfactory performance, and also the internal meeting notes of the panel. The judge noted that although the appellant had invited the panel to seek further information if necessary, the primary responsibility under the Bar Standards Board’s guidance was on the applicant to provide all relevant information and supporting evidence. The judge was satisfied that the panel had considered the application afresh, as required by its rules, and that any objection to the earlier decision by Sarah Okran was academic.

Mr Justice Holman observed that under the Bar Standards Board’s published criteria an exemption will be granted only if the panel is persuaded that the relevant knowledge and experience of the applicant clearly make it unnecessary for him to undertake the stage in question. The guidance emphasises that the non-practising period is important and will not readily be reduced. Where an applicant has between one and three years of relevant experience, the usual starting point for a reduction is two months, normally from the practising period. Mr Ekperigin’s employment with HB Public Law had lasted about 15 or 16 months at the time of the panel’s decision. The judge noted that the reference from Mr Mehta had expressly stated that HB Public Law does not provide pupil barrister training and that the supervision given to Mr Ekperigin was limited. None of those named as supervising him was a practising barrister, and although Mrs Victoria Seifert, a barrister employed by HB Public Law, was mentioned, there was no evidence she had supervised him or that she was a registered pupil supervisor.

The judge accepted one point of criticism. The meeting notes recorded one panel member, Sarah Brown, saying there might be “potential floodgates outcome” if the application were approved. Mr Justice Holman held that the Bar Standards Board is required to consider applications on a case-by-case basis and that any policy approach based on a floodgates argument was inappropriate and wrong. However, he found that the isolated reference to floodgates did not vitiate the decision as a whole, since there was no indication other members of the panel took up that consideration or that the member in question was ultimately motivated by it.

The judge rejected Mr Ekperigin’s contention that he had a legitimate expectation that his application would be granted. He held there was nothing in the published rules, guidance or anything said or done by the Bar Standards Board that could give rise to such an expectation. The judge considered that the panel’s decision was well within its discretion and was not wrong. He emphasised that the non-practising stage of pupillage serves a distinct purpose: by a form of osmosis, a barrister at the outset of his career learns what it is to be a barrister, the required conduct and etiquette, and the attributes required in dealing with clients, courts, instructing solicitors and opponents. The judge found that although Mr Ekperigin had worked well and satisfactorily for HB Public Law, there was nothing to indicate he had the level of close supervision contemplated by being a “shadow” of a registered pupil supervisor or much proximity at all to such a supervisor. On the contrary, the reference letter stressed that HB Public Law does not provide pupil barrister training and that the supervision given was limited. The judge observed that paradoxically the work done at HB Public Law might more strongly have supported an application for a reduction in the practising stage rather than the non-practising stage.

Mr Justice Holman also noted that the five-year rule under rule Q32 of the Qualification Rules would apply to Mr Ekperigin. That rule provides that a person may not start the professional stage more than five years after completing the vocational stage except with permission of the Bar Standards Board. Five years had elapsed in August 2016, so even if he were successful on the appeal Mr Ekperigin would need to obtain the Bar Standards Board’s permission before embarking even on the practising stage of pupillage. The published guidance states that approval will normally be given if the applicant can demonstrate that he has kept his legal skills and knowledge up to date and there is either a good reason for the delay or he has secured a pupillage to commence within 12 months.

The judge assessed the costs previously ordered by Mrs Justice Lang when she adjourned the appeal on 7 February 2019 in the sum of £3,210 inclusive of VAT. Mr Ekperigin had sought to challenge the costs order itself on the basis that counsel for the Bar Standards Board had not drawn to Mrs Justice Lang’s attention that supplementary points in the appellant’s skeleton argument had been addressed, but the judge declined to revisit Mrs Justice Lang’s order, holding that he could not sit in appeal from a co-equal judge and that the costs order must stand. The judge noted that section 24(4) of the 2013 Act makes a decision of the High Court on such an appeal final, precluding any further appeal.

In short, the appeal was dismissed because the panel’s conclusion that Mr Ekperigin had not demonstrated experience clearly making the non-practising stage of pupillage unnecessary was well within its discretion and not wrong, notwithstanding that his work had been satisfactory and that he had displayed determination and advocacy skills.