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Apparent Bias in Professional Disciplinary Panels

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[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Is a member of the ILEX Council disqualified from participating in disciplinary hearings against or appeals by ILEX members in the interest of avoiding someone judging their own case, and/or apparent bias?

Yes, says the unanimous Court of Appeal, quashing by Judicial Review on appeal the decisions of an ILEX Disciplinary Tribunal and Appeal Tribunal in R (on the application of Kaur) v (1) The Institute Of Legal Executives Appeal Tribunal (2) The Institute of Legal Executives.

The Appellant, a student member of ILEX, faced allegations of bringing ILEX into disrepute. One allegation was upheld by an ILEX Disciplinary Tribunal, on which – by ILEX rules – sat an ILEX council member. She unsuccessfully appealed to the ILEX Appeal Tribunal, which included the Vice-President of ILEX. She sought judicial review, and argued that the composition of ILEX panels gave rise to apparent bias and/or ILEX being judge in its own case. There was no suggestion of actual bias.

The Court of Appeal considered the distinction between a situation where a disciplinary panel member had active involvement in a body – in ILEX, all council members are company directors – and one where membership did not involve panel members in the body's governance, but noted that the ILEX rules requiring council members to sit on panels made it difficult to insulate professional regulation and the pursuit of ILEX's aims and interests.

In a wide-ranging review of the law on bias, the sole reasoned judgment of Rix LJ brought together the doctrine that no one ought to judge their own case and apparent bias from the leading cases of Pinochet No 2 and Porter v Magill as "... two strands of a single over-arching requirement: that judges should not sit or should face recusal or disqualification where there is a real possibility on the objective appearances of things, assessed by a fair-minded and informed observer ... that the tribunal could be biased ...".

The judgment will be of particular interest to practitioners involved with professional bodies having disciplinary powers over their members.