Proudman fights on

Judge rules that barrister can allege discrimination at full disciplinary hearing

A feminist barrister facing disciplinary proceedings has failed to persuade a tribunal that charges against her should be thrown out as an abuse of process. But the barristers’ regulator was unsuccessful in arguing that the tribunal had no power to consider her claim that it had violated her human rights.

Lawyers for Charlotte Proudman told a directions judge last week that proceedings brought against her by the Bar Standards Board amounted to unlawful discrimination. She claimed to have been discriminated against on the grounds of both her sex and her feminist beliefs, contrary to the European human rights convention as well as the Equality Act 2010.

Reporters who arrived for the start of the hearing on 9 September were not allowed to argue that they should be permitted to observe the proceedings, even though Proudman had asked for the hearing to be in public. But the tribunal’s ruling is now available.

Proudman’s strike-out application was heard by Judge Carroll, who chairs the bar’s disciplinary tribunal and sits as a circuit judge in the north-east of England.

One of those present reported that Carroll had refused to make the directions hearing public, mainly on the ground that the privacy rights of the male barristers named by Proudman had to be protected.

Proudman denies the disciplinary charges, which are expected to be considered by a three-person bar disciplinary tribunal, in public, on 12-13 December. If the allegations are proved, the barrister could face suspension from practice at the bar for up to 12 months or a fine of up to £50,000.

Dr Charlotte Proudman (photograph by Jooney Woodward)

The Bar Standards Board, which regulates barristers in England and Wales, has brought five charges against Proudman.

Charges 1 to 3 allege that two tweets sent from Proudman’s Twitter account on 6 April 2022, in a 14-part thread about the case of Traharne v Limb, were misleading and inaccurate.

Proudman says they were a fair summary of the facts as set out in the judgment and/or the evidence.

Charges 4 and 5 allege that seven posts, in the same 14-part thread about Traharne v Limb, “individually and/or cumulatively were without a sound factual basis and contained seriously offensive, derogatory language which was designed to demean and/or insult the judge”.

Proudman’s says the tweets, which set out her sincerely held concerns about the minimisation of domestic abuse by the family courts, had a sound factual basis and did not contain seriously offensive, derogatory language designed to demean and/or insult the judge.

Traharne v Limb

Traharne v Limb, a dispute over financial remedies on divorce, was decided in March 2022 by Sir Jonathan Cohen, a retired High Court judge sitting in the Family Court.

Proudman was junior counsel for Amanda Traharne, referred to in Cohen’s judgment as W. Traharne’s then husband Christopher Limb, a retired barrister who sits as a tribunal judge, is referred to as H.

Dealing with allegations of physical violence, Cohen recounted an argument during which Limb hit Traharne and bruised her leg. The judge said: “She has described it as inadvertent and I do not think that H intended to hit her, but he was plainly reckless in what he did. It was this event that led both parties to question the forthcoming marriage.”

Cohen continued:

The clear impression that I have is that this was a relationship that at times was tempestuous and that H would on occasions lose his temper. W says that they had major arguments about once a month. I do not accept that W was in fear of physical harm. There was no reason for her to be and she expressly told the police that she did not have such a fear. I do accept that the arguments and H’s temper during them caused her distress.

With hindsight it is not difficult to see how these arguments came about because the parties are of very different character. H has the louder voice and speaks at length. He loves conversation and vigorous debate. W on the other hand is quieter, she retreats from confrontation and bottles things up. She does not enjoy verbal jousting but dealt with her complaints of H in long accusatory emails. Each was capable of intensely frustrating the other.

The judge ordered Limb to pay Traharne a lump sum, while acknowledging that this would leave her out-of-pocket. “That W is left with a costs bill to pay,” the judge said, “is entirely the result of her prodigal expenditure on costs and her approach to this litigation.”

Proudman’s tweets

In the course of a series of tweets, Proudman suggested that Cohen’s findings amounted to “the trivialisation of domestic abuse and gendered language”.

She wrote:

I represented Amanda Traharne. She said she was coerced into signing a post-nuptial agreement by her husband (who is a part-time judge). I lost the case. I do not accept the judge’s reasoning. I will never accept the minimisation of domestic abuse.

Demeaning the significance of domestic abuse has the effect of silencing victims and rendering perpetrators invisible. This judgment has echoes of the “boys club” which still exists among men in powerful positions.

Strike-out request

The reference to “boys club” has caught the headlines elsewhere.

In written submissions on behalf of Proudman, her counsel Alison Padfield KC made 27 mentions of the Garrick Club, whose members had taken the view until 7 May this year that their rules excluded women from membership.

Padfield argued:

The practice or policy of initiating and pursuing proceedings against barristers who make gender-based criticisms of judges and/or their judgments puts women at a particular disadvantage when compared with men.

This is because women are overwhelmingly more likely than men to make gender-based criticisms of judges (who are predominantly male) and/or their judgments, especially in certain types of cases such as family law cases involving domestic abuse.

Women are more likely than men to have concerns about the judiciary being predominantly male, about the metaphorical “boys’ club” and about its literal equivalent: membership of high profile, exclusive, all-male private members’ clubs (such as, until recently, the Garrick Club).

Padfield’s written submissions, which run to more than 70 pages, can now be read online. To support Proudman’s claims of sex discrimination, she gave examples of male barristers whose tweets were not the subject of disciplinary proceedings. They included highly critical comments about a circuit judge.¹

An appendix — which I have appended to the submissions — provides the context for Proudman’s tweets,

Padflield concluded:

For the Bar Tribunals and Adjudication Service disciplinary tribunal to be asked to hear proceedings against Dr Proudman which were initiated and pursued by the Bar Standards Board in breach of article 6 [of the European Convention on Human Rights] in conjunction with article 14, and/or in breach of the Equality Act 2010, would be an affront to justice/the public conscience and contrary to public policy/the public interest.

Ruling

Carroll’s 11-page judgment, released yesterday, is dated 11 September. It does not set out the Bar Standards Board’s response to Proudman’s strike-out application — which has not been made public — but it suggests the regulator tried to persuade the tribunal that had no power to hear her claims of discrimination and that, in any event, it would be “too burdensome” for it to do so.

The directions judge accepted the regulator’s argument that the bar tribunal had no jurisdiction to hear a claim under the Equality Act.

However, Carroll decided that the bar tribunal, as a public authority, was required to act compatibly with the human rights convention. The right to a fair trial had to be granted without discrimination. Proudman was entitled to rely in her defence on the examples she had given of male barristers avoiding disciplinary proceedings after criticising a judge.

Carroll said:

Discrimination is properly regarded as a deep and serious social ill that most democratic governments have legislated to prohibit… The European Convention on Human Rights itself, in article 14, acknowledges the deep social harm it causes.

There is overwhelming public policy/ public interest reasons to ensure that where discrimination is said to have contaminated decisions of public authorities and/ or judicial/ regulatory processes that that issue is litigated.

As it cannot be litigated under the Equality Act 2010 in the bar tribunal, as a public authority it must be the case that the bar tribunal can adjudicate upon this matter itself by the application of the Human Rights Act 1998 and European Convention on Human Rights since, otherwise, [Proudman] must embark upon a series of cases across varying tribunals which may or may not accept or adopt the findings of others. That cannot be right and cannot be the effect of the law.

Carroll said he was satisfied that Proudman could argue at the forthcoming tribunal hearing that she had been the victim of discrimination.

To rule otherwise would effectively deny her the article 6 and article 14 protections. As a public body, the Bar Standards Board and the bar tribunal are obliged to ensure the protection of those rights and would, in my view, be acting unlawfully in preventing those matters being fully and properly assessed…

I do not accept the Bar Standards Board’s proposition that to do so is outwith the competence of the bar tribunal. Further I do not accept that to allow these matters to be litigated would be too burdensome to the tribunal and to the Bar Standards Board.

The Bar Standards Board, during argument, made a suggestion that a four-week hearing estimate would be needed. There does not seem to be any basis to that proposition.

Response

Referring to what happened last week’s hearing, Proudman told me yesterday:

I am deeply troubled by the Bar Standards Board’s opposition to a public hearing and their attempt to prevent me from sharing the outcome, despite no rule mandating confidentiality.

Confidentiality rules are meant to protect individuals like me, yet the Bar Standards Board are using them to silence me and prevent scrutiny of their own conduct.

It’s concerning that they use these rules to their advantage while claiming to uphold open justice and equality.

Update 20 November: I now understand that there will be a four-day hearing opening on 10 December.

1. HH Judge Linford had reportedly said in August 2023 that defendants in Truro or Plymouth who wasted court time by pleading guilty shortly before trial could expect to be remanded in custody pending sentence.