Time Limits under the Human Rights Act 1998: what is a “course of conduct”?
Anna Beale
Anna Beale discusses the Supreme Court’s interpretation of the time limit provisions contained in the Human Rights Act 1998 in O’Connor v Bar Standards Board [2017] UKSC 78
The Statutory Provisions
As will be known to most readers, the Human Rights Act 1998 (‘HRA 1998’) provides, in section 7(5)(a), that any proceedings brought against a public authority under the Act must be commenced before the end of “the period of one year beginning with the date on which the act complained of took place”. Under section 7(5)(b), that time limit may be extended to “such longer period as the court or tribunal considers equitable having regard to all the circumstances”.
Unlike, for example, the Equality Act 2010, the statute contains no express provision to the effect that conduct extending over a period is to be treated as done at the end of the period.
The Facts
The question of the application of s. 7(5)(a) to a course of conduct extending over a period arose in O’Connor v Bar Standards Board. The Claimant contended that the BSB’s conduct in bringing disciplinary charges against her amounted to indirect discrimination in her enjoyment of the right to a fair trial, contrary to Article 14 ECHR, considered in conjunction with Article 6. The charges were initially upheld by a Disciplinary Tribunal, but ultimately dismissed on appeal to the Visitors of the Inns of Court.
“Course of Conduct”?
The principal issue considered by the Supreme Court was the point at which the one year time limit under the HRA 1998 started to run. Was, as the BSB argued, the decision to refer the Claimant to a disciplinary tribunal a one-off act with potentially continuing consequences, meaning that time started to run at that point? Was it, as the Court of Appeal found, the date on which the Disciplinary Tribunal upheld the charges? Or was it, as the Claimant argued, the date of the Visitors’ decision, as up to that point, there was a continuing course of conduct which was alleged by the Claimant to be discriminatory?
The Supreme Court held unanimously that the latter argument was correct in the circumstances of this case. Lord Lloyd-Jones, who gave the only judgment, pointed out that, although disciplinary proceedings necessarily involve a series of steps, the essence of the complaint here was the initiation and pursuit of the proceedings to their conclusion, rather than any of those component steps. Were such complaints not to be treated as relating to a “course of conduct”, a claimant against whom disciplinary proceedings lasting more than a year were brought would be put in the invidious position of having to bring a human rights claim without knowing the outcome of the contested proceedings.
Lord Lloyd-Jones went on to conclude that on the facts of this case, the continuing act comprised not only the initial Disciplinary Tribunal outcome, but all steps up to the ultimate conclusion of the Visitors. His decision on this point was very much based on the features of this particular regulatory scheme, including:
the fact that the Visitors held supervisory powers over the whole disciplinary process;
the absolute right to an appeal (and the fact that any sanction could not be put into effect until after the period within which to lodge an appeal had passed); and
the fact that the appeal was a full re-hearing on the merits.
The Practical Application of the Decision
For these reasons, this decision should not be taken to mean that, in any HRA 1998 complaint about disciplinary proceedings, time will run from the conclusion of any appeal process. The question is fact-specific. Practitioners seeking to argue that such proceedings constitute a course of conduct will need to emphasise that the “essence of the complaint” is the whole process and pursuit of the charges, rather than any individual component thereof. Where the complaint does relate to an individual step in the process, the safest course would be to ensure that any claim is brought within a year of that event.