QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BARBARA MARY HEWSON
|BAR STANDARDS BOARD
James Stuart (instructed by the Bar Standards Board) for the Respondent
Hearing date: 7 January 2021
Crown Copyright ©
THE HONOURABLE MR JUSTICE PEPPERALL:
THE DISCIPLINARY CASE
4.1 On 7 February 2017, Ms Hewson tweeted:
a) "As part of [C's] dishonest lies, she pretends I pose a threat to her 11yo child. This woman is a fantastic liar and manipulator."
b) "[C] is a manipulative, toxic, crazy person. This is how women in the family courts now operate. She needs a BIG health warning!"
4.2 On 11 February 2017, she tweeted:
a) "Think I will put [C's] BSB complaint online. It is embarrassing. Dishonest, malicious gossip (anonymous) drivel about herself."
b) "Barrister [C] of @[C's chambers] likes threatening via social media sociopathic bunny boiler! @[H] report me @barstandards."
c) Responding to a tweet from C, Ms Hewson tweeted: "[C]. NASTY CUNT. HERE IS PROOF."
d) "It's deeply sad: I have not yet had another blizzard of insane claims from lunatic liar @[C] of @[C's Chambers] making stuff up!"
e) "@[C's Chambers] your lunatic tenant @[C] wants to stop me tweeting you. Why? because she is a nut job?"
f) "Barrister @C of @[C's Chambers] is a person who issues threat on social media groomed by [R] "
4.3 On 5 July 2017, Ms Hewson referred to Dr Vanessa Davies, the Director General of the Bar Standards Board in a further offensive tweet: "@[C]. Blame C*nty Vanessa Davies of BSB. She says it's all open. *=u."
5.1 On 22 January 2018, Ms Hewson tweeted:
a) "[C] regularly tweets an anti-Semitic Twitter troll in Germany obsessed with anal rape and anal tears in young boys who have (allegedly) been anally raped, as well as tweeting disgusting claims about a boy prostitute fellating a ruptured anus. What is wrong with [C]?"
b) "*Correction. It was a prolapsed anus. #[C] hangs out with paedo-porn merchant in Germany and the UK #SRA enforcer Awkward, m'dear, especially as you met #ToxicNick whacko in [city]. Another crackpot sex obsessive. How does [s/he] collect them?"
5.2 On 22 March 2018, Ms Hewson tweeted: "@barstandards you have been obsequiously appeasing foreign anti-Semitic #trolls for upwards of three years now what's wrong with your Board, exactly? Closet Icke fans? Closet Corbynites? Or just terminally stupid?"
5.3 On 18 September 2018, Ms Hewson tweeted:
a) "Is [B] sheltering Nick in [address]? I do hope not. She has a 12yo daughter after all but never mind! He can babysit, while she goes out in the town .+Purrfect."
b) "[C] of [C's Chambers] is the cheer-leader for a visious (sic) German anti-Semite but OF COURSE she (her chambers) don't care about his anto-Semitism (sic) cos well cos she is as nasty, obsessional and sociopathic as he is. In a nutshell. Her chambers don't care!"
"They do great credit to [Ms Hewson]. [She] is of great ability and great dedication. She is very able and she had, and has, talent. She is outstanding in terms of academic ability and had dedication to the task of being a barrister when she was practising. She might well have scaled the heights of the profession had it not been for her misconduct outside her practice.
There is no criticism of her conduct in court."
THE FIRST APPEAL
THE SECOND APPEAL
THE PROCEDURAL ISSUES
THE PROBLEM OF THE FIRST APPEAL
"The Court of Appeal or the High Court will not reopen a final determination of any appeal unless
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy."
"The first is a private objective of correcting wrong decisions so as to ensure justice between the litigants involved. The second is a public objective, to ensure public confidence in the administration of justice not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents."
"What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations "
"The paradigm case is where the litigation process has been corrupted, such as by fraud or bias or where the judge read the wrong papers. Those are not, however, the only instances for the application of r.52.30. The broad principle is that, for an appeal to be reopened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation. it also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality."
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
"Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR r.3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to reargue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to deploy."
"It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist."
"It is unnecessary for me to conclude whether exceptional circumstances may none the less justify the revocation of a final order within that second category, still less to prescribe in advance what those circumstances might be "
"16.1 Criticism of a judge's decision is a matter for an appeal and not an application pursuant to r.3.1(7).
16.2 The public interest in finality and in not undermining the concept of an appeal requires that the court's discretion pursuant to r.3.1(7) should be sparingly exercised.
16.3 The power under r.3.1(7) is a discretion to be exercised in accordance with the overriding objective. While judges should not treat the factors identified by Patten J as either sufficient of themselves or as the only circumstances in which the court can exercise the discretion, relief under the rule will only normally be given where:
(a) there has been a material change of circumstances; or
(b) the facts on which the original decision was made were misstated.
16.4 The public interest in finality will be particularly significant where the application is to vary or revoke an order finally deciding the case or an issue in the case. Exceptional circumstances would be required to justify varying or revoking such final order.
16.5 The court should be even more cautious about exercising the power to vary or revoke a consent order. Since such orders are based on an underlying contract of compromise, in my judgment the court should only exercise its power under r.3.1(7) to vary or revoke a consent order where there are vitiating grounds for avoiding the compromise itself."
27.1 Having set aside the consent order and reinstated the original appeal, I am dealing with an appeal filed in January rather than November 2020. There was still a time point since the appeal notice was filed a few days late. No point is, however, taken and it is in the interests of justice to grant the short extension of time required pursuant to r.52.15.
27.2 I grant Ms Hewson permission to substitute her new grounds of appeal for the revived original grounds pursuant to r.52.17.
27.3 I grant Ms Hewson permission to appeal upon the limited ground that the sanction was unduly harsh in light of her terminal diagnosis.
27.4 I grant Ms Hewson permission to rely on the fresh evidence necessary to lay the factual foundation for such ground pursuant to r.52.21(2). Such evidence meets the special grounds for admitting fresh evidence in appellate proceedings laid down in Ladd v. Marshall  1 WLR 1489 in that (1) such evidence plainly could not have been obtained for use before the tribunal since the terminal diagnosis was not made until August 2020; (2) the evidence would, as I explain below, have an important influence on the result of the case; and (3) it is credible.
"That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide."
"The first stage is to assess the seriousness of the misconduct. The second stage is to keep in mind the purpose for which sanctions are imposed by such a tribunal. The third stage is to choose a sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question."
"If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust."
"It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention . In most cases the order of the tribunal will be primarily directed to one or other of both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires."