England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/12/2006

Mr Justice Nelson :

1. The Claimant, a practising barrister, commenced proceedings in October 2005 against the First Defendant as Chairman of the Bar in his representative capacity, and against the Second Defendant, the Chairman of the Professional Conduct and Complaints Committee of the General Council of the Bar from January 2003 until December 2004, the Third Defendant, the Chairman of the Conduct Committee of the Bar Council, formerly the Professional Conduct and Complaints Committee from January 2005 and the Fourth Defendant an investigating officer of the General Council of the Bar, in their personal capacities. On 19^th January 2006 the Defendants issued an application seeking to strike out the claim under CPR 3.4(2)(a) or (b) on the grounds that the particulars of claim disclosed no reasonable grounds for bringing the claim or that it was an abuse of process, alternatively that summary judgment be entered against the Claimant under CPR Part 24 on the basis that the claim had no real prospect of success and there was no other compelling reason why the case should be disposed at trial. On 6 March 2006 the Claimant issued an application for a pre-emptive/protective costs order against the Defendants and sought an order that the First Defendant disclose the terms of the Bar Council insurance policy. Written and oral submissions were made to me in respect of both of these applications.

The facts.

2. The Claimant was instructed as Junior Counsel in the case of Hammond v DPP decided in the Divisional Court on 13 January 2004. The case concerned the conviction of an evangelical Christian who had been involved in a public order offence under the Public Order Act 1986. He had been a preacher for some twenty years and had deeply held religious beliefs. In the Summer of 2001, in order to persuade others to his way of thinking, the preacher took with him a large double sided sign bearing the words "Stop immorality", "Stop homosexuality", "Stop lesbianism". He travelled by bus to preach with the sign and during the journey covered the sign with a black plastic bin liner as he believed it might cause a fracas if displayed inside the bus, because of the reaction he had previously received because of it. When he commenced preaching in a public place, he held the sign upright so that it could be seen by passers by. Some 30 – 40 gathered, some of whom were angry and distressed. It appears that the preacher was assaulted. The police arrived and asked him to remove the sign and leave the area. He refused and was arrested for breach of the peace. None of those from amongst the crowd who assaulted him were arrested or prosecuted. The Magistrates found that the words on the sign were insulting and caused distress to persons present and that the preacher knew that; the restriction on his freedom of expression under Article 10 had the legitimate aim of preventing disorder and there was a pressing need for the restriction. The defence under section 5(3) of the Public Order Act was not available to the defendant as his conduct had not been reasonable. The Divisional Court dismissed his appeal; the Justices had asked themselves the correct questions and their decision was not perverse.
3. The Claimant was instructed on behalf of Mr Hammond, to make an application to the ECHR at Strasbourg. He wrote an article about the issues in the case for the Evangelical Alliance whilst he was still instructed in the matter. This article was published in the February 2004 issue of a Christian magazine run by, or associated with the Evangelical Alliance, called PQ, and in turn was published on the Evangelical Alliance website – ea.uk.org. The Claimant thought that the article that he had written was a private circular for the Evangelical Alliance which would be distributed to select supporters of that organisation. He did not therefore consider that he needed exemption from paragraph 709 of the Code of Conduct of the Bar of England and Wales which provides that a barrister may not express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in proceedings anticipated or current in which he is briefed or expects to appear or has appeared as an advocate.
4. The Claimant wished to write another article on the case for an American journal entitled the 'National Review'. On 5 May 2004 he sought an exemption from rule 709 in respect of this proposed article, as he considered the National Review to be a "public publication".
5. During the course of the meeting of the Professional Conduct and Complaints Committee (PCCC) of the Bar Council, at which the Claimant's application for exemption was discussed on 2^nd June 2004, one of the members of the committee, Mr R Fowler QC, now deceased, brought to its attention the article in PQ written by the Claimant, which Mr Fowler had discovered on the internet.
6. The PQ article was raised with the Claimant in the PCCC's decision letter of 3 June 2004 dealing with his application for exemption for his proposed article in the National Review. The PCCC asked for his comments upon this article on the Evangelical Alliance website which had come to their attention.
7. By his letter of 20 June 2004 the Claimant gave a fulsome and unreserved apology for the article, stating, inter alia, that when the Evangelical Alliance first mentioned the name PQ in 2004 he had never heard of it before and knew nothing about it. It was said to him that certain parliamentarians would receive it, and he thought that by that, reference was being made to the Lords Bishops. He assumed it was a private document for distribution to select supporters of the Evangelical Alliance and did not think that it was a substantive publication. He accepted that that may have been a misjudgement on his part. He also indicated that he had doubts as to whether European proceedings were within the code and stated that some of the article had been changed without his consent. He disassociated himself from some of the language but as he thought that the document was private he was unconcerned. He apologised for any errors that he may have made and confirmed that he would always attempt to comply with the code as he had done where he had thought that the article was for public publication, in the National Review.
8. Mr Adrian Turner, then the Executive Secretary of the PCCC wrote to Mr Patrick Maloney QC, a member of the PCCC, on 1 July 2004 requesting him to advise as to whether a formal complaint should be raised by the Bar Council against the Claimant. Mr Turner stated that it seemed to him there was an issue which needed to be considered as a complaint by the PCCC and they needed to be vigilant to ensure consistency in approach, "particularly bearing in mind the recent consideration by the summary procedure panel (of) the conduct of another barrister in relation to paragraph 709.' Mr Maloney by letter 6 July 2004 agreed that the Bar Council should raise a complaint against Mr Diamond in respect of the PQ article which in his view contained two passages of Counsel's personal opinion about the issues in the case and therefore amounted to prima facie breaches of Para. 709. He noted that matters were raised which might amount to a defence or mitigation and that a thorough apology had been given. He concluded that the PCCC may well decide not to proceed with the complaint or deal with it at a lower level but a complaint should be raised so that the PCCC had the chance to make its mind up.
9. The Claimant was informed on 16 July 2004 by the PCCC that it had been decided to raise a complaint against him of the Bar Council's own motion and his comments were requested. He was asked in particular to corroborate with evidence his statement in his letter of 20 June 2004 that he was not aware of the manner in which the article would be published. The Claimant replied on 28 August 2004 stating that he had hoped that his apology and letter of the 20^th June was sufficient. He did not realise the publication was 'public' and there was no mens rea. The article was not intended so much to be public as 'educational'. It was not directed at members of the public for public consumption and the Bar Counc il should further consider whether an article was public in the present communication revolution simply because it could be discovered. Mr Diamond referred to his apology and said he would redouble his efforts to ensure privacy. The application of Rule 709 to the circumstances he outlined would, he said, be disproportionate. Mr Diamond enclosed a supporting letter from Dr Don Horrocks, the Head of Public Affairs of the Evangelical Alliance. In that letter Dr Horrocks described requesting Mr Diamond to write an educative article for the magazine PQ about the case of Hammond and said that he did not consider that the article was a public statement as it was regarded as a briefing for interested members of the Alliance constituency. "The contents of PQ are not primarily intended for general public consumption, although the article can be accessed on our website usually by those who are specifically notified of its existence." An e- mail warning of the publication of PQ was sent to a limited group of people including Parliamentarians. PQ was not a general magazine available to the public but was a political and public policy information service primarily aimed at those engaged in or interested in public life, most of whom would adhere to the Evangelical Alliance's religious world views. He regarded PQ as being a private subscription journal rather than a general public document.
10. A detailed opinion on the matter was sought from counsel and on 28 September 2004 Mr Jason Beer of 5 Essex Court advised in writing. He concluded firstly that the article in PQ clearly contained expressions of the Claimant's personal opinion, secondly that proceedings in the European Court are 'proceedings' within the meaning of Para. 709 of the Code and the article was written when such proceedings were anticipated, thirdly that the article was expressed to the press or other media or in any other public statement; fourthly that mens rea was not a necessary ingredient under Para. 709.1 and fifthly although the article was educational it was not expressed in an educational context. Mr Beer therefore concluded that there was a prima facie case of breach of paragraph 709.1 by Mr Diamond. He said he was in two minds about disposal. His instinctive reaction was that having regard to the fulsome apology, the previous application for a waiver, and the apparent absence of any intention to breach the Code, Mr Diamond should be ordered to attend upon the Chairman. He noted however that a recent case of this type was sent to a summary hearing and that Mr Turner had made a note on his file about consistency of approach. Mr Beer did not know the circumstances of the other case and could not therefore make a comparison, but welcomed members' views.
11. The PCCC met on 6^th October 2004 and decided that the complaint should form the subject of a charge before a summary hearing, convened under the Summary Procedure rules, annex L of the Code of Conduct. This decision was communicated to Mr Diamond on 7 October 2004 and on 24 November 2004 Mr Neill Mallon, the Assistant Investigations Officer of the PCCC wrote to Mr Diamond enclosing the charge sheet, statement of facts upon which the PCCC proposed to rely, and additional documents. Two provisional dates were put forward with the right to the Claimant to propose two alternative dates. The Claimant was also informed that if he refused to accept the summary procedure or challenge significant facts in the statement of facts, the matter would be referred to the Disciplinary Tribunal of the Council of the Inns of Court.
12. Mr Diamond telephoned Mr Mallon on 9 December 2004 and indicated that he saw little difference between the summary procedure and a full Disciplinary Tribunal hearing, and indicated that he wished the matter to be heard by the latter. Mr Mallon informed him that the decision to refer the matter to a summary hearing was a collective decision by the PCCC members whose names were set out in the Bar Council's handbook. The Claimant confirmed in a letter of 17 December 2004 that he refused to submit to the Summary Procedure and the case would therefore have to be referred to a Disciplinary Tribunal. He did not accept that he had done anything inappropriate and the facts would have to be examined. He requested a full witness statement from the individual QC who discove red the web article. He stated that he would like to discuss the procedure for the Tribunal as he wished to clarify the issues and information required as soon as possible prior to any directions hearing.
13. On 23 December 2004 Mr Mallon acknowledged the Claimant's letter and noted the request for a Disciplinary Tribunal hearing arrangements for which would be put in hand. He did not answer the request for a witness statement from the QC who discovered the article on the website. On 25 January 2005 the Claimant telephoned Mr Mallon about the delay in dealing with the information he had requested. Mr Mallon said that he had drawn Mr Diamond's queries regarding witness statements to the attention of the new prosecutor, the original prosecutor having pulled out, and would respond on the point as soon as their advice was received. He told Mr Diamond that the directions hearing would probably be in March at the earliest and he would respond on this point as soon as he was able.
14. On 24 February 2005 the Claimant was informed by the Council of the Inns of Court that the directions hearing was to be before Mr Justice Gray on 7 March 2005. The Claimant indicated that that date was unsuitable as he intended to be in New York on business on that date. He said that the surprising failure to reply to his letter of 19 December 2004 required a full reply which he sent on 5 March 2005 to Mr Mallon. He said that he was becoming deeply suspicious of the ethics of the Bar Council in this prosecution as a consequence of the failure to reply to his request for a witness statement and a discussion prior to the directions hearing. He received short notice of the directions hearing. He said that in his view he had been singled out by reason of his principled opposition to Bar Chairman Mathias Kelly, and to seek a 'chilling effect' on his practice by politically correct individuals at the Bar Council. He re-iterated that he could not prepare his defence without a witness statement from the 'unknown' QC dealing in particular with how and why he came across the article. There was a factual dispute and he had a right to confront the complainant/witness. Article 6 of the Convention applied to professional conduct proceedings and any anonymous witness system would breach the fair trial provisions. When he received the witness statement he wished to speak with Mr Mallon and be given an opportunity to see what could be agreed before a contested directions hearing. On 9 March 2005 Mr Mallon replied stating that his request for the identity of the person who viewed the web article should be made to the directions Judge at the reconvened hearing.
15. The directions hearing took place before Mr Justice Hart on 4 May 2005. The Claimant's application for witness statements was rejected by Mr Justice Hart who ruled that he did not have the power to order the Bar Council to prosecute in any particular way or use any particular evidence. He did however order the production of the record of the PCCC proceedings and the prosecution file maintained by the Bar Council subject to claims for privilege. During the course of the proceedings Hart J expressed doubts about the merits of the prosecution and invited the Claimant to consider applying to strike out the charge. He said that he would have viewed such an application with a great deal of initial sympathy but Mr Diamond's concern was as to the quality of the Bar Council's prosecution process and he felt that it should be put to the test in this case. He noted that Mr Diamond believed that the decision to prosecute represented a potential attack on members of the Bar, especially those who represented unpopular causes. Directions were therefore given for the Disciplinary Hearing. In his recitation of the facts Mr Justice Hart described the Hammond case as raising important questions with regard to freedom of speech and the freedom to express religious views.
16. Mr Mallon wrote to the Claimant on 9 May 2005 apologising for the delay in responding to his letter of 17 December 2004 and in particular for the witness statement from the individual who discovered the web's article. Mr Mallon said that he had sought advice on a response to the point but was hampered by the fact that there had been two changes to the prosecutor and that at 25 January 2005 he had still been waiting for instructions as to the Bar Council's response. He apologised for the fact that a greater effort had not been made on his part to provide him with a more prompt and detailed response. This letter from Mr Mallon provoked a strong response from the Claimant. He repeated, as he had said at the directions hearing, that the prosecution was a politically motivated campaign to damage his practice, injure his reputation and harm him financially. The prosecution was a mala fides and commenced by 'unknown' politically motivated QCs. He said that it was his opinion that the actions undertaken by the Bar Council towards him were the culmination of hatred of the values of Christians and Jews by secularists. He said that he had been hounded for a year, and if he permitted vilification campaigns against members of the independent Bar to continue and face no recompense, the object of primitive individuals in the Bar Council would have succeeded in their objective of harassing barristers who undertake unpopular causes, namely that of representing the Christian (Judeo-Christian) community. He described Mr Mallon's letter of 9 May as being a 'confession' and said that Mr Mallon was the individual responsible for the obfuscation of the Bar Council and its repugnant behaviour. He described it as a clear lie to hide those culpable. The prosecution was entirely misconceived and based on a private church communication put on the web. The Bar Council had refused any compromise or prior discussion on how they would apply the rules against him in order to silence him. He had no doubt that if he accepted the summary hearing before a chosen QC he would have invoked the highest penalties.
17. He set out his reasons for describing the prosecution as tenuous, saying that the Bar Council's interpretation of the 'media rules' would apply them to a talk at Penzance Catholic Church. He set out his previous criticism of Bar Chairman Mathias Kelly for describing the Blair Government as racist and President Bush as abhorrent to lawyers in the Western world. Such statements were an open abuse of the position of Bar Chairman in which he mandated the entire profession to support his political view. Mr Diamond said that he been harassed for a year and would not let politically correct QCs escape censure. The pressure placed upon his family was disgraceful. In a letter of the same date to Mr Mallon, dealing with directions and requests for further documents and witness statements, Mr Diamond said that he would issue third party witness statements if he did not receive the information he sought. He advised Mr Mallon not to become the 'fall guy' and said "You appreciate the financial consequences of what you have admitted and are now liable for costs and damages to me." He said that Mr Mallon must be called as a witness because he was in the process of committing falsehood. In a further letter to Mr Mallon of 24 May 2005 he required witness statements from Mr David Etherington QC, Mr Adrian Turner, the former chief executive of the Bar Council and Mr Neill Mallon. He accused Mr Mallon of protecting those responsible for failure to provide a requisite information. He required the details of the case he had to face before serving witness statements himself. He sought the witness statements he had requested in his letter of the 24^th of May in a further letter to the Chairman of the Bar, Mr Guy Mansfield QC, and Ms Andrea Johnson and Mr Neill Mallon, and in a letter of 21 June 2005 said that Mr Mallon should be removed from contact with the case as he wished to call him as a witness because of 'his own admission of mala fides'. He said that the conduct of PCCC and Mr Mallon had been of extremely poor quality.
18. Documents purporting to be witness summonses were served by the Claimant on the Second and Third Defendants on 21^st and 23^rd June 2005. These documents were not in the proper form and leave to issue and serve them had not been obtained as it should have been. A purported penal notice was nevertheless included in the form.
19. The Second Defendant, David Etherington QC, responded to the service of the witness summons upon him by telephoning the Claimant. He says in his witness statement that he considered the service of the witness summons to be improper and indicated to Mr Diamond that he would consider reporting him to the Bar Council for his conduct. In a letter dated 28 June 2005 Mr Diamond said he noted Mr Etherington's anger at the witness summons and his statement that he would be complaining against him. He said he regarded any further complaint against him as unacceptable and required a full retraction of this 'threat'. He required Mr Etherington to attend as a witness at the Disciplinary Hearing but would refrain from serving any witness summons if he agreed to give evidence.
20. Mr Mark Stobbs, the Deputy Chief Executive of the Bar Council wrote to the Claimant on 28 June 2005 in response to the Claimant's fax of 21 June 2005 (wrongly referred to as 27 June 2005). He said that Mr Price could not attend before Mr Justice Hart for a further directions hearing in accordance with the witness summons in the 1^st week of July as he was sitting in Worcester that week. Mr Stobbs said that they did not consider Mr Mallon had done anything either improper or unlawful but had at all times been acting under the proper instructions of the PCCC and prosecuting counsel. Nevertheless Mr Mallon would be withdrawn from the case. Mr Diamond in response to this letter, though wrongly referring to it as dated 27 May said that it was a 'disgraceful letter' and said that Mr Stobbs's "soul was diminished".
21. The Claimant wrote to Mr Justice Hart on 30 June 2005 and was strongly counselled in a reply of 4 July against entertaining any belief that he had the right to serve witness summonses for a directions hearing. He also urged the Claimant to seek advice from some fellow members of the Bar as to the best way forward, as "it is all too easy when acting for oneself to lose sight of the best points".
22. On 27 July 2005 the Claimant wrote a letter entitled 'My Guantanamo Bay' to the Bar Council and the Third Defendant. He re- iterated his request for witness statements from Mr Mallon, Mr David Etherington, Mr Turner and Mr Price and said that Mr Etherington's threat to him of further disciplinary action was inappropriate and a full retraction was required. He said he regarded the Bar Council as a lawless body capable of unethical conduct. In a letter of the same date to Mr Guy Mansfield QC in his capacity as Chairman of the Bar, the Claimant asked him to ensure that he had a fair trial so that there could be judicial oversight of the process. He described the conduct of Mr Mallon as 'clearly criminal' as he had interfered with and perverted the course of justice on the grounds of religious animus. Mr Diamond said that he had set up the Committee for the Independent Bar, with him as chairman, and that this committee and he called upon Mr Mansfield to support a referral to the police into Mr Mallon's conduct.
23. On 28 July 2005 Mr Diamond was informed that the PCCC had reconsidered the complaint against him on 27 July and decided that the prosecution against him would be withdrawn and that the complaint was therefore dismissed. In a letter of 18 August 2005 Mr Patrick Maloney QC as Vice-Chairman of the PCCC wrote to the Claimant setting out the relevant facts and history explaining why he rejected the Claimant's allegations that the PCCC had acted from improper motives of religious animus or had pursued proceedings in an unfair manner. The extent of disclosure of the PCCC's internal papers on the case should, Mr Maloney said, have made it clear to him that the proceedings were not motivated by religious animus or bias. There was in fact a prima facie case of a breach of the Code but as a result of the directions hearing the case was reconsidered by the PCCC and the proceedings withdrawn on the grounds that there was insufficient evidence of the requisite mens rea in the sense of knowledge on Mr Diamond's part that the article would be generally available on the internet.
24. It is against this background that the Claimant issued proceedings against the Defendants giving rise to the two applications, to which I now turn.

The Claim.

25. The particulars of claim, dated 25 October 2005 claim damages under several different causes of action, some of which overlap. The underlying premise is that the courts have an inherent jurisdiction to control monopoly bodies such as the Bar Council, particularly where they have control over an individual's right to work, where the Bar is concerned with the administration of justice and barristers must be independent. The causes of action relied upon by the Claimant are as follows:-

i) Contract: there is an implied term of membership of the Bar of a duty to act fairly. Such a duty is both procedural and substantive and includes the obligation to comply with Articles 6 and 9 of the Convention and to act fairly and in accordance with the principles of natural justice. The highest standards are required where the Bar act in the administration of justice and their profession is described as 'honourable'. The implied term of the duty to act fairly includes not being subject to an unfounded prosecution. (Paragraph 51-52 of the particulars of claim and particulars therein set out.)

ii) The prosecution was brought in bad faith and with malice, to damage the Claimant's practice in breach of due process and Article 6 of the Convention. (Paragraph 53 of the particulars of claim.)

iii) The Defendants and the Second to Fourth Defendants have harassed the Claimant securing a 'chilling effect' by the unjustified commencement and then dropping of proceedings. The necessary judicial oversight and remedy were thereby removed. (The allegation of harassment is set out at paragraph 54 of the particulars of claim).

iv) There then follows particulars of procedural unfairness paragraph 54(a)-(t) and particulars of substantive unfairness paragraph 54 particulars (a) – (f) which appear to be independent allegations and particulars of breaches of the procedural and substantive duty to act fairly pleaded in paragraph 51.)

v) Negligence, in not exercising the necessary reasonable professional skill and care in commencing a prosecution, or in the exercise of a statutory duty. (Paragraph 55 of the particulars of claim. The particulars pleaded on this allegation are failure to reply to the Claimant's requests from December 2004 to May 2005, failing to realise that the 'fair trial' provisions in Article 6 were applicable to disciplinary tribunals, failing to realise that the Claimant had no mens rea, failing to co-ordinate the directions hearing and thereby prejudicing the Claimant, failing to arrange a mutually convenient time for the directions hearing, and making unwarranted threats to the Claimant.)

vi) Implied term not to cause economic loss by means of an unfounded prosecution. (Paragraph 56 of the particulars of claim).

vii) Breach or regulation 12 of the Employment Equality (Religion and Belief) Regulations 2003 and Article 9 of the Convention. (Paragraph 57 of the particulars of claim. The particulars allege that the Defendants and the Second to Fourth Defendants took discriminatory measures against the Claimant because of the nature of his practice in representing religious organisations and ignored the right of religious organisations to discuss issues of religious concerns.)

26. The particulars of procedural and substantive unfairness are also relied upon under the allegations of negligence, implied term not to cause economic loss, and breach of regulation 12.

The evidence.

27. The Defendant served statements from Mr Timothy Smith a partner of Berrymans Lace Mawer acting on behalf of the Defendants in support of the application to strike out or enter summary judgment. The correspondence, the article, the report in the case of Hammond and The Complaints Rules, The Disciplinary Tribunals Regulations and The Summary Procedure Rules, are attached to his witness statement. There are in addition statements from the First Defendant, the Second Defendant, the Third Defendant and the Fourth Defendant, and a statement from Mr Patrick Maloney QC.
28. The Claimant has served his own witness statement dealing with the application to strike out and for summary judgment together with an application in statement form relating to the application for a protective/pre-emptive costs order. In addition he has served witness statements from the Re verend Simon Burton-Jones, Albert Edwards, and Kelly Rogers.
29. I shall deal firstly with the Defendants' statements. Mr Smith sets out the background, relevant documentation and the grounds for the Defendants' applications. He states that the Claimant has two core complaints, namely that the prosecution against him was malicious, being motivated by hatred of his religious views, and that the conduct of the prosecution was improper. Mr Smith states that there is no evidence in support of these complaints at all, there is no tort of malicious prosecution available in respect of disciplinary proceedings (Gregory v Portsmouth City Council [2001] AC 419) and no action for negligence for conduct in disciplinary proceedings (Caveley v Chief Constable of the Merseyside Police [1989] AC 1228). Those principles cannot be circumvented by asserting an implied term to conduct proceedings fairly. There is no common law tort of harassment and no discrimination within the employment context so the Employment Equality (Religion and Belief) Regulations 2003 are inapplicable. Nor was there an infringement of the Claimant's freedom of thought. There is no breach of Article 6 either in the conduct of the proceedings or the directions hearing. The delay which occurred was apologised for fully and in any event the Claimant was not entitled to the witness statements as Mr Justice Hart held. The Claimant's allegations are, Mr Smith states, in his view, bizarre and far fetched.
30. Mr Mansfield states that he was unaware that disciplinary proceedings had been commenced in relation to Mr Diamond until after the directions hearing on 4 May 2005. After he had seen the note of the hearing before Mr Justice Hart he was of the view that the matter should be reconsidered by the PCCC. When Mr Diamond wrote to him the letters were passed to the persons dealing with the matter on behalf of the Bar Council for reply. Mr Mansfield said that he did not take any other active steps and did not intervene directly or indirectly or give any advice as to what might be the appropriate course of action for the PCCC. His involvement was therefore extremely limited and he expressed surprise that he has been joined in his personal capacity. He does not know Mr Diamond and confirms that he bears neither him nor his beliefs any ill will whatsoever.
31. Mr Etherington chaired the meeting of the PCCC on 2^nd June 2004 which considered Mr Diamond's request for exemption from Paragraph 709 in relation to the article for the National Review. He has read the notes of that meeting but has no specific recollection of the discussions. He also chaired the PCCC meeting on 6 October 2004 which considered Jason Beer's advice. He recollected that the Committee decided that there was a prima facie case of professional misconduct established and that the case should be referred to a summary hearing. That was the extent of his involvement in the disciplinary proceedings. He later received a witness summons dated 21^st June 2005 purporting to require him to attend the High Court in the first week of July 2005 to give an explanation as to the position of the PCCC in relation to the prosecution of Mr Diamond. The witness summons was defective in that it was issued without permission of the Court, was not on Form N20 and did not state that if he wished to have the summons set aside he could apply to the Court that issued it. Mr Etherington considered that Mr Diamond's conduct in purporting to serve a witness summons upon him in these circumstances was improper and he indicated that to Mr Diamond in the course of a short telephone call which he initiated. He told Mr Diamond that he would consider reporting him to the Bar Council for his conduct. He states that he made that telephone call to ascertain whether the summons had been issued with the Judge's knowledge since, whether or not any power existed for a witness summons to a directions hearing he made it clear to Mr Diamond that he would attend any hearing if the Judge wished it without the need for any summons. He said that his tone in the short conve rsation was cold, conducted both politely and professionally. The only heated remarks came from Mr Diamond himself who told him that he would not 'bandy words' with him.
32. On 28 June 2005 Mr Diamond apologised for serving the witness summons, told Mr Etherington to ignore it, but demanded that he retract the statement that he intended to refer the matter to the General Council of the Bar. Mr Etherington said that since he had only said that he would consider doing so the Claimant's observation was misplaced. He decided in view of Mr Diamond's apology to take no further steps though he remained of the view that his conduct in relation to the witness summons showed either a troubling ignorance of the proper considerations for issuing such a summons or if he did know what he was doing, amounted to professional misconduct. Mr Etherington said that he was bewildered by the nature of the allegations made against him personally by Mr Diamond; he had never had any contact with him before, and had no prior knowledge of the matters in which he acted or his religious views. He had no hostility towards Mr Diamond in particular or the Christian religion in general and considered the proposition that he had personal animus against him or his religion to be absurd.
33. Mr Price states in his statement that he attended the PCCC meeting on 2^nd June 2004 but had no recollection of the discussions. He was also present at the PCCC meeting on 6 October 2004 when Jason Beer's note was considered. He could recall that the matter was referred to a summary hearing by the PCCC. He also chaired the meeting on 27 July 2005 which considered the advice of Richard Harrison and Phillip Shorrock. It was at that meeting that the PCCC decided to dismiss the disciplinary proceedings against Mr Diamond. Mr Price has appeared in the same case as Mr Diamond and is aware of his religious views. Mr Price says he bears no ill will towards either the Claimant or his views or indeed any ill will towards Judeo-Christian values generally. He is extremely unhappy that Mr Diamond has chosen to join him personally in the proceedings with no reasonable or proper basis upon which to do so.
34. Mr Mallon is an investigating officer at the Bar Council. He confirmed the history set out in Mr Maloney's statement. He had been hampered in dealing with Mr Diamond's request for a statement because three different prosecuting counsel had been involved. As he had not received a reply by 9 March 2005 he suggested that the directions hearing was the appropriate forum for the issue of th e witness statement to be determined. None of the prosecuting counsel had suggested that this was an inappropriate response. Mr Mallon said that he was happy to re- iterate his apology for not providing a more and detailed response to Mr Diamond's request but could not regard that apology as a confession or an acceptance of wrong doing. There had been no wrong doing on his part. Mr Diamond was not entitled to the statement in any event. Mr Mallon was not aware of either Mr Diamond or his religious views prior to the commencement of the investigation process and was extremely shocked to have been personally joined. He confirmed that he bears no ill will towards either Mr Diamond or his religious beliefs and says he has acted in all times as required by his employment with the Bar Council and in accordance with the instructions and advice he has received from his line managers, prosecuting counsel and members of the PCCC. He played no part in the decision to raise a complaint against Mr Diamond or to refer the complaint to the summary hearing. He did not attend the meeting on 6 October 2004. It was no part of his role to take major decisions about the handling of a complaint.
35. Mr Maloney states that he was brought up in a devout Christian family and is still a fa irly regular church goer. He is not in any sense hostile to Judeo-Christian beliefs or morality and has never had any reason to suppose that the Bar Council, the PCCC or their members were so motivated. He sets out the history of the matter and the procedure. The fact that Richard Fowler QC had found and produced the PQ article at the meeting of 2 June 2004 was not unusual. Google searches are commonplace as a first step in researching any matter of interest and he could think of at least one other occasion in which similar researches had been revealed at meetings. At no time did he hear any anti-Christian sentiments expressed at the PCCC meeting or in outside discussions in relation to Mr Diamond's case. Mr Maloney was aware of an earlier Para 709 case involving a prominent left wing barrister where the PCCC had instituted two sets of disciplinary proceedings against that individual which had attracted some publicity. The relevance of that when considering Mr Diamond's case was that Mr Maloney wanted to ensure that the PCCC was seen to behave even handedly in relation to the highly political subject of media comments on current cases. He did not wish anyone to be able to say that they had singled out an individual barrister for political reasons while allowing media comments of a different nature to go uninvestigated.
36. When he wrote his letter of 6 July 2004 recommending an own motion complaint he said that he found it surprising that the Evangelical Alliance would have published the PQ article on the internet without Mr Diamond's knowledge or consent and wanted this to be corroborated if possible. He notes that the Evangelical Alliance letter of 31 August 2004 does not state that Mr Diamond's article was put on the website without his knowledge or consent.
37. As to the PCCC meeting of 6 October 2004, a typical PCCC agenda would contain twenty such reports as the one written by Jason Beer. Mr Maloney did not consider Jason Beer's paragraph 18 closely and when he did so in July 2005 he decided that it was wrong to say that mens rea as to publication was not an essential element of a paragraph 709 offence. The PCCC's decision was to send the case to summary panel which has no power to disbar. That suggests, Mr Maloney says, that the PCCC was not motivated by any wrongful motive of persecuting Mr Diamond or driving him from practice.
38. Mr Maloney said that he was shocked that Mr Diamond should bully a junior member of staff such as Neill Mallon. He suggested to Mark Stobbs that for Neill Mallon's sake the conduct of the case be handed to outside solicitors.
39. The directions Judge expressed doubts about the merits of the prosecution and Mr Maloney discovered that the prosecutor had been considering an approach to the PCCC to drop the case. Mr Maloney was asked to consider the matter again, including the advice of the prosecutor Richard Harrison that they should drop the case. Mr Maloney advised that as mens rea was required, contrary to Mr Beer's original view, and in the absence of any positive evidence that Mr Diamond had known the extent to which his article would be published, the prosecution should be withdrawn. The PCCC accepted his recommendation.
40. Mr Maloney suggested mediation by a trusted Christian lawyer but this proposal was not taken up. As set out in his letter of 18 August 2005, Mr Maloney says that he knows for a fact that the disciplinary proceedings against Mr Diamond were not motivated by prejudice against him or his religious beliefs.
41. Mr Diamond in his statement sets out the importance of the case. It is, he states, about the rule of law and whether the Bar Council is subject to this principle or whether it should be granted deference. The highest standards are required of the Bar Council. At stake is the independence of the Bar and its ability to represent politically incorrect cases. The chilling effect on his practice has been severe. There is a need for judicial oversight of the Bar Council. He states that the Defendants failed to serve defences and obtained an extension by unprofessional methods to 18 January 2006. He says that CPR 24.4(2) requires the service of the defence and that he has been prejudiced by the Defendants failure to so serve it.
42. The fact that Mr Justice Hart was unhappy with the conduct of the Bar effectively raises an issue estoppel. Mr Justice Hart essentially agreed with his submissions and invited him to strike out the Bar Council's prosecution.
43. Mr Diamond states that he does not accept that the decision to terminate the prosecution against him on the grounds that he no mens rea was bona fide nor that the Defendants were giving the true version of events to the Court. Cross-examination on this was necessary. He states that throughout he has attempted to act reasonably whereas the Bar Council have failed. The first intelligent response he had was that of the 18^th August 2005 from Mr Maloney albeit giving an unsustainable version of events. Mr Diamond is certain that he would have been suspended at any summary hearing.
44. The witness statements by the Bar Council are simply disputed versions of fact. Mr Diamond is of the view that the Defendants were determined to pursue a sexual libertarian agenda and this can only be ascertained on cross-examination with discovery. Cross-examination of Mr Etherington, Mr Maloney and Mr Turner would ascertain the full facts. The witness statements served by Mr Etherington, Mr Price, Mr Mallon and Mr Maloney are not the full truth. As to Mr Etherington, one can, Mr Diamond says, draw one's own conclusions as to a criminal silk who commences a livelihood prosecution in the absence of mens rea, communicates with the Defendant during the heat of litigation and repeats threats that are the very subject of the litigation to a Defendant who feels he has been unlawfully harassed.
45. The prosecution is extremely tenuous and numerous questions arose. Was there a breach at all, did mens rea apply, were European proceedings included, why prosecute when the breach is inadvertent and an apology has been given; the rules as applied would prevent a talk at Penzance Catholic Church. He criticises Mr Mallon's failure to deal with matters, describing it as obfuscation. He refused to discuss the directions and then set down the hearing date without communicating with the Claimant. This was an attempt to bounce the Claimant into a hearing for which he would not be prepared. The conduct of Mr Mallon showed two clear offences, the first of perversion of the course of justice and the second harassment of Mr Diamond designed to have a chilling effect on his practice.
46. The Bar Council were brutish, aggressive and rude in their conduct of the prosecution prior to his refusal to go before their nominated QC on a summary procedure hearing. Mr Maloney's statement does not cover this at all. If there was a decision to prosecute an innocent man, Mr Diamond, to secure the conviction of another man, Mr Peter Herbert, that is an extremely serious allegation. The Court will need to compare the two cases. Officers at the Bar Council had been misused; for example Mr Mallon to breach his duties, Mr Turner to telephone Mr Diamond to encourage him to make a complaint against Mr Kelly and for the Bar Ombudsman to breach his instructions and reject it by return of post.
47. Mr Diamond says he faces debarment for life for writing in an obscure religious communication, prosecuted at one of the highest levels on the Bar's own motion, denied witnesses, removed from the legal services ombudsman and due process. He had always acted honourably. This is an important prosecution relating to the independence of the Bar.
48. As to the application for a pre-emptive/protective costs order the Claimant relies upon the case of Wallersteiner v Moir (No2) [1975] QB 373 and submits that he satisfies the criteria set out in the case of R (Corner House Research) v Secretary of State for Trade and Industry 1 WLR [2005] 2600. This is a case of public importance with the Defendant using the traditional costs approach to wear down public spirited individuals acting on behalf of others as well as themselves who have to bear the cost out of private resources.
49. The statement from the Reverend Simon Burton-Jones, who is the rector of St Nicholas's Church of England Church Chislehurst Kent and the area Dean of Bromley, states that he has known Mr Diamond since they met at Cambridge. He has a great respect for Mr Diamond and gives a strong character reference. He describes him as a man of firm conviction and faith and a specialist in the law of religious rights; a man of the highest integrity. He then comments on the case of Hammond and Mr Diamond's involvement in it, and expresses surprise that the Bar Council have not offered an unreserved apology to Mr Diamond and offered to pay his costs and damages. Either the prosecution was mala fides or the prosecution procedures were poor and the individuals responsible culpable, he comments.
50. Mr Albert Edwards is the chief strategist of Dresdner Klienwort Wasserstein and a lay magistrate. He has known Paul Diamond since 1970. He was requested to carry out an internet search to see if he could find the offending article on the web by Mr Diamond. It took him twenty five minutes. He describes Mr Diamond as being an individual of utter integrity.
51. Kelly Rogers of Polecoff's Solicitors, has instructed Mr Diamond. It took thirty minutes for this witness to be able to find the article on the web.

The Complaints Rules.

52. The PCCC has to determine whether any complaint discloses a prima facie case of professional misconduct and if so, to deal with it in accordance with the Rules. (Rule 33). The Bar Council may raise a complaint of its own motion (5). The Committee may dismiss a complaint or determine that no further action should be taken, but if a prima facie case of professional misconduct is disclosed the Committee has three courses of action open to it. It may direct that the complaint should form the subject matter of a charge before a disciplinary tribunal, or it may deal with the matter summarily in accordance with the summary procedure rules or, if the matter is not serious enough to warrant a disciplinary tribunal or the summary procedure, the Committee may direct that complaint be dealt with by informal attendance by the barrister to explain his conduct in front of two barristers and two lay representatives who have the power to conclude that no further action should be taken, or to give the barrister advice as to his future conduct, or to admonish him. (Paragraphs 36 and 52).

The submissions.

53. These are set out in detail in the statements of Mr Smith and Mr Diamond which I have already summarised, as well as in the helpful written submissions. It was agreed between the parties that Mr Diamond would commence oral submissions by opening the background of the matter before the Defendants made their applications.

The Claimant's general introductory submissions .

54. Mr Diamond submitted to me that the freedom of the Bar was at stake and that no-one is safe from the politically correct orthodoxy of the Bar Council. In society generally many people are now threatened; thus a Bishop has been threatened because he said that he would pray for homosexuals. The conduct of the Bar Council caused Mr Diamond to lose the Hammond brief in Strasbourg and his reputation. He has gone from being hero to troublemaker in chambers as he is regarded as too tenacious. Double standards exist; if he had threatened Mr Etherington he would have been charged with misconduct, whereas Mr Etherington had threatened him with no consequences. Mr Diamond accepted that he was trying to provoke a prosecution by issuing 'witness summonses'. Is anyone safe from a Bar Council like this he asked. This case presents a good opportunity for the Courts to exercise its judicial oversight over the conduct of the Bar Council and the rule of law itself is at stake. The Bar Council's wrongful acts threaten freedom.

The Defendant's submissions.

55. Mr Roger Stewart QC submitted on behalf of the Defendant that there was no basis in fact and no basis in law for the Claimant's claim. Allegations of bad faith and malice are extremely serious and need particularising but no particulars at all have been provided. There is simply no evidence to justify an allegation of malice. The Claimant has accepted that it was not appropriate to issue 'witness summonses' as he did and he had an ulterior purpose in doing so. In such circumstances Mr Etherington was entitled to be angry. The Claimant clearly knew that he should never have issued those summonses.
56. If the complaint is about the institution of the prosecution there has to have been a conspiracy yet it is not alleged that either Mr Beer or Mr Maloney, whose views played a significant part in the commencement of proceedings, were involved in such a conspiracy. A prosecution can be honestly wrong in which case the matter is dropped or goes to a trial and the prosecution fails. That situation does not lead to any private law right to sue unless malice is shown and none can be. The Claimant has not begun to show on the facts any evidence to justify going against the Defendants either for their decision to prosecute or to withdraw. An open offer has been made to the Claimant to pay his costs of the disciplinary proceeding but not £54,000 as he claims or £200 per hour.
57. As to the legal basis for the claim Mr Stewart submitted that there could be no contract between the Claimant and Price or Etherington or Mallon. There is no basis upon which there can be a contract with other individual members of the Bar. Nor, Mr Stewart submits is there a contract between the Claimant and the Bar Council with an obligation upon the Bar Council to act fairly. It would be neither necessary nor reasonable to imply such a term. The Bar Council must promote the professional discipline of its members with oversight by the Claims Commissioner and ultimately the Court which hears the disciplinary matter.
58. Rule 5 of the Complaint Rules enable the Bar Council to raise its own complaint. The effect of Rule 33 is that if a prima facie case is found the Bar Council is obliged to prosecute the barrister. There is no room to imply a term to act fairly. If there is a prima facie case it goes before the tribunal with a Judge as chairman and that body will establish whether there is guilt or not.
59. The case of R v Bar Council ex-parte Percival [1993] AER 137 establishes that a decision to prosecute can be judicially reviewed but if there is a properly assessed prima facie case the Bar Council has to prosecute and their decision cannot be challenged (156H). If there is no prima facie case then a prosecution cannot continue, so if there is a change of mind and the PCCC think that there is no longer a prima facie case then the prosecution has to be dropped. In argument Mr Stewart accepted that if there is a discretion not to prosecute that discretion can only be exercised if it is thought right to do so.
60. Bar Council subscriptions are now split between those which barristers are obliged to make and the others, re trade union matters which are voluntary. Even if a barrister can assert in relation to the voluntary part of the subscription that he is entitled to certain services, he is not entitled so to contend in relation to disciplinary matters which are imposed upon him. The disciplinary structure is derived from the Judges who have historically controlled the advocates. There cannot be any contractual term implied in respect of disciplinary proceedings though these are subject to judicial review by the Courts. Any implied term such as Mr Diamond contends for would fetter the control of the Judges and run contrary to principle.
61. The decision in Calveley and the Chief Constable of Merseyside and others [1989] 1 AC established that there was no common law duty of care owed by an investigating police officer in respect of delay and the conduct of an investigation. It would be contrary to public policy to require police officers to conduct investigations that were subject to a potential action for negligence by a suspect. The case of Gregory establishes that the tort of malicious prosecution was not available in relation to disciplinary proceedings, though defamation, malicious falsehood, conspiracy and misfeasance in public office were.
62. The Defendant submitted that these authorities confirm that the Claimant has no right of action against the Bar Council in either contract or tort. If there is no action in negligence or malicious prosecution there is no proper basis upon which an implied term to act with due care can be implied. Further Mr Stewart submitted, there is no common law tort of harassment as the case of Wong v Parkside Health NHS Trust [2003] 3AER 932 establishes, and the Employment Equality (Religion or Belief) Regulations 2003 are clearly inapplicable because they apply to employment under regulation 6(1) and the Claimant was not an employed person.
63. As to quantum Mr Stewart submits that this is a claim for the personal benefit of the Claimant; even though he says in paragraph 3 of his particulars of claim that he will distribute damages recovered against the First Defendant for good causes he will use any damages against the other Defendants in his discretion. The losses alleged cannot in any event be established. For example the Claimant contends that he lost his brief fee in the case of Hammond in Strasbourg but he resigned from the case before the matters complained of. The Bar Council have made an open offer to pay him costs properly referable to the disciplinary proceedings.

The Claimant's submissions.

(i) Re the strike out application.

64. Mr Diamond submitted to me that he thought that it would be the end of the matter after he had given his fulsome apology and could not understand why a complaint was raised against him. Barristers are often on the radio speaking about their cases and Rule 709 usually tends to be observed in its breach.
65. The question of what is a public publication is more complicated in view of the web. It is a new area requiring new considerations.
66. When he was informed that the Committee had decided that he should be the subject of a charge before a summary hearing he was convinced that if he appeared before the nominated QC he would have suffered serious sanction. He said therefore he wanted a full trial before the Judge. Matters were still polite at that stage.
67. After his phone call on 25 January 2005 with Mr Mallon he understood that the information would be given to him. The next thing he knew was that it was set down without him being consulted. This made him very suspicious and he thought that they were 'out to get him'.
68. By March 2005 when there had still been no answer to his requests, and short notice of a directions hearing, he became deeply suspicious.
69. When the matter came before Mr Justice Hart and he invited a strike out action application Mr Diamond refused. The Judge agreed with him that there was a problem with the prosecution. Although the Judge disagreed with his application for witness statements he still maintained that he was entitled to them. He regarded Mr Mallon's apology in his letter of 9 May 2005 as being a limp excuse and said that it was quite clear what they were doing. He was totally hampered at the directions hearing and he submits deliberately hampered. The Bar Council did not want him to have a witness statement and did not want to discuss discovery. There was simply a rushed discussion outside the Court five minutes before the Judge came in. It was very unsatisfactory. Mr Diamond said he remained gratified by Mr Justice Hart's response to the prosecution.
70. As to the law Mr Diamond emphasised that his claim was, as he put it, totally in contract. This was not a tortious claim nor a malicious prosecution claim. There is a fiduciary relationship between the Bar Council and its members. Any comparison between the Bar and the police force is unsustainable. The police are a national body with specific duties in relation to crime whereas the Bar Council is a voluntary society that is, an unincorporated association or club.
71. The case of Kearns and others v General Council of the Bar [2003] 2AER 534 shows that the Bar Council is an unincorporated association without legal personality (537). The constitution of the Bar Council is not defined in terms of contract but there is a relationship of reciprocal duties. The Bar is a learned profession with the highest standards of skill and integrity.
72. Mr Diamond submitted that the case against him was highly suspicious and only dropped when the Judge said it should be. Why did the Bar Council not make a fulsome apology to him at that point?
73. There must be strict construction of the rules of an unincorporated association and a strict compliance with those rules. Any inquiry must be fair and reasonable and at all times the Bar Council must act with reasonable and probable cause. The Bar Council is not a public body to which public policy considerations apply.
74. There is a duty to act fairly analogous to trade union cases. Breen v Amalgamated Engineering Union [1971] 2 QB 175. The Courts will protect a man's right to work as part of its function to protect the individual from injustice and oppression. Nagle v Feilden [1966] 2 QB 633. Mr Diamond submitted that in relation to any threat to an individual's livelihood the Court had power by its inherent jurisdiction to read provisions into the rules which give effect to the right to work. Thus in Nagle it was said that the rule which excluded women from obtaining trainers licences was void. Edwards v Society of Graphical and Allied Trades [1971] 1 Chancery 354 is authority for the proposition that a capricious and arbitrary law withdrawing temporary membership of a union without regard to the rules of natural justice was invalid because it interfered with a man's right to work. Mr Diamond was not saying that rule 709 was either ridiculous or arbitrary or capricious but was submitting that an arbitrary or capricious application of the rule cannot be permitted. A barrister's right to work cannot be denied and the Bar Council have to act with natural justice and fairly and not capriciously and arbitrarily.
75. The failure to reply to Mr Diamond's requests for information was an operational matter. The directions hearing was set down without any co-ordination.
76. In so far as Mr Etherington is concerned an angry prosecutor should not have phoned the Defendant and threatened him. This was a breach of his Article 6 rights. Mr Diamond accepted that he did not follow the correct rules in relation to witness summonses but did not know the procedure in relation to the Bar Council. He accepted that it should not have borne the penal notice but he was equally angry and was going to ensure that the Bar Council gave reasons for their decisions.
77. Mr Diamond re- iterated that Mr Mallon's conduct was, he asserted, 'criminal' because he been interfering with the administration of justice and harassing Mr Diamond. We cannot let the independent Bar be so undermined he said.
78. The case of Albert and Le Compte v Belgium [1983] 5 EHRR 533 is authority for the proposition that Article 6 of the Convention is applicable to disciplinary committee proceedings. The defence did not challenge this but doubted whether Article 6 applied to the prosecution as opposed to the conduct of the hearing.
79. Mr Diamond submitted that the Bar Council is a hybrid authority, a private body bound by the Convention with rights and duties when carrying out its public function in disciplinary matters. Judicial review was irrelevant. There was a breach of Article 6 which also applied to the directions hearing, as there was no right given to examine the witness statements and no discussion in relation to the preliminary hearing. Mr Diamond accepted that Article 9 was more difficult to argue.
80. The whole purpose of the litigation was to ensure judicial oversight of the Bar Council through the breach of contract claim. Strict scrutiny of the conduct of the Bar Council is necessary. Mr Diamond expressed confidence that he would find out in cross-examination that the Defendants have strong views on the issues which arise in Hammond. The evidence needs to be heard. The case of Percival is not relevant; it is pre the Human Rights Act where deference was given to the decision making body. Here, advice was given which was not followed and Mr Diamond would like to explore this. Defe rence is no longer the appropriate response.
81. The case of Calveley can be distinguished because the Bar Council is a club not a public body within a statutory framework. The rules of natural justice still apply and are not affected. The case of Gregory is to be contrasted with the present as Gregory was a tortious action whereas here the main claim is in contract. The effect of the Bar Council's conduct was that if you are a member of a disfavoured group the rule of law does not apply.
82. In reply the Defendant submitted that the Claimant had been neither suspended nor disbarred. There was no authority for the proposition that Article 6 applied to the institution of proceedings. There is nothing whatever in the evidence to suggest that the Defendants were guilty of prejudice and the attack against them is very wounding. There is however detailed evidence in the files disclosed to the Claimant as to the decision to initiate proceedings. A full account is given in Mr Maloney's statement as to the meeting.
83. The fact that the summary procedure was adopted, with no power to disbar, shows there was no intent to drive him from practice, but the Bar Council has to treat people in a like manner and balance out the various matters before it. A prosecution rather than attending before the chairman was properly thought to be necessary. It was in retrospect unfortunate that the prosecution was ever brought but that did not entitle the Claimant to claim damages.

(ii) The Claimant's submissions re the Protective Costs Order.

84. The Claimant submitted that he was taking this action for all members of the Bar Council which is badly administered. He was like the Plaintiff in Wallersteiner v Moir (No 2) [1975] QB 373, a decent man at the risk of bankrupting himself when bringing an action which will benefit others as well as himself. He was within the criteria set out in R(Corner House Research) v Secretary of State for Trade and Industry 1 WLR [2005] 2600. He also relied upon McDonald v Horn [1995] ICR 685. Contrast his situation with the Bar Council using their insurance policy to fund their defence and instructing a City firm of solicitors and senior barristers. It is entirely appropriate that any costs order against the Claimant should be appropriately capped.

The Defence submission re Protective Costs Order

85. The Defendants submitted that the claim was wholly without merit. It was a private law claim and a PCO was unavailable. If there is a discretion it should not be exercised here. This not a case of public importance and the public interest does not require that this issue is resolved. The Claimant does have a private interest and is not representing the rest of the Bar. It cannot be fair and just to make such an order in the circumstances as the Claimant is making distressing allegatio ns against members of the Bar who do their work for nothing; bad faith, discrimination is alleged and crime in so far as Mr Mallon is concerned. It would be wholly wrong to depart from the normal rules relating to costs.
86. The Claimant in reply submitted that the Court has full discretion and the public interest is involved. This case needs to be pursued so that what went wrong can be fully investigated. The case involves high principle and the barrister/Bar Council relationship is important. This is, he said, as he submitted to Mr Justice Hart, an 'East European or Romanian' prosecution.

Conclusions

87. The case of Hammond v DPP, as Mr Justice Hart said at the directions hearing, raised important questions with regard to freedom of speech and the freedom to express religious views. It is essential, as the Claimant submits, that an independent Bar exists so that such issues, from whichever standpoint they may arise, can be fully and properly argued before the Courts. It is equally clear that barristers are not permitted by their code of conduct to express a personal opinion to the press or media, or in any public statement upon the facts or issues arising in any case in which they are briefed, or expect to appear or have appeared. A barrister must represent all manner of clients and cases whether they coincide with his own views or not. The need for clear objective and dispassionate argument is best satisfied by the barrister's personal opinions and professional duty being kept clearly distinct. Hence the prohibitio n on commenting to the press and media or other public statement enshrined in rule 709(1) of the Code of Conduct.
88. A strong independent Bar is essential to the proper administration of justice and the Bar Council has an important role to play in ensuring that the Bar retains that strength and independence. One of the means by which it achieves this is ensuring compliance with the Code of Conduct, which deals with both competence and integrity. Where appropriate, it is the duty of the Bar Council to prefer charges of professional misconduct against barristers who have breached the Code. The PCCC, the relevant body at the time these matters arose, has to determine whether any complaint discloses a prima facie case of professional misconduct or inadequate professional service, and if so deal with it in accordance with the Complaints Rules. The complaints commissioner and investigation officers who assist in the dealing with or the bringing of complaints must act in accordance with the Complaints Rules.
89. It is Mr Diamond's case that the Bar Council, through the PCCC and its officers prosecuted him in bad faith and without evidential foundation, continued that prosecution in an unfair manner both procedurally and substantively and then withdrew the prosecution thereby preventing him from properly challenging and investigate their motives and conduct. The claims which he now brings against Mr Mansfield, the Chairman of the Bar in his representative capacity, and against the other individual Defendants will, he contends, ensure that the matter can be fully investigated, and that the Bar Council is forced to act within the rule of law. Mr Diamond submits that this claim will ensure judicial oversight of the Bar Council's conduct generally and challenge its adherence to political correctness.
90. I shall deal with the legal and factual basis of each of the causes of action upon which the Claimant relies.

1. Contract

91. The Bar Council is an unincorporated body without legal personality as Lord Justice Simon Brown said in the case of Kearns. The subscriptions which are paid, are part compulsory, part voluntary. In respect of some of the services provided, such as the provision of appropriate application forms, information, or the arrangement of the AGM, it may be that there is a contract between the Bar Council, through its proper representatives, and individual members. Those services which are akin to those provided by a trade union to its members could well be said to be subject to a contract. It is however entirely clear that there cannot be any contract between one individual member and another unless that member is acting in a representative capacity. The Second, Third and Fourth Defendants are sued in their personal capacities and I am satisfied that there can be no contract between them and the Claimant.
92. Nor do I consider that a contract as asserted by the Claimant exists between the Bar Council, and hence the First Defendant in his representative capacity, and the Claimant. There is no proper basis for an implied term of individual membership of the Bar that there is a duty to act fairly on the part of the Bar Council. The Bar Council, as with any unincorporated association, must act in accordance with its rules. Any rule which is capricious and arbitrary may, even though there was no contract between the parties, be void as contrary to public policy and hence set aside (Nagle and Edwards). The Bar Council must when considering or dealing with a prosecution in respect of a disciplinary matter, apply the principles of natural justice. A fortiori it cannot act out of improper motive, malice or bad faith. These duties are owed to all the members but do not arise out of contract with any one individual member. The Bar Council's duty is to consider the interests of its members as a whole, especially when dealing with the disciplinary process, and there may in some instances be a conflict between the interests of members as a whole and how one individual member perceives his own position. I see no basis for implying any such contractual term as relied upon by the Claimant into the relationship between the individual member of the Bar and the Bar Council. Such a term would be neither necessary nor reasonable given the existing duties which the Bar Council has to its membership as a whole.
93. There are however additional reasons why such a contractual duty does not arise. The case of Gregory establishes that the tort of malicious prosecution is not available in disciplinary proceedings. Other remedies such as defamation, malicious falsehood, conspiracy and misfeasance in public office exist. In Calveley it was held that there was no common law duty of care owed by an investigating police officer to another police officer. I agree with Mr Diamond's submission that the distinction between Calveley and the present case is that the police are a statutory body obliged to investigate crime whereas the Bar Council is a disciplinary body of a single profession. Nevertheless the principles set out in Lord Bridge's judgment at page 1238- 1239 are applicable to the Bar Council. In particular it would be equally contrary to public policy for the Bar Council to be fettered by the threat of negligence actions in their policing of the Code of Conduct, particularly when a strong independent fearless and competent Bar is required for the proper administration of justice.
94. I am therefore satisfied that no duty of care in negligence is owed by the Bar Council, the PCCC or its investigating officers to any individual member of the Bar. I note that Lord Bridge at page 1238F said that where no action for malicious prosecution would lie, it would be strange indeed if an acquitted Defendant could recover damages for negligent investigation. That is equally applicable here and I would add that if there is no duty in the tort of negligence it is difficult to see how there could be a general contractual duty to act fairly in relation to an individual member. I conclude therefore that there is no implied term of membership of the Bar of a duty to act fairly on the part of the Ba r Council. No such duty is owed in contract to any individual member but there is a duty to act fairly and in accordance with the principles of natural justice owed to the membership as a whole which can be enforced if necessary by judicial review proceedings as occurred in the case of Percival. The existence of the Human Rights Act or the ability to sue in respect of breaches of Articles of the Convention, does not supersede the rights of judicial review. It is through that means that the process of judicial oversight is achieved. The Claimant cannot therefore claim damages for breach of contract. The Claimant submitted that his claim was essentially contractual but he has made other detailed, serious and important allegations, each of which must be considered.

2. Bad faith and malice.

95. The Claimant asserts that the prosecution was brought in bad faith and with malice in order to damage the practice of the Claimant and secure a prosecution in breach of due process and Article 6 of the Convention.
96. On the authority of Gregory an action for malicious prosecution will not lie but the allegation made by the Claimant is very broad and implies a conspiracy on the part of some in the Bar Council or PCCC or its investigating officers to prosecute the Claimant for improper motives. I note that it is not alleged that either Mr Maloney or Mr Beer, both of who were instrumental in advising that a prima facie breach of rule 709 existed, acted with either bad faith or malice.
97. I have searched the papers and considered the arguments to see whether there is any evidence whatsoever which suggests bad faith, malice, improper motive or any conspiracy by the Bar Council, the PCCC or its investigating officers. There is no such evidence. On the contrary the papers indicate that the relevant issues were carefully and properly considered. Mr Maloney considered that there was a case to answer in his letter of 6 July 2004 but noted the circumstances, the apology and stated that the PCCC might well decide not to proceed with the complaint or deal with it at a lower level. He felt however that the PCCC should have the chance to make its mind up. The matter was then passed on to Mr Jason Beer who wrote a detailed and thorough report considering all the issues in an entirely fair manner. There is nothing in the correspondence, nor in the fact that Mr Fowler may have searched the internet, which indicates improper motive, malice or bad faith. Nor is there anything which can properly be said to give rise to the inference of improper motive, malice or bad faith. It is correct that Mr Mallon delayed in answering the Claimant's request for a witness statement from Mr Fowler between 17 December 2004 and the directions hearing on 4 May 2005 when Mr Justice Hart refused to make an order in respect of that request. Mr Mallon put forward an apology for this delay and explained that it was due to the change of counsel and the lack of advice from them upon this issue. For reasons which are not clear to me Mr Diamond inferred from this letter that Mr Mallon had been guilty of criminal conduct in attempting to pervert the course of justice and in harassing him. This is not an inference which can properly be drawn from this letter or the circumstances giving rise to it. The second matter of which Mr Diamond complains against Mr Mallon is the failure to discuss with him beforehand, as requested, the terms of the directions to be given and documents to be required. Such discussion as did take place was, no doubt with counsel, in the few minutes before the directions hearing commenced. This is to be regretted but in no way gives rise to the inference that there was bad faith, malice or improper motive. The same comment applies to the fixing of the date of the directions hearing without express agreement from Mr Diamond. Mr Mallon had told the Claimant on the telephone on 25 January 2005 that the earliest date for the hearing would be March and that he would respond on the point as soon as he could. It would have been better had the date been agreed with Mr Diamond beforehand but as soon as it transpired that he would be unavailable on 7 March 2005 the date was moved to one which suited him. Again no inference of malice, bad faith or improper motive could be drawn.
98. Mr Diamond makes complaint of Mr Etherington's conduct in phoning him expressing anger at the purported witness summons being served upon him, and the threat to complain to the Bar Council about the service of that witness summons. It would, without doubt, have been better had Mr Etherington dealt with this matter formally through the officials of the Bar Council in correspondence rather than ringing the Claimant, but there can be no doubt that the witness summons was wrongly served, and purported to carry a penal notice yet had not been issued through the Court. Furthermore it transpired in the course of argument that this wrongful service was carried out by the Claimant in order to provoke the Defendants into pursuing the prosecution against him though, I note Mr Diamond also said that he was unaware of the procedure in respect of witness summonses relating to a disciplinary hearing. I see no basis for inferring that Mr Etherington's response to the Claimant's deliberately provocative action was caused by bad faith, malice or improper motive. The more normal inference would be that his response was simply one of displeasure at having a penal notice improperly served upon him by the Claimant. The service of a witness summons for tactical reasons, not through the Court, is a matter which might give rise to a comp laint, and it would not be surprising if the recipients of such a notice considered making such a complaint.
99. I have considered all the particulars set out in the various paragraphs in the particulars of claim in the light of the documentation before me and the arguments put before me and I can see no basis for finding bad faith, malice or improper motive. It appears that the Claimant simply could not believe that there was any proper basis for prosecuting him in view of his fulsome apology and the circumstances in which the article was published, and that belief has led him to the view that there must have been bad faith, malice or improper motive, a view which he clearly still strongly holds. Looked at objectively however and even in the most sympathetic light to the Claimant, there is simply no evidence to support his view, nor is there any material upon which such an inference could properly be drawn.

3. Breach of Convention rights.

100. I deal with this as a separate heading as it is repeated through most of the Claimant's different ways of expressing his claim.

Article 6

101. I accept that Article 6 applies to disciplinary proceedings. (Albert and Le Compte) The terms of Article 6(1) are not however apt to cover the decision as to whether a charge should be brought as opposed to proceedings after the charge has been brought. I shall for the purposes of this judgment treat Article 6 as applying to all stages of the proceedings including the directions hearing. I also accept, as Mr Diamond submits, that breach of Convention rights may give rise to a claim in damages. (R Greenfield v Home Secretary [2005] 18 BHRC 252 and Anufrijeva v Southwark London Borough Council and others [2004] QB 1124.)
102. Mr Diamond submits that there is no doubt that the fair trial provisions of Article 6 have been violated, in particular the right to confrontation. I do not accept his submissions.
103. This takes me to the real heart of Mr Diamond's claim, namely that the prosecution against him was unfounded. I will consider this and what happened thereafter in the light of the fair trial provisions of Article 6.
104. I have considered the article Mr Diamond wrote which was published in PQ and on the Evangelical Alliance website, together with his letters upon the matter and in particular that of the 20^th June 2004 and his letter of 28^th August 2004 enclosing the letter from Dr Don Horrocks, the Head of Public Affairs of the Evangelical Alliance. I have also considered the correspondence generally including the letter of Mr Maloney of 6 July 2004 and the opinion of Mr Beer of 28 September 2004. I am quite clear having performed that exercise that there was, as both Mr Maloney and Mr Beer concluded, a prima facie case of a breach of rule 709. The article clearly contains an expression of Mr Diamond's personal opinions which were not written in an educational context. He expresses the following views: that what many Christians believe the Bible has to say about sexual ethics may now be interpreted by the Courts as a form of hate speech that may not be expressed in a public forum; that the decision in Holland endorsed future hostilities from the politically correct, and that the application of the Public Order Act in the case was inequitable. The article was forceful; it expressed matters worthy of serious debate, and Mr Diamond's own views upon these matters.
105. As to the application of mens rea it was in my judgment an essential requirement of Rule 709. Mr Beer's conclusion to the contrary was incorrect and Mr Maloney's later view that it was required was correct. Mr Diamond stated in correspondence that he thought the document was private, for distribution to select supporters of the Evangelical Alliance. As Mr Maloney points out in his statement however, the letter from Dr Don Horrocks does not assist Mr Diamond on the issue of knowledge as to whether it would be published upon the web. Dr Horrocks, who one cannot help but notice is Head of Public Affairs, said that the contents of PQ are not primarily intended for general public consumption although the article can be accessed on the Evangelical Alliance website. It is a political and public policy information service primarily aimed at those engaged in or interested in public life. Whilst therefore primarily accessible to those specifically notified of its existence or those who adhere to the Evangelical Alliance's religious world view it was available to those who visited its website or who might search the web for such information. The fact that it took some people thirty minutes to find the article is of no assistance upon the issue of whether it was public. It was accessible to the public because the Evangelical Alliance website was accessible to the public. These facts gave rise in my opinion to a case for Mr Diamond to answer on the question of mens rea; what was his state of knowledge of the matters about which Dr Horrocks had written?
106. For my part I consider that there is little doubt that European proceedings are included within rule 709. The right to take the same issue as has been litigated in the UK Courts to Strasbourg exists and if such a right is exercised it is all part of proceedings in the Hammond case.
107. Apart from the issue of mens rea I view Mr Beer's advice as thorough and fair. There was in my judgment, with or without mens rea, a prima facie case for Mr Diamond to answer. In such circumstances the Committee had three options under Rule 36. Under 36(h) they could direct that the complaint should form the subject matter of a charge before a disciplinary tribunal, or under 36(g) they could send the matter to be dealt with summarily if it was satisfied that the powers of the summary procedure were adequate to deal with the gravity of the issues, or it could, under 36(f), if it regarded the matter as not serious enough to merit a disciplinary hearing or the summary procedure, direct that the complaint be dealt with by informal attendance under paragraph 52. The Committee has to exercise its judgment as to how serious the matter is in order to determine which of these three options to follow. Mr Beer recommended informal attendance under 36(f) but Mr Maloney was concerned about the PCCC behaving even handedly in relation to the highly political subject of media comments on current cases. His particular concern was that the PCCC had instituted two sets of disciplinary proceedings against an individual in respect of breach of paragraph 709. This individual was a prominent left wing barrister and Mr Maloney did not wish anyone to be able say that they had singled out an individual barrister for particular reasons while allowing media comments of a different nature to go uninvestigated. It appears that this view prevailed before the PCCC on 6 October 2004 as their decision was to send the matter for summary procedure.
108. When deciding the seriousness of the matter the Committee is, in my judgment, entitled to consider trends in breaches of particular parts of the Code and have in mind other similar cases. It must however be satisfied that the individual case it is considering merits the course of action chosen under rule 36(f), or 36(g) or 36(h).
109. I am quite satisfied that a prima facie case did exist and that the Committee was acting within its powers in deciding that the matter should go for summary procedure rather than informal attendance. For my own part howeve r, given the fulsome apology by the Claimant, the waiver he had sought in relation to the article for the National Review and the circumstances of the publication in PQ I would have considered that Mr Beer's recommendation for informal attendance was the better course to take. However I am equally satisfied that it cannot be said that the decision made by the Committee to send the matter to the summary procedure was in any way unfair, unreasonable or improper. It did not breach, in so far as they are applicable, the Article 6 fair trial provisions. Nor did the decision fail to show reasonable or proper cause. It was made within the rules and was not ultra vires.
110. I have dealt with the delay in answering Mr Diamond's requests for a witness statement and furthe r information, the conduct before and during the directions hearing, Mr Mallon's apology and the subsequent conduct of the proceedings up to the point of withdrawal. As to the question of withdrawal I accept Mr Stewart's submission that if, acting properly the PCCC changes its mind and decides that there is no longer a prima facie case it must, as it did, withdraw the proceedings. The fact that the Committee responded to Mr Justice Hart's criticisms of the prosecution and prosecuting counsel's subsequent advice does not render either their first decision to prosecute or the withdrawal a failure to comply with Article 6. On the contrary the documentation in my judgment shows an entirely proper consideration of the issues. There is no right to a confrontation at a directions hearing and no right to a confrontation if the prosecution is withdrawn before trial.
111. Although they are pleaded under the heading of harassment under paragraph 54 I have considered the particulars of procedural unfairness and the particulars of substantive unfairness in relation to the alleged breach of Article 6(1). In so far as I have not already specifically dealt with them I am satisfied that none amount to a breach of Article 6.

4. Harassment.

112. There is, as the Defendants submit, no common law action in harassment (Wong) and there is no claim for statutory harassment. I do not however consider that there is any harassment on the facts in this case.
113. As indicated above I have considered the particulars of procedural and substantive unfairne ss alleged under paragraph 54 in the context of Article 6 but I also conclude that none of them amount to harassment in the circumstances even if a claim in harassment could be brought.

5. Negligence.

114. I am satisfied for the reasons expressed above that the decision in Calveley shows that neither the Bar Council, nor the PCCC nor its Executives nor any of the Defendants owed a duty of care in negligence to the Claimant. No right to sue in negligence therefore exists.

6. Implied term not to cause economic loss.

115. No arguments have been put to me to support the existence of an implied term not to cause economic loss. I can see no legal basis for such an implied term.

7. Employment Equality (Religion or Belief) Regulations 2003.

116. There is no breach of Regulation 12 of these regulations which do not on their face apply to the situation which exists here.

8. Article 9 of the Convention.

117. This was not pressed in argument by Mr Diamond and there is no basis upon which his right to freedom of thought, conscience or religion was breached by the actions of the Bar Council.

(i) The strike out/summary judgment application.

118. I conclude therefore that none of the Claimant's claims against the Defendant can succeed. The Claimant submits to me that in any event issues arise which cannot be determined until evidence has been heard so that summary judgment should not be given. He also asserts that the Defendants have failed to serve a defence and should have done so in accordance with CPR 24.4(2). I reject both these submissions. I have come to a clear view that the claim has no reasonable prospects of success and there is no issue upon which it is necessary for evidence to be heard. There is no other compelling reason for a trial to take place. In so far as a defence is concerned the notes to CPR 24.4.4 specifically state that there is no requirement for a Defendant to file an acknowledgement of service or a defence before applying for summary judgment. No issue estoppel even arguably arises from Mr Justice Hart's ruling at the directions hearing. I am satisfied that the Claimant's statement of case discloses no reasonable grounds for bringing the claim against the First Defendant, that the claims against the Second, Third and Fourth Defendants in their personal capacities are wholly without merit and they should each be struck out. Alternatively the case is equally open to summary judgment against the Claimant as I have concluded that the Claimant has no real prospect of succeeding on any of the claims.

(ii) The protective costs order application.

119. It cannot be appropriate to make such an order in a case where the claim has been struck out. It is not in the public interest that any issues in this case should be resolved. Furthermore the case does not satisfy the Corner House criteria as the Claimant has a private interest in the outcome of this case in that he seeks to claim damages, some of which he would use in his own discretion.
120. I therefore dismiss the application for a protective costs order.

Costs generally.

121. I conclude by saying that it was unfortunate that the Claimant was sent to be dealt with by the summary procedure rather than being directed to be dealt with by informal attendance even though, as I have found, this was a course properly open to the PCCC. The Bar Council have rightly offered to pay the Claimant's costs of the withdrawn prosecution. In the circumstances he should receive his full proper and reasonable costs of defending that prosecution.
122. I will deal with any applications for costs at the handing down of this judgment. Mr Diamond should prepare a schedule of his costs of defending the withdrawn prosecution.