All England Law Reports, All ER 1993 Volume 2, R v Visitors to the Inns of Court, ex parte Calder R v Visitors to the Inns of Court, ex parte Persaud
[1993] 2 All ER 876
R v Visitors to the Inns of Court, ex parte Calder
R v Visitors to the Inns of Court, ex parte Persaud
PROFESSIONS; Lawyers
QUEEN'S BENCH DIVISION
MANN LJ AND BROOKE J
13, 14 FEBRUARY, 12 MARCH 1992
COURT OF APPEAL, CIVIL DIVISION
SIR DONALD NICHOLLS V-C, STUART-SMITH AND STAUGHTON LJJ
30 NOVEMBER, 1, 2, 3, 14 DECEMBER 1992, 21 JANUARY 1993
Counsel - Disciplinary jurisdiction - Judges as visitors to Inns of Court - Judicial review - Whether decisions of judges sitting as visitors to Inns of Court in disciplinary matters susceptible to judicial review - Supreme Court Act 1981, ss 19(2)(b), 44.
The two applicants were barristers who had separately been found guilty of professional misconduct by a disciplinary tribunal of the Council of the Inns of Court and been suspended for five years in one case and disbarred in the other. Their respective appeals against the tribunal's findings were dismissed by three High Court judges sitting as visitors to the Inns of Court. They sought judicial review of the visitors' decisions. The Divisional Court held that the court had no jurisdiction to entertain the applications for judicial review because High Court judges exercising their jurisdiction as visitors to the Inns of Court in disciplinary matters sat as the High Court exercising its jurisdiction relating to the administration of justice in regard to the fitness of persons to become or remain barristers, and were not in the same position as visitors to a charitable or academic foundation. The appellants appealed to the Court of Appeal.
Held - High Court judges exercising their jurisdiction as visitors to the Inns of Court in disciplinary matters were not acting as judges of the High Court but sat, as they traditionally had, as a domestic forum of the voluntary societies which876 controlled the affairs of the barristers' profession. Furthermore, when the High Court was created in 1873 by the Supreme Court of Judicature Act 1873 the domestic jurisdiction formerly exercised by the twelve judges of the courts of King's Bench, Common Pleas and Exchequer in respect of the Inns of Court was not transferred to the High Court by s 16a of the 1873 Act or subsequently by s 19(2)(b) of the Supreme Court Act 1981, since in exercising that jurisdiction the judges were not 'acting as Judges or a Judge' or as a court of law but as a domestic forum. Moreover, under s 12b of the 1873 Act and subsequently under s 44 of the 1981 Act the domestic jurisdiction exercised by the twelve judges in respect of the Inns of Court, being 'not incident to the administration of justice in any Court', could thereafter be exercised by any judge of the High Court as part of the extraordinary duties of the judges of former courts. Accordingly, decisions of judges sitting as visitors to the Inns of Court in disciplinary matters were susceptible to judicial review but only on the limited grounds available in the case of visitors to charitable corporations, namely that the visitor had acted outside his jurisdiction (in the narrow sense of acting outside his power to enter into an adjudication of the dispute) or had abused his powers or acted in breach of the rules of natural justice. On the facts, C's appeal would be allowed and the decision of the visitors quashed because the visitors may have misapprehended that their function was not to act as a review body but as an appellate tribunal and therefore C had not had the benefit, to which she was entitled, of the visitors considering whether the charge, to the requisite standard of proof, had been made out to their satisfaction. Mandamus would issue directing the visitors to exercise their full jurisdiction and hear and determine the appeal. P's appeal would also be allowed but in the absence of any facts before the Court of Appeal the case would be remitted to the Divisional Court to determine his application for judicial review (see p 896 j to p 897 c h to p 898 c, p 902 a to b h, p 903 f to j, p 905 d to h, p 909 f g, p 911 b, p 912 h j, p 922 g to p 923 b, p 925 f g j to p 926 c g and p 928 c, post).
________________________________________
a   Section 16, so far as material, is set out at p 896 g, post
b   Section 12, so far as material, is set out at p 896 c to e, post
   Page v Hull University Visitor [1993] 1 All ER 97 considered.
Notes
For appeals to the visitors to the Inns of Court, see 3(1) Halsbury's Laws (4th edn) paras 511-513.
   For the Supreme Court Act 1981, ss 19, 44, see 11 Halsbury's Statutes (4th edn) (1991 reissue) 986, 1011.
Cases referred to in judgments
A-G of the Gambia v N'Jie [1961] 2 All ER 504, [1961] AC 617, [1961] 2 WLR 845, PC.
Abse v Smith [1986] 1 All ER 350, [1986] QB 536, [1986] 2 WLR 322, CA.
Anon (1741) 2 Atk 173, 26 ER 508.
Antigua Justices, Re (1830) 1 Knapp 267, 12 ER 321, PC.
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA.
Booreman's Case (1641) March 177 pl 235, 82 ER 464.
Bremer Handelsgesellschaft mbh v Ets Soules & Cie [1985] 1 Lloyd's Rep 160; affd [1985] 2 Lloyd's Rep 199, CA.
Cunningham v Wegg (1787) 2 Bro CC 241, 29 ER 134.
Doe d Bennett v Hale (1850) 15 QB 171, 117 ER 423.
Fletcher, Re (1984) Times, 12 June, CA.
Gee v General Medical Council [1987] 2 All ER 193, [1987] 1 WLR 564, HL.
877
Inner Temple v Ince (1677) 3 Keb 835, 84 ER 1041.
Levinz v Randolph (1700) 1 Ld Raym 594, 91 ER 1298.
Lincoln v Daniels [1961] 3 All ER 740, [1962] 1 QB 237, [1961] 3 WLR 866, CA.
Lloyd v McMahon [1987] 1 All ER 1118, [1987] AC 625, [1987] 2 WLR 821, CA and HL.
Mahon v Air New Zealand Ltd [1984] 3 All ER 201, [1984] AC 808, [1984] 3 WLR 884, PC.
Manisty v Kenealy (1876) 24 WR 918.
Neate v Denman (1874) LR 18 Eq 127.
Page v Hull University Visitor [1993] 1 All ER 97, [1992] 3 WLR 1112, HL; affg [1991] 4 All ER 747, [1991] 1 WLR 1277, CA.
Philips v Bury (1694) Holt KB 715, 2 Term Rep 346, [1558-1774] All ER Rep 53, 90 ER 1294.
Powell v Streatham Manor Nursing Home [1935] AC 243, [1935] All ER Rep 58, HL.
R v Barnard's Inn (1836) 5 AD & El 17, 111 ER 1073.
R v Central Criminal Court, ex p Spens (1992) Independent, 1 December, DC.
R v Chief Rabbi of the United Hebrew Congregations of GB and the Commonwealth, ex p Wachmann [1993] 2 All ER 249, [1992] 1 WLR 1036.
R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 All ER 770, [1967] 2 QB 864, [1967] 3 WLR 348, DC.
R v Crown Court at Bristol, ex p Cooper [1990] 2 All ER 193, [1990] 1 WLR 1031, CA.
R v General Council of the Bar, ex p Percival [1990] 3 All ER 137, [1991] 1 QB 212, [1990] 3 WLR 323, DC.
R v Gray's Inn (1780) 1 Doug 353, 99 ER 227.
R v Lincoln's Inn Benchers (1825) 4 B & C 855, 107 ER 1277.
R v Panel on Take-overs and Mergers, ex p Datafin plc (Norton Opax plc intervening) [1987] 1 All ER 564, [1987] QB 815, [1987] 2 WLR 699, CA.
Racal Communications Ltd, Re [1980] 2 All ER 634, [1981] AC 374, [1980] 3 WLR 181, HL.
Rakestraw v Brewer (1728) 2 P Wms 511, 24 ER 839; affd (1729) Mos 189, LC.
S (a barrister), Re [1969] 1 All ER 949, [1970] 1 QB 160, [1969] 2 WLR 708.
S (a barrister), Re [1981] 2 All ER 952, [1981] QB 683, [1981] 3 WLR 129.
Savage's Case (1776) cited in 1 Doug KB at 355, 99 ER 228.
Serjeants at Law, Report of proceedings in relation to warrant for suppression of antient privileges of (1840, reported by Serjeant Manning), PC.
Smalley v Crown Court at Warwick [1985] 1 All ER 769, [1985] AC 622, [1985] 2 WLR 538, HL.
T (a barrister), Re [1981] 2 All ER 1105, [1982] QB 430, [1981] 3 WLR 653.
Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795, [1987] 2 WLR 677, HL.
Watt v Thomas [1947] 1 All ER 582, [1947] AC 484, HL.
X (a student), Re (11 November 1991, unreported), Visitor of Lincoln's Inn.
Yuill v Yuill [1945] 1 All ER 183, [1945] P 15, CA.
Cases also cited or referred to in skeleton arguments
Adamson, Ex p, re Collie (1878) 8 Ch D 807, CA.
Calvin v Carr [1979] 2 All ER 440, [1980] AC 574, PC.
Cannan v Reynolds (1855) 5 E & B 301, 119 ER 493.
Chief Adjudication Officer v Foster [1991] 3 All ER 846, [1992] QB 31, CA.
Corrigan v Irish Land Commission [1977] IR 317, Ir SC.
Cottle v Cottle [1939] 2 All ER 535, DC.
878
Donisthorpe and Manchester Sheffield and Lincolnshire Rly Co, Re [1897] 1 QB 671, CA.
Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48, [1956] AC 14, HL.
Emery v Webster (1853) 9 Exch 242, 156 ER 103.
Gee v General Medical Council [1987] 2 All ER 193, [1987] 1 WLR 564, HL.
IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93, [1982] AC 617, HL.
Kaprow (S) & Co Ltd v Maclelland & Co Ltd [1948] 1 All ER 264, [1948] 1 KB 618, CA.
Liverpool Borough Bank v Turner (1860) 2 De GF & J 502, 45 ER 715, LC.
London and Clydeside Estates Ltd v Aberdeen DC [1979] 3 All ER 876, [1980] 1 WLR 182, HL.
McPherson v McPherson [1936] AC 177, [1935] All ER Rep 105, PC.
Matthews v Smallwood [1910] 1 Ch 777, [1908-10] All ER Rep 536.
Mayes v Mayes [1971] 2 All ER 397, [1971] 1 WLR 679, DC.
Meng Leong Development Pte Ltd v Jip Hong Trading Co Pte Ltd [1985] 1 All ER 120, [1985] AC 511, PC.
Montreal Street Rly Co v Normandin [1917] AC 170, PC.
Pioneer Shipping Ltd v BTP Tioxide Ltd, The Nema [1981] 2 All ER 1030, [1982] AC 724, HL.
Pyx Granite Co Ltd v Ministry of Housing and Local Government [1959] 3 All ER 1, [1960] AC 260, HL.
R v Camborne Justices, ex p Pearce [1954] 2 All ER 850, [1955] 1 QB 41, DC.
R (Donoghue) v Cork Justices [1910] 2 IR 271, Ir DC.
R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 2 All ER 853, CA.
R v Industrial Injuries Comr, ex p Amalgamated Engineering Union [1966] 1 All ER 97, [1966] 2 QB 21, CA.
R v Statutory Committee of Pharmaceutical Society of GB, ex p Pharmaceutical Society of GB [1981] 2 All ER 805, [1981] 1 WLR 886, DC.
R v University of London Visitor, ex p Vijayatunga [1989] 2 All ER 843, [1990] 2 QB 444, CA.
Scott v Scott [1913] AC 417, [1911-13] All ER Rep 1, HL.
Solicitor, Re a [1992] 2 All ER 335, [1993] QB 69, DC.
Applications for judicial review
R v Visitors to the Inns of Court, ex p Calder
Rene Joyce Calder applied, with the leave of Auld J given on 7 June 1991, for judicial review of the decision by the Visitors to the Inns of Court (Kennedy, Judge and Rose JJ) on 6 March 1991 to uphold the finding by a disciplinary tribunal of the Council of the Inns of Court that the applicant was guilty of professional misconduct and should be disbarred. The visitors, while upholding the finding of professional misconduct, reduced the penalty to five years' suspension from practice. The relief sought was (1) an order of certiorari to quash the finding by the visitors, (2) a declaration that the applicant had not committed any professional misconduct and (3) an order of mandamus compelling the visitors to quash the decision of the disciplinary tribunal. The facts are set out in the judgment of Stuart-Smith LJ (see pp 913-917, post).
R v Visitors to the Inns of Court, ex p Persaud
Norman Persaud applied, with the leave of Rose J given on 17 December 1991, for judicial review by way of an order of certiorari to quash the decision of the879 Visitors to the Inns of Court (Vinelott, Ewbank and Jowitt JJ) on 31 July 1991 to uphold the finding by a disciplinary tribunal of the Council of the Inns of Court that the applicant was guilty of professional misconduct and should be disbarred. In giving the applicant leave Rose J directed that a preliminary issue be determined whether the High Court had jurisdiction to hear an application for judicial review of a decision of the visitors.
Michael Beloff QC and Joanne Wicks (instructed by B C Mascarenhas) for Miss Calder.
Mr Persaud appeared in person.
Stephen Sedley QC and Anthony Bradley (instructed by Allison & Humphreys) for the Bar Council.
Stephen Richards (instructed by the Treasury Solicitor) as amicus curiae.
Cur adv vult
12 March 1992. The following judgment of the court was delivered.
MANN LJ. Brooke J is unable to be present today. He has prepared, at my request, the judgment which I am about to read as the judgment of the court.
   In these two cases we have been invited to determine, as preliminary issues, the capacity in which judges of the High Court are acting when they sit as visitors to the Inns of Court to determine appeals against orders by which barristers are to be disbarred or suspended from practice by their Inns. This is the first time this question has arisen for decision by any court since the enactment of the Supreme Court of Judicature Act 1873. By the end of the hearing before us it was agreed between the parties that our interpretation of the language of that Act in the particular context of the disciplinary jurisdiction of the visitors would be determinative of the matter. But first it is necessary to describe how the question has arisen.
   The first applicant, Miss Calder, was called to the Bar by Lincoln's Inn in November 1978. On 8 October 1990 she was found guilty of professional misconduct by a disciplinary tribunal of the Council of the Inns of Court, which directed that she be disbarred. On 6 March 1991 her appeal against the tribunal's findings was dismissed by three High Court judges sitting as visitors to the Inns of Court but they altered her sentence to one of five years' suspension. On 7 June 1991 Auld J granted her leave to apply for judicial review and directed that the suspension be stayed pending the determination of the judicial review proceedings.
   The second applicant, Mr Persaud, was called to the Bar by Lincoln's Inn in November 1980. On 22 May 1990 he was found guilty of professional misconduct by a disciplinary tribunal of the Council of the Inns of Court, which directed that he, too, should be disbarred. On 31 July 1991 his appeal against the tribunal's findings and sentence was dismissed by three High Court judges sitting as visitors to the Inns of Court. On 17 December 1991 Rose J granted him leave to apply for judicial review and directed that a preliminary issue be determined whether the High Court has any jurisdiction to hear an application for judicial review of a decision of visitors to the Inns of Court.
   The parties to Miss Calder's application agreed that this issue should be decided as a preliminary issue in her case as well and that we should decide the two issues at the same time. It is unnecessary to say anything about the reason why leave to apply for judicial review was granted except to say that the whole or part of the reasons in each case went to a complaint that the particular composition of the disciplinary tribunal gave rise to an appearance of bias.
   Mr Beloff QC, who appeared for Miss Calder, submitted that when the courts are concerned today to determine the reach of judicial review, the absence of880 precedent is not a compelling argument. The jurisdiction of the High Court is an expanding one: in recent years, for example, it has embraced the supervision of the Take-over Panel (see R v Panel on Take-overs and Mergers, ex p Datafin plc (Norton Opax plc intervening) [1987] 1 All ER 564, [1987] QB 815), the visitors of universities (see Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795 and R v Hull University Visitor, ex p Page [1991] 4 All ER 747, [1991] 1 WLR 1277) and the internal decisions of committees of professional associations exercising statutory powers (see Gee v General Medical Council [1987] 2 All ER 193, [1987] 1 WLR 564).
   He submitted that in determining whether judicial review will lie the courts today will examine the function which is being performed by the body which is to be reviewed rather than its identity or the source of its powers. He cited in this context the judgment of Donaldson MR in the Datafin case [1987] 1 All ER 564 at 574-577, [1987] QB 815 at 834-839 as illustrative of the modern approach. He reminded us that this court had recently held that decisions of the Professional Conduct Committee of the Bar Council were susceptible to judicial review (see R v General Council of the Bar, ex p Percival [1990] 3 All ER 137, [1991] 1 QB 212) and submitted that when High Court judges sit as visitors of the Inns of Court on disciplinary appeals they are merely acting as the final tier in the same disciplinary process. The 'public' aspect of the functions they perform is, he submitted, self-evident.
   The status of barrister provides a qualification for various public appointments (see 3(1) Halsbury's Laws (4th edn reissue) paras 435-440, subject now to the provisions of s 71 of and Sch 10 to the Courts and Legal Services Act 1990; see too Lincoln v Daniels [1961] 3 All ER 740 at 748, [1962] 1 QB 237 at 255 and Re S (a barrister) [1969] 1 All ER 949 at 958-959, [1970] 1 QB 160 at 174).
   Mr Beloff submitted that, since the visitors of charitable or academic foundations were amenable to judicial review on all ordinary grounds (see Thomas v University of Bradford [1987] 1 All ER 834 at 850, [1987] AC 834 at 825 and R v Hull University Visitor, ex p Page [1991] 4 All ER 747 at 752-753, [1991] 1 WLR 1277 at 1283-1284), in principle the position of High Court judges qua visitors to the Inns of Court should be no different. He referred us to a dictum of Simon Brown J in R v Chief Rabbi of the United Hebrew Congregations of GB and the Commonwealth, ex p Wachmann [1993] 2 All ER 249 at 253-254, [1992] 1 WLR 1036 at 1040, which is to the following effect:

   'I prefer Mr Carus's submission [for the applicant] that an Orthodox rabbi is pursuing a vocation and has no choice but to accept the Chief Rabbi's disciplinary decisions. I can see no distinction in this regard between rabbis and, for instance, members of the Bar or members of a university. So far as the Bar and universities are concerned, once the exclusive visitorial jurisdiction has been invoked and exhausted, the court can review the visitor's decision ...'
   Simon Brown J cited no authority for this dictum, so far as it related to the possibility of supervisory jurisdiction of the High Court over the visitors of the Inns of Court, but it was cited to us as an example of a suggested parallel with the supervisory jurisdiction which the High Court undoubtedly exercises in other contexts which in some respects may be thought to be comparable.
   Apart from the correctness of the analogy drawn by Simon Brown J in the Chief Rabbi case and the suggestion that the visitors of the Inns of Court may be amenable to judicial review, there was no dispute about the correctness of any of these submissions. Nor was there any dispute that in certain circumstances the High Court may have a supervisory jurisdiction over decisions of the judges of the High Court (see Smalley v Crown Court at Warwick [1985] 1 All ER 769 at 778, [1985] AC 622 at 641-642) or indeed Law Lords (see Ex p Page [1991] 4 All ER 881747 at 753, [1991] 1 WLR 1277 at 1284). In the latter case Lord Donaldson MR referred to the 'wholly mistaken notion as that it is somehow demeaning for the most senior judges to have their decisions examined and passed upon by those who are judicially their juniors'. He added:

   'This is to ignore the fact that in the administration of justice in this country, the authority of any judicial pronouncement depends not upon the personal authority of the judge concerned, but upon the capacity in which he gives a decision or expresses an opinion.'
   All parties called in their aid in this context a dictum of Lord Diplock in Re Racal Communications Ltd [1980] 2 All ER 634 at 639-640, [1981] AC 374 at 384, to which we will return in this judgment, when he said:

   'There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity ... Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge's decision shall not be appealable, they cannot be corrected at all.'
   It was because the parties had all analysed the nature of the problem we had to decide in the same way that it was agreed at the outset of the hearing before us that the central question we had to answer was: in what capacity are High Court judges sitting when they sit as visitors to the Inns of Court in disciplinary cases? If they are sitting in their capacity as judges of the High Court, performing functions as such, it was common ground that judicial review of their decisions would not lie. If on the other hand they are not sitting in that capacity, it was agreed that they are performing functions in the public domain, and judicial review would in principle be available.
   Two subordinate questions also arose. The first was the extent, if at all, to which the provisions of the Courts and Legal Services Act 1990 had altered the position, so far as the visitorial functions relating to disbarment were concerned. The second was whether, on the proper construction of the Supreme Court of Judicature Act 1873, the Supreme Court of Judicature (Consolidation) Act 1925 and the Supreme Court Act 1981, a hitherto undetected right of appeal against decisions of visitors of the Inns of Court lies to the Court of Appeal.
   It was common ground that when High Court judges sit as visitors to the Inns of Court they are not sitting as a court of law (see Re S (a barrister) [1969] 1 All ER 949 at 951, [1970] 1 QB 160 at 166 and Re S (a barrister) [1981] 2 All ER 952 at 953, [1981] QB 683 at 685). In R v Gray's Inn (1780) 1 Doug 353 at 354, 99 ER 227 at 227-228 Lord Mansfield CJ said.

   'From the first traces of their existence to this day, no example can be found of an interposition by the Courts of Westminster Hall proceeding according to the general law of the land; but the Judges have acted as in a domestic forum.'
   At the end of his judgment he said that mandamus would not lie to direct the benchers of Gray's Inn to compel them to call the applicant, who was a student member of the Inn, to the degree of a barrister at law and added that, if there was a ground for mandamus, the party must take the ancient course of applying to the 12 judges (see 1 Doug 353 at 356, 99 ER 227 at 228-229). By this he was882 referring to the Chief Justices and three judges of the Court of Common Pleas and the Court of King's Bench and the Chief Baron and three barons of the Court of Exchequer, being the three courts of common law.
   When the modern High Court of Justice was constituted as a superior court of record by the Supreme Court of Judicature Act 1873, by s 16 of that Act the jurisdiction of a large number of existing courts, which are listed by name, was transferred to and vested in the new High Court. The section continues:

   'The jurisdiction by this Act transferred to the High Court of Justice shall include (subject to the exceptions herein-after contained) the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court or Chambers, or elsewhere, when acting as Judges or a Judge, in pursuance of any statute, law, or custom, and all powers given to any such Court, or to any such Judges or Judge, by any statute; and also all ministerial powers, duties, and authorities, incident to any and every part of the jurisdictions so transferred.'
   It was common ground that, if the pre-1873 jurisdiction of the judges as visitors to the Inns of Court in disciplinary appeals was a jurisdiction exercised by them sitting elsewhere than in court or chambers, when acting as judges in pursuance of any statute, law or custom, then the jurisdiction was vested in the High Court and exercised by judges of that court sitting as such and was not amenable to judicial review.
   If, on the other hand, this jurisdiction was not so transferred and vested in the High Court, then it was equally common ground that it would have been preserved by s 12 of the 1873 Act, which reads, so far as is relevant:

   'If, in any case not expressly provided for by this Act, a liability to any duty, or any authority or power, not incident to the administration of justice in any Court, whose jurisdiction is transferred by this Act to the High Court of Justice, shall have been imposed or conferred by any statute, law, or custom upon the Judges or any Judge of any of such Courts, save as herein-after mentioned, every Judge of the said High Court shall be capable of performing and exercising, and shall be liable to perform and empowered to exercise every such duty, authority, and power, in the same manner as if this Act had not passed, and as if he had been duly appointed the successor of a Judge liable to such duty, or possessing such authority or power, before the passing of this Act ...'
   If this was the source of the visitors' continuing jurisdiction in disciplinary appeals, then it was accepted that they would be amenable to judicial review, their situation being in certain respects comparable to that of a visitor to a university or college who holds that position by virtue of his office (cf the Queen as visitor of the University of Hull: see Ex p Page [1991] 4 All ER 747 at 749, [1991] 1 WLR 1277 at 1279).
   We should add by way of completeness that the provisions of ss 16 and 12 of the 1873 Act have been carried forward to the modern day in more or less identical language, mutatis mutandis, to ss 18(3) and 34(1) of the Supreme Court of Judicature (Consolidation) Act 1925 and then, in more cursory language, to ss 10(1)(b) and 44(1) of the Supreme Court Act 1981.
   What, then, was the nature of the visitors' jurisdiction in disciplinary appeals before 1873?
   The judgments of the visitors in Re S (a barrister) [1969] 1 All ER 949, [1970] 1 QB 160 and of Donaldson MR in Abse v Smith [1986] 1 All ER 350, [1986] QB 536 883throw valuable light on the processes by which the authority of the judges evolved in questions relating to rights of audience and the fitness of advocates to plead before them in their courts. The serjeants at law, who had the exclusive privilege of practising, pleading and audience in the Court of Common Pleas from time immemorial until their exclusive privileges were abolished by Act of Parliament in 1846, had always fallen into a special category. And before the events of 1292, to which reference is made in Re S (a barrister) [1969] 1 All ER 949 at 953-954, [1970] 1 QB 160 at 168, Parliament had introduced an elementary form of disciplinary control over serjeants and pleaders in the Statute of Westminster the First (3 Edw 1 c 29) (1275), which provided, in the event of attainder for deceit or collusion in the King's Court, for a term of imprisonment and for disqualification for life from 'pleading in that court for any man'. This procedure, which was known as silencing, was referred to in Anon (1741) 2 Atk 173, 26 ER 508 and was not finally repealed as spent or unnecessary till 1948 (Statute Law Revision Act 8, s 1, Sch 1).
   In 1292 King Edward I-

   'did especially appoint ... the Lord Chief Justice of the Court of Common Pleas and the rest of his fellow Justices ... that they, according to their discretions, should provide and ordain, from every County, certain Attorneys and Lawyers, of the best and most apt for their learning and skill, who might do service to his Court and people; And that those, so chosen onely, and no other, should follow his Court, and transact the affairs therein; the said King and his council then deeming the number of seven score to be sufficient for that imployment; but it was left to the discretion of the said Justices, to add to that number or diminish, as they should see fit.'
(See Dugdale's Origines Juridiciales (2nd edn, 1671) c 55.)
   In an article entitled 'Two problems in legal history' (1908) 24 LQR 392 W C Bolland has pointed out that this was not only an order of the Sovereign but an Act by the Parliament, since it is in the Parliament Rolls and under the authority of Parliament. He has also observed that an immediate cause of the creation of this new duty of the judges was the royal mandate which ordered the Court of Common Pleas to remain stationary at Westminster instead of perambulating the country in attendance on the King, and the subsequent disinclination of the serjeants, even if they had been sufficient in number, to absent themselves from the Court of Common Pleas at Westminster in order to attend the King's Court during its perambulatory travels.
   Be that as it may, the judges assumed this duty in 1292 and there are dicta from time to time in the succeeding centuries that it is one they have no power to give up. Of course, if and in so far as the power was derived from the Crown as the fountain of justice (see, in a different context, Lincoln v Daniels [1961] 3 All ER 740 at 747, [1962] 1 QB 237 at 254 per Devlin LJ) the Crown itself cannot now deprive them of that power (see Re S (a barrister) [1969] 1 All ER 949 at 955-956, [1970] 1 QB 160 at 171 and Abse v Smith [1986] 1 All ER 350 at 356, [1986] QB 536 at 549): this right is vested now in Parliament alone.
   The way in which the judges exercise their duty varied. Donaldson MR has described in Abse v Smith how the judges of every court had inherent power to regulate the practices of their court, which included the identification of those they were willing to hear plead before them, and it was not in dispute before us that these powers, until they were removed by s 27 of the Courts and Legal Services Act 1990, were exercised by High Court judges sitting as such.
   However, when one comes to the duty to provide and ordain suitable trained attorneys and lawyers to equip the courts, the judges' performance of that duty, 884in so far as it related to the provision of trained advocates, was executed through the relationship they developed with the Inns of Court.
   These were private voluntary societies subject to the jurisdiction of the judges. This jurisdiction took a number of different forms and was exercised in different ways. In our judgment it is this feature of the later history that has led to understandable confusion. The jurisdiction existed as an appellate jurisdiction if an uncalled member of an Inn (who used to be called an 'inner barrister' from the position he occupied on the forms or barrae in the halls of his Inn: see Bolland 24 LQR 392 at 399) was aggrieved when his Inn refused to permit him to be called to the 'utter bar' (see R v Gray's Inn (1780) 1 Doug 353, 99 ER 227); or when a barrister member of the Inn wished to appeal against his expulsion from the Inn and consequent disbarment (Booreman's Case (1641) March 177 pl 235, 82 ER 464: see Manisty v Keneally (1876) 24 WR 918). Their appellate jurisdiction was also extended, presumably by agreement between the Inns and the judges, to issues relating to disputes over property within the Inns (see Rakestraw v Brewer (1728) 2 P Wms 511, 24 ER 839) or over elections in the Inns (see Inner Temple v Ince (1677) 1 Keb 835, 84 ER 1041) or over debts due to the Inns (see Levinz v Randolph (1700) 1 Ld Raym 594, 91 ER 1298), which could not by any stretch of the imagination relate to the duties of judges in relation to the administration of justice in their courts.
   The judges also exercised an original jurisdiction to give orders to the Inns of the type that are described in the judgment of the visitors in Re S (a barrister) [1969] 1 All ER 949 at 954, 959, [1970] 1 QB 160 at 169, 175. In 1559 their relationship with the Inns is illustrated by an order which is recorded in the Middle Temple Records, Minutes of Parliament (C H Hopwood (ed), 1904) p 124:

   'Ordered by mandate of the justices that Masters of "le Utter Barre" practising or hereafter desiring to practise, shall not plead at any bar before they are of 12 years' continuance, without leave of the Masters of the Bench, on pain of expulsion. They may, however, for the whole of this term, advise their clients and go to the bar for them for matters begun.'
   We have been shown a large number of the judges' orders which are reproduced in Dugdale's Origines Juridiciales (3rd edn, 1680) cc 70-72. These orders relate partly to training, partly to rights of audience in different courts, and partly to matters peculiar to the internal regulation of the Inns and the dress, appearance and deportment of their members. On occasion, as Bolland observes (24 LQR 392 at 396-397) the benchers rebelled because they felt the judges were exceeding their jurisdiction; an example is given in 1559 when the benchers of Lincoln's Inn considered that the judges had no power to dictate the length of beards worn by members of the Inn.
   It is quite clear that in the seventeenth and eighteenth centuries and, indeed, up to the enactment of the Supreme Court of Judicature Act 1873 the courts, and in particular the Court of King's Bench, consistently declined to exercise any jurisdiction over any matters in which a right of appeal lay from the benchers of an Inn to the judges sitting as a domestic tribunal. In R v Gray's Inn (1780) 1 Doug 353 at 355, 99 ER 227 at 228 Lord Mansfield CJ explained that the true ground why no mandamus will lie to the Inns of Court is 'that they are voluntary societies submitting to government, and the ancient and usual way of redress is by appeal to the Judges'. Nearly a hundred years later, in Neate v Denman (1874) LR 18 Eq 127 at 136, Hall V-C referred to the jurisdiction over the Inns of the judges of the superior courts of England as a peculiar jurisdiction which has always been recognised. He added:
885
   'They have the power of deciding such questions as the present. If the Plaintiff had no remedy by an appeal to the Judges, he might, and probably would have, a right to apply to the Court of Queen's Bench for a mandamus. That, however, would be because he had no other remedy.'
   We do not accept the submission by Mr Sedley QC, who appeared for the Bar Council, that there was any conscious distinction made between the occasions when this jurisdiction of the judges, however it was exercised, went to matters related to the administration of justice, such as the equipping of the courts with advocates who were fit to appear before them there, and the occasions when it went simply to matters relating to the administration of the Inns and their property. Everyone accepted that the jurisdiction existed in both cases, and there was never any necessity until the present day to distinguish between the two types of jurisdiction. However, now that it is necessary to identify the functions the judges are performing when they sit as visitors in cases which are concerned with the question whether people are fit and proper persons to become or remain barristers, we must for the first time examine their function in that context alone.
   Re Antigua Justices (1830) 1 Knapp 267, 12 ER 321, which came to the Privy Council just before the Judicial Committee of the Privy Council was created provides a valuable illustration of the fact that in the absence of such arrangements as were made between the Inns of Court and the judges in this country, the power of judges to determine who were fit and proper persons to practise before them, where it existed, was regarded as essential for the due administration of justice. Lord Wynford said (1 Knapp 267 at 268, 12 ER 321):

   'In England the Courts of Justice are relieved from the unpleasant duty of dis-barring advocates in consequence of the power of calling to the Bar and dis-barring having been in very remote times delegated to the Inns of Court. In the colonies there are no Inns of Court, but it is essential for the due administration of justice that some persons should have authority to determine, who are fit persons to practise as advocates and attornies there. Now advocates and attornies have always been admitted in the Colonial Courts by the Judges, and the Judges only. The power of suspending from practice must, we think, be incidental to that of admitting to practice, as is the case in England with regard to attornies.'
   In A-G of the Gambia v N'Jie [1961] 2 All ER 504 at 508, [1961] AC 617 at 630 Lord Denning said:

   'By the common law of England, the judges have the right to determine who shall be admitted to practise as barristers and solicitors, and, as incidental thereto, the judges have the right to suspend or prohibit from practice. In England, this power has for a very long time been delegated, so far as barristers are concerned, to the Inns of Court; and, for a much shorter time, so far as solicitors are concerned, to the Law Society. In the colonies, the judges have retained the power in their own hands, at any rate, in those colonies where the profession is "fused".'
   In Re S (a barrister) [1969] 1 All ER 949 at 955, [1970] 1 QB 160 at 170 the visitors observed that Lord Denning was not using the word 'delegate' in the narrow sense in which it is sometimes used today any more than Lord Mansfield CJ had when he used the same word in a similar context in R v Gray's Inn (1780) Doug 353 at 354, 99 ER 227. Paull J said:

   'Both were using it in the sense that, in regard to the Inns, the judges over a long period, from time to time, had concurred in the Inns performing the duty of selecting those persons who were fit and proper persons to be called886 to the Bar and to be entitled to a right of audience in the courts and the duty of suspending or prohibiting such persons from practice. The exercise of these duties has been at all times, and remains, subject to the visitorial jurisdiction of the judges. Further, the judges, in relation to their judicial duties as to who should have the right of audience, have never divested themselves of those duties, nor could they ever do so.'
   Both Mr Beloff and Mr Richards, who appeared as amicus curiae, sought to extract from this passage, and from a comparable passage in this judgment (see [1969] 1 All ER 949 at 959, [1970] 1 QB 160 at 175), a proposition that the judicial duty to ensure that only fit and proper persons appear before them as barristers (which they perform through the machinery of the arrangements they have made, at their direction, with the Inns of Court) is somehow different in kind from the judicial duty, which existed until it was taken away by Parliament in 1990, of determining who had the right of audience in different courts (for which see Abse v Smith [1986] 1 All ER 350, [1986] QB 536, passim). We do not accept this contention. In each case it was a duty which was imposed on the judges in their capacity as judges of the superior courts and related to the administration of justice in those courts. It was only the machinery by which they performed their duties which was different.
   The Attorney General, Sir John Campbell QC, set out the true position correctly, in our judgment, in his oral submissions to the Judicial Committee of the Privy Council in relation to the Warrant for the Suppression of the Antient Privileges of the Serjeants at Law (1840, reported by Serjeant Manning). He said (at 139-140):

   'The judges of the Common Pleas are supposed to join with the other judges, in calling students to the bar. The benchers of the inns of court, are only the agents of the judges in calling to the bar. It is a power committed to them by the judges, a power which the judges may resume. There is an appeal from the opinion of the benchers to the judges. Upon that appeal, the judges of the Common Please sit, just as well as the judges of the Exchequer and the King's Bench; and they sit there, because they are supposed to have called the party to the bar ... The inns of court are mere voluntary societies ... The judges deputed to the benchers of the societies the task of giving lectures, and examining into the sufficiency of the candidates, and of calling them to the bar, but they are still mere voluntary societies; and they act by the authority which the judges have delegated to them. When there is an appeal from the decision of the benchers, the judges of the Common Pleas join in sitting upon that appeal; and if the candidate be called to the bar, I say, he is called to the bar-by the judges of the Common Pleas. When a person was called to the bar ... he was not allowed to practise in the Court of Common Pleas in banco, but he was allowed to practise in the other courts in Westminster Hall ...'
   This passage illustrates in a vivid way the fact that the arrangements the judges have made with the Inns are merely the machinery through which the judges perform what remains a judicial duty (and also how decisions on rights of audience are different from decisions on call to the Bar). Before the judgment of the visitors in Re S (a barrister) [1969] 1 All ER 949, [1970] 1 QB 160 had clarified the meaning of the word 'delegate' in the present context this was the concept which Sellers LJ had in mind in Lincoln v Daniels [1961] 3 All ER 740 at 745, [1962] 1 QB 237 at 250:

   'If the Inns of Court had not controlled the professional conduct of the Bar the judges themselves would have had to do so. The judges themselves, deriving their authority from the Crown, were minded in the distant past to887 delegate, and the undisputed view in Lord Mansfield's time was that the judges had delegated, their disciplinary power over the Bar to the Inns of Court.'
   In his judgment in the same case Devlin LJ explained how the jurisdiction of the benchers of an Inn is derived from the judges and exercised under their superintendence. Without hearing the depth of argument which was available to the visitors in Re S (a barrister), and to us in this court, he imagined that the judges must have assumed jurisdiction by virtue of their inherent power to determine who may and who may not plead at the Bar before them. He explained how the judges were using a power derived from the Crown as the fountain of justice when they conferred authority on the benchers of the Inns of Court to act as their delegates in maintaining the discipline of the Bar (see [1961] 3 All ER 740 at 747, [1962] 1 QB 237 at 253-254).
   In her closing submissions on behalf of Miss Calder Miss Wicks placed reliance on the fact that the power of an Inn to call a person to the Bar is the power of the Inn alone. She also suggested that Mr Sedley, in his argument on behalf of the Bar Council, had failed to explain how the Inns could discipline someone, for example by reprimand or fine, without disbarring them. The first part of this submission is answered by the arguments of Sir John Campbell to which we have referred. Although the call to the Bar is an exercise of power by the individual Inn it is an exercise of power permitted by the judges and exercised under their supervision. The second part of the submission is conclusively answered by cl 15 of the Constitution of the Council of the Inns of Court, which Brooke J cited in his judgment as a visitor of Lincoln's Inn in Re X (a student) (11 November 1991, unreported). This shows that in 1986 the judges, with the concurrence of the Inns, resolved and confirmed that from 1987 disciplinary powers over barristers should be exercised in accordance with the provisions of that constitution and that no alteration might be made to the power or composition of disciplinary tribunals without the consent of the Lord Chief Justice. It is through the implementation of this agreed machinery that disciplinary tribunals and the Inns themselves, with the consent of the Lord Chief Justice, are now able to exercise extended powers of control over the professional conduct of barristers, with a wider range of penalties, but subject always, in the case of decisions by tribunals, to a right of appeal to the visitors (Disciplinary Tribunals Regulations 1990, regs 22, 30).
   Finally, on this part of the case, Miss Wicks drew our attention to the fact that in Re S (a barrister) [1981] 2 All ER 952 at 956-957, [1981] QB 683 at 688, 690 the visitors expressed doubts whether they had power to hold the findings of a disciplinary tribunal to be invalid.
   The context in which these comments were made was an unusual one. They related to the constitutional arrangements which existed between 1974 and the end of 1986 whereby the General Council of the Bar had become part of the new Senate of the Inns of Court of the Bar (the Senate) and had ceased to exist as a separate entity, although the constitution of the Senate contained provisions designed to ensure that the Bar Council would remain an autonomous body for the purpose of its separate powers and functions.
   The judges, with the concurrence of the Inns of Court, resolved when these arrangements were created that disciplinary powers over barristers should be exercised in accordance with the regulations governing the new Senate, and by those regulations a committee of the Senate, known as the disciplinary tribunal, exercised those powers.
   The points which concerned the visitors in Re S (a barrister) [1981] 2 All ER 952, [1981] QB 683 were whether (a) the fact that the Bar Council, which was the888 accusatorial body, formed part of the Senate, which was the judicial body, meant that fair-minded people would regard the proceedings of the Senate's disciplinary tribunal as tainted with the appearance of bias and (b) the fact that members of the same profession were both the accusers and the majority of the disciplinary tribunal could give rise to the same objection.
   In the event the visitors explained why they considered that both points were without merit. There was therefore no need for them to decide whether and by what powers they could have handled the matter if they had thought that there was any merit in either of them. They said that the question had not been argued before them and they expressed no opinion on it.
   It appears to us that the point is a thoroughly esoteric one because it postulates that the judges had consented to arrangements for the Inns to exercise disciplinary powers over barristers, subject to their supervision, which infringed some fairly elementary rules of natural justice. However, given the history of the relationship between the Inns and the judges which we have recited in this judgment we can see nothing conceptually difficult about the judges, as visitors, telling the Inns that they now perceived that their particular disciplinary procedures were unfair and needed rectification, even though they had concurred, in principle, in the creation of those procedures. The judges would, in effect, be saying that they were not willing to sanction the disbarment of a barrister pursuant to unfair procedures, and would be insisting that the matter should be handled again more appropriately.
   Brooke J had to deal with a similar point in a different context in Re X (a student) to which we have referred. In that case there could have been no just criticism of Lincoln's Inn in the way it had adjudicated on the application of a student applying for admission to the Inn who had had serious criminal convictions between 1956 and 1974. Brooke J was not satisfied, however, as to the appropriateness of the relevant regulation of the Consolidated Regulations of the Inns of Court in modern times and he remitted the case to the Inn for reconsideration in the light of his judgment. Since then the language of that regulation is in the course of being changed. We can see no merit in repeating here the reasons he gave for that decision since he pronounced his findings in that case in public, pursuant to r 11(2) of the Hearings before the Visitors Rules 1991, and the reasons were complex. Suffice it to say that, after referring to the 'extraordinary, and perhaps unique, jurisdiction of the Visitors of the Inns of Court', he found that the judges possessed a residual jurisdiction by which, in an exceptional case, they might remit a matter to an Inn and direct it to reconsider, with the Inns' Council and the Bar Council, what ought to be the criteria by which they should judge the question before it determined the application afresh. Brooke J observed that if such a residual jurisdiction did not exist, then the judges would be left with a duty to perform but without the power to perform it in a way which they considered in all cases to be just.
   We should add, as a caveat, that, if the point which Brooke J decided in Re X (a student) ever arose again in the same context, it would be necessary to consider the effect of the judgment of this court in R v Lincoln's Inn Benchers (1825) 4 B & C 855, 107 ER 1277, which was followed in R v Barnard's Inn (1836) 5 Ad & El 17, 111 ER 1073. These cases show that the courts in the early nineteenth century were willing to hold that the Inns, as private voluntary societies, had a power to refuse entry to would-be members which was not subject to the jurisdiction of the courts or the visitors, even though barristers of the Inns possessed certain monopoly rights in the courts. In the event, the four Inns agreed in 1837, following the Sixth Report of the Commissioners on Courts of Common Law (C (1st series) 263 (1834)), that they would in future allow a person refused admission to appeal to the judges and that they would be bound by their decision (see 12 889Holdsworth's History of English Law (1938) p 32). It is obvious that if the point in Re X (a student) arose again, a more sophisticated analysis of what happened in 1837 would be required although we are far from convinced that the result would be very different and the history of that case has shown that it is a useful residual power for the judges to possess in exceptional circumstances.
   Most of the submissions which were addressed to us by Mr Persaud took matters no further. However, he did call in his aid the fact that the Disciplinary Tribunals Regulations of the Inns' Council permit evidence to be adduced which would not ordinarily be admissible in a court of law. This is undoubtedly correct but in our judgment it does not assist us in what we have to decide. There are plenty of occasions when the High Court exercises a supervisory jurisdiction over tribunals or bodies whose procedures allow for a more relaxed approach to the rules of evidence, but this does not detract from the fact that the High Court is performing the functions of the High Court when it exercises this jurisdiction.
   We should add that after the hearing was completed we received a letter from Mr Persaud inviting us to reopen the hearing to allow him to address additional points to us which he had not mentioned at all in his opening submissions to us or in his reply. We considered that he ought to have taken these points during the hearing itself and, in so far as they were of a technical procedural nature, he had waived his right to advance them because he was content to allow the full two-day hearing to take place without complaining at the outset that he had been prejudiced by short notice of the hearing or by any procedural irregularity in the way the preliminary issue had been brought before the court.
   This analysis of the history of the visitors' jurisdiction before 1873 makes it quite clear, in our judgment, that when the judges were sitting as visitors of the Inns of Court to hear appeals by barristers who had been ordered to be suspended or disbarred they were acting as judges and performing judicial duties which were an essential part of the administration of justice in their courts. By custom they sat in private and not in court, and they were referred to as a domestic tribunal whatever part of their visitorial functions they were performing. But their role in this capacity was totally different from the role of visitors to universities and colleges. In the absence of a written constitution the power and duty of the judges to control the quality of the administration of justice in the courts of this country were derived largely from ancient custom subject to express mandates from time to time by the Crown, as in 1292, and the way in which they superintended the disciplinary processes of the Inns of Court was an important feature of the way in which they performed that duty and exercised that power.
   It therefore follows, in our judgment, that although this has gone unnoticed for 119 years, the jurisdiction of the judges as visitors, in so far as it relates to questions as to the fitness of persons to become or remain barristers, is a jurisdiction which in 1873 was vested in the judges of the three common law courts, sitting elsewhere than in court or chambers, when acting as judges, in pursuance of custom. Since it is a jurisdiction which is central to the administration of justice in the courts of this country, it was accordingly not 'a liability to any duty, or any authority or power, not incident to the administration of justice in any Court', which was preserved under the new arrangements in 1873 by s 12 of the 1873 Act without forming part of the new jurisdiction of the High Court. We find the reference in s 12 to duties etc 'not incident to the administration of justice in any Court' particularly compelling as a pointer to the conclusion that the disciplinary jurisdiction of the visitors was transferred to the High Court pursuant to s 16.
   Accordingly, the jurisdiction of the visitors in these matters was a jurisdiction which was transferred to the High Court in 1873 and retained there by s 18(3) of the 1925 Act and s 10(1)(b) of the 1981 Act.
890
   Since the argument ended Mr Beloff has been good enough to send us, by agreement with the other parties to Miss Calder's application, extracts from the works of two legal historians who venture to express opinions on the legal position after 1873. Both were written before 1981.
   12 Holdsworth's History of English Law (1938) p 30 perplexingly says in a footnote that the judges still possessed the jurisdiction referred to by Hall V-C in Neate v Denman (1874) LR 18 Eq 127 by virtue of s 12 of the 1873 Act, replaced by s 18(3) of the 1925 Act. Professor J H Baker in Legal Profession and the Common Law (1986) opts for s 34 of the 1925 Act, which is the lineal successor of s 12 of the 1873 Act. It is probable that this is the section of the 1925 Act to which Sir William Holdsworth meant to refer since in each case the later section is the mirror image of the earlier section.
   We are very willing to accept that those parts of the judges' visitorial jurisdiction which were not incident to the administration of justice in the courts passed down through the routes suggested by Sir William and Professor Baker, but in the context of the present case, where the court has for the first time to inquire into the particular function which is being performed, we are not satisfied that the whole of the visitatorial jurisdiction passed by this route. The editor of 11 Halsbury's Statutes (4th edn) (1991 reissue) 1011 appears also to have expressed the position too widely when he ascribed the survival of the whole of this jurisdiction to what is now s 44(1)(b) of the 1981 Act.
   We return to Re Racal Communications Ltd [1980] 2 All ER 634, [1981] AC 374. Since we are satisfied that by the operation of the 1873 Act and its successor statutes High Court judges are sitting as the High Court when they exercise their jurisdiction as visitors of the Inns of Court in disciplinary matters, there is nothing in Lord Diplock's speech in that case which derogates from the proposition that they are not susceptible to judicial review, which is available, as Lord Diplock says, as a remedy for mistakes of law made by inferior courts and tribunals only, and not for mistakes of law made by the High Court itself (see [1980] 2 All ER 634 at 640, [1981] AC 374 at 384).
   We turn now to the question whether there is anything in the Courts and Legal Services Act 1990 which has altered the position. In Re X (a student) Brooke J explained why that Act had had no effect on the jurisdiction of the Inns, subject to the supervision of the judges, to decide who were fit and proper persons to be admitted to the Inns for training. He expressed his reasons in this way:

   '... although in the 1990 Act Parliament introduced a new statutory machinery for supervising and regulating the rules for education and conduct for those who are to have rights of audience in the courts it decided not to interfere expressly with the jurisdiction of the Inns, under the supervision of the judges, to decide who were fit and proper persons to be admitted to the Inns for training or their liberty to decide the criteria which should dictate their admissions policy. By s 27(9) of the 1990 Act the "qualification regulations" of an "authorised body", which the advisory committee has the duty to approve, mean only the regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to any right of audience granted by it; and in the same way "rules of conduct", which it has a duty to approve, mean only the rules (however they may be described) as to the conduct required of members of that body in exercising any such right of audience. The 1990 Act is silent about the criteria for admission to membership.'
   For much the same reasons we are quite satisfied that there is nothing in the 1990 Act which affects in any way the processes by which decisions as to891 suspension and disbarment and so on are to be taken and promulgated through the machinery created by the Inns in 1986 with the concurrence of the judges subject always to the visitorial jurisdiction of the judges. The 1990 Act distinguished clearly between 'rules of conduct', which are to be scrutinised and approved within the new statutory machinery, in which the 'designated judges' (see s 119(1)) each have a crucially important role to play (see Sch 4, paras 5(10), 11(10) and 16(4)), and 'mechanism for enforcing the rules of conduct' (see s 17(3)(b)).
   So far as the mechanisms for enforcing the rules of conduct are concerned s 18(2) of the 1990 Act requires that any person who is exercising any of the functions conferred by Pt II of that Act with respect to any of the matters described in s 18(1) (the granting of rights or audience etc) must act in accordance with the general principle mentioned in s 17(3). This principle includes the need to see whether the professional or other body under scrutiny not only has rules of conduct (which will be thoroughly scrutinised within the statutory machinery) but also has an effective mechanism for enforcing the rules of conduct and is likely to enforce them. However, provided that the enforcement mechanism is there, Parliament has made no requirement that changes in the disciplinary regulations should be scrutinised by the statutory machinery or that existing disciplinary regulations (including any appellate jurisdiction) shall be so scrutinised. This is evident not only from the fact that the jurisdiction of the Legal Services Ombudsman under ss 21 to 26 of the 1990 Act stops at the moment when a complaint enters into the jurisdiction of a disciplinary tribunal (s 22(7)) but also from the fact that in s 27(3) Parliament refers to the process by which a barrister may be disbarred or temporarily suspended from practice by order of an Inn of Court without any hint that it disapproves or wishes to alter in any way the manner in which for centuries the Inns have made orders for disbarment subject to the visitorial jurisdiction of the judges.
   For these reasons we are satisfied that the 1990 Act does not affect the situation in any way.
   Finally, although this is not one of the matters which we have to decide, an appeal lies to the Court of Appeal from a judgment or order of the High Court pursuant to s 16(1) of the Supreme Court Act 1981. Miss Calder and Mr Persaud will therefore not be without remedy if they wish to pursue the avenue of appeal to the Court of Appeal and if they can persuade that court to grant them leave to appeal out of time against the relevant decision of the visitors.
   It is obvious that if the present decision is undisturbed attention must be paid to the quite new arrangements prescribed by s 19(3) of the Supreme Court Act 1981, which provides, so far as is relevant, that any jurisdiction of the High Court shall be exercised only by a single judge of that court, except in so far as it is, by or by virtue of rules of court or any other statutory provision, required to be exercised by a Divisional Court. But that, again, is not a matter for this court.
   For all these reasons, therefore we would hold that this court has no jurisdiction to entertain an application for judicial review in either of the cases which are before it.
Applications dismissed.
Sophie Craven Barrister.
Appeals
The appellants appealed.
892
Michael Beloff QC and Joanne Wicks (instructed by B C Mascarenhas) for Miss Calder.
Mr Persaud appeared in person.
Andrew Collins QC, Timothy Horgan and Anthony Bradley (instructed by Allison & Humphreys) for the Bar Council.
Robert Carnwath QC and Ian Burnett (instructed by the Treasury Solicitor) as amici curiae.
Cur adv vult
21 January 1993. The following judgments were delivered.
SIR DONALD NICHOLLS V-C. Barristers are members of one of the four Inns of Court: they are called to the Bar by their Inn. For centuries the Inns have exercised control over the professional conduct of their members. They can be disbarred, or suspended from practising as barristers, or subjected to less severe disciplinary penalties. For at least two centuries a barrister who has felt aggrieved by a disciplinary decision has been able to appeal to 'the judges'. The question raised by these two cases is whether a decision of 'the judges' on such an appeal can itself be challenged in the courts: do the courts have any jurisdiction to review, or to hear an appeal from, a decision of 'the judges'?
Miss Calder's case
   Before us are two cases. They both raise the same issue regarding jurisdiction. The first case concerns Miss Renee Joyce Calder. She was called to the Bar by Lincoln's Inn in November 1978. On 8 October 1990 she was found guilty of professional misconduct by a disciplinary tribunal of the Council of the Inns of Court, which directed that she should be disbarred. Her appeal against the findings of the tribunal was dismissed by three High Court judges (Kennedy, Judge and Rose JJ) sitting as visitors to the Inns of Court on 6 March 1991. They changed the sentence to one of five years' suspension. On 7 June 1991 Auld J gave Miss Calder leave to apply for judicial review, and he directed that the suspension be stayed pending the determination of the judicial review proceedings.
Mr Persaud's case
   The second case concerns Mr Norman Persaud. He was called to the Bar, also by Lincoln's Inn, in November 1980. On 12 July 1990 he was found guilty of a charge of professional misconduct by a disciplinary tribunal of the Council of the Inns of Court, which directed he should be disbarred. On 31 July 1991 his appeal against the tribunal's findings and sentence was dismissed by three High Court judges (Vinelott, Ewbank and Jowitt JJ) sitting as visitors to the Inns of Court. On 17 December 1991 Rose J granted him leave to apply for judicial review and directed that a preliminary issue be determined whether the High Court has any jurisdiction to hear an application for judicial review of a decision of visitors to the Inns of Court.
The decision of the High Court
   The two applications for judicial review came on together before Mann LJ and Brooke J. They heard argument on the jurisdiction point, and on 12 March 1992 they decided the court has no jurisdiction to entertain an application for judicial review from decisions of the visitors of the Inns of Court. They did not hold, however, that the visitors' decision was final. In the course of an exceedingly893 erudite judgment the Divisional Court decided that although this had gone unnoticed for 119 years, the jurisdiction of the judges as visitors, so far as it relates to questions of the fitness of persons to become or remain barristers, is a jurisdiction which was transferred to the High Court by s 16 of the Supreme Court of Judicature Act 1873. That jurisdiction has remained in the High Court ever since. Thus judicial review does not lie, since the decision is a decision of the High Court. Instead the remedy available is the remedy prescribed by statute for appeals from decisions of the High Court, viz by way of an appeal to the Court of Appeal.
   From this ruling of the Divisional Court Mr Persaud appealed. For her part Miss Calder was not unhappy with the decision of the Divisional Court, for two reasons: the jurisdiction of the Court of Appeal as an appellate tribunal would be wider than that of the High Court exercising a supervisory jurisdiction when undertaking judicial review and, further, the reasoning of the Divisional Court gave Miss Calder scope to contend that the decision of the three judges as visitors was a nullity and that therefore she still remained entitled to a hearing by the High Court (viz by a single judge sitting as a judge of the High Court), with an appeal thereafter to the Court of Appeal. The General Council of the Bar's attitude was, likewise, that the decision of the Divisional Court should be upheld for the reasons given by that court.
   However, all counsel recognised that since the issue is one of jurisdiction, this court is concerned to satisfy itself on the issue. We heard comprehensive and helpful arguments from counsel, including counsel instructed as amici curiae by the Attorney General, and Mr Persaud acting in person. Between them the arguments covered all the various possible alternatives.
The ancient visitorial jurisdiction
   The primary question on these appeals concerns the proper interpretation of two sections in the 1873 Act. Before turning to that Act I must set the scene. I must identify the nature of the jurisdiction, as generally understood in 1873, exercised by the judges when sitting on appeal from decisions of the benchers of the four Inns of Court. I introduce the qualification 'as generally understood in 1873', because in interpreting the 1873 legislation the court is seeking to elucidate what Parliament is to be taken to have intended when the Act was passed. The court should therefore have at least some regard to how the role of the judges, when exercising this jurisdiction, was perceived and understood at the time.
   The jurisdiction of the judges in respect of the Inns of Court is very ancient and well established. We were taken on an interesting historical journey, starting in the thirteenth century. Having made this journey, I am left in no doubt that by the end of the eighteenth century, if not earlier, the function and role of the judges when exercising this jurisdiction had become settled and clear. Thus it is not necessary to travel further back in time, it is not necessary to delve into the historical origins. The case which, using the fashionable terminology, was the seminal decision was R v Gray's Inn (1780) 1 Doug 353, 99 ER 227. William Hart applied for a mandamus to be directed to the benchers of Gray's Inn compelling them to call him to the degree of barrister at law. He urged that it would be highly inconvenient to permit such a body as the benchers of an Inn of Court to exercise a jurisdiction in such matters uncontrollable by a court of law. The court rejected the application. Lord Mansfield CJ said (1 Doug 353 at 354-355, 99 ER 227 at 227-228):

   'We have consulted the other Judges on the subject of this application, and I am prepared to state the result. The original institution of the Inns of Court894 no where precisely appears, but it is certain that they are not corporations, and have no constitution by charters from the Crown. They are voluntary societies, which, for ages, have submitted to government analogous to that of other seminaries of learning. But all the power they have concerning the admission to the bar, is delegated to them from the Judges, and, in every instance, their conduct is subject to their control as visitors. This will appear from a great variety of instances of orders made at different periods, for the regulation of those societies ... From the first traces of their existence to this day, no example can be found of an interposition by the Courts of Westminster Hall proceeding according to the general law of the land; but the Judges have acted as in a domestic forum.' (My emphasis.)
   Hart's application was accordingly dismissed. Lord Mansfield CJ added that, if there was ground for it, Hart must take 'the ancient course of applying to the twelve Judges' (see 1 Doug 353 at 357, 99 ER 227 at 229). The twelve judges, it seems, was a reference to the judges of the Courts of King's Bench and Common Pleas and the Barons of the Court of Exchequer, including the Chief Justices of those courts, even though the number was not always twelve: see the valuable article by Professor J H Baker 'Judicial review of the judges as visitors to the Inns of Court' [1992] PL 411.
   So far as can be seen, this decision was accepted as an authoritative statement of the remedy available for a barrister aggrieved by decisions of the benchers of an Inn. Thus in 1787 a member of Gray's Inn filed a bill in the Court of Chancery seeking an order that the benchers renew his tenancy of chambers within the Inn: see Cunningham v Wegg (1787) 2 Bro CC 241, 29 ER 134. The benchers argued that Gray's Inn, like the three other Inns, was a voluntary society governed by benchers who make rules regulating the society and its property subject to an appeal, in case of disputes, to 'the Lord Chancellor and the twelve Judges'. The Attorney General, likewise, submitted that the benchers were not liable to account to the court, and that there was no instance of any of the courts interfering, either with respect to call to the Bar or the internal government of the society. Lord Thurlow LC accepted these submissions. A century later the same approach was adopted by Hall V-C in dismissing a bill filed by a barrister of Lincoln's Inn seeking an injunction to restrain the Inn from enforcing a bond given when he was called to the Bar: see Neate v Denman (1874) LR 18 Eq 127.
   As Professor Baker has pointed out, there may be grounds for doubting the historical accuracy of Lord Mansfield CJ's statement that the Inn's powers to call to the Bar were delegated to them from the judges. There has also been some discussion of what Lord Mansfield CJ meant by 'delegated' in this context: see Re S (a barrister) [1969] 1 All ER 949, [1970] 1 QB 160. Be that as it may, until the present case it seems to have been universally accepted that, when hearing an appeal against a decision of the benchers of an Inn, the judges were not sitting as a court of law: they were sitting as visitors in a domestic forum, controlling the affairs of 'voluntary' societies.
The 1873 Act
   Against this background I turn to consider the 1873 Act. Before this Act was passed there was a multiplicity of courts, dealing with different subject matters or giving different remedies. These courts included the High Court of Chancery, the Court of Queen's Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy. The 1873 Act united and consolidated these eight courts to constitute one895 Supreme Court of Judicature in England. The Supreme Court was to have two permanent divisions: a High Court of Justice and a Court of Appeal. The first judges of the High Court were to be the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, the Vice-Chancellors of the High Court of Chancery, the judge of the Court of Probate and of the Court for Divorce and Matrimonial Causes, the puisne justices of the Courts of Queen's Bench and Common Pleas, the Junior Barons of the Court of Exchequer and the judge of the High Court of Admiralty.
   Section 12 made provision for what were described in the sidenote to the section as 'extraordinary duties of Judges of the former Courts'. These duties were to devolve on the judges of the new High Court of Justice. Section 12 provided:

   'If, in any case not expressly provided for by this Act, a liability to any duty, or any authority or power, not incident to the administration of justice in any Court, whose jurisdiction is transferred by this Act to the High Court of Justice, shall have been imposed or conferred by any statute, law, or custom upon the Judges or any Judge of any of such Courts, save as herein-after mentioned, every Judge of the said High Court shall be capable of performing and exercising, and shall be liable to perform and empowered to exercise every such duty, authority, and power, in the same manner as if this Act had not passed, and as if he had been duly appointed the successor of a Judge liable to such duty, or possessing such authority or power, before the passing of this Act ...'
   Section 16 stated what was to be the jurisdiction of the new High Court of Justice. The Act transferred to and vested in the High Court the jurisdiction then vested in, or capable of being exercised by, the eight courts mentioned above together with a further three courts I need not name. Section 16 further provided, in short, that the jurisdiction transferred to the new High Court was to include the jurisdiction then vested in or capable of being exercised by all or any of the judges of the courts whose jurisdiction was transferred to the High Court. The material part of s 16 read:

   '... The jurisdiction by this Act transferred to the High Court of Justice shall include ... the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court or Chambers, or elsewhere, when acting as Judges or a Judge, in pursuance of any statute, law, or custom, and all powers given to any such Court, or to any such Judges or Judge, by any statute ...'
   The 1873 Act has been repealed but the effect of s 12 survives, via s 18(3) of the Supreme Court of Judicature (Consolidation) Act 1925, in s 44 of the Supreme Court Act 1981. Likewise, s 16 of the 1873 Act survives, via s 34(1) of the 1925 Act, in s 19(2)(b) of the 1981 Act.
Section 16
   In my view it is clear that the jurisdiction exercised by the judges over the Inns of Court was not transferred to the High Court by s 16. Read in context, the phrase 'when acting as Judges or a Judge' must mean, when acting as judges or a judge of the courts whose jurisdiction was transferred to the High Court by the 1873 Act. But, so read, the section does not apply to the jurisdiction vested in and exercised by the judges over the Inns of Court. When exercising that jurisdiction896 the judges were not acting as judges. They were not sitting as a court of law. They were not sitting as judges of the Court of Queen's Bench or of the Court of Common Pleas or the Court of Exchequer. They were sitting in a domestic forum, as visitors to the Inns of Court. The analogy with visitors to a charitable foundation may be imperfect. The Inns are not corporations having a founder who nominated a visitor to interpret and apply the statutes and decide internal disputes. But what matters more for present purposes is that when exercising their jurisdiction over the Inns the judges were exercising a jurisdiction different from that exercised when sitting as judges of their respective courts. True, the judges derived their jurisdiction over the Inns from their office as judges of the three courts in question: they possessed that jurisdiction by virtue of their office as judges. But, here again, that does not bring this jurisdiction within s 16: 'when acting as Judges' is looking to the nature of the jurisdiction being exercised, rather than its source. The Vice-Chancellor of the Supreme Court is, by virtue of his office, the visitor of Clare Hall, Cambridge, but when exercising that jurisdiction he is not acting as Vice-Chancellor: he is acting as a visitor.
   The contrary interpretation of s 16 would produce a surprising result. It would mean that an existing jurisdiction, which before 1873 the courts had declared repeatedly was not a jurisdiction possessed by any of the courts, either of common law or of equity, became part of the jurisdiction of the new court set up by the 1873 Act in place of the existing courts. For the future aggrieved barristers would have a right of appeal, not informally to the twelve judges, but formally to the High Court as such, with all the procedural consequences attendant upon High Court proceedings. One would expect clear language if such a change were being made and the new court were to have a jurisdiction not possessed by any of the courts it was replacing.
Section 12
   If I am right so far, and s 16 did not apply to the jurisdiction exercised by the judges over the Inns of Court, what happened to that jurisdiction when the courts of the twelve judges were abolished by the 1873 Act? Section 12 provides the answer. As already noted, this section vested in the judges of the new High Court the powers and duties of the judges of the courts whose jurisdiction was being transferred to the High Court so far as 'not incident to the administration of justice in any Court, whose jurisdiction is transferred by this Act to the High Court of Justice'. This phrase, which prescribed a negative qualifying condition, is not free from ambiguity. The expression 'not incident to' is imprecise, as also is the expression 'the administration of justice in any Court'. Nor can one gain assistance from looking at other instances to which s 12 applies, because counsel were unable to suggest any.
   Despite these difficulties I am satisfied that the jurisdiction of the judges over the Inns of Court fulfils the s 12 qualifying condition. This jurisdiction of the judges extended to appeals from all decisions of the benchers relating to the conduct of an Inn's affairs. As already noted, it included appeals against decisions on property matters such as the letting of chambers within the Inn and the dues payable to the Inn by its members. Jurisdiction to hear appeals on such matters cannot sensibly be described as a jurisdiction 'incident to the administration of justice in any Court'. The judges' jurisdiction also included jurisdiction to hear appeals against disciplinary decisions, such as disbarment for professional misconduct. Authority to hear appeals against disciplinary decisions approaches much more closely to being an incident to the administration of justice in a court, because of the judges' role in controlling the professional standards of those with897 rights of audience in the courts. But authority to hear appeals against disciplinary decisions was not a separate and discrete part of the jurisdiction exercised by judges over the Inns: it was a part, albeit a very important part, of one single and entire jurisdiction. That jurisdiction, considered as a whole, and including as it does jurisdiction to hear appeals against Inn decisions having no connection with who may appear in court as barristers or with their professional standards, cannot have been intended by Parliament to be excluded from s 12 as a jurisdiction 'incident to the administration of justice in any Court'. On the contrary, when exercising their visitorial jurisdiction the judges were acting, in Lord Mansfield CJ's words, 'as in a domestic forum'. As such the judges' jurisdiction to regulate on appeal the affairs of the Inns of Court irrespective of the precise nature of the dispute can aptly and properly be described as 'not incident to the administration of justice in any Court'.
The later history
   I am greatly fortified in these conclusions by noting how the visitorial jurisdiction of the judges has been exercised since 1873. The effect of the 1873 Act was raised almost at once, in Manisty v Kenealy (1876) 24 WR 918. There the defendant was one of the trustees of the property of Gray's Inn. He also held a set of chambers assigned to him as a bencher. He was disbenched and disbarred, and the Inn sought an order for possession of the set of chambers and an order that he join in a conveyance of the Inn's property to new trustees. The defendant contended that in disbenching and disbarring him the Inn had been actuated by malice, that he had not been given an opportunity to be heard, and that in law he was still a bencher and member of the Inn. The Inn contended that even if the defendant had been improperly disbenched and disbarred the court had no jurisdiction to interfere. Counsel submitted that the decision of the benchers was final unless reversed on appeal to the judges, and that 'the various courts now consolidated into the High Court of Justice had no jurisdiction in respect of such matters'. Hall V-C accepted this submission. Clearly he did not consider that the jurisdiction had been transferred from the judges to the new High Court by the recent Act. He said (at 920):

   'The undisputed facts are that the benchers have disbenched and disbarred the defendant, but he disputes the validity of their proceedings ... he asks me to try that question; but I am not competent to do so, as I must have regard to former decisions applicable to the case before me, and it appears to me perfectly clear that, as regards the admission to the bar and the expulsion of members of an Inn of Court, the jurisdiction has been held by competent authority to be with the benchers, subject only to an appeal to the judges. With the question as to whether that is a proper mode or not I have nothing to do ... It is said, too, that the judges have not the same facilities for getting at the truth of the matter as this court, but if the law be wrong it can be improved by legislation, and I am not authorised to assume a jurisdiction which I do not possess on that account.'
   Thereafter from time to time the judges have taken steps to regulate the procedure to be followed on appeals to them. I shall mention only two examples, one from an early date, and the other a very recent one. The records of a meeting of the Council of Judges held on 24 November 1886 include this item:

   'It was resolved that the jurisdiction as to appeals from decisions of the Benchers of the several Inns of Court is now vested in the Judges of the High898 Court. It was further agreed that the first sitting in the particular case, in relation to the Middle Temple, now pending, should be taken in the Royal Courts of Justice after the rising of the Courts on a day to be arranged: the general opinion being, that such of the Judges as are members of the Middle Temple should not be present, and that not less than five Judges should take part in the sitting.' (My emphasis).
This practice continued for many years.
   Most recently, the currently applicable rules, the Hearings before the Visitors Rules 1991, were made on 20 December 1990. They commence:

   'We, the Judges of Her Majesty's High Court of Justice, in the exercise of our powers as Visitors to the Inns of Court, hereby make the following Rules for the purpose of appeals to the Visitors from Disciplinary Tribunals of the Council of the Inns of the Court and certain other appeals to the Visitors ...'
The rules were signed, 'On behalf of the Judges of Her Majesty's High Court of Justice' by the Lord Chancellor, the Lord Chief Justice, the President and the Vice-Chancellor. The rules deal with matters such as service of documents, the time within which notice of appeal must be given (21 days), the contents of a petition of appeal, and the conduct of the hearing of the appeal. The appeal is to be heard by a single judge nominated by the Lord Chief Justice, save that where the appeal relates to an order for disbarment, or is from a tribunal presided over by a High Court judge, the appeal is heard by three judges. Hearings are normally to take place in private. Fresh evidence is not admissible save in exceptional circumstances and with the consent of the visitors. Counsel may appear at a hearing without the intervention of a solicitor.
   If the judges' jurisdiction had passed to the High Court of 1873, these rules and their predecessors were misguided, and the practice followed consistently on the conduct of appeals to the visitors over the last century has been wrong so far as it departed from the practice applicable to proceedings in the High Court under successive Judicature Acts and the Rules of the Supreme Court. In particular, the proceedings ought to have been conducted as proceedings of the High Court, the hearings ought to have been in public, the High Court as a court of record should have kept a record of the proceedings, and the proceedings should have been heard by only a single judge (see s 19(3) of the 1981 Act, s 40 of the 1873 Act, and s 60 of the 1925 Act). Moreover there was an unperceived right of appeal to the Court of Appeal and thence, with leave, to the House of Lords. Throughout the judges would have been mistaken in their understanding of the capacity in which they were sitting when exercising their jurisdiction over the Inns of Court. Two explicit examples of this will suffice. First, the judgment of Danckwerts LJ in Lincoln v Daniels [1961] 3 All ER 740 at 754, [1962] 1 QB 237 at 265:

   'In all matters concerning disciplinary measures the Benchers are outside the jurisdiction of the ordinary courts, but their decisions are subject to an appeal to the Lord Chancellor and the judges of the High Court of Justice sitting as a domestic tribunal.'
Second, in the decision of the three judges (Vinelott, McNeill and Anthony Lincoln JJ) sitting as visitors on the appeal reported as Re S (a barrister) [1981] 2 All ER 952 at 953, [1981] QB 683 at 685:

   'In this appeal we sit not as a court of law but as visitors of the Inns of Court. The Lord Chancellor and all the judges of the High Court of Justice899 are visitors of the Inns of Court and as visitors it is their duty to hear appeals by barristers who have been found guilty of professional misconduct ...'
   I am reassured to find that the construction of ss 12 and 16 of the 1873 Act stated above does not give rise to these unattractive consequences, but accords with the seemingly universal understanding of what has been the legal position since 1873.
   I add, by way of footnotes to this part of the case, that the appeals with which we are concerned are from decisions of disciplinary tribunals of the Inns of Court, not from decisions of the benchers of Lincoln's Inn. Nothing turns on this. The history of the setting up of these tribunals was considered in Re S (a barrister) [1981] 2 All ER 952, [1981] QB 683, and I need say no more about this modern procedural development. Nor need I consider the Courts and Legal Services Act 1990. It was common ground before us that nothing in that Act affects the issues before us.
Judicial review: Page's case
   Thus far I have concluded that the jurisdiction of the twelve judges as visitors of an Inn of Court became vested in all the judges of the new High Court under the 1873 Act. I turn next to consider whether a barrister has any remedy available to him in respect of decisions of the judges sitting in exercise of this visitorial jurisdiction. Miss Calder and Mr Persaud contended that, if the effect of the 1873 Act were as just stated, the judges' visitorial decisions are susceptible to judicial review. Judicial review is notoriously an expanding jurisdiction, and there is a sufficient public element in these decisions on disciplinary matters for them to be subject to the supervisory jurisdiction of the courts.
   On this part of the case we have the benefit of the very recent decision of the House of Lords in Page v Hull University Visitor [1993] 1 All ER 97, [1992] 3 WLR 1112. Mr Page, a lecturer in the department of philosophy in the University of Hull, was dismissed on the grounds of redundancy. He claimed that the statutes of the university gave him security of tenure, terminable only for good cause. Good cause did not exist in his case. Mr Page petitioned the visitor for a declaration that his purported dismissal was ultra vires and of no effect. The visitor to the university was the Queen, and the petition was considered by the Lord President of the Council on behalf of Her Majesty. He sought advice from Lord Jauncey of Tullichettle, who advised that on the proper interpretation of the statutes the dismissal was intra vires and valid. On that advice the petition was dismissed by the visitor. Mr Page applied for judicial review of that decision. By a majority their Lordships held that the court had no jurisdiction to entertain the application for judicial review of the visitor's decision in that case. All their Lordships were of the view that, in any event, Lord Jauncey's advice was correct.
   The leading speech, with which Lord Keith of Kinkel and Lord Griffiths agreed, was delivered by Lord Browne-Wilkinson. He observed that the fundamental principle of judicial review is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. This intervention is based on the proposition that the decision-maker has been given these powers on the underlying assumption that they are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense, reasonable (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). Further, since Parliament was to be taken to have conferred the decision-making power on the footing that it was to be exercised on the correct legal basis, a misdirection in law in making900 the decision will render the decision ultra vires. Accordingly, in general any error of law made by an administrative tribunal or inferior court in reaching its decision can be set aside (quashed) for error of law.
   That is the underlying principle. Lord Browne-Wilkinson then explained why the general rule, on setting aside decisions affected by errors of law, does not apply in the case of visitors. There are two reasons. First, the visitor applies not the general law of the land, but 'a peculiar domestic law of which he is the sole arbiter and of which the courts have no cognisance'. He said ([1993] 1 All ER 97 at 108, [1992] 3 WLR 1112 at 1124):

   'If the visitor has power under the regulating documents to enter into the adjudication of the dispute (ie is acting within his jurisdiction in the narrow sense) he cannot err in law in reaching this decision since the general law is not the applicable law. Therefore he cannot be acting ultra vires and unlawfully by applying his view of the domestic law in reaching his decision. The court has no jurisdiction either to say that he erred in his application of the general law (since the general law is not applicable to the decision) or to reach a contrary view as to the effect of the domestic law (since the visitor is the sole judge of such domestic law).'
   The second reason, closely allied to the first, is that statute may provide for the decision of an inferior court to be final and conclusive, thereby excluding the jurisdiction of the High Court to review it. Lord Browne-Wilkinson said ([1993] All ER 97 at 109, [1992] 3 WLR 1112 at 1124-1125):

   '... if there were a statutory provision that the decision of a visitor on the law applicable to internal disputes of a charity was to be "final and conclusive", courts would have no jurisdiction to review the visitor's decision on the grounds of error of law made by the visitor within his jurisdiction (in the narrow sense) ... I can see no relevant distinction between a case where a statute has conferred such final and conclusive jurisdiction and the case where the common law has for 300 years recognised that the visitor's decision on questions of fact and law are final and conclusive and are not to be reviewed by the courts. Accordingly, unless this House is prepared to sweep away long-established law, there is no jurisdiction in the court to review a visitor's decision for error of law committed within his jurisdiction.'
   Lord Browne-Wilkinson then gave reasons why the House should not sweep away the long-established law, even though the position of visitors was anomalous ([1993] 1 All ER 97 at 109, [1992] 3 WLR 1112 at 1125):

   'It is not only modern universities which have visitors: there are a substantial number of other long-established educational, ecclesiastical and eleemosynary bodies which have visitors. The advantages of having an informal system which produces a speedy, cheap and final answer to internal disputes has been repeatedly emphasised in the authorities ... If it were to be held that judicial review for error of law lay against the visitor I fear that, as in the present case, finality would be lost not only in cases raising pure questions of law but also in cases where it would be urged in accordance with the Wednesbury principle that the visitor had failed to take into account relevant matters or taken into account irrelevant matters or had reached an irrational conclusion. Although the visitor's position is anomalous, it provides a valuable machinery for resolving internal disputes which should not be lost.'
901
   Lord Griffiths's speech was to the same effect. He observed that to admit challenges to the visitor's decision, by way of judicial review, on the grounds of error of law 'will in practice prove to be the introduction of an appeal by another name' (see [1993] 1 All ER 97 at 101, [1992] 3 WLR 1112 at 1116).
   In my view the principle enunciated by the House of Lords regarding the finality of the visitorial jurisdiction is applicable to visitors of the Inns of Court. I have already noted that an Inn of Court is not a corporation, it does not have statutes, nor does it have a founder who nominated a visitor to hear and determine internal disputes. Nevertheless, the first of Lord Browne-Wilkinson's two reasons is as applicable to the Inns of Court as it is to the statutes of a charitable corporation. Lord Mansfield CJ, in the extract from his judgment set out above, made the point that when acting as visitors the judges do not proceed 'according to the general law of the land': they act 'as in a domestic forum'. When sitting now as visitors on disciplinary matters, the judges are interpreting and applying the Bar's Code of Conduct.
   Having said this, I hasten to add that I find the distinction between a peculiar domestic law and the general law artificial and unattractive. So did Lord Browne-Wilkinson. But on this what matters for present purposes is that, in so far as this first reason can still be regarded as having any validity, it is not a ground for distinguishing the Inns of Court from charitable corporations.
   As to Lord Browne-Wilkinson's second reason, as with visitors in general, so with visitors to the Inns of Court, the courts have never exercised a supervisory control over their decisions, on questions of fact or law, on issues which fall for determination within their jurisdiction. I recognise that, unlike with visitors in general, in the case of visitors to the Inns of Court the point has never come before the court for determination. The reported decisions were concerned with whether the courts had any jurisdiction over matters which had been the subject of decision by benchers of the Inns. As already noted the long-established law is that the remedy is by way of appeal to the judges sitting as visitors. Whether the courts have any jurisdiction to exercise control over decisions of the judges as visitors is not a matter which seems ever to have been raised. I think it is fair to draw the inference that for long it has been assumed on all sides that decisions of the judges as visitors were final. Occasionally this assumption was stated expressly. For instance in Re S (a barrister) [1969] 1 All ER 949 at 952, [1970] 1 QB 160 at 166 Paull J observed that the decision on an appeal to the judges as visitors 'has always been the final determination of such matter'. I suspect the reason for this assumption is probably connected with the identity of the decision-making body. The idea that the court should have a right to review a decision of all 'the judges' seems, at first sight, to be something of a nonsense. This is a point to which I shall have to return. For the moment it is sufficient to note that the courts never have exercised a supervisory jurisdiction over decisions of the visitors of the Inns.
   That being so, and given further that the reason why the House of Lords was unwilling to sweep away the established law relating to visitors generally applies equally to visitors to the Inns of Court, in my view the decision in Page's case is applicable here despite the differences between charitable corporations and the Inns of Court.
   Counsel were united in urging us that the restrictive approach adopted in Page's case was anomalous, and that the ambit of the decision should not be extended. We were referred to ss 41 and 42 of the Administration of Justice Act 1985 as amended, whereunder the Bar's disciplinary code is given statutory force in relation to legal aid complaints. Fees otherwise payable to a barrister may be reduced or cancelled, and a barrister may be excluded from legal aid work. 902Further, the Bar's Code of Conduct has become part of the statutory system of control of rights of audience, under the Courts and Legal Services Act 1990. Thus the disciplinary code in relation to barristers has public functions, not present in the case of the statutes and ordinances of universities or other charitable corporations.
   I do not find in these arguments a sound reason for distinguishing the decision in Page's case. A university professor or lecturer who loses his job and his professional reputation has only the limited recourse to the courts marked out by the House of Lords in Page's case. I can see no compelling reason why the law should look more tenderly on a disciplined barrister. .University staff and barristers alike have a right of appeal, by the long-established route, to the respective visitors. In the case of barristers, the visitors are persons holding high judicial office. The House of Lords has held that present day conditions do not require that a professor or lecturer should have the right to challenge through the courts a decision made on a question of law by a visitor acting within his jurisdiction. I do not see how present day conditions can be said to require otherwise in the case of a barrister.
Judicial review: the limits of Page's case
   Although judicial review does not lie to impeach a decision of a visitor taken within his jurisdiction, that does not mean visitors' decisions are in all circumstances immune from judicial review. For instance, if a visitor purports to hear a dispute which does not fall within his jurisdiction he may be restrained from proceeding: the court will make an order of prohibition. If a visitor declines to exercise his jurisdiction, the court will make an order of mandamus requiring him to proceed. In Page's case [1993] 1 All ER 97 at 109, [1992] 3 WLR 1112 at 1125 Lord Browne-Wilkinson summarised the position in this way:

   'Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction (in the narrow sense) or abused his powers or acted in breach of the rules of natural justice.'
   So the next question I must address is whether this limited judicial review jurisdiction, as I shall call it, is applicable to the judges as visitors to the Inns of Court. In my view it is. But for the fact that the visitors are judges of the High Court there really could be no room for doubt. The reasons which result in the limited judicial review jurisdiction being available in respect of visitors generally must be equally applicable to visitors to the Inns of Court. Further, the mere fact that the visitors are judges does not point to a different conclusion. There is no reason in principle why a High Court judge should not make an order against another judge, from the Lord Chancellor downwards, in respect of decisions made when not acting in a judicial capacity. I have already been at pains to stress that when sitting as visitors to the Inns of Court the judges are not sitting as judges. They are exercising a different jurisdiction; they are sitting as visitors. It is for that very reason that the visitorial jurisdiction did not pass to the High Court in 1873. But, on that footing, the fact that the Inns' visitors are judges is neither here nor there. The decisions sought to be judicially reviewed are not decisions of judges as such, even though it is by virtue of their judicial office that they hold office as visitors.
   Thus far there is no particular difficulty. But in one material respect the judges' visitorial jurisdiction in relation to the Inns of Court is remarkable and unique: the visitors comprise all the judges of the High Court. Hence the question: how can one judge, sitting as a Divisional Court of the Queen's Bench Division, make903 an order against all the judges, of whom he is one, compelling them to proceed, or prohibiting them from dealing with a matter outside their jurisdiction?
   I am reluctant to find that there is here a problem which excludes the limited judicial review jurisdiction if otherwise it would be available. I am not attracted by a conclusion which would leave a member of an Inn of Court worse off in terms of remedies because the visitors are all the judges than he or she would be if the visitors were a more restricted class of persons. In my view there is more than one answer to this point. First, on a somewhat technical level, as a matter of law the jurisdiction of a High Court judge can be exercised by persons who are not currently puisne judges of the High Court. The persons who may act in this way include judges of the Court of Appeal, former puisne judges of the High Court and of the Court of Appeal, circuit judges and recorders (see s 9(1) of the 1981 Act). Further, the Lord Chancellor may, as a temporary measure, appoint a person qualified for appointment as a puisne judge of the High Court to be a deputy judge of the High Court (s 9(2)). So, if necessary, means exist for the judicial review application to be heard by a judge other than one who, by virtue of his office as a judge of the High Court, is himself a visitor of the Inns of Court.
   Secondly, and in my view more fundamentally and importantly, the difficulty is more theoretical than real. The procedure of appeals to the visitors is governed now by rules made by the visitors, currently the Hearings before the Visitors Rules 1991. These rules make provision for the service of a petition of appeal and other documents on the Lord Chief Justice, and for an appeal to be heard by a judge or judges to be nominated by him. Thus in practice an application invoking the limited judicial review jurisdiction can and will be made against the particular judges who are hearing or have heard the appeal or who have been nominated to hear it. If the complaint lies in the failure of the Lord Chief Justice to nominate a judge or judges, the application will be made against the Lord Chief Justice. If relief is called for, the orders will be made against those judges, not the whole body of judges of the High Court.
   The final point I must note is that hitherto the courts have never exercised even the limited judicial review jurisdiction over decisions of visitors of the Inns of Court. To that extent the conclusion I have expressed breaks fresh ground. However, I do not think this consideration should deter the court from upholding the existence of this jurisdiction, given that it exists in the case of visitors generally. Novelty is not ground the courts should fear to tread, in this or any other appropriate case.
Conclusion: Miss Calder's case
   I turn to apply these principles regarding jurisdiction to the two cases before us. The background facts concerning Miss Calder's appeal are set out in the judgment of Stuart-Smith LJ. Miss Calder has advanced four grounds of appeal. By the first two she asserts that she did not have a fair hearing (natural justice) before the disciplinary tribunal. By reason of the professional closeness of the chairman to the complainant, himself a principal witness, the chairman was disqualified from sitting on the disciplinary tribunal, and Miss Calder cannot be taken to have waived her right to object on this ground having regard to observations made by the chairman at the outset. In my view these two grounds of appeal do not fall within the limited judicial review jurisdiction. Whether Miss Calder had a fair hearing before the disciplinary tribunal was an issue within the visitors' jurisdiction. They addressed this issue and decided it. The correctness of their decision is not amenable to judicial review.
   For the same reason Miss Calder's third ground of appeal must fail. Whether904 there was any evidence, worthy of the name, before the disciplinary tribunal of an intention by Miss Calder to deceive the court or the witness or anyone else was, again, an issue within the visitors' jurisdiction. The court has no jurisdiction to review the correctness of the visitors' decision on this point.
   There remains Miss Calder's fourth ground of appeal: that the visitors misunderstood their role. She contends that the visitors were sitting as an appellate tribunal, not (as they seem to have thought) as a reviewing tribunal, and hence they failed fully and properly to carry out their duties as visitors. As to this, first, I can see no reason to doubt that an appeal to the judges as visitors is precisely that: an appeal. It is so described in the authorities. In Lincoln v Daniels [1961] 3 All ER 740 at 748, [1962] 1 QB 237 at 256 Devlin LJ referred to it as 'a re-hearing on appeal'. Thus the visitors will look afresh at the matters in dispute and form their own views. The procedure followed in the conduct of such an appeal is a matter for the visitors. The current visitors' rules provide that fresh evidence will be admissible only in exceptional circumstances. In the absence of fresh evidence the appeal will be comparable to an appeal in the Civil Division of the Court of Appeal. Regarding sentence, it will be for the visitors to exercise their own discretion and judgment.
   Second, I am in no doubt that if visitors conduct, not an appeal of this nature, but a review of the disciplinary tribunal's findings and decision comparable to that undertaken by the court by way of judicial review of decisions of inferior courts or tribunals, then the visitors' decision is amenable to judicial review. In that event the visitors' decision falls within the limited judicial review jurisdiction retained by the court over decisions of visitors. In that event the visitors have seriously misapprehended their function. The appellant has not had the benefit, to which she is entitled, of the visitors considering whether the charge, to the requisite standard of proof, has been made out to their satisfaction.
   Did the visitors misapprehend their function in this case? Having read and reread their decision I think there are some indications that they did. I think they may well have been led astray, unwittingly, by the form of the submissions made to them ('the evidence did not support the findings made by the tribunal', 'the tribunal was not entitled to draw the inference of dishonesty'). Accordingly, I would allow the appeal in Miss Calder's case, and quash the decision of the visitors.
Conclusion: Mr Persaud's case
   In Mr Persaud's case the facts were not investigated before us. His application for judicial review was rejected by the Divisional Court on the preliminary point concerning jurisdiction. I would allow his appeal, and remit the proceedings to the Divisional Court to proceed to hear and determine his judicial review application in accordance with the principles set out in the judgments of this court.
STUART-SMITH LJ. The question raised in these appeals is whether any, and if so what, appeal or review lies from the judges of the High Court sitting as visitors of the Inns of Court on matters of discipline of members of the Bar. There are three alternatives. First, that an appeal lies to the Court of Appeal; that was the decision of the Divisional Court and it is supported in this court by Mr Collins QC for the Bar Council and, subject to one qualification, by Mr Beloff QC for Miss Calder. Secondly, that the visitors are amenable to judicial review; that is the submission made by Mr Carnwath QC as amicus curiae; it is the submission of Mr Persaud and is the alternative submission made on behalf of Miss Calder. 905Thirdly, that the decision of the visitors is neither appealable nor amenable to judicial review.
   The answer to the question depends upon the proper construction of ss 12 and 16 of the Supreme Court of Judicature Act 1873; but before turning to those sections, it is necessary to consider the nature of the judges' jurisdiction as visitors before the passing of that Act. The Divisional Court, after a scholarly review of the earlier authorities, held that although it had gone unnoticed for 119 years the jurisdiction of the judges as visitors, in so far as it related to the fitness of persons to become or remain barristers, was a jurisdiction which before 1873 was vested in the judges of the three common law courts, sitting elsewhere than in court or chambers, when acting as judges, in pursuance of custom; this was their inherent jurisdiction as judges of those courts to decide who was a fit and proper person to appear before them. .
   The Inns of Court are voluntary-societies, free to choose who their members should be. Those members whom the benchers of the Inn considered properly qualified were in due course called to the Bar of the Inn. For many centuries the judges recognised those who had been so called as fit and proper persons to appear before them in the courts. This did not apply to the Court of Common Pleas, before whom only serjeants could appear. From time to time disputes arose between members of the Inn and the benchers; these might relate to property, manners or fitness to be called to or remain at the Bar. These disputes were referred to the judges to resolve. On appointment to the Bench the common law judges had to leave their Inns; they became serjeants and were sometimes known as judges of the coif, because of the distinctive headgear of the serjeants. The disputes were referred to the judges of the House, that is to say, those who had been members of the Inn prior to their appointment. They dealt with the matter internally, somewhat in the manner of arbitrators.
   By the beginning of the eighteenth century they not infrequently consulted with their brethren who had been members of other Inns, probably for the sake of uniformity. In Rakestraw v Brewer (1728) 2 P Wms 511, 24 ER 839, a case involving a property dispute relating to chambers in Gray's Inn, Sir Phillip Yorke A-G, who later became Lord Hardwicke, said that the plaintiff should apply to the Bench, and if not redressed there, then to the judges of the society; that is to say the judges who had previously been members of Gray's Inn.
   The first recorded case of a disciplinary appeal direct to all the common law judges is Savage's Case (1776 cited in 1 Doug KB at 355, 99 ER 228). In R v Gray's Inn (1780) 1 Doug 353 at 354-355, 99 ER 227 at 227-228 Lord Mansfield CJ stated the law as follows:

   'We have consulted the other Judges on the subject of this application, and I am prepared to state the result. The original institution of the Inns of Court no where precisely appears, but it is certain that they are not corporations, and have no constitution by charters from the Crown. They are voluntary societies, which, for ages, have submitted to government analogous to that of other seminaries of learning. But all the power they have concerning the admission to the bar, is delegated to them from the Judges, and, in every instance, their conduct is subject to their control as visitors ... From the first traces of their existence to this day, no example can be found of an interposition by the courts of Westminster Hall proceeding according to the general law of the land; but the Judges have acted as in a domestic forum they [the Inns] are voluntary societies submitting to government, and the ancient and usual way of redress [for any grievance in the Inns of Court] is by appeal to the Judges.'
906
   Professor Baker, to whom I am much indebted for his interesting article, 'Judicial review of the judges as visitors to the Inns of Court' [1992] PL 411, doubts whether Lord Mansfield CJ was correct in stating that the power was delegated to the Inns by the judges. There is certainly no trace as to how, when and where this delegation took place, if it did; and it does not seem consistent with the role of the judges of the House acting as visitors.
   Cunningham v Wegg (1787) 2 Bro CC 241, 29 ER 134 was a dispute concerning property within Gray's Inn; no distinction was drawn between the visitorial jurisdiction of the judges in relation to discipline as opposed to property. In his short judgment Lord Thurlow LC said (2 Bro CC 241 at 242, 29 ER 134 at 135):

   'There is no instance of a suit, either relative to the discipline, or the property of chambers, in an Inn of Court. The defendants say ... they are liable to the jurisdiction of the Judges. It is a claim among persons having privilege; therefore, this is not the proper jurisdiction.'
   In R v Lincoln's Inn Benchers (1825) 4 B & C 855, 107 ER 1277 it was held that the judges as visitors had jurisdiction over admitted members of the Inns, but not those seeking admission. Manisty v Kenealy (1876) 24 WR 918 is an important case because it is the first decision after the coming into force of the 1873 Act. The benchers of Gray's Inn brought an action against the defendant, who had been a bencher of the Inn and a trustee of its land, but who had been disbarred and disbenched, to compel him to reconvey the land to new trustees. By his defence the defendant claimed that the benchers in disbarring and disbenching him had been activated by malice, and what they had done was without legal effect. The plaintiffs demurred to this defence. Counsel on their behalf submitted that-

   'the Inns of Court were private voluntary societies, and that the decisions of their respective governing bodies in all matters relating to the admission, disbenching, disbarring and expulsion of members were final and conclusive, unless reversed on appeal to the Lord Chancellor and other judges of the Supreme Court as visitors, and the various courts now consolidated into the High Court of Justice had no jurisdiction in respect of such matters.' (See at 919.)
This submission was accepted by Hall V-C, who held he was not competent to try the issue raised in the defence.
   If the purpose of the visitorial function had been to control admission to practice by the judges acting as such, one would expect that the judges of the Common Pleas would have been excluded as visitors, since barristers had no right of audience in that court. Conversely the senior judges of the Chancery Court might have been included, since barristers appeared before them; but they were not. The Attorney General, Sir John Campbell QC, in Report of proceedings in relation to warrant for suppression of antient privileges of Serjeants at Law (1840, reported by Serjeant Manning) argued that barristers had a right of audience in the Court of Common Pleas and this was not confined to serjeants. He submitted (at 139):

   'The judges of the Common Pleas are supposed to join with the other judges, in calling students to the bar. The benchers of the inns of court, are only the agents of the judges in calling to the bar. It is a power committed to them by the judges, a power which the judges may resume. There is an appeal from the opinion of the benchers to the judges. Upon that appeal, the907 judges of the Common Pleas sit, just as well as the judges of the Exchequer and the King's Bench; and they sit there, because they are supposed to have called the party to the bar.'
Lord Abinger's comment was that the judges might equally well sit upon the regulation of the benchers as visitors. Sir John Campbell submitted that they were not in the nature of visitors. The Divisional Court relied upon Sir John Campbell's opinion; but it was not accepted by the Privy Council, and it appears to me to be the only dissenting voice in a long line of authority.
   By the 1873 Act a number of named courts, including the Court of Queen's Bench, the Court of Common Pleas at Westminster and the Court of Exchequer, whose judges had sat as visitors to the Inns of Court, were united and consolidated together to form the Supreme Court of Judicature, which was to consist of two divisions, the High Court of Justice and the Court of Appeal (ss 1 and 2). By s 16 there was 'transferred to and vested in the said High Court of Justice the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any of' eleven named courts, including those to which I have just referred.
   The crucial part of s 16 is as follows:

   '... The jurisdiction by this Act transferred to the High Court of Justice shall include (subject to the exceptions herein-after contained) the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court or Chambers, or elsewhere, when acting as Judges or a Judge, in pursuance of any statute, law, or custom, and all powers given to any such Court, or to any such Judges or Judge, by any statute; and also all ministerial powers, duties, and authorities, incident to any and every part of the jurisdictions so transferred.'
   It was submitted by Mr Collins and accepted by the Divisional Court that when sitting as visitors the judges were sitting elsewhere than in court or chambers and acting pursuant to custom. I do not agree. It is the jurisdiction of the named courts that is transferred to the High Court and the jurisdiction of the judges of those courts acting as such, no matter where they are sitting. The reference to custom is a reference to customary law, which is part of the law of England. All the cases to which I have referred draw a distinction between the judges acting as a court or as judges acting as visitors in a purely domestic tribunal applying the domestic rules of the profession in which they are expert. This distinction has been adverted to in the more recent cases: see for example per Danckwerts LJ in Lincoln v Daniels [1961] 3 All ER 740 at 754, [1962] 1 QB 237 at 265:

   'In all matters concerning disciplinary measures the Benchers are outside the jurisdiction of the ordinary courts, but their decisions are subject to an appeal to the Lord Chancellor and the judges of the High Court of Justice sitting as a domestic tribunal.'
Again in Re S (a barrister) [1981] 2 All ER 952 at 953, [1981] QB 683 at 685 Vinelott, McNeill and Anthony Lincoln JJ sitting as visitors emphasised that they were not sitting as a court of law.
   In my judgment s 12 of the 1873 Act is the appropriate section by which the exercise of the visitorial powers formerly exercised by the judges of the common law courts was transferred to the judges of the High Court. It provides as follows:

   'If, in any case not expressly provided for by this Act, a liability to any duty, or any authority or power, not incident to the administration of justice908 in any Court, whose jurisdiction is transferred by this Act to the High Court of Justice, shall have been imposed or conferred by any statute, law, or custom upon the Judges or any Judge of any of such Courts, save as herein-after mentioned, every Judge of the said High Court shall be capable of performing and exercising, and shall be liable to perform and empowered to exercise every such duty, authority, and power, in the same manner as if this Act had not passed, and as if he had been duly appointed the successor of a Judge liable to such duty, or possessing such authority or power, before the passing of this Act ...'
   The Divisional Court considered that since the judges were effectively exercising their own power to decide who should appear before them in any court, the phrase, 'not incident to the administration of justice in any Court, whose jurisdiction is transferred by this Act to the High Court', could not refer to such power. In my opinion this is to give too wide a meaning to this phrase; but in any event if the jurisdiction of the visitors is correctly understood as being that of a domestic tribunal, the phrase is entirely apt to apply to it.
   The effect of ss 12 and 16 of the 1873 Act were effectively re-enacted in ss 18(3) and 34(1) of the Supreme Court of Judicature (Consolidation) Act 1925 and ss 44 and 19(2)(b) of the Supreme Court Act 1981.
   If the decision of the Divisional Court was correct it would have some startling consequences. Thus the Hearings before the Visitors Rules 1991 would have been inappropriate; decisions of the visitors should have been governed by the Rules of the Supreme Court: see RSC Ord 1, r 2. Since the Supreme Court Act 1981, if not earlier, hearings before three judges rather than one were a nullity: s 19(3) and Re Fletcher (1984) Times, 12 June. Hearings should have been in public: s 67 of the 1981 Act. There was a hitherto undiscovered right of appeal to the Court of Appeal and with leave to the House of Lords: s 16 of the 1981 Act. Proceedings before the visitors should have been conducted as hearings of the High Court as a court of record: s 19(1). In practice the only record has been a letter to the benchers of the Inn of Court and now to the Council of the Inns of Court.
   These anomalies show, in my judgment, that it has been the common understanding of the legislature, the judges and the profession that in exercising their visitorial functions the judges are not acting as judges of the High Court, but as a domestic tribunal of the profession.
   Is the decision of the judges acting as visitors judicially reviewable? Statements of the principle are to be found in the judgment of Lord Parker CJ in R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 All ER 770 at 778, [1967] 2 QB 864 at 882. Referring to the scope of the prerogative writs he said:

   'They have varied from time to time, being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word, but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that ... it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is from the agreement of the parties concerned ... We have, as it seems to me, reached the position when the ambit of certiorari can be said to cover every case in which a body of persons, of a public as opposed to a purely private or domestic character, has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely within the jurisdiction of this court. 909The board are, as counsel for the board said, "a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown". The board are clearly, therefore, performing public duties.'
   In R v Panel on Take-overs and Mergers, ex p Datafin plc (Norton Opax plc intervening) [1987] 1 All ER 564 at 577, [1987] QB 815 at 838 Donaldson MR said:

   'In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.'
   Although in my judgment the Code of Conduct of the Bar can properly be described as domestic law, inasmuch as it applies only to members of that profession and not the general public, it is not based on contract and it clearly has a sufficient public element. In addition it has statutory recognition; thus for example the disciplinary code is given statutory force in relation to legal aid complaints by ss 40 to 42 of the Administration of Justice Act 1985 (inserted by s 33 of the Legal Aid Act 1988). Under the Courts and Legal Services Act 1990 the code becomes part of the statutory system of control of rights of audience (see for example s 17-criteria for rights of audience; s 27-rights of audience depend upon rights granted by an 'appropriate authorised body' whose 'qualification regulations' and 'rules of conduct' have been approved; s 31-the General Council of the Bar is 'deemed to have in force' qualification regulations and rules of conduct which have been properly approved). This forms a system of statutory underpinning of the code.
   The fact that the tribunal consists of one or more High Court judges does not prevent its decisions being judicially reviewable, so long as they are not acting as such: see Smalley v Crown Court at Warwick [1985] 1 All ER 769, [1985] AC 622, a case of a High Court judge sitting in the Crown Court, and R v Central Criminal Court, ex p Spens (1992) Independent, 1 December.
   A theoretical difficulty exists in the fact that at any rate from the late eighteenth century until 1873 the jurisdiction of the visitors was said to be exercised by the twelve judges of the common law courts; it is difficult to see therefore how the Court of King's Bench could have issued prerogative writs against themselves and the judges of the Common Pleas and Barons of the Exchequer. But in my opinion we should not be bound by historical precedent, which in any event only arose during the eighteenth century. Judicial review has greatly extended its scope in the past 40 years; since 1873 the visitorial jurisdiction had not been exercised by all the judges, the number varying from time to time from seven to five to three. I can see no reason in principle why the decisions of the judges as visitors should not be judicially reviewable, and the recent decision of the House of Lords in Page v Hull University Visitor [1993] 1 All ER 97, [1992] 3 WLR 1112 shows that decisions of visitors are amenable to this jurisdiction.
   But what is the scope of this review? In Page's case the majority of their Lordships held that it was a limited jurisdiction and did not extend to errors of law committed by the visitor within his jurisdiction. All counsel before us urged that we should distinguish Page's case and not restrict the scope of judicial review of the judges acting as visitors in a similar way. I have not found the point at all easy. The context of Page's case is that the visitor was to the University of Hull, 910which is an eleemosynary corporation, that is to say a charitable institution; such institutions are founded by a benefactor who appoints a visitor to resolve domestic disputes involving the institution and its members and the decision of the visitor on fact and law within his jurisdiction is final. The Inns of Court are not eleemosynary corporations: they are voluntary societies some of whose activities, such as education, are charitable; but some are not, including call to the Bar and disciplining of barristers. Despite this difference I have found it difficult to distinguish the position of judges as visitors from that of visitors to such corporations.
   In Page's case [1993] 1 All ER 97 at 100, [1992] 3 WLR 1112 at 1115-1116 Lord Griffiths said:

   'The common law has ever since the decision in Philips v Bury (1694) Holt KB 715, 90 ER 1294 recognised that the visitor acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal affairs of the foundation by the use of the writs of prohibition and mandamus ... For three centuries the common law courts have recognised the value of the visitor acting as the judge of the internal laws of the foundation and have refused to trespass upon his territory. I do not believe that it would be right to reverse this long line of authority and declare that certiorari should now lie to reverse the decision of a visitor on a question of law. The value of the visitorial jurisdiction is that it is swift, cheap and final. These benefits will be largely dissipated if the visitor's decision can be challenged by way of judicial review.'
   Lord Browne-Wilkinson, with whose speech Lord Keith of Kinkel agreed, after reviewing the authorities said ([1993] 1 All ER 97 at 104, [1992] 3 WLR 1112 at 1119):

   'The decision of Holt CJ in Philips v Bury is the locus classicus of the law of visitors. It has been repeatedly applied for the last 300 years, most recently in Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795. For present purposes it is important for three reasons. (1) It shows that the court can and will inquire whether the visitor has jurisdiction to determine the question, ie to enter into the matter. (2) If the visitor has such jurisdiction, the court has no power to ignore it or review it by way of mandamus or in any other way. (3) The reason for such lack of jurisdiction to review in the court is that an eleemosynary corporation is governed by a system of private law which is not of "the common known laws of the kingdom" but the particular laws and constitutions assigned by the founder.'
Lord Browne-Wilkinson gives the reason why the courts will not intervene. He said ([1993] 1 All ER 97 at 106, 108, [1992] 3 WLR 1112 at 1121-1122, 1124):

   'This inability of the court to intervene is founded on the fact that the applicable law is not the common law of England but a peculiar or domestic law of which the visitor is the sole judge. This special status of a visitor springs from the common law recognising the right of the founder to lay down such a special law subject to adjudication only by a special judge, the visitor ... But the position of decisions made by a visitor is different. As the authorities which I have cited demonstrate, the visitor is applying not the911 general law of the land but a peculiar, domestic law of which he is the sole arbiter and of which the courts have no cognisance. If the visitor has power under the regulating documents to enter into the adjudication of the dispute (ie is acting within his jurisdiction in the narrow sense) he cannot err in law in reaching this decision since the general law is not the applicable law. Therefore he cannot be acting ultra vires and unlawfully by applying his view of the domestic law in reaching his decision. The court has no jurisdiction either to say that he erred in his application of the general law (since the general law is not applicable to the decision) or to reach a contrary view as to the effect of the domestic law (since the visitor is the sole judge of such domestic law).'
   It was submitted to us by counsel that the judges when exercising their visitorial jurisdiction were not applying domestic law, but the general law. I do not agree. In my judgment it is one of the important reasons why their jurisdiction did not pass under s 16 of the 1873 Act, but rather under s 12, that they are not exercising the general law applicable to all subjects, but the special domestic law applicable only to barristers. However the mere fact that the tribunal is applying domestic law in this sense cannot be enough. If it was, then any tribunal applying a code which only applied to certain persons, for example the Take-over Code, would fall within this category. The other essential element, in my judgment, is that the visitor is expressly or impliedly to be the sole judge of fact and law within his jurisdiction. In the case of a visitor appointed by the founder of an eleemosynary corporation this is so, whether or not the statutes expressly say so.
   I can see no difference in principle where the judges are acting as visitors; it has been assumed for centuries that the appeal to the judges on fact and law was final. Nor can I see any considerations of policy which should cause us to take a different view and strain to distinguish Page's case, even though Lord Browne-Wilkinson recognised that in this respect the position of a visitor was anomalous (see [1993] 1 All ER 97 at 109, [1992] 3 WLR 1112 at 1125). It would, as Mr Carnwath recognised in his original submissions, be somewhat anomalous for a single judge (or perhaps two or three) to review the decision of three on points of law within their jurisdiction. While it is true that the consequences of disbarment may be much more serious than the loss of a particular employment by a university or other corporation, the system of trial and appeal for a member of the Bar is at least as comprehensive as that applicable to those charged with serious criminal offences, subject only to the limited right of appeal in such cases to the House of Lords. I say at least as comprehensive since although it is not trial by jury, the disciplinary tribunal consists of five members, including a lay member, and for reasons which I shall later develop there is an appeal by way of rehearing before the visitors, both tribunals applying the criminal standard of proof.
   Accordingly, in my judgment the scope of judicial review of the judges acting as visitors is limited in the way described by the majority of their Lordships in Page's case.
   All counsel submitted that if we concluded that the decision of the visitors was amenable to judicial review, this court should determine Miss Calder's application on its merits, though Mr Beloff's primary submission was that we should remit the case to the Divisional Court for that purpose. I can see neither need nor advantage in remitting the case to the Divisional Court. They decided they had no jurisdiction to hear the application on its merits, it was therefore not necessary for them to do so; but the decision as a whole, and not just the jurisdictional912 point, is the subject of appeal to this court. It would be an intolerable burden in time and expense to remit the case to that court when we are fully seised of the arguments on the merits, which were addressed to us on the basis that Miss Calder enjoyed a right of appeal from the visitor's decision. However, in the light of the conclusion that the scope of such review is limited, it is necessary to consider not only the merits of the grounds, but whether those grounds fall within that limited scope.
   There were four grounds advanced in support of the application for judicial review. (1) There was a breach of natural justice by the disciplinary tribunal in that the chairman was a colleague of the complainant and main prosecution witness. (2) The appellant and her counsel had not waived this breach of natural justice. (3) There was no evidence (a) that Miss Calder had misled the court or (b) that she had had an intention to do so. In relation to each of these matters it is said that the visitors erred in law in failing to uphold the appellant's contentions. (4) The visitors misdirected themselves as to the nature of their jurisdiction in that they treated the matter as one of review and not appeal by way of rehearing on the merits.
   Before dealing with these grounds it is necessary to set out in some detail the factual background to the prosecution. Miss Calder was instructed by solicitors called Miles Griffiths Piercey & Co, through their managing clerk, Mr Smith, as counsel on behalf of the plaintiff, Mrs Greenlaw, in an action in the Clerkenwell County Court. The defendant was a Miss Hardy; her counsel was Mr Catchpole. The parties had previously been friends, but had fallen out. The dispute related to a car which had belonged to Mrs Greenlaw. Her case was that she was intending to retire and live in Spain and had agreed to sell a half share in the car to Miss Hardy for £800, to be paid when the latter sold her own car. It was a term of the agreement that Mrs Greenlaw should have exclusive use of the car during such time as she might be in England. She claimed that Miss Hardy had repudiated the agreement by taking the car into her exclusive possession in February 1988 and by not paying the £800. Miss Hardy's case was that it was an outright sale in pursuance of which the car had been delivered to her and registered in her name and that the price of £800 was set off against money owed for secretarial and other services. It was common ground that the agreement was oral.
   At the time this dispute arose in February 1988 Miss Hardy made a complaint to the police in an endeavour to persuade them that the car was hers and not Mrs Greenlaw's. As a result of that complaint Mrs Greenlaw had been asked to attend the police station, which she did accompanied by Mr Smith and Miss Calder. Miss Calder was present by chance, since she was accompanying Mrs Greenlaw and Mr Smith back from some other court in which they had appeared in connection with some quite different case. In the course of the interview Pc Hopper, who had received Miss Hardy's complaint, produced a photostat copy of what purported to be a receipt signed by Mrs Greenlaw. It was a remarkable document. It was a slip of paper about 8 in _ 2 in and was in these terms:

   'I hope this will facilitate establishment of usage. Received in respect of work carried out the sum of £800 for Honda Civic DLX 998Y.
   Yours faithfully,
   [Mrs Greenlaw's signature]
   Mrs. K. Greenlaw
   5/11/87.'
913
Mrs Greenlaw, when she saw it, said it was a forgery. It certainly looked like it. The police would not surrender the copy. Pc Hopper said that Miss Hardy had retained the original. Mr Smith made a note of the contents of the document and Miss Calder looked at it. She too thought it was a forgery.
   The case came on for trial on 3 April 1989 before Mr Platt sitting as an assistant recorder at Shoreditch County Court. There had been discovery and inspection, but the original 'receipt' had not been disclosed by Miss Hardy or her solicitors. The case was adjourned to 5 April. By the end of that day the plaintiff's case was closed. It was adjourned to 17 April. Meanwhile efforts had been made by the plaintiff's solicitors to trace Pc Hopper and the photostat copy of the receipt. Pc Hopper had left the police and was in Wales and the copy could not be traced. Mr Smith had not been present at court on 3 and 5 April, however he had a conference with Miss Calder on about 13 April and reminded her that he had a note of the contents of the receipt. By 16 April it was clear that neither Pc Hopper nor the photostat could be at court the next day. Miss Calder was extremely anxious to cross-examine Miss Hardy about the receipt. If Miss Hardy had tried to put forward a bogus receipt, it would clearly have a very damaging effect on her credibility and since there was a total absence of documentary evidence and no witnesses, this was of crucial importance. Miss Calder decided that in order to facilitate her cross-examination it would be more effective to show Miss Hardy a copy of the receipt which contained the peculiar language in which it was couched. Accordingly she typed out on a sheet of paper the words of the receipt and the date, though she omitted to include Mrs Greenlaw's name. Next day at court Mrs Greenlaw saw the document and signed it. However, according to Miss Calder some milk was spilt on it and partly for this reason and partly because she wanted copies to be available to the judge and defence, she asked Mr Smith to make some photostat copies of it, which he did. The photostats were on A4 sheets, with the writing in the top left-hand corner.
   The time came for Miss Calder to cross-examine. She first obtained an admission from Miss Hardy that she had not obtained a receipt for the £800 or services in lieu. She then produced a copy of the document she had made; it was shown briefly to Mr Catchpole and then handed to the witness. It was referred to in the disciplinary proceedings as 'document A'. Miss Calder asked her, 'Have you ever seen anything like this before?' The precise language is important. The defendant immediately admitted that she had. Her explanation was that Mrs Greenlaw had signed a blank piece of paper and told her to type in the words of the receipt, which she had duly done. She expressed surprise at document A, saying that on the original the typing was not all bunched up at the top of the page and that the original was not an A4 sheet but just a small slip. It is plain that in answer to cross-examination by Miss Calder she admitted that she had taken the original receipt to Holloway Police Station during the course of police inquiries about the alleged theft of the car and that the police had taken a photocopy, she retaining the original. She was asked about the extraordinary phrase 'I hope this will facilitate establishment of usage'; and it was put to her that the original receipt was a forgery, which she denied. She said that she had given the original receipt to her solicitors and that they still had it. She said that she had been told by her solicitor that it was of no evidential value because Mrs Greenlaw had signed a blank sheet of paper.
   The original receipt was then produced from the defendant's solicitor's file. It became known as 'document B'. The representative of Miss Hardy's solicitors was interposed to give evidence. He confirmed what he had told Miss Hardy about the evidential value of document B, giving that as the reason for its non-disclosure.
   It is quite plain that he was wrong not to have disclosed it.
914
   It seems that at this stage the assistant recorder asked Miss Calder about the provenance of document A. She said that a photostat of the original receipt (document B) had been shown to her and Mr Smith when they attended the police station. She did not at that stage explain that document A was a copy she herself had made. From this moment onward document A played no further part in the trial for the obvious reason that the original document B had been produced. So it is that the assistant recorder never saw document A at all.
   The case was not completed on 17 April and was adjourned to 21 April. During the adjourned period a number of things happened. First, Mrs Greenlaw traced a letter which she had written to the Haringey Borough Council about a planning matter; the letter had been typed by Miss Hardy. The last line of the letter, above Mrs Greenlaw's signature was, 'I hope this will facilitate establishment of usage.' Secondly, Miss Calder and Mr Smith were anxious if they could to have a handwriting expert examine the signature on document B, so they tried to get hold of it. They went to the defendant's solicitors and spoke to the managing clerk; he did not have it; he was asked for a photocopy; he asked, did they not have a photocopy?; whereupon Miss Calder explained that document A was a copy made by her. They were given a photocopy.
   The plaintiff's advisers wanted to obtain an adjournment, so that the signature on document B could be tested. Miss Calder telephoned Mr Catchpole to tell him of this; she also asked him if he had the original of document B, he did not. She then explained to him that they had been to see the defendant's solicitors, who had evidently thought document A was a photostat of document B. She explained to Mr Catchpole that it was not; it was a copy made by her. The plaintiff's advisers did not succeed in getting hold of document B because it was on the file in the possession of the assistant recorder.
   When the case came on again on 21 April Miss Calder's application for an adjournment was refused. She then explained to the assistant recorder that document A had been made by her in the circumstances I have described. She did so because she thought he might have been under the same misapprehension as the defendant's solicitor and Mr Catchpole; it seems that he had been. The case was concluded that day. The assistant recorder was not impressed by the attack on Miss Hardy's credibility based on document B; he gave judgment for the defendant.
   On 25 April 1989 he wrote a letter to the Professional Conduct Committee of the Bar Council, making a complaint of professional misconduct against Miss Calder. The nub of his complaint was that as a result of what had taken place on 17 April he was-

   'left with the clear impression at the end of that day's hearing that the piece of paper Document "A" which Miss Calder had shown to the witness was either the original photocopy taken by the police or a further photocopy of that document.'
   The matter was investigated; written accounts were obtained from Mr Platt (in addition to his full account in the letter of 25 April), Mr Catchpole, Mr Smith and Miss Calder. In due course she was charged with two offences of professional misconduct contrary to paras 3.2(c) and 3.3 of the Code of Conduct of the Bar of England and Wales.
   The particulars of charge 1 were:

   '... on the 17th day of April, 1989, whilst instructed as Counsel for the Plaintiff in the matter of Greenlaw v. Hardy, at the Clerkenwell County Court, used in her cross-examination of the Defendant a document, which915 purported to be a photocopy of an original receipt, whereas in fact the said photocopy had been manufactured by her, and failed to explain properly or at all to the Court the true provenance of the said photocopy, thereby misleading the Court which said conduct was prejudicial to the administration of justice and is a serious failure to comply with the duties set out in Paragraph 3.2(c) of the Code of Conduct for the Bar of England and Wales in force at the material time.'
   Although the charge as framed does not contain the words 'dishonestly or knowingly misleading the court', it was common ground at all stages of the proceedings that this was a necessary ingredient, thereby reflecting the duty set out in para 13.4.1(f) of the code, which provides:

   'A barrister is bound ... to assist the Court in the fair administration of justice, and not knowingly to deceive or mislead the Court.'
   The second charge was dismissed by the disciplinary tribunal and we are not concerned with it.
   The case came on for hearing before the disciplinary tribunal on 8 October 1990. The chairman was Judge Goldstein. Miss Calder was represented by Mrs Grindrod QC; by this time Mr Platt had become Mr Registrar Platt.
   The first two grounds of the application, namely those concerned with the matter of natural justice, relate to what occurred at the outset of the proceedings and are recorded in the transcript, and in a statement from Mrs Grindrod which is before us, as it was before the visitors. In that statement she explained what happened immediately before the tribunal came into the room:

   '... Mr Peter Guest, prosecuting Counsel, told me, in the hearing of Miss Calder that he had just learned that Her Honour Judge Goldstein, the Chairman of the Tribunal, knew Mr Registrar Platt an important witness in the case. Mr Guest said he was worried about it; I expressed considerable concern.'
The tribunal then came in and what took place is set out in the transcript:

   'Chairman. Mrs Grindrod, I must tell you this. We, the tribunal, did not have the remotest idea that Mr Registrar Platt was going to attend as a witness. I have to declare, of course, that I am a regular attender at the Bow County Court, where I sit as the judge, although it is right to say that my knowledge of Mr Registrar Platt is limited to a purely professional one. Mrs Grindrod. We have just been told this in the last few minutes in fact; it does cause me some anxiety. It was known at a very early stage that we would be requiring Mr Registrar Platt.
   Chairman. I see, it was the defence that asked for him. Mrs Grindrod. Yes, indeed. It was at the first of the preliminary hearings that it was made clear that there are issues of fact.
   Chairman. We were wondering amongst ourselves how far at the end of the day the evidence of Mr Registrar Platt, although important, any knowledge I may have of him is going to affect that, but you must be the judge of that. Mrs Grindrod. There will be matters which I shall have to put to Mr Registrar Platt as to ...'
   Chairman. Do not worry about that. Mrs Grindrod. ... whether this happened or that happened or whether he was properly paying attention to what was happening, which can only be seen as some sort of criticism.
   Chairman. Again, you need not worry at all because my colleagues and I916 have our own views about the whole hearing in itself. Obviously if you do object we will have to consider it seriously and of course the consequences ... Mrs Grindrod. Are rather horrendous.
   Chairman. Yes. Mrs Grindrod. Rather worse than a British Rail breakdown. May I have a minute to talk to Miss Calder?
   Chairman. Yes.'
The tribunal then withdrew so that Miss Calder could discuss with Mrs Grindrod whether she should ask for a different tribunal. I refer again to Mrs Grindrod's statement. She says she understood that when the chairman spoke of 'the whole hearing', he was referring to the hearing that was about to begin. A careful analysis of what was said shows that she must have been mistaken in this, it must have been a reference to the hearing in the county court.
   Mrs Grindrod's statement continues:

   'As we left the room Mr Guest remarked "That looks like an indication". I agreed with him. Miss Calder also agreed and we decided not to seek the fresh tribunal to which we would, in my view, have been entitled. I understood the judge's words to mean that the judge and his colleagues had formed a view which was not unfavourable to Miss Calder. By this I do not mean that I understood they had necessarily decided to acquit altogether, but that at the very least they were not taking a very serious view of the matter. In the light of the result and the sentence of disbarment, I consider that we were misled by the judge's remarks. Had he not spoken as he did we would have sought a different tribunal ... I should add that I was influenced by my understanding of the judge's remarks to the extent that I remained confident until a very late stage that the tribunal was not taking a very serious view of the matter and my conduct of the case may well have reflected this.'
The tribunal returned and Mrs Grindrod said that they were content to proceed.
   The circumstances in which an adjudicator is disqualified from sitting to determine an issue were set out in the judgment of Bingham LJ in R v Crown Court at Bristol, ex p Cooper [1990] 2 All ER 193 at 200, [1990] 1 WLR 1031 at 1039 as follows:

   '... where (1) he is affected by actual bias that is he is for any reason incapable of approaching the issue with the impartiality which his office demands, or (2) he is affected by imputing bias, that is the relationship between the adjudicator and the applicant or between the adjudicator and the subject matter of the dispute is such as to create an evident risk that the adjudicator has been, or will in the future be, incapable of acting impartially (see Bremer Handelsgesellschaft mbh v Ets Soules & Cie [1985] 1 Lloyd's Rep 160 at 164; affd [1985] 2 Lloyd's Rep 199 at 201, CA), or (3) although the case does not fall within (1) or (2), the adjudicator himself feels that his relationship with the applicant or the subject matter of the dispute might prejudice his ability to approach the issue with proper impartiality, or (4) a reasonable and fair-minded person sitting in court and knowing all the facts could have a reasonable suspicion that the adjudicator would not be able to give the applicant a fair hearing.'
   There is no suggestion here of actual bias. But Mr Beloff submits that the case falls squarely within Bingham LJ's categories (3) and (4).
   Mr Horgan for the Bar Council submits that the case does not fall within (3). He says that the chairman was only telling the parties the facts and that by so917 doing he was not indicating that he felt the relationship might prejudice his ability to approach the case with proper impartiality, but merely that if Miss Calder took objection, the tribunal would have to consider whether it was proper to continue. And in effect Mr Horgan submits that there was nothing in the relationship as described by the chairman to disqualify him.
   Mr Horgan submits that the case does not come under the fourth category described by Bingham LJ. He points out that close friends often appear against each other as counsel and very frequently one of the counsel in a case is well known to the judge.
   I cannot accept either of these submissions. The relationship between one of relatively few registrars and judges of a county court, albeit only professional, is a close one. In this case Mr Platt was not only the principal witness but the complainant. One of the crucial issues in the case, as I shall shortly discuss, was whether he was misled by what Miss Calder did or was under a misapprehension of his own making. Mr Horgan accepted, rightly in my judgment, that Judge Goldstein would not have dreamt of sitting as a judge in a civil case in which Mr Platt was a party. That is reflected in CCR Ord 4, r 7(1), which provides that if the judge or registrar (now district judge) is a party to an action, it shall be commenced not in the court where he sits, but in the nearest convenient court. But Mr Horgan sought to draw a distinction between a party to a civil action who has something to gain and a witness in a criminal prosecution who is not interested in the outcome of the proceedings. I do not agree that that is a valid distinction where the witness is the complainant on whose account the whole prosecution is based. It is idle to pretend that the complainant in a criminal trial is uninterested in the result. It may be expected that a judicial officer who is a complainant in a professional conduct prosecution will be more detached, but he would be less than human if he was totally unconcerned.
   So the question is whether Miss Calder waived what was otherwise a breach of natural justice. Mr Beloff accepted that there could be a waiver here, though he wished to reserve for argument in a higher court the question whether it was possible to waive a right of natural justice. He submits however that there was no true waiver because Miss Calder and Mrs Grindrod were misled by what the chairman said into thinking that the tribunal were favourably disposed to Miss Calder.
   The visitors rejected this submission. They did so because they held that Mrs Grindrod's construction of what the chairman said as referring to the hearing that was about to begin was unreasonable and that it was clear that the chairman was saying no more than that the tribunal would not be surprised if there were some criticisms of the assistant recorder which had to be elicited during the course of the hearing, particularly in relation to the conduct of the county court proceedings.
   While I accept that on careful analysis of the transcript the reference to 'the whole hearing' must be to the county court hearing, I do not think this was necessarily so apparent to anyone merely hearing it, or that it can be said that Mrs Grindrod's interpretation was so unreasonable that she was not entitled to entertain it, which she says she did. Moreover it does not seem to me to matter whether the reference was to the county court proceedings or the hearing about to begin. For my part, I think it is far from clear that the chairman was merely saying that the tribunal would not be surprised if some criticisms of the assistant recorder had to be elicited in the course of the hearing, if for no other reason than that it is inconsistent with the visitors' construction that the reference was only to the county court proceedings.
918
   In my judgment, the chairman's remarks are at best ambiguous. I consider that many experienced counsel would take them to be an indication favourable to Miss Calder as to the preliminary view which the tribunal had formed of the strength of the case against her. That is how both Mr Guest and Mrs Grindrod took them; and for my part, so would I. Having regard to the strength of the case against her, to which I shall shortly come, it is not a view which could possibly be described as unreasonable.
   Accordingly I respectfully disagree with the views of the visitors on this point. But is this ground one upon which the visitors' decision can be reviewed? If the breach of natural justice is on the part of the visitors, then there is no doubt that their decision is reviewable: see per Lord Browne-Wilkinson in Page's case [1993] 1 All ER 97 at 109, [1992] 3 WLR 1112 at 1125. But here the breach of natural justice was on the part of the tribunal. The visitors, in my judgment, erred in law in declining to hold that there was such a breach, but such an error of law appears to me to fall within their jurisdiction. However in some cases a breach of natural justice at the trial stage will vitiate the appellate stage. But in Lloyd v McMahon [1987] 1 All ER 1118, [1987] AC 625 their Lordships, albeit obiter, said that where there is a full appeal by way of rehearing on the merits, that will normally cure procedural error in the tribunal appealed from. In that case there was a statutory appeal to the High Court from the decision of the district auditor. Lord Keith of Kinkel said ([1987] 1 All ER 1118 at 1157, [1987] AC 625 at 697):

   'The relevant rules of court enable a rehearing of the broadest possible scope to take place. Evidence may be given on oath, which is not possible before the auditor, and there is no limit to the further material which may be introduced so as to enable the whole merits to be fully examined. There is no question of the court being confined to a review of the evidence which was available to the auditor. In the circumstances, it would be quite unreasonable and not in accordance with the intendment of the enactment to hold that the court, where an issue is raised as to the fairness of the procedure adopted by the auditor, is confined to a judicial review species of jurisdiction so as to have power only to quash or affirm the auditor's certificate without entering on its own examination of the merits of the case. No doubt there may be cases where the procedural defect is so gross, and the prejudice suffered by the appellant so extreme, that it would be appropriate to quash the auditor's decision on that ground. But in my opinion the court has a discretion, where it considers that justice can properly be done by its own investigation of the merits, to follow that course.'
   If the appeal to them was by way of a review only, as opposed to an appeal by way of rehearing, in my judgment the visitors should have quashed the decision of the disciplinary tribunal on this ground.
   In this case apparent bias vitiated the decision of the tribunal, but it did not I think prevent the appellant or her counsel fully and properly adducing the evidence they wished or cross-examining the prosecution witnesses. My only reservation is based upon the last sentence of Mrs Grindrod's statement, which I have quoted, to the effect that her conduct of the case may have been influenced by what the chairman said. But Mr Beloff has not submitted to us that there was some other matter which might have been explored or that the evidence was not fully before the visitors. For reasons to which I shall later refer, in my opinion an appeal to the visitors is or should be a full rehearing on the merits and as such it should cure any procedural defect or breach of natural justice on the part of the tribunal, unless it can be said that the evidence was for that reason not fully before919 them, in which case, under the 1991 rules they have power to 'order a re-hearing on such terms as they may deem appropriate' (see r 11(3)).
   I turn then to the third ground relied upon by Mr Beloff, namely that there was no evidence that Miss Calder had (a) misled the court (the actus reus) or (b) that she had any intention to do so (the mens rea). In my judgment the relevant facts can be summarised as follows. (1) Miss Hardy was not and could not have been misled into thinking that document A was a photostat of document B. The typing of document A was amateurish and the size of the paper was quite different, and she was bound to recognise that it was not a facsimile of her document. (2) When shown document A she was immediately reminded of document B, but pointed out the differences to which I have referred. (3) A comparison of the two documents would show at a glance that A was not a photocopy of B. (4) The assistant recorder never looked at document A on 17 April. He said that he did not do so because the witness had denied it and it was not in evidence. This, it seems to me, can only be a reference to the points made by Miss Hardy referred to in (1), since she immediately made reference to the original receipt document B. (5) Mr Catchpole did not compare documents A and B, he merely had a brief look at document A as it was handed to the witness; his solicitor does not seem to have seen it at all. But there was nothing to prevent them seeing it, or indeed asking for a copy. (6) Once document B was produced, document A was of no more interest or materiality, since the best evidence was now available. For this reason neither the assistant recorder nor Mr Catchpole had any occasion to look at document B. (7) As soon as Miss Calder appreciated that there might be a misapprehension as to the precise nature of document A, that it was a photocopy and not a copy made by her, she told first the solicitors, then Mr Catchpole and then the assistant recorder at the first opportunity she had, what the position was. (8) That the assistant recorder was under the misapprehension that document A was a photostat of document B (or a photostat of a photostat) is clear.
   A person may be under a misapprehension because they have been misled by others or because they have come to the wrong conclusion on the material before them. The assistant recorder could not have been misled by document A because he never looked at it; had he done so he would immediately have realised that his impression was mistaken. It is said that he was misled by Miss Calder's conduct and the gist of the charge is her alleged failure to explain properly or at all to the court the true provenance of the document. This can only mean that she failed to say there and then when she produced document A, that it was a copy made by her and not a photostat. It might have been better if she had done so. But her failure can only be criticised if she was under a duty to do so. She could only be under such a duty if she realised that the assistant recorder was under a misapprehension. Why should she appreciate this? Quite apart from the fact that she said in evidence that she did not, I cannot see any reason why she should. Miss Hardy had pointed out the features of difference, which the assistant recorder himself described as denying the document. Once document B was produced there was no longer any occasion to pay the slightest attention to document A, and why the assistant recorder troubled to do so I do not find easy to follow. It may well be because he thought that Miss Calder should not have used any sort of copy, photostat or otherwise, for the purpose of cross-examination. He seems to have thought that the only proper way of dealing with the matter was to apply for the original by way of specific discovery. If that is what he thought, he was plainly wrong. Document B should have been disclosed; Miss Calder was entitled to assume that because it was not, the solicitors did not have it and it might well920 have been destroyed by Miss Hardy. In these circumstances it was a perfectly legitimate tactic to cross-examine on the basis of a copy, photostat or other. In my judgment the court was not misled by what Miss Calder did and there is no evidence that it was. The assistant recorder unfortunately jumped to the wrong conclusion about a matter which was of no materiality once document B was produced.
   Equally in my judgment there is no evidence that Miss Calder intended to mislead the court. It is argued by Mr Horgan that such an intention can be inferred from the fact that she typed out document A instead of making it in longhand; that she put the text at the top of the paper in a similar way to the original; that she got it signed by Mrs Greenlaw and she then had photocopies made. But these acts are equally consistent with the absence of any intention to mislead. It would only be proper to draw an inference of intention to mislead if it could be said that there was a duty or obligation to say at the time of production of document A that it was a copy prepared by her.
   In his letter to the Council of the Inns of Court announcing the tribunal's decision the chairman said that they 'unanimously concluded that the defendant had been deliberately dishonest and furthermore had been a most unsatisfactory witness'. For the reasons I have given there was in my judgment no evidence upon which the tribunal could properly have found deliberate dishonesty. It is easy to see how the tribunal reached the conclusion that Miss Calder was an unsatisfactory witness. She completely failed to answer questions succinctly and to the point. Her answers were often rambling and full of irrelevancies. But that is not to say that she was an unreliable witness as to the accuracy of her recollection. There was in truth very little dispute as to the facts; still less that she was a dishonest witness. The case should have been stopped at the conclusion of the prosecution evidence when Mrs Grindrod made a submission that there was no case to answer on either charge.
   In my judgment therefore, assuming that the visitors were correctly approaching the matter as one of review, they should have quashed the conviction on this ground. In fact they took the view that it was open to the tribunal to find as it did on the facts and they referred to the fact that they had described Miss Calder as an unreliable witness, observing that having read the transcript it was possible to see how the tribunal might well have reached that conclusion. For the reasons I have given, I am of the opinion the visitors were in error.
   Mr Beloff submitted that where there was no evidence to support the conclusion of a tribunal, that undermined the tribunal's jurisdiction; accordingly he submitted both the tribunal in making a finding adverse to Miss Calder and the visitors in upholding it, exceeded their jurisdiction with the result that the visitors' decision is reviewable within the narrow limits of Page's case. He relied on a dictum of Lord Diplock in Mahon v Air New Zealand Ltd [1984] 3 All ER 201 at 210, [1984] AC 808 at 820-821. In relation to the rules of natural justice he said:

   'The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision on evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made. The technical rules of evidence921 applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.' (Lord Diplock's emphasis.)
   But in my view it is plain from the speech of Lord Browne-Wilkinson in Page's case that the concepts of jurisdiction and natural justice in this context should be narrowly defined. It seems to me that the failure of the visitors to rule that there was no evidence before the tribunal was not so much an error which undermined their jurisdiction as an error of law within the jurisdiction of the visitors, just as a failure of a Crown Court judge to rule that there is no evidence to go to the jury is an error of law within his jurisdiction.
   I come then to the final ground of appeal, namely that the visitors misdirected themselves as to the nature of their jurisdiction in that they treated the matter as one of review rather than appeal by way of rehearing on the merits. It was not contested before us that the proper approach was that of an appellate court rehearing the case on its merits, such as is the position of the Court of Appeal on appeal in a civil case from the decision of a judge alone. Although the point has never fallen to be decided, I agree that this is the correct approach. All the cases dealing with the judges' jurisdiction as visitors refer to it as an appeal to the visitors. There is no warrant for thinking that they limited themselves to the circumstances in which the prerogative writs of prohibition, mandamus or certiorari would lie, that being the foundation of the judicial review jurisdiction. The language of the Hearings before the Visitors Rules 1991 is appropriate for an appeal and not a review only. Thus the appellant is referred to as such and not as an applicant (r 2(2)). The grounds of appeal are against the finding and the petition should refer to the evidence relied upon (rr 5 and 7(2)(e)). The visitors may either allow the appeal or order a rehearing (r 11(3)). They are not limited to quashing the order. Like any other appellate court, the visitors do not as a rule hear evidence from witnesses unless they give leave under r 10(6) and (7). Accordingly they should adopt the same approach to findings of fact made by the tribunal as the Court of Appeal do to findings of the trial judge: see Yuill v Yuill [1945] 1 All ER 183, [1945] P 15, Watt v Thomas [1947] 1 All ER 582, [1947] AC 484 and Powell v Streatham Manor Nursing Home [1935] AC 243, [1935] All ER Rep 58.
   Mr Beloff submits that the visitors did not adopt this approach, but treated the case as one of review. I have no doubt that this submission is correct. The key passage in the judgment of the visitors comes where after summarising the submission of both Sir William Goodhart QC for Miss Calder and Mr Horgan for the Bar Council Kennedy J said:

   'It will be clear from this somewhat lengthy decision that we have anxiously considered the whole of the facts of this matter and it seems to us that it was plainly open to the tribunal to find as it did on the facts.'
   This is the language of review, not appeal. Moreover although the visitors reminded themselves that the tribunal had to adopt the criminal standard of proof, they nowhere directed themselves that they had to adopt the same standard, which such experienced judges would almost certainly have done if they thought the appeal was a rehearing. The fact that there were submissions made on the grounds that the tribunal's decision was in breach of natural justice may have922 misled the visitors into thinking that the whole appeal should have been by way of review only. Unless the breach of natural justice in some way affected the evidence that was adduced, as opposed to the decision, it had little to do with the visitors' appellate jurisdiction.
   In the result the visitors failed to exercise their full jurisdiction, but instead exercised only a restricted one. That is a matter which a court exercising the limited scope of judicial review should correct by an order of certiorari to quash the decision of the visitors and an order of mandamus directed to them to exercise their full jurisdiction and hear and determine the appeal.
STAUGHTON LJ. Each of the two issues of law which arise in these appeals concerns the nature of the rules which govern the conduct of barristers. Are they part of the common law of England which may be declared-but not changed-by the courts? Or a private and domestic system of rules, made and changed from time to time, initially by the benchers of the Inns of Court and later by the Bar, through (since 1883) the Bar Committee and the General Council of the Bar (1894), under the control of the judges as visitors?
   In order to illustrate the problem, I list some examples of rules which have been in force for all or part of the time since 1908. (i) A barrister is under an obligation to accept a brief in the courts in which he professes to practice at a proper professional fee, unless there are special circumstances which justify his refusal to accept a particular brief (2 Halsbury's Laws (1st edn) para 659; cf Boulton Conduct and Etiquette at the Bar (6th edn, 1978) p 22). (ii) The practice of a barrister is a purely personal one, and does not admit of anything in the least degree resembling partnership (Halsbury's Laws para 617; Boulton p 6). (iii) A bargain that fees shall be paid to counsel according to the event of a suit is illegal, and exposes both the parties to the penalties of maintenance (Halsbury's Laws para 656). (iv) It is contrary to professional etiquette for a barrister to do, or allow to be done, anything for the purpose of touting or with the primary motive of personal advertisement (Boulton p 55). (v) King's Counsel, except when appearing for a plaintiff in forma pauperis, cannot hold a brief for the plaintiff on the trial of a civil cause without a junior, and in most other cases a King's Counsel must have a junior briefed with him (Halsbury's Laws para 651; Boulton p 64). (vi) Where the costs of two counsel are allowed, the brief fees of the leader and junior generally stand to one another in the proportion of three to two or five to three (Halsbury's Laws para 711). What later became the two-thirds rule was abolished in 1966 (Boulton p 53). (vii) A barrister who is specially retained, or who 'goes special' on a circuit which is not his own, must have a special fee, and must have some member of the circuit briefed with him (Halsbury's Laws para 613; Boulton p 82).
   Many of the rules in that sample are not in force today. To modern eyes some have the appearance of restrictive practices for the benefit of the profession, and not to be at all concerned with the public interest or the proper administration of justice; but it may once have been thought otherwise. On the other hand my first example, the so-called 'cab rank' rule, has a different complexion.
   One rule that I have not listed so far has attracted particular attention; that is the rule as to barristers receiving instructions from a solicitor rather than directly from a client. In Doe d Bennett v Hale (1850) 15 QB 171 at 182-183, 186, 117 ER 423 at 427-429 Lord Campbell CJ, delivering the judgment of the court, said:

   'There certainly has been an understanding in the profession that a barrister ought not to accept a brief in a civil suit, except from an attorney; and I believe that it is for the benefit of the suitors, and for the satisfactory administration of justice, that this understanding should be generally acted923 upon. But we are of opinion that there is no rule of law by which it can be enforced ... This being a matter of procedure, the Judges of their own authority might, according to their view of what was fit, have laid down a general rule determining under what conditions and restrictions barristers should be permitted to plead before them, and have pre-audience: but no such rule is to be found.'
Later he said that barristers-

   'are at liberty, under the control of the Courts, to lay down conditions upon which, for the public good, their services are to be obtained.'
   Later developments in this context are recorded in Re T (a barrister) [1981] 2 All ER 1105 at 1108-1110, [1982] QB 430 at 434-436. In 1888 the Attorney General, Sir Richard Webster QC, had expressed the view, in a letter which was published in the Law Times, that in contentious business a barrister should not act or advise without the intervention of a solicitor; but he did not consider that there was any such rule generally for non-contentious business. But in 1955 a subsequent Attorney General, Sir Reginald Manningham-Buller QC, said at the Annual General Meeting that it was wrong for a barrister to do non-contentious work for fees in the course of his profession without instructions (sc from a solicitor), subject to some exceptions.
   Delivering the reasons of the visitors in Re T (a barrister) Whitford J said ([1981] 2 All ER 1105 at 1109, [1982] QB 430 at 436):

   '... we consider that the rules of professional conduct of the Bar (as of most other professions) are rules which are, and are properly, determined by the profession itself in the light of tradition and experience, changing and developing over the years as circumstances change. If any rule acceptable to the Bar were held by the judges (in whatever capacity) to be contrary to public policy or to be liable to undermine the proper administration of justice, that rule would of course be ineffective, but subject to that the responsibility for formulating rules of professional conduct rests with the Bar through its appropriate procedure. Rules so formulated do not require the imprimatur of the judges as a condition of their validity.'
Whitford J then cited the second passage from the judgment of Lord Campbell CJ which I have already set out.
   When that case was heard the Bar had recently adopted a code of conduct, on 15 July 1980. The code professed to be, and at that stage largely was, a restatement of existing rules. It provided in para 2:

   'Amendments and additions to this Code may be made by the Bar in General Meeting or alternatively by resolution of the Bar Council, which shall be operative forthwith but may be revoked or amended by the Bar in General Meeting.'
That too was codification, representing the previous practice by which the Bar Council made rulings from time to time and these were included in the annual statement, which was approved or amended at the annual general meeting. The 1990 edition of the Code of Conduct of the Bar vests legislative power in the Bar Council alone.
   From this history I draw the following conclusions. (1) The rules governing the profession of barrister are, with some possible exceptions, not part of the general law of England and Wales. They can be and are changed from time to time. For example, direct access to counsel, without the intervention of a solicitor, 924is now permitted in certain circumstances. (2) Since at least 1850 the power to change those rules has lain with the authority from time to time recognised as such by barristers-the Attorney General as leader of the Bar, the Bar Committee the Bar Council or a general meeting of the Bar. (3) However, that power is subject to the control of the judges as visitors. In that capacity the judges may, if they think it proper, decline to enforce a rule; and it may be that they have power to enforce a rule which the Bar has not adopted. (4) The rules of conduct thus emerging form a private or domestic system of law for the purposes under consideration in these appeals.
   More recently, there has been statutory recognition of the Bar's disciplinary system on two occasions. Sections 41 to 42 of the Administration of Justice Act 1985 (inserted in 1988) provide that a disciplinary tribunal, or the judges as visitors, can hear and determine legal aid complaints; and that a disciplinary tribunal may cancel or reduce fees otherwise payable under legal aid. When exercising those powers, a tribunal is administering the law declared by Parliament. But I would regard that as an exceptional case; it does not lead to the conclusion that disciplinary tribunals, or the visitors, are no longer administering a private or domestic system.
   The Courts and Legal Services Act 1990, Sch 4 provides that the rules of conduct of an authorised body (which includes the General Council of the Bar) must be approved by the Lord Chancellor and the designated judges, before it can confer a right of audience on its members, and by s 31 the General Council of the Bar is deemed to have had in force rules of conduct which had been properly approved, at the commencement date for s 27. That too does not, in my judgment, convert the Code of Conduct of the Bar into general law, as opposed to a private or domestic system. It merely makes the approval of the code by the Lord Chancellor and designated judges an essential condition which must be fulfilled before barristers have a right of audience.
The Supreme Court of Judicature Act 1873
   Against that background, I agree with Sir Donald Nicholls V-C and Stuart-Smith LJ that the jurisdiction of the judges as visitors came within s 12 and not s 16 of the 1873 Act; and that a similar result followed under the 1925 and 1981 Acts. Although the two sections used different wording, it seems to me that they were intended to be mutually exclusive. In s 12, 'any duty, or any authority or power, not incident to the administration of justice in any Court' is to be contrasted with the subject matter of s 16:

   '... the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court or Chambers, or elsewhere, when acting as Judges or a Judge, in pursuance of any statute, law, or custom, and all powers given to any such Court, or to any such Judges or Judge, by any statute; and also all ministerial powers, duties, and authorities, incident to any and every part of the jurisdictions so transferred.'
Section 12 conferred on every judge of the High Court the 'Extraordinary duties of Judges of the former Courts', as the sidenote says. Section 16, by contrast, conferred on the High Court the jurisdiction, powers, duties and authorities with which it dealt.
   For the reasons given by Sir Donald Nicholls V-C and Stuart-Smith LJ, I consider that the jurisdiction of the judges as visitors was within s 12; it was not 'incident to the administration of justice in any court', but rather a part of the administration925 of the Inns of Court and the profession of barrister. This jurisdiction was not, in terms of s 16, exercised 'when sitting as judges or a judge', but in an extra-judicial capacity, although it is a necessary qualification of the visitors that they must be judges.
   It follows that I cannot agree with the decision of the Divisional Court, when it held that a decision of the visitors was not subject to judicial review but could be brought on appeal to the Court of Appeal.
Page v Hull University Visitor
   I also agree that decisions of the judges as visitors may be challenged by way of judicial review, but only on the limited grounds available in the case of visitors to charitable corporations. The law ought not to extend to barristers any more favourable treatment than is given to university lecturers. And the statutes of the [University of Hull are, to say the very least, no more private or domestic than the Code of Conduct of the Bar.
   The limited grounds that are available are those referred to in the speech of Lord Browne-Wilkinson in Page v Hull University Visitor [1993] 1 All ER 97 at 109, [1992] 3 WLR 1112 at 1125:

   'Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction (in the narrow sense) or abused his powers or acted in breach of the rules of natural justice.'
Mr Persaud's case
   In this instance there was an order for a preliminary issue, which the Divisional Court decided against Mr Persaud by holding that the High Court had no jurisdiction to hear an application for judicial review of a decision of the judges as visitors to the Inns of Court. In my opinion that conclusion was wrong, and the case should be remitted to the Divisional Court to hear and determine the application. We have not ourselves heard anything of the facts, and are in no position to express any view of the merits.
Miss Calder's case
   Here we heard full argument on the merits; and as the Divisional Court dismissed Miss Calder's application instead of merely deciding a preliminary issue, we are entitled to consider what other order should have been made.
   I wholly and gratefully adopt the account of the facts given by Stuart-Smith LJ. I also agree with his conclusion, but wish to add a few words on two points.
   The first charge against Miss Calder was of a breach of para 3.2(c) of the Code of Conduct, which obliges a barrister not to engage in conduct 'which is prejudicial to the administration of justice; which is dishonest or otherwise discreditable to a barrister ...' The particulars were that she had used in cross-examination a document which purported to be a copy of an original receipt, but which was manufactured by her, 'thereby misleading the court.'
   The charge might have been laid under para 13.4.1, which provides that a barrister is bound 'not knowingly to deceive or mislead the Court'. If that was the true complaint, surely it would have been simpler to say so. The tribunal would then have been in no doubt as to the issue which it had to try.
   However, when one turns to the transcript of proceedings before the disciplinary tribunal, it is by no means clear that the prosecution case was limited to knowingly misleading the court. Counsel concluded his submissions with these words:
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   'In my respectful submission, it follows from that that at the very best, and I choose that expression, one employed here tactics which are not acceptable, but the tribunal, in my submission, could find that the deception was intended to go substantially further. That is, in my submission, a view, an inference, which could reasonably be formed when one looks at the face of document A, and if, indeed, Miss Hardy had not produced document B, as was expected, in my submission, then one goes on to ask the question, what inference does one draw from the typing and from the signature? That is all I wish to say.'
   Evidently the answer to counsel's question, which he invited the tribunal to draw, was that Miss Calder intended to put document A before the assistant recorder as a photocopy of the original receipt, and to make submissions on it.
   The tribunal accepted that suggestion. The chairman said:

   '... I am afraid that unanimously we feel that Mr Guest's second point rather than the first, as to the motive behind this, is the one that we are quite satisfied is the way we shall approach it. We think this was a very blatant piece of fabrication in order to deceive.'
   I find that aspect of the case unsatisfactory, for a number of reasons. First, it was never put to Miss Calder in plain terms in cross-examination that she intended to rely on document A as a genuine photocopy of the original, and would have done so if the original receipt had not been produced. The nearest that counsel came to it was:

   'Q. Do you accept that a reasonable tribunal might reasonably infer that the document you handed up was a copy of the original receipt; it was intended to be, was it not? A. The thing is I did not hand it up ...'
   Secondly, I have considerable doubt as to whether the tribunal could, on the evidence and in the circumstances, be satisfied so that it was sure that Miss Calder intended to rely on document A as a genuine photocopy.
   Thirdly, if the charge was to be based on what Miss Calder intended to do, rather than what she actually did, it should have said so. 'Thereby misleading the court' in the particulars did not suggest that there was also an intention, if the original was not produced, to mislead the court further by relying upon document A as a genuine photocopy.
   But, fourthly, it is open to question whether a wicked intention is by itself an infringement of the Code of Conduct. The code does not expressly deal with inchoate offences such as attempt and conspiracy; it may be that they can be found there by implication, or under another name. But it is going a good deal further to say that under this private and domestic law sanctions can be imposed for a mere intention to act dishonestly.
   That aspect of the case is, as I have said, unsatisfactory. But I need not consider it further, as I agree with Stuart-Smith LJ that there was no evidence on which the tribunal could convict Miss Calder on the charge which she actually faced, of dishonesty which misled the court.
   The second point concerns the effect of a breach of the rules of natural justice by the disciplinary tribunal, and whether that was cured by the appeal to the visitors, which was (or rather should have been) a rehearing on the record. In Lloyd v McMahon [1987] 1 All ER 1118, [1987] AC 625 it was said that a full appeal by way of rehearing on the merits will normally cure procedural error in the tribunal appealed from. I have some hesitation in accepting that the error was927 cured in the present case. An appellate tribunal which does not rehear the evidence will inevitably attach some weight to the conclusions of the tribunal appealed from. If that tribunal was affected by bias-whether actual, apparent or imputed-the defect is only cured if there is a full, careful and independent review of the evidence by an appellate tribunal, followed by its own findings of fact. If that does not happen, it seems to me arguable that the breach of the rules of natural justice remains effective; and is a ground for judicial review. But then there is the question whether it is within the more limited grounds of judicial review in the case of visitors under Page v Hull University Visitor. There has been no suggestion of any breach of the rules of natural justice by the visitors in this case. Was their decision infected by the breach before the disciplinary tribunal? And if so, is that a ground of judicial review within Page's case?
   I need not express a concluded view on those questions, as I agree with Sir Donald Nicholls V-C and Stuart-Smith LJ that the decision of the visitors must in any event be quashed on the ground that they misunderstood the scope of their task.
   Greenlaw v Hardy occupied four days in the county court, which seems an inordinate length of time for determining a simple issue as to the terms of an oral agreement. There may well have been undue prolixity and failure to concentrate on the material points, so as to make the assistant recorder's task very difficult. But I do not consider that there was professional misconduct.
Appeals allowed.
8 June. The Appeal Committee of the House of Lords (Lord Templeman, Lord Goff of Chieveley and Lord Slynn of Hadley) refused Mr Persaud leave to appeal.
Celia Fox Barrister.
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