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Elliot Gold succeeds in High Court appeal to reduce barrister’s suspension

19th January 2021

On 18 December 2019, a disciplinary tribunal suspended a barrister from practice for a period of two years following her admission of two charges of misconduct. Within a year, she was diagnosed with terminal cancer. It was her dying wish to be a full member of the profession upon her death and she appealed the two-year suspension, relying upon the ground of fresh evidence.

Elliot attended the appeal on 7th January 2021, having no more than 24 hours’ notice that the Appellant’s condition had rapidly deteriorated and that the matter had been listed the following day by way of an urgent hearing. In his written judgment, Pepperall J expressly paid tribute to Elliot and his solicitor, Daniel Burke of 3D Solicitors.

Insofar as there was a complicating factor that the Appellant had already brought and discontinued at an earlier appeal, Elliot made submissions on the application of estoppel per rem judicatem, the principle of finality of litigation with respect to judgments in rem as opposed to those in personam, to cases involving the state’s imposition of a disability upon a person in the public interest where it no longer served or was contrary to that interest, the meaning of a “final determination” for the purposes of CPR 52.30, otherwise permitting the re-opening of a decided case, and on the appeal’s substantial merits.

On the Bar Standards Board’s subsequent consent to the setting aside of the order dismissing the previous appeal, for the previous appeal to be restored and for the grounds of appeal to be substituted, the judge accepted Elliot’s submissions that insofar as the tribunal had taken the view that the case did not justify disbarment, it had not intended to disbar the barrister for the rest of her life and that had it known of her terminal illness, it would have taken such matter into account as a mitigating factor in imposing a shorter period of suspension. The court allowed the appeal and reduced the period of suspension to one year, so that it immediately expired. Sadly, the Appellant died two days later, after having been informed of the result.

See the judgment here

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