Damian McCarthy v Bar Standards Board
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 02 May 2017 |
| Neutral Citation | [2017] EWHC 969 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 May 2017 |
| Docket Number | Case No: CO/3286/2016 |
[2017] EWHC 969 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/3286/2016
Marc Beaumont (instructed by Weightmans LLP) for the Appellant
James Counsell QC (instructed by the Bar Standards Board) for the Respondent
Hearing date: 5 April 2017
Approved Judgment
On 9 June 2016, after a 4 day hearing, a Disciplinary Tribunal of the Council of the Inns of Court ("the Tribunal") found two charges of professional misconduct proved against the Appellant, who was a barrister in practice at Cloisters chambers. The Tribunal imposed a sanction of disbarment on the first charge, with no separate penalty on the second charge. The Appellant appealed against the Tribunal's decisions on misconduct and sanction.
The members of the Tribunal were: HH Judge Veronica Hammerton (Chairman); Mr Richard Hutchings (Barrister Member); Ms Jacqueline Thomas (Barrister Member); Mr Roland Doven (Lay Member); Ms Lara Fielden (Lay Member).
History
The charges arose from the Appellant's actions in relation to Employment Tribunal proceedings in 2008 in which he acted for Ms Tharapatn on a public access basis. This was the Appellant's first public access case that progressed to a final hearing and resolution. Under Rule 6 of the Public Access Rules then in force, barristers were required to send letters to lay clients before items of work were undertaken, setting out the terms of service, information as to fees payable, and complaints procedures. These were commonly referred to as "Rule 6 letters".
After the conclusion of the Employment Tribunal proceedings, a dispute arose between the Appellant and his client and her husband Mr Timothy Aron concerning the amount of fees payable. Ms Tharapatn made a complaint to the Bar Standards Board ("BSB"). In the course of its investigation, the BSB asked the Appellant to supply copies of his Rule 6 letters, and he duly produced four letters, which he said he had sent to his client in June and July 2008. Ms Tharapatn and Mr Aron denied receiving any Rule 6 letters and accused him of forging them.
The charges against the Appellant were as follows:
" Charge 1
Statement of Offence
Professional misconduct contrary to paragraph 301(a)(i) and pursuant to paragraph 901.7 of the Code of Conduct of the Bar of England and Wales (8 th Edition).
Particulars of Offence
Damian McCarthy , a self employed barrister in professional practice, engaged in conduct in pursuit of his profession which was dishonest or otherwise discreditable to a barrister contrary to paragraph 301(a)(i) of the Code of Conduct, in that on or about 22 June 2009 in response to a request by the Bar Standards Board ("BSB") for documentation relevant to its investigation into a complaint against Mr McCarthy by his lay client – Ms S Tharapatn – he sent the BSB four client care letters which he falsely asserted were sent to Ms Tharapatn in compliance with the requirements of paragraph 6 of the Public Access Rules when he knew the same were recent creations which had not been sent to his lay client in advance of the work being carried out as was required by the Rules.
Charge 2
Statement of Offence
Professional misconduct contrary to paragraph 401(a)(iii) and pursuant to paragraph 901.7 of the Code of Conduct of the Bar of England and Wales (8 th Edition).
Particulars of Offence
Damian McCarthy , a self employed barrister in professional practice, between 1 July and 1 August 2008 accepted public access instructions and supplied legal services for reward on behalf of a lay client Ms S Tharapatn – without promptly sending her a written communication in compliance with paragraph 6 of the Public Access Rules contrary to paragraph 401(a)(iii) of the Code of Conduct."
These two Rule 6 charges had previously been heard and determined by another Disciplinary Tribunal panel, chaired by HH Judge Crawford Lindsay QC. I shall refer to this as "the previous Tribunal". On 4 February 2011, the previous Tribunal found the two Rule 6 charges proved against the Appellant. On 4 March 2011, the previous Tribunal imposed the sanction of disbarment on both charges. He was also ordered to remit fees in the sum of £5,000 to Ms Tharapatn.
The previous Tribunal also found four other charges proved:
i) Supplying legal services to a public access client without keeping a case record which complied with the rules (admitted and found proved);
ii) Failing to ensure that proper records supporting the fees charged or claimed were kept (admitted and found proved);
iii) Failing to provide his public access client with records or details of the work done (admitted and found proved); and
iv) Failing to deal with a complaint promptly and/or courteously and/or in a manner which addressed the issues raised (not admitted and found proved).
The sanctions in respect of those four charges were fines, reprimands and an indefinite prohibition on accepting or carrying out public access instructions.
The Appellant appealed against the previous Tribunal's findings of professional misconduct on the two Rule 6 charges. There was no appeal against the sanction of disbarment in the event that the findings of guilt were upheld. The Appellant also appealed against the sanction imposed on the other four grounds. His appeal was dismissed by the Visitors to the Inns of Court ("the Visitors") on 25 January 2012. The judgment by Sir Mark Waller, a former Lord Justice of Appeal who chaired the panel of Visitors, stated at paragraph 74 that " the evidence against DM was extremely powerful and accordingly … the verdict of the Tribunal was not unsafe".
The Appellant applied for judicial review of the Visitors' decision on the ground that the Visitors erred in law in upholding the previous Tribunal's decision. The claim was dismissed by the Administrative Court (Moses LJ) on the ground that, despite an error of law by the Visitors, there was " conclusive evidence" (at [38]) of the Appellant's guilt, and so there was no real possibility of an alternative result.
On appeal, the Court of Appeal held that the BSB had acted unfairly and in breach of its obligations under regulation 7(1)(a) of the Disciplinary Tribunal Regulations 2009 by failing to disclose a draft witness statement made by its witness Mr Aron, which differed materially from the final version of the statement which was served, thus potentially undermining his credibility. The previous Tribunal was unaware of the non-disclosure but it formed part of the Appellant's case before the Visitors. Burnett LJ referred to the strength of the evidence against the Appellant. On 20 January 2015, the Court of Appeal quashed the decision of the Visitors and allowed the Appellant's appeal. All consequential matters were remitted to the Visitors for determination.
On 13 July 2015, the Visitors decided that there should be a re-trial of the Rule 6 charges before a fresh panel, rejecting the Appellant's submissions that the lapse of time and the advantage gained by the BSB witnesses would render a fair trial impossible. Sir Stephen Stewart, the High Court Judge who chaired the panel of Visitors, set out a detailed analysis of the evidence against the Appellant, at [9]. He considered the principles established in criminal cases, including R v Graham [1997] 1 Cr App R. 302, at 318, in which the Court of Appeal held that the " [p]ublic interest is generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution can be conducted without unfairness to …. the Defendant". He concluded that it was in the public interest for there to be a hearing of serious allegations made against the Appellant.
The case was reported in the legal press. The BSB issued a press release which was reported in two articles, and became the basis for a further ground of appeal. The article in the Law Society Gazette stated:
" BSB granted retrial after evidence blunder
By Chloe Smith 18 August 2015
The Bar Standards Board has welcomed a decision to allow a case against a public access barrister accused of forging client care letters to be heard again, after he successfully appealed against being disbarred earlier this year.
Damian McCarthy launched a judicial review after he was disbarred in 2011, when it emerged that in 2010 the BSB had failed to disclose a statement by one of the principal witnesses against him ahead of his hearing. The Court of Appeal ruled in his favour, saying the BSB's actions had left McCarthy 'blind to any sense of fairness in the conduct of a disciplinary prosecution'.
The Visitors to the Inns of Court has now ruled that the bar regulator can retry the case.
Commenting on the judgment, Sara Jagger, director of professional conduct at the BSB, said: 'Notwithstanding the history of the case, the BSB remains of the view that Mr McCarthy acted dishonestly and falsified the client care letters during our original investigation.
'As this is a fundamental breach of the integrity expected from all barristers, it is right that this serious disciplinary matter can be re-heard.'
McCarthy had argued that the trial should not be reheard because the delay could affect the reliability of witnesses' memories and because it would give witnesses for the BSB an unfair advantage.
But in his judgment Sir Stephen Stewart said he saw 'no basis' for the argument that McCarthy would be deprived a fair hearing, as both sides would know more than would have been the case at the first hearing and that any impact on the delay could be weighed at a tribunal.
'There is clearly a public interest in there being a hearing of serious allegations made against a barrister,' he said.
Sir Stephen...
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