Damian McCarthy v Visitors to the Inns of Court Bar Standards Board (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 25 October 2013 |
| Neutral Citation | [2013] EWHC 3253 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4904/2012 |
| Date | 25 October 2013 |
[2013] EWHC 3253 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Case No: CO/4904/2012
and
Mr Chris Quinn (instructed by Weightmans Solicitors) for the Claimant
The Defendant was not represented
Mr Paul Nicholls QC and Mr Tom Cross (instructed by Berrymans Lace Mawer) for the Interested Party
Hearing date: 30 th July, 2013
Approved Judgment
The claimant was a barrister. On 4 March 2011 he was found guilty of producing forged documents and subsequently disbarred. By a decision dated 25 January 2012 that decision was upheld by the Visitors to the Inns of Court. He now seeks judicial review of the Visitors' decision.
It is unnecessary for the purposes of this judgment to provide detail of the facts found by the Disciplinary Tribunal and by the Visitors. The allegations of disciplinary offences arose out of a case in which a lay client had engaged this claimant by "Direct Access". By Rule 6 of the Rules relating to the engagement of a barrister in Direct Access, the claimant was required to send to the client a letter setting out the terms and fees on the basis of which he was prepared to be engaged in respect of each piece of work. The claimant was accused of providing legal services under the Direct Access scheme without sending a Rule 6 letter. When complaint was made to the Bar Standards Board he contended that he had done so, contrary to the allegation of his client, and produced four letters which he asserted were Rule 6 letters sent, as required, at the time.
The Disciplinary Tribunal presided over by His Honour Judge Crawford Lindsay QC heard evidence from the claimant's client and her husband and from the claimant. They disbelieved the claimant. They concluded that the documents said to have been sent were forged in the sense that they had been created subsequently. The Visitors, on a detailed review of the contemporaneous e-mails between claimant and client concluded, by a majority, that the decision of the Disciplinary Tribunal should be upheld. One member of the Visitors, however, took the view that so grave a breach of natural justice had occurred that it was "fair and reasonable to order a re-hearing". No reasoned decision was given by the minority. But it is on that very basis, breach of natural justice, that this application is brought. These defects in procedure were considered by the Visitors; they concluded that whilst the procedure adopted by the Board was, as they put it, "unacceptable", it did not lead to unfairness.
Prior to the hearing of the charges, the Bar Standards Board was required to serve a copy of the evidence of each witness intended to be called in support of the charges (Regulation 7(1)(a) of the Disciplinary Tribunal's Regulations 2009). The Bar Standards Board made a decision not to comply with that Regulation. By letter dated 27 July 2010 a senior case officer wrote to the claimant's former client who had complained about a number of matters including the absence of Rule 6 letters. The case officer sought to keep her up to date as to the progress of the complaint. Amongst other things he wrote:-
"We have decided that we will not disclose Tim's witness statement till shortly before the hearing date. This will remove the possibility of Mr McCarthy fitting his case around that statement."
The reference to Tim was to the complainant's husband, himself a barrister, who had been heavily involved in the complainant's case and in the subsequent complaint. I shall refer to him as TA since there is every reason why he shall remain anonymous. He is in no position to protect himself. The letter's reference to "Tim's witness statement" was a reference to an unsigned witness statement containing 49 paragraphs detailing the history of engagement and in particular the detail of the process by which the complainant's husband paid Mr McCarthy. There is a note on the witness statement that it was a draft "as at 4 June 2010".
By letter dated 26 August 2010 the senior case officer again referred to the complainant's husband's witness statement:-
"Your husband's witness statement is yet to be signed and served, but we do not anticipate doing so until 28 days prior to the substantive hearing date so as to remove the possibility of Mr McCarthy doctoring his evidence to suit."
The claimant was assisted in the disciplinary proceedings by solicitors. On his behalf, they had agreed directions on 30 June 2010. In particular, they had agreed that the complainant and TA need not put in statements but should attend at the substantive hearing for the purposes of cross-examination. That agreement was reached on the basis that both were to assert that they had never received any Rule 6 letters. It was an agreement made on the part of the claimant's solicitors in ignorance of the fact that by that time a full statement had been obtained from the TA even though it had not been signed and was described only as a draft. The directions provided that 28 days before the substantive hearing, the Bar Standards Board should file and serve any additional evidence upon which it proposed to rely and that Mr McCarthy should himself, by 31 July 2010, provide to the Bar Standards Board copies of statements and documents upon which he wished to rely.
In obedience to that agreement Mr McCarthy filed what the Tribunal described as a substantial witness statement with exhibits detailing his account of his dealings with the complainant and TA. As a result of the agreement, after Mr McCarthy's statement of 158 paragraphs had been served, TA served a signed statement dated 29 October 2010. A number of those paragraphs responded in detail to matters referred to by Mr McCarthy in his witness statement.
In the Tribunal, where the claimant was not represented by Mr Quinn (who represented him before me), cross-examination was particularly focussed on e-mails passing between Mr McCarthy and his client's husband, TA. TA and his wife were adamant that they had received no Rule 6 letters. In the course of reaching their conclusion that Rule 6 letters had not been sent and that those which Mr McCarthy had produced had been "created subsequently" the Tribunal commented:-
"the Tribunal has considered these criticisms in detail and rejects them. TA was not a particularly appealing witness and he came across as controlling and obsessive. Nevertheless he was fastidious and precise on issues of detail and was anxious to ensure that he gave evidence that was accurate and consistent with the relevant documents." [43]
The decision was reached by the Disciplinary Tribunal in total ignorance of the fact that the statement of TA, which it took by agreement as the evidence in chief, was not his first statement and that the agreement as to the order of statements was made when both Mr McCarthy and those advising him were quite unaware that the Bar Standards Board had already obtained a statement from TA and had chosen deliberately not to disclose it because of the possibility that he would "doctor his evidence to suit".
By the time of the Visitors' hearing, where the claimant was represented by Mr David Reade QC and Mr Quinn, the claimant and his advisers had learned of the existence of the draft statement. Before the Visitors, the Bar Standards Board argued that Rule 7(1)(a) did not require the Board to serve the statements which it had obtained [65]. The Visitors rejected that submission. They held that the Rule did require service of statements of witnesses to be called and, importantly, that "essentially the Rule is consistent with the criminal process and requires service of evidence to be called as well as documents".
The Visitors' set out leading counsel for Mr McCarthy's reliance on the draft unsigned statement and their response:-
"71. Has there in the result been any unfairness? Mr Reade devoted considerable time to comparing the witness statement in draft — which it seems was in draft before DM put in his statement and which he argues would have been likely to have been served if Rule 7(1)(a) had been followed — with the statement that was served and also with some of the e-mails. He suggests that TA's credibility would have been dented if that draft statement had been his evidence in chief. He submits that by reason of the BSB's approach, DM lost a potential forensic advantage.
72. The first point to make is that if the BSB had been forced to serve the statement of TA there would not have been any draft to compare that with. The second point is that if compliance with Rule 7 had been agreed, it is not clear what statement would have been put in. It could have been limited to a statement that the letters had not been received and evidence along the lines of 16 th July e-mail or it could have been as extensive as the statement ultimately put in. The third point to make is that counsel for DM had the material he needed in the e-mails to expose TA and ST if they were to be exposed; there were points on which TA and ST were inaccurate and it was their demeanour in dealing with those points and the tone and contents of the e-mails on which the Tribunal would be assisted in considering whether TA and ST were being honest in saying they had not received the rule 6 letters. The extent to which TA tailored his statement as argued by Mr Reade following receipt of DM's statement is extremely limited, and would have been open to him when he came to give evidence...
To continue reading
Request your trial
-
The Law Society of Ireland v Coleman
...has been recently quoted with approval and applied by Moses LJ in McCarthy v Visitors to Inns of Court and Bar Standards Board [2013] EWHC 3253 (Admin) and by Underhill J in R (Hill) v Institute of Chartered Accountants [2013] EWCA Civ 555. In Cotton, the issue, in a nutshell, was whether......
-
MM (unfairness; E & R) Sudan
...series of law reports. Having said that, Cotton has been recently quoted with approval and applied by Moses LJ in McCarthy v Visitors to Inns of Court and Bar Standards Board [2013] EWHC 3253 (Admin) and by Underhill J in R (Hill) v Institute of Chartered Accountants [2013] EWCA Civ 555. ......
-
Securities And Futures Commission v Wong Yuen Yee And Others
...of equality of arms does not differ as between civil and criminal proceedings. 57. In McCarthy v Visitors to the Inns of Court [2013] EWHC 3253 (Admin), the Bar Standards Board, which played the role of prosecutor of certain disciplinary charges against a barrister, failed to disclose an ea......
-
Upper Tribunal (Immigration and asylum chamber), 2014-02-24, [2014] UKUT 105 (IAC) (MM (unfairness; E & R))
...has been recently quoted with approval and applied by Moses LJ in McCarthy v Visitors to Inns of Court and Bar Standards Board [2013] EWHC 3253 (Admin) and by Underhill J in R (Hill) v Institute of Chartered Accountants [2013] EWCA Civ 555. In Cotton, the issue, in a nutshell, was whether t......