Lasting Powers of Attorney: recent key developments
Davies v Bar Standards Board  EWHC 2927 (Admin)
Mr Davies, a barrister, faced two charges in contravention of paragraph 301(a)(iii) of the Code of Conduct of the Bar of England and Wales (8th edition) herein after referred to as ‘the Code’. The relevant paragraph states as follows:
‘A barrister must have regard to paragraph 104 and must not:
(a) engage in conduct whether in pursuit of his profession or otherwise which is:
(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute’
Paragraph 104 as referred to in paragraph 301 relates to the general purpose of the Code such as the requirement for barristers to be completely independent and recognise the ‘paramount need for access to justice to act for any client in cases within their field of practice’. (para 104(a)(iii))
On 8 March 2008, Mr Davies underwent dental implant surgery. Over the following 18 months various attempts at corrective treatment were made. On 18 August 2009, Mr Davies’ dentist acknowledged that the surgery had been unsuccessful, and removed the implant.
The first charge faced by Mr Davies related to incidents in August/September of 2009 during which he threatened to sue his dentist for negligence. He sought to reinforce the threat of legal action in three ways:
The second charge related to Mr Davies abusing his position as a barrister to obtain an unjustifiable payment from his dentist by way of letter dated 13 November 2009. Mr Davies’ letter stated that he was entitled to compensation due to his dentist’s delay in dealing with his complaint, for pain and suffering and for the adverse effect his treatment had on his public speaking in the practice of his profession. It was alleged that Mr Davies sought to obtain a payment of £10,000 from his dentist having already requested and being offered a full refund of his dental fees and restorative work free of charge.
The Council of Inns of Court disciplinary tribunal (the tribunal) sat on 22 January 2014. Mr Davies and his dentist were the only witnesses to give evidence. The tribunal found the first two limbs of the first charge proven by a majority of two to one. The second charge was dismissed.
Mr Davies was fined to the sum of £500.
Grounds for appeal
Mr Davies grounds for appeal were as follows:
Decision on appeal
The Honourable Mr Justice Supperstone considered Mr Davies’ appeal on 6 October 2015. He considered each of Mr Davies grounds in turn, they are summarised below:
As to reasons for the decision, Mr Justice Supperstone reiterated the well-known legal principle that reasons for a decision must be sufficiently clear so as to demonstrate that the decision maker has successfully grappled with the main issues in the case on behalf of both parties, and further must inform the parties as to why they lost, or won.
Mr Justice Supperstone noted the tribunal’s reasons which included that it preferred the evidence of the dentist, citing him to be ‘an honest and reliable witness’ in contrast to Mr Davies who ‘was not being in any way untruthful, but that in his evidence he was occasionally a little confused and we formed a sense that his feelings of grievance over the treatment and the costs of the treatment predominated over a fully accurate account of what took place’. (page 113D – G)
In addition, the tribunal placed reliance on contemporaneous documentation which included clinical notes of discussions between Mr Davies and his dentist and letters. At page 117B the tribunal noted that the contents of a letter dated 23 October 2009 from the dentist to the Dental Defence Union (DDU) was ‘consistent with what had gone before…..and we can think of no obvious reasons why he would have engineered a statement to that effect unless it was broadly accurate’. In this letter he outlined that Mr Davies had clearly stated during a meeting on 1 September 2009 that he was a barrister, would seek to take him to Court, and would be successful in doing so. Further, that he was a trained mediator thereafter explaining the principle of restitution.
Mr Justice Supperstone stated that having heard the evidence of both parties, the tribunal was entitled to conclude that it did not prefer the evidence of Mr Davies having regard to the contemporaneous documentations. These were adequate reasons for the tribunal’s findings.
Mr Justice Supperstone accepted that the tribunal did not separately address the question as to whether the conduct was so serious as to amount to professional misconduct, but that the tribunal clearly had within its mind that the conduct undermined the professional standing of the Bar in the eyes of the public when it addressed the matter of aggravating factors during sentencing; specifically, that Mr Davies’ threats had caused his dentist to feel intimidated, threatened and bullied.
As to the context in which the conduct arose, Mr Justice Supperstone noted the importance of the patient/dentist relationship, but nonetheless determined that ‘there is, in my view, nothing in this ground. The tribunal was fully aware of “the context”. (paragraph 37)
On the last ground, whether the conduct complained of amounted to professional misconduct, Mr Justice Supperstone noted Mr Davies’ contention that the matters charged related to a single incident arising from a serious dispute between him and his dentist. Further, that he would be fully entitled to sue for negligent treatment and/or to request restorative treatment. Mr Davies relied on the decision in Walker v Bar Standards Board in which Sir Anthony May stated as follows at paragraph 11:
‘…..the stigma and sanctions attached to the concept of professional misconduct across the professions generally are not to be applied for trivial lapses and, on the contrary, only arise if the misconduct is properly regarded as serious’.
Mr Justice Supperstone determined that having made its findings on the facts the tribunal was entitled to conclude that the conduct could be properly regarded as sufficiently serious as to amount to professional misconduct.
He thereafter dismissed the appeal.
The sufficiency of reasons is often a ground for appeal in legal proceedings. The Courts have repeatedly reiterated the importance of clear and cogent reasons for any findings of fact. This does not mean that the decision maker has to deal with and comment on every issue in the case, but they must address any issues which influenced their findings, which can include the preference of one party’s evidence over another’s. Any informed reader must be able to understand why the decision maker reached the decision they did.
Regulated persons have a professional duty to act in a manner which justifies public confidence in them. This duty extends outside of the court room, treatment room or relevant place of work, as the case may be. Conduct which falls far short of the standard to be expected in the circumstances is likely to lead to a finding of professional misconduct regardless of the person’s intentions. Regulated professionals occupy a position of trust and confidence. In turn their actions will undoubtedly be scrutinised to a higher degree than would otherwise be the case.
For further information please contact Shannett Thompson.
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