E-Regulator: McCarthy v Bar Standards Board, Visitors to the Inns of Court, 25 January 2012

1 March 2012


Rule 7(1)(a) of the Disciplinary Hearing Rules requiring evidence to be served does include statements of witnesses and the withholding of statements to prevent a registrant ‘tempering’ his evidence around the statement is ‘unacceptable’.

This case was an appeal by DM against a decision of a Disciplinary Tribunal (‘the Tribunal’) of the Council of the Inns of Court.

The Tribunal had found that DM had failed to comply with Rule 6 of the Rules relating to a Barrister engaging in Direct Access, in that he did not comply with the requirement that for each piece of work the Barrister sends to the Client, a client care letter setting out, inter alia, the terms and fees on the basis of which the barrister is to take on the work. More significantly than that, they found that during the investigation of the initial complaint by DM’s lay client (a dispute about fees), when asked to provide documentation by the Bar Standards Board (BSB), DM produced four forged documents. He produced four client care letters which he falsely asserted had been sent to his client contemporaneously, in compliance with Rule 6. They found DM to have acted dishonestly and he was disbarred.

DM appealed on a number of grounds, the first of which was that the Tribunal applied the incorrect burden of proof, relying on various phrases within the Tribunal’s decision. The Visitors found that ‘the Tribunal correctly directed themselves in paragraph 4 as to the burden and standard of proof’ and that the language the Tribunal had used in making their findings ‘gives no cause for thinking that they departed from that direction.

DM also claimed that insufficient reasons were given for the rejection by the Tribunal of his criticisms in relation to the credibility of the ‘complainant’, his lay client, whose evidence that he had never received any such Rule 6 letter, was before the Tribunal. The Visitors found that ‘ít is not incumbent on a Tribunal to deal with each and every dispute of fact.  In this instance their findings were amply supported by reasons’, and accordingly dismissed this ground.

Another Ground suggested that the Tribunal reached a decision that was not open to them on the facts as were before them. DM relied on a number of points on which he submitted the Tribunal failed to place sufficient significance. The Visitors were not persuaded by any of the points made in relation to this and found that ‘they are attempts to reargue the case’.

The more noteworthy Ground of Appeal was that there was a serious procedural error which no Tribunal acting fairly should have allowed.

The ‘complainant’ in the original complaint (‘TA’), the chief witness before the Tribunal had provided a written statement to the BSB prior to the hearing but it appeared that the BSB did not wish to serve TA’s statement before DM had served his. Disclosed as part of the appeal process were two letters, one of which states ‘We have decided that we will not disclose Tim’s witness statement until shortly before the hearing date. This will remove the possibility of Mr McCarthy fitting his case around that statement’. Counsel on behalf of the BSB conceded that this was a ‘quite inappropriate’ stance for prosecutors to be adopting but stated that, even where the BSB are to call evidence, Rule 7(1)(a) of the Disciplinary Hearing Rules does not require the service of any statements; in some cases, statements are served but he submitted that it was not a requirement of the rules. The Visitors stated that ‘it is our clear view that the Rule requiring evidence to be served does include statements of witnesses’ and further noted that the attitude displayed in the BSB letter (outlined above) was ‘unacceptable’. They then went on to consider, however, whether in this particular case any unfairness flowed from this error. One member of the Visitors Panel was sufficiently concerned that it may have led to unfairness and suggested that a rehearing be ordered.  However, the remaining two did not agree given that even if DM had insisted on the statement being put in first he would not, bearing in mind the evidence in this case, have been in any stronger position forensically. They went on to say that ‘we are regrettably quite clear that the evidence against DM was extremely powerful and accordingly that the verdict of the Tribunal was not unsafe’.

This case highlights the importance of stringent application of rules of service and reminds prosecutors of the appropriate attitude towards presenting cases before Tribunals, with no room for any suggestion of ambush.

Sarah Harris, Barrister

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