Two bites of the apple- limitation in professional negligence cases
McCarthy v Bar Standards Board  EWHC 969 (Admin)
The Claimant barrister (DM) on 4 March 2011 was found guilty by the Bar Standards Board (BSB) of producing forged documents and was subsequently disbarred.
His appeal was dismissed by the Visitors to the Inns of Court (“the Visitors”) on 25 January 2012. DM applied for judicial review of the Visitors’ decision but the claim was dismissed by the Administrative Court. The outcome we previously summarised in an update at the time.
On appeal, the Court of Appeal held that the BSB had acted unfairly and in breach of its obligations by failing to disclose a draft witness statement which differed materially from the final version of the statement which was served. On 20 January 2015, the Court of Appeal quashed the decision of the Visitors.
On 13 July 2015, the Visitors decided that there should be a re-trial of the forged documents charges before a fresh panel, rejecting DM’s submissions that the lapse of time and the advantage gained by the BSB witnesses would render a fair trial impossible.
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.
On 9 June 2016 the BSB found two charges of professional misconduct proved against DM. The Tribunal imposed a sanction of disbarment. DM appealed against the Tribunal’s decisions on misconduct and sanction.
The grounds of the appeal were that:
DM argued that, typically, a pupil felt respect and deference towards a pupil master, which was likely to be life-long. Therefore the second Chairman would defer to the first Chairman’s views, whether consciously or unconsciously. As Chairman, she would then also have considerable influence over the other panel members. DM highlighted that the way both Chairmen’s very similarly described one witness in the judgment as evidence of this and went further to propose that the second Chairman somehow secretly obtained a copy of the first Chairman’s previous report, demonstrating her wish not to undermine or contradict him.
Mrs Justice Lang held that the “fair-minded and informed observer” (as per Porter v Magill  2 AC 357, at  and Helow v Secretary of State for the Home Department  UKHL 62) would appreciate that the second Chairman was a full-time circuit judge, and was therefore accustomed to exercising her independent judgment which included decisions bearing on a case before her, made by fellow judges, who may be close friends or senior colleagues.
Mrs Justice Lang highlighted that DM did not seek further details from the Chairman and did not raise any objection to her continuing to hear the case when she made this disclosure on the second day of the hearing. It was relevant that DM, as a barrister, would have fully understood the significance of the Judge’s disclosure and his right to object.
Mrs Justice Lang noted that the witness was a striking witness and it was no surprise that different judges used similar adjectives to describe him. She accepted it was possible that the second Chairman read the judgment and saw reference there to the language used by the previous Tribunal to describe the witness. However, it was fanciful to suggest the five Tribunal members would rely upon this rather than make their own assessment. The decision itself demonstrated that they had carefully considered the evidence and drawn their own conclusions.
The first ground was dismissed.
DM submitted that the press release deprived him of a fair trial as the BSB was placing improper pressure on the members of the Tribunal to find the charges proved at the re-trial.
Mrs Justice Lang held that in the exceptional circumstances of this case, the BSB was entitled to issue a press release about the outcome of the earlier appeal proceedings. She accepted that the BSB went somewhat further than was proper, in expressing its view that DM had committed the offences with which he was charged.
Mrs Justice Lang found that DM could not establish that any members of this Tribunal had actually seen the BSB press release or the articles in the legal press which quoted from it. Further, that if they had in August 2015 it is unlikely they would remember it in any detail by June 2016.
Mrs Justice Lang stated that DM’s submission seemed to be based on a misconception about the roles of the Tribunal and the BSB. Disciplinary Tribunals are arranged by an independent organisation of the BSB and so panellists are not answerable to the BSB. It must have been apparent to the Tribunal throughout that the BSB was urging them to find the charges proved.
Mrs Justice Lang held that the Tribunal would not have been improperly influenced by the BSB’s view of the case and the ground was dismissed. The disbarment sanction was upheld.
Legal and lay panellists are subject to stringent selection procedures, given training and written guidance on their role and gain experience and expertise through sitting. As such, high ethical standards are rightly expected of Tribunals. Therefore, this case is an imperative reminder that to substantiate a claim that a Tribunal has been bias or subject to improper pressure there must be robust evidence specific to that Tribunal.
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