McCarthy v Visitors to the Inns of Court & Bar Standards Board  EWCA Civ 12
The Court of Appeal has found that, where there has been material non-disclosure in disciplinary proceedings, the test when considering whether to overturn the disciplinary tribunal's decision on the basis of unfairness is whether there is a real possibility that the tribunal would have come to a different conclusion had the disclosure been made.
M is a barrister who was disbarred after the Bar Disciplinary Tribunal (the Tribunal) found that he had given untruthful evidence at a disciplinary hearing. The evidence concerned whether M had sent four client care letters to his public access client, C, pursuant to the Public Access Rules r6. C. C’s husband, H, claimed that no such letters had been sent and it was alleged that M had fabricated letters after the event for the purposes of the Tribunal proceedings. This allegation was found by the Tribunal to have been proved.
In the course of the Tribunal proceedings, a witness statement was taken from H by the Bar Standards Board (BSB), which was prosecuting M, but that statement was never signed or dated. In a letter to H, the BSB stated: "We have decided that we will not disclose [H's] witness statement until shortly before the hearing date. This will remove the possibility of [M] fitting his case around that statement". After M served his witness statement, the BSB sent it to C and H, following which H produced a second, more detailed statement.
The Court of Appeal (CA) described this as "an amalgam of evidence properly so called, comment and argument intended to demolish [M's] defence to the charges, rather than to provide unvarnished evidence". While this second statement was disclosed, the first statement taken by the BSB was not. The CA found that this was "extraordinary. A conscious decision was taken by an official at the BSB which had the effect of subverting the rules which provide for disclosure and furthermore suggested that he was blind to any sense of fairness in the conduct of a disciplinary prosecution".
M appealed to the Visitors of the Inns of Court (the Visitors) on the basis that there had been unfairness on the part of the BSB arising out of its failure to disclose H's first statement. That appeal was dismissed by the Visitors by a majority of two to one.
M then sought to judicially review the decision of the Visitors. Moses LJ found that differences between H's two statements "might reasonably be considered capable of undermining the [BSB's] case" in that those differences might have undermined H's credibility. He also found that the BSB had failed to comply with the relevant regulation in the Tribunal's procedural rules regarding disclosure and had been guilty of common law procedural unfairness.
Moses LJ found that the Tribunal's decision should be overturned "unless it can be said that there was no real possibility of an alternative result". He found, however, that on the facts of the case, there could be no such alternative result.
The CA's decision – the test to be applied
M appealed against Moses LJ's decision to the Court of Appeal on the basis that the unfairness had been such that Moses LJ had been obliged to quash the decision of the Visitors, and that the failure to disclose H's first statement had amounted to a violation of Article 6 ECHR and rule 7 of the BSB's disciplinary hearing rules that deal with disclosure. However, the CA found that it was not necessary to consider Article 6, as the question regarding the fairness or otherwise of non-disclosure would be answered in the same way whether approached via the common law or Article 6.
The CA cited the Supreme Court's decision in McInnes v Her Majesty's Advocate  UKSC 7, which identified two questions to be considered in cases where there has been material non-disclosure. These can be summarised as:
- Should the material under consideration have been disclosed?
- What were the consequences of non-disclosure?
Although McInnes was a criminal case, the CA found that there was no reason to apply a different test in disciplinary proceedings.
The question which had been applied in substance by Moses LJ was, therefore, "Is there a real possibility that the Tribunal would have come to a different conclusion had the disclosure been made?" This involved not only a consideration of the content of the undisclosed material but also an evaluation of the various ways in which its disclosure might have affected the course of the proceedings.
The CA's decision – applying the test to the facts
The CA noted that the BSB did not seek to challenge the conclusion of Moses LJ that H's first statement was capable of undermining his credibility and thus the BSB's case before the Tribunal. In view of the facts that:
- H's credibility had occupied a "central place" at the Tribunal hearing
- One of the three panel members would have dismissed the relevant charges against M in any event, and
- Cross-examination of H on the first statement was capable of undermining his credibility given the difference between the two statements. There was a real possibility that the Tribunal would have come to a different conclusion had disclosure been made.
Accordingly, the appeal was allowed.