Smith v Bar Standards Board [2016] EWHC 3015 (Admin)

Background

Mr Julian Smith, a barrister (‘the Appellant’), appealed the decision of a disciplinary tribunal of the Bar Tribunals and Adjudication Service (‘the Tribunal’), following a finding that he was guilty of two incidents of serious professional misconduct.

In accordance with Civil Procedure Rule 52.11, an appeal may be allowed where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity.

Facts

The Appellant was instructed by Jennings Solicitors to represent Mr Ashby in relation to a Family Dispute Resolution hearing at Milton Keynes County Court on 31 August 2010. The hearing was attended by Mr Douglas, a partner at Jennings Solicitors. The Appellant negotiated with Mrs Ashby’s representative and reached a final financial settlement, which included provisions for future maintenance for Mrs Ashby.

A formal complaint to the Bar Standards Board (‘BSB’) was made by the Appellant’s instructing solicitors on 30 November 2010. A decision was made by the BSB on 27 February 2013 to charge the Appellant. He was informed of the charges on 1 March 2013.

The basis of the first allegation was that the Appellant, having been instructed to negotiate a ‘clean break’ from Mrs Ashby, had failed to do so, but had nonetheless informed Mr Ashby and his instructing solicitor that a ‘clean break’ had been agreed and that the subsequent consent order included such a provision.

The second allegation arose out of the Appellant’s handling of a subsequent complaint made to the Appellant by Mrs Jennings, a partner at Jennings Solicitors.

Grounds of Appeal

The Appellant submitted that the decision of the Tribunal was wrong, in that the Tribunal should not have found on the evidence presented that either charge was proved. The Appellant argued that the negligence charge was not established and even if it was, it should not have been regarded as constituting serious professional misconduct.

In relation to the second allegation, the Appellant submitted that the manner in which he responded to the complaint from the instructing solicitors did not breach the Code of Conduct of the Bar of England and Wales (‘the Code’). The Appellant argued that any shortcomings, if any existed, could not be regarded as serious.

The Appellant further asserted that the Tribunal erred in accepting the evidence of the instructing solicitors against that of the Appellant.

Fair hearing

Reference was made by the Court to the fact that the BSB had left Jennings Solicitors to produce Mr Ashby’s statement for the purposes of the complaint against the Appellant. The Court found that it was a ‘serious error’ on the part of the BSB to allow Jennings Solicitors, who had a clear interest in placing any blame for the failure to achieve a ‘clean break’ firmly at the Appellant’s door, to produce Mr Ashby’s statement.

The Court explored the fact that Mr Ashby did not attend the Tribunal to give evidence and that his evidence was admitted as hearsay in accordance with the Disciplinary Tribunal Regulations 2014. The Court noted that Mr Ashby’s statement referred to Mr Douglas as having attended the family court hearing as a note taker and not as having represented Mr Ashby; a fact that the Court noted as being ‘somewhat strange for a partner in the firm’.

It was stated that the BSB had received a telephone call from Mrs Jennings, of Jennings Solicitors, advising that Mr Ashby would not be attending the Tribunal hearing. Mrs Jennings also provided the BSB with a copy of an email from Mr Ashby stating that he would not be attending the hearing.

The Court remarked that following this correspondence, the BSB did nothing to procure, or seek to procure Mr Ashby’s attendance at the Tribunal hearing. It was further noted that the BSB had told Mrs Jennings that it was not imperative for Mr Ashby to attend, so long as either Mr Douglas or Mrs Jennings attended. The Court found that if the BSB had so advised Mrs Jennings, this was a ‘serious dereliction of duty’ by the BSB.

The Court considered the law in relation to the admission of hearsay evidence and noted that it is essential that reasonable steps are taken to ensure the attendance of witnesses, even if the witness is not the only witness who speaks to a particular issue. The Court emphasised that in this case, this was particularly important given the concern that Mr Ashby’s statement may have been influenced by Jennings Solicitors.

In giving reasons for admitting Mr Ashby’s statement as hearsay, the Tribunal had stated that despite the fact that the BSB could have taken further steps to seek Mr Ashby’s attendance, it was clear from Mr Ashby’s email to Mrs Jennings that he would not attend. The Tribunal reasoned that as Mr Ashby would not be cross-examined, this would go to the weight of his evidence.

The Court found this reasoning to be ‘truly extraordinary’. The Court highlighted that the BSB had taken no steps to seek the engagement of Mr Ashby and this could not be seen to amount to having taken ‘reasonable steps’. The Court commented on the Tribunal’s perceived lack of regard to both the unfairness which would arise from Mr Ashby’s failure to attend and to the fact that Jennings Solicitors had taken Mr Ashby’s statement, despite them having a clear interest in blaming the Appellant for the outcome of the negotiations.

The Court concluded there that was ‘no doubt’ that the Appellant had not received a fair hearing. The Court found that the Tribunal had chosen to accept the evidence of Mr Ashby as it is coincided with the evidence of Mrs Jennings and Mr Douglas, and that had Mr Ashby been available for cross-examination, this may have exposed the solicitors’ evidence as being unreliable. The Court opined that if this had been the case, the Tribunal would have found it difficult to justify the rejection of the Appellant’s account, as the allegation against him would not have been proved to the criminal standard, as required by the Code.

Failure to act with reasonable competence

On considering whether the Appellant acted with reasonable competence, the Court considered the consent order, as drafted by Mrs Ashby’s solicitors, but with agreement of the Appellant. The Court concluded that it would be obvious to anyone reading the consent order that it did not provide for a ‘clean break’, but instead provided for nominal maintenance only after Mr Ashby reached the age of 60. The Court highlighted a provision within the consent order, which provided for maintenance payments to start only in the event that Mrs Ashby commenced full time employment; an event which Mr Ashby thought unlikely to happen.

The Court considered the terms of the consent order in the context that Mrs Ashby’s solicitors had refused to accept a ‘clean break’. The Court acknowledged that in the Appellant’s view, the deferment of any maintenance payments until Mrs Ashby was in full time employment was of enormous benefit to Mr Ashby. The Court opined that, in the circumstances, the Appellant’s view could not be considered as incompetent.

The Court went on to consider whether the Appellant had told Mr Ashby and Mr Douglas that the consent order contained a ‘clean break’. Making reference to the presence at court of Mr Douglas, a qualified solicitor, the Court concluded that for the Appellant to have asserted that the consent order included a ‘clean break’, when it in fact did not, would have been ‘ridiculous’. Consequently, the Court found that ‘real doubt’ had been cast on the validity of the findings in relation to the first allegation.

Response to complaint

On considering the correspondence between Mrs Jennings and the Appellant which followed the family proceedings, the Court concluded that the Appellant did not act as sensibly as he could have done when dealing with the correspondence. The Court accepted that the Appellant was upset by the suggestion that he had misled Mr Ashby, but stated that this should not have led the Appellant to deal with the complaint in the manner that he did. Nonetheless, the Court found that, when considered in isolation, the manner in which the Appellant handled the complaint could not be regarded as justifying a finding of serious professional misconduct.

The Court allowed the appeal.

Commentary

This decision highlights the importance of first hand evidence and the unfairness that can arise through the loss of opportunity to cross-examine witnesses. The Court was quite critical of the BSB for failing to take steps to secure the attendance of witnesses, especially in circumstances where the witness statement adduced by the relevant witness had been taken by solicitors who had a vested interest in placing blame elsewhere. This case emphasises the need for independence on the part of parties involved in drafting witness statements.