McCarthy v Visitors to the Inns of Court & Anor

In disciplinary proceedings carrying grave consequences, fairness requires disclosure of an earlier draft witness statement where it might reasonably assist in undermining the witness’s credibility or the disciplinary case. The duty applies even where the statement is unsigned and disclosure may reveal inconsistencies whose significance is uncertain.

Where non-disclosure leads an appellate disciplinary body to misunderstand the extent of the disclosure obligation and to omit a material comparison, the resulting unfairness may amount to a breach of natural justice by that body and be reviewable on judicial review. The court should quash unless there was no real possibility that the procedural opportunity could have produced an alternative result. A refusal to quash may nevertheless be appropriate where the remaining evidence conclusively establishes the charges.

A barrister was disbarred after a disciplinary tribunal found that he had produced forged documents purporting to be contemporaneous Rule 6 letters required under the direct-access scheme. The Visitors to the Inns of Court upheld that decision by a majority, although one member considered that a rehearing was required because of unfairness.

The Bar Standards Board had obtained an earlier unsigned draft statement from the principal witness. It deliberately withheld the draft, arranged for the claimant to serve his evidence first, and later served a signed statement which responded to that evidence. The Visitors accepted that witness statements had to be served, but did not consider whether the earlier draft also had to be disclosed or compare it with the signed statement. The central issues were whether that failure breached natural justice and, if so, whether it could have affected the outcome.

1. Disclosure obligation. Regulation 7(1)(a) of the Disciplinary Tribunal’s Regulations 2009 required service of evidence to be called. In the circumstances created by the agreed order of service, that obligation extended to the earlier draft statement dated 4 June 2010 once the later signed statement dated 29 October 2010 had been served. In disciplinary proceedings with potentially grave consequences, a draft statement capable of undermining a witness’s accuracy or credibility must be disclosed. The obligation did not depend on a concluded assessment of the extent or significance of the discrepancies.
2. Natural justice and reviewability. The Visitors were misled about the extent of the Board’s disclosure duty. They therefore failed to undertake the material comparison which fairness required. Although the Visitors’ jurisdiction is broad and ordinary errors of law within that jurisdiction are generally not reviewable, the resulting failure in the Visitors’ own appellate process constituted a breach of natural justice and was reviewable.
3. Materiality. In a case involving denial of a fair opportunity to cross-examine, the appropriate question was whether there was no real possibility that use of the undisclosed material could have produced an alternative result. The Visitors had applied a lower approach by treating the evidence as extremely powerful. The claimant’s failure to challenge the witness with the draft was material in principle because the tribunal had relied on that witness’s accuracy and fastidiousness.
4. Disposition. The failure to disclose the draft was unlawful and unfair. Nevertheless, the claimant’s own contemporaneous emails supplied conclusive evidence that the four Rule 6 letters had not been sent when required. There was no rational explanation for his failure to refer to them during the prolonged disputes. The court therefore granted permission to move but refused to quash the Visitors’ decision.

The judgment records that the Disciplinary Tribunal disbarred the claimant on 4 March 2011. The Visitors to the Inns of Court upheld that decision on 25 January 2012 by a majority. Judicial review was then brought in the Administrative Court.