McCarthy, R (on the application of) v The Visitors to the Inns of Court & Anor

In professional disciplinary proceedings, once material non-disclosure is established, the court asks whether the proceedings as a whole were fair. The same approach applies under the common law and the civil limb of Article 6. The key question is whether there is a real possibility that the disciplinary tribunal would have reached a different conclusion if disclosure had been made. This requires assessment of the undisclosed material and the ways disclosure could have affected the hearing, including cross-examination and witness credibility. A strong case on the disclosed evidence does not remove that possibility where the undisclosed material could materially undermine a central witness. The appeal was therefore allowed.

Mr McCarthy, a barrister, was disbarred by the Bar Disciplinary Tribunal after it found that he had fabricated four Rule 6 client-care letters and failed to send one promptly. The Visitors dismissed his appeal by a majority of two to one. The High Court found that the Bar Standards Board had breached the disclosure rule and acted unfairly by withholding the first statement of the principal witness, but declined to quash the Visitors’ decision because it considered that no alternative result was possible.

The issue in the Court of Appeal was whether the non-disclosure created a real possibility of a different Tribunal conclusion and therefore required the Visitors’ decision to be quashed.

Appeal allowed. Burnett LJ gave the judgment, with Newey J and Dame Janet Smith DBE agreeing.

1. The failure to disclose the principal witness’s first statement breached Rule 7 of the Disciplinary Tribunals Regulations and amounted to procedural unfairness. The Bar Standards Board did not challenge those conclusions on appeal.
2. The court declined to decide whether the breach also violated Article 6 of the European Convention on Human Rights. The question whether a rehearing is required is answered in the same way under the common law and Article 6. The civil limb of Article 6 applies to professional disciplinary proceedings, as recognised in Le Compte, Van Leuven and de Meyere v Belgium (1982) 4 EHRR 1 and P (A Barrister) v General Council of the Bar [2005] 1 WLR 3019.
3. Following McInnes v Her Majesty’s Advocate [2010] UKSC 7, the court must first ask whether the material should have been disclosed and then assess the consequence of the failure. The relevant question is whether, taking all the circumstances into account, there is a real possibility that the disciplinary tribunal would have reached a different conclusion. The assessment includes the content of the undisclosed material and the ways disclosure could have affected the proceedings.
4. That threshold was met. The credibility of the principal witness was central. One Tribunal member would in any event have dismissed the fabrication charges, and cross-examination on the undisclosed statement could have undermined the witness’s credibility because of differences between his statements. The strength of the disclosed case did not eliminate the real possibility of a different result.
5. The forensic points concerning the letters remained matters for any rehearing Tribunal to assess, untrammelled by the observations of the High Court and Court of Appeal. The cross-appeal on costs did not require determination; had the main appeal failed, it would have been dismissed.

• High Court of Justice, Administrative Court. Moses LJ dismissed the judicial review claim on 25 October 2013. He found breach of the disclosure rules and procedural unfairness, but refused to quash the Visitors’ decision because he considered that no alternative outcome was possible.
• Court of Appeal (Civil Division). The court allowed the appeal: [2015] EWCA Civ 12. The appropriate consequential order was left for written submissions.