Smith v Bar Standards Board

An appeal against a disciplinary finding must be determined by reviewing whether the decision was wrong or unjust because of a serious procedural irregularity. Where serious professional misconduct is proved to the criminal standard, fairness may require reasonable steps to secure direct evidence from a crucial complainant before admitting hearsay evidence. A tribunal must assess competence in the context of the transaction as a whole, including benefits obtained for the client. Discourteous complaint-handling may breach professional duties, but it does not necessarily amount to serious professional misconduct when considered alone.

The appellant, a barrister, appealed against findings by a Bar disciplinary tribunal that he had committed serious professional misconduct. The charges concerned advice allegedly given during financial remedy negotiations and the appellant’s subsequent handling of complaints by the instructing solicitors. The tribunal imposed two fines of £1,000.

The appeal challenged the tribunal’s factual findings, its assessment of the appellant’s competence and conduct, and its admission of statements from the client, who did not attend to give evidence. The central issues were whether the hearing was fair and whether either charge was proved to the required standard.

1. Appeal allowed. The tribunal’s decision was unjust because of a serious procedural irregularity. The appeal therefore fell within CPR 52.11.
2. The tribunal admitted the client’s hearsay statements although the Bar Standards Board had taken no reasonable steps to secure his attendance. The client’s evidence concerned the crucial factual issue: what the appellant had said and what the client had understood. The instructing solicitors had a potential conflict of interest because blame for the absence of a clean break might otherwise fall on them.
3. The tribunal treated the absence of cross-examination principally as a matter affecting weight. That approach failed to address the requirements of natural justice and the need for a fair opportunity to answer allegations carrying the stigma of serious professional misconduct. The tribunal’s reasoning on the admission of the statements was therefore unsustainable.
4. Independently, the evidence did not satisfactorily establish charge 1. The appellant’s view that nominal maintenance, deferred until employment, gave the client substantial protection could not properly be regarded as incompetent or negligent. The tribunal also failed to assess the full terms and overall benefit of the settlement. The appellant’s account that he had described the arrangement as effectively, rather than literally, a clean break was more probable than the allegation that he had asserted that the order contained a clean break.
5. The correspondence showed that the appellant had not dealt with the complaint as sensibly or courteously as he should have done. That conduct might breach the relevant professional duty, but, considered alone, it could not reasonably justify a finding of serious professional misconduct.
6. The matter was left to the Bar Standards Board to decide whether a fresh hearing should occur. The judge expressed the view that charge 1 could not be proved and recommended that no further action be taken, particularly in light of the Board’s serious mishandling of the proceedings. Costs were to be addressed by written submissions.

• Bar disciplinary tribunal: found the appellant guilty of two charges of serious professional misconduct and imposed two fines of £1,000.
• High Court (Administrative Court): allowed the appeal on procedural fairness and evidential grounds, and expressed the view that the charges should not be pursued further.