Blake Morgan PRT Commentary on the Kirschner Judgment
This is the latest case in the extensive tapestry of authorities relating to the test for dishonesty in professional disciplinary proceedings.
More than a third of the judgment is dedicated by Mostyn J to an exposition of his dissatisfaction with the difference between the test for dishonesty in professional disciplinary proceedings and the test for dishonesty in other civil proceedings. This appears to be a dissatisfaction not shared by other judges sitting in the Administrative Court. It is no doubt the combined weight of authority from other cases where the approach to dishonesty has been considered by the High Court; the principles laid down by a powerful Divisional Court in Bryant; combined with the Court of Appeal in Hussein not departing from the Twinsectra/Ghosh test save to the minor extent suggested by Longmore LJ, which has resulted in Mostyn J reaffirming that there remains both an objective and subjective element to the test for dishonesty. No mention is made of any of the other refinements of the overall test which have been made by other recent authorities, in particular the need for tribunals to ensure that they identify with precision the exact factual basis – in particular the state of knowledge or mind which the defendant to the proceedings had at the material time – to which they are applying the Twinsectra/Ghosh test.
It is suggested, therefore, that this case does little more than add further weight to the observations of Longmore LJ in Hussein (which were strictly obiter) and highlight the fact that the test for dishonesty is bound to remain in a state of fluidity for some time to come.