Case Summary - Davies v Bar Standards Board  EWHC 2927 (Admin)
In an appeal against a decision of the Council of the Inns of Court Disciplinary Tribunal ("the Tribunal"), Mr Davies argued that his conduct towards his dentist ("Dr S"), namely by identifying the fact he was a barrister specialising in medical negligence, threatening to sue him whilst obtaining legal restitution and guaranteeing a win, did not justify the Tribunal's finding of serious professional misconduct. He further argued that the Tribunal had not provided adequate reasoning for making a finding of professional misconduct and had not properly considered the context within which he had behaved as he did. The appeal was dismissed.
Mr Davies ("the Appellant") is a barrister registered with the Bar Standards Board ("BSB"). He appealed a decision of the Tribunal which found him guilty of professional misconduct pursuant to paragraph 301(a)(iii) of the Code of Conduct of the Bar of England and Wales and imposed a fine of £500 on him.
The Appellant was found to have engaged in conduct which was/is likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal professional into disrepute.
The Appellant was a patient of Dr Shrestha ("Dr S"), a dental surgeon. He had received implant surgery from Dr S which had failed. Dr S conceded that the surgery had not been successful and had agreed to provide the Appellant with a refund of the fees that he had paid. The complaint was not resolved between the parties and a referral was made to the Bar Standards Board ("BSB") by the Dental Defence Union acting on behalf of Dr S. The referral was made upon the ground that the Appellant had used his professional status as a barrister to obtain an unjustifiable payment from Dr S.
It was alleged and found proven by the Tribunal that the Appellant had sought further recompense from Dr S for his complaint for "pain, suffering and the adverse effect on [his] public speaking in the practice of [his] profession". During meetings between the Appellant and Dr S on 25 August and 1 September 2009, Dr S alleged that the Appellant had asserted that he was "a barrister, a trained mediator and expert in medical negligence". He had told Dr S that he would win any case of negligence brought against him. Further to this and as was detailed within a contemporaneous note taken during the meeting, the Appellant suggested that Dr S was bound by the "principle of restitution". This meant that Dr S would not only have to refund the Appellant the fees he had paid, but also restore his state of dentition to that which existed when he had first seen Dr S in February 2007. Dr S also alleged that the Appellant referred to a recent example whereby he had sued an optician and had successfully deployed the principle of restitution to receive a refund. This latter allegation was not found proven by the Tribunal.
The Tribunal determined that the Appellant had committed professional misconduct. The Appellant appealed the decision on three grounds:
- The tribunal failed to give adequate reasons for its decision and, in particular, it failed to explain why such conduct as was found was so serious as to undermine the standards of the profession such as to amount to professional misconduct ("Ground 1");
- The tribunal did not pay proper regard to the context in which the conduct complained of arose, as to make a safe decision ("Ground 2"); and
- The conduct complained of, properly construed, was not so serious and reprehensible such as to amount to professional misconduct ("Ground 3").
Handed down by Mr Justice Supperstone.
Supperstone J stated that the legal principles in relation to a tribunal's adequacy of reasons are well known. The reasons must show that the decision maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost or, as the case may be, won. Reasons must be both adequate and intelligible (see De Smith Judicial Review, 7th Edition paras 7-102-107).
It was noted that the Tribunal in this case did not accept the Appellant's submission that all three limbs of the allegations must be found proved in order for a finding of professional misconduct to follow. The Tribunal preferred the evidence of Dr S and they found him to be an "honest and reliable witness". This addition of contemporaneous documentation supported Dr S's assertions about what was discussed between him and the Appellant. Dr S's record said:
"Discussed and mediation way forward for pt – as he is a barrister and a trained mediator, re-minded of principle of Restitution."
The Tribunal noted that that the Appellant at no point wrote on chambers headed paper or wrote anything within which he purported to be a barrister. However, they found that the Appellant was "pleading" a legal term in support of the positon he was taking in his dispute with Dr S.
Dr S successfully convinced the Tribunal that he felt "intimidated and bullied" by the Appellant even under robust cross-examination by the Appellant. Dr S stated that he now felt "very wary of treating other law professionals".
Supperstone J concluded that there was ample oral and documentary evidence put before the Tribunal to support their finding that the Appellant abused his position as a barrister. He also agreed with the Tribunal's approach that it was not necessary for a positive finding on the third limb of the allegations (in relation to suing an optician) in order for them to find professional misconduct on limbs one and two alone. Supperstone J agreed that the Appellant's conduct in "threatening to sue a lay person for negligence and fortifying that threat by stating that he was a barrister, trained mediator and expert in medical negligence and that he would win the case if it went to court, and (2) in invoking the legal principle of restitution that in fact did not apply to the case, in and of itself is an abuse of his positon as a barrister and conduct which is likely to bring the legal profession into disrepute".
Even though the Tribunal did not formally and separately address the question of whether the conduct, as found, was serious enough to amount to professional misconduct, Supperstone J found this as self-evident. He also dismissed any argument put forward by the Appellant that he required the necessary "intention" for the behaviour to constitute professional misconduct. Supperstone J considered Silber J's Judgment in Craven v Bar Standards Board  at para 40 where it was found that the issue was whether a reasonable observer would conclude that the Appellant behaving in the way he did was "likely to…bring the Bar into disrepute". In his Judgment, Supperstone J believed that this behaviour was likely to be concluded as doing so by the 'reasonable observer'.
Grounds 2 and 3:
The Appellant argued that the Tribunal had a duty to look at the "whole picture" surrounding an allegation of professional misconduct (reference made to Nandi v General Medical Council  Collins J at para 51). He argued that in the context of Dr S admitting that he held a legitimate complaint, the course of action he took was one which was open to him. Supperstone J held that there was nothing in this ground and that the Tribunal was evidentially "fully aware of the context". The reasons provided by the Tribunal indicate that they took into account the "whole picture surrounding the allegations".
The Appellant went on to argue that as a "single incident arising from a genuine and serious dispute between himself and Dr S" that his conduct could not be considered "so serious or reprehensible" to fall into the category of professional misconduct (see Walker v Bar Standards Board  reference to "trivial lapses" by Sir Anthony May). The Appellant accepted being "over-demanding" in relation to the request for restitution but, noted that the Tribunal had found that he had not "intentionally" put pressure on, or threatened, Dr S. In his Judgment Supperstone J determined that the Tribunal was entitled to consider that the conduct if found proved could properly be regarded as sufficiently serious as to amount to professional misconduct.
The appeal was dismissed.