Nobody gets what they want as BSB “subverting the rules” case heads back to Visitors

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16 February 2015


RCJ

Appeal judges: Visitors must deal with “other outstanding matters”

Appeal judges have decided that a disciplinary case in which they found a Bar Standards Board (BSB) official responsible for “subverting the rules” on disclosure, should return to the Visitors to the Inns of Court.

Damian McCarthy was disbarred at a Bar disciplinary tribunal after allegations that he forged client care letters, a decision upheld by the Visitors.

Overturning the High Court’s decision not to quash the Visitors, the Court of Appeal found last month that a BSB official involved in the case was “blind to any sense of fairness”.

Appeal judges made an order last week that the case must return to Visitors, and said there was no reason why it could not be heard by the same panel which rejected Mr McCarthy’s appeal against the disciplinary tribunal in 2012.

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The BSB argued that there should be a rehearing before a disciplinary panel, but agreed with Mr McCarthy that in any case it should be heard by a different panel of Visitors.

Giving reasons for the order, Lord Justice Burnett, Dame Janet Smith and Mr Justice Newey said: “The parties were content, were we to remit any matter to the Visitors, that we should direct a differently constituted panel.

“We see no reason for doing so arising from the way in which the appeal was dealt with by the panel in this case. We make no direction either way although we can see the sense of the same panel dealing with the matter.

“Its members would be likely quickly to recollect much of the detail if they saw the case again. It will be for the Visitors to determine the panel’s constitution.”

The main two charges against Mr McCarthy were that four client care letters were forged following a request from the BSB after a complaint had been received and that the letters were not sent promptly. The Court of Appeal substituted its decisions on the appeal before the Visitors against the finding of the original tribunal. It will now be for the Visitors to consider whether to order a rehearing.

Appeal judges upheld another charge, which was an allegation of discourtesy in the way in which Mr McCarthy dealt with the client. He had admitted three further changes relating to poor record keeping.

The appeal judges concluded that, whatever their powers, the Visitors should deal with “all other outstanding matters” since they were “much better placed than we are to deal with the question of costs of a partially successful appeal”.

Under the terms of the order, the Visitors must decide on the costs both of the original disciplinary tribunal and the appeal to them. The BSB was ordered to pay the costs of Mr McCarthy’s judicial review at the High Court and the Court of Appeal.

A spokesman for the BSB commented: “We note the terms of the Court of Appeal order and will be progressing matters in accordance with it. The composition of the Visitors’ panel is a matter for the Visitors to decide.”

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