A barrister who failed to give “unwelcome advice” to an “over-enthusiastic client” about a private criminal prosecution has been suspended for a month by a Bar disciplinary tribunal.
The tribunal said that when the prosecution for attempted fraud was halted by the Crown Prosecution Service (CPS), barrister Mark William Smith and his client were hit with a £40,000 costs order.
The tribunal said Mr Smith described his client, a dentist wanting to take action against his former business partner, as a “strong-minded individual”, experienced in litigation.
“One of the concerns that we have is that part of the role of a barrister, indeed a core role of a barrister, to be prepared to give robust and potentially unwelcome advice to an over-enthusiastic client who needs reining in.
“This is all the more important in a direct access context. That is not something Mr Smith did in the circumstances of this case.
“He did not consult the Code for Crown Prosecutors in terms of the proper test for bringing the private prosecution.
“Furthermore, he did not turn his mind to the potential adverse consequences of pursuing a private prosecution which included a possible adverse costs order against his client.”
The tribunal said that after the prosecution was discontinued by the CPS, a district judge at a magistrates’ court imposed a wasted costs order of over £40,000 on Mr Smith and his client, with the client paying one third of it, but he has since been recompensed by the Bar Mutual Indemnity Fund.
The tribunal heard that Mr Smith had prior experience as an employee of the CPS and a solicitor before he was called to the Bar in 1997.
His direct access client, referred to as MBS, had worked in a dental practice with MK between 2001 and 2006. MBS was unhappy with the way MK accounted for fees paid for NHS and private work between February and April 2006, prompting MBS to bring a civil claim against MK in 2012.
The following year, MBS contacted Mr Smith and asked him to bring a private criminal prosecution against MK arising from his failure to account for fees and “the suggestion that there had been effectively a fraudulent attempt to withhold moneys which were due to MBS”.
The tribunal said Mr Smith made the decision to “give advice that a private prosecution could be mounted and had merit”.
MBS instructed Mr Smith to act for him in the civil proceedings in 2014. Later that year, Master Fontaine, the senior master in the Queen’s Bench Division, struck out the civil proceedings for breach of an unless order relating to disclosure.
The private prosecution was pursued, “shortly after the civil proceedings were struck out”. Initially the court ruled on the papers that the matter was a civil one, but, following a hearing with a district judge, a summons was issued in January 2015 against MK.
Hill Dickinson, acting for MK, referred the matter to the CPS in April 2015, which decided to take over the prosecution and discontinue it.
“The basis for that decision was that the evidence did not disclose a reasonable prospect of conviction.”
“The criminal proceedings were, Mr Smith got the impression, being used by MBS as a negotiating tool against MK. That should probably have rung alarm bells for Mr Smith.”
The tribunal went on: “The advice he gave was negligent. Mr Smith has candidly accepted that. We acknowledge and accept that his failings were not deliberate, although they were entirely preventable by further research and proper preparation before giving advice.”
The tribunal said it had been told that Mr Smith has ceased doing private prosecution work and “indeed has stopped taking on criminal work”.
Mr Smith admitted breaching the Bar’s Code of Conduct and Public Access Rules by failing to act with reasonable competence between 2013 and 2014 in failing to advise his client of the risks that the CPS would discontinue the prosecution and costs would be awarded against him.
He admitted a similar offence of failing to provide a competent standard of work between 2014 and 2015, and a further offence of failure to “retain or take reasonable steps to ensure that MBS retained” a note of oral advice given by Mr Smith to MBS.
The tribunal suspended Mr Smith from practice for one month for the first offence and imposed the same sanction for the second offence, to run concurrently. He was reprimanded for the third offence.