The High Court has overturned a disciplinary finding against a barrister after finding that the Bar Standards Board “seriously mishandled” the case.
It was also very critical of the disciplinary tribunal for allowing a crucial statement as hearsay evidence.
In May, Julian Smith was fined £2,000 after being found guilty by the tribunal of not acting with reasonable competence at a family dispute resolution hearing because he told his divorce client, Keith Ashby, that his ex-wife had agreed a clean break, when actually she had not, and that it had been incorporated into the consent order, when it had not been.
Mr Smith was also found not to have dealt with complaints promptly, courteously or in a manner that addressed the issues raised.
On appeal, the key failure identified by Mr Justice Collins was that the complaints against Mr Smith were brought by Mr Ashby’s solicitors, Milton Keynes firm Jennings Solicitors, who also drafted their client’s statement to the tribunal.
The BSB, he said, should have appreciated that there was a potential conflict of interest because the solicitors were vulnerable to an allegation of negligence against them. “It was in the solicitors’ interest to put any blame on Mr Smith rather than on themselves,” Collins J observed.
He said: “It follows in my view that the BSB were seriously at fault in permitting the solicitors to continue to act on Mr Ashby’s behalf in pursuing the case and, in particular, in producing Mr Ashby’s statement.”
Further, when the solicitors said Mr Ashby would not be attending the tribunal hearing, the BSB official handling the case simply accepted this.
Collins J said: “He took no steps to procure or seek to procure Mr Ashby’s attendances. At the very least he clearly should have written a letter because he had already been in gross breach of his duty in allowing statements to be taken by Jennings Solicitors and not by a representative of the BSB.”
He was similarly scathing of the tribunal for allowing in Mr Ashby’s statement as hearsay evidence when it was unfair to Mr Smith.
“It follows that I have no doubt that [Mr Smith] did not receive a fair hearing. The tribunal chose to accept the evidence of [the solicitors] and, further, to accept Mr Ashby’s statement because it coincided with their evidence.
“Cross-examination of Mr Ashby might have shown that the solicitors’ account was not reliable. If so, it would have been difficult for the tribunal to have justified their conclusion that Mr Smith’s account was to be rejected because the allegation against him would not have been proved to the criminal standard. Thus, this appeal must be allowed on that ground alone.”
Looking at the “full picture”, which he said the tribunal failed to do, Collins J said Mr Smith’s advice to Mr Ashby “cannot properly be regarded as incompetent or in any way negligent”, and his account of what was said to Mr Ashby was “more probable” than that of the solicitors.
In relation to the second charge, Collins J said that while “it is clear that Mr Smith did not deal with the correspondence as sensibly as he should have done… looked at on its own, it could not reasonably have been regarded as justifying a finding of serious professional misconduct”.
The judge said that it was now for the BSB to decide whether a fresh hearing should take place but he recommended that no further action be taken against Mr Smith, “particularly as the BSB has seriously mishandled this case throughout the proceedings”.
A BSB spokeswoman said: “We note the findings in this High Court judgment and will consider them carefully. It would be inappropriate for us to comment any further at this stage.”
Marc Beaumont, the specialist disciplinary barrister who acted for Mr Smith alongside Greg Treverton-Jones QC (instructed by Weightmans), described the ruling as “courageous”.
He said: “The conduct of disciplinary prosecutions should never be abdicated by a regulator to solicitors with a vested interest in the conviction of the accused as a means of exculpating themselves.
“The irregularities highlighted by Mr Justice Collins were brought by me to the attention of the disciplinary panel, who wrongly rejected my submissions. I hope that both the BSB and disciplinary panels will read this decision carefully – and learn from it.”