A public access barrister disbarred for fabricating client letters has won his appeal after the Bar Standards Board was found to have withheld crucial evidence.
Damian McCarthy was disbarred by a Bar Disciplinary Tribunal in 2011 after a finding that he had written Rule 6 letters relating to public access, to clients after a dispute arose about costs. Public access rules state that all client care letters must be sent in advance of work carried out.
But McCarthy appealed the decision after it emerged that in 2010 the BSB had failed to disclose a statement by one of the principal witnesses against him ahead of his hearing.
The Visitors to the Inns of Court rejected his appeal, a decision which was challenged in judicial review proceedings.
In October, Lord Justice Moses granted permission to apply for judicial review as ‘unfairness’ had been carried into the hearing, but he refused to quash the Visitors’ decision.
Sitting in the Court of Appeal, Lord Justice Burnett today allowed the appeal after deciding that disclosure of the withheld statement made it a ‘real possibility that the tribunal would have come to a different conclusion’.
McCarthy’s dispute with a client undertaking employment tribunal proceedings began in 2008 after confusion over certain payments made to him.
The husband of the client, himself a barrister who worked for the Financial Services Authority, told the BSB that they had received no Rule 6 letters in advance of various pieces of work.
The husband provided a 49-paragraph statement prior to the tribunal hearing, but the BSB chose not to disclose it until shortly before the hearing date to ‘remove the possibility of Mr McCarthy fitting his case around that statement’.
Burnett said the conscious decision to subvert disclosure rules was ‘extraordinary’ and left McCarthy ‘blind to any sense of fairness in the conduct of a disciplinary prosecution’.
The judge added: ‘This tribunal was concerned with very serious allegations which had the potential to destroy a professional reputation and bring to end a professional career.’
McCarthy told the tribunal he had sent versions of the model Rule 6 letter by hand and accepted he made no reference to them as the dispute evolved. He observed that had the letters he produced to the BSB been forgeries ‘he might have made a better job of them’.
The tribunal concluded that no letters were sent in advance of client work and that those later produced to the BSB were forgeries.
At appeal, Moses said the result would have been the same even if McCarthy had had the chance to test the husband’s evidence at tribunal. He noted that the barrister’s explanation that he had not searched for the letters early on and only found them in his ‘Bar Council box’ to be ‘incredible’.
At the Court of Appeal, the BSB maintained that the letters were ‘late fabrications’ and the tribunal’s finding met the criminal standard of proof.
But Burnett said that the husband’s evidence was so central to the tribunal hearing that cross-examination would have been capable of undermining his credibility. Even without it, he noted, one of the three panel members would have dismissed the charges.
The judge also rejected a cross-appeal against the decision not to award the BSB its costs.
The BSB has confirmed it is considering whether to bring fresh proceedings to a new tribunal. McCarthy is no longer disbarred but would need to apply for a certificate to go back to practising as a barrister.
Dr Vanessa Davies, director general of the BSB, apologised for a ‘very regrettable and serious mistake’ which ‘should never have occurred’.
She said that since the error, 'we have produced a robust policy on the disclosure of documents in disciplinary proceedings. All staff involved in BSB prosecutions are required to act strictly in accordance with it’.