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McCarthy v Visitors to the Inns of Court and Bar Standards Board [2013] EWHC 3253 (Admin) - in what circumstances should a regulator disclose a draft witness statement?

Many regulators will be familiar with the requirement in regulatory proceedings to disclose any material which either undermines the case for the prosecuting regulator or assists the case for the Many regulators will be familiar with the requirement in regulatory proceedings to disclose any material which either undermines the case for the prosecuting regulator or assists the case for the respondent practitioner. It is recognised that a pracitioner facing regulatory proceedings has the right to a fair hearing under both the common law and section 6 of the Human Rights Act 1998. An essential element of a fair hearing, under the common law and the Human Rights Act 1998, is the disclosure of all relevant documents to all parties.

The case of McCarthy v Visitors to the Inns of Court and Bar Standards Board [2013] concerned the failure of Bar Standards Board (BSB) to disclose a draft witness statement.

The BSB brought disciplinary proceedings against Mr McCarthy, a barrister, in respect of allegations that he had produced forged documents. The allegations arose from a complaint made to the BSB by a client of Mr McCarthy that he had been providing legal services under the Direct Access scheme without sending a letter to the client setting out the terms and fees on which he was prepared to be engaged for each piece of work. In response to this complaint, Mr McCarthy produced four letters to the BSB, which he asserted had been sent at the time he was engaged . It is these letters that were alleged to have been forged.

In accordance with the Disciplinary Tribunal's Regulations 2009, the BSB was required to serve a copy of the evidence of each witness that it intended to call in support of the charges. The BSB had taken a draft statement from the client's husband, TA, but made a decision not to comply with the regulations as they did not want to provide Mr McCarthy with the opportunity of doctoring his evidence. The BSB agreed directions with Mr McCarthy that the client and TA would not put in statements, since their evidence was that they had not received the letters, but would be available for cross examination. The directions also provided that 28 days before the hearing, the BSB would serve any additional evidence upon which it intended to rely, and that Mr McCarthy would, by an agreed date, provide the BSB with the evidence on which he wished to rely. At the time of agreeing these directions, Mr McCarthy was not aware of the existence of TA's draft statement.

In accordance with the directions, Mr McCarthy filed his witness statement and exhibits with the Tribunal by the agreed date. In response, the BSB served a signed statement from TA, which responded in detail to a number of matters referred to in Mr McCarthy's witness statement.

The Disciplinary Tribunal, having heard evidence from the client, TA, and Mr McCarthy, concluded that Mr McCarthy had not sent the letters at the time, but had created them subsequently. In reaching their conclusion that the letters had not been sent, the Tribunal commented that TA was "fastidious and precise on issues of detail and was anxious to ensure that he gave evidence that was accurate and consistent with the relevant documents." Both the Disciplinary Tribunal and Mr McCarthy were unaware of the existence of the draft witness statement of TA.

Mr McCarthy brought an appeal to the Visitors to the Inns of Court ('the Visitors'). By the time of the Visitors' hearing, Mr McCarthy had learned of the existence of the draft witness statement for TA. At the hearing, Mr McCarthy argued that TA's credibility would have been "dented" if the draft statement had been his evidence in chief and therefore he had lost a "potential forensic advantage". The Visitors rejected this argument noting, amongst other reasons, that if the BSB had been "forced to serve the statement of TA there would not have been any draft to compare that with." Further, they stated that "if compliance with [the regulations] had been agreed, it is not clear what statement would have been put in." The Visitors concluded that there had been no unfairness to Mr McCarthy.

Mr McCarthy sought judicial review of the Visitors' decision. The High Court held that it was not correct for the Visitors "to hypothesise" as to which statement the BSB would have served first had they been required to do so. The Court stated that TA's signed statement was served first by the BSB, and "having chosen to adopt that course, it was incumbent on the Bar Standards Board to serve...any draft earlier statement which might reasonably be considered capable of undermining the Bar Standards Board's case against Mr McCarthy in that it was capable of undermining the credibility of the witness." The Court commented that, in this case, the Disciplinary Tribunal had "plainly thought that TA's accuracy and fastidiousness were relevant features of his evidence."

The Court strongly rejected the BSB's submission that it was under no obligation to disclose the draft statement because "the Bar Standards Board was under no greater duty than any other civil litigant to serve a draft statement of a witness." It stated that "it seems to me beyond question that in disciplinary proceedings with the potential for such grave consequences, draft statements capable of being used to discredit a witness should be disclosed."

Importantly, the Court compared the proceedings to the criminal process and noted that "the prosecution in criminal cases acknowledges that it is difficult for them to judge the extent to which any inconsistency might be deployed by the defence. No one responsible for the prosecution would hesitate in disclosing a previous draft of a statement such as that which was finally signed and served...After all, if there is no inconsistency, the prosecution has nothing to lose and if there is, there is no warrant for concealing it." The Court could see no reason why the position should be different in relation to disciplinary proceedings brought by the BSB.

The High Court determined that the failure of the BSB to disclose the draft witness statement was unfair and that it would be open to them to quash the decision of the Visitors on the grounds of the "error of law which led to the unfairness...". However, having considered the additional evidence in the case, namely the exchange of emails between Mr McCarthy and TA, the Court concluded that there was "conclusive evidence that four Rule 6 letters were not sent at the time, as they should have been". It determined that "once it is concluded that the Rule 6 letters were not sent, then the charges alleged against him were made out" and on this basis, the Court reluctantly refused to quash the Visitors' decision.

This case serves as an important reminder of the requirement to conduct a careful review of all the material relating to a case when looking at the issue of disclosure. In particular, it should be appreciated that a statement may assist the defence in a way that is not immediately obvious - such as in this case where great importance was placed on the witness' accuracy and clarity of the facts.

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