Findings of dishonesty were overturned by the High Court. In addition, a failure by the legal assessor to refer to House of Lords decision on the balance of probabilities in Re H [1996] A.C. 563 was
Findings of dishonesty were overturned by the High Court. In addition, a failure by the legal assessor to refer to House of Lords decision on the balance of probabilities in Re H [1996] A.C. 563 was criticised.
Obiter, the court was critical that the legal assessor had failed to draw the panel's attention to the House of Lords case Re H [1996]AC 563 which established that, when considering whether an event occurred on the balance of probabilities, the more serious an allegation, the less likely it was to have occurred. Stronger evidence is needed to meet the balance of probabilities for more serious allegations due to the inherent unlikeliness of them having happened.
The case is a useful reminder of the importance of Re H. While the failure in this case was not sufficient to undermine the panel's findings, it can be argued to be good practice for all regulators to ensure that their legal assessors remind fitness to practise panels of the dictum of Lord Nicholls in order to avoid successful challenges of their decisions. Findings of dishonesty are serious, the vast majority of professional practitioners have no proven history of dishonesty and therefore cogent evidence will invariably be required to satisfy a panel that a practitioner has acted dishonestly due to the inherent unlikeliness of the practitioner acting in such a way. The judgment makes clear that in certain circumstances, a failure to properly address a panel on Re H may be sufficient to form the basis for an appeal to the High Court.
Obiter, the court was critical that the legal assessor had failed to draw the panel's attention to the House of Lords case Re H [1996]AC 563 which established that, when considering whether an event occurred on the balance of probabilities, the more serious an allegation, the less likely it was to have occurred. Stronger evidence is needed to meet the balance of probabilities for more serious allegations due to the inherent unlikeliness of them having happened.
The case is a useful reminder of the importance of Re H. While the failure in this case was not sufficient to undermine the panel's findings, it can be argued to be good practice for all regulators to ensure that their legal assessors remind fitness to practise panels of the dictum of Lord Nicholls in order to avoid successful challenges of their decisions. Findings of dishonesty are serious, the vast majority of professional practitioners have no proven history of dishonesty and therefore cogent evidence will invariably be required to satisfy a panel that a practitioner has acted dishonestly due to the inherent unlikeliness of the practitioner acting in such a way. The judgment makes clear that in certain circumstances, a failure to properly address a panel on Re H may be sufficient to form the basis for an appeal to the High Court.