Professional Documents
Culture Documents
Judgment
Appellant
Respondent
Mr Justice Supperstone :
1.
This is an appeal by Mr Davies from the decision of the Council of the Inns of Court
disciplinary tribunal dated 22 January 2014 by which the tribunal, by a majority of
two to one, found him guilty of one charge of professional misconduct pursuant to
paragraph 301(a)(iii) of the Code of Conduct of the Bar of England and Wales and
imposed a fine of 500 on him.
2.
Particulars of Offence
Henry Davies, a barrister within the meaning of Part X of the
Code of Conduct, engaged in conduct which was/is likely to
diminish public confidence in the legal profession or the
administration of justice or otherwise bring the legal profession
into disrepute in that:
Mr Davies sought to use his professional status as a barrister to
obtain an unjustifiable payment from his dentist, Dr Shrestha
(having already asked for and been offered a full refund of fees
paid to Dr Shrestha together with restorative work free of
charge) by sending a letter dated 13 November 2009 to Dr
Shrestha stating that he was entitled to compensation for Dr
Shresthas alleged delay in dealing with his complaint as well
as for pain, suffering and the adverse effect on my public
speaking in the practice of my profession and asking Dr
Shrestha to send a cheque for 10,000 within 21 days hereof.
3.
4.
The factual background to the disciplinary proceedings can be stated shortly. The
Appellant was a patient of Dr Shrestha between 2007 and 2010. On 8 March 2008
implant surgery was carried out. There were problems with the surgery from the start.
Various attempts at corrective treatment were made over the next 18 months. On 18
August 2009 Dr Shrestha acknowledged that the surgery had failed, and the old
implant was removed. At a review appointment the Appellant expressed his
dissatisfaction with the dental treatment he had received. Between 25 August and 26
September 2009 there were meetings between the Appellant and Dr Shrestha, and
correspondence relating to the matters in issue between them. There was further
correspondence in November 2009.
5.
Mr Davies, who appears in person, as he did before the tribunal, advances three
grounds of appeal. He submits first, that the tribunal failed to give reasons or
adequate reasons for its decision and, in particular, it failed to explain why such
conduct as was found was so serious as to undermine the standards of the profession
such as to amount to professional misconduct; second, the tribunal did not pay proper
regard to the context in which the conduct complained of arose so as to make a safe
decision; and third, the conduct complained of, properly construed, was not so serious
and reprehensible such as to amount to professional misconduct.
6.
In his oral submissions Mr Davies stated what he described as the basic issue in this
appeal in the following terms: the tribunal made findings of fact and arrived at a
decision without considering whether the facts found met the requirements of the
charge, and in particular whether the facts found were serious enough to amount to
professional misconduct.
7.
The Disciplinary Tribunals Regulations 2009, by regulation 18, require the giving of
reasons for the decision of the tribunal on each charge.
9.
The legal principles relating to the adequacy of reasons are well known. In short the
reasons must show that the decision maker successfully came to grips with the main
contentions advanced by the parties, and must tell the parties in broad terms why they
lost or, as the case may be, won. Reasons must be both adequate and intelligible.
They must therefore both rationally relate to the evidence in the case, and be
comprehensible in themselves. (See De Smith Judicial Review, 7th Edition, in
particular at paragraphs 7-102-107).
10.
In Amanda Quinn v The Bar Standards Board (on appeal from the Disciplinary
Tribunal of the Council of the Inns of Court, 25 February 2013) Sir Wyn Williams
said:
40. In our judgment it was incumbent upon the tribunal to
explain its reasoning process in respect of all the
documentation to which we have just referred. It did not do so
and, in our judgment, it thereby fell into error. In a case of this
type with serious potential consequences for the Appellant it
was not sufficient, in our judgment, for the tribunal to announce
verdicts without explaining in some detail the reasoning
process which underpinned them.
11.
The reasons for the majority decision of the tribunal on Charge 1 are set out at pages
118E to 119D of the transcript of the hearing. The material part is as follows:
We accept and find proved that he stated to Dr Shrestha that
he, Mr Davies, was a barrister, a trained mediator and expert in
medical negligence and asserting that he would win the case.
We also accept, and this is sub-paragraph (2), that he stated to
Dr Shrestha that the legal principle of restitution applied to the
case when it did not, and that this meant that Dr Shrestha
should return the fees paid to him by Mr Davies and restore Mr
Daviess state of dentition.
We are not, however, satisfied with sub-paragraph (3), which is
the suggestion or assertion that Mr Davies threatened to sue
Boots the Opticians in respect of an eye test and the sale by
Boots of spectacles to him and that he had deployed the
principle of restitution to seek a refund in respect of those
spectacles. It seemed to us that the evidence in that respect i.e.,
that Mr Davies had said this to Mr Shrestha was not made out.
We were not completely convinced by the way in which it was
put to Mr Davies. His responses seemed broadly plausible. It
seemed to us perfectly possible that there was at least a
Earlier in the decision the tribunal considered the oral evidence of Dr Shrestha and Mr
Davies. The tribunal stated (Transcript, 113D-G):
Broadly speaking, we accepted that Dr Shrestha was an
honest and reliable witness Broadly speaking, we felt that Mr
Davies was not being in any way untruthful, but that in his
evidence he was occasionally a little confused and we formed a
sense that his feelings of grievance over the treatment and the
costs of the treatment predominated over a fully accurate
account of what took place. We were not able to accept his
evidence unreservedly and, in balancing up the witness
evidence, we preferred on the whole the evidence of Dr
Shrestha.
13.
The tribunal stated that it was fortified in coming to the conclusion that it did by some
of the contemporaneous documentation (Transcript, 113H). It then referred to some
of the documents which, in the view of the majority, supported their assessment of the
evidence (Transcript, 114A-118C).
14.
On 25 August 2009 there was a meeting between Dr Shrestha and the Appellant. A
clinical note made by Dr Shrestha recording the conversation he had with the
Appellant stated he allowed the Appellant
to express all his concerns including regretting hav[ing]
started treatment at all, wanting to be back where he started
before treatment that he couldnt afford treatment and was
not prepared to pay for anything else, that he was considering
taking me to Court to sue me, and wanting his money back.
The tribunal said that it saw no particular reason to doubt the accuracy of that note or,
indeed, the clinical notes generally which were drawn up on a computer shortly after
the meetings that took place (Transcript, 114C-D).
15.
The tribunal observed that it is obvious from that letter that, from there on at the very
least, the Appellant felt that represented a clear acknowledgement or admission by Dr
Shrestha that his treatment had fallen below the requisite standard (Transcript, 114G).
17.
There was then an important meeting that took place on 1 September 2009 between
the Appellant and Dr Shrestha. The clinical notes record:
Discussed and mediated way forward for pt as he is a
Barrister and trained mediator, reminded of principle of
Restitution which is in 2 parts:
1. Refund pay back all out of pocket expenses
2. Put back in position as it treatment did not occur.
Agreed that will arrange refund and advised pt to consider
option of MDI completion of treatment as easiest and least
traumatic and protracted, or longer option of conventional
implants and sinus grafts.
To write letter to pt to agree to above.
Commenting on this clinical note the tribunal said:
In our view, that supports the conclusion we have reached,
which is that, at that meeting, Mr Davies did indeed say to Dr
Shrestha that he was a barrister, trained mediator and an expert
in medical negligence. (Transcript, 115B-C).
The tribunal added:
We have also come to the conclusion, having heard the
evidence, that, at that meeting, it was Mr Davies who raised the
so-called principle of restitution, a legal concept which in fact
was not relevant to these proposed issues at all, but
nevertheless was classed by him and restitution was not raised
by Dr Shrestha. (Transcript, 115C-D).
18.
The tribunal stated that they had been careful before attaching too much weight to the
conversations and correspondence between Dr Shrestha and the DDU because, to
some extent, they might be said to be self-serving. However that said the tribunals
general view was that the medical note of the conversation of 14 October 2009 was of
some weight. It appears that the possibility of the reference to the Bar Standards
Board was considered then and not at a much later date, as was suggested by the
Appellant in cross-examining Dr Shrestha (Transcript, 116A-G).
21.
22.
23.
25.
During the course of his oral submissions in relation to this ground of appeal, that the
tribunal failed to give reasons or adequate reasons, Mr Davies made a number of
points. First, the tribunal did not explain why it preferred the evidence of Dr Shrestha
to that of the Appellant on Charge 1 when it found the third limb of Charge 1 not to be
made out. Second, the tribunal failed to explain why the findings of fact that it made
(which the Appellant does not challenge) led it to find that (a) the Appellant abused
his position as a barrister, (b) his conduct brought the legal profession into disrepute,
and (c) amounted to professional misconduct. Third, whilst Mr Davies accepts there
is no mens rea requirement in considering whether conduct amounts to professional
misconduct, he submits that his intention is relevant in deciding the seriousness of the
misconduct; only particularly serious conduct, he contends, will amount to
professional misconduct. Fourth, it is not enough for the tribunal to state that
contemporaneous documents support its findings without explaining how they support
them. Fifth, the tribunal did not explain how the conduct which is the subject of
Charge 1 is said to relate to a single incident (see the Mitigating and Aggravating
Factors sheet) when the tribunal found that the conduct occurred on 25 August and 1
September 2009 (Transcript, 118D-E), which suggests there were two occasions and
two incidents.
26.
The oral evidence of Dr Shrestha was that at the end of the meeting on 1 September
2009 he felt intimidated, threatened and bullied (Transcript, 23A-G). In cross
examination Mr Davies asked him how he felt intimidated (Transcript, 23A-D):
You explained the principle of restitution to me, introduced it
to me and set me a graphic example. You explained that you
were a barrister, that you did not want to take this to Court and
that I should not need to recourse, find recourse in any legal
advice because you were an expert in medical negligence and
you were a trained mediator, which meant that you were
experienced in resolution of conflict. You explained that, if I
did take it to Court, that it would be a protracted and
uncomfortable process and that you would win because of your
expertise and experience.
Having heard the oral evidence of Dr Shrestha and the evidence of Mr Davies in
cross-examination on these matters (Transcript, 75G-85C, and 92C-98B) the tribunal
was, in my view, entitled to conclude that it preferred on the whole the evidence of Dr
Shrestha (Transcript, 113G-H). The tribunal had regard to the contemporaneous
documentation which fortified it in coming to the conclusion that it did for the reasons
it has given (see paras 16-24 above).
28.
I accept the submission made by Mr Moran, for the Respondent, that there was ample
oral and documentary evidence to support the finding made by the tribunal that Mr
Davies abused his position as a barrister by threatening to sue Dr Shrestha for
negligence and by fortifying this threat by stating to Dr Shrestha that: (1) he was a
barrister, a trained mediator and expert in medical negligence and asserting that he
would win the case; and (2) the legal principle of restitution applied to the case and
that this meant that Dr Shrestha should return the fees paid to him by Mr Davies and
restore Mr Daviess state of dentition to that which obtained when Mr Davies first saw
Dr Shrestha in February 2007.
29.
The tribunal gave two reasons for the finding that Charge 1 and the particulars set out
under that charge at sub-paragraphs (1) and (2) had been proved to the criminal
standard: first, it preferred the testimony of Dr Shrestha to that of Mr Davies on the
facts set out in the charge and in the particulars; and second, the contemporaneous
documentation supported Dr Shresthas account. In my view the tribunals reasons
were adequate for the issues of fact they covered and the nature of the evidence the
tribunal had to consider.
30.
The fact that the tribunal found the particulars set out under Charge 1 at subparagraphs (1) and (2) had been proved, but decided that the evidence on subparagraph (3) was not sufficiently cogent to justify a finding on the allegation set out
in that paragraph indicates the care with which the tribunal considered the evidence.
The tribunal, in my view, gave adequate reasons for the findings that it made in
relation to the conduct alleged in all three sub-paragraphs. I do not accept the
contention impliedly made by Mr Davies that having found the conduct in subparagraph (3) not made out, the tribunal could not properly have reached the
conclusion that it did in relation to sub-paragraphs (1) and (2). The tribunal did not
state that it disbelieved Dr Shresthas evidence in relation to sub-paragraph (3). The
finding that the third limb of Charge 1 was not made out was because it seemed to the
tribunal perfectly possible that there was at least a confusion of some sort where
Mr Moran accepts that the tribunal did not consider under separate headings the
question whether Mr Davies abused his position as a barrister by the conduct that it
found proved or whether that conduct brought the legal profession into disrepute.
However I accept Mr Morans submission that Mr Daviess conduct (1) in threatening
to sue a lay person for negligence and fortifying the threat by stating that he was a
barrister, trained mediator and expert in medical negligence and that he would win the
case if it went to court, and (2) in invoking the legal principle of restitution that in fact
did not apply to the case, in and of itself is an abuse of his position as a barrister and
conduct which is likely to bring the legal profession into disrepute.
32.
Mr Moran also accepts that the tribunal did not formally and separately address the
question of whether the conduct as found was serious enough to amount to
professional misconduct. He pointed out that the tribunal clearly had this in mind
because it found that the conduct undermined the Bar in the eyes of the public when it
considered Aggravating Factors on sentencing Mr Davies. The threats made by Mr
Davies caused Dr Shrestha to feel intimidated, threatened and bullied (see para 26
above). I accept Mr Morans submission that the conduct as found by the tribunal
self-evidently was serious misconduct which amounted to professional misconduct
within the meaning of paragraph 301(a)(iii) of the Code of Conduct. Conduct may be
professional misconduct even if not intentional (see Walker v Bar Standards Board,
19 September 2013, per Sir Anthony May at para 21). The issue is whether a
reasonable observer would conclude that the Appellant behaving in the way he did
was likely to bring the Bar into disrepute (Craven v Bar Standards Board, 30
January 2014, per Silber J at para 40). In my judgment a reasonable observer would
so conclude.
33.
Mr Davies emphasises that a disciplinary tribunal has a duty to look at the whole
picture surrounding an allegation of professional misconduct (see Nandi v General
Medical Council, 4 October 2004, per Collins J at para 51). In the present case it is
important, he submits, to note that there had been a patient/dentist relationship
between himself and Dr Shrestha in 2007 and thereafter between 2008 and 2010; Dr
Shrestha had carried out on him extensive surgery which had failed; and the tribunal
accepted that he had feelings of grievance over his treatment (see Transcript, 118BG).
35.
In relation to the conduct referred to in sub-paragraph (1) of Charge 1 the tribunal was
wrong, Mr Davies submits, to look at the events on 25 August/1 September 2009 in
isolation. He had had a meeting with Dr Shrestha on 18 August 2009 when he says he
indicated to Dr Shrestha that he was not prepared to pay for further treatment, that he
was considering suing him and taking him to court and that he wanted his money
back. His grievance was acknowledged at the meeting on 25 August 2009.
Accordingly Mr Davies submits court action was in the mind of both parties prior to
the statements referred to in sub-paragraph (1).
36.
37.
There is, in my view, nothing in this ground. The tribunal was fully aware of the
context. It heard oral evidence from Mr Davies and Dr Shrestha, and plainly had
regard to the material documents produced by the parties at the hearing. Thereafter
the tribunal made the findings of fact and the decisions it did for the reasons it has
given. Those reasons indicate that the tribunal did look at the whole picture
surrounding the allegations it considered, as it was required to do.
39.
40.
Mr Moran submits that the tribunal clearly and correctly considered that the conduct
as found was sufficiently serious to amount to professional misconduct, irrespective
of Mr Daviess intention.
41.
In my judgment, having made the findings of fact that it did the tribunal was entitled
to consider that the conduct it found proved could properly be regarded as sufficiently
serious as to amount to professional misconduct.
Conclusion
42.