Wayne Lewis v The Bar Standards Board

The Appellant is a barrister who was called in 1982. The Respondent is the regulatory body for barristers.

The Appellant faced 5 misconduct charges at a 4 day hearing which started on 4.12.2023 and ended on 15th February 2024. He was found guilty of all charges and the sanction imposed was 18 months suspension from practice with costs against him of £5,443 including VAT. The charges all arose out of the Appellant acting on a direct professional access (DPA) retainer for KW in her ancillary relief proceedings (the money dispute arising from her divorce). His fees were payable under a damages based agreement (DBA). The fees were not calculated at an hourly rate for the work he did, but instead were agreed at 15% of the sums which KW recovered. After the dispute was settled, the matrimonial home was sold and the net proceeds of sale and a lump sum, which together came to over £300,000, were due to be paid to KW. The Appellant advised her to have those sums paid into one of his bank accounts to ensure that his fees (over £52,000) were paid. KW agreed and the sums were paid into an account at Barclays Bank held by a company bearing his name: Wayne Lewis Ltd. He then took his fees from the sums. The problems with this arrangement were manifest. Firstly, as a barrister, he was not permitted to accept or retain his client’s money. He was only entitled to accept his fees. Secondly, he did not provide a client care letter for this arrangement. Thirdly, he did not pay the money back on demand. He retained about £17,000 of it, drip paid and gave a huge range of excuses over the course of 3 years and 10 months, both to KW and the Legal Services Ombudsman, before finally paying the last tranche back in August 2023.

On 8.3.2024 the Appellant filed his notice of appeal against sanction but not the findings of misconduct. Then, on 18.4.2024, the Appellant applied to amend the grounds of appeal to include an appeal against the findings of misconduct. By consent permission was granted.

For the hearing I was provided with an Appellant’s Bundle, a Respondent’s Bundle; a joint Authorities Bundle; skeleton arguments and a costs schedule. The original Tribunal Bundle and the Bar Handbook containing the relevant standards at the time were also provided during the hearing.

This appeal raises the following issues.

The charges can be summarised as follows. Charge 1: failing to provide a client care letter for the work he had agreed to perform and hence acting in a manner likely to diminish the trust and confidence of the public in him or the profession and/or failing to act in the best interests of the client (breaching Core Duties 2 and 5 and rC125.1).

Charge 2: receiving, controlling or handling client money: £322,989.18; paying it into a bank account over which he had control; using the money to make unauthorised payments which were not on the client’s behalf and hence failing to act in the client’s best interests and/or failing to act with integrity and/or acting in a manner likely to diminish the trust and confidence which the public placed in him or the profession (breaching Core Duties 2, 3 and 5 and rC8 or rC73).

Charge 3: handling client money (£250,000), by transferring it into his personal bank account on 17.10.2019 and hence failing to act honestly or with integrity and/or acting in a manner likely to diminish the trust and confidence of the public in him or the profession and/or failing to act in the best interests of the client (breaching Core Duties 2, 3 and 5 and rC8 or rC73).

Charge 4: failing to repay the client money to his client and hence acting in a manner likely to diminish the trust and confidence of the public in him or the profession and/or which could be seen by the public to undermine his integrity (breaching Core Duties 2, 3 and 5 and rC8).

Charge 5: misleading the Legal Services Ombudsman on 16.3; 22.6; 15.7 and 28.7.2021, by informing the LSO that he would repay the client £14,000 when he knew or ought to have known he was unable or unwilling to do so and hence failing to act in the client’s best interests and/or failing to act with honesty or integrity and/or acting in a manner likely to diminish the trust and confidence which the public place in him (breaching Core Duties 3 and 5 and rC8 or rC9.1).

The relevant parts of the Handbook are:

“B The Core Duties

…

CD2 You must act in the best interests of each client.

CD3 You must act with honesty, and with integrity.

…

CD5 You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.”

“rC8 You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).

rC9 Your duty to act with honesty and with integrity under CD3 includes the following requirements:

.1 you must not knowingly or recklessly mislead or attempt to mislead anyone;”

“rC73 Except where you are acting in your capacity as a manager or employee of an authorised (non-BSB) body, you must not receive, control or handle client money apart from what the client pays you for your services.”

“rC125 Having accepted public access instructions, you must forthwith notify your public access client in writing, and in clear and readily understandable terms, of:

.1 the work which you have agreed to perform;

.2 the fact that in performing your work you will be subject to the requirements of Parts 2 and 3 of this Handbook and, in particular, Rules rC25 and rC26;

.3 unless authorised to conduct litigation by the Bar Standards Board, the fact that you cannot be expected to perform the functions of a solicitor or other person who is authorised to conduct litigation and in particular to fulfil obligations arising out of or related to the conduct of litigation;

.4 the fact that you are self-employed, are not employed by a regulated entity and (subject to Rule S26) do not undertake the management, administration or general conduct of a client’s affairs;

.5 in any case where you have been instructed by an intermediary:

.a the fact that you are independent of and have no liability for the intermediary ; and

.b the fact that the intermediary is the agent of the lay client and not your agent;

.6 the fact that you may be prevented from completing the work by reason of your professional duties or conflicting professional obligations, and what the client can expect of you in such a situation;

.7 the fees which you propose to charge for that work, or the basis on which your fee will be calculated;

.8 your contact arrangements; and

.9 the information about your complaints procedure required by D1.1 of this Part 2.”

“Definitions: “Client” means, the person for whom you act and, where the context permits, includes prospective and former clients”

The tribunal was chaired by His Honour Judge Meston KC and consisted of five members, two of whom were barristers and two of whom were lay members (the Tribunal). The reasoning was dated the 19th of February 2024 and can be summarised as follows. Although in his witness statement the Respondent admitted breaching his duty of care to KW in relation to Charge 2, the Tribunal treated all the charges as denied because that was the Respondent’s approach at the hearing. The Tribunal found that the Respondent did mainly direct professional access work (DPA) out of Access Lawyers Chambers. In 2017 he ran a company called Wayne Lewis limited trading as “Access Lawyers” but he resigned as a director in January 2018, stayed on as company secretary and his former wife was a director of that company. On the 7th of December 2017 he issued a client care letter (CCL) to KW to represent her in a dispute over finance arising from her divorce and in particular for a forthcoming hearing for a fee of £5,000 plus VAT. Thereafter he was to review the proceedings and to issue a further letter if further work was needed. One of the terms of the CCL was that barristers do not handle clients’ money (clause 7) and he expressly stated he had training and certificates to conduct litigation. The Tribunal found that on the 28th of December 2017 the Respondent entered a damages based agreement (DBA) with KW under which he would be paid 15% of the amount received in the financial dispute if the settlement or award was more than what was currently on the table at that date. The Tribunal found that the financial dispute was settled on the 30th of July 2018 on terms involving the sale of the matrimonial home and the balance of the proceeds being paid to KW together with a lump sum of £25,000. One year later, on the 2nd of July 2019, the matrimonial home was sold and the conveyancing solicitors who had been jointly instructed were instructed by KW on the 3rd of July 2019 to pay the proceeds into a Barclays Bank account of Wayne Lewis limited trading as Access Lawyers. So, £322,989.18 was paid into that account. The Tribunal found that from that sum the Respondent’s fees were deducted, which amounted to £52,950, leaving a balance owing to KW of £295,039.18. The Tribunal noted that in her witness statement KW stated that she and the Respondent had agreed that the Respondent’s employee, Mrs Raana, would do the conveyancing for her planned future purchase of her next house and on that basis she agreed that the proceeds would go into the Respondent’s bank account. Thus, on the 14th of August 2019 the Respondent confirmed to KW that he was holding the money in what he called his “business client account” (BCA). She needed this information for her purchase. Just stopping there for a minute. Those words “client account” used by the Respondent were a falsity. It was not a client account, as the Appellant admitted, it was a business account for the company. The sums were not held on trust for clients in that account.

In early October 2019 the Respondent withdrew £38,000 from the BCA and thereafter he had insufficient funds to pay what he owed to KW. On the 16th of October 2019 KW required payment of the suns owing to her by the Respondent. The next day £250,000 was paid out from the BCA to the Respondent’s personal account. The Tribunal found £277,709 was then paid to KW on the 22nd of October 2019 leaving an outstanding balance of £17,539.18. The Tribunal found that the Respondent provided confusing evidence about what happened thereafter. He begged for time to pay on many occasions and KW became angry. The Tribunal set out various part payments made by the Respondent until December 2020 when KW complained to the Legal Ombudsman Service. On 16th March 2021 the Respondent gave an explanation involving his company being closed down and him overspending in which the Respondent accepted that he had let KW down and that it was his fault and offered to pay £14,000 to settle the sums owing within 28 days and to “save his career”. The Tribunal found, in their judgment, that this letter did not accurately present the facts namely that the Respondent had removed £38,000 from the BCA on the 3rd of October 2019. The Tribunal noted a few more payments and then that the Respondent negotiated with the Ombudsman. On the 15th of July 2021 the Ombudsman referred the Respondent to the Bar Standards Board. The Respondent then accepted that he owed £14,000, including £1000 of compensation, to KW and said he would pay that so on the basis of this offer the Ombudsman closed his file considering the offer to be reasonable. The Tribunal noted that the Respondent did not make the payment offered but made smaller part payments and then stopped paying in September 2021. As a result KW wrote to the Ombudsman asking him to reopen the case. It was reopened and an investigator was appointed and the Respondent asked for more time again. The Ombudsman finally decided on 27th of February 2022 that, having made some further smallish payment, the Respondent owed £12,350 including compensation and ruled that the Respondent was a barrister who had “intermingled client money” with his own money and recognised this was poor service and made a final decision that £12,350 was owing. The Respondent was required to pay by the 14th of March 2022 and failed to do so. The Ombudsman requested he paid by the 23rd of March but he failed to do so. Thereafter, the Respondent made various part payments. The Respondent’s first explanation to the BSB was provided on the 9th of May 2022 and it involved asserting that his company was being wound up so it was for that reason that that he transferred £250,000 to his personal personal account, to “protect” KW. He could not explain the shortfall. He did not explain why £38,000 had been removed from the BCA on the 3rd of October 2019 and the bank statements he provided did not show what happened to those sums. The Tribunal noted that various other part payments to KW were made in 2022 and 2023 with the final sum being paid on the 15th of August 2023.

The Tribunal assessed the evidence they had heard from KW, Mr. Williams of the Ombudsman service and the Respondent. They considered that KW was a credible witness. They considered that the Respondent was not credible, was evasive, blamed others and had a poor grasp of his duties. They preferred the evidence of KW.

On charge 1 the Tribunal rejected the Respondent’s defence that KW was no longer his client when he held her money. The Tribunal found that KW signed an agreement to instruct Access Lawyers to do her conveyancing but no copy had ever been provided. The Tribunal refused to find that there was no client care letter in view of the finding that an agreement for conveyancing had been signed. However, separately, the Tribunal found under charge one that KW entrusted the Respondent with the proceeds of sale of the matrimonial home when she was his client and the Respondent had this sum paid into the bank account of Wayne Lewis Limited at a time when KW was his client or at least a former client. In those circumstances the Tribunal found the Respondent had a duty of care to safeguard the funds and to keep them separate from his own and the Tribunal found that KW and the Respondent had an ongoing professional relationship. In relation to the definition of the word “client”, the Tribunal found that the BSB Handbook defined “client” as “a client or former client where the context so permitted”. The Tribunal found that the Respondent treated KW like a client. He wanted the sums paid to him to ensure payment of his fees under the DBA. He had duties under rules rC73 which prohibited a self-employed barrister handling client’s money save for his own fees which he broke. Under rule rC125 (the rule relating to direct access clients, the Tribunal found that the Respondent should have told KW he could not act in the purchase of next property, the purpose for which he would hold her money and what she as a client could expect. The Tribunal held that he had a duty to keep accounts and records in relation to her money which he held. The Tribunal found KW continued as the Respondent's client after he was paid for the finance dispute work and as such he had continuing obligations which he breached and therefore they found charge 1 proven.

On charge 2, the Tribunal found that the Respondent held and controlled and handled KW’s money and made unauthorised use of KW's money by withdrawing £38,000 from the account and refusing or failing to explain how he used it. On the basis that the Respondent was no longer a director the Tribunal pointed out that if he no longer had control of the funds when he paid them into Wayne Lewis Ltd's BCA account then he lost control of KW's accounts from then on.

On charge 3 the Tribunal found that the Respondent had given various different explanations for the transfer of £250,000 into his own personal account. They noted this transfer occurred after KW asked for the money to be returned and they noted the Respondent never informed KW that her money was “at risk” in the company “BCA” bank account. They found charge 3 proven. They did not find that the Respondent had been dishonest but instead that transferring money into his own account would undermine trust in the profession therefore establishing charge 3.

On charge 4, failure to repay, the Tribunal found this charge established and found that it was aggravated by repeated failure to repay on demand. The Tribunal found that the Respondent knew that he would need a loan to pay but did not get a loan. The Tribunal found this showed a significant lack of integrity and was conduct likely to diminish trust in the profession.

On charge 5 the Tribunal found that the charge was proven and that the Respondent’s offers to the Legal Service Ombudsman lacked integrity and likely to diminish trust in the profession.

In relation to sanction the Tribunal took into account that the Respondent had no previous misconduct charges and that he asserted he did not believe that KW was his client and so was more casual with her, but considered that his conduct fell into the category group D, with high seriousness, involving abuse of a position of trust; considerable experience; the reliance that KW placed on the Respondent; the Respondent retaining money to avoid his own financial issues; recklessness; substantial failures; putting his interests above a vulnerable client’s interests; the emotional harm suffered by KW as well as the financial disadvantage and the increased stress and the undermining of public confidence in the profession and of integrity. In relation to mitigation the Tribunal took into account that the Respondent had 40 years of experience and that the charge only related to one client but found that the risk that this could recur with other clients could “not be disregarded” and that no measures had been put in place to avoid repetition despite the Respondent having an extensive direct access practice.

Ground one, vagueness. The Appellant asserted that the charges had inadequate particulars. The Appellant asserted that the charges did not make clear which part of the client care letter was unsuitable and in relation to charges 1-2 and 4 the dates of the alleged breaches were not set out. It was asserted under ground 1 that if KW was a former client when the sums were received then the Respondent could not be guilty of the charges as drafted because charges 1, 2, 3 and four all used the words “his client”. Thus, it was argued, if KW was the Respondent's “former client” at the relevant dates the charges were bound to fail.

The Appellant relied on Article 6(3)(a) of the European Convention on Human Rights (ECHR) which required that defendants are to be informed in detail of the nature and cause of the accusations made against them. The Appellant asserted that the vagueness of the charges led to unfairness in that the Appellant could not fully address the charges in his defence.

Ground two, the company held the money, not me. The Appellant asserted that a separate legal entity, Wayne Lewis Ltd, held the money and the Tribunal had in some way pierced the corporate veil without setting out any rational reasons how the corporate veil had been pierced, thus the decision was wrong in relation to receiving holding and dealing with client money. Under this ground the Appellant asserted Mrs Raana was employed the company not by the Respondent.

Ground three, end of retainer, findings of fact on receipt and use of funds. In this ground the Appellant repeated the assertion that KW was no longer the Respondent’s client after 19th July 2019. The Appellant asserted that KW was a client of Wayne Lewis Ltd who were going to deal with the conveyancing of her future house. The Respondent accepted that he had taken “measures” to safeguard KW's money by “accepting it” into his own bank account because Wayne Lewis Ltd was struck off the register of companies on the 20th of October 2019 and if he hadn't transferred KW's money into his own bank account it might have been “lost”, therefore he asserted that it was an “emergency situation” in which he was protecting KWs money.

Ground four. Under this ground the Appellant pointed out that there was no pleaded duty to safeguard KW's money in any of the charges and the Appellant again asserted that he was a separate legal entity from Wayne Lewis Ltd and the Tribunal was wrong in law to impose a duty on him when KW was the client of the company not of him.

Appeal against sanction. There were 8 original grounds of appeal against sanction. The first was the the Respondent’s age, he will be nearly 72 when the suspension ends. The second was that the Tribunal did not discuss suspension before passing that as a sentence. The third, was that the Tribunal failed to weigh his 40 years of good professional practise, his clean record and his remorse. The fourth was that his offending fell into the moderate culpability bracket of class D because there was limited harm and there was no medical evidence of stress or mental suffering by kW. The fifth ground was his acceptance that he breached the trust of KW. He accepted that she trusted him with the sale proceeds and he was reckless as to his method of protecting her money. He relied on recklessness rather than intention as a mitigating factor. The sixth ground was that he should have been given credit for repaying the debt in full and for paying compensation as required by the Legal Ombudsman. He asserted there was no risk of repetition. The seventh ground was that he would not be doing conveyancing again. The eighth ground was that the costs were excessive and that they were increased due to technical video difficulties with the connection made for the BSB's witness at the hearing which were not his fault.

The Appellants verbal submissions were clearly and helpfully crafted by his counsel. He relied on the rule of common law fairness summarised by Stanley Burnton J in R (Wheeler) v Metropolitan Police [2008] EWHC 439, in which, at paragraphs 1.6 and 1.7, vagueness in charges which leads to potential unfairness at disciplinary hearings was ruled to be a reason for judicial review of the result. The appellant also relied on Albert v Belgium [1983] 5 E.H.R.R 533, in which Article 6 of the ECHR and in particular Article 6(3)(c) setting out the duty to inform the accused of the nature and the detail of the cause was confirmed and it was submitted that Art 6 was applicable in cases such as this. In relation to charge 1 the Appellant submitted that it was not clear from the Tribunal's judgment what the Appellant had been convicted of. Wholly properly the Appellant’s counsel brought to the Court’s attention the decision in Richards v Law Society [2009] EWHC 2087, in which May LJ and Saunders J ruled that clarification of the charges could be drawn from the prosecutor's opening statement (see paras. 30 and 33). The Appellant submitted that the ruling in Wheeler should be preferred to the ruling in Richards because professionals should be given the benefit of the doubt on the natural justice point that clarifying a charge as late as the opening at a hearing does not give sufficient time for the accused to gather together his defence or to defend himself properly. The Appellant then showed how the the vague initial wording of charge 1 became focussed on the client care letter not covering conveyancing or the receipt of money from KW in July 2019. The Appellant submitted that charge 2 did not set out any dates so was unfair. The Appellant submitted that the money was paid into a company account which was owned by a separate legal entity and that KW was not “his” client when the sums went into the BCA. In relation to charge 3, the Appellant denied that the money paid in was client money because KW was a “former client”. In relation to charge 4 it was submitted that the charge was misconceived because it asserted that the Respondent failed to repay the money, it did not assert that he delayed repayment of the money. If it had asserted delayed repayment he would have pleaded guilty, but as it asserted failing to repay it was factually incorrect and no conviction could have arisen from it. The Appellant relied on the transcript in which his counsel began to raise what appeared to be a preliminary issue about the separate legal entities point in examination in chief of the Appellant. However, this never turned into a submission at half time and was in the end a submission made at the end of the hearing. I was taken to parts of the transcript which showed that the Appellant accepted in cross examination that he pitched to be the conveyancer for the sale of the matrimonial home but that KW's ex-husband refused to instruct him and so he was not appointed to sell to the house. This was a bizarre piece of evidence in view of the fact that the Respondent accepted throughout that he was not qualified to act as a conveyancer and so should never have been doing that. The Appellant complained that foreseeability of harm was not part of any of the drafted charges. The verbal submissions in relation to sanction ran along the lines set out in the skeleton argument.

It can be seen from this summary that the drafting of the charges was central to the appeal against conviction. The assertion that the charges were unfair because they were so vague runs throughout the appeal and the assertion that the company: Wayne Lewis Ltd, was responsible for receiving and dealing with the money, not the Appellant, is a main theme in multiple grounds. The Grounds do not make plain that any particular factual finding is being attacked nor was the finding of misconduct on charge 5 attacked.

Under S.24 of the Crime and Courts Act 2013:

“24 Appeals relating to regulation of the Bar:

(1)

…

(2)

The General Council of the Bar, … may confer a right of appeal to the High Court in respect of a matter relating to—

(a)

regulation of barristers,”

The right to appeal the decision of a Bar Tribunal and Adjudication Service (BTAS) tribunal is set out in the BSB Handbook at rE236 which states:

“In cases where one or more charges of professional misconduct have been proved, and/or a disqualification order has been made, an appeal may be lodged with the High Court in accordance with the Civil Procedure Rules:

.1 by the Respondent against finding and/or sanction;

.2 with the consent of the Commissioner, by the Bar Standards Board against sanction.”

The procedure on appeal is set out in the Civil Procedure Rules. Part 52 governs appeals. In relation to whether the appeal is a review or a rehearing and the appellate Court’s powers, CPR r.52.21 says this:

“Hearing of appeals

52.21

(1) Every appeal will be limited to a review of the decision of the lower court unless—

(a)

a practice direction makes different provision for a particular category of appeal; or

(b)

the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2)

Unless it orders otherwise, the appeal court will not receive—

(a)

oral evidence; or

(b)

evidence which was not before the lower court.

(3)

The appeal court will allow an appeal where the decision of the lower court was—

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4)

The appeal court may draw any inference of fact which it considers justified on the evidence.

(5)

At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice unless the court gives permission.” (My emboldening).

There is a Practice Direction governing statutory appeals (PD52D). It does not require, in PD 27.1A or elsewhere, that such appeals are by way of rehearing. The Respondent submitted that this appeal should be run under the normal rule that it is a review not a rehearing. The Appellant did not demur. I have not been provided with circumstances which would justify displacing the normal rule and so approach this appeal as a review. In any event it is clear that the Court’s powers under CPR Part 52 to overturn a tribunal’s decision are the same whether the procedure is a rehearing or a review. Both are tied to the grounds of appeal. In reviews, the evidence is limited to that relevant to the grounds of appeal and the parties are discouraged from putting before the appellate Court all of the evidence before the Court below. So PD52B at para 6.4 expressly requires the appeal bundle in a review only to contain witness statements and documents relevant to the appeal. A full transcript of the evidence is not required.

Where the appeal is against the findings of fact of the tribunal, what are the tests, or gateways which the High Court is to apply to determine whether the tribunal’s decision was “wrong”? There are 3 standard gateways to determining whether a decision is wrong which are separate from the gateway for serious procedural or other irregularity. These are: (1) a failure to give sufficient reasons; (2) making findings which are irrational or which no reasonable tribunal could make or which fail to take into account relevant matters or take into account irrelevant matters; (3) making findings of fact which are not supported by the evidence.

The correct approach to the test in relation to appeals against findings of fact run by way of rehearing was considered by Sharp LJ and Dingemans J in the Divisional Court in General Medical Council v. Jagjivan [2017] 1 WLR 4438. The following principles were expounded (at paras. 39-40):

“The correct approach to appeals under section 40A

39.

As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ. 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ. 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ. 407; [2010] 2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.

40.

In summary:

i)

Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.

ii)

It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are ‘clearly wrong’: see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.

iii)

The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).

iv)

When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).

v)

In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person’s fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.

vi)

However there may be matters, such as dishonesty or sexual misconduct, where the court “is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …”: see Council for the Regulation of Healthcare Professionals v GMC and Southall[2005] EWHC 579 (Admin); [2005] Lloyd’s Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court “will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee’s judgment more than is warranted by the circumstances”.

vii)

Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.

viii)

A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal’s decision unjust (see Southall at paragraphs 55 to 56).”

In Volpi v Volpi [2022] EWCA Civ. 464, Lord Justice Lewison gave guidance thus:

“Appeals on fact

2.

The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

i)

An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii)

The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii)

An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv)

The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v)

An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi)

Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

3.

…

4.

…

5.

Tribunals are free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense. Whether any positive significance should be attached to the fact that a person has not given evidence, or to the lack of contemporaneous documentation, depends entirely on the context and particular circumstances: Royal Mail Group Ltd v Efobi [2021] UKSC 33, [2021] 1 WLR 3863.”

Failure to give adequate reasons is a longstanding gateway for allowing an appeal. This was recently neatly summarised by Morris J in Byrne v GMC [2021] EWHC 2237 thus:

“(5)

The extent of the duty to give reasons

Thus, it is apparent that the scope of the duty to give reasons is a flexible one dependent on the complexity of the facts of the case and the need for fairness in explaining to the losing party the decisions of fact and the decisions on the credibility of the witnesses, so that the losing party on any point can understand why the decisions were reached and consider whether to appeal.

Laws LJ in Raschid v GMC [2007] EWCA Civ. 46; 1 WLR 1460, (an appeal against sanction case) ruled that:

“17.

The first of these strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1 WLR 1691, para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:

“It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517—519 where his Lordship set out the general approach that has to be adapted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: “The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.” Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.”

18 The panel then is centrally concerned with the reputation or standing

of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said:

“28.

. . . In the Appellant’s case the effect of the committee’s order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

“29.

That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the Appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified.”

19.

There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord

Hoffmann giving the judgment of the Board in Bijl v General Medical

Council [2002] Lloyd’s Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett’s observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:

“the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances.”

20.

These strands in the learning then, as it seems to me, constitute the

essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”

The Tribunal’s expertise and role is taken into account by the High Court in an appeal and deference and respect is given to that role and to the three purposes behind the role which the Tribunal is serving, namely: protection of the public, protection of the reputation of the profession (not punishment) and maintenance of high standards. Whereas the respect may be profound, the deference is not total. It is measured by reference to the test to be applied to determine whether the Tribunal’s decisions were wrong as to fact (or law).

In Grizzly Business v Stena Drilling [2017] EWCA Civ. 94, the advantage which the Tribunal has over the appellate Court was summarised by Longmore, Lloyd Jones and Treacy LJJ, thus:

“39.

The parties were broadly agreed upon the relevant law in the light of the recent Supreme Court decisions of Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600 and McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 the latter of which cited with approval Hamilton v Allied Domecq Plc [2006] SC 221, para 85. In the latter case it was said:-

“If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance.”

In Henderson the Supreme Court (para 62) also said:-

“It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”

We have also had regard to the last three reasons why appellate courts are warned not to interfere with findings of fact unless compelled to do so as enumerated by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ. 5:-

“iv)

In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v)

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi)

Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”

I take into account that I am at a disadvantage when assessing the credibility of the witnesses who gave evidence in person at the Tribunal hearing. The members heard and saw them give evidence, I did not. All this Court can analyse is the transcript and the witness statements against the documentation. This is an obvious disadvantage when assessing honesty and credibility.

The correct approach to appeals against findings of fact was reconsidered in R (Dutta) v GMC [2020] EWHC 1974 (Admin), a statutory appeal in which Jagjivan was not cited. Warby J ruled as follows (I have not repeated the long list of citations):

“20.

… This is a challenge to the Tribunal’s fact-finding processes at Stage 1. A specialist Tribunal may of course have specialist expertise that is relevant at that stage, but this is not such a case. If the Court finds that the Tribunal went wrong at the first stage, it should quash the conclusions at all three Stages, unless persuaded that the error would have made no difference to the outcome. That, as Ms Hearnden rightly accepts, is a high threshold, which is not readily satisfied: R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR 3315, 3321.

21.

Bearing that in mind, the points of most importance for the purpose of this case can be summarised as follows:

(1)

The appeal is not a re-hearing in the sense that the appeal court starts afresh, without regard to what has gone before, or (save in exceptional circumstances) that it re-hears the evidence that was before the Tribunal. “Re-hearing” is an elastic notion, but generally indicates a more intensive process than a review: E I Dupont de Nemours & Co v S T Dupont (Note) [2006] 1 WLR 2793 [92-98]. The test is not the “Wednesbury” test.

(2)

That said, the Appellant has the burden of showing that the Tribunal’s decision is wrong or unjust: Yassin [32(i)]. The Court will have regard to the decision of the lower court and give it “the weight that it deserves”: Meadow [128] (Auld LJ, citing Dupont [96] (May LJ)).

(3)

A court asked to interfere with findings of fact made by a lower court or Tribunal may only do so in limited circumstances. Although this Court has the same documents as the Tribunal, the oral evidence is before this Court in the form of transcripts, rather than live evidence. The appeal Court must bear in mind the advantages which the Tribunal has of hearing and seeing the witnesses, and should be slow to interfere. See Gupta [10], Casey [6(a)], Yassin [32(iii)].

(4)

Where there is no question of a misdirection, an appellate court should not come to a different conclusion from the Tribunal of fact unless it is satisfied that any advantage enjoyed by the lower court or Tribunal by reason of seeing and hearing the witnesses could not be sufficient to explain or justify its conclusions: Casey [6(a)].

(5)

In this context, the test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Yassin [32(v)].

(6)

The appeal Court should only draw an inference which differs from that of the Tribunal, or interfere with a finding of secondary fact, if there are objective grounds to justify this: Yassin [32(vii)].

(7)

But the appeal Court will not defer to the judgment of the Tribunal of fact more than is warranted by the circumstances; it may be satisfied that the Tribunal has not taken proper advantage of the benefits it has, either because reasons given are not satisfactory, or because it unmistakably so appears from the evidence: Casey [6(a)] and cases there cited, which include Raschid and Gupta (above) and Meadow [125-126], [197] (Auld LJ). Another way of putting the matter is that the appeal Court may interfere if the finding of fact is “so out of tune with the evidence properly read as to be unreasonable”: Casey [6(c)], citing Southall [47] (Leveson LJ).” (My emboldening)

If the Appellant proves that the Tribunal’s decision is Wednesbury unreasonable then the appeal will be granted. I say this despite what Warby J ruled in Dutta because I consider that when he said it is not the Wednesbury test, he was ruling that the test of “wrong” encompasses Wednesbury but goes beyond it. The Wednesbury test is used for judicial review and involves consideration of 3 classic gateways. Firstly, whether the Tribunal has made an irrational decision, in the sense that no reasonable Tribunal could have come to that decision on the evidence. Secondly, whether the Tribunal has taken into account matters which are irrelevant when reaching a material finding of fact (for instance skin colour, gender, religious beliefs, political allegiance). Thirdly, whether the Tribunal has failed to take into account a relevant matter when making a material finding of fact (for instance objectively independent documentary evidence stating the opposite). This is settled law in judicial review. If the Tribunal’s decision is one no reasonable Tribunal could make then it will be held to have been wrong.

This Court is not permitted to allow the appeal just because this Court disagrees with the Tribunal’s findings on one or more facts. Lawyers may honestly disagree over almost everything, but that is not a ground for allowing an appeal. For this gateway, which may exist at an evidential level below the level at which the evidence on appeal reaches Wednesbury unreasonable, there are three threshold principles set out in the case law which make the gateway difficult to open:

I considered this issue in Roach v GMC [2024] EWHC 1114 (Admin). At para. 34 in Roach I came to the following conclusion: