Daviesbv Bar Standards Board [2015] EWHC 2927 (Admin)

Case No CO/579/2014[2015] EWHC 2927 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 October 2015
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
HENRY OLUSOLA DAVIESAppellantBAR STANDARDS BOARDRespondent
The Appellant appeared in person for in personAndrew Moran appeared for RespondentHearing Hearing date: 6 October 2015
JudgmentMr 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]Mr Davies was charged with two charges of professional misconduct:
“Charge 1 Statement of Offence Professional misconduct contrary to paragraph 301(a)(iii) of the Code of Conduct of the Bar of England and Wales (8th edition). 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: On 25 August and/or 1 September 2009 in a personal matter Mr Davies abused his position as a barrister by threatening to sue his dentist, Dr Anil Shrestha, for negligence and take him to court and seeking to fortify this threat by: (1) stating 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; and (2) stating 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 Davies’s state of dentition to that which obtained when Mr Davies first saw Dr Shrestha in February 2007; and (3) stating to Dr Shrestha that he, Mr Davies, had 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 secure a refund in respect of those spectacles which he had kept and the refund of all fees paid by him to Boots the Opticians. Charge 2 Statement of Offence Professional misconduct contrary to paragraph 301(a)(iii) of the Code of Conduct of the Bar of England and Wales (8th edition). 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 Shrestha’s 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’.”
Statement of Offence Particulars of Offence Statement of Offence Particulars of Offence[3]A three person disciplinary tribunal hearing took place on 22 January 2014. Mr Robert Peel QC chaired the tribunal. The Appellant and Dr Sherstha were the only witnesses. By a majority of two to one the tribunal found the first two limbs of Charge 1 proved. The third limb was not proved. By a unanimous decision Charge 2 was dismissed. A fine of £500 was imposed on Charge 1.[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]I shall consider each ground of appeal in turn.

Ground 1: reasons for the decision

[8]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 Davies’s 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 confusion of some sort where there was a conversation between Mr Davies and Dr Shrestha touching on the question of Boots. So we find the third limb of Charge 1 is not made out. However, we do not accept Mr Davies’s submission that we have to be satisfied that all three limbs have to be established in order for the finding of professional misconduct to come into play. That, in our view, is not necessary and so we find that Charge 1 is proved, save that we delete sub-paragraph (3).”
[12]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 couldn’t 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]On 26 August 2009 Dr Shrestha wrote to the Appellant:
“… I understand and acknowledge your grievances, that the treatment has not gone as expected and has fallen below the standard that you had reasonably expected of me as your treating surgeon. I am clear that you wish to consider recourse to rectifying these problems and confirm that I will be happy to discuss your grievances and options, next Tuesday 1st September at 5.30pm, at the Birmingham practice. As stated at your last visit, I will give serious consideration to restoring your mouth with the more expensive, conventional implant treatment option, at no further cost to you, should you regain faith in my skills.”
[16]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). To write letter to pt to agree to above.”
[18]In a letter dated 26 September 2009 the Appellant wrote, in relation to the 1 September meeting “We agreed at that meeting as follows: 1. That the treatment plan you had been giving me had failed; 2. That the appropriate principle for arriving at a resolution in such situation, both in litigation as well as mediation, was restitution; 3. That you were well aware of the meaning and application of this principle; 4. That in this case restitution requires a full refund of all payments made by me (which your Practice has indicated totals £5,910.00), together with your restoring my teeth to a position as near as possible to what they were when I first attended your practice in March 2007; 5. That you would be sending me a cheque for the said sum, together with a proposal for a choice by me of one of two alternative restorative treatment plans, within a matter of days after the meeting once you had informed your colleagues. I do not believe that you can unilaterally withdraw from the above agreed points without consequences and I am sure that you will remain faithful to your commitments.” The tribunal accepted that at no point in the correspondence did the Appellant write on notepaper which is headed from his chambers or referring to himself as a barrister. However the tribunal considered that the letter of 26 September 2009 clearly supported their finding that the raising of restitution was by the Appellant rather than by Dr Shrestha and that the Appellant was “pleading” a legal term in support of the position he was taking in his dispute with Dr Shrestha (Transcript, 115E-116A).[19]On 14 October 2009 Dr Shrestha had a conversation with a person at the Dental Defence Union (“DDU”). His clinical note of that conversation states:
“Explained my discomfort at this patient’s demands and feelings of being intimidated and bullied by a possible abuse of his position. Recounted story of how he boasted of having had sets of expensive spectacles given to him for free and full refund from Boots the Opticians when he threatened to take them to Court, yet was happy enough to wear the same spectacles and use them as an indirect threat to me in his illustration of the principles of Restitution… Most disquieting was the outright accusation made in our conversation of 1st September, of having been negligent in my treatment for him in providing the implants and overdenture, then the bizarre demand that I personally carry out further, more complex implant surgery (with bilateral sinus lifts and conventional implants) for him once I had repaid him all his fees! … ... I do not want to see my reputation damaged. Mentioned that I felt aggrieved enough to report this incident to the Bar Council whether it was resolved in or out of Court as I am sure that it contravenes the ethical code of practice for these professionals. Also mentioned that I was now made very wary of treating other law professionals, members of whom form a significant part of my patient base as I am located at flagship practices in Colmore Row in Birmingham, and Gray’s Inn/Lincoln’s Inn, London. … Finally, I intimated that I am still prepared to negotiate a reasonable solution for this gentleman as I am aware that he is in a difficult personal situation, recognise that the treatment outcome has not been ideal, and would like to see him in good dental health again.”
[20]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 tribunal’s 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]On 23 October 2009 Dr Shrestha wrote to the DDU, saying:
“The patient has verbally threatened to sue me for negligence and take me to Court but has not stated this in his letter as he is hopeful of a resolution under his terms and to continue our cordial relationship.”
Further down the letter continued:
“We had a one hour meeting on the 1st September in my consultation room to outline his grievances. During that meeting, he made clear that he was a barrister and alleged that my treatment had been negligent. It was then that he threatened outright to take me to Court and claimed that he would win the case. He then explained that he was a trained mediator and explained the principle of Restitution, as it applies in law, demanding that I return his full fees and also restore his mouth to the condition it was in when he first came for a consultation to see me in February 2007, a full year before treatment commenced. He then elaborated on a particularly vivid [incident] to illustrate the principles of restitution to me. …”
The tribunal observed that the contents of this letter were “consistent with what had gone before… and we can think of no obvious reason why he would have engineered a statement to that effect unless it was broadly accurate” (Transcript, 117B).[22]On 9 November 2009 there was a telephone conversation between Dr Shrestha and the DDU in which there was reference to the principle of restitution. The tribunal noted, “Again, that word appears” (Transcript, 117C).[23]On 10 November 2009 Dr Shrestha wrote to the Appellant replying to the various letters that the Appellant had sent to him previously. Dr Shrestha wrote:
“I am happy to undertake these two courses of restitution on the understanding that you agree that this will be a full and final resolution of the situation.”
He enclosed a cheque for £5,910, which was repayment of the sums incurred in connection with the surgery.[24]On 30 November 2009 the Appellant wrote to Dr Shrestha:
“… My main claim in this matter is not for clinical negligence, as you wrongly perceive, but for restitution for implants which we both agree had failed. I simply did not get what I bargained for.”
The tribunal observed that again it seemed to them the reference to restitution can only support the conclusion that they had come to, that this was a matter raised by the Appellant in his discussions with Dr Shrestha (Transcript, 118A-B).[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.”
Mr Davies then asked Dr Shrestha how he felt threatened. He replied: “I felt threatened because you were potentially putting my livelihood at risk, my social standing and you were accusing me of outright negligence, which has been disproven.” (Transcript 23D-E) Mr Davies then asked Dr Shrestha how he felt bullied. He replied: “Because you set the terms of restitution.” (Transcript, 23E-F) (See also Transcript, 25G-26H, 30B-G, 32F-33E, 34C-F, 35H-36B and 50D-51B).[27]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 Davies’s 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 Shrestha’s account. In my view the tribunal’s 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 sub-paragraphs (1) and (2) had been proved, but decided that the evidence on sub-paragraph (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 sub-paragraph (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 Shrestha’s 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 there was a conversation between Mr Davies and Dr Shrestha touching on the question of Boots” (Transcript, 119A-B).[31]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 Moran’s submission that Mr Davies’s 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 Moran’s 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]Finally, Charge 1 referred to both 25 August and 1 September 2009 because Dr Shrestha’s clinical notes record that on 25 August 2009 at a review appointment Mr Davies stated that he was considering taking Dr Shrestha to court to sue him and wanted his money back (see para 16 above). However the critical meeting for the purposes of Charge 1 was the one on 1 September 2009. The reason for the reference to the two dates is clear.

Ground 2: the context in which the conduct arose

[34]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, 118B-G).[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]Further in relation to sub-paragraph (2) of Charge 1 Mr Davies observes that apart from the use of the term “Restitution” it was clear that the two issues between himself and Dr Shrestha were restorative dental work and/or damages. Given a legitimate complaint, Mr Davies contends that it was properly open to him to take the action he proposed. The reason Dr Shrestha felt bullied was because of what he said Mr Davies told him about the Boots incident. However Mr Davies contends the tribunal found the evidence of Dr Shrestha unreliable on this key point.[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.

Ground 3: whether in fact the conduct complained of amounted to professional misconduct

[38]Mr Davies contends that the conduct complained of in Charge 1 is a single incident arising from a genuine and serious dispute between himself and Dr Shrestha. He submits that his conduct was not so serious or reprehensible as to fall into the category of professional misconduct. He is fully entitled to sue for bad treatment or to demand further treatment. Dr Shrestha was offering further and more expensive remedial work and he, Mr Davies, mentioned compensation for pain and suffering. Mr Davies accepts that he was possibly negligent or over-demanding in requesting restitution, but the tribunal has not found that he intentionally threatened or exerted pressure on Dr Shrestha.[39]In support of this submission Mr Davies relies on the decision in Walker v Bar Standards Board in which Sir Anthony May stated: “11. … the stigma and sanctions attached to the concept of professional misconduct across the professions generally are not to be applied for trivial lapses and, on the contrary, only arise if the misconduct is properly regarded as serious. Sir Anthony May added (at para 31) that the court was of the view that questions of intention are relevant to questions of seriousness.[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 Davies’s 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]For the reasons I have given this appeal is dismissed.

Cited in 2 later judgments