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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Smith v Bar Standards Board  EWHC 3015 (Admin) (03 November 2016)
Cite as:  EWHC 3015 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|BAR STANDARDS BOARD
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr John Wilson QC (instructed by Bar Standards Board) appeared on behalf of the Respondent
Crown Copyright ©
'I do believe that the firm did ask Mr Smith for an assurance that the draft order did include a clean break at 65.'"
(That is when Mr Ashby reached the age of 65 which would have been in fact the end of December 2027.)
"'I also consider it is most likely that Mr Smith gave some form of a conditional answer such as, 'effectively yes' or, 'to all intents and purposes, yes.' At the end of a long and stressful day it is perhaps a possibility that Mr A[shby] and his solicitors heard the yes and not the condition. As such I believe, on the balance of probabilities that this is fundamentally a misunderstanding at the end of a busy stressful day and a mistake rather than any deliberate intent to deceive on the part of Mr Smith or, indeed, the firm.'"
The representative went on:
'My decision therefore is that I cannot attribute any concerns about the precise wording of the consent order to any shortcomings in the service provided by Mr Smith and will not therefore be directing him to provide Mr A[shby] with any remedy ..... '"
He then went on to deal with the issues about clean breaks and whether nominal sums were or were not in certain circumstances equally beneficial.
"Professional misconduct contrary to paragraph 701 (a) and pursuant to paragraph 901.5 of the Code of Conduct of the Bar of England and Wales (8th Edition)."
"[Mr] Smith whilst engaged in professional activities on 31 August 2010 at Milton Keynes County Court failed to act with reasonable competence in that he informed his client Mr A that his ex-wife by her solicitor had agreed that Mr A should have a clean break on maintenance when Mr A attained age 65, and later on the same day he assured Mr A and/or his instructing solicitor that such a clean break had been incorporated in a manuscript draft consent order, whereas in fact no such clean break had been agreed, and no clean break was incorporated in the draft order.
Such behaviour was contrary to paragraph 701 (a) of the Code of Conduct and was serious and therefore constitutes professional misconduct pursuant to paragraph 901.5 of the Code of Conduct by virtue of its nature and/or extent and/or as it was combined with another failure to comply with the Code as set out in charge two of this charge sheet."
"Professional misconduct contrary to paragraph 403.5 (d) (i) and pursuant to paragraph 901.5 of the Code of Conduct of the Bar of England and Wales (8th Edition)"
"Julian Smith failed to deal with complaints made to him promptly, courteously and in a manner that addressed the issues raised, contrary to paragraph 405.3 (5) (d) (i), in that from on about 15 September 2010 he -
Failed to respond promptly to communications to him from Messrs Jennings, Solicitors, his instructing solicitors, dated 15 September 2010, 27 September 2010 and 8 October 2010;
Was discourteous in an e.mail from him to Messrs Jennings Solicitors dated 7 October 2010;
Failed to deal with the issue raised, namely whether he had agreed a clean break with his opponent, in communications from him dated 27 September 2010, 7 October 2010 (2), and 11 November 2011 [that is a mistake for 2010] (by his chambers administrator).
Such behaviour was serious and therefore constitutes professional misconduct pursuant to paragraph 901.5 of the Code of Conduct by virtue of its nature and/or extent and/or as it was combined with another failure to comply with the Code as set out in charge one of this charge sheet."
"A barrister must in all his professional activities be courteous and act promptly, conscientiously, diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the court's time and to ensure professional engagements are fulfilled."
"Any failure by a barrister to comply with the provisions of [a number of paragraphs, including 701,] shall render him liable to a written warning from the Bar Standards Board and/or the imposition of a fixed financial penalty of £300 or such other sum as may be prescribed by the Bar Standards Board from time to time."
"(1) Any serious failure to comply with provisions of the Code referred to in paragraph 901.1 above shall constitute professional misconduct.
(2) A failure to comply with those provisions may be a serious failure (a) due to the nature of the failure, or (b) to the extent of the failure, or (c) because the failure in question is combined with a failure to comply with any other provision of the Code whether or not that provision is mentioned in paragraph 901.1."
"(3) The appeal court will allow the 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."
"rE144 The rules of natural justice apply to proceedings of a Disciplinary Tribunal. Subject to those, the Tribunal may:
44.1 (subject to rE145 below) admit any evidence, whether oral or written, whether given in person, or over the telephone, or by video link, or by such other means as the Tribunal may deem appropriate whether direct or hearsay, and whether or not it would be admissible in a court of law.
44.2 give such directions with regard to the conduct of, and procedure at, the hearing, and, with regard to the admission of evidence at the hearing, as it considers appropriate for securing that a defendant has a proper opportunity of answering the charge(s) and/ or application(s) made against him, or otherwise as shall be just;
44.3 exclude any hearsay evidence if it is not satisfied that reasonable steps have been taken to obtain direct evidence of the facts sought to be proved by the hearsay evidence."
"Mr Smith absolutely one-hundred per cent assured me that there would be a clean break at 65."
"Does not want to be involved, would not be able to give any useful evidence in any event as the lay client."
" ..... where has this come from? I find it hard to comprehend that it has taken 3 years to get to the position you are now stating.
So my input is this. I would like to thank you both for the work you have done in the past. However, I have now moved on with my life, I have a good relationship with my ex-wife which I would not change. I see my children and grandchildren regularly and they mean the world to me. I am not rich financially, but I can pay my bills through working hard, I do a job I am happy in and in a company that appreciates my efforts. I am in a good place.
Although I still stand by my feelings at the time and of being let down by the barrister, I bear no malice, time has taken that away. I and yourselves know the truth that a clean break was asked for at the time. It has not happened. So be it, there are more important things in life than money. As I stated earlier, I am in a good place right now and am not prepared to go through the stresses of reliving it all again.
I have accepted 'my lot' for what it is and am comfortable with life again.
I know you both feel strongly about this situation and are challenging the morals of the barrister who could agree something different to what was verbally agreed and then not accept the error and support a change.
However, I cannot carry on with this. I will not be attending the hearing and wish you both luck in your efforts for the correct outcome. I know this is not the response you were probably hoping for, however, my health and happiness has to come first and I am not prepared to jeopardise this in any way.
I wish you every success in your mission to fight for justice.
"In relation to the steps which had been taken by the Bar Standards Board, it is fair to say that we think that the Board may have perhaps taken further steps by writing a further letter to Mr Ashby inviting him to attend. But within the context of the e-mail that he sent to Jennings Solicitors it is inevitable, it seems, that the response would have been that he would not have been attending today. So even if we thought the Bar Standards Board had not taken reasonable steps - and we do not take that view (the rules of discretion) - it does not say that we should exclude it if the Bar Standards Board had not taken reasonable steps.
Looking at the rule itself, we are satisfied that we have jurisdiction to admit the evidence of Mr Ashby, and we do so. We are conscious that he will not be here to be cross-examined but this will go to the weight of the evidence, and it may be, at the end of the day when we consider the matter as a whole, that we will attach no weight to Mr Ashby's evidence. That is a matter for us once we have heard the evidence."
"33 To establish charge 1 the BSB must prove -
(1) that no clean break was in fact agreed between Mr Smith and the solicitor representing Mrs A[shby]
(2) that Mr Smith informed Mr A[shby] that Mrs A[shby], by her solicitor, had agreed to a clean break at age 65
(3) that Mr Smith assured Mr A[shby] and/or his instructing solicitor that such a clean break had been incorporated in the manuscript draft consent order
(4) that Mr Smith's conduct amounted to a failure to act with reasonable competence
(5) that Mr Smith's conduct amounted to a serious failure to act with reasonable competence, due to the nature and/or extent of the failure and/or because the failure was combined with the failure to comply with the code as set out in charge 2."
"The respondent husband shall pay periodical payments to the applicant wife.
Payments shall be at the rate of £425 per month in advance and shall be paid on the 1st of every month. Payment shall start 14 days after the applicant wife commences full time employment.
They will end on:
(a) the death of either the applicant wife or the respondent husband; or
(b) the applicant wife's remarriage;
(c) 28 December 2022 whereupon the periodical payments shall stand automatically varied to nominal periodical payments;
(d) a further order terminating payment."
"9 Upon cessation of the periodical payments in paragraph 5 above, the applicant wife shall not be entitled on the death of the respondent husband to apply for an order for provision out of his estate."
"Discussing matters with Mr Ashby outside the court, what had happened and what the implications were, and he said he was happy that it was finally all over and felt he could live with the £325 [it should be £425] a month spousal maintenance. MD [Mr Douglas] saying that from their point of view it was a disastrous day because they had to have such a significant climb down on what their stated position was and undoubtedly his wife would be extremely upset about the fact that she would have to go and get full-time employment before the maintenance even kicked in. Mr Ashby said that he felt she would be seeking full time employment. But obviously it is not as easy as just wanting to have a job. There needed to be a suitable position available."
"In court 30 minutes. Discussions with client, 2 hours; negotiations 1 hour."
"Do you recall your discussion with my partner Matthew after the order was drafted asking you to confirm that there was a clean-break provision after 65? Matthew really specifically asking you if the order did contain such a provision and you confirming it did and on this basis Mr Ashby signed the order believing it to have a clean break at 65. Obviously the way we proceed will depend on your answers to these questions."
"Dear Mr Douglas
Thank you for your letters dated 6 October and 27 September, the first of which was answered from on holiday, the second of which I have only recently received upon my return .....
I note these are sent via chambers' external clerks; our direct address is as below, as indicated previously.
I further note you have apparently not obtained a copy of the original draft order from the court as advised by me; seemingly accepting any mistake was ours.
So far as I recall, the order as issued is substantively as agreed on the day and I have no issue with it in any event; and I repeat my previous comments.
My position could not be clearer.
I am afraid I simply cannot assist further and I also note my fee note is still outstanding."
" ..... you merely need to know (a) that there was a conversation about a clean break; (b) there was not a conversation ..... "
"I am happy to indicate (a) [that is there was a conversation]. Needless to say, even without the so-called 'mistake' the order would not amount to the same!
Now perhaps you'll settle my outstanding fee.
And can I ask that you do not contact me about this matter, or indeed any other matter, again."
"'Did you agree with the representative of Purcell [solicitors on behalf of Mrs Ashby] that there was to be a clean break when Mr Ashby reached 65?' I cannot see how I can make the question any more straightforward than this. Either you agreed a clean break ..... or you did not."