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Case No: CO/579/2014

Neutral Citation Number: [2015] EWHC 2927 (Admin)


IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19 October 2015
Before :
THE HONOURABLE MR JUSTICE SUPPERSTONE
--------------------Between :
HENRY OLUSOLA DAVIES
- and BAR STANDARDS BOARD
----------------------------------------The Appellant appeared in person
Andrew Moran appeared for the Respondent
Hearing date: 6 October 2015
---------------------

Judgment

Appellant
Respondent

Mr Justice Supperstone :
1.

This is an appeal by Mr Davies from the decision of the Council of the Inns of Court
disciplinary tribunal dated 22 January 2014 by which the tribunal, by a majority of
two to one, found him guilty of one charge of professional misconduct pursuant to
paragraph 301(a)(iii) of the Code of Conduct of the Bar of England and Wales and
imposed a fine of 500 on him.

2.

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 Daviess 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
Shresthas alleged delay in dealing with his complaint as well
as for pain, suffering and the adverse effect on my public
speaking in the practice of my profession and asking Dr
Shrestha to send a cheque for 10,000 within 21 days hereof.
3.

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
Daviess state of dentition.
We are not, however, satisfied with sub-paragraph (3), which is
the suggestion or assertion that Mr Davies threatened to sue
Boots the Opticians in respect of an eye test and the sale by
Boots of spectacles to him and that he had deployed the
principle of restitution to seek a refund in respect of those
spectacles. It seemed to us that the evidence in that respect i.e.,
that Mr Davies had said this to Mr Shrestha was not made out.
We were not completely convinced by the way in which it was
put to Mr Davies. His responses seemed broadly plausible. It
seemed to us perfectly possible that there was at least a

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 Daviess 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 couldnt afford treatment and was
not prepared to pay for anything else, that he was considering
taking me to Court to sue me, and wanting his money back.
The tribunal said that it saw no particular reason to doubt the accuracy of that note or,
indeed, the clinical notes generally which were drawn up on a computer shortly after
the meetings that took place (Transcript, 114C-D).

15.

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).

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 patients 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 1 st
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 Grays


Inn/Lincolns 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 tribunals
general view was that the medical note of the conversation of 14 October 2009 was of
some weight. It appears that the possibility of the reference to the Bar Standards
Board was considered then and not at a much later date, as was suggested by the
Appellant in cross-examining Dr Shrestha (Transcript, 116A-G).

21.

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 1 st 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, 35H36B 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 Daviess state of dentition to that which obtained when Mr Davies first saw
Dr Shrestha in February 2007.

29.

The tribunal gave two reasons for the finding that Charge 1 and the particulars set out
under that charge at sub-paragraphs (1) and (2) had been proved to the criminal
standard: first, it preferred the testimony of Dr Shrestha to that of Mr Davies on the
facts set out in the charge and in the particulars; and second, the contemporaneous
documentation supported Dr Shresthas account. In my view the tribunals reasons
were adequate for the issues of fact they covered and the nature of the evidence the
tribunal had to consider.

30.

The fact that the tribunal found the particulars set out under Charge 1 at subparagraphs (1) and (2) had been proved, but decided that the evidence on subparagraph (3) was not sufficiently cogent to justify a finding on the allegation set out
in that paragraph indicates the care with which the tribunal considered the evidence.
The tribunal, in my view, gave adequate reasons for the findings that it made in
relation to the conduct alleged in all three sub-paragraphs. I do not accept the
contention impliedly made by Mr Davies that having found the conduct in subparagraph (3) not made out, the tribunal could not properly have reached the
conclusion that it did in relation to sub-paragraphs (1) and (2). The tribunal did not
state that it disbelieved Dr Shresthas evidence in relation to sub-paragraph (3). The
finding that the third limb of Charge 1 was not made out was because it seemed to the
tribunal perfectly possible that there was at least a confusion of some sort where

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 Morans submission that Mr Daviess conduct (1) in threatening
to sue a lay person for negligence and fortifying the threat by stating that he was a
barrister, trained mediator and expert in medical negligence and that he would win the
case if it went to court, and (2) in invoking the legal principle of restitution that in fact
did not apply to the case, in and of itself is an abuse of his position as a barrister and
conduct which is likely to bring the legal profession into disrepute.

32.

Mr Moran also accepts that the tribunal did not formally and separately address the
question of whether the conduct as found was serious enough to amount to
professional misconduct. He pointed out that the tribunal clearly had this in mind
because it found that the conduct undermined the Bar in the eyes of the public when it
considered Aggravating Factors on sentencing Mr Davies. The threats made by Mr
Davies caused Dr Shrestha to feel intimidated, threatened and bullied (see para 26
above). I accept Mr Morans submission that the conduct as found by the tribunal
self-evidently was serious misconduct which amounted to professional misconduct
within the meaning of paragraph 301(a)(iii) of the Code of Conduct. Conduct may be
professional misconduct even if not intentional (see Walker v Bar Standards Board,
19 September 2013, per Sir Anthony May at para 21). The issue is whether a
reasonable observer would conclude that the Appellant behaving in the way he did
was likely to bring the Bar into disrepute (Craven v Bar Standards Board, 30
January 2014, per Silber J at para 40). In my judgment a reasonable observer would
so conclude.

33.

Finally, Charge 1 referred to both 25 August and 1 September 2009 because Dr


Shresthas 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, 118BG).

35.

In relation to the conduct referred to in sub-paragraph (1) of Charge 1 the tribunal was
wrong, Mr Davies submits, to look at the events on 25 August/1 September 2009 in
isolation. He had had a meeting with Dr Shrestha on 18 August 2009 when he says he
indicated to Dr Shrestha that he was not prepared to pay for further treatment, that he

was considering suing him and taking him to court and that he wanted his money
back. His grievance was acknowledged at the meeting on 25 August 2009.
Accordingly Mr Davies submits court action was in the mind of both parties prior to
the statements referred to in sub-paragraph (1).
36.

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 Daviess intention.

41.

In my judgment, having made the findings of fact that it did the tribunal was entitled
to consider that the conduct it found proved could properly be regarded as sufficiently
serious as to amount to professional misconduct.

Conclusion
42.

For the reasons I have given this appeal is dismissed.

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