Newsletters Professional Discipline 5th Apr 2024

What is a mistake of fact?

DBS v RI [2024] EWCA Civ 95

Inclusion on the barred list(s) may be appealed to the Upper Tribunal if there has been a mistake of law or fact. But just what constitutes a mistake of fact has proved a thorny problem. In particular, to what extent may the Upper Tribunal simply disagree with the DBS’ factual finding and substitute its own judgment?

In PF v DBS [2020] UKUT 256 the Upper Tribunal noted:

Section 4(2)(b) refers to a ‘mistake’ in the findings of fact made by the DBS and on which the decision was based. There is no avoiding that condition. The issue at the mistake phase is defined by reference to the existence or otherwise of a mistake. If the Upper Tribunal cannot identify a mistake, section 4(5) provides that it must confirm the DBS’s decision. That decision stands unless and until the tribunal has decided that there has been a mistake… It is not enough that the Upper Tribunal would have made different findings

One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the DBS. It is sufficient if the mistake only appears in the light of further evidence or consideration”.

In DBS v JHB [2023] EWCA Civ 982 the Court of Appeal developed the position. JHB was barred by the DBS for three instances of sexual assault (two of these findings involving a minor). He appealed to the Upper Tribunal. He did not give any material oral evidence in relation to these findings. Nonetheless, the Upper Tribunal allowed his appeal, considering the DBS had erred in relation to two of these findings. The DBS in turn appealed to the Court of Appeal. The court noted:

The UT began its consideration of finding 2 by announcing that the DBS ‘made a mistake with this finding’. The UT did not, in paragraphs 9-19, explain in what way finding 2 was ‘wrong’, or outside ‘the generous ambit within which reasonable disagreement is possible’. Its approach, rather, was to look at very substantially the same materials as the DBS, and to make its own findings of fact (‘These are our findings’)… I infer that what the UT meant when it referred to a ‘mistake’ in the first sentence of paragraph 9 was that the DBS had a mistaken view of the facts because the UT happened to differ from the DBS in its assessment of the same or very nearly the same materials… On the authorities, a disagreement about the evaluation of the evidence is not ‘an error of fact’. In my judgment the material considered by the DBS did permit such a finding on the balance of probabilities. If such a finding was open to the DBS on the balance of probabilities, the DBS did not make a mistake in coming to that finding.”

The recent case of DBS v RI turned very substantially on how this judgment should be understood. RI was barred for financially exploiting a patient in her care. She appealed and gave evidence before the Upper Tribunal, asserting her innocence. The Tribunal was clearly impressed by her and allowed her appeal. On appeal the Counsel for the DBS argued:

the fact the UT heard oral evidence from RI is irrelevant, because RI did not say or disclose anything new which undermined any finding of the DBS. The UT adopted an erroneous approach, because properly analysed, they did not find, and could not have found, that the DBS’s decision that RI stole RV’s money was based on a “mistake of fact”, nor that this finding was not open to the DBS on the balance of probabilities. Instead, the UT adopted the impermissible approach of evaluating substantially the same evidence as the DBS, reaching a different conclusion, and therefore determining that the DBS must have made a “mistake of fact“.

The Court of Appeal disagreed with this assessment. The Upper Tribunal was entitled to find RI was credible in her denials. It was entitled to weigh such oral evidence and the documentary evidence relied on by the DBS and find there has been a “mistake”. This is different from merely reviewing the evidence before the DBS and coming to a different conclusion. Bean J limited the ambit of JHB to this:

it may be authority for the proposition that if the UT has exactly the same material before it as was before the DBS, then the tribunal should not overturn the findings of the DBS unless they were irrational or there was simply no evidence to justify the decision. The same rule may apply where, as in the JHB case itself, oral evidence is given but not on matters relevant to the decision to place the appellant on one or both of the Barred Lists”.

Bean J expressed “dismay” at the policy arguments advanced by the DBS that – if a “mistake” was to be broadly interpreted – this would require the DBS to devote more resources to resisting appeals, and it may have to abandon its policy of not calling complainants. He also noted:

As for the oral evidence of appellants before the UT, Ms Patry submitted that: “There is a danger of allowing people to turn up and say they are credible. The distinction on the case law is that those people may not give any new evidence – someone has already said everything [in writing], then they come on the day and they give oral evidence and the UT believes them.” I have to say that I found this argument chilling”.

The DBS operates a draconian regime. Its decisions are more wide-ranging and damaging than a decision of professional regulator. Yet, they operate without any of the rigour or transparency of such a process. The first time any barred individual will have a chance to give oral evidence in their own defence is invariably on appeal. That state of affairs is bad enough. It is perverse that the DBS should also seek to limit the ability of the Upper Tribunal to hear such evidence and consider if it believes it. Thankfully an element of common sense has now prevailed.


Christopher Geering


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