David Greene, the former president of the Law Society, has failed in his attempt to halt a private prosecution of him at the Solicitors Disciplinary Tribunal (SDT), although its scope has been narrowed.
The case, which dates back to events in 2008, led to Mr Greene resigning as president in March 2021, part way through his year of office.
The senior partner of London firm Edwin Coe has been in dispute with David Davies over unpaid fees; the former client has accused him of misleading District Judge Stewart in Winchester as part of this. Mr Greene denies any wrongdoing.
Mr Davies brought a private prosecution before the SDT, but in September 2019 the tribunal concluded that his complaint was groundless.
However, in January 2021, the High Court ruled that the SDT’s decision was flawed both in its analysis of abuse of process and by not properly examining the merits of the case.
Though the court found that Mr Greene has a case to answer, it stressed that it was not judging whether he misled the judge.
The Court of Appeal yesterday refused his bid to overturn the High Court ruling, deciding that Mr Davies’s complaint was wider than the question of whether the district judge was misled in 2012. In another ruling in 2016, DJ Stewart said he was not misled
Lord Justice Newey, giving the ruling of the court, said Mr Davies was also accusing Mr Greene of breaches of three SRA principles without any dishonesty and that Mr Greene gave false evidence, regardless of whether it resulted in DJ Stewart being misled.
He said: “It seems to me that the SDT panel which ruled on Mr Greene’s strike-out application approached it on an erroneous basis. It saw District Judge Stewart’s 2016 judgment as necessarily fatal to the complaint…
“However, the issues raised by Mr Davies’ complaint were not in fact identical to those before District Judge Stewart and, in any event, it is not necessarily an abuse of process to invite a court or tribunal to make a finding inconsistent with one made in earlier proceedings…
“The Divisional Court was right, therefore, to consider the SDT’s decision flawed as regards its analysis of abuse of process.”
But Newey LJ struck out the proceedings to the extent that they concerned the question of whether seeing particular email correspondence would have altered DJ Stewart’s 2012 decision.
“When District Judge Stewart has himself said in plain terms that the emails would have made no difference to him, right-thinking people would, as it seems to me, think it absurd for Mr Davies to invite the SDT to determine that the material would have changed what District Judge Stewart did.” The balance of Mr Davies’s complaint neither brought the administration of justice into disrepute nor was unfairly vexatious, he continued.
Mr Greene had highlighted the long history of the proceedings and argued that it was ultimately a civil matter.
Newey LJ said the SDT had to certify Mr Greene had a case to answer for the case to go further, while disciplinary proceedings have a different function to civil litigation.
“While Mr Davies’ complaint relates to events which occurred 11 years ago, there is documentary evidence as to what Mr Greene said both in his witness statement and in his oral evidence, and the 2008-2009 email correspondence is also available,” he went on.
Further, “the lapse of time since 2012 is in part attributable to efforts on the part of, first, Edwin Coe and, latterly, Mr Greene himself to stave off Mr Davies’ allegations”.
As to whether the complaint lacked merit, Newey LJ said “it cannot be said either that there is no evidence to support the allegations against Mr Greene or that the evidence is so tenuous that, taken at its highest, the SDT could not properly find the allegations proved”.
He added: “I should stress, however, that I am not expressing any view at all as to whether the allegations are likely to be found proved.”
Dame Victoria Sharp, president of the Queen’s Bench Division, and Lady Justice Thirlwall agreed.