Greene: Client sought to bring same case that was dismissed by district judge
A disciplinary tribunal has thrown out as groundless an attempt to bring misconduct proceedings against the vice-president of the Law Society.
Handling a rare private prosecution, the tribunal struck out [1] the case brought by David Davies against Edwin Coe senior partner David Greene after a crucial piece of evidence came to light.
In 2008, Mr Greene acted for Mr Davies’s company, Eco-Power, in an unsuccessful judicial review. A year later, he was instructed to take on a related damages claim, but concerned the company could become bankrupt, the solicitor insisted on only taking instructions from Mr Davies personally so that he would be liable for the fees thereafter.
That claim was unsuccessful too and Mr Greene billed £7,218, which Mr Davies refused to pay. Edwin Coe sued him for the fees, but Mr Davies maintained that the company had been the client at all times.
In 2012, District Judge Stewart in Winchester found a new retainer had been entered into and Mr Davies was personally liable for the fees. Permission to appeal was dismissed and DJ Stewart made charging orders against his home in respect of the judgment debt.
Three years later, Mr Davies sought to set aside the 2012 judgment, arguing that emails showed Mr Greene had dishonestly misled the court by maintaining there was a break in representation of a year between the two cases.
The case was heard again by DJ Stewart in 2016, who dismissed Mr Davies’s case, finding that the emails simply showed there was some dialogue between the pair and did not displace the second retainer.
He said it was “a million miles from any fraudulent activity or deliberate misleading of the court”.
Mr Davies made the same claims in his case before the Solicitors Disciplinary Tribunal, but did not include the 2016 ruling in the documents supplied to the a differently constituted tribunal earlier this year when it decided Mr Greene had a case to answer.
Mr Greene submitted at last month’s hearing that, had it had this ruling, the original tribunal would not and could not have certified a case to answer.
The SDT agreed, finding that DJ Stewart’s ruling provided a “clear, comprehensive and direct answer to the matters complained of” by Mr Davies.
It also accepted that entertaining the application would “require it to go behind” the district judge’s decision, which would be “improper”.
However, the tribunal did not find that Mr Davies had shown a ‘lack of candour’ by omitting the ruling; he had supplied a ‘whole hearing’ transcript, but did not notice that this failed to include the actual judgment.
Further, the tribunal noted, the approved judgment transcript was only sent to the parties after the original hearing.
Mr Davies was ordered to pay £30,000 costs, with the SDT finding it was reasonable for Mr Green to instruct leading counsel Ben Hubble QC of 4 New Square, and a senior regulatory specialist solicitor – Iain Miller, a partner at Kingsley Napley – given that “the allegations were of conduct which could have career-ending implications”. Mr Miller’s hourly rate of £545 was reasonable too.
However, the SDT disallowed another £5,000 in costs relating to an application by Mr Greene for a private hearing that was withdrawn.