The Solicitors Disciplinary Tribunal (SDT) was wrong to throw out a private prosecution brought by a former client against the current president of the Law Society, the High Court has ruled.
Lord Justice Popplewell and Mr Justice Garnham found  the SDT’s decision in September 2019 flawed both in its analysis of abuse of process and by not properly examining the merits of the case.
But though the court found that David Greene has a case to answer, it stressed that it was not reaching any judgement on whether he misled a district judge, as is alleged.
Mr Greene, senior partner of London firm Edwin Coe, said he planned to appeal the ruling as the court had not considered any evidence from him.
In 2008, Mr Greene acted for David Davies’s company, Eco-Power, in an unsuccessful judicial review.
A year later, he was instructed to take on a related 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. DJ Stewart made charging orders against his home.
Three years later, Mr Davies sought to set aside the 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 SDT, but by mistake did not supply the 2016 ruling when the SDT decided Mr Greene had a case to answer.
Mr Greene submitted to a differently constituted panel that, had it had this ruling, the original tribunal would 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”.
On that abuse of process point, the High Court noted that, while the original complaint to the SDT was framed in terms of just dishonesty and fraud, it was later broadened to include recklessness as an alternative, and to allege breaches of three SRA principles which did not depend on proof of dishonesty.
It said: “We think that the SDT was bound to consider whether the conduct complained of breached these principles, even if it fell short of deliberate dishonesty.
“Whilst the opinion of DJ Stewart on the veracity of Mr Greene’s evidence may well be of interest to the SDT, the issue before him was not whether particular allegations of breach of those standards were made out…
“He was not determining whether Mr Greene should be exonerated or condemned for breach of professional standards.”
The SDT’s own rules state that judgments of civil courts are admissible, but not conclusive proof of the facts found – this meant a complaint could not be an abuse merely because it was inconsistent with a civil judgment, the court pointed out.
The judges recognised that there may be cases where it was unfairly vexatious for the solicitor to be required to relitigate the same issues from a civil case before the SDT, but that was not one of them.
On the merits of the complaint, the test for whether there was a case to answer against a solicitor in SDT proceedings was a “stringent one”, the court said.
But the SDT “did not engage” with the detail of Mr Davies’s evidence – instead, it “appears to have been content simply to rely on DJ Stewart’s findings”.
Given the SDT rules and the court’s conclusions on the abuse argument, “the SDT was in error in failing to consider the evidence and reach its own view of whether it raised a case to answer”.
This left the court to undertake the exercise. Identifying some parts of Mr Davies’s evidence, it said: “In our judgment, it is at least arguable that the disparity between what Mr Greene said in evidence and the position revealed by the correspondence is capable of supporting a case that the former was not only misleading but deliberately so, and not such as to be explained as a product of mistaken recollection due to the passage of time…
“It follows from our conclusion that the complaint raised an arguable case in its original narrower form, that it also does so in its subsequent widened form.”
But it added: “We should make clear that we are not expressing any concluded view that Mr Greene has lied or behaved dishonestly or in breach of professional standards. He has not yet responded to the merits of the complaint.
“It will be for the SDT to consider whether such a case is made out having heard all the evidence.”
In a statement, Mr Greene said “I absolutely deny the allegations of Mr Davies and after I am given the opportunity to put in evidence, I fully expect the tribunal to dismiss these claims as all courts and the tribunal itself have done previously.”
A statement from Edwin Coe added that the court had made its decision without considering any evidence from Mr Greene.
“This is specifically not a finding of any wrongdoing on his part. We are advised to appeal this decision and will now seek permission.”