As a follow up to my piece in the Times, you can register and get a free read I think, I set out the longer piece I prepared whilst thinking this case through. There is of course no substitute for reading the case in full if you can to make up your own mind about this, but this is my summary and analysis. Quotes are from the judgment unless indicated otherwise.
The President of the Law Society has suffered a very embarrassing reversal in the Divisional Court (Davies v Greene  EWHC 38 (Admin)). The facts start inauspiciously enough for Greene’s nemesis, David Davies. In 2008, unhappy at how his judicial review case for his Company was handled, he nonetheless decided his Company should pursue a damages claim arising out of the same action against Transport for London. Some of the work lay unpaid on the judicial review so his solicitor, David Greene, wants to ensure he is personally instructed by Davies so that he is responsible for subsequent fees. The claim is brought in his company’s name. Unsuccessful in this case too, Mr Davies declines to pay. The bill is litigated. Davies’ says the company owes the debt not him.
A hearing ensures, and judgment is entered against Davies. He seeks to appeal, is refused leave, and then issues a separate action. He alleges that Greene deliberately misled the court. The court (a District Judge who heard the original billing dispute) dismissed the argument, saying in very strong terms Greene did not mislead it. Davies brings the case to the SDT, having complained unsuccessfully to the SRA about Greene several years previously. The SDT say there is a prima facie case and remit it to the SRA for investigation. The SRA say, on the basis of the court’s view, that Greene had not misled them, and that there is no case to answer. It is struck out by a second SDT panel who also rely on the exoneration by the District Judge. Mr Davies takes the case to the Divisional Court and, unrepresented, wins. How come?
Edwin Coe, in enforcing the disputed bill, relied upon a witness statement dated 2 December 2012 from Mr Greene which stated that after the judicial review, he, “did not hear from Mr Davies for some considerable time [between the end of the JR and the beginning of the damages claim]. In the meantime the invoices delivered by my firm in relation to the judicial review remained in part undischarged.” And that:
“On or about 16 November 2009 I spoke to Mr Davies. He asked if we would be willing to act to pursue the damages claim identified on the judicial review against Transport for London, the PCO and the Energy Savings Trust. I had not been in contact with him for some time. He explained what had happened in the meantime. He was at the time in negotiation with Transport for London in relation to a modified emission system. He was keen to issue a claim in damages.
At the trial on 12 December 2012, cross-examined by Mr Davies, who was acting in person, Mr Greene gave the following evidence:
i) He said that the position in November 2019 was that the Eco-Power file had been closed “some time ago …. because you’d stopped instructing us in relation to the judicial review”;
ii) He then referred to the fact that after permission to appeal had been refused (in July 2008), that was “an end of that matter as far as we were concerned. You came back to us a year, or sometime later in relation to a potential damages claim”.
iii) Mr Davies asked why there was no letter from Edwin Coe stating that the previous file had been closed or expressly stating that the new retainer would be with Mr Davies rather than with Eco-Power. Mr Greene replied that matters might have been different “if there had been continuous instruction and we had been continuously instructed with Eco-Power…but the fact is we had finished the Eco-Power file some time considerably earlier and, as I say in my statement, you approached us again I think 12 months later saying could we do a damages claim.
The trouble with this account, as the Divisional Court outlines in detail is, “There was in fact a body of correspondence passing between Mr Greene and Mr Davies from autumn 2008 to autumn 2009” which paints a somewhat different picture (see below).
When DJ Stewart rejected the Davies’ claim that Greene had deliberately misled him he did so partly by saying that the emails weren’t relevant to whether he was responsible for the bill, there was a letter that clearly indicated Davies was the client. Secondly, that Greene had not misled the court. What was before him, the DJ said, was, “a million miles away from suggesting that Mr Greene had actually misled the Court.” And, “I cannot find anything in those emails that… suggests that the evidence that Mr Greene gave me, either in writing or in the witness box, in any way shows him to be anything other than truthful”. And, “I cannot be satisfied or even begin to allow a plane to leave the runway, so to speak, that there has been any allegation of fraud. In other words, deliberately misleading this Court by Mr Greene.”
There are a few points to note at this point: Not all the emails were considered; the oral evidence that Greene had given was several years previous; and, the allegation the judge concerned himself was whether Greene had deliberately misled the court. “In my judgment, Mr Greene did nothing of the sort,” DJ Stewart opined. We can see why Greene might feel aggrieved at an SDT case and why he applied for it to be struck out.
On 20 March 2019, the SDT remitted the case Davies brought to the SRA for investigation as prima facie raising serious allegations. The SRA looked at it and indicated that they had considered the allegations, and did not intend to bring their own case against Greene or seek to undertake Davies application before the SDT. In effect, they were dropping the case. They seemed to rely on the District Judges opinion. It is not clear whether, and to what extent, they grappled with the correspondence that Davies said meant the court had been mislead. Davies had to proceed on his own.
On 21 June 2019, a differently constituted panel of the SDT considered the application and determined that there was a case to answer of serious misconduct. Their reasoning was that the documentation indicated that Eco-Power might well be the client (not Mr Davies) and that, “there had been continuing correspondence during the period that it appeared the Respondent had indicated he had not heard from the Applicant. For these reasons, the Tribunal determined that there was a case to answer.” That Tribunal did not, it appears, have the District Judge’s judgment exonerating Greene before it. Mr Greene applied for the case to be struck out on three bases:
(i) the failure to disclose the Judgment of District Judge;
(ii) that judgment showed there was no merit in the application; and,
(iii) the Tribunal proceedings amounted to a collateral attack on the 2016 Judgment [in essence it was relitigating matters which had been decided before].
It was struck out by the SDT on the second and third grounds, but not the first: they found there was no deliberate lack of candour on Davies’ part in failing to disclose DJ Stewarts judgment. That said, the Tribunal found that the District Judge had considered “precisely the matters said to raise conduct issues” that “had been comprehensively rejected”. He had not been “misled”, “untruthful or in any way fraudulent”. There as not, “any remote possibility that the Lay Application may succeed.” And the detailed points of Mr Davies application were answered in this judgment.
The Divisional Court disagreed.
Although they said the DJs findings on honesty might be obiter, they proceeded on the basis that they were not. The DJ clearly found, they accepted, that there was no dishonesty in Mr Greene’s evidence, but he was not considering “the identical question” that would be before the SDT. In particular, he did not consider recklessness, which would found an allegation of lack of integrity, and did not require dishonesty be proved or more generally whether, “Mr Greene’s conduct fell short of the relevant professional standards.” They said three principles in the SRA Handbook were in play and, “Mr Davies’ complaint is not unfairly vexatious of Mr Greene, if it is sufficiently arguable to raise a case to answer on its merits”.
They went on to explore how case was one which met the tests to be run on the merits. There was sufficient in the allegations and evidence before the SDT, and the Divisional Court for the case to proceed without being struck out. The SDT did not engage with Mr Davies’ allegations in striking it out. Appearing, “content simply to rely on DJ Stewart’s findings in the 2016 Judgment.” Such judgments are “admissible but not conclusive proof” of the facts found in the judgments. The SDT was, “in error in failing to consider the evidence and reach its own view of whether it raised a case to answer.” They point out in the judgment that when the DJ found as he did he did not have the benefit of all the correspondence, or a detailed consideration of it , and that the oral evidence he had heard from Greene that might have been relevant was heard three years prior to the dispute about its veracity.
What the Divisional Court does is focus in on two aspects, where Greene tries to evidence that, “there was a new and separate retainer with Mr Davies” for Eco-Power’s claim:
- That he had not heard from Mr Davies for about a year before the new retainer was agreed on 16 November 2009.
- That, “the file had been closed on the Eco-Power judicial review, and that what Mr Davies had come back with a year or so later was a separate instruction in relation to a damages claim which was distinct from the judicial review instruction.”
The Divisional Court state that “it is arguable that Mr Greene’s evidence was misleading in both those respects.”
What I find interesting is the extent to which they then set out that evidence. They emphasise too that they are not saying Mr Greene has been found by them to mislead the court, being beyond their role here. Perhaps they are forestalling an appeal or feel the need to underline to the SRA and the SDT that there is a significant case which needs to be taken seriously, for they go to some lengths to stand up the depth of the case against him.
In the year that Mr. Greene appears to indicate he had not heard from Mr. Davies, “there was regular correspondence between Mr Greene and Mr Davies over the following year about pursuing the damages claim”. They could have stopped there and said that was enough to indicate it needed a proper consideration. Instead the Court goes through “some parts of that correspondence, without purporting to recount all of it.”. They talk about correspondence on: 30 September 2008 and 6 October 2008; a lengthy email which “Mr Greene replied briefly on 4 December 2008 and more fully on 23 December 2008.” Emails about fees and the outstanding invoice as well as the preparation of expert evidence are discussed. They make a point of emphasising when correspondence is address to Mr Davies about an invoice related to EcoPower as the client, tacitly providing some support for Mr Davies view of the underlying fees dispute. There is a chain of correspondence in March 2009 between Greene and Davies about the damages claim with Mr Greene indicating a willingness to “take the damages claim forward” on 17 March 2009. Others in April, May, June, July, August and October, and November including a suggestion of an abortive attempt to run the case on a no win no fee basis (again an interesting point of detail for them to note given the underlying dispute). To me, the view being presented by the Court is of substantial preliminary work on the damages claim being done including correspondence with their opponents and about the preparation of expert evidence. “On 16 November, Mr Greene sent Mr Davies an email indicating he had opened a new file for the damages claim, and attaching new Terms of Business, which identified Mr Davies as the client. Without drawing attention to that fact.” This seems to be the letter that the District Judge relied on as being determinative of Davies’ case.
And then the Court says this:
Against that history (and we repeat it is not a comprehensive analysis of the correspondence) we remind ourselves of what Mr Greene said in his witness statement and on oath in the proceedings before DJ Stewart: “I did not hear from Mr Davies for some considerable time” and matters might have been different “if there had been continuous instruction and we had been continuously instructed with Eco-Power…but the fact is we had finished the Eco-Power file some time earlier and as I say in my statement you approached us again I think 12 months later saying could we do a damages claim”.
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. Mr Greene was personally involved in regular discussions over this period in relation to a damages claim which was part of the judicial review proceedings and was Eco-Power’s claim.
We have already observed that the SDT would be bound to consider whether the conduct complained of breached the 2011 Principles identified in Mr Davies’ document of 19 June 2019, even if it fell short of deliberate dishonesty. 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.
They think, in other words there is some possibility that the District Judge got it wrong on the most serious point before them, where Greene’s case for strike out was strongest. He may have been deliberately dishonest. On the basis of what they set out there, although the court does not say this, one has to note that an adverse finding on reckless or deliberate dishonesty does not appear to be a slim possibility. They say, moreover, that the 2016 Judgment exonerating Mr Greene, “has some potential evidential value, but it is of very limited weight”. On whether the DJ was better placed than the SDT to assess Greene’s credibility here because he had seen Greene cross-examined, they said this:
…since the cross-examination had taken place over 3 years earlier, we doubt whether it afforded him a significant advantage over the SDT. He was also in a position to assess whether he had in fact been misled on the earlier occasion. However, it appears that he was referred to only a small sample of the relevant correspondence; and moreover, whether or not the District Judge was misled is not the only potential issue before the SDT; a lie that does not mislead the recipient is still a lie.
They end with some fairly conventional, but nonetheless important, words of care and comfort for Mr Greene and those of us who read the judgment:
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. All we have decided is that the application by Mr Greene did not meet the stringent requirements necessary to justify a strike out, and that the allegations are not so clearly unarguable that there is no case to answer.
I think they have gone rather further than that in setting out the correspondence in the way that they did. Indeed, the Divisional Court has written a pretty good opening for the Prosecution should the SDT hear this again, as they surely must. The SRA presumably now also need to take a hard and detailed look at this case, showing they have carefully considered all the evidence, especially if they did not do so the other times they have looked at it.
We will also have to see what Mr Greene’s defence is. We do not yet know all the facts. He faces a tenacious litigant, and the Divisional Court has set out a roadmap for the SDT (and the SRA) telling it, in effect, to do its job properly. They have taken some trouble to set out the evidence which is at striking odds with the picture David Greene painted before the court when he was trying to get his troublesome client, or the director of his troublesome client, to pay a bill nearly ten years ago. There is the potential here, as every practitioner knows, of a strike off should that allegation be established when the Tribunal hears the case. It goes well beyond embarrassment.
Having analysed the case I wondered whether to raise the final point, but I think it is justified. If a CEO or Chair of a business or similar faced an allegation as serious as this, and a court such as the Divisional Court had considered the allegations and opined in the way that it had, would they stay in post? I think the answer is probably not. Maybe the Law Society have considered this properly and thought about it carefully. They need, I think to justify that position if so. Maybe they, and Mr Greene, think this will be seen as a tricky client getting one over on the Divisional Court. The Divisional Court is careful to say they are not deciding his guilt, but they are also careful to set out the prosecution case in detail beyond that which is necessary simply to decide the case. And they specifically re-open the possibility that the misleading of the court was deliberate not reckless. These are amongst the most serious offences a solicitor can face short of prosecution by the police for serious crime (Kingsley Napley have done a blog on what the cases say on sanctions for dishonesty).
When the judgment dropped Mr Greene said he “absolutely denied the allegations, and expected to be acquitted, “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.” This statement is wrong: the Divisional Court, which is the highest court to consider the case, did not dismiss the claims. They said most forcefully and cogently that the claims should be fully considered, which they have not been. Greene appears to be in no rush to have this done. His firm, not Greene if this story in the Gazette is accurate, issued a statement saying leave to appeal the decision would be sought. I think it fine for an ordinary solicitor to take the opportunity of an appeal, but can he remain as the President of the Law Society, protest his innocence, and take procedural points to prevent a full investigation and hearing? Having read the judgment, I would say no.