Greene: Genuine belief in statement that proved inaccurate
The High Court has dismissed an appeal against a decision of the Solicitors Disciplinary Tribunal (SDT) to clear former Law Society president David Greene of lying to the county court.
Mr Justice Calver said that it was open to the SDT to find that an inaccurate statement Mr Greene made to District Judge Stewart in Winchester was “inadvertent and not dishonest”.
The matter led to Mr Greene resigning as president in March 2021, part way through his year of office.
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 damages claim which had been stayed, 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, DJ Stewart 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 brought a private prosecution at the SDT against Mr Greene 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, a decision upheld in 2022 by the Court of Appeal.
In a fresh hearing in December 2022, the SDT again cleared Mr Greene and Mr Davies appealed this.
Calver J held that there was “plainly contact throughout that period between Mr Greene and Mr Davies” in the disputed year. But “the bare minimum was done” in terms of ongoing work while Mr Greene waited for Mr Davies to put him in funds to pursue the damages case.
Further, Mr Davies did not provide instructions to do so until November 2009.
The SDT found that Mr Greene’s evidence of a gap of a year in contact between him and Mr Davies to be “inaccurate” but that it did not reflect anything other than his genuine belief at the time and it was not deliberately inaccurate.
“Importantly”, Calver J said, the SDT referred to the fact that Mr Greene had made it plain to the county court that he was giving evidence in the absence of the judicial review file and from his best recollection.
It was “open” to the SDT to find that the inaccurate statement was inadvertent and not dishonest, he went on.
A further reason was that, when Mr Greene was cross-examined at trial before DJ Stewart, “he made it clear that he was meaning to say (as the tribunal accepted) that there had been no substantive instructions for 12 months because he had received no substantive instructions to lift the stay on the damages claim”.
Particularly in light of the “loose and confusing use of language/terminology in the questions put to him” by Mr Davies in the county court, “the SDT was fully entitled to find that Mr Greene had not intended to mislead the court and that he did not lie in his witness statement or to the court”.
Mr Greene had argued that Mr Davies should pay his costs but, in a separate ruling, Calver J decided that each party should bear their own costs.
“I consider that these proceedings, including this appeal, were reasonably brought by Mr Davies and were in the public interest. A case to answer was rightly certified by the SDT and the application and allegations could not be withdrawn without the consent of the SDT.
“There was merit in bringing this appeal (albeit that Mr Davies ultimately lost) and the dispute arose out of Mr Greene’s own conduct in making inaccurate statements in his witness statement in 2012.
“Furthermore, as the SDT itself stated, the original proceedings arose out of Mr Greene’s ‘wholly [un]satisfactory’ conduct in failing to make it expressly clear to Mr Davies that a new retainer imposed personal liability and his ‘wholly [un]satisfactory’ conduct in failing to make it explicitly clear that as a result of non-payment, Edwin Coe was terminating Eco-Power’s retainer.”
He noted that the SDT had also declined to order costs.
Mr Davies said that he intended to appeal the substantive decision.
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