BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Davies v Greene [2023] EWHC 3304 (Admin) (21 December 2023) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2023/3304.html Cite as: [2023] EWHC 3304 (Admin) |
[New search] [Printable PDF version] [Help]
AC-2023-LON-000475 |
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE SOLICITORS DISCIPLINARY TRIBUNAL
(Case No. 12320-2022)
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
DAVID DAVIES |
Applicant |
|
- and - |
||
DAVID GREENE |
Respondent |
____________________
Ben Hubble KC (instructed by Kingsley Napley) for the Respondent
Hearing dates: 12 December 2023
____________________
Crown Copyright ©
Mr Justice Calver:
Introduction
The correct appellate approach
"The adverb "plainly" does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached." (emphasis added)
And at paragraph 67 Lord Reed went on to state:
"It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
The material factual background to the appeal
"I turn now to the question of damages… In theory… you should be able to recover the damages that Eco power suffered as a result [of the decision of TFL]. You would need to quantify the damages and to prove them.
This would ordinarily involve an accountant or similar expert… the difficulty we have at the moment is that we do not have any idea from you as to what the damages are. I appreciate that your view is that it is impossible to quantify the loss, but in order to move forward you must try to put some figures together.
…
We do not have any figures to base such a claim on as things stand. We have discussed this. I have said that the delay in finalising figures will prejudice you in any application to the court.
…
If we are to do further work I am going to need a payment towards the outstanding account." (emphasis added)
"it looks as though the court wants to proceed quite quickly in relation to any damages claim because we have entered the warned list which means that we could be called on for the hearing.
…
In relation to the damages, we would need to have a closer look at the sales figures and profit margins, and we would also want to discuss with Andrew Butler the way in which the claim in damages should be pleaded. As I see it, your claim would be for the loss of sales of the unmodified system which you would have continued to sell if the PCO had not given approval for the modified system." (emphasis added)
"Dear Guy
Thank you for your letter 03 April…
I am pleased to see that we are now establishing a consequential loss claim from the wrongdoing of Transport for London. I just wanted to touch base with you in relation to the foundation for your calculations.
…
The question for damages therefore is what damages flow from the unlawful removal of permission for the earlier system that was not then being fitted? As I understand it [Mr Davies] was only fitting the new system with the approval of September 2007 and not the earlier system… we need to tie the damages to the wrongful removal of permission for the old, unmodified system and not for the modified system…
I'm not sure if you have addressed that question but that needs some consideration I wonder if I could ask you to do that and perhaps consider those issues."
"… All that we are entitled to do now is pursue the damages for the wrongdoing. As previously, the damages have to flow from the wrongdoing. We are of course pursuing that part of the claim." (emphasis added)
"Turning to your clients claim, can you please clarify the basis in law for seeking compensation? You refer only to the PCO's "unlawful action". Of course the law does not recognise a right to claim damages for losses caused by unlawful administrative action.
Accordingly, our client has no offer to make. If your client intends to pursue the claim then an application to lift the stay will be required. It is likely that, at that stage, we will apply to strike out the claim."
"I attach a letter we have had from TF L. You will see that they deny any liability for damages. We certainly do not agree that you cannot claim damages. The court was specifically dealing with this subject…
If we are to pursue this, we are going to need to instruct Andrew [Butler]. We need to sort out the costs position, both for the past and going forward. He will certainly need some funds to pursue the matter because there will be disbursements along the way." (emphasis added)
"Dave [Davies]
We spoke last week about pursuit of the damages claim. As I said to you pursue to the damages claim is clearly going to incur costs including the costs of the expert and counsel. The first move would be to get the expert and counsel together in order to establish quantification and what we could prove and the way forward. You are going to consider that because you lack ready funds. I said to you that you could not leave it too long because we have these outstanding proceedings and we must decide what to do with them."
"I said to you that we are now receiving pressure from the court to get on with things. They want us to list the hearing. If we do not do so shortly, then they will list it automatically, possibly for dismissal. If you are going to pursue the damages claim then we need to give it attention as soon as possible.
I appreciate that funds are not moving freely at the moment that's why I fear that if the damages claim is to be pursued, there are costs that are going to have to be paid. In particular, we have the outstanding fees for Andrew, our outstanding bill and the future costs of the process… You will of course also have to pay the expert." (emphasis added)
"What we are doing in relation to the hearing in December?" He added that "I have told Transport for London that we are pursuing the claim but obviously we need to decide what our role is and whether counsel is to be instructed. If counsel is to be instructed then we have discussed the payment that we require.
I appreciate that payment is difficult for you but if we are not to proceed and you are to handle the matter in person then we would need to make the change to the court record."
(1) There was plainly contact throughout that period between Mr Greene and Mr Davies;
(2) The damages claim was stayed and Mr Greene repeatedly informed Mr Davies that if the stay was to be lifted he would require funds for counsel, the expert accountant and his firm in order to pursue the claim.
(3) The bare minimum was done in terms of any ongoing work, and the most that was done was the putting together of a proposed settlement letter with TFL, which letter was sent at Mr Davies' insistence on 6 May 2009 but roundly rejected by TFL, with the concomitant threat to strike out any damages claim should Eco-Power apply to lift the stay.
(4) No instructions were received from Mr Davies to lift the stay and pursue the damages claim until 11 November 2009.
"8… On instruction an appeal of the decision on the judicial review was pursued but the Court of Appeal refused permission to appeal[3].
9. I did not hear from Mr Davies for some considerable time. In the meantime the invoices delivered by my firm in relation to the judicial review remained in part undischarged.
10. On or about 16 November 2009 I spoke to Mr Davis. 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." (emphasis added)
"A…We'd closed our file in relation to Eco-power because you'd stopped instructing us in relation to the judicial review. It was an application for… it was an appeal. There was an appeal lodged. We lodged an appeal against the judicial review finding and permission was refused. So that was the 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."
Q…Well, surely if this case is about whether the representation was for Eco-power or David Davies it would be extremely pertinent to include a letter saying we have now terminated the Eco-power account and any further representation would be a new claim as David Davies. You have not got that, have you?
A. Well… I don't want to enter into argument [inaudible], but I think if there had been continuous instructions and we had been continuously instructed with Eco-power and then we'd said, right, okay, from now on it's going to be you personally that I could understand, 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.
Q. Right. So you are saying that the email… the ongoing emails… there is no gap in representation here. There is continuous emails throughout. There was no break of a year and then I came back to you and you have got nothing to demonstrate that, have you?
A. It is a break of a year." (emphasis added)
"Q… You cannot just say it is a break in representation without a letter saying we have now closed your account, we have terminated representation. There was never any break.
A. Our work finished for Eco-Power in relation to the judicial review. After the judicial review we launched an appeal. Permission wasn't given by the Court of Appeal. That was the end of the judicial review.
Q. That is not what you said at the time and there was no break of 12 months or gap in representation in my view the representation was continuous. You have not provided today any documentation saying the representation finished. In fact your emails are continuous and it is improper to suggest that it was not. It is factually incorrect to suggest that it was not. There was no break in representation. You continued with the judicial review then there was the appeal and then there was contention about the appeal afterwards and there was also the ongoing damages claimed. There was no break in representation whatsoever –
…
A. What I have set out in my statement … is that there was a break in representation. You came back to us in November 2009."
"9. What [Mr Davies] is saying is that Mr Green, who gave evidence on behalf of the Claimants in the original action, Edwin Coe, had misled the Court and it is said that so material was the misleading that it was really, effectively, tantamount to giving fraudulent representations to the Court as to what exactly was going on between the parties in the widest sense, that is Mr David Davis, Eco Power and Edwin Coe, between 2008 and 2009.
10. That does seem to be the pivotal date and I am asked, should the Court of its own initiative set aside this judgment in the light of the fact that Mr David Davis has now put before the Court some very important, he says, emails that exist between the period July 2008 and November 2009 … what he says is, that there is significant dialogue between Edwin Coe, notably Mr Greene and himself when the tenor of the evidence of Mr Greene seemed to be suggesting that they had not heard, Edwin Coe, that is, from Mr David Davis, or for that matter Eco Power for some significant time. The time period being about July 2008 to November 2009 …
11. … even if these emails[4] were before me, that does not dislodge the second agreement, the terms and conditions of which reach Mr David Davis, clearly citing he was to be the client and he was then at his election to accept those terms and conditions or to reject them.
12. By virtue of his conduct, he decided to accept them, Nothing in these emails displaces that. All it shows is there was some dialogue. But that is a million miles away from suggesting that Mr Greene had actually misled the Court. I cannot find anything in those emails that, (a) would have made any difference if they had been before me and secondly, anything in them that suggests that the evidence that Mr Greene gave me, either in writing or in the witness box, any way shows him to be anything other than truthful and I have to say that they do not displace the primary evidence that he gave me …
16. … I cannot be satisfied or even begin to allow a plane to leave the runway, so to speak, that there had been any allegation of fraud. In other words, deliberately misleading this Court by Mr Green. In my judgment, Mr Greene did nothing of the sort …
17. … this is a million miles from any fraudulent activity or deliberate misleading of the Court…."
"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."
a. Lied in his witness statement dated 2 November 2012 and in so doing he breached Principles 1, 2 and 6 of the SRA Principles 2011;
b. Lied during the course of giving evidence at the court hearing on 12 December 2012 and in so doing he breached Principles 1, 2 and 6 of the Principles;
c. In misleading the Court as alleged above, Mr Greene's conduct was dishonest;
d. Alternatively to dishonesty, Mr Greene's conduct, in misleading the Court as alleged above, was reckless[6]. (underlining added)
10 ELAINE BANTON: So paragraph 9 of your statement when you say 'I did not hear from Mr Davies
11 for some considerable time' Mr Greene, that's untrue isn't it?
12 DAVID GREENE: Well it's… it's my… it's my… it was my recollection at the time, er, that er, we
13 hadn't heard in any substantive way for some considerable time.
14 ELAINE BANTON: You don't say 'not heard in… in a substantive way' in your statement do you?
15 'I did not hear from Mr Davies for some considerable time'.
16 DAVID GREENE: No, I'll take that criticism of it but, er, as far as I was concerned we hadn't had
17 any substantive, er, discussions, um, for some considerable time.
18 ELAINE BANTON: And what's the considerable time mean to you, what does that mean?
19 DAVID GREENE: Well I think… I think the… the, er, as… as… as we see in, um, in 2009, um, we
20 wrote, er, Mr Davies wanted us to write to the TFL to assert his damages claim. I think that was in
21 April/May 2009, he wanted us to write to… to, er, TFL er, and he had his accountant prepare a
22 report, um, the background of which I think Mr Davies had prepared, er, and, er, we submitted that
23 to TFL, er, it wasn't… it seemed to me that it wasn't, um, a good claim, it's not the way that a claim
24 of that sort should be made. Er, but, er, Mr Davies was insistent that we submitted it, er, and so
25 we did. The result of that was that TFL sent a very short letter the beginning of June, um, er that
26 you don't have a damages claim and if you apply, er, we'll apply to strike it out. Subsequent to
27 that, um, Mr Davies, as I understand it wrote to, er, TFL to say that, er, he er, would come back to
28 the damages claim in due course, er, but in the meantime he wanted to go to the Metropolitan
29 Police, er, the local government ombudsman and I think the Mayor.
…
6 DAVID GREENE: So that was… that was really, um, our involvement in the damages claim, er,
7 and, um, until… until November 2009.
8 ELAINE BANTON: You say in paragraph 9 'I did not hear from Mr Davies for some considerable
9 time'. What do you say was the considerable time?
10 DAVID GREENE: Er, well I'd say…
11 ELAINE BANTON: How long was it, from when to when, what was it?
12 DAVID GREENE: In relation to the substantive damages claim as I say it is we hadn't heard really
13 from the beginning of June as to what was going to happen in relation to it, er, and he was going to
14 pay the costs for it.
15 ELAINE BANTON: Paragraph 10 of your statement, Mr Greene, you say in the centre of the
16 paragraph, 'I had not been in contact with him for some time'. Do you stand by that statement?
17 DAVID GREENE: Yes I think it's a… a generally, um, true statement that, um, we hadn't had
18 substantive instructions, er, in relation to the damages claim, er, and, er, they didn't come until
19 November 2009. I think even in… on 10th November 2009 I… I was saying if… if you want to take
20 this forward on your own then we'll have to come off the record.
21 ELAINE BANTON: But that's not what your statement says, is it? Because you say I had not been
22 in contact with him for some time. You don't qualify that, Mr Greene.
23 DAVID GREENE: I… I agree with that, the statement is as it is but from my point of view that was,
24 er, in relation to substantive contact that we were going to take forward the damages claim.
…
1 DAVID GREENE: It… it, what it was saying was there weren't substantive instructions or contact
2 in relation to the pursuit of the damages claim.
3 ELAINE BANTON: So where does it say not substantive instructions?
4 DAVID GREENE: It doesn't say that. [underlining added]
14 ELAINE BANTON: So then I would suggest to you that there is, um, we can see substantial
15 communication regarding the instruction during this period.
16 DAVID GREENE: Well I think... I think that what this was is me saying, er, that er, what you have
17 produced is not going to go, is not going to fly. So I said as I explained we need an accountant to
18 properly assess the damages that flow from the unlawful action on the part of Transport for
19 London. They can address that to us but it must be a reasoned argument and they will have to be
20 able to justify it in front of the Court and should be able to go through into some depth about the
21 way in which damages flow from the unlawful action.
1 DAVID GREENE: Well I think… I think, um, timing-wise, I think that is, um, after we had submitted
2 the, um, figures that had been given to us by Jeffrey Robinson to the TFL.
3 TRIBUNAL MEMBER: Yes they were submitted on 6th May.
4 DAVID GREENE: 6th May, and I think we were awaiting a response to that and I think I just had in
5 mind is that, um, that… that's where we are at the moment.
6 TRIBUNAL MEMBER: So it wasn't substantively pursuing?
7 DAVID GREENE: No we had… I mean all we had done is submit to TFL, um, what we had been
8 provided with, and, er, Mr Davies was insistent that we should do so, um, I personally didn't think
9 actually they added up to much but there we are he wanted us to do it so we put them in.
10 TRIBUNAL MEMBER: And that work was pro bono?
11 DAVID GREENE: It was, we didn't… we didn't charge for it.
12 TRIBUNAL MEMBER: Thank you.
13 DAVID GREENE: I think I say some… somewhere that in order to pursue the… to actually pursue
14 the damages claim we'd need Counsel, expert, we'd need new Particulars of Claim, um, and we'd
15 have to have an application in front of the Court for directions and usually those directions for
16 judicial review are to move the… move the damages claim into a sort of substantive action in
17 another court. I think in this case we applied for the TCC, um, I personally was not convinced
18 about that because I think it could have been done all in the QB but… but that's the way one would
19 do it. Um, and it… and it… to me it's important that when you're making a damages claim it's
20 properly prepared, er, and… and it's substantive and its' something that can be justified because
21 that's… that's the document you're going to be relying upon all the way through, er, and to me
22 what we were submitting to the TFL simply didn't mean that.
Findings of the SDT
"17.83 As detailed, Mr Davies was in possession of the documents now relied upon, but not produced during the County Court proceedings. In those circumstances, it was not accepted that Mr Greene had deliberately concealed them; documents could not be concealed from someone who was already in possession of them.
17.84 Having determined that there was no evidence to support the contention that Mr Greene had prepared the List of Documents, or that documents were selectively disclosed, the Tribunal found that Mr Greene had not deliberately omitted the communications in order to create the false impression that there had been no contact, communication or representation at all between November 2008 November 2009, so as to support the false impression that the Eco-Power file had closed and a new damages file had been opened.
17.85 Accordingly, the Tribunal found that Mr Greene had not misconducted himself as regards the List of Documents."
"The Tribunal considered the communications relied upon by Mr Davies and whether they demonstrated that he had lied in his oral and written evidence as alleged. It was plain that there had been ongoing contact throughout the period in which it was said that Mr Davies had not been in contact for some time and that there was a gap of about a year. The Tribunal thus found that his evidence to that effect was inaccurate".
"17.93 The Tribunal whilst finding that Mr Greene's evidence at the County Court was inaccurate, did not find that it reflected anything other than his genuine belief at the time. It was accepted that Mr Greene had not reviewed the Judicial Review file, and that he considered the Judicial Review file to have been at an end when permission to appeal HHJ Hickinbottom's decision was refused.
17.94 As detailed, the Tribunal did not find that the giving of inaccurate evidence meant that such evidence was deliberately inaccurate."
"He did not have the Judicial Review file, had not reviewed the Judicial Review file, and was not taken by Mr Davies to the now relied upon communications. It had been suggested that Mr Greene had failed in his obligations by failing to review the Judicial Review file. The Tribunal did not accept that assertion. The issues to be determined in the County Court was whether or not a new retainer had been entered into which placed a personal liability of Mr Davies. The documents in that regard were on the damages file. The Tribunal thus found that there was nothing improper in Mr Greene not reviewing a file that was not relevant to the issues to be determined."
"17.90 The Tribunal noted that as regards any proceedings, the damages claim had been stayed, during the period where Mr Greene had said there was a one year gap, but when there were ongoing and continuous communications between Mr Davies and Mr Greene. When considering the communications, the Tribunal remained cognisant of the fact that the damages claim had been stayed.
17.91 The Tribunal considered the communications with care. It found that there was no substantive work being undertaken during from November 2008 until the new retainer on 16 November 2009. Whilst there had been many discussions about what was necessary in order to pursue the damages claim, no work in order to progress that claim had happened. The general tenor of the communications was about what was required, however, it was clear that substantive work would not be undertaken due to the outstanding fees."
"The Tribunal did not find that Mr Greene had intended to mislead the Court, nor had he actually done so. His inaccurate evidence, the Tribunal found, was inadvertent. The Tribunal did not consider that the evidence Mr Greene gave before the Tribunal was significantly different to that given in the County Court. Having been asked to answer the Complaint, Mr Greene had clarified what he meant by a gap of a year and the break in instructions. That evidence had not been given at the County Court as it was not relevant to the determination of the issue before that Court."
"The case had been brought against Mr Greene on the basis that he had lied to the County Court in his oral and written evidence. The Tribunal determined that once it was established that he had not lied (or been reckless as to the evidence given) the allegations fell away. It followed that having found that Mr Greene had not lied when giving his evidence, the Tribunal did not find him to have been dishonest, reckless or to have been in breach of the Principles as alleged."
Analysis
(1) Was the finding of the SDT that Mr Greene did not lie plainly wrong?
(2) Was the SDT guilty of procedural impropriety in refusing to allow Mr Davies an oral closing speech?
Ms Banton agreed with this.
Was the finding of the SDT that Mr Greene did not lie plainly wrong?
Was the SDT guilty of procedural impropriety in refusing to allow Mr Davies an oral closing speech?
Note 1 Mr Davies had been certified by the Tribunal as being entitled to prosecute the proceedings against Mr Greene. [Back] Note 2 Mr Greene’s email to Mr Davies dated 28 May 2009 refers to the fact that he has “put to [TFL] the damages figures that were prepared by the accountant.” He added that if as he expected TFL rejected the damages claim, then detailed figures from the accountant would be required and there would then need to be a discussion with counsel “with a view to issuing an application”, presumably to lift the stay. [Back] Note 3 Permission to appeal was refused by Laws LJ on 29 July 2008. [Back] Note 4 The email traffic between November 2008 and November 2009 [Back] Note 5 See paragraphs 1.1, 1.2, 2 and 3 of the Written Reasons of the SDT. [Back] Note 6 This formulation of the complaint was also set out at paragraphs 2 to 4 of Mr Davies’ Skeleton Argument for the final hearing. [Back] Note 7 See paragraph 25 of the analysis above. [Back] Note 9 I do not consider it would be sufficient for the SDT, in order to justify its refusal to afford Mr Davies a closing speech, simply to rely upon the fact that it was the Tribunal’s standard practice to allow the Applicant to open and the Respondent to close. But it did not do so. [Back]