Davies v Greene

A disciplinary tribunal may strike out proceedings after certifying a case to answer where a later application demonstrates that the allegations are plainly incapable of success. The applicable threshold is stringent: proceedings should continue if, on one possible view of the evidence, a properly directed tribunal could make the relevant finding.

A civil judgment is admissible in disciplinary proceedings but is not conclusive proof of its factual findings. A disciplinary tribunal must generally reach its own view, because its public-interest regulatory function differs from the civil court’s function of resolving private disputes. Relitigation may nevertheless amount to abuse of process where it would cause unfair harassment or bring the administration of justice into disrepute. The complaint was therefore arguable and the strike-out decision was set aside.

Mr David Davies appealed against the decision of the Solicitors Disciplinary Tribunal to strike out his lay disciplinary complaint against Mr David Greene, a solicitor. The complaint alleged that Mr Greene had misled a county court in proceedings concerning liability for legal fees, and had thereby breached professional standards.

The SDT had previously certified that there was a case to answer. It later struck out the proceedings, relying on a county court judgment which rejected allegations of dishonesty and concluded that the complaint lacked merit and constituted an abusive collateral attack.

The central issues were whether the SDT could strike out the proceedings after certification, whether the complaint was abusive despite the earlier civil judgment, and whether the evidence disclosed a case to answer.

1. Procedural power. The SDT was entitled under Rule 21 of the Solicitors (Disciplinary Proceedings) Rules 2007 to consider a strike-out application after certification. The respondent had not previously had an opportunity to make representations, and the later division of the SDT had material additional evidence.
2. Abuse of process. The principle in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 applies to disciplinary proceedings. Its touchstone is whether relitigation would cause manifestly unfair harassment or bring the administration of justice into disrepute. The SDT was not, however, deciding the identical question decided by the civil court. The civil proceedings determined a private dispute; the SDT’s function was to protect the public and regulate the profession. The complaint also alleged recklessness and breaches of the SRA Principles 2011, which did not depend on dishonesty. It was therefore not abusive merely because it was inconsistent with the civil judgment.
3. Effect of the civil judgment. Under Rule 15(4), the civil judgment and its findings were admissible but not conclusive proof. The SDT was required to examine the underlying evidence and reach its own view. The earlier judge’s findings had limited evidential weight in the circumstances.
4. Case to answer. The test was the stringent test in R v Galbraith (1981) 73 Cr App R 124, as applied in SRA v Nabeel Sheikh: a case may be withdrawn where there is no evidence, or where the evidence is so tenuous that no properly directed tribunal could make the necessary finding. If, on one possible view, the evidence could support such a finding, the matter must proceed.
5. The correspondence showed regular communications concerning the damages claim, which formed part of the judicial review proceedings. The disparity between that material and Mr Greene’s evidence was capable of supporting an arguable allegation that his evidence was misleading and deliberately so. It also supported the alternative allegations falling short of dishonesty.
6. The appeal was allowed. The court expressed no concluded view on whether Mr Greene had lied, acted dishonestly, or breached professional standards. Those issues remained for determination by the SDT.

1. High Court (Administrative Court): the appeal against the SDT’s decision dated 6 September 2019 was allowed. The court held that the strike-out threshold was not met and that the complaint should proceed for determination by the SDT.
2. Solicitors Disciplinary Tribunal: the proceedings were initially certified as disclosing a case to answer, but were later struck out on grounds of lack of merit and abusive collateral attack.