David Greene v David Davies

A collateral challenge to a civil judgment is an abuse of process only where relitigation would be manifestly unfair or would bring the administration of justice into disrepute. The assessment is fact-sensitive. Differences in parties, issues and functions are material, particularly where disciplinary proceedings serve a distinct public interest.

A civil court’s findings are admissible but not conclusive in solicitors’ disciplinary proceedings. A complaint may therefore proceed where, on one possible view of the evidence, the tribunal could properly find the allegations proved. However, a complainant cannot ask a disciplinary tribunal to decide that evidence would have changed an earlier judgment where the judge who made that judgment has expressly determined that it would have made no difference.

A solicitor faced disciplinary proceedings arising from a former opposing litigant’s complaint that he had given false evidence in earlier fee-recovery proceedings. The same district judge had subsequently rejected allegations that the solicitor had acted dishonestly and had determined that previously omitted correspondence would not have altered the original decision.

The Solicitors Disciplinary Tribunal struck out the complaint as an abusive collateral attack and as having no realistic prospect of success. The Divisional Court allowed the complainant’s appeal and set aside that order: [2021] EWHC 38 (Admin).

The solicitor appealed. The central questions were whether the disciplinary proceedings were abusive because they conflicted with the civil findings and whether the complaint disclosed a case to answer.

1. Appeal dismissed except in one limited respect. Newey LJ, with whom Thirlwall LJ and Dame Victoria Sharp P agreed, held that the disciplinary proceedings should be struck out only so far as the complaint alleged that the omitted correspondence would have caused the district judge to decide the earlier civil claim differently. The balance of the complaint could proceed.

2. The jurisdiction to prevent abusive collateral challenges is exceptional and fact-sensitive. Where the parties are not bound by an issue estoppel, a challenge to an earlier civil finding is abusive only if relitigation would be manifestly unfair or would bring the administration of justice into disrepute. An inconsistent finding is not inherently abusive. Differences between the issues, parties and functions of the two proceedings must be considered.

3. The complaint was not confined to dishonesty or to evidence which actually caused the district judge to be misled. Under Rule 7 of the Solicitors (Disciplinary Proceedings) Rules 2007, the supplementary statement could enlarge the certified allegations. The complaint therefore included alleged breaches of the professional principles without dishonesty and the alleged giving of false evidence whether or not it affected the civil decision.

4. The disciplinary issues differed from the set-aside application. The latter concerned conscious and deliberate dishonesty which was causative of the impugned judgment. The disciplinary proceedings could examine whether the evidence was false, why it was given and whether it breached professional standards. Their regulatory function and public interest element also differed from those of civil litigation.

5. It would nevertheless bring the administration of justice into disrepute to relitigate whether the omitted correspondence would have altered the district judge’s own decision. The judge had expressly determined that it would have made no difference. That discrete allegation was therefore struck out.

6. The remaining proceedings were not manifestly unfair. The complaint had been certified as raising a case to answer, relevant documentary evidence remained available, and there was a public interest in determining an arguable disciplinary complaint.

7. The civil judgment did not establish that the remaining allegations lacked merit. Rule 15(4) of the Solicitors (Disciplinary Proceedings) Rules 2007 made its factual findings admissible but not conclusive. The underlying evidence was neither absent nor so tenuous that the tribunal could not properly find the allegations proved. The court expressed no view on whether they would ultimately be proved.

1. Court of Appeal (Civil Division): In [2022] EWCA Civ 414, struck out the disciplinary proceedings only so far as they alleged that the omitted correspondence would have changed the district judge’s earlier decision. The solicitor’s appeal was otherwise dismissed.

2. Divisional Court: In [2021] EWHC 38 (Admin), allowed the complainant’s appeal, set aside the strike-out order and held that the Solicitors Disciplinary Tribunal had erred on both abuse of process and merits.

3. Solicitors Disciplinary Tribunal: On 6 September 2019, struck out the complaint as an abusive collateral attack and as having no reasonable or realistic prospect of success.