David Davies v David Greene

On an appeal from the Solicitors Disciplinary Tribunal, the High Court may interfere only where the Tribunal misdirected itself in law or reached a decision that was plainly wrong. The appellate court must respect the Tribunal’s advantage in assessing evidence. A finding is not plainly wrong merely because the appellate court might have reached a different conclusion.

Where disciplinary allegations depend on proof that a solicitor lied, an inaccurate statement does not establish dishonesty unless the tribunal is satisfied that it was deliberate, or that the relevant alternative basis of liability is proved. A tribunal may refuse an oral closing speech where, in the circumstances, the procedure remains fair and the speech could not affect the outcome.

Mr Davies appealed against the Solicitors Disciplinary Tribunal’s dismissal of his disciplinary proceedings against Mr Greene, a solicitor. The complaint alleged that Mr Greene had lied in a witness statement and in oral evidence given in County Court proceedings concerning the retainer and fees of his firm. Dishonesty, recklessness and breaches of the SRA Principles 2011 were said to follow from the alleged lies.

The Tribunal found that Mr Greene’s evidence was inaccurate as to a supposed year-long gap in contact, but that the inaccuracy reflected his genuine belief and was not deliberate. It also found that no substantive work had been undertaken to progress the stayed damages claim during the relevant period. The appeal raised whether those findings were plainly wrong and whether refusing Mr Davies an oral closing speech was procedurally improper.

1. Appeal dismissed. The SDT’s findings were not plainly wrong. The statutory appellate jurisdiction requires the High Court to respect the Tribunal’s assessment of evidence and permits intervention only for an error of law or a decision that no reasonable tribunal could have reached.
2. The SDT was entitled to construe Mr Greene’s references to a gap of a year as referring to the absence of substantive instructions to lift the stay and pursue the damages claim, rather than to the absence of all communications. The correspondence showed continuing contact, but no substantive work to progress the damages claim before instructions were given on 11 November 2009. The Tribunal was entitled to accept that substantive work could not begin without instructions and payment on account for counsel, expert evidence and related work.
3. The statement that Mr Greene had not heard from Mr Davies for some time was inaccurate on its face, but the SDT was entitled to find that it was inadvertent. Mr Greene had not reviewed the judicial review file and explained in cross-examination what he had intended to convey. Since the complaint depended on proof that he had lied, the finding that he had not lied defeated the allegations of dishonesty, recklessness and breach of the stated Principles.
4. The SDT was also entitled to make no order as to costs. Its refusal to permit an oral closing speech did not amount to procedural impropriety or serious procedural irregularity. The hearing was short, the evidence was fresh, the Tribunal had transcripts, and Mr Davies had been allowed to open, give evidence, cross-examine and reply on law and correcting mistakes. A further speech could not have affected the outcome.

• High Court (Administrative Court): appeal from the Solicitors Disciplinary Tribunal dismissed. The Tribunal’s dismissal of the disciplinary proceedings and its no-order-as-to-costs decision were upheld.
• Solicitors Disciplinary Tribunal: disciplinary proceedings dismissed, with no order as to costs.