David Davies v David Greene

In an appeal from professional disciplinary proceedings, the court has a broad discretion on costs and must consider the character and public interest of the proceedings. A lay complainant may, once a disciplinary tribunal certifies a case to answer, effectively stand in the regulator’s shoes, even though he is not himself a regulator. The principle that there should ordinarily be no order as to costs before a professional disciplinary tribunal does not automatically extend to an appeal. Where proceedings were reasonably brought, raised a genuine public interest, and had sufficient merit to proceed, fairness may require each party to bear its own appellate costs despite the appeal failing.

David Davies appealed to the Administrative Court from disciplinary proceedings before the Solicitors Disciplinary Tribunal concerning David Greene. The appeal ultimately failed. The court then considered the costs of the appeal.

Mr Greene sought his costs as the successful party. Mr Davies submitted that the proceedings had been properly brought in the public interest and that the circumstances in which the SDT had certified a case to answer justified a different order. The central issue was whether the costs approach applicable to first-instance professional disciplinary proceedings should influence the court’s discretion on an appeal.

1. Costs discretion. Although Mr Davies was not a regulator and was not generally entrusted with disciplinary responsibilities, the SDT had certified that there was a case for Mr Greene to answer. In determining whether Mr Greene had discharged his professional obligations, Mr Davies had effectively stood in the shoes of the SRA.
2. Public interest. The disciplinary complaint had a public interest element independent of the identity of the prosecutor. Once the case to answer had been certified, the application and allegations could not be withdrawn without the SDT’s consent. The proceedings had therefore been properly brought and were reasonably pursued, including on appeal.
3. Appellate costs. The principle of no order as to costs applicable before a first-instance professional tribunal does not apply automatically to an appeal. The court relied on the approach discussed in Owusu-Yianoma v Bar Standards Board and on the distinction recognised in Competition and Markets Authority v Flynn Pharma and Pfizer Inc. and Walker v Royal College of Veterinary Surgeons.
4. Application. The appeal had merit despite ultimately failing. The dispute arose from Mr Greene’s admitted inaccuracies and conduct which had led the SDT to certify the Lay Application. The SDT had properly made no order as to costs at first instance, and the same factors made it fair not to penalise Mr Davies on appeal.
5. Order. Each party was ordered to bear its own costs of the appeal.

• Solicitors Disciplinary Tribunal: The SDT certified that there was a case to answer and permitted Mr Davies’ Lay Application to proceed. The complaint ultimately failed, but the SDT made no order as to costs.
• High Court (Administrative Court): The appeal was dismissed or otherwise unsuccessful on its merits. On the separate costs ruling, each party was ordered to bear its own costs.