David Davies v David Greene
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell,Mr Justice Garnham |
| Judgment Date | 12 January 2021 |
| Neutral Citation | [2021] EWHC 38 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3805/2019 |
| Date | 12 January 2021 |
[2021] EWHC 38 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Popplewell
and
Mr Justice Garnham
Case No: CO/3805/2019
David Davies (in person)
Ben Hubble QC (instructed by Kingsley Napsley LLP) for the Respondent
Hearing dates: 24th November 2020
Approved Judgment
Lord Justice Popplewell and
Introduction
This is the judgment of the Court.
Mr David Davies appeals against the decision of the Solicitors Disciplinary Tribunal (“the SDT”), dated 6 September 2019, to strike out disciplinary proceedings against the Respondent, Mr David Greene. Mr Davies is the sole director of Eco-Power (UK) Ltd (“Eco-Power”), a former client of Edwin Coe LLP (“Edwin Coe”). Mr Greene is a senior partner and Head of Ligation at Edwin Coe. He is currently President of the Law Society.
Mr Davies represented himself at the appeal, after an application to adjourn the hearing to enable him to obtain legal representation was rejected. He advanced his case with care, moderation and no little skill. We are grateful to him for his submissions. We are also grateful to Mr Ben Hubble QC, who appeared for the Respondent, for his helpful submissions.
The History
In March 2008, Edwin Coe was instructed by Eco-Power to represent it in judicial review proceedings brought against Transport for London (“TFL”) and the Public Carriage Office (“PCO”). Eco-Power had developed a system for reduction of vehicle emissions in which exhaust gases were recirculated through the vehicle's engine. That original system was approved for use in London taxis by TFL and PCO by approvals dated 13 June and 16 July 2007. Eco-Power developed a further modified emissions system in which exhaust gases were recirculated not through the vehicle's engine, but only into the vehicle's exhaust pipe. The judicial review was of two decisions of TFL and PCO: the first was a decision to withdraw the approvals for the original system; the second was a decision of 11 September 2007 to withdraw approval for the modified system.
The basis of Edwin Coe's instructions was set out in their terms of business signed on 1 March 2008. Eco-Power was the client. Mr Greene was the partner with conduct of the case.
In April 2008, the application for judicial review was determined by His Honour Judge Hickinbottom, as he then was. TFL and PCO conceded that the decision to withdraw the approvals for the original system was unlawful, and that decision was quashed. However, the challenge to the decision of 11 September 2007 to withdraw approval for the modified system failed; in that respect the judicial review claim was dismissed. HHJ Hickinbottom's order of 23 April 2008 provided that the parties were to make written submissions in relation to costs, and as to any directions in relation to Eco-Power's damages claim arising out of the unlawful withdrawal of approvals for the original system.
Eco-Power sought leave to appeal the dismissal of the judicial review application in relation to the modified system. On 29 July 2008, Laws LJ refused permission to appeal.
On 24 November 2008, HHJ Hickinbottom determined the issues of costs and directions in relation to the damages claim on the basis of the written submissions, without a hearing. He ordered Eco-Power to pay 75% of TFL's and PCO's costs in the judicial review. It was unclear to him from the submissions what, if anything, had been agreed between the parties as to what was to happen in relation to the damages claim. Accordingly, he made the following order in relation to it:
“The Claimant's claim for damages shall be stayed with permission to apply. If the Claimant wishes to pursue that claim, it shall make an application to lift the stay and for directions in that claim, which will be set down for hearing before HHJ Hickinbottom with a time estimate of 30 mins. Each side will lodge and serve any further submissions relating to directions at least 7 days before the hearing.”
Correspondence between Edwin Coe and Eco-Power followed. We will need to consider that correspondence in a little detail later in this judgment. For present purposes it suffices to note that about a year later Mr Davies confirmed he wanted Eco-Power's damages claim to be pursued. On 16 November 2009, Edwin Coe opened a new file in the name of Mr Davies rather than in the name of Eco-Power. The commercial rationale for the new retainer is said by Mr Greene to be obvious; it meant Mr Davies became personally liable for the fees in the damages action even though the claim was that of Eco-Power. Thereafter, Edwin Coe remained on the record as acting for Eco-Power. In the event, the damages claim was not successfully pursued.
On 3 December 2010, Edwin Coe issued an invoice to Mr Davies for the sum £7,218.74 in respect of its fees for acting in the damages claim. Mr Davies refused to pay the invoice, and, in March 2012, Edwin Coe began proceedings (Claim No 2YJ09713) to recover the outstanding fees. Mr Davies' response was that he was not the client; Eco-Power was.
Edwin Coe's claim came on for hearing before District Judge Stewart in the Winchester County Court on 12 December 2012. Edwin Coe relied upon a witness statement dated 2 December 2012 from Mr Greene. Mr Greene referred at paragraph 8 to the refusal of permission to appeal by the Court of Appeal in July 2008. Then at paragraph 9–11 he said this:
“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 Davies. 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.
11. At that time we were owed money on the previous file for his company. Mr Davies made it clear that his company had little or no money. It could not afford our fees. I was only willing to take on the claim on the basis that Mr Davies himself would meet our bills. I opened a file in his name and sent him terms and conditions, again, in his own name.”
Mr Greene gave oral evidence at the trial on 12 December 2012 and was cross-examined by Mr Davies, acting in person. In the course of cross-examination, Mr Greene gave the following evidence:
i) He said that the position in November 2019 was that the Eco-Power file had been closed “ some time ago …. because you'd stopped instructing us in relation to the judicial review”;
ii) He then referred to the fact that after permission to appeal had been refused (in July 2008), that was “ an 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”.
iii) Mr Davies asked why there was no letter from Edwin Coe stating that the previous file had been closed or expressly stating that the new retainer would be with Mr Davies rather than with Eco-Power. Mr Greene replied that matters might have been different “ if there had been continuous instruction and we had been continuously instructed with Eco-Power…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.”
There was in fact a body of correspondence passing between Mr Greene and Mr Davies from autumn 2008 to autumn 2009, to which we return below, but it was not before the Court. Neither party had produced or disclosed those documents. Edwin Coe also produced a chronology that made no reference to these documents.
DJ Stewart gave an ex tempore judgment on 12 December 2012 (“2012 Judgment”) in favour of Edwin Coe. Having set out the history, DJ Stewart said at paragraph 11:
“Where does all this lead me? It seems to me I can make the following findings in this case with ease. Firstly, one cannot look at any one particular document in isolation from any other. I have to consider the whole course of dealing between these parties and Edwin Coe and the limited company. In my judgment, it is quite clear that there were two separate terms and conditions sent at very different times for different purposes, for Ecopower for the judicial review page 76 are the terms and conditions …[which] were clearly accepted by that company. Secondly, a year later, or thereabouts, on page 87, one sees the terms and conditions. It clearly identifies Mr David Davies to be the client and it clearly shows on that document that there was a new client creation and Mr David Davies became the client.”
DJ Stewart therefore gave judgment in favour of Edwin Coe against Mr Davies in the sum of £7,218.74 with interest at 2% and costs assessed at £6,800 (“the 2012 Order”).
Mr Davies sought leave to appeal the 2012 Order. On 7 January 2013, HHJ Hughes QC dismissed the application for permission to appeal on the papers. The application was renewed orally on 11 March 2013. It appears from subsequent submissions that Mr Davies sought, on that occasion, to rely on the fact that there was correspondence between him and Mr Greene between autumn 2008 and autumn 2009. HHJ Hughes' view was that such...
To continue reading
Request your trial
-
David Greene v David Davies
...ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT Lord Justice Popplewell and Mr Justice Garnham [2021] EWHC 38 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Before: Dame Victoria Sharp, PRESIDENT OF THE QUEEN'S BENCH DIVISION Lady Justice Thirlwall......