David Davies v David Greene
| Jurisdiction | England & Wales |
| Judge | Mr Justice Calver |
| Judgment Date | 21 December 2023 |
| Neutral Citation | [2023] EWHC 3329 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/265/2023 |
[2023] EWHC 3329 (Admin)
Mr Justice Calver
Case No: CO/265/2023
AC-2023-LON-000475
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE SOLICITORS DISCIPLINARY TRIBUNAL
(Case No. 12320-2022)
Royal Courts of Justice
Strand, London, WC2A 2LL
Elaine Banton (instructed by Kilgannon Law) for the Applicant
Ben Hubble KC (instructed by Kingsley Napley) for the Respondent
Hearing dates: 12 December 2023
RULING ON COSTS
This ruling was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives Thursday 21 December 2023.
So far as the costs of this appeal are concerned, Mr. Hubble KC (for Mr. Greene) submits that, as the losing party, Mr. Davies should pay the costs of the appeal. He points out that Mr Davies is not a regulator charged with any responsibility to act in the public interest; nor is he funded by payments from practitioners. There can accordingly be no “chilling effect” of the making of an adverse costs order against him as a result.
Mr. Hubble also points out that the SRA expressly declined itself to pursue a referral to the SDT against Mr Greene and chose not to take over Mr. Davies' complaint. In consequence the SDT which certified Mr Davies' Lay Application expressly warned Mr Davies, at paragraph 11 of their Memorandum of Consideration of Lay Application that: “ whoever is successful at the final hearing is likely to receive their costs if they win and have to pay the other side's costs if they lose …”.
However, although it is of course correct that Mr. Davies is not himself a regulator and is obviously not generally entrusted with disciplinary responsibilities for the profession, on 21 June 2019 the SDT certified that there was a case for Mr Greene to answer and allowed Mr Davies' Lay Application to proceed. I consider that he effectively stood in the shoes of the SRA in determining whether Mr Greene had properly discharged his professional obligations and I approach the question of costs against that background.
This approach is supported by the observations of the Court of Appeal in Greene v Davies [2022] EWCA Civ 414:
“[a]lthough Mr Davies was both the lay applicant in the SDT proceedings and a party in the civil action, the case before the SDT is a disciplinary complaint in which there is a public interest irrespective of the identity of the prosecutor”: paragraph 56. “[O]nce a case to answer has been certified, the application and allegations cannot be withdrawn without the consent of the SDT” (at [39], reciting the judgment of the Divisional Court below); and
iv) Disciplinary proceedings have a different function from civil litigation and have a public interest element which a civil claim lacks. It is true that, in the present case, the complaint has been brought by Mr Davies rather than the SRA, and it could be that (however mistakenly) Mr Davies hopes that success with the complaint would enable him to reopen Edwin Coe's judgment against him. However, a lay complaint cannot proceed unless (as happened here) the SDT certifies that there is a case to answer and, once so certified, a complaint cannot be withdrawn without the...
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