David Greene v David Davies
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lady Justice Thirlwall,Dame Victoria Sharp |
| Judgment Date | 29 March 2022 |
| Neutral Citation | [2022] EWCA Civ 414 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
| Docket Number | Case No: CA-2021-000442 |
[2022] EWCA Civ 414
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Popplewell and Mr Justice Garnham
Royal Courts of Justice
Strand, London, WC2A 2LL
Dame Victoria Sharp, PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lady Justice Thirlwall
and
Lord Justice Newey
Case No: CA-2021-000442
Ben Hubble QC (instructed by Kingsley Napley LLP) for the Appellant
Martina Murphy and David Green (instructed by Gunnercooke LLP) for the Respondent
Hearing date: 2 March 2022
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10:30am on 29 March 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives
The question raised by this appeal is whether disciplinary proceedings against the appellant, Mr David Greene, arising from a complaint made by the respondent, Mr David Davies, fall to be struck out as an abuse of process or for lack of merit.
Basic facts
Mr Greene is the senior partner in Edwin Coe LLP. He was vice president of the Law Society in 2019 and became its president in 2020.
A company of which Mr Davies was the sole director, Eco-Power.co.uk Limited (“Eco-Power”), developed a system for reducing vehicle exhaust emissions. On 13 June and 16 July 2007, Transport for London (“TfL”) and the Public Carriage Office (“the PCO”) approved the system for use in London taxis and, on 11 September 2007, a modified version of the system was also approved. On 28 March 2008, however, approval for both the original and modified systems was withdrawn. Eco-Power responded by bringing judicial review proceedings, instructing Edwin Coe to represent it. The relief sought in the claim form included damages.
TfL and the PCO conceded that the decision to withdraw the approvals in respect of the original system had been unlawful, but the challenge to the withdrawal of approval for the modified system failed, with His Honour Judge Hickinbottom (as he then was) dismissing the claim in so far as it concerned that approval on 22 April 2008. In an order made on the following day, Judge Hickinbottom directed the parties to file written submissions as to both costs and any directions to be given in relation to the damages claim as it related to the unlawful withdrawal of the approvals of the original system. Subsequently, in a written decision dated 24 November 2008, Judge Hickinbottom determined that Eco-Power should pay 75% of TfL's and the PCO's costs of the judicial review proceedings and, with regard to the damages claim, made this order:
“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. On 11 November 2009, Mr Davies confirmed to Mr Greene in an email that he “definitely” wanted to proceed with the damages claim, and on 16 November 2009 Mr Greene sent Mr Davies an email in which he said:
“Many thanks for the payment. We are opening a new file for the damages claim. I attach our standard terms of business.”
Those terms of business were headed:
“CLIENT: David Davies
MATTER: Damages”
Eco-Power's damages claim was then pursued, with Edwin Coe as its solicitors. On 21 May 2020, however, Simon J concluded that the claim had no real prospect of success.
On 3 December 2010, Edwin Coe invoiced Mr Davies for £7,218.74 in respect of fees for acting in the damages claim. Mr Davies having refused to pay, Edwin Coe issued proceedings to recover its fees. Mr Davies' response was that Edwin Coe's client had been Eco-Power, not him.
The claim was the subject of a fast-track trial before District Judge Stewart in Winchester County Court on 12 December 2012. Edwin Coe relied on a witness statement which Mr Greene had made on 2 December 2012. Having mentioned the Court of Appeal's refusal on 29 July 2008 to grant Eco-Power permission to appeal from Judge Hickinbottom's April 2008 decision, Mr Greene said this in his statement:
“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 and was cross-examined by Mr Davies, who was representing himself. In the course of his evidence, Mr Greene said that a new file had been opened for the damages claim because the previous file had been closed. Mr Greene explained:
“We'd closed our file in relation to Eco-power because you'd stopped instructing us in relation to the judicial review …. We lodged an appeal against the judicial review finding and permission was refused. So that was the end of that matter as far as we were concerned. You came back to us a year, or some time later, in relation to a potential damages claim.”
Mr Greene also said:
“I think if there had been continuous instruction and we had been continuously instructed with Eco-Power and then we'd said, right, okay, from now on it's going to be you personally that I could understand, 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.”
Pressed on whether there had in fact been continuous emails, Mr Greene repeated that there had been “a break of a year”. He also mentioned that he did not have “the old files in relation to Eco-power” and that the new file had been opened in Mr Davies' name because “Eco-power had no money … and hadn't discharged previous bills”.
District Judge Stewart was not shown any of the correspondence which had passed between Mr Davies and Edwin Coe between July 2008 (when permission to appeal Judge Hickinbottom's decision was refused) and November 2009 (when Edwin Coe opened the file in Mr Davies' name). Neither Mr Davies nor Edwin Coe had disclosed it, and a chronology which Edwin Coe had prepared did not refer to it. It seems that it was available to Mr Davies on his laptop, but he did not take either Mr Greene or the District Judge to it.
District Judge Stewart gave an ex tempore judgment in favour of Edwin Coe. Towards the end of his judgment, he said:
“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. They 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 ….
13. The course of conduct was here, clearly, in my judgment, … those terms and conditions. The defendant accepted by his conduct those terms and conditions by continuing to instruct Mr Greene and in my judgment all of these invoices were addressed to him. They remain payable and the one that I am dealing with, the sole invoice for this amount of money, of £7,218.74, remains unpaid …. The liability for payment rests with this defendant and nobody else.”
Mr Davies applied for permission to appeal against District Judge Stewart's decision, but His Honour Judge Hughes QC declined to grant it, first, on the papers and, secondly, following an oral hearing on 7 January 2013. It appears that, at that hearing, Mr Davies sought to rely on the fact that there had been correspondence between himself and Mr Greene in 2008–2009, but Judge Hughes was not persuaded that that mattered.
On 29 June 2015, Mr Davies issued a further application for permission to appeal against the 2012 decision, seeking to have it set aside on the following grounds:
“2. The District Judge was deliberately misled by the evidence of Mr David Greene in that Mr Greene stated that there had been a break in representation where he had not heard from the Appellant for a year.
3. There was no break in the chain of representation as asserted by Mr Greene. This is shown by emails produced at appendix 1 to these grounds ….
4. This was material to the District Judge's reasoning.”
That application was superseded by a fresh claim, issued on 24 September 2015, in which Mr Davies again asked that the 2012...
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