Focus: David Greene, Touch of class
29 June 2009
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UK class action supremo and winner of The Lawyer Awards’ Outstanding Achievement prize, David Greene is determined that the positive side of US litigation reaches this side of the Atlantic soon
Not many lawyers have a client base that has included investors, shopkeepers and prostitutes. But Edwin Coe litigation head David Greene is one such man.
Last week Greene won the Editor’s Award for Outstanding Achievement at this year’s The Lawyer Awards for his work in pioneering the use of group actions in the UK legal system. The award recognises a 25-year career that has seen Greene champion the collective rights of disparate groups of claimants who would otherwise never have had the chance to see their cases get to court.
Greene had his first taste of class actions following the 1988 Lockerbie bombing, when he was part of a group of legal advisers representing the victims’ families, first in a fatal accident inquiry and then in compensation negotiations with the Libyan government.
Although Greene is still involved with that case more than 20 years after the bombing occurred (last week he was with a client in Mumbai as the final compensation payment was made), gaining that instruction two decades ago has shaped his career ever since.
“I’ve built experience over the years of putting people together and organising them so they can come to court and say their piece,” says Greene. “They tend to be people who would find it difficult to be represented alone. They need a voice in front of the court and can only do that in a collective fashion.”
Other cases have seen Greene successfully act for a group of London prostitutes in a competition case against BT, which struck an unlawful agreement with Westminster City Council to restrict sex workers from placing their cards in phone boxes. He also acted for the Association of Convenience Stores at the Competition Appeal Tribunal regarding supermarkets’ abuse of their dominant position.
Most recently Greene advised a group of individual shareholders in nationalised bank Northern Rock, when they, along with hedge funds SRM Capital and RAB Capital, challenged the terms under which the bank was taken into government hands.
On that case, which went to the Court of Appeal earlier this month after a High Court judgment ruled against the shareholders, Greene represented a small number of Northern Rock’s former investors, who in turn were representative of the different types of small shareholders who had been employed in the bank.
Earlier in the decade Greene represented 50,000 former Railtrack shareholders when they took action against the Government in a bid to get a return on their investment when the business was effectively nationalised.
As is the case with Northern Rock so far, the Railtrack litigation was ultimately unsuccessful. But for Greene a wider principle was at stake. The fact that the case got to court at all, and that a government minister’s economy with the truth was only discovered because that action was taken, goes a long way towards justifying the action, he says.
“During the course of the [Railtrack] proceedings, former transport secretary Stephen Byers had to say that he told an untruth in Parliament. For many people that entirely justified the whole process,” he emphasises. “They’d raised on average about £50 each [to fund the litigation] and they felt they’d got their money’s worth. That wouldn’t have happened if they hadn’t been organised in a big group.”
Whether these cases have been a success or not, Greene has certainly won the respect and admiration of his peers. “He’s enormously experienced and wise, and impossible to rattle,” says Simon Davis, head of litigation at Clifford Chance and Greene’s predecessor as president of the London Solicitors Litigation Association.
Blackstone Chambers silk Michael Beloff QC, who represented RAB on Northern Rock, points to Greene’s people skills as one of his key strengths. “In relation to Northern Rock, he was particularly good at handling a group of justifiably aggrieved clients in a highly sensitive situation,” says Beloff.
White & Case litigation partner John Reynolds, who acted for SRM, calls Greene “a true champion of the rights of shareholders”.
“While there is now much focus on class actions in the UK and the initiative of US plaintiff law firms,” he adds, “it should be remembered that David probably has more experience in mass claimant actions than anyone.”
Away from the courts Greene is known for his work campaigning on behalf of clients and litigation colleagues and for his ability to influence policy. This is hardly surprising for a man who has over the years immersed himself in politics (he stood as a Labour candidate against the newly elected speaker of the House of Commons John Bercow MP in the last general election) and the impact that has on those around him is positive.
“David’s probably cornered the market in high-profile collective claimant shareholder actions,” says Fulbright & Jaworski partner Chris Warren-Smith. “I’ve worked with him in the context of the Civil Justice Council collective action reform initiative and his experience has been invaluable in that context.”
Another major part of Greene’s practice sees him visit sub-Saharan Africa quarterly, focusing on dispute resolution and advising governments on civil justice and human rights.
One of Greene’s longest-running African cases saw him advise the Ugandan government on a series of disputes with Israel arising out of the 1976 Entebbe crisis, which saw then Ugandan president Idi Amin allow a plane hijacked by pro-Palestinian protesters to land at Entebbe Airport. Although the Israeli Defence Force (IDF) launched a counterattack to rescue the hostages, many of whom were Israelis and Jews, a number of hostages and Ugandan soldiers were killed, as was the IDF commando leading the assault, Lieutenant Colonel Yonatan Netanyahu.
Elsewhere in Africa, in the coming months Greene aims to undertake a World Bank research project in Tanzania that will look at civil procedure, including advising on setting up that procedure.
While Greene is massively committed to his African practice, in the UK he remains better known for his work in the class action field. And if he gets his way that is one area of the law that will be revolutionised sooner rather than later.
“There’s a tendency to be very prejudiced against the US style of litigation by saying it leads to a litigation culture where the only winners are the lawyers, but if you take that attitude then you throw the baby out with the bathwater,” he says. Greene believes the positive aspect of the US system is that it allows groups and consumers to have access to the courts. “Our system doesn’t necessarily do that,” he argues, “because large groups take a lot of organisation and the litigation that follows isn’t easy. There’s a gap in the ability of consumers to pursue their rights, and however we try to deal with that it remains an obstacle.
“I think there needs to be some process to ensure that people can get together to pursue claims. I’d like to see an opt-out process in the model of either Canada or Australia, which differs to the US in that claimants are liable for costs if they lose. That would introduce some discipline and would be likely to exclude the excesses of the American system.”
Although the European Commission is looking at ways of developing the class action model on this side of the Atlantic, accessing justice via the courts still remains beyond the reach of the average person. With the cost of litigation proving too great a barrier for most to breach, it looks as if Greene will have to continue his pioneering work for some time to come.