The Solicitors Disciplinary Tribunal was entitled to make the findings it did in the case of a specialist media lawyer fined over the misuse of a ‘without prejudice’ headed email, the High Court heard yesterday.
Ashley Simon Hurst, a partner at international firm Osborne Clarke and the firm’s head of media and information law disputes team, is appealing the findings of the SDT and its sanction of a £50,000 fine.
Last year Hurst was found to have improperly attempted to stop tax commentator and former magic circle partner Dan Neidle from publishing or discussing correspondence from Hurst after Neidle tweeted that former chancellor of the exchequer Nadhim Zahawi, Hurst’s client, had lied.
Hurst, who denied the allegations against him, appealed to the Administrative Court.
David Price KC, for the Solicitors Regulation Authority, told the court: ‘Clearly what has happened here is that the tribunal have found that the wording prohibition of disclosure accompanying with a threat was intended to prevent Mr Neidle from disclosing the threat of the claim. It is a finding that is not challenged.
‘Mr Hurst’s case was a rejection, no it was not a threat, and the tribunal rejected that. Again, it is a finding not subject to challenge.’
He told the court the ‘tribunal was entitled to take into account as to whether Mr Hurst believed that Mr Neidle could legitimately be restricted from disclosing the facts of the claim’.
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Hurst’s case to the tribunal ‘was that he believed there was a possible legal basis to restrict Mr Neidle from disclosing facts of the claim’, Price said, describing it as an ‘obvious discrepancy’. ‘Why is he saying those words were not intended to prevent Mr Neidle from disclosing the facts of the claim? It is inconsistent.’
Referring to the email’s heading, Price said: ‘I stress here the issue is the purpose of the label. It is not whether Mr Zahawi would rather settle this case or whether there is some form of offer or whatever in it.’
In written submissions, he told the court: ‘The location of the border between a proposition being incorrect and it being so incorrect as to not be properly arguable is evaluative and will depend on the circumstances. It was not perverse for the SDT to conclude that the representations conveyed by the [prohibition on disclosure] were nor properly arguable’.
He added: ‘It was open to the SDT to find [Hurst] has sought to mislead. It is a classic inferential credibility finding that cannot be second guessed by the appeal court. Any experienced solicitor will have come across obvious try-ons from other solicitors and had to resist an aggrieved client’s wish to include one.
‘People seeking to mislead “others” is a common feature of life. However, solicitors are subject to a blanket prohibition against such conduct.’
Judgment was reserved.
