A solicitor appealing the findings by the Solicitors Disciplinary Tribunal that he misused a ‘without prejudice’ heading in an email told the High Court today that there was ‘nothing wrong with wanting to try to settle cases confidentially’.
Ashley Simon Hurst, a partner at international firm Osborne Clarke, was fined £50,000 and ordered to pay £260,000 costs last year over communications with tax commentator and former magic circle partner Dan Neidle concerning Hurst's client, former chancellor of the exchequer Nadhim Zahawi.
Hurst, who denied all allegations against him, appealed the SDT’s judgment and its sanction.
His grounds of appeal include that the factual findings of the tribunal were ‘irrational and unsustainable’; that the SDT erred in law ‘by failing to determine the central legal issue’ of whether Hurst had sought to impose a duty of confidentiality on Neidle without any proper arguable basis.
Ben Hubble KC, for Hurst said: ‘Mr Hurst sometimes feels he has been faced with a moving target.’
Explaining the background behind Hurst’s email in July 2022, Hubble said that what Zahawi ‘wanted, if possible, to do was to avoid a potential defamation claim’ and Hurst’s email ‘explained exactly that purpose’.
'He wanted, if possible, to do that without that becoming the news story,’ Hubble said. ‘Both of those objectives are entirely proper objectives. There is nothing wrong with wanting to try and settle cases confidentially.’
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He added: ‘The calm assertion of a client’s arguable rights is part of a solicitor’s job. It is not a breach of professional standards but adherence to professional standards.’
Hubble told the court that the SDT did not focus on questions it needed to – including if the email was properly marked without prejudice - but instead ‘spun into a discussion of the finer points of confidentiality and privilege [and] in doing that it, in fact, got much of the law wrong’.
The authorities relating to legal professional privilege ‘barely’ made an appearance in the SDT judgment, Hubble said. ‘[There is] no attempt anywhere to set out, even in the briefest summary, the principles the tribunal was guided by.’
In written submissions, Hubble said: ‘The SDT failed to deal with principally relevant evidence that undermined its conclusions; and to exercise its essential judicial function of saying why a party’s sworn evidence was disbelieved (if it was).
‘The finding of “motive” against [Hurst] is irrational and contrary to the evidence. Once that error is corrected, then, on the SDT’s own analysis, there can be “no misconduct”.’
The hearing, before Mrs Justice Collins Rice in the Royal Courts of Justice, continues.
