A solicitor who was fined £50,000 over the alleged misuse of a ‘without prejudice’ email header has had the decision and sanction against him overturned on appeal. The ruling in favour of international firm Osborne Clarke partner Ashley Simon Hurst is the latest setback to the Solicitors Regulation Authority's attempt to clamp down on behaviour associated with so-called SLAPP litigation.
Hurst was fined in 2024 when the Solicitors Disciplinary Tribunal found that he had improperly attempted to stop solicitor and tax commentator Dan Neidle from publishing or discussing correspondence from Hurst over the tax affairs of his client, former chancellor of the exchequer Nadhim Zahawi. The SDT also ordered Hurst to pay £260,000 costs.
Hurst appealed to the Administrative Court. In Ashley Hurst v Solicitors Regulation Authority, Mrs Justice Collins Rice today set aside the orders of the SDT and the ‘decision and determinations on which they were based’. The judge described as 'opaque' the SDT’s reasons for regarding the ‘without prejudice’ label as ‘improper’.
The judge said: ‘This idea of a preoccupation with secrecy and stifling a right to publish – proposed by the SRA and adopted by the tribunal – was, in my judgment, insufficiently examined, accounted for, or evidentially supported in the tribunal’s analysis, and as such was replete with risk of unfairness to Mr Hurst and to the reaching of an unfair decision.’
She said the SDT ‘did not address itself correctly and relevantly to that law [on confidentiality and ‘without privilege’], and unsurprisingly fell into error of law to the extent that it ostensibly had regard to it, sought to apply it, or rejected it as irrelevant’. The SDT’s decision was therefore ‘wrong and cannot be upheld’ and its conclusion ‘unsustainable and troubling’.
Another ‘troubling’ feature of the SDT’s conclusion, the judge said, was ‘the vehemence and disparagement with which it was expressed’. She added: ‘The charges Mr Hurst actually faced, and the analysis and reasoning set out in the tribunal’s decision, do not justify its expressing itself in the terms it did. It was not fair to Mr Hurst to do so.’
The judge said she was ‘not satisfied’ that the tribunal’s decision ‘sets out a line of reasoning which could satisfactorily be followed through to a complete understanding of how it reached its end point’.
‘The decision challenged in this appeal was insufficiently analysed and reasoned, vitiated by misdirection and error of law, and unfair.’
Although the tribunal stressed that the Hurst case did not involve 'strategic litigation against public participation' (SLAPP) the High Court ruling appears to leave the SRA's anti-SLAPP campaign in tatters. Its first two specific anti-SLAPP prosecutions last month both failed before the tribunal.
A spokesperson for Osborne Clarke said: 'We are delighted with this result and appreciate the Judge's careful analysis in this important decision.'
Hurst told the Gazette: 'I’m relieved to have been exonerated by this comprehensive judgment. A big thanks to my excellent legal team, my colleagues and the many around the legal community who stood behind me during this long and stressful episode.'
Neidle described the High Court decision as 'very surprising, and concerning'.
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