A solicitor fined £50,000 for trying to prevent details emerging of an implicit legal threat on behalf of a prominent Conservative politician is challenging the tribunal's decision.
The Solicitors Disciplinary Tribunal found last December that Ashley Hurst, a partner at international firm Osborne Clarke, had improperly attempted to restrict tax commentator Dan Neidle from publishing an email sent by Hurst on behalf of former chancellor of the exchequer Nadhim Zahawi.
Neidle, a former partner at Clifford Chance, had written on his Tax Policy Associates website that Zahawi had lied about his tax affairs. On the same day Neidle received an email from Hurst labelled as ‘confidential and without prejudice’ which said that he was not entitled to publish it or refer to it other than for the purposes of seeking legal advice.
The tribunal found that in sending this email Hurst had ‘improperly attempted to restrict’ Neidle and failed to uphold public trust and confidence in the profession. It stressed that the case should not be regarded as an example of a SLAPP (strategic lawsuit against public participation), despite reports describing it as such.
Neidle this week published Hurst’s grounds of appeal against the SDT’s decision in the High Court. According to the document, Hurst submits the key findings of the tribunal were ‘irrational and unsustainable’, with no evidence to support a finding of misconduct.
Hurst says the tribunal failed to give any reason why cogent and relevant evidence was rejected and made no reference to his extensive written and oral testimony which showed the motives and beliefs behind his actions. It is further submitted that the tribunal failed to make any express finding whether the email was without prejudice or whether that gave rise to an obligation of confidentiality.
For its part, the Solicitors Regulation Authority’s response submits that the tribunal’s finding was justified and that Hurst had indeed tried to prevent Neidle from publishing the contents of his email.
The tribunal found that the language used in the email - whether characterised as 'serious wording' (as Hurst claimed) or an 'implicit threat' (as the SRA argued) - was intended to mislead Neidle about his rights.
Osborne Clarke declined to comment on the case. Nor did it confirm whether the firm was covering the £908,000 costs incurred by Hurst for the tribunal proceedings. As well as being fined £50,000 he was also ordered by the tribunal to pay the SRA’s £260,000 costs.
Neidle said: ‘If Mr Hurst wins this appeal, then solicitors will have a green light to claim their libel threats cannot be published, or even referred to. The “secret SLAPP” will have become blessed by the courts. That would be a terrible result for everybody who cares about free speech.’
