The Solicitors Regulation Authority has asked a former newspaper legal chief to give evidence in its first prosecution of alleged 'SLAPP' - strategic litigation against public participation - behaviour by a solicitor. The case concerns a solicitor who was acting for former chancellor of the exchequer Nadhim Zahawi (pictured above) in a defamation claim.
In its prosecution, the SRA accuses Ashley Simon Hurst, head of client strategy at international practice Osborne Clarke, of sending correspondence to tax commentator Dan Neidle, himself a former magic circle partner, which improperly attempted to restrict Neidle’s right to publish the correspondence and/or discuss its contents. Osborne Clarke said it entirely supports Hurst’s defence in this matter.
A five-day tribunal hearing into the allegations will begin on 16 December.
At a case management hearing last Friday, Ben Hubble KC, for Hurst, told the tribunal that the SRA intends to adduce evidence from Gill Phillips, former editorial legal director at The Guardian, on what the SRA claims are ‘highly unusual features’ of Hurst’s correspondence to Neidle. ‘That would plainly be opinion,’ Hubble told the tribunal. ‘It would be [Phillips’] opinion based on her experience of what is usual and what is unusual.’
Challenging the SRA's intention, Hubble added: ‘It is hard to see how Ms Phillips’s evidence does not become evidence about custom, conduct and practice by a solicitor, and that’s a matter for the tribunal.’
David Price KC, for the SRA, said the regulator wished ‘to rely on the long-standing, consistent practice of defamation defendants informing others that they have been threatened with a claim'. Price said 'it is difficult to see how you can prove the absence of something, that something is highly unusual, without calling any witnesses’.
The tribunal ruled that the pleadings were clear and that the respondent knew the case against him sufficiently to respond. On the issue of industry practice and usage in relation to defamation matters, the tribunal said evidence can be given ‘by an expert or witness of fact’. Based on what the tribunal heard about Phillip’s evidence, the tribunal said an application to adduce expert evidence under rule 30 of the Solicitors (Disciplinary Proceedings) Rules 2019 was unnecessary.
A spokesperson for Osborne Clarke said: 'We are confident that the partner acted within the established law and practice in this area, a view supported by our specialist legal team and an independent leading media law KC.'
