An Osborne Clarke solicitor yesterday denied misusing a 'without prejudice' heading in an email, as a tribunal hearing into the Solicitors Regulation Authority’s first SLAPPs case entered its second day.
The email was, in fact, intended to ‘open up’ a confidential discussion and avoid a dispute, the Solicitors Disciplinary Tribunal heard.
Ashley Simon Hurst, Osborne Clarke’s head of client strategy, is accused of improperly attempting to stop tax commentator and former magic circle partner Dan Neidle from publishing or discussing the correspondence. The regulator argues that Hurst’s email and letter to Neidle, sent in July 2022, constituted misconduct.
Hurst denies all allegations against him.
Giving evidence on Tuesday, Hurst denied that while drafting the email he sought to prevent scrutiny of his client, former chancellor of the exchequer Nadhim Zahawi. Hurst said: ‘I was very, very clear. The purpose was not to prevent scrutiny. The purpose was to attempt to warn Mr Neidle that he had gone beyond what was acceptable in relation to allegations of dishonesty. [There were] multiple newspaper articles at the time and Mr Neidle’s blog which raised legitimate questions about Mr Zahawi’s tax affairs, but this was the first time an allegation of dishonesty had been made.’
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Hurst told the tribunal there were ‘many ways in which Mr Zahawi was facing scrutiny’, but this did not mean the media or bloggers like Neidle were ‘entitled to make false or defamatory statements’.
He added: ‘Looking back, as I have done many times, I have thought about whether I could have expressed myself more clearly [in the email] particularly to explain the “without prejudice” principle. What we were effectively…attempting [was] to open up a without prejudice, confidential, discussion to avoid the dispute. There are ways I could criticise my own email and do a job that might not land me in this position, that is not to say that I accept that it was wrong. I did not make a mistake in law. I did not make a mistake of fact in relation to where I was at that particular time.
‘Could I have expressed myself in slightly more clear terms? Possibly.’
Asked if he accepted that the email conveyed a threat of legal proceedings, Hurst said: ‘The word “threat” has a normal meaning and a more legal meaning. Of course, an email which sets out the nature of a legal claim and reserves rights could be interpreted as carrying a degree of threat. The obvious one being if the letter is not responded or engaged with, legal proceedings could potentially follow. That is inevitably a threat.
‘Of course, it is different from being threatening and there is a very important difference. I was trying not, in this email, to be threatening. I was taking all steps to try and be as least threatening as possible.’
When asked about a reference that the correspondence was not published or referred to, Hurst said: ‘What I meant by publish it or refer to it was a reference to the email. It was not a reference to the claim.’
Asked how Mr Neidle could refer to the claim without referring to the email, Hurst said: ‘The intention that Mr Zahawi was taking legal action could be done without referring specifically to the email.’
Hurst told the tribunal his ‘main concern is to act in the best interest of my clients’. It was often the case that he ‘tried to influence on behalf of the client the words published by the publisher’.
The remainder of Hurst’s evidence was heard in private. The hearing continues.
