A solicitor was today fined £50,000 and ordered to pay £260,000 costs after he was found to have misused a ‘without prejudice’ heading in an email.
Ashley Simon Hurst, Osborne Clarke’s head of client strategy, improperly attempted to stop tax commentator and former magic circle partner Dan Neidle from publishing or discussing the correspondence sent to him by Hurst after Neidle tweeted that former chancellor of the exchequer Nadhim Zahawi, Hurst’s client, had lied.
The regulator argued that Hurst’s email and letter to Neidle, sent in July 2022, constituted misconduct. Hurst denied all allegations against him.
Following a five-day hearing, the Solicitors Disciplinary Tribunal’s three-person panel found the allegation in relation to the email proven and that in sending it Hurst had ‘improperly attempted to restrict’ Neidle.
Hurst was found to have breached principle 2, to act in a way that upholds public trust and confidence in the profession, and principle 5, to act with integrity, of the SRA Principles 2019, and paragraphs 1.2, 1.4 and 2.4 of the SRA Code of Conduct for solicitors, RELs and RFLs 2019.
The second allegation, relating to Hurst’s letter, which was sent after the email, was found not proven by the SDT.
Delivering sanction, Alison Kellet, chair of the panel, said: ‘We should like to make clear that while much has been said to this being the first SLAPPs (strategic lawsuit against public participation) case, the tribunal has found it is not.’
She said ‘no attempt’ was made by Hurst in his correspondence ‘to prevent scruitny of Mr Zahawi’s tax affairs per se. It was not seeking to stop Mr Neidle asking questions based on facts as he saw them’, adding that the ‘mainstream media’ was already reporting on Zahawi.
The tribunal heard Hurst had written an email to Neidle, on behalf of Zahawi, after Neidle tweeted an ‘express allegation’ that Zahawi had lied. The email contained a without prejudice heading and said Neidle was ‘not entitled to publish it or refer to it other than for the purposes of seeking legal advice’.
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In mitigation, Ben Hubble KC said Hurst was ‘devastated’ by the SDT’s decision and would ‘reflect very carefully’ on the tribunal’s decision and reasons when they are published.
Hubble said: ‘The ongoing [SLAPPs] debate is important and Mr Hurst does not suggest it is not. In our submission, this is not a SLAPP case as defined from the SRA’s warning notice.’
Hurst ‘believed he was advancing his client’s interest. This was a case that involved fast decision in areas of fine margins,’ said Hubble.
‘Mr Hurst was not knowingly sending what people now term as SLAPPs. The basis for any sanction should be that Mr Hurst took an improper approach in a heated moment. Mr Hurst has to live with the consequences of that finding but it is not more serious than that. It was not deliberate, calculated or repeated.
‘The tribunal found he fell into error but nothing of a sinister nature, nothing that would be incompatible with his role as a solicitor. There is no suggestion it was a pattern, and there is no realistic prospect of the misconduct found being repeated.’
The tribunal fined Hurst £50,000 and ordered that he pay £260,000 costs.
An Osborne Clarke spokesperson said: ‘We are extremely surprised and disappointed with this outcome in light of the legal position and evidence heard at the tribunal. We will await the detailed reasons of the tribunal before commenting further.’
