Correspondence sent by a solicitor at international firm Osborne Clarke while acting for former chancellor of the exchequer Nadhim Zahawi misused a 'without prejudice' heading, the Solicitors Disciplinary Tribunal has been told.
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, sent in July 2022, to Neidle breached principle 2, to act in a way that upholds public trust and confidence in the profession, and principle 5, to act with integrity; as well as paragraphs 1.2, 1.4, and 2.4 of the SRA Code of Conduct for Solicitors RELs and RFLs 2018.
Hurst denies all allegations against him.
In opening submissions yesterday David Price KC, for the Solicitors Regulation Authority, said the context of the correspondence was ‘a senior politician threatening a defamation claim’. The email was not properly headed 'without prejudice' but ‘was misuse’. Within an email sent to Neidle there was a ‘prohibition on disclosure’ and an ‘implicit’ threat of pursuing a defamation claim.
The tribunal heard Neidle received correspondence from Hurst acting on behalf of Zahawi in relation to an article Neidle had published on his website and a Twitter thread commenting on Zahawi’s tax affairs. Neidle later published the correspondence he had received from the firm.
Price said the regulator was ‘not saying the respondent was aware this was a SLAPP’ (strategic lawsuit against public participation) but the labelling of the letter was ‘an important issue’.
He added: ‘Labelling a letter private and confidential does not give rise to confidence on the recipient. This is a complaint by a politician threatening a defamation claim in relation to tax avoidance allegations and dishonesty [which is] ultimately incompatible with his office. As a matter of course these letters are not confidential.
‘The SRA’s main case relates to the email. The SRA submits the letter implicitly retained the threat of adverse consequences to Mr Neidle. The threat in the email had not been withdrawn.’
Price told the tribunal there was a ‘high public interest in the [former] chancellor’s tax affairs and the way they were unravelling at the time’, adding ‘the fact Mr Zahawi was threatening a defamation claim was public interest in itself’.
Neidle initially wrote to the SRA about the firm’s correspondence to him but did not make a formal complaint.
Giving evidence, Neidle said the correspondence he received from the firm was ‘his first rodeo’. ‘I had never been in this position before,’ he added. ‘This was my first [correspondence of this kind].’
He said the ‘weakness’ of the second letter ‘changed everything’ with regard to his concerns over a potential defamation claim.
Neidle said he read the correspondence as a request to ‘retract my allegations within 24 hours or they would send me a letter of action’. He added that there was no negotiation or settlement, but a ‘request where Mr Zahawi gets exactly what he wants and I get nothing. That is not a settlement.
‘I did not read this as an attempt at settlement. I never thought that was relevant or important. The question if the letter was without prejudice was of far less significance than the threat contained in it…the threat if I talked about or published the letter,’ he said.
‘That shocked me. I do not believe without prejudice "heading" makes [the correspondence] confidential. There was nothing in this letter that was confidential.’
He said given Zahawi’s financial power he ’had to take [the correspondence] seriously’. He added: ‘What is improper is to send labelled threats and attempt to prevent publication.’
The hearing continues.
