What happened?
The Solicitors Regulatory Authority has referred Ashley Hurst from Osborne Clarke to the Solicitors Disciplinary Tribunal after he (allegedly) sent two misleading communications to tax lawyer Dan Neidle.
The circumstances involved disgraced former MP Nadhim Zahawi who failed to declare that he was under tax investigations by HMRC, whilst Chancellor.
Neidle had conducted investigations which revealed that Zahawi may have been lying about the way that Zahawi’s structure of YouGov was handled, namely that shares of YouGov were being held off-shore and that this benefited Zahawi’s tax position from paying millions of pounds in tax in the UK. This was something Zahawi denied, leading to claims by Neidle that Zahawi was lying.
Upon exposing this, Ashley Hurst of Osborne Clarke wrote an email to Neidle on a purportedly ‘without prejudice’ basis, making demands to retract the allegations Zahawi had lied, and making repeat requests for a telephone call – this email was sent after Hurst sent Neidle a series of DM’s on Twitter.
When Neidle refused to retract the allegations, setting out his allegations in more detail – Osborne Clarke sent a formal letter marked “not for publication”. The letter itself is a light-touch libel letter, which does not threaten to sue for libel, but does ask to “reconsider the false allegation of dishonesty” – and requests similar allegations were put to Zahawi’s press office for response. The letter concludes that Zahawi’s rights are “reserved”, but falls short of stating what those reserved rights may be.
Why is the conduct wrong?
Without Prejudice correspondence, in UK law, is designed as material to which the Courts are not privy. A good example is if someone offers to settle a claim, but does so on a “without prejudice” basis – so avoid the letter being shown to the Court, and being told they have no belief over their case, should the matter go to trial. Many chose to settle a claim or dispute for commercial reasons – with no admission of liability.
There also has to be a genuine dispute, to apply without prejudice material to – the email was more of a moan than a libel threat. In UK law if someone is genuinely threatening libel proceedings they would do so in ‘open correspondence’ to demonstrate to the Court they have made genuine attempts to resolve the matter before issuing proceedings, to have the allegedly libelous material removed. Quite obviously writing someone without prejudice defeats the object as the Court cannot be shown the corrospondance!
The same applies to the letter which was then sent by Osborne Clarke. It is marked “not for publication”, but there are several issues with this heading. Firstly, the letter contained no confidential information; Secondly, there was no duty of confidence owed or implied to be owed; and Thirdly, Zahawi was an MP and Chancellor – there is a public interest if he has lied. Essentially, you can ask or invite the recipient to not to publish the letter, but they are not legally bound to comply with such demand – just because a lawyer (or firm of solicitors) says something isn’t for publication doesn’t mean is actually is or that they have any legal entitlement to make such claim.
The Solicitors Regulatory Authority have been sent a clear warning message to solicitors about SLAPPs and correspondence surrounding them. Very very very specifically, it warns solicitors they must not mark correspondence in a misleading way such as “without prejudice” when it is not, nor can they write “not for publication” on letters without good reason. Clearly these are warnings that appear to interlink with what Ashley Hurst and/or Osborne Clarke did.
Opinion
The Solicitors Regulatory Authority is working hard to combat SLAPPs, and the Zahawi/Osborne Clarke case is an extremely good example of literally the polar opposite to the SRA’s warning. What the Solicitors Disciplinary Tribunal will make of it, we’ll find out in December 2024.
Neidle, as a lawyer himself, has taken the view that none of Osborne Clarke’s correspondence was worth the paper it was written on, and amounts to a SLAPP. But of course, SLAPPs tend to be targeted against ‘laymen’ and non-lawyers, who would possibly have no appreciation that in the context used “Without Prejudice” and “Not for Publication” is simply a load of nonsense.
We’ll be watching how this matter progresses carefully!
Reference
Direct Messages on Twitter to Dan Neidle from Ashley Hurst of Osbourne Clarke:
Email sent supposedly “Without Prejudice” to Dan Neidle from Ashley Hurst of Osbourne Clarke:
Letters sent supposedly “Not for Publication” to Dan Neidle from Ashley Hurst of Osbourne Clarke:
How curious! I had a run-in with Weightmans, when they deliberately lied to defeat a simple and supposedly unexceptionable High Court application for pre-action disclosure that had aimed to uncover police corruption. They managed to prevent the application even getting a hearing by telling the senior Master that the reason I was making the application for (Metropolitan Police) disclosure was to get disclosure of a proceeding involving my being wrongly arrested by the Met. (apparently it is quite common for people who are arrested to try to sue the Met in civil proceedings for false arrest and there are a plethora of reasons why those cases always fail)
I am a member of the bar of nearly five decades good standing living in New York (where I don’t think the Met has much of a presence to arrest anyone) and have never, of course, been arrested for anything! It was a plain unadulterated lie told by Weightmans to stop the action which would have disclosed serious corruption within the Met’s internal police force (the DPS) at Charing Cross police station in refusing to prosecute parties to a bribe that powered the most egregious SLAPP in UK legal history!
The Met was very keen on stopping my action which occurred significantly in advance of Sir Mark Rowley establishing that there had been rampant and varied corruption within the Met’s internal police force (the DPS) at – yes, you guessed it, – Charing Cross police station!
And which corruption, despite all this, is still so powerful that it can prevent Sir Mark’s new supposed Anti-Corruption Task Force from investigating the corruption which I was trying to uncover!
And in case anyone is wondering, yes, I did put in a complaint in to the Independent Police Complaints Commission about the Met refusing to investigate the bribe in the SLAPP action.
The IPCC found (on slightly blindingly obvious and completely inescapable governingfacts) that the Met lied to it to escape from having to investigate the bribe.
To which the Met felt so guilty about their own conduct that they HAD TO INVENT A PROCEDURE to (as they put it) “disapply” the IPCC finding that they had lied to protect the parties to the bribe!
And all this was on a direction by the Master of the Rolls that the corruption (bribery) allegations were so serious that they mandated report to and investigation by, the Metropolitan Police!
Thanks Jonathan, an interesting story. In the UK we have the Solicitors Regulatory Authority who would and do actively investigate solicitor misconduct, and it may be worth drawing your issues to their attention. Without wanting to tar Weightmans completely, it does seem they attract the same nature of complaints time and time again!
Yes, I was, and still might be working with the SRA on the anti-SLAPP aspect of this case or series of cases. The SRA has suggested to me that they are acting in good faith.
I am presently trying to crack the initial problem with working with the SRA, which is that they utilise legally unqualified case workers who often dont seem to understand the legalities behind whatever it that they are supposed to be investigating. (They do have training but only such as would let them adjudicate such matters as that whatever the solicitor is doing is perfectly acceptable.)
In this case, their case worker doesn’t want to get involved in looking into SLAPPs because she thinks they involve complex contractual terms. Which i assume she knows she is unqualified to ‘adjudicate’ in any way!
I’ll let you know when they decide they need to pass this case to counsel , now that parliament was dissolved before he SLAPP Bill passed into law.
BTW, It wasn’t the Weightmans lie that ultimately prejudiced the application, it was someone telling the Master that she had to believe it that prevented the action going forward. No Master in their right mind could have prevented such an application from being heard unless they had been TOLD to use it in order to stop the action in its tracks. Especially after Mr Justice Bennett had accidentally let slip (before anyone could stop him) that here were serious and extensive matters in issue in the case!