Neidle: Referred case to SRA
The first proceedings at the Solicitors Disciplinary Tribunal (SDT) over an alleged SLAPP (strategic litigation against public participation) began yesterday.
The tribunal held a case management hearing in the matter of Ashley Hurst, a litigation partner and head of client strategy at Osborne Clarke, rejecting his application for a preliminary hearing over his labelling of correspondence.
High-profile tax lawyer Dan Neidle reported Mr Hurst and the firm to the Solicitors Regulation Authority (SRA) over its work for the then Chancellor of the Exchequer, Nadeem Zahawi, who stood down at yesterday’s election.
In July 2022, in response to tweets that accused Mr Zahawi of providing unsatisfactory answers about his tax affairs, Mr Neidle received letters from Mr Hurst asking him to withdraw his claims.
Mr Neidle published the letters, which he said were “designed to intimidate” him. Osborne Clarke had also sought to assert they were without prejudice and/or confidential and that publication of them would be “improper”.
In response to an initial direct message on Twitter/X, Mr Neidle had also made clear that he did not accept ‘without prejudice’ correspondence.
Mr Neidle then referred Mr Hurst and Osborne Clarke to the SRA in November 2022 after it published its SLAPPs warning notice, on the basis that the correspondence “bears several of the hallmarks of SLAPPs which are identified in your warning notice”.
The allegations against Mr Hurst have not yet been published but, according to the SRA’s advocate at the hearing, David Price KC, the “gravamen” of the case was that Mr Hurst was threatening a libel claim on behalf of Mr Zahawi and “sought to impose a requirement on the recipient of the letter that he can’t tell anyone about it”.
Mr Price said he did this through labelling an email sent on 16 July 2022 as ‘without prejudice’ and a letter sent three days later as being subject to obligations of confidentiality, as well as the “explicit threat” that even referring to the existence of the letter, let alone disclosing its contents, “would be a serious matter”.
Mr Price said: “The SRA’s case is that there was no proper basis for the suggestion that Mr Neidle was under duty of confidence not even to disclose the fact of the threat of the claim.”
Ben Hubble KC, for Mr Hurst, applied for a preliminary hearing to consider “whether as a matter of law Mr Hurst was correct or arguably correct to contend by use of the labels and otherwise” that the email was without prejudice and the letter subject to confidentiality.
He said that, if Mr Hurst was right on this, then the allegations against him would fall away. Mr Hubble described this as “an issue of law” that could be addressed at a preliminary hearing.
Mr Price submitted that the question of labels was not the point. “The issue is whether it was arguably correct to submit that Mr Neidle was under a duty of confidence not to refer to the contents of the letter or even the fact of it.”
The ambit of such a duty was an issue of fact, not law, he argued, “to be determined by application of legal principles”.
Further, he said, there was no “genuine contemplation of subsequent litigation” here, meaning that the correspondence could not be ‘without prejudice’.
Tribunal chair Bellamy Ford said the panel refused the application for a preliminary hearing, with reasons to follow.
The main hearing in the case is scheduled for 16 to 20 December.
Another issue bubbling behind the scenes of the case, to judge by comments made in passing at the hearing, is how the Financial Times was able to report in early May that a then-unnamed partner at Osborne Clarke was to face the SDT.
The SRA has yet to publish a notice about the prosecution, which indicates that there have been arguments over whether it should be allowed to.
The article came just after SRA chief executive Paul Philip revealed that the first two cases involving SLAPPs had been referred to the tribunal, but not any details about them.
In a statement issued before the hearing, an Osborne Clarke spokeswoman said: “We are disappointed with the SRA’s decision to refer this matter to the tribunal, and we disagree with the basis and reasoning for the referral.
“We have carefully considered and investigated the matter with external advisers and are confident that the partner acted within the established law and practice in this area, a view supported by an independent leading media law KC.
“We consider that the partner concerned behaved fairly and appropriately in their communications with the third party and did not seek to mislead or take unfair advantage in any way. At no time did they provide any tax planning advice. We fully support and stand behind the partner in their defence of this matter.”
Leave a Comment