Slapper slapped

High Court sets aside disciplinary finding against solicitor

A media lawyer who was fined £50,000 for professional misconduct and ordered to pay £260,000 in costs after writing to a journalist in 2022 on behalf of the then chancellor of the exchequer Nadim Zahawi has succeeded in having his disciplinary finding and penalty set aside.

The High Court condemned a ruling by the Solicitors Disciplinary Tribunal as “insufficiently analysed and reasoned, vitiated by misdirection and error of law, and unfair”.

Two specific findings by the tribunal were “opaque”, the High Court said

Proceedings against Ashley Hurst, a partner at Osborne Clarke, had been brought by the Solicitors Regulation Authority. It’s the regulator’s third defeat in six weeks over allegations of SLAPPs — improper threats intended to prevent publication of matters of public importance.

On 8 December, Christopher Hutchins, a partner at Hamlins, was cleared at a closed hearing of “untruthfully and dishonestly” claiming that a client had a strong case for bringing contempt proceedings. Four days later, the tribunal summarily dismissed allegations that Claire Gill, from Carter-Ruck, had sent an “improper threat” on behalf of a client. She is now seeking costs of around £1m.

Confidential & Without Prejudice

After the former tax lawyer Dan Neidle published allegations that Zahawi had lied about his tax affairs, Hurst sent Neidle an email marked “Confidential & Without Prejudice”. Neidle considered Hurst’s email an improper attempt to stifle his journalism and suppress public knowledge of Zahawi’s response.

The lawyer-turned-journalist lodged a complaint with the Solicitors Regulation Authority. Eighteen months later, the regulator launched disciplinary action against Hurst, alleging that the conditions for using the terms “confidential” and “without prejudice” were not met. It claimed the email was “oppressive in nature and bore the hallmarks of a SLAPP”.

The tribunal sat in the week before Christmas 2024. Its members were the tribunal president Alison Kellett and the two vice-presidents Paul Lewis and Stephanie Bown. Although the panel members announced their decision at the end of the hearing, it took them five months to produce a 22-page ruling.

High Court

In a closely reasoned 40-page judgment delivered yesterday after a hearing on 27 November, Mrs Justice Collins Rice said the appeal was about

how a Saturday evening email from a senior defamation solicitor, on behalf of a senior politician whose reputational interests were engaged in an acute and time-sensitive manner, to a legally expert and high-profile tax journalist running a major story, led an expert tribunal to condemn the solicitor for a lack of professional integrity.

The starting point of the tribunal’s finding had been that Hurst and his client were preoccupied with a clandestine operation designed improperly to interfere with Neidle’s right to publish what the public had a right to know.

Collins Rice continued:

This idea of a preoccupation with secrecy and stifling a right to publish — proposed by the Solicitors Regulation Authority and adopted by the tribunal — was in my judgment insufficiently examined, accounted for or evidentially supported in the tribunal’s analysis; and as such was replete with risk of unfairness to Mr Hurst and to the reaching of an unfair decision.

If the tribunal had taken the alleged regulatory breaches as its starting point instead, as it was fairly and properly required to do, and addressed itself to proper construction of the email as a whole, then it might well have found it convenient to begin by addressing the law on confidentiality and “without prejudice” and considering whether or not it was properly arguable for Mr Hurst to have advanced them in the email.

As it is, for the reasons I have set out, the tribunal did not address itself correctly and relevantly to that law and unsurprisingly fell into error of law to the extent that it ostensibly had regard to it, sought to apply it or rejected it as irrelevant.

The starting point for considering arguability, in turn, was a fair and objective construction of the email as a whole. It is not recognisable from its decision that the tribunal properly undertook that key task. The email plainly identified a recognisable legal dispute — that the allegations of lying were defamatory. It set out reasons for disputing Mr Neidle’s legal right to publish those allegations. It plainly indicated a proposed alternative to litigation — taking the opportunity provided to retract the allegations…

There is a recognisable factual and legal basis in the email for an assertion that it was without prejudice and confidential correspondence and that Mr Neidle was not entitled to publish it…

In my judgment, accordingly, the tribunal’s conclusion on this point proceeded from a problematic starting point, via misdirection and error of law, to a conclusion adverse to Mr Hurst which was not properly open to it on the materials before it — chief among which was the email itself, properly and fairly construed… In other words, I am satisfied that the tribunal’s decision was wrong and cannot be upheld.

Its conclusion is also unsustainable, and troubling, for two further and important reasons. The first is a failure of reasoning.

The tribunal is a quasi-judicial decision-making body with huge powers over the reputation and livelihoods of the professionals who appear before it and important responsibilities to the public and the wider profession. It has corresponding duties to explain its decisions clearly, not least in high-profile cases and in any context of public policy controversy. Appellate courts must not hold specialist tribunals to the standards of courts of record in how decisions are set out. But an appellate court must at least be able to follow and understand at a basic level the route by which a tribunal has reached its conclusions.

For the reasons I have given, I am not satisfied at this basic level that the tribunal’s decision sets out a line of reasoning which could satisfactorily be followed through to a complete understanding of how it reached its end point.

I attribute that principally to the starting point the Solicitors Regulation Authority invited it to take and which it did not sufficiently review through the lens of the professional misconduct allegations before it and which properly constituted the task it had to perform. The unexplained delay of five months in producing reasons for its decision may also have played a part. In any event, the reasons are, to put it no higher, condensed to the point of compromised intelligibility…

More importantly, the reasoning of the decision does not give an adequately comprehensible account to Mr Hurst, the legal profession or the public of why his articulated professional perspective and version of events was rejected and why the tribunal reached the adverse conclusions it did…

The other troubling feature of the tribunal’s conclusion is the vehemence and disparagement with which it was expressed. A premise of Mr Neidle’s “right to publish”, and a faulty analysis of whether any different legal view was even arguable, led without visible support in the decision itself to a finding of intention to mislead, deliberately taking unfair advantage, calculated misuse of legal language and threats based on duties “that did not exist”.

That in turn led to condemnation of Mr Hurst for having “fabricated” legal obligations and having “ignored or dismissed his regulatory responsibilities”. These, and the finding of lack of professional integrity, are findings of bad faith, to put it no higher than that.

As such, they import an elevated standard of proof and of reasoning, including an expectation of some clear articulation of why (if it did) the tribunal considered itself entitled to find Mr Hurst not to be a witness of truth.

The charges Mr Hurst actually faced, and the analysis and reasoning set out in the tribunal’s decision, do not justify its expressing itself in the terms it did. It was not fair to Mr Hurst to do so.

Hurst said on Linkedin yesterday: “I am hugely grateful to my legal team, family, colleagues, and the many of you in my network and wider legal profession who reached out behind the scenes and stood behind me. We got there eventually.”