Collins Rice: Excoriating ruling
Lawyers have welcomed the High Court decision to overturn the finding of misconduct against Nadeem Zahawi’s lawyer.
However, Dan Neidle, the solicitor who received the ‘without prejudice’ email at the heart of the case, said it could lead to libel lawyers starting again to claim that their legal threats are confidential and cannot be published.
We reported yesterday [1] that Mrs Justice Collins Rice had found the Solicitors Disciplinary Tribunal (SDT) finding of misconduct by Osborne Clarke partner Ashley Hurst “insufficiently analysed and reasoned, vitiated by misdirection and error of law, and unfair”.
The SDT fined him £50,000 after deciding he had shown a lack of integrity in sending an email to Mr Neidle that “improperly attempted” to restrict his right to publish it or publicly discuss its contents.
Colin Passmore, chairman of the City of London Law Society, wrote on LinkedIn: “I was always troubled by the SDT ruling, particularly on these 2 grounds. First, I could never understand why the behaviour found by the SDT warranted such a huge fine.
“More importantly, it left me uneasy in terms of identifying the difference between robust protection of a client’s perceived interests and tactics that stray into abusive behaviour deserving of regulatory sanction.
“The problem this has generated is a too ready willingness to threaten to report an opponent to the SRA, which cannot be allowed to become a norm.”
Mark Manley, managing director of Chester and London firm Manleys, told Mr Hurst: “You have not only entirely vindicated yourself – you have performed a fabulous and honourable service to all media lawyers impacted by similar issues.”
Gary Oldroyd, a partner at Browne Jacobson who defends claims against law firms, described the ruling as “excoriating”.
He wrote: “What strikes me is that, as it usually does, the SDT found misconduct and announced some of its key conclusions immediately after the hearing. But the SDT only produced its written reasons (running to just 22 pages) 5 months later.
“That is a long delay. It makes me wonder whether the SDT’s written reasons and the analysis in them was the product of subconscious reverse engineering? Is that why the High Court judgment is excoriating?”
In his LinkedIn reaction, Mr Neidle described the ruling as “very surprising, and concerning”.
“The SDT found the lawyer, Ashley Hurst, guilty of professional misconduct because he sent me a libel threat which he claimed I couldn’t publish or even refer to. That was false. I could (and I did).
“The SRA and SDT’s action had the positive effect that libel lawyers (mostly) ceased their practice of claiming that their legal threats are confidential and can’t be published. I fear this practice will resume.”
Mr Neidle noted that Collins Rice J said it was arguable that the email contained confidential information. He continued: “This doesn’t deal with a key point: that Hurst said I couldn’t ‘refer’ to the letter. The judgment doesn’t say this was arguable (and I don’t think it was).
“So on what basis was the threat/claim that I couldn’t ‘refer’ to the letter proper? This was a key part of the SRA’s case and I can’t see where the judgment deals with it.”
In response, Edward Levey KC, of Fountain Court Chambers, described the decision as “the most powerful and strident dismantling of an SDT decision that I can recall reading”.
He explained: “The SDT did not even address the central – and indeed critical – question as to whether the email in question was, or was arguably, w/p [without prejudice].
“If it was, I struggle to see how it could be misconduct for Mr Hurst to mark it as such. And yet the SDT managed to do find that it was, albeit without explaining its reasoning.
“After 40 pages of detailed and careful analysis (the likes of which was notably absent in the SDT’s decision, as the judge observed), the judge concluded that the SDT’s decision was ‘insufficiently analysed and reasoned, vitiated by misdirection and error of law, and unfair’.
“Having read both the SDT’s decision and the judgment, I can’t see which of those criticisms is anything other than fully justified.”
Mr Levey agreed too with an analysis posted by Jourdan Penrice, a senior associate at Hogan Lovells, who wrote: “If Mr Hunt, acting upon instructions, had a reasonable basis for considering that his letter was confidential or WP (as he claimed) then he was acting properly (and, ergo, not improperly).
“The fact remains that the SDT did not address that critical question at all before finding the misconduct proven.
“On appeal, the judge found that the SDT ‘did not address itself correctly and relevantly to that law [on confidentiality and WP]’. Unsurprisingly, on appeal, the judge held that the SDT committed an error of law and that its judgment could not stand.
“I struggle to see how any other decision could have been reached on these facts. Regulated professionals (solicitors included) are entitled to due process.”