The Solicitors Regulation Authority (SRA) is to issue guidance on when litigators are allowed to label letters as ‘private and confidential’ and/or ‘without prejudice’.
The news emerged in response to a request from specialist tax solicitor Dan Neidle following letters sent last month by lawyers for Chancellor Nadeem Zahawi that accused him of libel.
The solicitors, Osborne Clarke, claimed the letters were confidential and warned Mr Neidle of “serious consequences” if he published them.
Mr Neidle did not retract his comments about Mr Zahawi’s tax affairs and published the letters, casting the issue in the wider context of the debate over strategic lawsuits against public participation (SLAPPs).
In a letter to the SRA, he said it was “plainly incorrect as a matter of law” that calling letters ‘confidential’ or ‘without prejudice’ meant they could not be published in these circumstances.
“An assertion that a letter is confidential does not make it so,” he said, adding that the ‘without prejudice’ doctrine applied only to negotiations “genuinely aimed at settlement”.
It was misleading to make these assertions when they were not true, he argued, urging the regulator to “specifically caution against assertions of confidentiality or ‘without prejudice’ which do not have a firm legal basis”.
In a response that Mr Neidle published yesterday, SRA general counsel Juliet Oliver said: “We would agree that breaches of our standards can arise from oppressive litigation behaviour and tactics including making exaggerated claims of adverse consequences or sending letters using an intimidating or aggressive tone or language.”
The regulator published guidance on conduct in disputes in March and was now working on further guidance specifically on SLAPPs, she went on.
“Further to your letter, we plan (amongst other things) specifically to address the practice of labelling correspondence as ‘private and confidential’ and/or ‘without prejudice’, and to address the conditions under which doing so may be a breach of our requirements.
“We think that this approach will help solicitors to comply with our existing standards and regulations and to use those labels only when appropriate.”
Ms Oliver said the SRA was also going to conduct a thematic review of “a targeted sample of firms” to look at the steps taken to address the issues raised in the March guidance.
Mr Neidle praised her response as “excellent”. He wrote on his blog: “Silence is integral to the SLAPP strategy. A small-time blogger says something you don’t like. You get your lawyers to write them a letter warning them off. The blogger deletes their blog, and nobody has any idea what happened.
“The SRA now has a fantastic opportunity to end this, and to force libel lawyers and their clients to step into the light. If you want to threaten someone with libel: fine. But you’ll have to face the consequences of everyone knowing what you’re up to.”
He added that he had been “inundated with messages from bloggers who had been at the receiving end of SLAPP letters”. He suggested too that libel law should only apply “to the most serious of deliberate lies”.
Mr Neidle did not write to the SRA to complain about Osborne Clarke or the individual solicitors who wrote to him, but Ms Oliver said that “we do consider whether information which is provided to us warrants further investigation, even if it does not come by way of a formal complaint”.
The solicitor is a former partner at Clifford Chance and founder of Tax Policy Associates, a not-for-profit company which aims to improve both the tax system and the public understanding of tax.