Hurst: Tribunal findings were irrational
The solicitor for former Conservative Chancellor Nadeem Zahawi has appealed against the Solicitors Disciplinary Tribunal (SDT) ruling which found him guilty of misconduct.
The SDT fined Ashley Hurst, a partner at Osborne Clarke, £50,000 last December after finding he had shown a lack of integrity [1] in sending an email to high-profile tax lawyer Dan Neidle that “improperly attempted” to restrict his right to publish it or publicly discuss its contents.
Mr Hurst was seeking to have Mr Neidle withdraw claims he had made about Mr Zahawi’s tax affairs.
The full ruling, only published in May [2], said Mr Hurst either “ignored or dismissed his regulatory responsibilities” in trying to stop Mr Neidle from publishing the correspondence by labelling it as ‘without prejudice’ and carrying an “implicit threat” of action if the email was disclosed.
Mr Neidle yesterday published [3] Mr Hurst’s grounds of appeal to the High Court and the Solicitors Regulation Authority’s (SRA) response.
Mr Hurst argued that the “key factual findings” of the tribunal were “irrational and unsustainable”.
“The tribunal’s determination that the appellant sent the email without any intention of pursuing negotiations or resolution (and so solely to restrict disclosure and deter publication) is contrary to the wording of the email itself and the tribunal’s own findings, contradicted by the evidence and is plainly wrong.
“It was accepted by [the SRA] that the email contained an offer of settlement and accepted by the tribunal that in sending the email ‘what he [Mr Hurst] was trying to do was get Mr Neidle on the telephone’.
“In those circumstances, on the tribunal’s own analysis, there can have been no misconduct.”
Mr Hurst also said the finding that he “knew that there was no arguable confidentiality in the email” was “plainly wrong” on a “proper legal analysis”.
The tribunal had “made no reference” to his “extensive and uncontradicted written and oral testimony, which was consistent with the documentary record, in which he described his motives and his beliefs as to the propriety of his actions”.
The SRA’s primary case was that the SDT decision was justified given its findings, which in turn were “open to the tribunal”.
Mr Hurst’s submissions on legal principle, both to the SDT and on appeal, were not directed to the facts, it submitted – the tribunal had found “that there was no proper basis for restricting Mr Neidle’s ability to publish or discuss the email”.
The SRA went on: “The consequences of the finding that Mr Hurst had ‘applied the WP [without prejudice] label not because the email genuinely met the criteria for WP protection, but to try and prevent Mr Neidle from publishing its contents’ was that the email was not WP and was incapable of giving rise to any of the duties of confidence on the basis of the label.”
Mr Neidle, founder of the not-for-profit Tax Policy Associates, wrote: “If Mr Hurst wins this appeal, then solicitors will have a green light to claim their libel threats cannot be published, or even referred to. The ‘secret SLAPP’ will have become blessed by the courts.
“That would be a terrible result for everybody who cares about free speech.”
The SDT ruling showed that Mr Hurst had spent nearly £910,000 on his defence.
Osborne Clarke declined to comment.