Hurst: Firm has changed procedures as a result of case
The solicitor for former Conservative MP Nadeem Zahawi either “ignored or dismissed his regulatory responsibilities” in trying to stop publication of an email he sent, the Solicitors Disciplinary Tribunal (SDT) has decided.
Ashley Hurst’s priority was “stopping disclosure, not ensuring his conduct was compliant or justifiable”, it said.
It also emerged that Mr Hurst, a litigation partner and head of client strategy at Osborne Clarke, spent more than £900,000 in defending the proceedings.
We reported in December that the SDT had fined Mr Hurst £50,000 for improperly trying to restrict high-profile tax lawyer Dan Neidle from publishing or discussing the contents of emails he had sent on behalf of Mr Zahawi.
The full ruling has now been published.
The email complained that Mr Neidle, who had been covering Mr Zahawi’s tax affairs through his Tax Policy Institute, had accused the then Chancellor of the Exchequer of lying to the media and the public.
The email was headed ‘Confidential & Without Prejudice’ but noted that Mr Neidle had said he did not accepted WP correspondence.
Mr Hurst wrote: “It is up to you whether you respond to this email but you are not entitled to publish it or refer to it other than for the purposes of seeking legal advice. That would be a serious matter, as you know. We recommend that you seek advice from libel lawyer if you have not done already.”
Another letter three days later was headed ‘Private and Confidential’ and ‘NOT FOR PUBLICATION’.
Mr Neidle published both three days after that and then wrote to the Solicitors Regulation Authority (SRA), stating that he did not wish to make a complaint but instead alert the regulator to the use of such labels and threats.
The SDT rejected Mr Hurst’s submission that the prohibition on disclosure applied only to the email, not the fact of the claim, saying this would have defeated the purpose.
“It was clear that Mr Hurst was working under intense pressure, out of the office, on a Saturday evening with the imminent threat of the Sunday papers publication deadline looming, having had to juggle client communications during a family day out. Mr Hurst’s client was also extremely high profile at the time.”
The question was not simply whether the email was or could be WP but whether Mr Hurst had applied the label for a proper reason.
“The tribunal accepted that if Mr Hurst had applied the WP label to make a genuine settlement offer, then there would be no misconduct. That was not the case here.
“The tribunal found that Mr Hurst used the WP label to support the improper restriction on disclosure and to deter publication… There was no real attempt at negotiation or resolution – only a desire to suppress publication.”
The email had also carried an “implicit threat” of action being taken against Mr Neidle if the email was disclosed, rather than “a neutral reminder about confidentiality”.
The SDT found the email did not contain information with the necessary quality of confidence either and so Mr Hurst “had no proper basis for restricting Mr Neidle’s ability to publish or discuss the email, and his attempt to do so was improper”.
This all breached the SRA code. The attempts to “mislead Mr Neidle about his rights” amounted to Mr Hurst taking unfair advantage of him. This would clearly undermine public trust and lacked integrity.
“Mr Hurst said he had carefully considered the wording used. The tribunal found that this consideration was important. It was clear that Mr Hurst either then ignored or dismissed his regulatory responsibilities.
“His priority was stopping disclosure, not ensuring his conduct was compliant or justifiable.”
However, the SDT rejected a separate allegation that the second letter improperly attempted to restrict Mr Neidle’s right to publish or discuss its contents as it was couched as a “request” to not make it public.
In mitigation, Mr Hurst’s counsel said he was not motivated by any improper intent; he wanted to seek a swift retraction of the dishonesty allegation.
The media coverage had affected his professional reputation and his relationships with some clients and colleagues.
“However, as a direct result of the proceedings, his firm’s litigation team has adopted a more cautious approach when using labels in correspondence, ensuring they are used properly and clearly explained.”
The SDT noted that the misconduct was “of brief duration in an otherwise unblemished career” but that a £50,000 fine was proportionate to the “very serious” wrongdoing.
The SRA sought costs of £298,390, pointing out that Mr Hurst’s legal team had “fiercely litigated” the matter, including a 700-page response to the notice of referral to the tribunal, caused two extra case management hearings with unsuccessful applications.
The SRA said the SDT should have regard to Mr Hurst’s costs schedule of £908,172 for defending the proceedings.
The SDT ordered Mr Hurst to pay £260,000, reflecting the SRA’s failure to substantiate the second allegation.
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