The Solicitors Disciplinary Tribunal has today found against a lawyer for improperly stifling public scrutiny, following a complaint that he engaged in legal tactics broadly referred to as Strategic Lawsuits Against Public Participation or ‘SLAPPs’.
The origin of the complaint: Scrutinising the tax affairs of the former Chancellor
Ashley Hurst, Head of Client Strategy at Osborne Clarke LLP, appeared before the Tribunal this week in relation to correspondence he sent when acting for ex-minister Nadhim Zahawi. The Solicitors Regulation Authority (SRA) claimed that Hurst’s email to Dan Neidle of Tax Policy Associates “improperly attempted to restrict Mr Neidle’s right to publish that correspondence and/or discuss its contents”, and that in doing so Hurst breached the SRA’s Code of Conduct and Principles.
The SRA, the body that regulates the legal profession, refers what it considers the most serious cases of potential legal misconduct to the Tribunal, which sits as a panel comprising two solicitor members and one lay member. Given this is the first case of its kind against an English solicitor, it is a key test of how the legal sector is getting to grips with concerns about abusive legal tactics aimed at shutting down public scrutiny.
Neidle originally referred Osborne Clarke to the SRA in December 2022 claiming the law firm had been complicit in misleading him about Zahawi’s tax affairs. This engagement followed the publication by Neidle of a series of articles and posts about Zahawi when Zahawi was Chancellor. Neidle complained the law firm had acted in breach of the SRA Principles when asking him to withdraw his claims in July 2022.
The narrow focus of the case: The labelling and content of legal correspondence
In formulating its complaint before the Tribunal, the SRA did not allege that Osborne Clarke had been complicit in misleading Neidle about Zahawi’s tax affairs. Instead the dispute concerned the much narrower issue of the appropriate labelling and content of legal correspondence. The Tribunal was asked to consider whether Hurst misused ‘confidential and without prejudice’ labelling and made an implicit threat of a defamation claim in an inappropriate attempt to restrict Neidle from publishing or discussing such correspondence.
Although the Tribunal found that the issues in the case touched upon the wider SLAPPs debate, it stated in its finding against Hurst that this was not a SLAPPs case. In stating this the Tribunal added that “there was no attempt to prevent scrutiny of Mr Zahawi’s tax affairs per se.” Despite this statement by the Tribunal, this case clearly has vital relevance to the broader SLAPPs debate and its implications for the legal profession, as evidenced by the SRA relying on its SLAPP guidance in criticising Hurst’s conduct.
SLAPPs, by their very definition, involve the misuse of legal strategy and tactics to shut down lawful communication and scrutiny. One of the key issues that the Tribunal was asked to consider by the SRA was the question of the motivation or purpose behind the labelling and content of correspondence. Counsel for the SRA submitted that even if a lawyer was engaging in ostensibly ‘legal’ behaviour, they could still be misusing the system for strategic advantage. The SRA argued that the reason ‘without prejudice’ labelling was used on the correspondence was to issue an implicit threat of libel proceedings should Neidle go ahead and publish the fact that the correspondence had been issued.
The SRA observed that the obvious inference as to why Hurst attempted to restrict Neidle’s ability to publish was to “try and prevent the media scrutiny” of the decision by Zahawi to instruct the correspondence, and to stop the very fact of the correspondence itself “becoming part of the news cycle”.
The SRA said “the attempt to limit or restrict Mr Neidle’s ability to comment publicly on the correspondence he had received from a solicitor acting on behalf of the-then Chancellor of the Exchequer” and the “improper attempt to limit or restrict Mr Neidle’s ability to publish or discuss” the correspondence involves an oppressive or abusive tactic. The solicitors’ watchdog maintained that this oppressive and intimidating approach to legal matters “had been condemned by the SRA in its March 2022 Guidance in relation to Conduct in Disputes.”
The SRA also claimed that the correspondence issued by Hurst contained an obvious “threat of serious consequences” should Neidle not comply with its prohibitions on disclosure and an attempt to prevent publication or discussion of such a threat.
Throughout the hearing, counsel for Hurst focused on the more limited implications of the labelling of the correspondence ‘Confidential and Without Prejudice’ and generally avoided engagement with the broader issues of framing, purpose and motivation behind the correspondence. In cross-examination, Hurst said that the intention behind the correspondence was to “open up a without prejudice, confidential, discussion to avoid the dispute”, adding, “Could I have expressed myself in slightly more clear terms? Possibly.”
Threats in SLAPPs cases often prove effective
Relying on its March 2022 Guidance on conduct in disputes, the SRA argued “that most SLAPPs merely involve the threat of proceedings”, and that often “no proceedings are ever issued”.
It is widely recognised, and we have learned through our monitoring of SLAPPs complaints, that the effectiveness of these legal tactics is often due to the framing of pre-action legal correspondence on the part of claimant lawyers. Indeed, the threat of legal action – rather than any follow-through on that threat – is one of the key hallmarks of a SLAPP. It is often a combination of the labelling of correspondence together with implicit threats within the correspondence that makes the legal tactic so effective in silencing the recipient.
If threats within correspondence are subtle, unclear, or just plainly incorrect (as they were in this case in relation to Hurst’s prohibition on Neidle discussing or publicising its contents), then that can cause confusion on the part of the recipient. The more confusing the labeling of correspondence and the more aggressive its contents, the more likely such threats will provoke anxiety in a journalist, blogger or publisher, and the more likely that person will be intimidated into backing down and not publishing.
A landmark case that should prompt further scrutiny of SLAPPs
The Tribunal has imposed a £50,000 fine against Hurst for his professional misconduct.
Despite the Tribunal’s somewhat puzzling assertion that this was not a SLAPPs case, the SRA’s reliance on its SLAPP Guidance in formulating its complaint clearly signals its expectations as a regulator about the professional obligations of solicitors and law firms. As an early test case, it sets an important precedent that should impact scrutiny of the legal profession’s role in SLAPPs. The decision confirms that lawyers should take care in the framing of pre-action correspondence, and refrain from engaging in oppressive or intimidatory legal tactics or threats. Lawyers are not just guns for hire – they have professional and ethical obligations to act in a way that upholds public confidence and trust in the profession.
