Court hears appeal of Osborne Clarke solicitor fined for improper use of ‘without prejudice’ email
The Solicitors Disciplinary Tribunal (SDT) was entitled to impose a £50,000 fine on Ashley Simon Hurst, a partner at Osborne Clarke and head of its media and information law disputes team, for his misuse of a ‘without prejudice’ headed email, the High Court heard on Wednesday.
Hurst, who is appealing the SDT’s findings, was penalised last year for attempting to prevent tax commentator Dan Neidle from publishing or discussing correspondence that Hurst had sent. This followed a tweet by Neidle in which he claimed that former Chancellor of the Exchequer Nadhim Zahawi, a client of Hurst’s, had lied. Hurst denied the allegations and has challenged both the SDT’s findings and the financial sanction imposed.
David Price KC, representing the Solicitors Regulation Authority (SRA), argued before the court that the SDT had properly found that Hurst’s email, which was marked ‘without prejudice’, contained a prohibition on disclosure accompanied by a threat to stop Neidle from discussing the matter. Price stated that the tribunal’s finding that the email was intended to prevent Neidle from disclosing the details of the claim was not contested.
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Hurst’s defence, according to Price, was that the email was not intended as a threat. However, Price noted that this argument was rejected by the tribunal, which found that Hurst’s explanation was inconsistent with the wording of the email and the surrounding circumstances. Price further argued that it was within the tribunal’s rights to assess whether Hurst reasonably believed he had a legitimate legal basis to restrict Neidle from disclosing the facts of the claim.
In his submissions, Price highlighted the core issue of the case, the use of the ‘without prejudice’ label on the email. He said the dispute was not about whether Zahawi would prefer to settle the case but rather about the purpose behind marking the email in this way. According to Price, the SDT was justified in concluding that the representations in the email were not properly arguable, further indicating that the email’s intent was to mislead.
Price explained that solicitors must adhere to strict ethical standards, including avoiding attempts to mislead others. He argued that the SDT’s decision was based on an inferential credibility assessment, a determination that could not be easily overturned by the appeal court.
The case centres around the professional conduct of Hurst, with the SDT’s findings based on the email’s wording and the actions taken thereafter. Judgment in the appeal has been reserved, and a decision is expected in the coming weeks.