Solicitors Disciplinary Tribunal clarifies appropriate use of Without Prejudice labels and SLAPP guidance

In a recent high-profile case, Ashley Hurst — a solicitor at Osborne Clarke LLP — found himself at the centre of a regulatory action brought by the Solicitors Regulation Authority (SRA), which alleged that he’d failed to act in a way that upheld public trust and confidence in the legal profession and failed to act with integrity. 

The case — which was recently heard before the Solicitors Disciplinary Tribunal (SDT) and has attracted considerable attention — related to correspondence that made claims of defamation on behalf of Mr Hurst’s client, the former Chancellor of the Exchequer, Nadim Zahawi. Around the time that the correspondence was sent in 2022, there was publicity around Mr Zahawi’s personal tax affairs.

In the disciplinary proceedings that followed, it was considered whether the correspondence could be deemed a Strategic Lawsuit Against Public Participation (SLAPP) that merited sanction. SLAPPs have become something of hot topic in legal circles since the SRA published its warning notice to solicitors against these.

Here, experienced litigator Simon Morris explores the allegations and their implications for the legal profession.

The SRA’s allegations

The SRA's case revolved around Hurst’s conduct in relation to correspondence sent to tax commentator and former magic-circle firm partner, Dan Neidle. The SRA argued that Hurst's email and letter (sent in July 2022) improperly misused the label ‘without prejudice’ in the heading of his correspondence since it attempted to stop Neidle from publishing or discussing it by implicitly threatening adverse consequences.

What is a SLAPP?

A SLAPP is an impermissible legal tactic that can be used to intimidate and silence critics by burdening them with the cost of defending a legal claim (often without merit) until they abandon their criticism or opposition. Claims of this type aim to discourage people from exercising rights to free speech, typically about matters of public concern or activism.

When is correspondence really ‘Without Prejudice’?

Correspondence can be ‘Without Prejudice’ if it contains a genuine attempt to settle a dispute. This label ought to be applied only where this is the purpose of the correspondence. 

Correspondence that genuinely has the characteristics of being ‘without prejudice’ can’t be produced as evidence in court. The purpose of using this label is to create an environment where parties can try to resolve their dispute without fear of consequences from proposals or concessions that they might make. However, the use of the label alone isn’t determinative — the content of the correspondence is the most important factor. 

The SDT’s findings

The labelling of correspondence ‘Without Prejudice’ when it didn’t contain a genuine attempt to settle a dispute was inappropriate. The SDT's three-person panel found that Hurst had breached several of the SRA Principles 2019, including acting in a way that upholds public trust and confidence in the profession and acting with integrity. 

The tribunal concluded that Hurst had improperly attempted to restrict Neidle and ordered a fine of £50,000 and £260,000 in legal costs.

Was there a SLAPP? 

The tribunal didn’t find that there had been a SLAPP, since there was no attempt to prevent scrutiny of Mr. Zahawi's tax affairs or stop Neidle from asking questions based on facts as he saw them.

Implications for the legal profession

This case highlights the importance of maintaining ethical standards and integrity within the legal profession, including proper use of the ‘without prejudice’ label. It serves as a reminder that solicitors must act in a manner that upholds public trust and confidence, even in high-pressure situations that involve high-profile clients.

For more details on the case, you can refer to the Solicitors Disciplinary Tribunal judgment record.