Osborne Clarke partner takes 'without prejudice' misconduct fight to High Court

Osborne Clarke partner Ashley Hurst is appealing against the Solicitors Disciplinary Tribunal (SDT) decision which found him guilty of professional misconduct over his attempts to stop tax campaigner Dan Neidle from reporting on the tax affairs of then-chancellor Nadhim Zahawi.

Litigator Hurst has lodged an appeal to the Administrative Court (part of the High Court), arguing that the tribunal’s "key factual findings" were "irrational and unsustainable" and that it "erred in law" on several grounds. Among these, he says the SDT failed to decide the central legal issue of whether he sought to impose a duty of confidentiality on Neidle "without any properly arguable basis", and was wrong to conclude that using the "without prejudice" label to deter publication was itself improper.

The appeal was made public by Neidle in a blog post. Neidle, a former Clifford Chance UK tax head turned campaigner, 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."

Background

In its decision published in May, the SDT found Hurst acted improperly in July 2022 when he emailed Neidle warning him he was not entitled to publish or refer to the message "other than for the purposes of seeking legal advice" and that doing so would be "a serious matter". The message, marked "Confidential & Without Prejudice", was sent as Neidle was investigating Zahawi - at the time both chancellor and Conservative leadership contender.

Hurst was fined £50,000 and ordered to pay £260,000 in SRA costs, on top of £908,000 in his own legal costs.