CMS Cameron McKenna Nabarro Olswang LLP acted for Ashley Hurst, a partner at Osborne Clarke, on his successful appeal of a finding of misconduct by the Solicitors Disciplinary Tribunal (the “SDT”).
In December 2024, the SDT found that Mr Hurst breached his regulatory duties by attempting to prevent a journalist from publishing an email marked “Confidential and Without Prejudice” sent on behalf of his client, the Chancellor of the Exchequer at the time, Nadhim Zahawi.
The high‑profile case arose against a backdrop of increasing scrutiny of alleged misuse of Strategic Lawsuits Against Public Participation (“SLAPPs”) to deter legitimate investigative reporting. The High Court’s judgment reversed the SDT’s findings and clarifies the law.
The broader context
The term “SLAPP” is used to describe the misuse of legal procedures — including threats of litigation — improperly to discourage publication on matters of public interest. On 28 November 2022, the Solicitors Regulation Authority (SRA) issued a Warning Notice reminding practitioners that they must not intimidate, mislead, or otherwise misuse legal correspondence to inhibit lawful reporting.
Tension has continued to grow between two aspects of public interest - the right to freedom of expression on the one hand and the reputational and privacy rights of persons on the other and their right to access to justice to vindicate those rights.
The facts of the case
In July 2022, Dan Neidle, a former magic circle tax partner and (then) newly established online blogger, published a series of tweets that included an allegation that Mr Zahawi had lied about his tax affairs. On behalf of his client, Mr Hurst sent an email to Mr Neidle stating that whilst he was entitled to raise questions, Mr Zahawi considered the express accusation of lying “overstepped the mark”. The email (i) refuted the allegation of lying, (ii) sought a retraction and (iii) was labelled “Confidential & Without Prejudice”. It stated that it was not for publication and could not be referred to other than for the purpose of seeking legal advice. Two days later, an open letter was sent to Mr Neidle marked “Private and Confidential / Not for Publication”, again objecting to the allegations of dishonesty and asked that Mr Neidle reconsider what he had published.
Mr Neidle subsequently published both pieces of correspondence on his online blog and accused Mr Zahawi of attempting to suppress his reporting.
In January 2024, the SRA served a notice on Mr Hurst recommending his referral to the SDT on the basis that the correspondence amounted to a SLAPP and breached his regulatory duties. The SRA alleged that the email and letter were improperly labelled and that Mr Hurst had failed to comply with his professional duties by applying them.
Mr Hurst provided extensive submissions that he felt his conduct was proper and pursued in the best interests of his client, and that allegations were misconceived and betrayed fundamental errors of law. He also provided an independent opinion by a leading media barrister that concluded Mr Hurst had correctly, or at least arguably correctly labelled both the email and the letter.
In May 2024, the SRA referred Mr Hurst to the SDT. The referral was framed around the allegation that he had sought improperly to restrict Mr Neidle’s right to publish the contents of the two pieces of correspondence. Following a five-day regulatory hearing in December 2024, the SDT dismissed the notion that Mr Hurst had attempted a ‘SLAPP’ but upheld the allegations in respect of the email (but not the letter). Mr Hurst was fined £50,000 and ordered to pay the SRA’s costs of £260,000.
The SDT’s written reasons for its decision were issued five months later in May 2025. It concluded that Mr Hurst had improperly sought to prevent Mr Neidle from disclosing the email, that the “Without Prejudice” label was not applied genuinely but merely to suppress publication, and that there was no arguable duty of confidence in its contents. Consequently, it found that the email sought to mislead and take unfair advantage of Mr Neidle and that Mr Hurst had fabricated legal obligations in breach of his regulatory duties.
Mr Hurst appealed the decision on five substantive grounds: (i) the factual findings of the SDT were irrational and unstainable; (ii) the SDT had erred in law by failing to determine the central legal issue, which was whether Mr Hurst had sought to impose a duty of confidentiality on Mr Neidle without a proper arguable basis; (iii) the SDT’s analysis in relation to confidentiality of the email was flawed; (iv) the SDT misdirected itself by making findings of fact and applying the law to those facts rather than determining whether that the email was confidential; and (v) the SDT erred in law in concluding that marking a communication as “Without Prejudice” to deter publication was in itself improper.
The appeal was heard before Mrs Justice Collins Rice in the Administrative Court at the Royal Courts of Justice in November 2025.
The High Court’s Decision
Mrs Justice Collins Rice allowed the appeal in full and set aside the SDT’s decision, describing it as “insufficiently analysed and reasoned, vitiated by misdirection and error of law, and unfair”. The court held that a plain reading of the email met the “properly arguable” threshold for both without prejudice protection and confidentiality. It could not follow that it was improper for Mr Hurst to assert either basis.
The court considered that the SDT had been influenced by a “SLAPP‑infused narrative” advanced by the SRA and had consequently lost sight of the specific legal questions it was required to answer. This led to an “unsustainable and unreasoned” decision that inexplicably failed to explain why Mr Hurst’s evidence as to his motivations was rejected.
Key findings
The court found that the SDT’s characterisation of the case as an ‘improper attempt to restrict a right to publish’ was not a straightforward or even reliable framework for its task as a regulatory body. The SDT’s true task was to determine whether the alleged regulatory breaches – as alleged by the SRA - were made out. As the court observed at paragraph 75, “On any basis, the primary purpose of this email was not to prevent Mr Neidle from publishing it… [but] to convey… that… he very much took issue with being publicly labelled a liar”.
On without prejudice, the court criticised the SDT for treating the leading authorities as “of limited relevance” in regulatory proceedings. It is only in “truly exceptional” cases of unambiguous impropriety that the cloak of without prejudice protection should be lifted. As the court summarised, “The courts have consistently emphasised the importance of allowing parties to speak freely in the course of settlement negotiations, have jealously guarded any incursion into or erosion of the without prejudice rule… [and] cases in which [the exception] has been applied have been truly exceptional” (paragraph 83).
The correct test is an objective, contextual assessment of whether the communication recognises a legal dispute and advances a genuine basis for settlement. The court found that “it is entirely unapparent on what basis the email could not at least arguably be considered a without prejudice communication” (paragraph 86) and “it is even less clear on what basis Mr Hurst acted abusively, misleadingly or otherwise unprofessionally in describing it as such” (paragraph 87). The SDT’s finding that there was “no real attempt at negotiation or resolution” is “an entirely unexplained finding”. The email was found to be “plainly and indisputably aimed at securing the retraction of the allegations of lying as an alternative to the possibility of defamation litigation. Why the Tribunal considered there could be any doubt that that was its objective, and genuinely capable if achieved of avoiding defamation litigation, is nowhere explained” (paragraph 88).
On confidentiality, the court held the SDT misstated the law, misunderstood legal authorities, and failed to apply the correct test. The email contained limited family and financial information known to “very few people”, imparted for the single and defined purpose of resolving the dispute. It expressly asserted confidentiality and the court held it comfortably cleared the “properly arguable” threshold for a duty of confidence. Paragraph 109 states, “There is nothing in the Tribunal's decision which is recognisable as applying the relevant law to these facts, or as explaining its conclusion that Mr Hurst's assertion of confidentiality was unarguable". The court emphasised the SDT’s task was not to decide whether Mr Neidle’s publication of the email was ultimately actionable (or even defensible on public interest grounds), but whether Mr Hurst’s assertion of confidentiality was properly arguable, which it was found to be.
Fourthly, the court found a disconnect between the SDT’s findings and the SRA’s pleaded regulatory breaches. The decision proceeded as a “logic puzzle”. Once it (mistakenly) proceeded on the basis that the email constituted an “improper attempt to restrict publication” by Mr Hurst, the SDT then declared the regulatory breaches as proved “without further analysis” and failed to explain how the law and evidence justified the breaches.
The court was also concerned by the “vehemence and disparagement” within the SDT’s decision, including the condemnation of Mr Hurst for having fabricated legal obligations and ignored his regulatory responsibilities. Such findings of bad faith required an “elevated standard of proof and of reasoning” and a “clear articulation of why” the SDT did not believe Mr Hurst’s evidence. Such reasoning was absent in the decision.
Commentary
This decision provides valuable clarity for practitioners navigating pre‑action correspondence, especially where allegations of SLAPPs arise. It confirms:
- the without prejudice rule remains robust and will not be eroded absent exceptional circumstances;
- confidentiality may validly be asserted where there is a properly arguable legal basis; and
- the SDT’s regulatory analysis must be rooted in the pleaded breaches of professional duties.
These proceedings highlight the SRA’s increased efforts to pursue cases involving alleged attempts to suppress media reporting. However, it underscores the significant financial and personal consequences that SRA investigations can have on solicitors’ reputations and livelihoods. In Mr Hurst’s case, the process was particularly challenging given that the SRA had been provided with an independent opinion from a leading KC - an opinion that ultimately aligned closely with the court’s findings - before deciding to refer the matter to the SDT.
The case ultimately serves as a reminder that solicitors acting robustly yet properly for their clients should not be criticised for asserting arguable legal principles.
