A lawyer acting for former chancellor Nadhim Zahawi has denied improperly restricting a tax expert from discussing communications regarding the politician’s failure to pay tax.
Ashley Hurst, of law firm Osborne Clarke, faces a solicitors disciplinary tribunal over allegations that he sent an email and letter to Dan Neidle, founder of Tax Policy Associates, in which he “improperly attempted to restrict Mr Neidle’s right to publish that correspondence and/or discuss its contents”.
The communications asked Mr Neidle to retract claims he had published that Mr Zahawi lied about failing to pay £3.7 million in tax, and also not to publish the correspondence.
The Solicitors Regulation Authority (SRA) alleges Mr Hurst breached its code of conduct.
The email, sent on July 16 2022 and marked “confidential and without prejudice”, said Mr Zahawi considered Mr Neidle “overstepped the mark today by accusing him of lying to the media and the public” and conveyed an opportunity for Mr Neidle to “retract your allegation of lies in relation to our client”.
I would say it’s a little ambiguous. It's not my best piece of drafting I have to admit
It also said: “I have marked this email without prejudice because it is a confidential and genuine attempt to resolve a dispute with you before further damage is caused.
“It is up to you whether you respond to this email but you are not entitled to publish it or refer to it other than for the purposes of seeking legal advice.
“That would be a serious matter, as you know. We recommend that you seek advice from libel lawyer if you have not done already.”
Giving evidence on Tuesday, Mr Hurst said he drafted the email on his phone at his sister-in-law’s flat as he did not have his laptop with him.
He had been with his family, but dealt with the situation from a quiet place, he added.
The lawyer said the strategy would not have changed had he had his laptop, particularly given the “considerable amount of time pressure” as a result of publication deadlines for Sunday papers.
David Price KC, for the SRA, put to Mr Hurst that the email improperly attempted to restrict Mr Neidle because it had gone beyond prohibiting him from publishing the details of the email on his blog or Twitter account, and also forbade him from discussing it with a third party such as a family member or close colleague.
Mr Hurst said “it was not my intention to impose undue restriction on Mr Neidle”.
He added that he would have accepted the request “had (Mr Neidle) come back and said ‘this is an undue restriction, you’re telling me I can only speak to my lawyer about it, I want to speak to my wife about it under the conditions of confidentiality'”.
He added that he would have rejected a request from Mr Neidle to speak to an MP or journalist given the risk that details would then be publicised.
Adding the word “publicly” after the phrase “entitled to publish it or refer to it” would not make sense “as a matter of English”, Mr Hurst said, before accepting that the wording gave rise to the interpretation that Mr Neidle could not mention the email to third parties.
He added: “I would say it’s a little ambiguous. It’s not my best piece of drafting I have to admit.”
Asked if he was “threatening” Mr Neidle in the email by raising it as a “serious matter”, Mr Hurst said: “I think I don’t want to be lawyer about every answer, the word threaten has a normal meaning and a more legal meaning.
“In a sense, of course, my email, which sets out the nature of a legal claim, can be interpreted as carrying a degree of threat, the obvious one being that if a letter is not responded to or engaged with then legal proceedings can potentially follow.”
He said he “was not trying to be threatening”, adding that any legal correspondence that intimates a claim and discusses the reservation of rights “carries an element of threat”.
The email had also said: “Our client reserves his rights in relation to what you have published to date.”
Mr Hurst told the panel: “I don’t think I made any mistake on the law. I, looking back as I have done many times, thought about whether I could have expressed myself more clearly in the event, particularly to explain the without prejudice principle.”
He said he was presenting the opportunity to start without prejudice proceedings, and added: “There are ways in which I could criticise my own email and (how I could have done) a job that might not land me in this position. But that doesn’t mean I accept I was wrong.
“I did not, in my view, make a mistake of law. I did not make a mistake in relation to fact, in relation to where I was at that particular time.”
