In July 2022, I wrote that I thought Nadhim Zahawi had lied about his taxes. I was right. Nadhim Zahawi lied repeatedly about his tax affairs, and continued to do so until it became public in January 2023 that – at the same time he was saying he’d always paid taxes in full – he was negotiating a £5m settlement with HMRC, including back-taxes plus penalties. Mr Zahawi was then sacked by the Prime Minister.
Nadhim Zahawi’s solicitor, Ashley Hurst, emailed me that July demanding that I retract my allegation, with the implicit threat of libel action if I did not. He went further: he claimed that the email was “without prejudice” and confidential, and that I was not permitted to publish it or even refer to it. He said it would be a “serious matter” if I did. I took that to be another threat.
I was astonished at the idea that a solicitor could send someone a libel threat, and prevent them from publishing it, or even mentioning it. The Solicitors Regulation Authority agreed, publishing guidance making clear such conduct was prohibited, and then prosecuting Mr Hurst before the Solicitors Disciplinary Tribunal.
In December 2024, the Solicitors Disciplinary Tribunal found that the email was improper, and agreed that it contained an implicit threat of action against me if I disclosed the existence of the email. Mr Hurst was fined £50,000 and had to pay the SRA’s costs of £298,391, as well as his own costs of £908,172.1Although I expect Osborne Clarke are paying these – the firm has backed Mr Hurst throughout.
Mr Hurst is now appealing to the Administrative Court. Here are his grounds of appeal:
Here is the SRA’s response:
My take: 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.
- 1Although I expect Osborne Clarke are paying these – the firm has backed Mr Hurst throughout.
22 responses to “The Zahawi libel story isn’t over – his lawyer is appealing”
The problem here is that no one seems to properly understand the law of confidence, and how that interplays with an individual’s reputation and his rights at law.
Let’s say for a moment that the claimant was not an MP or a cabinet minister, and had not lied about the position. The reason why pre-action correspondence is often marked confidential, not for publication, and if a genuine offer to settle, then WP, or WPSATC, is to protect the reputation of the client which the solicitor is instructed to defend. If the other party is acting with malice, this becomes even more important to achieve. The defendant could use the fact of the correspondence to repeat damaging and seriously harmful allegations.
In this case however, there is a very strong public interest in the facts.
The solicitor potentially finds himself in a position where a client has lied to him, and because he is bound by privilege, he is stuck in a quagmire between not being able to defend himself openly, or reveal his client’s instructions. He has to act in the best interests of his client, and on his client’s direct instructions. He cannot be the judge of his own client, that is not any solicitor’s role. He cannot investigate his client’s position to the nth degree, though testing the position and satisfying himself that the client is or is likely to be telling the truth is reasonable. It is a lawyer’s worst nightmare to discover a client has lied when they have instructed their lawyer to put those lies in writing.
People here are blaming the lawyer and the law firm.
But this is an inherent tension in reputation law in which, sometimes, clients do lie. And they go to great lengths to lie and protect their reputations. The solicitor and the firm here hadn’t done anything which was not standard practice for the world of reputation law. Sadly, they perhaps might have wanted to reconsider the risk of taking on this client.
We are too quick to blame the lawyers in this instance, because there is insufficient understanding of the law of confidence (which attaches to information which is confidential- which in certain factual circumstances may include a denial of spurious and untruthful allegations) and which in this instance was wrong of the client to do, but not wrong of the lawyer, which is his job. We do not attack criminal lawyers for defending murderers and rapists, even those that the lawyer suspects of being guilty, but for professional protection, does not ask the question.
We accept that they have a right to a defence and a fair trial.
The same goes for reputation. Everyone has a right to be robustly defended. The client does not have a right to lie, and that robust defence must be within the bounds of the regulations. I see nothing here which departs from that, except that the client lied, and there was legitimate and strong public interest in knowing the position, notwithstanding that that public interest did not extinguish the confidential nature of the information.
The law works properly. Legitimate public interest in information which is true, will nearly always trump rights of privacy and reputation except where there is a very, very good reason not to.
Everyone got stung here because the claimant in question lied, and significantly so.
But lawyers cannot be the police of their clients. It just as reasonable to think a cabinet minister would have integrity, as it would be reasonable in today’s climate to question that integrity. It’s a 50/50. The firm took a risk, it has cost them.
After life and health, reputation is highly important for human agency. While London should be careful not to become a reputation laundry, one of the reasons for a highly developed set of laws regarding reputation, confidential information and privacy is in large part down to the rabid press in the UK, and the systemic and long standing use of illegal means to obtain private information, when they weren’t busy making it up. I highly suggest you watch all of the Leveson inquiry.
Robust protection is needed just as much as freedom of speech, and in this case, the right result followed because of you Dan.
But, just as in tax law there is plenty of nuance, there is also great nuance in this area of law which it would be helpful if you could give deeper consideration to. This is a generalisation, but the top reputation lawyers in their field are acutely aware of their regulatory responsibilities, and the substantive law, and mostly are very careful not to cross the line. Where they do, then due process will follow. But many do not agree with the SDT’s interpretation, which fundamentally misunderstands the underlying law, and therefore the solicitor’s ability to robustly defend a (truthful) client.
Dan, you wanted to publish the allegations because of the public interest in them. Fair enough. But spare a thought for people who are innocently targeted by others seeking to ruin them. That happens far more often, which is why we have these laws in the first place.
We all have a duty to ensure they are not abused by the undeserving or the greedy.
In a rational world (and it probably was the case pre say 1960?) even filing such an appeal would be grounds for “bringing the profession into disrepute”.
Whilst I completely agree with you, I’d also point out that Hurst sounds very unappealing.
I note the legal costs are eye-wateringly high:
https://www.lawgazette.co.uk/news/zahawi-solicitor-to-appeal-tribunal-decision-on-email-threat/5124142.article
While I agree with the SDT’s original finding, I have to say I was surprised by paragraph 2.2.1 of the SRA’s response. Have they cited an authority for the contention that a communication cannot be without prejudice if the recipient has refused (or, I assume in this case, not yet agreed) to accept without prejudice communications?
I had always understood that a communication was automatically WP due to it containing a genuine offer to settle, rather than requiring prior agreement as to its status.
The appeal seems to be based on the underlying facts of the situation rather than the findings of the SRA Tribunal?
In effect the appeal seems to be trying to re-argue the case.
I have been highly critical of certain professional bodies who in my opinion have failed the less aware members of the public who trusted those with letters after their name, only to find themselves in a world of trouble. That trouble is worsened by the professional bodies failing to discipline errant “advisers” and further, failing to change the rules to ensure it does not happen again.
I therefore have a very cynical view of professional bodies (even my own) and if the SRA wished to deliberately lose this appeal, it would not surprise me.
Having read the SDT report and the grounds of appeal I still don’t understand how it was even arguable that the unsolicited correspondence could impose a duty of confidentiality on the recipient. I guess I’m just a humble lawyer rather than “head of client strategy”
Keep going Dan, you are one of the good guys, we need more like you.
If the appeal succeeded it could intimidate defendants into retracting or abandoning their criticism of wealthy litigants due to fear of financial ruin.
The disparity in resources between wealthy claimants and defendants makes SLAPPs particularly effective in the UK
It looks as with most inveterate gamblers he’s chasing good money after bad!
There is a slight imbalance in costs there. A million point three squids and a £50k fine for sending out your bog standard superinjunctive type bully letter? Who wouldn’t feel hard done by?
This should be quixotic but you never know. We should find out if the SRA really means it and in that sense only I think this is a useful test.
Might his costs, at least in part, be for his own time? If so, in being so large, constituting another implicit “threat”?
A cool million of this was incurred by the respondent himself in defending the indefensible. I like the brazen assertion that this was the first time he put a bunch of “WP” “confidential” threats on correspondence, I wonder if that claim will come back to bite him.
Agree Dan! A big moment for the Solicitors regulator to prove they either have integrity or are just thugs in good suits !
Would this action from Hurst need to have explicit, or implicit, backing of Zahawi himself?
Great question!
Dan’s note states that it is the Solicitor with the “backing” of his firm. This is about professional conduct and not the merits or otherwise of the associated claim.
I am afraid solicitors are in a club and they will stick together, never accept responsibility even if the whole World comes tumbling down
Roy
The case actually shows that the opposite is true. The Appellant is a solicitor and he’s been disciplined (rightly so in my opinion, speaking as a solicitor) by the SRA. Where is the “club”?
Not sure that is accurate. This example is a Solicotor (the author of this website) specifically pursuing another solicitor for bad behaviour to help keep standards.
this is lazy conspiratorial thinking, bearing no relation to what actually happened.
The SLAPP orders have been abused by many people, a legislation that was not designed for silencing people. It’s time the threshold for getting such SLAPP orders are raised and the reason for getting such orders are defined and tightened.