Ashley Hurst v Solicitors Regulation Authority

A disciplinary tribunal must determine the regulatory allegations actually pleaded. It must construe the relevant communication fairly and objectively, identify the applicable legal principles, and decide whether the solicitor’s position was properly arguable. A properly arguable legal proposition need not be strong or likely to succeed, but it must be legally recognisable. The without prejudice character of correspondence depends on its substance and context, including whether it identifies a legal dispute and proposes a genuine basis for resolution. Confidentiality is also fact-sensitive; a confidentiality label is relevant but neither creates nor excludes a duty of confidence. A specialist tribunal must give intelligible reasons linking the evidence and law to its findings, particularly where it makes findings akin to bad faith or dishonesty.

Mr Ashley Hurst, a solicitor, appealed against findings by the Solicitors Disciplinary Tribunal arising from correspondence sent on behalf of a politician to a journalist who had published allegations of dishonesty concerning the politician’s tax affairs.

The Tribunal found that an email headed “Confidential & Without Prejudice” improperly sought to prevent publication and breached professional standards. It found the later open letter did not amount to misconduct. The Tribunal fined Mr Hurst £50,000 and ordered him to pay £260,000 in costs. The appeal concerned the Tribunal’s factual findings, its treatment of without prejudice and confidentiality principles, the proper arguability threshold, and the adequacy and fairness of its reasoning.

1. Appeal allowed. The Tribunal’s decision and orders were set aside.
2. The Tribunal’s task was defined by the allegations of professional misconduct actually pleaded. The central question was not whether the journalist had an established legal right to publish, but whether Mr Hurst’s conduct constituted abuse of position, misleading conduct, advancing an unarguable proposition, undermining public confidence, or lack of integrity.
3. The email had to be construed objectively and as a whole. It identified a recognisable dispute about allegedly defamatory allegations of lying, offered an opportunity to retract them instead of facing a fuller open challenge, and explained the factual basis for the client’s position. It was at least properly arguable that the email was without prejudice correspondence.
4. The authorities establish that the without prejudice rule protects genuine settlement communications and is assessed contextually. Its protection is displaced only in truly exceptional cases involving unequivocal or unambiguous impropriety. The Tribunal failed to explain why the email fell outside that framework or why its use of the label was professionally improper.
5. The Tribunal also misdirected itself on confidentiality. The email contained non-public family and financial information, supplied for a limited purpose and expressly said to be confidential. The label was not determinative, but it was part of the factual matrix. The Tribunal did not apply the relevant law to those facts or explain why the assertion of confidentiality was unarguable.
6. The Tribunal’s reasoning was materially inadequate. Its findings that Mr Hurst fabricated legal obligations, deliberately misled Mr Neidle and lacked integrity were unsupported by a comprehensible analysis and were unfairly expressed. The decision was therefore wrong, unsustainable and vitiated by error of law, insufficient reasoning and unfairness. The parties were given an opportunity to make further submissions on consequential matters.

• Solicitors Disciplinary Tribunal: found the allegation concerning the 16 July 2022 email proved, dismissed the allegation concerning the 19 July 2022 letter, imposed a £50,000 fine and ordered £260,000 in costs.
• High Court (Administrative Court): allowed the appeal and set aside the Tribunal’s orders, decision and determinations.