Schrödinger’s Threats

Or, Nice little SLAPP tactic you’ve got there. Shame if anything were to happen to it.

Dan Neidle, former Clifford Chance tax partner and now lead of Tax Policy Associates has caused a stir by accusing the current Chancellor of the Exchequer, Nadim Zahawi of, “a series of unsatisfactory answers about his tax affairs. At least two are provably false (and one I [Neidle] characterised as a “lie””. Now he has published letters he says are, “designed to intimidate,” from Zahawi’s lawyers, Osborne Clarke (OC). OC have sought to assert these are without prejudice and/or confidential. Publication, they claim in one of those secret letters, “would be improper”.  

The Times covered the story on Saturday with Zahawi’s Spokesman quoted as saying,

“Nadhim sent a polite, confidential letter through his solicitors to Mr Neidle to correct a few inaccuracies and ask that he reconsider his allegation of dishonesty. The letter did not ask for a reply.”

I begin by asking, politely too, whether describing a letter which contained an allegation of impropriety as polite is misleading. This is a point to which I will return.

Neidle describes his reasons for publishing here and, in more detail, here. He also says he is going to write to the SRA to ask that they clarify their guidance on the misuse of without prejudice/confidentiality in relation to SLAPPs. I support that. The SRA are already looking at SLAPP actions and one would hope that the matter is properly considered.

Neidle also says he is not complaining to the SRA about Zahawi’s firm. The SRA might nonetheless investigate and, whether they do or not, they will need to think about the professional ethical implications raised by the tactics he complains of. As a result, it is worth considering how the practices Neidle describes might amount to a breach of the Solicitors’ Code and so merit greater attention in guidance and perhaps investigation. On investigation, I emphasise the word might here; in general terms we have only one side of the story. I pose here questions about Nahawi’s lawyers (OCs) conduct rather than assert wrongdoing has occurred, we would, as ever, be helped by more context.

Let’s start with OCs first letter. Labelled Confidential and Without Prejudice it raises, “serious concerns about your latest direct allegation of dishonesty”. It discusses ways in which Neidle’s judgement of Zahawi may be flawed and then says this:

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. Our client wants to give you the opportunity to retract your allegation of lies in relation to our client. That would not of course stop you from raising questions based on facts as you see them.

You have said that you will “not accept” without prejudice correspondence. 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.

 Should you not retract your allegation of lies today, we will write to you more fully on an open basis on Monday.

In the meantime, our client reserves all of his rights, including to object to other false allegations that you have made.

I note here there appear to be three implied strings to the bow here: they seem to be saying he risks libel for the dishonesty allegation; libel for the other allegations; and some kind of unspecified wrong for the “serious matter” of publishing the correspondence. It does not identify how it is serious. They assert the email is confidential and without prejudice although Neidle had already put them on notice that he would not accept without prejudice correspondence.

He is given that day to retract or face a further letter.

The bits of the second letter that I think are of particular interest to professional ethics questions are:

1.3 You have said that you will not accept without prejudice correspondence and therefore we are writing to you on an open, but confidential basis. If your request for open correspondence is motivated by a desire to publish whatever you receive then that would be improper. Please note that this letter is headed as both private and confidential and not for publication. We therefore request that you do not make the letter, the fact of the letter or its contents public.

Like the allegation of “seriousness” the nature of the impropriety is not further identified. They also say:

1.4 Please also do not misrepresent the nature of this letter. It is not a threat to sue for libel. It is a request that you reconsider what you have published and adopt a fair and balanced approach to your investigations.

Although the letter also, at the end, says, “3.4 Our client reserves his rights in relation to what you have published to date.” On its face, I think is most reasonably interpreted as indicating the possibility of litigation for libel (and it should be read alongside the first letter which advised him to seek libel advice). If I can put it like this, and I am not trying to be facetious here,  this is saying, We are not threatening libel, we are just indicating it remains a possibility.

Or, if I can put it, ahem, perhaps just a little facetiously: Nice little dishonesty allegation there. Shame if anything were to happen to it.

The letter goes on to indicate why they say the allegation of dishonesty is “based on speculation” and why it should be said Zahawi had not lied. And that “[a]ny allegation that our client has evaded or avoided tax is strongly rejected.”

Also, “3.1 Our client is not asking for a response to this letter.” Although they are asking for a response from Neidle “our client does ask that you reconsider the false allegation of dishonesty that you have published and whether you have sufficient information to justify this.” One interpretation (again the most reasonable one I think) is that the “reservation of rights” in para 3.4 is intended, very subtly, to convey libel risk (and remember again the first letter which underlines the point); a second interpretation is that they are asking him to withdraw but no proceedings are contemplated (in which case why state one’s rights are reserved?).

In essence, my interpretation is that libel is threatened, just not imminently or definitively. I encourage you to read the letters and make your own minds up on that. Tell me too, if you think I am wrong, I am genuinely interested.

So how might the Solicitors rules have been breached? Let’s take the SRA guidance on Conduct in Disputes, which indicates the SRA,

“are aware of concerns surrounding Strategic Lawsuits against Public Participation (SLAPP). …the misuse of the legal system, and the bringing or threatening of proceedings, in order to discourage public criticism or action. For example, cases in which the underlying intention is to stifle the reporting or the investigation of serious concerns of corruption or money laundering by using improper and abusive litigation tactics.”

I will assume, I hope not controversially, that the tactics we see above might have been deployed in part to stifle reporting of serious concerns and concentrate on the issue of abuse. We are told this abuse can include the making of, “excessive or meritless claims, aggressive and intimidating threats”.

I am going to park the possibility that the threats of libel action and/or the idea that the letter is without prejudice are meritless claims. I think the latter is certainly arguable: it can be argued that the letter is not seriously intended to be an attempt to settle (a litigation expert I have spoken to has indicated they think this is clearly not a without prejudice letter although I would expect OC to dispute that: the first letter could if one was reading it kindly as implying that if Neidle withdraws the allegation of dishonesty he would not be pursued for the other allegations). In any event, Neidle rejected without prejudice correspondence which may be the end of it.

The Guidance rehearses the principles that govern solicitors. I will not do the same but will note the Guidance emphasises, “when the Principles come into conflict, those which safeguard the wider public interest take precedence over an individual client’s interests. These include the rule of law and public confidence in a trustworthy solicitors’ profession….” Also that, Independence, “clearly includes independence from the client…. [A solicitor] must and should on occasion be prepared to say to [their] client ‘What you seek to do may be legal but I am not prepared to help you to do it” (quoting an SDT case). What I think is especially important is that Paragraph 1.4 of the Code of Conduct, and discussed in the Guidance, which states:

you must not mislead, or attempt to mislead your clients, the court or others, either by your own acts or omissions or by allowing or being complicit in the acts or omissions of others (including your client)’.

Again claiming the correspondence is without prejudice, when it is not, or confidential when it is not, might amount to an attempt to mislead Neidle, although given Neidle’s background it is really more a (meritless?) claim being made than a serious attempt to mislead him I think. The most interesting argument is whether the lawyers may have been (knowingly or recklessly) complicit in attempts to mislead others. I emphasise we do not know but it seems to me that this is the main mischief suggested, on the current rules (other mischiefs are perhaps missed by the rules), by the correspondence. The letter contains a threat and its denial (and even more clearly if one reads them together). Like Schrödinger’s cat they seek to treat the threat as alive and dead. The approach may have been designed to enable Zahawi to say he is not threatening Neidle with libel whilst in fact doing that, however subtly. Or it may have been designed to let him say what he did say, which is that it’s just a polite letter asking for a few corrections (a misleading characterisation of the letter I think, see above). Either way, its design is to give some basis for deniability. And it is interesting to note that, if I am right that the letter does threaten libel, OC seeks to mischaracterise it themselves: what they want is to be able to issue a libel threat and deny Nielde the right to call it for what it is. If this is a deliberate mischarcterisation it must be there to mislead someone, no?

I think there is one other point which is deserving of mention. The guidance also emphasises “Making allegations without merit” …with insufficient investigation of their merits or of the underlying legal background. …bringing claims may be reckless as to the merits of the case – or actively uninterested in the merits – and aim to pressure on an opponent to settle the case outside of court.” The guidance does not clarify that the threatening of meritless, or inadequately investigated, or I would say inadequately specified claims is something which falls within the guidance here and perhaps it should. Saying Neidle’s failure to accept the without prejudice/confidential nature of the correspondence is serious and that publishing the second letter would be improper is, I think, most reasonably seen as insinuating a professional breach by Neidle which they do without, or certainly without specifiying, an apparent substantial basis.  

There is potential here for the SRA to see this as a lack of integrity and independence. These allegation may be seen to “involve making allegations without merit where the sole purpose is to stifle valid public discourse.” They are trying to stop Neidle saying Zahawi has sought to threaten him. Saying Neidle risked doing something “serious” or “improper” is rather unsatisfyingly vague if they are serious about protecting their client’s purported confidentiality; it may suggest “there is no proper legal basis for a claim” or that they are exaggerating the nature of conduct they do not like in the hope it will cause delay, difficulty, or a change of heart. It might be seen mainly as intending to, “cause distress and anxiety” or a failure to “interrogate and engage properly with the legal and evidential merits.”

There are other bases on which one could argue that secretly threatening litigation is often (perhaps not always) problematic and not in the public interest. Threatening litigation where the party has no intention of pursuing that threat presents interesting issues too. There are a number of reasons why I think the SRA need to take a harder look at the area. Silence is, as we have seen with NDAs, power. Here the power is being deployed to protect a very senior politician in an area where the Government has just expressed a measure of outrage at SLAPP suits. The SRA, in taking this on, will have to grapple with realpolitik and independence in Schrödinger’s box. For that they will be thankful that Neidle is saying he will not ask them to investigate OC.

3 thoughts on “Schrödinger’s Threats

  1. I’ve always thought that describing information, or material, as confidential, is a much overused expression, overused by those who haven’t thought about what it means.

    My take on it: there is no such thing as “confidential information”, and the term should not be used.

    There is information which a particular person or party has an obligation to keep confidential: for example, information subject to legal professional privilege (where the lawyer, but not the client has such an obligation). Or (relevantly here), in general, when I receive an unsolicited letter in the post labelled “confidential”.

    Or (which sparked my interest in this point) when scientists claim that their articles denying climate change have been inappropriately rejected from publication, but won’t let the world see the rejection letter and accompanying referee reports, on the ground that these are “confidential”. (It’s generally accepted that the editor and referees should keep these confidential).

    Re “without prejudice”: Richard’s article is pretty clear, but can I add this little gem (off a solicitor’s website):

    In Davies v Nyland (1975) 10 SASR 76, Justice Wells famously expressed the view that the phrase is often misconceived:

    “[I]n some quarters of the community there is a belief, amounting almost to a superstitious obsession, that the expression “without prejudice” is possessed of virtually magical qualities, and that anything done or said under its supposed aegis is everlastingly hidden from the prying eyes of a Court.”

    (SASR = South Australian State Reports)

  2. I don’t see how you can send an unsolicited communication to a third party and demand it is held as confidential. There is no lawyer-client or other relationship that demands or creates confidentiality obligations. All it would seem to be based on is shared professional status. Given that the recipient indicated he would not accept ‘without prejudice’ correspondence in advance, it is hard to see why there would be an basis for an expectation of confidentiality, least of all in a matter of obvious public interest. The extent to which any threat, express or implied, is conveyed in this correspondence would have been carefully considered in advance as would the risk of publication, which the assertion of confidentiality is intended to restrict.

  3. Richard,

    In response to your request for feedback from readers on the without prejudice point, I think you did nail it. Libel is threatened. But I am damned if I can see an offer of dispute avoidance/settlement in there.

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