In July 2022, the issue of legal threats being sent in letters marked ‘private and confidential’ ‘without prejudice’ and ‘not for publication’, was publicly raised by Dan Neidle, founder of Tax Policy Associates. Neidle, a British tax lawyer, researcher and commentator, had been investigating the then Chancellor of the Exchequer Nadhim Zahawi’s financial ties to YouGov. There were concerns as to whether Zahawi was benefiting from tax codes he had a hand in shaping. In a lengthy and detailed Twitter thread, setting out his evidence, Neidle alleged that Zahawi had avoided almost £4m of capital gains tax.
In response, Neidle received a Twitter DM from Zahawi’s lawyers, Osborne Clarke asking for a phone call. Neidle instead requested that he be contacted in writing, but noted that he would not accept ‘without prejudice’ correspondence. ‘Without prejudice’ is a longstanding rule which aims to support the negotiations of settlements, and avoid a court hearing “which means that the circumstances in which the content of those negotiations may be revealed to the court are very restricted.” Osborne Clarke nevertheless sent Neidle two letters. The first was marked ‘confidential and without prejudice’ and the second ‘not for publication’ and asked him not only to retract his accusation by the end of the day, but suggested that it would be a “serious matter” if he published the legal letters. Neidle noted that the second letter “says, rather artfully, that it’s not actually a threat to sue for libel. But it comes from a libel lawyer, and tries to prevent me publishing it. Similar letters have been sent to others in recent weeks, and I understand Zahawi has done this before – using lawyers to silence people writing about his tax affairs.”
Neidle did not submit to these threats. Instead, he set out his research findings, and the conclusions he drew, in more detail. Moreover, believing that the assertions of confidentiality were false, and that the letters were rather an attempt to intimidate him, Neidle chose to publish the letters, and draw the public’s attention to the use of SLAPPs to silence researchers. After he went public, Neidle reported hearing from many others who had also been legally intimidated: “Silence is integral to the SLAPP strategy. A small-time blogger says something you don’t like. You get your lawyers to write them a letter warning them off. The blogger deletes their blog, and nobody has any idea what happened.” In August, having raised a complaint with the SRA, Neidle received a response from the regulator, which stated that they planned “to address the practice of labelling correspondence as “private and confidential” and / or “without prejudice”, and to address the conditions under which doing so may be a breach of our requirements. We think that this approach will help solicitors to comply with our existing standards and regulations and to use those labels only when appropriate.”
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