18th January 2023
There is a certain intellectual satisfaction to be had from watching an investigation done well – especially if you have watched it unfold in real time.
The work of tax lawyer and blogger Dan Neidle (who I know) on the remarkable matter of the tax affairs of Nadhim Zahawi is to be savoured.
Click on this link and read the chronology of how Neidle went step-by-step from the moment he thought something here just was not right.
(I remember in prehistoric times, when I had the same moment in the Nightjack and the Saudi prisons contract stories.)
I am not a tax lawyer, but I do know a bit about media law, and from that perspective I would like to add a couple of points about this story.
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There is nothing wrong, in principle, with any person asserting their legal rights – in defamation or anything else – if their legal rights are being infringed.
And so, until and unless the law of defamation is abolished, Zahawi and anybody else – including you – can seek to defend their – your – rights.
The problem here is not that there were libel letters, but that Zahawi’s legal strategy was flawed to begin with.
And so, faced with someone who knew what they were doing, the legal strategy first had to keep changing, before falling apart.
Moreover, lawyers’ letters can often be more revealing in what they do not say, rather than what they do say – and, if read carefully, even the most robust-seeming lawyers’ letter can expose the weakness of the position of a hapless client.
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We do not know the extent to which Zahawi’s lawyers were acting under instruction – and although lawyers can advise, it is always the client who decides.
(That said, the Solicitors Regulatory Authority was absolutely right to remind the lawyers involved that legal correspondence should not be abused.)
And the wise litigation lawyer will already know that heading a letter “Not For Publication” can be often a triumph of hope over experience, especially when dealing with bloggers.
The aggressive legal strategy would have to have been approved by Zadawi.
And so the fault for Zahawi’s botched legal strategy must ultimately be with Zahawi.
He no doubt went to his lawyers instructing them to get the problem to go away, but by doing so, he made his own position far worse.
The gaps in the aggressive legal letters were telling, and they would have been better unsent.
The legal strategy adopted by Zahawi is as much a misjudgment as anything else in this matter.
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The fate of Zahawi is now in the realm of politics, not law.
He may survive, and the political circus may move on.
But whatever happens, the elegant and thorough blogging of Neidle will stand as an outstanding example of what can be done, over time, when an investigation is done well.
Bravo.
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Dan Neidle has been outstanding. His expertise combined with his fairness and demolition of inaccurate comments, his persistence, his bravery, his refusal to be intimidated, his ability to communicate the key issues simply. Then his briefing assistance to journalists and editors. He also does excellent interviews remaining calm and clear even in response to Tory inspired efforts to undermine his reputation. Last but not least hi lethal sense of humour. He has done British public life a huge service.
Oh yes, bravo Mr Neidle. Was Zahawi badly advised by his lawyers or did they just seek to maximise their income via another sad episode of British public life?
As DAG says in his piece the client decides. In any case Dan Neidle gives a long list of unsustainable statements from Zahawi that involve his own statements. Well worth checking out Mr Neidle’s twitter timeline including his excellent letter to Rishi Sunak today.
Bravo indeed. ‘Boy played a blinder.
The moment he thought that something here just was not right was surely when he heard Zahawi is a Tory MP.
“And so, until and unless the law of defamation is abolished, Zahawi and anybody else – including you – can seek to defend their – your – rights.”
I mean, in reality the vast majority of us don’t. The cost of litigation means that in practice defamation laws only protect the rich and powerful.
I think the SRA is the only lawyers’ regulatory body that has directly weighed in on the use of lawsuits (and steps preparatory to litigation such as this type of letter) to harass journalists, researchers and other investigators. The Business and Human Rights Resource Centre issued a report last year on the worldwide use of SLAPPs (Strategic Lawsuits against Public Participation) which recommended that lawyers’ codes of ethics be amended to make providing legal support to SLAPPs an ethical violation. I think the steps that the SRA has taken last year are the correct approach – existing ethical duties cover these behaviours. Instead they have issued guidance on lawyers’ conduct which enables clients to pursue SLAPPs. Thanks to Dan Niedle, the guidance has been supplemented with the SRA warning on spuriously claiming letters are confidential.
Dan Neidle links to the Kay Burley interview Sometimes, as the song says, it ain’t whatcha say: it’s the howtcha say it.
Q: “Is it true that your family benefits from an offshore trust?”
A: “My family does not benefit from an offshore— I don’t benefit from an offshore trust. Nor does my wife, erm… We don’t benefit… at all from that. [Hands reach forward; slight shake of the head as if to say, “I don’t know what more I can tell you.”] My mother and father live… abroad. Erm, er, that’s, [Swallowed:] y’know, th— their business. They’re not— they don’t live in the United Kingdom.”
The context of the interview in July was his bid to become Conservative Leader and P.M. He may not even have come close, but, nevertheless, phew!
Excellent work by Mr Neidle and thank you for a clear report of proceedings so far. No one comes out of this well. The affair smells and is sleazy.
But in the end all we have is a rich man taking some tight corners and his lawyers will declare ‘my client has done nothing wrong’. Not the first and won’t be the last. I hope Mr Zahawi gets the push – if only as a way of sending a message.
But in the grand scheme this is pretty meaningless. We still have major problems very few of which seem to be addressed. So far just a couple of mucky wisps of straw have been spotted in the Augean stables.
I am glad to see you focus on this case David. I should say I too know Dan a bit and am pleased to see him take up the cudgels on this matter.
It’s worth being clear on what it is that Neidle thinks Zahawi’s lawyers have got wrong. In broad terms, I think this can be summarised as allegations that: Zahawi’s lawyers made baseless allegations of libel; that they failed to conduct proper due diligence on them (perhaps) and failed to withdraw them (when presented with Neidle’s responses); and that their assertion of confidentiality/without prejudice was improper; that they sought to intimidate him through an implied threat (one of their letters I think says it would be “a serious matter” if he went ahead and published the correspondence) without legal foundation. The central argument lurking beneath most or all of these is that making baseless points, knowingly or recklessly, may be misleading and therefore professional misconduct as well as an abuse of the lawyer’s role.
The SRA’s warning notice on these matters (published after Dan began his crusade) suggests he has a point. This is not the same as saying his complaint will be upheld or that he is right, but we will hear about that in due course no doubt.
There is one matter which you say which I think bears some clarification. You say, “We do not know the extent to which Zahawi’s lawyers were acting under instruction – and although lawyers can advise, it is always the client who decides.” In the case of Farooqi [2013] EWCA Crim 1649 the Lord Chief opined that lawyers not their clients were responsible for strategy and forensic decisions and he specifically deprecated the practice of relying on instructions for deploying inappropriate strategies. The SRA have emphasised similar points in their guidance on balancing duties in litigation and the like.
Whether Zahawi’s lawyers have failed to be sufficiently independent and responsible in their approach is a matter we await to hear on; but it is really important I think for lawyers and others to understand that relying on instructions to do X or Y is not always a get out of jail free card.
The reason is, in part, that lawyers have a specific and central obligation to protect their independence, as well as to protect the rule of law and the administration of justice. This is what, in part, lurks behind the SRA’s interest in SLAPPs, and also the LSB’s recent interest in lawyers’ ethics.
Zahawi should resign or be sacked. Sunak knows this, he could have avoided the worst by acting swiftly. Instead he follows Johnson’s example of announcing an inquiry to try and kick it down the road. He’s only delaying the inevitable and as a result Zahawi’s mess is sticking to him too.
The post 2019 Conservative government is falling apart because of its obsession with defending its friends and benefactors regardless of the clear principles involved. Johnson’s demise dates back directly to his doomed defence of Owen Paterson. Truss self destructed on the altar of Tufton Street. How long can Sunak survive behaving like this? More to the point how long can the UK withstand the economic problems this ongoing political failure cannot address.
If s127 Communications Act 2003 (https://www.legislation.gov.uk/ukpga/2003/21/section/127) could be used to make life miserable for Paul (https://en.wikipedia.org/wiki/Twitter_joke_trial) , is it not, at least, arguable that the sending of the emails to Dan is equally (if not more so) “menacing” (s127(1))?. s127(2) deals with messages which the sender “knows to be false”. Might make a few “aggressive” lawyers stop and think?