Factually Ambiguous, Legally Delicate
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Written by Elaine Obika
22nd january 2026
The recent judgement in Austin Hurst v Solicitors Regulation Authority [2026] EWHC 85 (Admin) highlights the tension between procedural formalism and substantive justification in the UK’s regulatory framework. While a strict adherence to the letter of the law provides certainty, an over reliance on technicality at the expense of context may ultimately frustrate the spirit of the regulations the system was designed to enforce. Nevertheless, it is arguable that the Administrative Court’s decision was not a mandate for a divergent outcome but rather a demand for a more robust analytical architecture in the tribunal’s decision making process.
The real message in this case appears to be that a demand for a retraction can be a settlement or suppression and the “without prejudice" (hereinafter WP) label can be viewed as proper or improper. Also, motive can matter, but only after the appropriate legal tests are applied.
The central inquiry is whether the determination possessed the substantive justification for it to be upheld? When evaluated through an objective lens, does the email exhibit the requisite indica of a genuine settlement negotiation? Does a demand for retraction count as a “genuine” attempt to settle?
Within the framework of defamation practice, a demand for retraction frequently constitutes an integral component of a bona fide settlement endeavour, consistent with Offer of Amends regime under ss 2-4 Defamation Act 1996. Standardised pre-action conduct – exemplified by proposals to forego litigation in exchange for a formal apology or correction – is explicitly contemplated by the Pre-action Protocol for Media and Communication Claims (para 1.4). Consequently, the inclusion of a demand for retraction does not ipso facto render a WP designation inapposite. This point of contention necessitated the judicial reasoning in Austin Hurst v Solicitors Regulation Authority where the Court emphasised the requirement for a clear articulation of why the communication failed to satisfy the criteria for a genuine settlement attempt at paragraph [79].
Based on the publicly documented contents, the email comprised a peremptory demand, an adversarial threat and a prescriptive deadline, while conspicuously omitting any proposed terms of compromise. When viewed objectively, the elements characterize the communication as a formal demand for compliance under the aegis of threatened litigation rather than a bona fide negotiation. Consequently, this represents a compelling argument that the email lacked the requisite settlement intent to attract privilege.
Was the “WP” label applicable to the underlying substance of the communication?
Under the objective test: If the email is not a settlement communication, then the WP designation is automatically improper, regardless of motive. So, the key question becomes: Did the email serve as a negotiation protocol? If not, the WP label is misleading.
The tone was reportedly: urgent, pressuring and implicitly threatening. But tone alone does not decide the objective test. A settlement offer can be robust. A coercive letter can still be a settlement attempt. Tone is secondary.
It is necessary to examine how the objective test applies to this case.
According to the lexical analysis of the communications circulated in the public sphere, arguments that it was a settlement attempt (objective test satisfied) rely on the demanding of a retraction in the email, offering a way to avoid litigation. As already stated, the WP label is often used in pre action defamation correspondence.
Arguments that it was not a settlement attempt (**objective test failed**) rely on the absence of an offer of compromise. No negotiation. No terms beyond “retract or be sued.” The WP label appeared to be used to deter publication, not to facilitate negotiation. The substance of the correspondence is more closely aligned with a formal admonition than a bona fide settlement proposal.
The ambiguity arising from these two substantively grounded constructions necessitated a higher degree of justificatory rigour. Consequently, it was ruled that the Tribunal had a duty to elucidate its reasoning for its ultimate finding.
The available evidence indicates that the conduct may have appeared to be coercive, but the motive was to reach a settlement.” A tenacious or robust mode of expression is often a component of adversarial negotiation and does not, in the absence of further evidence, meet the threshold for professional misconduct. Under the objective test, the presence of coercive elements does not ipso facto vitiate the status of a communication as a genuine settlement endeavour. Also, the mere presence of a settlement motive does not ensure a valid WP classification; the substance of the communication must objectively align with the criteria for compromise. (see Jones v Tracey & Ors (Re costs)[2023] EWHC 2256 (Ch)).
The initial determination was amenable to judicial review owing to its procedural and substantive deficiencies, notably the omission of the use of objective test.
The dearth of conciliatory substance within the email strongly suggests that the designation was inapposite. Conversely, the argument reverts to a position of neutrality when one considers that such demands are standardised features within the statutory regime of defamation practice. The competing arguments regarding the WP status of the correspondence appear to be in analytical equipoise.
Which of the competing interpretations carries the greater evidentiary weight when subjected to an objective appraisal?
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