A 'shot across the bows' warning letter can backfire - Kirsteen MacDonald

It is not uncommon for lawyers to issue a ‘shot across the bows’ warning letter threatening legal action against a journalist or press organisation that is seeking to publish a false or misleading story about a client.

In many situations, this is a justifiable tactic, which can prevent unwarranted negative publicity for a client from inaccurate reporting. The recent actions of some prominent (and rather powerful) individuals in UK society have, however, shown that threats of defamation are being used to shut down legitimate reporting of stories of clear public interest.

This concern is in the spotlight following the actions of entrepreneur and ex-Conservative peer Michelle Mone and the ex-Chancellor Nadhim Zahawi. Both instructed lawyers to issue ‘shot across the bows’ letters in an attempt to stop press reports about their respective business and tax affairs.

Most recently, Michelle Mone issued threats of defamation to try to stop an ongoing press investigation into her links to PPE Medpro, a company which racked up around £60m in profits supplying protective wear to the NHS during the Covid pandemic.

​Nadim Zahawi’s lawyers threatened court proceedings against a UK journalist for reporting that the MP’s tax affairs were being investigated by HMRC, only for it to later emerge that he was under investigation (Picture: Leon Neal/Getty Images)

Following reports in a UK daily newspaper that Mone and her husband, Doug Barrowman, were connected to the company, her lawyers issued letters warning journalists of the legal consequences if they continued to report ‘inaccurate,’ ‘misleading,’ and ‘defamatory’ allegations about their client. One letter said she had “no involvement in the business”; another claimed the journalist’s investigation was based on “entirely malevolent” motives.

Mone’s position was later exposed in an interview with BBC’s Laura Kuenssberg when she admitted that she was indeed connected to PPE Medpro and stood to benefit from its £200m of contracts. The admission also put her legal advisors in the spotlight. One issued an apology for his role in misleading the media.

Meanwhile, in 2022 Nadim Zahawi’s lawyers threatened court proceedings against another UK journalist for reporting that the MP’s tax affairs were being investigated by HMRC, only for it to later emerge that he was under investigation. Not only was Mr Zahawi sacked from the Cabinet, forced to apologise and hit with a £1 million HMRC settlement, a formal complaint about his lawyer’s behaviour was also sent to the Solicitors Regulatory Authority by the journalist threatened with defamation proceedings.

The ‘shot across the bows’ letters by Mone’s and Zahawi’s lawyers contained misleading information which seriously compounded the reputational consequences for their clients. Mone and her husband are now under even more intense media spotlight, partly due to their attempts to silence the journalists with threats of legal action. This has also directly impacted on the lawyers, who have been named in the press and questioned about their actions.

​Kirsteen MacDonald, founder and director of Mac Media Law

It is for the wider legal profession to carefully consider the ethics of acting on client’s instructions without firstly carrying out thorough due diligence on the substance of any press allegations before issuing letters threatening defamation proceedings.

While lawyers play a key, front-line role in protecting clients from false and damaging press exposure, it is equally important that public confidence in the law is upheld. As lawyers we owe a duty to our clients, the courts and the public. If we are to avoid damage to our own reputations and maintain public trust, it is important we do not inadvertently allow the most powerful in society to use threats of legal action to escape scrutiny where it is warranted.

Kirsteen MacDonald, founder and director of Mac Media Law