A guest post by Iain Miller, partner, and Lucy Williams, legal director, in the legal services regulatory team at London firm Kingsley Napley
Miller:
It’s been over a year since the government launched its call for evidence on SLAPPs (strategic lawsuits against public participation), seeking the views of the public on introducing legislation to address this perceived problem.
A real and present danger?
The government’s response to the call for evidence, published in July, used strong language indicating that this type of abusive litigation was a very real and present danger:
This included phrases such as “a growing threat to… fundamental liberties that are the lifeblood of our democracy”, “baseless legal claims are being made by oligarchs and corporations who bankroll the Putin regime, exploiting our laws and jurisdiction to muzzle free speech”, “chilling effect… intimidated into abandoning critical stories in the face of crippling legal costs”, and “a recognisable and pernicious form of litigation which seems to silence, intimidate and harass opponents”.
Given these concerns, it’s unsurprising that the government stated that it “intends to pursue legislative reform at the earliest opportunity”. However, some nine months later, we appear to be no closer to new legislation. Where does this delay leave litigation lawyers?
Did you miss it?
In case you missed it, a SLAPP is a type of abusive litigation whereby a solicitor or law firm brings or threatens proceedings which have no real merit, to harass or intimidate somebody and thereby discourage them from publicising something on a topic of public importance.
The most obvious example would be bringing or threatening a baseless defamation claim where the real intention was to stifle publication or investigation of a matter of public interest.
This has become a hot topic following the conflict in Ukraine, with the suggestion that solicitors have been making meritless claims on behalf of oligarchs in order to silence discourse about corruption or money laundering.
The Solicitors Regulation Authority (SRA) published a thematic review on conduct in disputes in February, in which it stated that, prior to the conflict in Ukraine, it received very few reports about SLAPPs, but it has seen a significant increase since. At that time, it had around 40 open investigations into concerns around SLAPPs.
(Although it’s hard to say whether there has been a genuine increase in this type of behaviour, or whether it’s simply being reported more because of the press attention and resulting awareness.)
The SRA steps into the breach
In November, with the government dragging its heels, the SRA stepped into the breach and published a warning notice on SLAPPs.
The SRA referred to the three-part test proposed by the government to identify a SLAPP claim that would be subject to early dismissal (under new legislation), that the case:
- relates to an issue in the public interest;
- has some features of an abuse of process;
- has insufficient evidence of merit to warrant further judicial consideration.
The SRA said that, regardless of whether or not a case fulfils all three limbs of this test, it can take action in respect of abusive conduct.
While the focus on this particular type of abusive litigation is relatively recent, the ethical principle behind it is certainly not.
One of the founding principles of legal regulation of solicitors and law firms in England and Wales is that, where there is a conflict between a client’s interests and the wider public interest, such as the rule of law, the latter (public-facing principle) must take priority.
The vast majority of lawyers are well aware of this and would not risk sacrificing their career and reputation at the altar of their client’s wishes.
In a press release on abusive litigation in February, SRA chief executive Paul Philip recognised that most solicitors took their duties, such as the need to act with integrity and not abuse the litigation process, seriously.
However, he said that their thematic review on conduct in disputes “shows that some firms need to do more. Firms need to be sharply focused on meeting the high standards we all expect. We will be carrying out a further review of firms in this area, while redoubling our efforts to make sure our message is getting through.”
Lucy Williams
Where is the line?
The SRA said that it expects solicitors and law firms “to be able to identify proposed courses of action (including pre-action) that could be defined as SLAPPs, or are otherwise abusive, and decline to act in this way”.
It continued: “We expect you to advise clients against pursuing a course which amounts to abusive conduct, including making any threats in correspondence which are unjustified or illegal.”
As the proposed three-part test recognises, the fact that a claimant solicitor is trying to stop publication of a matter which may be in the public interest is not, by itself, illegitimate. It is only where there is also some abuse of process and/or insufficient merit that a claim may be dismissed as a SLAPP.
Applying this, a litigation lawyer may think that, provided they have an arguable case, they can bring or threaten a lawsuit without this being characterised as a SLAPP.
At first blush, this appears fairly straightforward: as stated above, most solicitors take their duties seriously and would not bring a case which they know has absolutely no merit.
However, it is unclear how far solicitors are required to go to test the merits of their client’s case. This is particularly troublesome given that SLAPPs are most likely to arise in defamation cases, which have very tight deadlines and are often hard to prove.
In order for a defamation claim to be successful, a claimant must prove that a defamatory statement has been made and that this caused or is likely to cause ‘serious harm’ to the claimant. The latter requirement is complex and can be difficult to prove.
To what extent would a lawyer need to scrutinise the real or potential harm to a claimant before bringing or threatening an action?
Time is invariably of the essence in such cases, as the press typically provide very short notice before publishing a story, and it may be impossible for a claimant solicitor to conduct extensive enquiries to satisfy themselves of the merits of their client’s case in the available time.
The SRA’s warning notice sets out some red flags and behaviours which are commonly associated with SLAPPs, but it does not offer any practical guidance on the level of due diligence it would expect.
Claimant solicitors are left between a rock and a hard place: if they take their time to carry out a detailed analysis of the merits of their client’s case before even threatening litigation, they may miss the window of opportunity to prevent publication and therefore be accused of not acting in their client’s best interests.
On the other hand, if they bring or threaten proceedings after conducting limited enquiries, they run the risk of being reported to their regulator for bringing a SLAPP.
At present, the boundaries will simply depend on an individual firm’s risk appetite.
Defamation is a unique area of litigation in that it not only impacts the claimant and defendant, but also the wider public. If the courts are too heavy-handed in silencing criticism, this has an impact on others who may be considering whether to whistle-blow or speak out on an issue of public importance.
Conversely, if there is a perception that there is a free-for-all in the publication of personally damaging information, this undermines the credibility of the press and the rights of individuals to privacy.
Given the impact both on the legal profession and the public at large, there is a real need for clear legislation, and soon. It is not a satisfactory position for the SRA to be left to legislate in an area that the government ought to be.
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