Philip: SLAPPs pose a significant threat
The Solicitors Regulation Authority (SRA) is now investigating 29 cases where law firms might be involved in SLAPPs, it revealed yesterday as it issued a warning notice over such abusive litigation.
The notice includes telling solicitors to stop using terms in correspondence such as ‘private and confidential’ and ‘without prejudice’ unless there is a legal reason to do so.
The SRA has also issued guidance for those who might be the target of SLAPPS about what to look out for and how to report any potential misconduct.
SLAPPs, which stands for strategic lawsuits against public participation, are abusive pieces of litigation aimed at silencing legitimate critics. The focus on their use by Russian oligarchs in particular has intensified since the Ukraine invasion.
The number of cases the regulator is investigating has been on the rise, with the regulator actively seeking them out – it has been in contact with MPs who have raised concerns in Parliament and worked with the Foreign Policy Centre and the Coalition Against SLAPPs in Europe to request details of potential cases.
As we first reported in June, the SRA is also looking for statutory designation as a ‘prescribed person’ under the Public Interest Disclosure Act, which would allow law firm staff to blow the whistle on their employers to it and enjoy the full protection they would have received had they done so internally.
It said it has now had discussions about this with the Department for Business, Energy and Industrial Strategy.
In March, the Ministry of Justice described SLAPPs as “a behavioural issue requiring regulatory interventions” against lawyers as much as using legislation.
The SRA issued guidance on conduct in disputes the same month, referencing SLAPPs for the first time. It has followed this up with the warning notice.
This recognised that lawyers could have a legitimate role in encouraging journalists and others to ensure that what they published was legal and accurate, but said proceedings must be pursued properly.
This meant “making sure that representing your client’s interests does not override wider public interest obligations and duties to the courts”.
The notice laid out red flags commonly associated with SLAPPs, such as being instructed to act solely in a public relations capacity, “for example by responding to pre-publication correspondence with journalists about a story which is true and does not relate to private information”.
Another was the client asking that the claim be targeted only against individuals where other corporate defendants were more appropriate.
Behaviours likely to result in regulatory action included threatening or advancing meritless claims – also when there was a clear defence – and claiming remedies to which the client would not be entitled on the facts, “such as imprisonment upon a civil claim, or specific or exaggerated costs consequences”.
The notice also cautioned against “unduly aggressive and intimidating threats, such as threats which are intended to intimidate recipients into not seeking their own legal advice”, sending “an excessive number of letters”, and pursuing “unnecessary and onerous procedural applications”
The guidance told solicitors not to label correspondence ‘not for publication’, ‘strictly private and confidential’ and/or ‘without prejudice’ unless there was a legitimate or legal reason for doing so.
It first emerged in August that the SRA would spell this out after receiving a request from specialist tax solicitor Dan Neidle, following letters sent by lawyers for then Chancellor Nadeem Zahawi that accused him of libel.
The notice said there may be legitimate reasons for using such terms – for instance, if an individual needed to disclose private and confidential information in order to disprove facts intended for publication – while recipients might also properly be warned as to the legal risks of publishing such as aggravating any damages payable.
“However, you should carefully consider what proper reasons you have for labelling correspondence in these ways, and whether further explanation is required where the recipient might be vulnerable or uninformed.
“Such markings cannot unilaterally impose a duty of privacy or confidentiality where one does not already exist.
“Clients should be advised of this and warned of the risks that a recipient might properly publish correspondence which is not subject to a pre-existing duty of confidence or privacy.”
If the client was “not content to bear this risk”, they could be advised to seek an interim non-disclosure order from the court.
The SRA stressed: “Where a recipient indicates they wish to publish correspondence they have received, they must not be misled as to the consequences. Unless there is a specific legal reason which prevents this, recipients of legal letters should be able to generally disclose that they have received them.
“Equally, correspondence should not be marked as ‘without prejudice’ if that correspondence does not fulfil the conditions for that label. You should consider whether the communication represents a genuine attempt to compromise an existing dispute.”
SRA chief executive Paul Philip said: “SLAPPs pose a significant threat to the rule of law, free speech and a free press. The public rightly expect that solicitors should act with integrity. They should not be misusing litigation to prevent legitimate scrutiny from journalists, academics and campaigners.”
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