On 20 July 2022 the Deputy Prime Minister, Dominic Raab, announced a package of measures designed to tackle the increased use of SLAPPs in the courts of England and Wales.

The package sets out high-level plans for (i) a new mechanism for the early dismissal of SLAPPs; and (ii) a new cost-capping regime to deter powerful actors from silencing critics through protracted and expensive litigation. The announcement follows a Call for Evidence issued in March 2022 which aimed to identify the emerging challenges and concerns presented by the purported appearance of SLAPP-related behaviours in the jurisdiction. The Call for Evidence was directed at all persons with an interest in SLAPPs including the legal profession, media, commercial organisations, and related interest groups.

This article sets out the background to SLAPPs, describes their key characteristics, and explains the legislative and procedural reform options now proposed by the Ministry of Justice ("MoJ") to tackle the problem that they represent.

What is a SLAAP?

At present, there is no legal or statutory definition of SLAPPs, but the term is most often used to describe a form of retaliatory litigation intended to deter freedom of expression. This type of litigation tends to be brought by powerful entities such as lobby groups, corporations, and state organs to target acts of public participation which are of social importance, all with a view to preventing information which is in the public interest from being published. SLAPPs are most routinely deployed against watchdogs, journalists, human rights defenders, and civil society organisations who have an active role in the protection of democracy and the rule of law. Their purpose is to censor, intimidate and silence critics by burdening them with the pressure and costs of litigation. The Call for Evidence was focused on establishing evidence about the use of SLAPPs in England and Wales with the object of, amongst other things, potentially reforming the substantive law of defamation as the primary vehicle for SLAPP cases in the jurisdiction and reforming court procedure, practice and processes.

A purported SLAPP in action: Kleptopia

On 27 August 2021, Eurasian Natural Resources Corporation Limited ("ENRC") issued a libel claim arising from the publication of a book entitled "Kleptopia: How Dirty Money is conquering the world" (the "Book") which is authored by Tom Burgis and published by HarperCollins Publishers Limited (the "Defendants").

ENRC contended that the two sections of the Book defamed it. Specifically, ENRC alleged that the natural and ordinary meaning of sections of the Book were that (i) ENRC and others murdered to protect business interests; (ii) that there were reasonable grounds to suspect that ENRC had an SFO investigator, Jon Mack, poisoned.

On 2 March 2022, Mr Justice Nicklin ruled that the claim must be dismissed as references to the murders and alleged poisoning would not be taken by an ordinary and reasonable reader to refer to ENRC. The decision is being appealed by ENRC.

Caroline Kean, a partner for the Defendant's solicitors' firm stated that the case against the Defendants was an egregious form of lawfare and described the claim as one of the most blatant examples of a strategic lawsuit against public participation that she has ever seen.

Eurasian Natural Resources Corporation Ltd v Tom Burgis [2022] EWHC 487 (QB) (2 March 2022) — to read the judgment in full, click here).

In addition, on 27 April 2022 the European Commission published a proposal for a Directive on protecting natural and legal persons who engage in public participation from manifestly unfounded or abusive court proceedings ("EU Model Directive"). The EU Model Directive aims to protect SLAPP recipients by developing a common EU-wide understanding of the phenomenon and by introducing procedural safeguards which provide: (i) courts with effective means to deal with SLAPPs; and (ii) SLAPP recipients with measures to defend themselves. The Directive is intended to apply to any type of legal claim of a civil or commercial nature with cross-border implications irrespective of the court or tribunal (including civil claims brought in criminal proceedings). The proposed safeguarding measures are intended to apply in all EU cross-border cases. Protecting EU citizens and civil society from SLAPPs initiated in third countries is another goal of the proposal. Alongside the EU Model Directive, the European Commission has also adopted a Recommendation to member states on SLAPPs encouraging them to align national legal frameworks with the safeguards in the EU Model Directive, thereby ensuring that they have wide-reaching domestic application and that the safeguards also apply to non-civil matters.

For more information on the European Commission's proposal, see here.

Ministry of Justice Response to the Call for Evidence

On 20 July 2022 the MoJ published its response to the Call for Evidence (the "MoJ Response"). The MoJ received 120 responses from interested parties and in summary concluded that there was robust evidence of the existence of SLAPPs and associated behaviours in England and Wales. In particular, the MoJ described evidence of intimidatory and aggressive methods used by lawyers in response to fact-checking or to 'right-to-reply' requests from journalists, media and civil society organisations, and extensive evidence of intimidatory and oppressive tactics deployed against the media and other interest groups following public participation and the publication of information in the public interest. The evidence showed that the key emerging features of SLAPPs are the targeting of individuals, the clustering of claims and the bringing of claims in multiple jurisdictions.

The MoJ Response also details the minority view of a few respondents - mainly law firms and barristers - who challenged the proposition that SLAPPs represented a real and serious issue in the jurisdiction. Their view was that, to the extent that spurious or meritless claims arise, legislative and procedural mechanisms already exist to dispose of those claims summarily. Nevertheless, the MoJ concluded that the case was made for reform to address particular challenges presented by the appearance of SLAPPs and related behaviours.

MoJ Plans for Reform

Most respondents to the Call for Evidence were fully supportive of the proposition that there was a need to settle a legal or statutory definition of SLAPPs to ensure that they could be identified and easily delineated from cases brought by individuals who have a legitimate interest in defending their reputation. The MoJ concluded that identifying an exact definition, at an early stage, would be difficult and would create a risk of loopholes which would be exploited by claimants who bring SLAPPs. As an alternative, the MoJ has committed to pursue legislative reform to introduce a new statutory early dismissal process to strike out SLAPPs at the earliest opportunity and to avoid protracted and expensive litigation. It is proposed that legislative reforms will describe a new three-part test to identify SLAPPs which are subject to the early dismissal process:

  1. The early dismissal must be in the public interest: the precise meaning of "public interest" will need to be explored in the primary legislation but the idea appears to be based, at least in part, on the EU Model Directive that advocates for a public interest approach. It is also likely that the public interest test will be consistent with the guidance on the public interest test prepared pursuant to the Freedom of Information Act 2000. Interestingly, the MoJ also intend to explore whether Early Neutral Evaluation – which is procedurally already available under CPR 3.1(2)(B) – might be valuable in determining what is in the public interest at an early stage.
  2. The claim must have some features of an abuse of process: the legislation will set out an illustrative, non-exhaustive list of factors for the courts to determine whether a case should be classified as a SLAPP. At present, there is already scope under CPR 3.4 and the common law to strike-out a party's case where there is an abuse of process. For example, in respect of defamation proceedings, the common law already requires a court to stop, as an abuse of process, defamation proceedings that serve no legitimate purpose (Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75). It is not yet clear how these new factors will function alongside existing procedural and common law rules.
  3. A merit test: there must be insufficient evidence to warrant further judicial consideration (for example, the legislation might elect to deploy a "no realistic prospect of success" test).

In addition to pursuing legislative reform, the MoJ has also committed to pursue procedural reform by way of a new formal costs protections scheme which is to apply to SLAPPs (as identified by the new legislative criteria). The Call for Evidence identified cost exposure as the single greatest factor which overwhelms and intimidates defendants in SLAPPs. The MoJ has put forward a proposal to develop a cost protection scheme modelled on the Environmental Costs Protection Regime which currently exists in environmental judicial reviews under the Aarhus Convention. It is intended that an equivalent regime is developed to shield SLAPP defendants from excessive cost risk and to directly tackle the pervasive issue in SLAPPs of inequality of arms. The MoJ has suggested that the cost protection regime could be implemented as procedural reform under secondary legislation (albeit, whilst referring to the three-part test which is introduced by primary legislation). It is understood that the MoJ will work with the Civil Procedure Rule Committee to identify how best to develop these reforms within the context of the existing procedural rules.

The MoJ considered, but ultimately rejected, the need to reform the substantive law of defamation. There was insufficient evidence to suggest that reform to the law of defamation would have the desired effect (and, indeed, the Call for Evidence demonstrated that SLAPPs are also pursued in other fields of law, including data protection, trademark, and privacy claims). The first two stages of the early dismissal process constitute key components of identifying SLAPPs whereas the third stage constitutes a need to balance the claimant's right to a fair hearing of their complaint, particularly in circumstances where they have not fully presented the evidence to the relevant court or tribunal. The MoJ has proposed that where all three elements of the test are satisfied, the claim would be dismissed summarily, whereas a claim only satisfying the first two – i.e. with some evidence of merit - could still proceed provided that it is subject to special measures (e.g. the cost capping regime).

What is the Environmental Cost Protection Regime?

The Government initially introduced a fixed costs environmental cost-protection regime into CPR Part 45 on 1 April 2013 to discharge of its obligations under the Aarhus Convention and the Public Participation Directive (2003/35/EC) to ensure that the costs of bringing certain environmental challenges are not "prohibitively expensive."

The rules initially capped adverse costs that a court could order as follows:

(a) for an unsuccessful claimant, liability to other parties was capped at £5,000 for individuals and £10,000 for organisations; and

(b) for an unsuccessful defendant, liability to the claimant was capped at £35,000.

These default cost caps were subsequently amended to allow for variations upwards and downwards according to financial means.

Conclusion

The MoJ's Call for Evidence has clearly identified that SLAPPs represent a growing issue in the jurisdiction which has the potential to – without any intervention - impinge on fundamental liberties of free speech and free press. It is clear that the MoJ is taking this concern extremely seriously and is working expeditiously to implement measures to tackle SLAPPs and related behaviours. The political will for change is, at least in part, influenced by the Russian-Ukraine conflict and the desire to offer effective mechanisms to dispose of baseless legal claims made by oligarchs and state-controlled entities connected to the Putin regime. That said, it remains to be seen whether the proposals can effectively be translated into the statute books in a delicately balanced way to ensure that the reforms, on the one hand, don't stifle legitimate reporting, but on the other hand, don't prevent individual and corporate actors from legitimately protecting their interests by seeking court-based interventions to hold a party to account.