The Solicitors Regulation Authority ("SRA") is the latest organisation to indicate that it is looking to curb the use of so-called Strategic Lawsuits Against Public Participation ("SLAPPs") in England & Wales. This proposed intervention follows the recently proposed interventions by both the Ministry of Justice and, over in Europe, the European Commission.
What is a SLAPP?
There is currently no legal or statutory definition of a SLAPP, 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.
Prior initiatives to curb the use of SLAPPs
As we noted earlier this year, the Ministry of Justice has published a Call for Evidence seeking stakeholder feedback on allegations that lawyers have used intimidatory and aggressive methods to respond to journalists, media and civil society organisations. The Call for Evidence was focused on establishing evidence about the use of SLAPPs in England & 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. The Ministry received 120 responses to the Call for Evidence and, in July this year, proposed a plan to address SLAPPs, which includes legislative reform to introduce a new early dismissal process to strike out SLAPPs at an earlier stage. In Europe, similar measures have been proposed by the European Commission.
The SRA's recent statements on SLAPPs
The SRA has previously hinted that it would also be looking into this area. Back in March 2022 it issued guidance on how solicitors should conduct themselves in disputes, and aspects of this guidance specifically related to allegations often raised by defendants in SLAPP suits, e.g. the pursuit of litigation for an improper purpose. The guidance itself was not explicitly directed towards addressing SLAPPs and has a broader scope than just complaints typically raised in the scope of SLAPP claims.
However the SRA has recently indicated that it is looking to introduce further guidance on certain "oppressive behaviours", and has expressly linked these to the growing focus on the use of SLAPPs in England & Wales:
- On 8 September, the Chief Executive of the SRA wrote a short article in the Times on the recent attention given to the use of SLAPPs by lawyers. In the article, the Chief Executive noted that the SRA would address concerns over tactics such as "making exaggerated claims of adverse consequences or sending letters using an intimidating or aggressive tone or language" including "labelling correspondence "private and confidential" and/or "without prejudice" to pressure individuals and organisations into withdrawing allegations".
- The article in the Times followed the publication of a letter that the SRA sent to tax policy campaigner Dan Neidle. The letter was published publicly by Mr Neidle in the context of his ongoing campaign to highlight aspects of the tax affairs of MP Nadhim Zahawi (the former Chancellor). The letter closely mirrored the article in the Times, stating that the SRA took "seriously the issue of SLAPPs and the various types of misconduct which may be perpetuated by those we regulate contrary to the public interest in open debate" and that it was "currently developing further specific guidance to the profession on the topic of SLAPPs … [to] help solicitors to comply with our existing standards and regulations and to use ["private and confidential" and / or "without prejudice"] labels only when appropriate".
The future discourse around SLAPPs
It is interesting to see these parallel efforts to address the use of SLAPPs in this jurisdiction. The Ministry's Call for Evidence indicates that it sees a potential way forward through changing existing court procedure. The SRA, in contrast, appears to be considering how to address the tactics utilised by some lawyers outside of the courtroom (e.g. in the use of correspondence). These two approaches (i.e. the "hard" approach by the Ministry and the "soft" approach by the SRA) may prove to be complementary.
Without intervention, SLAPPs have the potential to impinge on fundamental liberties of free speech and free press. Both the Ministry and the SRA appear to be very concerned by this threat, and are working to tackle both the use of SLAPPs in court, and also the use of certain litigation tactics outside of the courtroom. It remains to be seen whether the proposals can effectively be translated into the statute books, or the SRA's guidance, in a delicately balanced way to ensure that the reforms protect legitimate speech and reporting while also persevering the right of individual and corporate actors to legitimately protect their interests by seeking court-based interventions, or through inter partes correspondence.