On the day of the 2nd UK Anti-SLAPP conference, the SRA has issued its latest Warning Notice, this time on SLAPPs.
Strategic lawsuits against public participation (SLAPPs) are legal actions that are taken not necessarily with the goal of winning in court, but which instead aim to intimidate, to induce fear, to tire and consume the financial and psychological resources of the target.
- Quote from the Foreign Policy Centre.
This latest SRA Warning Notice is widely regarded as an important piece of the jigsaw in the fight against this particular type of lawfare, where freedom of expression is quashed through the use of abusive litigation, often brought by wealthy individuals against journalists, activists, authors, media outlets and think-tanks and the like, and is designed to make them ‘back off’ whatever issue it is they were looking to publish in respect of. This type of litigation undermines the fairness that it intrinsic to, and essential in, any developed legal system and offends and undermines the rule of law. However, it is often difficult to easily distinguish SLAPPs from other types of claims that might have similar features which clearly creates risks for those acting in those cases.
What is required under the notice?
The requirement of the notice, which is particularly targeted at claimant lawyers (most often in claims of defamation or invasion of privacy), is clear: solicitors, RELs and RFLs must be able to identify* proposed courses of action that could be defined as SLAPP (or is otherwise abusive) and decline to act (in that way).
What is a SLAPP?
*Identifying a SLAPP will not always be a straightforward issue. The Warning Notice, rightly, does not seek to provide a finite definition, instead, as the Model Anti-SLAPP law does (introduced into Parliament last week), it uses indicators, flags or hallmarks that lawyers should be able to identify, including:
- The target publication is a matter of public importance
- Instructions to act in a PR capacity only
- Instructions to bring the claim:
- against individuals (when corporate defendants are more appropriate)
- in multiple jurisdictions
- in jurisdictions unconnected to the parties/events
In such cases, the following conduct is seen as part and parcel of behaviour associated with SLAPPs and the SRA will likely take enforcement action in situations where a solicitor:
- pursues such litigation when is should be clear that the claim and the associated defence are meritless. This is crucial and proper steps must be taken to ascertain that a claim is properly arguable before it is advanced.
- sends an excessive number of letters
- makes claims for remedies that their client is not entitled to
- makes unduly aggressive threats
- sends correspondence with (unilateral, meaningless) restrictive labels (e.g. not for publication, WP, private and confidential)
- wastes the courts time through the use of unnecessary procedural applications
The Warning Notice references the government definition of a SLAPP in the Model Anti-SLAPP law (as a case that might therefore merit early dismissal), which might be a useful (albeit over-simplistic) test to consider. Does the case:
- relate to the public interest
- have some features of an abuse of process
- have insufficient evidence to warrant further judicial consideration.
The SRA makes plain that it will not require all three of these features to be present for it to take action against abusive litigation.
What to expect next
The catalyst for this Warning Notice was the UK Anti-SLAPP coalition’s work in this field, which, along with its Model Anti-SLAPP law, is leading change in this area. Other countries, for example the USA and the EU, are much further ahead in taking effective measures to stop this sort of litigation. Further change may be slow: only yesterday a proposed amendment to the Economic Crime and Corporate Transparency Bill to include anti SLAPP measures was rejected.
Managers and owners of law firms should ensure this Warning Notice is seen by all and particularly those in litigation teams. This notice also needs to be considered alongside the SRA’s Guidance issued in March 2022 in relation to the conduct of disputes more generally. As with previous warning notices it is likely that it will be followed by enforcement action for breach of the notice.