SLAPP down

On 31 May 2024, the Solicitors Regulation Authority (SRA) updated its warning notice (WN) on strategic litigation against public participation (SLAPPs), following the publication of its second thematic review on SLAPPs the month before. The SRA does not maintain an archive of prior WNs, so the revised SLAPPs WN needs a fresh read. In this article we will explore what SLAPPs are, why the SRA is concerned, what its expectations are, and practical steps you can take in your firm. 

What are SLAPPs?

There is no definitive definition of a SLAPP, but the term is commonly used to describe an alleged misuse of the legal system to stifle legitimate freedom of expression and discourage scrutiny of matters in the public interest. The government’s policy paper on SLAPPs states that a further characteristic is that such lawsuits have the “intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system”. 

The key aim of a SLAPP is to prevent publication on matters of public importance, such as academic research, whistleblowing, campaigning or investigative journalism. Claims of defamation or invasion of privacy are the cause of most actions associated with SLAPPs, but other causes of action (such as breach of confidence) could also be used for this purpose. 

SRA concerns

SLAPPs have been enshrined in law since the introduction of the Economic Crime and Corporate Transparency Act 2023 (the act), which defines the characteristics of a SLAPP in the context of economic crime. 

The act provides for the courts to strike out claims where the court has determined that the claim is a SLAPP, and that the claimant has failed to show they are more likely than not to succeed at trial and to make cost provisions to protect defendants in SLAPP cases. Where cases are struck out for being a SLAPP, an SRA regulatory investigation will not automatically follow (though the SRA may consider it); likewise, a case doesn’t have to be struck out for being a SLAPP for the SRA to investigate. 

Section 195 of the act defines a claim as a SLAPP “if:

(a) the claimant’s behaviour in relation to the matters complained of in the claim has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech,

(b) any of the information that is or would be disclosed by the exercise of that right has to do with economic crime,

(c) any part of that disclosure is or would be made for a purpose related to the public interest in combating economic crime, and

(d) any of the behaviour of the claimant in relation to the matters complained of in the claim is intended to cause the defendant:

(i) harassment, alarm or distress,

(ii) expense, or

(iii) any other harm or inconvenience, beyond that ordinarily encountered in the course of properly conducted litigation.” 

Of course, this definition relates solely to economic crime. 

In its WN, the SRA recognises “the need for a free press in a free society” and acknowledges that those it regulates (we will call them lawyers for ease) play a critical role in protecting and defending the legal rights of those they represent (including the right to privacy and protecting their reputation). However, “proceedings must be pursued properly, and that means making sure that representing your client’s interests does not override your duties to the courts and wider regulatory obligations, which act to protect the public interest”. 

It also explains that its principles of upholding the rule of law and proper administration of justice, and acting in a way that upholds public trust and confidence, must take precedence over a client’s interests. Indeed, the introduction to the SRA Principles sets out that, where principles conflict, the principle that safeguards the wider public interest takes precedence. 

Additionally, legal representation must not become intimidatory, oppressive or abusive, and the SRA has produced guidance on conduct in disputes.  

What does the SRA expect?

First and foremost, all solicitors must comply with the SRA Principles and relevant aspects of the Code of Conduct for Solicitors, RELs and RFLs. 

In its WN, the SRA sets out its further expectations as follows.

Undertaking the work

The SRA says that lawyers instructed to undertake defamation or privacy work should recognise it as a complex area of law, and make sure they have the relevant competency to undertake the work. The SRA expects lawyers to be able to identify causes of action that could be a SLAPP or in any other way abusive, and decline to act in those instances. It’s a good idea, then, to document the decision-making that led to taking on that work. The SRA also expects lawyers to advise clients against pursuing actions that could constitute a SLAPP, and while there is no conduct rule that requires lawyers to do so, one might argue that to be compliant with the SRA Principles, a lawyer should provide this advice. 

Conduct of the case

The SRA outlines behaviours commonly associated with SLAPPs, which may also result in regulatory action. These are:  

Making claims or assertions without merit

This might include threatening or advancing a meritless claim or claiming consequences or remedies that are exaggerated, or that would not be available in the matter, such as fines or imprisonment. The SRA says it recognises that there should be room for reasonable argument based on case law and arguable facts. One wonders if the SRA has the expertise to make such a judgement, but perhaps it will only act in situations where the behaviour is an obvious breach. Lawyers are advised in the WN to obtain proper instructions and scrutinise those instructions, as set out in Haddad v Rostamani & Others [2024] EWHC 448 (Ch) (and quoted in the WN) “a lawyer does not owe the court or another party to the case any duty to investigate the facts, or to ascertain the truth, before advancing the factual case on behalf of their client. That is so even if they have doubts about the likelihood that what their client tells them is true.” 

The regulator expects lawyers to take sufficient instructions and steps to be satisfied that the claim is properly arguable, to consider the prospects of a proposed course of action and advise clients accordingly. It further sets out that “the risk of regulatory action in such cases is high if such matters operate to exclude public participation and scrutiny”. In relation to defamation, factors to consider are the truth of the allegations, if the publication comprises only honest opinion, the intended audience of the publication and so on.

Bringing cases in an oppressive manner

Where a case is arguable but is presented in an oppressive manner, the SRA may still investigate. The WN sets out that this can include conduct such as sending unduly aggressive or threatening correspondence, where the content or tone is intended or likely to have the outcome of intimidating recipients into not asserting or defending their rights. 

It is clear to see how such correspondence might influence a litigant in person, but is it likely to have the same effect on a lawyer? According to the SRA, correspondence that is disproportionate in length, volume of material or overly repetitious may also be considered oppressive. Putting forward a vague case or a case that is unsubstantiated, which risks taking advantage of a lack of legal knowledge, may also be deemed oppressive, as it doesn’t allow a party the opportunity to advance or defend their position. 

Finally, seeking inappropriate or excessive disclosure, or pursuing unnecessary or onerous procedural applications intended to waste time or costs, may also be oppressive conduct. The SRA warns against clients who are ‘solicitor shopping’ by appearing to move from one lawyer to the next, as this may indicate that they don’t want to take the legal advice given to them.  

Improper purposes

The SRA may consider it inappropriate where claims are brought for an improper purpose, such as threatening litigation for reasons that are not connected to resolving a genuine dispute or advancing legal rights. It says in the WN that it has seen several complaints where it is clear there was no intention to pursue a claim, but the threat might be used to deter others from raising similar concerns. The SRA comments that this “relates to litigation being used for a satellite and improper purpose”. Lawyers must therefore explore client motives and intention for pursuing a claim. 

Other behaviours

The SRA sets out a series of other behaviours that it considers to be inappropriate, such as providing inadequate time for the ‘right to reply’ before publication, so that the recipient can properly consider their position and take legal advice (as when acting for a journalist or media outlet). The SRA acknowledges that, in such cases, timescales will be short, but offers no guidance on what would (or wouldn’t) be deemed appropriate (which is correct as it is fact-sensitive, but it is unclear how the SRA will judge such an allegation). When replying to a ‘right to reply’ process on behalf of a client, the SRA says lawyers should not be inappropriately lengthy or legalistic, or delay or complicate matters. When dealing with post-publication matters, time is very likely to be tight, but lawyers should carefully consider the prospects of a proposed course of action and have advised clients appropriately. 

Labelling correspondence

In the WN, the SRA warns against misleading recipients of correspondence. It says this can happen by labelling or marking correspondence ‘not for publication’, ‘strictly private and confidential’ and/or ‘without prejudice’ when the conditions for using those terms are not fulfilled. Further correspondence should not be marked as a ‘legal notice’ or similar to give the impression it is from a court of legal authority. The SRA expects lawyers “to use labels in good faith and not to exaggerate or mis-state their effect”.

The WN sees mislabelling as problematic because it can have the effect of causing confusion and inhibit proper disclosure. Again, while this is foreseeable when writing to a litigant in person, is it foreseeable lawyer to lawyer? The SRA cautions about the blanket use of ‘without prejudice’, which should only be used when trying to compromise a dispute and ‘private and confidential’ when, it says, this may not be appropriate. Some might consider this WN to be a step in the right direction, but it remains to be seen if the SRA has the requisite knowledge (and commercial experience) to determine some of the issues it warns against.

Steps to take

Whatever your opinion on the WN, all firms with lawyers who conduct litigation and/or defamation and provide reputation advice must take appropriate steps. 

Training

Prior thematic reviews have been critical of firms for failing to train their lawyers on appropriate conduct in disputes and SLAPPs, and found SRA reporting obligations were not well understood. Make sure your lawyers are trained on these topics, if you haven’t already done so. 

Supervision and guidance

Every firm should have a solid supervision structure, including a process for lawyers to discuss with a colleague or supervisor whether a client’s instructions amount to a SLAPP, if a client has an arguable case, and to consider correspondence from opposing numbers to establish whether a reporting obligation has arisen.

Maintain a professional tone

All lawyers need to be trained in maintaining a professional tone of voice. Receiving overtly aggressive correspondence is unpleasant (and unnecessary), and it can be easy to respond in the same way. For further guidance on the importance of maintaining a professional voice, , see the SRA’s guidance on conduct in disputes (tinyurl.com/yckd9paw).

Have a policy

Firms may wish to implement a policy that sets out what is and isn’t appropriate and how matters should be conducted. If there is an SRA investigation, having a clear policy might provide some useful mitigation.