The SRA’s Warning Notice on Strategic Lawsuits against Public Participations (SLAPPS) follows reports that solicitors are facilitating the suppression of free speech by bringing meritless claims on behalf of wealthy clients to intimidate journalists/the wider media from publishing stories on matters of public interest. The Warning Notice makes clear that acting in this way would breach a number of the SRA Principles and Rules in the Code of Conduct for both Individuals and Firms.
In this article, Andrew Pavlovic, professional discipline and regulatory partner, summarises the Warning Notices and considers the issues arising from the SRA’s intervention into this area, before setting out how firms should react to the warning notice.
On 28 November 2022 the SRA published a Warning Notice on Strategic Lawsuits against Public Participation (“SLAPPS”), together with guidance for the public where they receive a letter from a law firm threatening litigation to “prevent the publication of information that could be in the public interest”.
Background
In March 2022, following the Russian invasion of Ukraine, the SRA published a guidance note on the conduct of disputes, where it stated that it “was aware of concerns regarding SLAPPS”, a term which is used to describe the misuse of the legal system by wealthy claimants in order to stifle public/media scrutiny, through threatening and aggressively pursuing vexatious claims designed to harass/intimidate the opponent into silence.
At around the same time as the SRA’s guidance note, the government opened a consultation on SLAPPS. Following that consultation, it has proposed a range of potential measures, including (1) introducing anti-SLAPP legislation to give Courts the power to dismiss SLAPPS at an early stage and (2) putting in place a costs protection regime to protect Defendants from being exposed to excessive costs in defending claims.
The press release accompanying the Warning Notice confirms that the SRA is actively investigating 29 cases “where firms might be involved in SLAPPS”. The SRA has also indicated that it is conducting a wider thematic review on solicitors’ conduct of litigation more generally.
What are the relevant regulatory principles/rules?
The most relevant SRA Principles which apply to SLAPPS, and abusive litigation more generally, provide that individuals and firms must act:
- in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice;
- in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.
In addition to these Principles the following Rules in the Code of Conduct for individuals/firms are most obviously relevant:
- You must not abuse your position by taking unfair advantage of clients or others (Code of Conduct for Solicitors and Firms Rule 1.2):
- You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client) (Code of Conduct for Solicitors and Firms Rule 1.4);
- You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable (Code of Conduct for Solicitors Rule 2.4);
What is a SLAPP?
The UK government has proposed a 3-part test for identifying a SLAPP, giving the Court the power to dismiss a case where:
- The case relates to a public interest issue;
- The case has some features of an abuse of process;
- The case has insufficient evidence of merit to warrant further judicial consideration.
The Warning Notice makes clear that even if a case does not feature all three of the above elements, and accordingly does not constitute a SLAPP, the SRA may take action if one of the three elements is satisfied or if there is evidence of abusive litigation conduct more generally, including, but not limited to the following:
- Seeking to threaten or advance meritless claims, including in pre-action correspondence, and including claims where it should be clear that a defence to that type of claim will be successful based on what you know;
- 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;
- Making 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 that are disproportionate to the issues in dispute and the responses received;
- Sending correspondence with restrictive labels, such as “confidential”, “not for publication” or “without prejudice” where there is no justification for doing so;
- Pursuing unnecessary and onerous procedural applications, intended to waste time or increase costs, such as applications for disclosure.
In the context of defamation claims, the Defamation Act 2013 already contains mechanisms for filtering out meritless/vexatious claims. The Act introduced a “serious harm” requirement, meaning that a corporate claimant needs to demonstrate that the proposed publication has caused or is likely to cause serious financial loss. The jurisdictional test is also a high threshold, with Claimants being required to demonstrate that England and Wales is “clearly the most appropriate place” to bring an action where there has been publication in multiple jurisdictions.
What do Firms need to do?
Firms who practice in this area will be waiting to see the approach that the SRA takes to the 29 cases that it is currently investigating. In the absence of legislation and case law, it is at least questionable as to whether the SRA are best placed to examine and reach a conclusion about the merits of a case and whether it constitutes a SLAPP. Therefore, in the absence of clearly abusive conduct, the SRA will need to tread carefully to ensure that it does not find itself taking a line which goes further than the forthcoming legislation and the interpretation of that legislation by the Courts.
There are common features in many defamation claims which could give rise to allegations of heavy handed or aggressive conduct. Claimants in defamation claims are expected to take prompt steps to vindicate their reputation. As a result, the timescales in the Pre Action Protocol for Defamation Claims are necessarily short. Furthermore, there may also be circumstances in which it is entirely appropriate to label a letter as being “not for publication”, where publicising the letter repeating alleged defamatory allegations would give more publicity to those allegations, either aggravating or increasing any reputational damage caused by the initial publication.
However, firms should be considering their approach and how they can manage the risks inherent in acting in this practice area going forward. Steps that firms can take include:
- Reviewing existing matters alongside this guidance and considering whether conduct needs to be self-reported to the SRA in accordance with the self-reporting provisions contained in the SRA Code of Conduct for Individuals/Firms;
- Obtaining Counsel’s advice on the merits of claims at an early stage, or recording in writing why a firm considers a new case does not constitute a SLAPP. This would have the dual purpose of ensuring that the client is not exposed to criticism and/or a costs order, and also demonstrate to the SRA that the firm has considered its own position;
It is clear that both clients, through the supervision of the Courts, and firms/solicitors, through the supervision of the SRA, are going to have to think very carefully and strategically about their conduct to ensure they find themselves on the right side of the line and are not seen to be acting abusively or trying to quash stories in the public interest.
If you have any questions arising from this article, or would like to discuss the SRA’s Warning Notice on SLAPPS in more detail, please contact Andrew Pavlovic, who specialises in professional discipline and regulatory law.
