News focus: SLAPPS 'could turn UK into pariah state'

The government’s commitment to introducing legislation to curb mischievous litigation by wealthy parties is ‘absolutely solid’, a minister insisted this week, as the campaign against ‘strategic litigation against public participation’ (SLAPP) soared up the media and parliamentary agenda.

Justice minister Mike Freer MP was speaking at the end of a two-day conference organised by a coalition of media and free speech groups which heard that the UK has become a nexus for SLAPP cases. Opening the event, Conservative MP David Davis, who co-sponsored a debate on ‘lawfare and the UK court system’ earlier this year, said: ‘SLAPPs pose a direct threat to those values we hold dear. Our legal system is world-renowned, that is being undermined by SLAPPs.

‘Though [there is] often a slim chance of success, the expense in defending your case can be devastating. Oligarchs know it, they do not care if they win. It is not automatically wrong to sue a journalist who gets things wrong. Libel laws exist for a legitimate reason, but they are not there to shoot down genuine debate and proper scrutiny.’

Courts should be able to dismiss SLAPP cases early on before they become financially crippling, Davis said.

Media law specialist Rupert Cowper-Coles, of Reynolds Porter Chamberlain, said: ‘This is a depressing situation where brave organisations have to decide between the principle of getting a story out and blowing their legal budget.’ He noted that litigation has become ‘much more expensive: 10 years ago, a cost budget would be £200,000 to £300,000 but I do not see cost budgets going for less than £1 million now. It is an incredibly expensive process.’

Solicitor Gill Phillips, director of editorial legal services for the Guardian, called attention to a new warning notice and guidance issued by the Solicitors Regulation Authority this week. It was time to start making complaints to the SRA, she said.

But chairing the panel discussing anti-SLAPP reforms, Lord Cromwell (hereditary peer Godfrey John Bewicke-Copley) asked: ‘When is a SLAPP not a SLAPP?’

‘That is the million-dollar question,’ Cowper-Coles responded, adding that a model law drafted by the coalition proposes looking for hallmarks such as the claimant’s litigation conduct. 

Speakers discussed pre-action correspondence used to intimidate respondents, with letters often labelled ‘confidential’, ‘private’, ‘without prejudice’ or ‘not for publication’.

Media law solicitor Mark Stephens CBE, who chaired a panel discussing legal intimidation and ethics, said: ‘There is a whole section [in the SRA warning] on misleading correspondence. They are essentially saying it is a gross breach of the guidance to mislead recipients of correspondence.’

Speaking on the same panel, Caoilfhionn Gallagher KC, of Doughty Street Chambers, said reporting on pre-action letters that are marked ‘confidential’ can be in the public interest. She added: ‘[The SRA warning has] got to make sure standards are upheld wherever the law is being weaponised, not just in libel and defamation.’

Closing the conference, Freer said the proposed legislation would introduce a three-stage test to identify a SLAPP for early dismissal by a judge. It would consider if the article was in the public interest, if the case lacks sufficient evidence of merit to proceed and has some features of abuse of process. Those features will be set out in a ‘non-exhaustive’ list of SLAPP hallmarks.

Freer said: ‘We intend to turn our planned reforms into reality as soon as parliamentary time allows. Bear with us and we will get around to it. But I wanted to go a little bit further, the commitment is absolutely solid.’

But Cowper-Coles had previously made a case for  urgency. ‘Europe is doing something about it, America has done something about it. If we do not do something about this now, we’re going to be left behind. We’re going to be the problem state, the pariah state, and that might make the problem even worse.’