SLAPPs, the SRA and the need for perspective

Unveiling the report of last autumn’s Conduct in Disputes Thematic Review (the report), SRA chief executive Paul Philip said that some firms needed to do more and that the regulator would be redoubling its efforts to make sure its message on SLAPPs (strategic litigation against public participation) got through. This sentiment is as disappointing as it is predictable. But Philip’s statement seems to be at odds with what should have been the report’s core finding: namely that talk of SLAPPS is greatly exaggerated.

The Thematic Review was a spot review of 25 firms practising defamation and privacy work, carried out last October and November. As this is a highly specialised area, it is likely that these firms conduct a significant majority of all defamation work. My firm, having a sizeable media law department, was one of those reviewed. About two-thirds of our defamation work is for claimants and about a third for defendants. While we do not act for the mainstream press for conflict reasons, we have acted for journalists, citizen bloggers and the odd newspaper editor, and so I would hope that we are well placed to offer a balanced view.  

Prior to the review, we were required to provide a list of all files closed within the previous 18 months where we had acted for claimants who were public/high-net-worth figures or corporations asserting a defamation/privacy claim, or where we had acted for defendants on the end of such a threat. This we happily did, giving the SRA auditor electronic access to two files they had requested, together with any other file they wished to look at. The process was repeated across the 25 firms, meaning that 50 files in total were reviewed.

The report’s headline should have been that, having reviewed 50 files selected at random in a spot audit of every specialist defamation firm, the SRA ‘did not find any evidence of SLAPPs’. Moreover, the SRA was unable to identify the misuse of the terms ‘strictly private and confidential’, ‘not for publication’ or ‘without prejudice’, or more generally any inappropriate correspondence or indeed other misconduct issues. Did they pick the wrong files to review? Or is it possible that defamation solicitors are already taking their professional and ethical considerations seriously, and the spectre of SLAPPs has been overblown by the media?

Of course, the possibility of isolated transgressions remains. However, the report should have ruled out any suggestion of systemic problems, giving defamation solicitors generally a clean bill of health. Instead we are presented with 33 pages of hypotheticals which seem largely, if not entirely, at odds with the above findings. Notably, much is made of apparent confusion among some solicitors as to their reporting obligations in respect of opponents (that is, the circumstances in which they may arguably have to report their opposite number’s conduct to the regulator). The rule changed in November 2019, from a duty to report serious misconduct by other solicitors to the following required outcomes:

‘7.7 You report promptly to the SRA or another approved regulator, as appropriate, any facts or matters that you reasonably believe are capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you).

‘7.8 Notwithstanding paragraph 7.7, you inform the SRA promptly of any facts or matters that you reasonably believe should be brought to its attention in order that it may investigate whether a serious breach of its regulatory arrangements has occurred or otherwise exercise its regulatory powers.’

While this drafting is not going to win any awards (the SRA guidance can be found here), the key takeaway is that the threshold for reporting is much lower than it was previously. The semantics can be debated, but essentially solicitors only need to have suspicion that there could have been a serious breach. At this point they must make a report.

What is clear, however, is that the SRA has no jurisdiction unless there is a suspicion that a solicitor has knowledge of or is complicit in a SLAPP. This can pose quite a challenge for defendant solicitors. It would be wholly wrong for a defendant solicitor to suspect a claimant solicitor is complicit simply because their client’s account is challenged by their own client, and/or the solicitor is acting for someone accused of serious wrongdoing.  

The practical realities are worth considering further. Claimant solicitors will normally be trying to suppress publication or republication. This, in and of itself, is entirely legitimate: the courts impose injunctions in such terms. It remains legitimate even where the broad subject matter is, on the face of it, of public interest (there is no public interest in false information). Attempts to suppress information only become SLAPP-like when there is no legal basis for a claim, rendering the litigation or threat of litigation abusive, or where the manner in which the claim is threatened is improper. The latter may be readily discernible by other lawyers, but the former is often impossible to identify at an early stage.

While there will be rare occasions where an obvious, and ‘complete’ or ‘irrebuttable’ defence, such as absolute privilege, may apply, in the majority of cases the alleged abuse will be that the allegations are true, but the claimant is claiming they are false. In the vast majority of those instances, a claimant solicitor simply won’t know if their client is lying and nor will a defendant solicitor. A solicitor can – and must – interrogate instructions to a reasonable degree (it is in the client’s best interests as much as anything), but the report suggests that this is already being done properly.  In circumstances where the client wishes to complain about imminent publication (the press often provide less than 24 hours’ notice of an impending story), there is often no realistic prospect of obtaining or reviewing evidence beyond the client’s instructions. If claimant solicitors are expected to disbelieve their own clients based simply on their own personal ‘smell test’ (absent clear evidence that fixes them with knowledge that their client is lying) then this fundamentally challenges the role of a lawyer in any area of litigation.  And should the claimant’s solicitor(s) be reported by the defendant’s solicitor as suspected of involvement in a SLAPP because the lay defendant says the claim is a dishonest one? Most solicitors would rightly baulk at the idea of reporting a member of the profession unless there is a proper evidential basis for doing so. 

Report an opponent

To compound matters, the report says that a threat to report an opponent to the SRA, where there is no basis for doing so, could be a breach in itself. This must be correct, but leaves solicitors in a very difficult position. Notably, reasonable litigants are generally reluctant for their lawyers to go on what might be characterised as a personal, ‘flank-attack’, on a professional opponent (itself a potentially abusive act), whereas there is a particular form of unreasonable litigant who must be constantly discouraged from such behaviour. Putting pressure on solicitors to report their peers risks a greater number of entirely meritless reports being made which, in turn, is likely to have consequences for the wider regulation of the profession. The experience of my practice is that mere suspicions of improper, including SLAPP-like, conduct by a claimant, have historically tended to be raised by a defendant’s solicitor in inter partes correspondence (and normally not as a threat to report). This puts the claimant solicitor on notice and may encourage them to scrutinise their client’s case more carefully. It also potentially brings it within the scrutiny of the court and regulator.    

Perhaps the most irksome line in the report is: ‘There were differing opinions on whether SLAPPs were a live issue, which is concerning given the increasing level of scrutiny on this matter’. It is unclear what ‘live issue’ precisely means, but in expressing my views in this article (which are shared by many media lawyers) I am challenging the presumption made by the regulator. Do SLAPPs exist? Yes, but abusive legal claims are threatened in every area of litigation. Are solicitors complicit in SLAPPs? Very rarely, in my experience. Unfortunately there will always be dishonest or unethical lawyers, but I doubt you will find many at media law firms. One of the advantages of working in a highly specialised sector is the excellent training lawyers receive (much of it courtesy of specialist chambers practising in this area). The quality of correspondence is generally exceptionally high. The same firms are regularly pitted against each other and every letter is written knowing that it might end up before a High Court judge, or indeed, on Twitter. As reputation lawyers, it is hardly surprising that these firms generally try to safeguard their own reputations: reputations where integrity is paramount. Why would they want to harm that? We would never accept instructions to assert a claim that is not properly arguable.  Our letters are robust, but measured.  Correspondence we receive from our contemporaries is in a similar style. Where we receive inappropriate correspondence or inappropriate threats, we call it out.  On the rare occasions where a report is necessary, it almost invariably concerns an inexperienced (possibly even unqualified) lawyer and/or a non-specialist firm.

Proper context

Given the question of SLAPPs has been raised in parliament, the regulator was right to conduct a thematic review. However, the ‘live issue’ should be seen in its proper context. The media does not like the law of defamation (and they dislike privacy even more), because they do not like restrictions on what they can publish or broadcast. The campaign against SLAPPs is essentially just another attack on the law of defamation. The invasion of Ukraine and sanctions on the oligarchs gave the media the perfect platform to rally public support. But at the end of the day, lawyers are just facilitators and go-betweens (not ‘hired guns’ as the report correctly points out). If there are problems around the terms of entry to the UK, the sale of British assets to foreign actors, influence on our major political parties, and so on, these are chiefly matters for the government. The perception that defamation lawyers help the wealthy suppress public debate is one I find particularly offensive. There are very few cases where the claimant is the wealthier party. Normally it is the defendant that has the upper-hand financially. Let us not shed too many tears for the Murdochs of this world. While, broadly-speaking, a free press is something we should be very proud of, elements of the UK media are responsible for committing terrible atrocities (think phone hacking) and media lawyers play an important role in holding them to account.

It is also important that the public are not misled about the extent of any problem. Legitimate claims have repeatedly been incorrectly branded as SLAPPs by the media. Such cases include Banks v Cadwalladr [2022] EWHC 1417 (QB), in which Mrs Justice Steyn said: ‘[9] Ms Cadwalladr has repeatedly labelled this claim a SLAPP suit, that is a strategic lawsuit against public participation, designed to silence and intimidate her. I have set out a summary of my conclusions in paragraph 416 below. Although, for the reasons I have given, Mr Banks’s claim has failed, his attempt to seek vindication through these proceedings was, in my judgment, legitimate. In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit.’ Despite this Banks’s claim continues to be referred to as a SLAPP by large sections of the media. Of even greater concern is reference by some journalists to individuals ‘taking out SLAPP orders’, whatever they might be, echoing the media’s disingenuous campaign against privacy rights (including by pejoratively referring to privacy injunctions or agreed confidentiality clauses as ‘gagging orders’).

To be clear, where they do exist, SLAPPs are a problem. But their prevalence is overstated and solicitors are unlikely to be complicit in very many. I suspect far less than the number of solicitors stealing client money. It is hardly surprising the SRA is investigating 40 complaints given the publicity the matter has received. If it genuinely intends to redouble its efforts, then there will come a point where every defendant is crying SLAPP and complaining to the SRA. There is a risk of a form of McCarthyism developing. If the regulator is truly independent, it should play no part in this.

Iain Wilson is managing partner of Brett Wilson, London, and heads the firm’s media and communications law department