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Crackdown on SLAPP suits could include new legal regulations

By Michael Cross, Sam Tobin >>

(17 March 2022)

Government proposals to clamp down on so-called strategic litigation against public participation (SLAPP) have received a cautious welcome from the Law Society. Dominic Raab, the justice secretary, today set out measures including a possible cap on recoverable costs amid mounting concern about the apparent use of defamation and privacy laws by wealthy individuals and businesses. He also hinted at measures to bolster the SRA and look again at the regulation of lawyers working in this field.

Law Society president I. Stephanie Boyce said: ‘The use of SLAPPs – or strategic lawsuits against public participation – has long been controversial in our jurisdiction and elsewhere because of the impact they can have on less well-resourced clients and on freedom of speech. It is in the public interest that our justice system works for all people regardless of their means and produces fair outcomes, so we welcome the government’s initiative to strengthen and clarify the rules surrounding this kind of lawsuit.’

Raab announced today that the government is seeking views on a range of proposals ‘which will be introduced as soon as possible’. These include amending the Defamation Act 2013 to strengthen the ‘public interest’ defence. 

Ministers are also considering capping the costs that claimants can recover with the aim of stopping the super-rich, such as Russian oligarchs, from ‘weaponising’ the high cost of litigation. Changes could also introduce a specific requirement for claimants to prove ‘actual malice’ by a defendant in libel cases in order to deter spurious claims.

Other measures would enable courts to throw out claims using these tactics earlier in proceedings and impose civil restraint orders to prevent people from bringing repeated legal challenges.

The prime minister has indicated strong support for reform. In a statement ahead of the announcement, Boris Johnson said: ‘The ability of a free press to hold the powerful to account is fundamental to our democracy and as a former journalist I am determined we must never allow criticism to be silenced. For the oligarchs and super-rich who can afford these sky-high costs the threat of legal action has become a new kind of lawfare. We must put a stop to its chilling effect.’

Boyce said that the Law Society plans to meet with interested parliamentarians and our members to hear their views, ‘which will inform our response to the government’s consultation’.

Raab also told the House of Commons that the government would look at the regulation of lawyers and noted that the Solicitors Regulation Authority had recently issued new guidance on SLAPP cases.

‘We will look at the regulatory regime and, in fairness, I should point out that the Solicitors Regulation Authority recently issued new guidance reminding solicitors of their duty to report misconduct, identifying SLAPPs as an example of litigation for improper purposes and we will assess how that regulation is working and whether it is adequate in light of the evidence that we have.’

Shadow justice minister Steve Reed said the proposals marked ‘a major and welcome shift in Conservative Party policy’, saying the growing number of SLAPP cases has come about ‘because the Conservative Party got itself hooked on the Kremlin’s dirty money’.

Reed also questioned Raab about his reference to the SRA, asking: ‘What penalties will be imposed on firms acting in these cases? Can he tell us what the SRA is doing to check that solicitors are doing proper due diligence on oligarch clients and the source of their wealth before helping themselves to a share of it and what action is he taking to stop law firms helping the Russian state make money that helps fund Putin’s war machine?’

In response to a question from the SNP’s Angela Crawley, Raab said: ‘There are regulatory matters through the SRA regime that we want to look at, particularly around the ethics for solicitors.’

Conservative MP Bob Seely – who criticised ‘amoral’ lawyers in a debate earlier this month – said: ‘I think it is a great shame that over recent years we have allowed a corrupting cottage industry of legalised intimidation and, frankly, legalised gangsterism to be offered by unscrupulous law firms in this country to some of the most wretched and unscrupulous people on earth.

‘I do hope that those people, those senior partners in those firms like Carter-Ruck, like CMS, like Mishcon, like Harbottle & Lewis will consider whether they feel that they have played an entirely negative role in enabling Kremlin neo-fascism.’

Raab said Seely had made a ‘perfectly reasonable point about legal ethics’, but added: ‘I want to avoid this being an anti-lawyer push because the vast majority of legal practitioners are aghast at the abuses that we see and let’s have a targeted approach because we are more likely to be effective.’

(Courtesy: The Law Society Gazette)