A recent decision by the SRA concerning what some consider to be a “textbook SLAPP” has thrown into sharp focus the UK’s lack of dedicated legislation to define and deter strategic litigation against public participation. We explore the SRA’s decision in more detail, and where the debate surrounding SLAPPs might go from here.
“I have no confidence in a system that would allow such a thing to happen, especially when neither the government nor the SRA seem to want to take responsibility for preventing something similar happening in the future.”
This was a comment by investigative journalist and Bellingcat founder Eliot Higgins following the Solicitors Regulation Authority’s (SRA) decision not to act against now defunct law firm Discreet Law for representing a client in what critics have described as a “textbook strategic litigation against public participation (SLAPP)”.
What was the SRA’s decision relating to Discreet Law?
In 2021, Russian oligarch Yevgeny Prigozhin instructed London law firm Discreet Law to bring defamation proceedings against Mr Higgins, after the journalist re-tweeted articles that identified Prigozhin as a key figure in the mercenary Wagner Group.
Although dismissed by the High Court in London in 2022, the claim left Mr Higgins with £70,000 in costs, leading his lawyers to report Discreet Law’s involvement in the claim to the SRA.
After a two-year investigation, the SRA concluded that it found “no evidence” of Discreet Law having any awareness of potential links between Prigozhin and the Wagner Group when it decided to take on his case. It also stated that the firm “went above” the required due diligence checks.
“Having now completed our investigation into the conduct of Discreet Law, and the solicitor’s handling of Mr Prigozhin’s matter, we have decided to take no further action,” it said in its report.
What was the reaction to the SRA’s decision?
The decision, which was first reported in the Substack blog Democracy for Sale, was also criticised by the Anti-SLAPP Coalition, which said it was “extremely disappointing, and casts a shadow over the regulator’s role to hold those enabling SLAPPs to account.”
This prompted the SRA to send a letter to Baroness Stowell of Beeston, former chair of the House of Lords Communications and Digital Committee, in which it publicly set out the reasons for its decision.
Of these, a point stressed by SRA chief executive Paul Philip was the distinct role the SRA played as a regulator in countering SLAPPs.
“Our rules do not require us to define a case as a SLAPP or not,” he said. “It is legislation that gives powers to the courts to strike out SLAPPs claims, and to protect parties from cost and other consequences.”
The SRA, on the other hand, was focused on the conduct of individual solicitors and firms, ensuring that they followed guidance and, in particular, would be able to “satisfy themselves that claims are properly arguable in fact and law.” The SRA could, according to Mr Philip, “take action where there is evidence of misconduct; for example, where solicitors have acted improperly in their approach to meeting this obligation.”
What is the current position in the UK on SLAPPs?
The threat posed by SLAPPs was initially reviewed by the then-Conservative Government, which announced its intention to progress cross-party anti-SLAPP legislation, including a “new statutory early dismissal process to strike out SLAPPs and avoid lengthy SLAPP litigation.”
In the build-up to the General Election, however, progress of the ‘Anti-SLAPP Bill’ stalled. At the time of writing, no plans to introduce similar legislation have been announced.
That being said, section 195 of the Economic Crime and Corporate Transparency Act 2023 (‘ECCTA’) explicitly defines SLAPPs, albeit in the context of economic crime, something that a recent article in the Journal of Media Law described as “a false dawn that will not address the problem”, in large part because the definition of a SLAPP is “too narrow and rigid.”
Is everyone in favour of anti-SLAPP legislation?
For anti-SLAPP campaigners, legislation that both defines and counters the use of SLAPPs in UK courts is vital to protect democracy and free speech. Indeed, one of the hallmarks of a SLAPP is the often significant imbalance in power, wealth, and resources between the claimant and the defendant. Not all SLAPPs are reserved for the media either, with reports of their use against local campaigners, patients reviewing medical companies, and even sexual abuse survivors.
Many legal professionals, including The Society of Media Lawyers, are cautious about exaggerating the problem, however, and have called for a more thorough examination of whether the use of SLAPPs in the UK is as prolific as some claim. The accuracy of the evidence provided by the government and anti-SLAPP campaigners to highlight the issue, for example, has been queried.
Those representing high-profile clients have also raised concerns about what strict SLAPPs legislation could mean for an individual’s right to privacy, and their ability to defend their reputation after being defamed. Some critics of anti-SLAPP regulations have even accused the media of using SLAPPs to “evade accountability” and “prevent those with legitimate interests defending their reputation.”
What should happen next?
As part of its recommendations, the Journal of Media Law article advised the creation of an early disposal mechanism outside of that provided by ECCTA.
Others argue, however, that procedural and legislative mechanisms already exist to deter, or throw out, spurious claims, as well as professional standards for ensuring a case had merits before taking it on.
Whilst Mr Philip agreed that professional standards were already in place, his letter’s conclusion seemed to suggest that something was missing from the current legislative framework, saying “it is so important for there to be a robust legislative solution which addresses the wider public interest around whether a claim itself should be permitted to proceed, and to give courts powers in this respect.”
The SRA’s decision is, by no means, the end of this debate. With the future of specific anti-SLAPP legislation highly uncertain, legal professionals need to continue doing everything they can to comply with the SRA’s guidance and ensure that a client’s claim has legal merit.