Will new powers restrain wealthy and powerful from intimidating journalists?

SLAPP definition

As a Branch committee member of the National Union of Journalists (NUJ) in Leeds and West Yorkshire, the vexed issue, or ever-present spectre, of oppressive litigation against The Fourth Estate looms large, writes Neil Wilby.

As an investigative journalist, I am part of a caucus most vulnerable to such attack. By the nature of our reporting, we go to places, and dig around, where such attention is least welcome. Not least by the wealthy, powerful or famous instructing specialist law firms and leading counsel with a focused aim of preventing legitimate public interest journalism reaching its audience.

What defines a SLAPP and who are the litigants behind them?

Currently, there is no statutory or legal definition of a SLAPP, but the term is most often used to describe a form of retaliatory litigation intended to deter freedom of expression.

This class of litigation tends to be brought by powerful individuals or entities. For example, Russian oligarchs, football stars or managers, TV personalities, lobby groups, PLCs, and, most chillingly, organs of the State.

SLAPPs, since they were first identified and labelled, have targeted acts of public participation, or publications, print, broadcast or on-line, which are of social importance, with a view to preventing information which is in the public interest from reaching the public domain. Most routinely deployed against journalists, watchdogs, whistleblowers and human rights defenders whom all have an active role in the preservation of the rule of law and democracy.

Their principal purpose is to intimidate, censor and silence critics, or opponents, by burdening them with the pressure, anguish and, particularly, the costs of litigation where equality of arms is notably absent.

Minister calls for evidence

In March, 2022 the Ministry of Justice called for evidence regarding the alleged misuse of SLAPPs, with a commitment to pursue procedural reform to disincentivise the use of SLAPPs by litigants.

The MoJ received over one hundred submissions and published its own response in July, 2022.

Since then, regrettably, there has been few signs of progress, at least publicly, which led to another push by Labour MPs, journalists and media organisations to put SLAPP reform back on the Government agenda.

In November 2022, a failed attempt was made by one Member of Parliament to add a SLAPP reform rider to the Economic Crimes Bill, and, a few days later, a coalition of editors, publishers and lawyers followed this up with a further exhortation to speed up anti-SLAPP reform.

Whilst the MoJ responded to that call by saying the SLAPP issue was of the “utmost importance” and statutory change would be introduced “as soon as possible”, no timeline is in place, as yet. The Government’s agenda has undoubtedly been stalled over the summer with the various changes of Prime Minister and, consequently, to ministerial portfolios.

Statutory regulator steps in

Later in that same month, a statutory regulator joined the fray. In a ‘Warning Notice’ published on the Solicitors’ Regulatory Authority (SRA) website on 28th November, 2022, recited the Government’s proposed a three-part test to identify a SLAPP claim that would, under its proposed reforms, be subject to early dismissal as a result:

– That the case relates to a public interest issue.
– That it has some features of an abuse of process.
– That it has insufficient evidence of merit to warrant further judicial consideration.

Regardless of whether or not a case fulfils all three limbs of the above test, the SRA are able to take action in respect of abusive conduct. SLAPP threats, if they achieve their goals, often do not reach court. Again, this does not prevent the SRA from investigating complaints.

Examples of abusive conduct both before, in the lead up to and during litigation were given in the recent SRA guidance, Conduct in Disputes (read here). This involves the use or threat of litigation for reasons that are not connected to resolving genuine disputes or advancing legal rights. Purposes can include silencing criticism or stalling another process. An aim may often be to use the threat of cost or delay to achieve these outcomes. Our guidance also highlights that it is improper to bring cases or allegations without merit, or to do so in an oppressive, threatening or abusive manner.

Making advice and legal representation available to all is in the public interest. This includes taking action to prevent or remedy the infringing of a client’s rights in respect of their privacy and their reputation. It is not in the public interest for false or misleading information to be needlessly published, and lawyers can have a legitimate role in encouraging journalists and others to ensure that what is published is legal and accurate.

The SRA also recognises that in the course of conduct leading up to and including litigation, lawyers will need to act in defence of their client’s interests and that correspondence will sometimes, properly, be robust or formal and lengthy. For instance, where this is strictly necessary in order to comply with a pre-action protocol.

However, proceedings must be pursued properly, and that means making sure that representing a client’s interests does not override wider public interest obligations and duties to the courts.

Identifying SLAPPs

The SRA expects lawyers to be able to identify proposed courses of action (including pre-action) that could be defined as SLAPPs, or are otherwise abusive, and decline to act in this way. They expect that advice be given to clients against pursuing a course which amounts to abusive conduct, including making any threats in correspondence which are unjustified or illegal.

The following, the SRA say, are red flags or features which are commonly associated with SLAPPs. Although they might not by themselves be evidence of misconduct, nor will they necessarily be present in all cases, they might help solicitors to identify a proposed SLAPP:

– The target [defendant] is a proposed publication on a subject of public importance, such as academic research, whistle-blowing or investigative journalism.

– The solicitor’s instructions are to act solely in a public relations capacity, for example by responding to pre-publication correspondence with journalists about a story which is true and does not relate to private information.

– The client asks that the claim is targeted only against individuals (where other corporate defendants are more appropriate), is brought under multiple causes of action or jurisdictions/forums, and/or in a jurisdiction unconnected with the parties or events.

Conduct of SLAPP cases by solicitors

There are a number of behaviours commonly associated with SLAPPs say the SRA. Those which they consider matters of concern and are likely to result in regulatory action include:

– 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 (see below) that are intimidating but inaccurate.

– Pursuing unnecessary and onerous procedural applications, intended to waste time or increase costs, such as for excessive disclosure.

As set out above, an important consideration is whether the claim is meritless. Or, in light of a solicitor’s understanding of the defences that are available to an opponent, is bound to fail.

The SRA expects solicitors to take reasonable steps to satisfy themselves that a claim is properly arguable before putting it forward, either in correspondence or via an issued claim. It is also expected that consideration has been properly given to the prospects of a proposed course of action being unsuccessful or counter-productive, and to have advised clients appropriately before starting.

In a defamation context, relevant factors to take into account might include:

– The truth of the alleged defamatory statements
– Insufficient connection to the jurisdiction (S.9 Defamation Act 2013).
– Where the proposed claimant is a corporation, will the client be able to evidence a likelihood of serious financial loss (S.1 Defamation Act 2013).
– Whether the proposed claimant is a governmental body (Derbyshire County Council v Times Newspapers [1993] AC 534).
– Any inability to acquire a pre-publication injunction due to the rule in Bonnard v Perryman [1891] 2 Ch 269.
– The prospects of early strike out based on the case of Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, or on other grounds (such as any anti-SLAPP legislation as and when it comes into force).

In a privacy or breach of confidence context a claim will be unarguable for example if it focuses on information which cannot properly be regarded as either private or confidential.

Labelling correspondence to defendants

The SRA expects solicitors to ensure they do not mislead recipients of correspondence, and to take particular care in this regard where that recipient may be vulnerable or unrepresented.

One such way this can happen, in this context, is by labelling or marking correspondence ‘not for publication’; ‘strictly private and confidential’; and/or ‘without prejudice’ when the conditions for using those terms are not fulfilled.

It is accepted that marking a letter with such terms might be necessary if, for instance, an individual needs to disclose private and confidential information in order to disprove facts intended for publication. If so, it might also serve a purpose in ensuring correspondence is not read by an unintended recipient and/or to inform the recipient that they cannot rely on the defence of consent if they choose to publish any of the relevant material. Recipients might also properly be warned as to the legal risks of publication of such correspondence (which may include aggravation of any damages payable).

However, the SRA goes on to say that solicitors should carefully consider what proper reasons exist for labelling correspondence in these ways, and whether further explanation is required where the recipient might be vulnerable or uninformed. Such markings cannot unilaterally impose a duty of privacy or confidentiality where one does not already exist.

Clients should be advised of this by their instructed solicitors and warned of the risks that a recipient might properly publish correspondence which is not subject to a pre-existing duty of confidence or privacy.

If the client is not content to bear this risk, they can be advised of other options such as Civil Non-Disclosure Orders. It should be ensure that solicitors are satisfied that the recipient will know they are allowed to seek legal advice on party correspondence. Where a recipient indicates they wish to publish correspondence they have received, they must not be misled as to the consequences. Unless there is a specific legal reason which prevents this, recipients of legal letters should be able to generally disclose that they have received them.

Equally, correspondence should not be marked as ‘without prejudice’ if that correspondence does not fulfil the conditions for that label. It should be considered whether the communication represents a genuine attempt to compromise an existing dispute. There should, ordinarily, be no need to apply it to correspondence which does not offer any concessions, only argues the case and seeks concessions from the other side. Consideration should also be given as to whether a client may wish to rely on the correspondence in any proceedings without the recipient’s consent, including to evidence pre-action conduct.

Enforcement action by the SRA

If an issue arises, failure to have proper regard to this warning notice is likely to lead to disciplinary action. For further information on the SRA’s approach to taking regulatory action, see their Enforcement Strategy (read here) and, in particular, the available guidance on Conduct in Disputes (read here).

Conclusion

Travers Smith, a leading full service UK law firm, with a wealth of experience in this specialisation say:

“As we noted back in September, 2022, it is interesting to see these parallel efforts to address the use of SLAPPs in this jurisdiction: The Government’s approach is to change existing court procedure, whilst the SRA’s approach is to address the tactics utilised by some lawyers outside of the courtroom (e.g. in the use of correspondence).  These two approaches (the “hard” approach by the Government and the “soft” approach by the SRA) may prove to be complementary.  However, the Government’s approach appears to have stalled, whereas the SRA has already put in place measures that require solicitors carefully to consider their role and duties if they reasonably suspect that they are being instructed to facilitate a SLAPP.

Case study

Elsewhere on Neil Wilby Media, a defamation claim that has, so far, been exclusively reported on this website, features a Defence Statement that recites SLAPP as a ground for complaint (as opposed to addressing the pleaded case). Dr Zahid Chauhan OBE, a nationally known health campaigner and a high-ranking Labour Party politician in Oldham, is the claimant and represented by JMW Solicitors, a specialist civil litigation firm based in Manchester. Raja Miah MBE, an unemployed conspiracy theorist who claims to be neither a journalist or citizen journalist, is the defendant and, so far, has been unrepresented. The latest report on that fractious claim, based on pleadings so far filed at the court, can be read here.

A significant portion of what is rehearsed by the SRA in their Warning Notice forms parts of complaints made by the defendant to them about JMW. He asserts in his Defence Statement that the regulator is investigating his various concerns as a SLAPP complaint but exhibits no evidence in support of that contention. Being lodged with the SRA on 6th December, 2022, the Miah complaints would be amongst the very first to be considered by the regulator following the issue of their Warning Notice.

JMW recently succeeded in another defamation (and harassment) claim in which Raja Miah was co-defendant until he compromised the claim on terms favourable to the claimant (read more here). The other defendant, Khazir Rehman, is a long-term friend and political ally of Miah and is facing an award of £197,500 costs and damages against him. He did not plead at any time that SLAPP was an issue in what were lengthy and highly adversarial proceedings.

JMW Solicitors were approached in regard to the alleged complaints to the SRA, made by Raja Miah, and, specifically, to confirm if they have, in fact, been notified of such by the regulator and, if so, asked  to provide a reply. They did not respond to the email.

Page last updated Sunday 26th March, 2023 at 1420hrs

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© Neil Wilby 2015-2023. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby Media, with appropriate and specific direction to the original content.

Published by Neil Wilby

Former Johnston Press area managing director. Justice campaigner. Freelance investigative journalist.

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