The Solicitors Regulation Authority (SRA) is warning solicitors to be cautious over becoming involved in abusive litigation aimed at silencing legitimate critics, known as strategic lawsuits against public participation (SLAPPs).
The SRA’s concern is that some solicitors are using SLAPPs on behalf of their clients to prevent the publication of matters of public importance, such as academic research, whistleblowing or campaigning or investigative journalism. To address these concerns, a warning notice has been published by the SRA telling law firms not to act for clients in this way and providing examples of the kind of activities that they would regard as being abusive litigation. That Warning Notice, entitled “Strategic Lawsuits against Public Participation (SLAPPs)” can be found at https://www.sra.org.uk/solicitors/guidance/slapps-warning-notice/
The warning notice, which is stated to be relevant to all firms and individuals regulated by the SRA who conduct litigation and who give dispute resolution and pre-action advice, recognises that lawyers can have a legitimate role in encouraging journalists and others to ensure that what is published is legal and accurate, but that proceedings must be pursued properly. Examples of abusive conduct or misuse of the legal system include bringing cases or allegations without merit, making unduly aggressive and intimidating threats, or claiming misleading outcomes such as exaggerated cost consequences or imprisonment in a civil claim. Purposes can include silencing criticism or stalling another process and to use the threat of cost or delay to achieve these outcomes.
As well as reiterating the Government’s three-part test for identifying a SLAPP, namely:
- 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.
The notice also touches on other red flags that firms can use to identify potential issues including where the client requests the firm to target individuals instead of organisations or bringing actions in a jurisdiction unconnected with the parties or events.
In addition, the SRA warns against incorrect or misleading labelling of correspondence, for example as ‘private and confidential’, or ‘without prejudice’. Although there are some instances when such labelling may be appropriate, solicitors need, they stress, to make sure they have considered the reasons for such labelling and whether further explanation of the label is required. This is particularly important where the recipient may be vulnerable or unrepresented. Unless there is a specific legal reason which prevents this, recipients of legal letters should generally be able to disclose that they have received them.
Paul Philip, SRA Chief Executive said:
‘SLAPPs pose a significant threat to the rule of law, free speech and a free press. The public rightly expect that solicitors should act with integrity. They should not be misusing litigation to prevent legitimate scrutiny from journalists, academics and campaigners.
‘This warning notice again makes clear our expectations. The right for clients to bring legitimate claims and for solicitors to act fearlessly in their interest is important. Yet representing your client’s interests does not override public interest obligations, so when solicitors cross the line into SLAPPS, we will take action.’
As well as the warning notice, the SRA have also produced information for those who might be the target of SLAPPS, including what to look out for and how to report any potential misconduct.
The SRA warned about involvement in SLAPPs in their advice for firms soon after the invasion of Ukraine, and refreshed its guidance on conduct in litigation in March. It is already investigating 29 cases where firms might be involved in SLAPPs and have been in contact with MPs who have raised similar concerns in Parliament for further information.