MoJ call for evidence on strategic lawsuits against public participation (SLAPPs) – Law Society response
The MoJ characterises SLAPPs as an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means.
The government is concerned about the challenges presented by SLAPPs, heightened by the Russian invasion of Ukraine, and especially impact of claims brought by wealthy individuals and corporations on clamping down free speech and reporting of events.
In response to growing concerns, the Solicitors Regulation Authority (SRA) updated its guidance on conduct in disputes in March to help solicitors to understand their obligations and how to comply when conducing litigation and giving dispute resolution and pre-action advice.
We strongly believe that it’s in the public interest that our justice system works for all people regardless of their means and produces fair outcomes.
It’s on this basis that we welcome the government’s initiative to strengthen and clarify the rules surrounding SLAPPs.
However, before exploring the issue, it’s important to be clear on exactly what a SLAPP is to make sure that the discussion (and any remedies emerging from it) remains targeted and does not have unintended consequences.
Given the focus of the public debate on the potential role of lawyers in SLAPPs, we're not aware of any current evidence of professional misconduct in this specific area in terms of disciplinary outcomes coming through the SRA and the Solicitors Disciplinary Tribunal (SDT) data.
Robust professional conduct rules are already in place that expressly deal with inappropriate litigation or threats of the litigation.
These rules are important in setting a high bar to prevent or sanction improper behaviour in pursuing litigation of the kind characterised as a SLAPP.
We would be interested in the outcome of the consultation to see evidence of how widespread the problem is and if there are cases of professional misconduct.
While we consider the current professional standards and regulatory regime in England and Wales to be robust, in principle we share the government’s view that there is a need for action against SLAPPs to prevent potential abuses of the administration of justice.
We think that the focus of anti-SLAPPs efforts should be directed at improving:
- enforcement of the current rules, and
- existing processes and procedures, including exploring methods that would ensure that the parties are operating on more level playing field concerning costs
While overall, we believe the range of procedural rules and processes already in place are capable of addressing any perceived issues associated with SLAPPs cases, we would support measures that seek to limit the legal costs incurred by SLAPP-type litigation.
However, any reforms or new measures should be proportionate, evidence based and take account of the following. Reforms should:
- strike the right balance between freedom of speech, especially in relation to the public interest, and the right of individuals and businesses to protect their reputation
- retain access to justice for both claimants and defendants, particularly when reforms are considered cumulatively
- increase legal certainty in the field (avoiding satellite litigation and associated costs/demands on court time)
- decrease the ‘chilling effect’ caused purely by uncertainty of the law, rather than the merits of a case
- explore methods which would ensure that the parties are operating on more of a level playing field concerning costs. In general terms, lower costs would be to the benefit of all parties. However, any changes to the current costs system must be undertaken after careful research and consultation and should be based upon clear evidence
The consultation closed on 19 May.
We await the outcome of the call for evidence and will engage with our members when the government announces next steps.