Guest post by Iain Wilson, managing partner of Brett Wilson, a London law firm specialising in media law work for claimants and defendants. He is also vice-chair of the Society of Media Lawyers
Wilson: No SLAPPs crisis
The High Court judgment in Ashley Hurst v Solicitors Regulation Authority by Mrs Justice Collins Rice in January raises serious questions about the SRA’s approach to allegations of SLAPP-like behaviour.
The SRA has now brought three high-profile ‘SLAPP’ prosecutions, all of which have failed. In Mr Hurst’s case, the judge struggled to understand precisely what was being alleged and how his communications with another experienced lawyer could possibly amount to misconduct.
In SRA v Claire Gill, it appeared an attempt was being made to penalise her for not disbelieving her client’s instructions (an approach that would fundamentally change the role of a lawyer). In SRA v Chris Hutchings, he was falsely accused of making improper threats to another experienced lawyer.
Two of the three prosecutions concerned conduct that had taken place at least eight years ago. None should have been brought.
These prosecutions have come at great cost. On top of the SRA’s own costs of its panel solicitors and barristers, it has agreed to pay Mr Hurst’s costs both in the SDT and in the High Court, an interim payment of £400,000 has been agreed. The SDT has ordered the SRA to pay Ms Gill’s costs. These are subject to assessment if not agreed but could be as much as £700,000.
Notably, a successful respondent in disciplinary proceedings rarely recovers their costs. Costs do not usually follow the event and are only awarded where there is good reason.
One remarkable feature of Ms Gill’s prosecution is that a senior SRA investigator had advised in 2023 that the investigation should be discontinued, but the regulator proceeded in any event. The SRA did not oppose the application for costs in Hurst. Ultimately, the profession funds both the SRA’s costs and adverse cost orders.
The second cost is the distress the respondents have suffered through long-running investigations and proceedings.
This is not limited to those who are prosecuted. Following what the media termed a ‘SLAPP crisis’, a significant number of media lawyers were placed under investigation, with over 50 live cases reported at one stage.
Complaints against media lawyers were effectively encouraged by the regulator. The triaging of complaints was ineffective or absent, with opportunistic litigants in person and media organisations weaponising the complaints regime. The volume of investigations was then cited as evidence of a wider SLAPP problem.
Finally, and significantly, the prosecutions have caused serious reputational harm to media lawyers and media law more generally, with lawyers wrongly portrayed as pariahs simply for exercising their clients’ rights – rights which have been established over centuries.
The regulator should not be undermining the rule of law in this way. General practice firms have wondered whether undertaking media law work is worth the risk.
Litigants in person have also suffered. Their Google/AI-driven research has given them a false sense of security, with many defiantly responding to bona fide legal proceedings with bald allegations of SLAPP in lieu of any substantive defence, often resulting in a ruinous costs order against them.
In 2022, the SRA was placed under significant pressure by a self-interested media. Tellingly, the Hurst judgment asks whether the SRA succumbed to pressure from campaigners – what Collins Rice J describes as “background noise”.
It is notable, for instance, that one prominent campaigner was a complainant in two of the three prosecutions.
Sarah Rapson, the SRA’s new chief executive, has promised a ‘reset’ at the regulator. She has acknowledged that the SRA needs to listen to solicitors more and adopt a more empathetic style. Such an approach is welcomed by practitioners concerned about an overly adversarial regulatory climate.
Nevertheless, there should now be a post-mortem of the regulatory assault on media lawyers that took place on her predecessor Paul Philip’s watch. Under him, the SRA appears to have responded to sustained pressure from campaigners and media organisations suggesting the existence of a SLAPP crisis.
Emotive and unrepresentative anecdotes were put forward by campaigners: a charity receiving a nasty letter, a victim of sexual assault being sued by the perpetrator, and of course Russian oligarchs silencing journalists with lawfare (the 2022 springboard for the campaign).
It is unclear what precisely is being suggested by those who claim there is a SLAPP crisis. Should someone who says they have been falsely accused of sexual assault and their life ruined as a result of it, not be entitled to turn to the law of defamation to seek to vindicate their reputation?
In 2024, the Society of Media Lawyers – a group of over 80 prominent media lawyers – sent the Ministry of Justice a freedom of information request seeking information relating to the evidential basis for reform. The only publicly available information was the then Conservative government’s adoption of a pressure group’s dubious claim that there had been 14 SLAPP cases in 2021.
The society therefore commissioned independent academic research into the evidential basis for a SLAPP crisis. In December 2024, Professor Paul Wragg published the paper SLAPPs in England and Wales: The Issues and the Evidence. His conclusions were unambiguous: the evidential basis for reform was flawed because the definition of SLAPP was too broad and the evidence of a UK SLAPP problem was inaccurate and misleading.
He recommended a pause on further reform until the Law Commission had investigated.
There is a danger that campaigners may be seeking to use the so-called SLAPP ‘crisis’ as a means of softening defamation law by the backdoor. Defamation law was overhauled in 2013 and a stronger and broad public interest defence was introduced. There is no bar to publishing properly researched public interest journalism.
Publicly available court statistics show that it is normally the defendant who has the greater financial muscle in defamation claims. The Leveson inquiry illustrated the power the media has and the need for an effective law of defamation to uphold journalistic standards. Existing legal safeguards allow weak claims to be challenged or struck out.
Following the three failed SRA prosecutions, the regulator should now pause and review its approach, perhaps commissioning an independent KC to review the basis upon which these prosecutions were brought.
A further review should be carried out of outstanding SLAPP investigations. In the meantime, lawyers should be able to represent clients without worrying that properly conducted litigation will attract regulatory sanction.
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