Neidle: Case shows that libel law needs reform
A barrister’s £8m libel and malicious falsehood claim against high-profile tax lawyer Dan Neidle was yesterday found a statutory SLAPP, the first time a court has made such a declaration.
Mrs Justice Collins Rice also granted Mr Neidle summary judgment over the claim by Setu Kamal.
While this was not a “paradigm” SLAPP (strategic lawsuit against public participation), she said, Mr Kamal’s conduct of the litigation met the statutory definition as set out in section 195 of the Economic Crime and Corporate Transparency Act 2023.
The action followed an article written last year by Mr Neidle on his Tax Policy Associates website, which Mr Kamal said accused him of being involved in unlawful or discredited tax avoidance schemes, and had provided reckless, unethical or incompetent advice.
Mr Kamal said he had lost a contract worth £1m a year for eight years as a result, and his practice more generally had been “decimated”.
Collins Rice J decided first that parts of his claim – including his entire pleading of malice – should be struck out for disclosing no reasonable grounds for bringing it, constituting an abuse of process, or on grounds of non-compliance with rules of pleading and procedure.
She went on to rule that Mr Neidle was entitled to summary judgment on the whole claim as having no real prospect of success.
The judge nonetheless considered the application for declaratory relief that it was a SLAPP, saying “doing so perhaps illustrates some of the complexity of the present statutory regime”.
She found it “inescapable that, considered objectively, Mr Kamal’s conduct of the present proceedings has been a history of compliance failures”.
It was also “unacceptable” that Mr Kamal cited AI-generated fake cases in inter partes correspondence, while “the unsustainability (and impropriety) of the remedies asserted and of the valuation of the claim were oppressive and not in accordance with proper litigation standards”.
This all added up to behaviour that was “not recognisable as ‘properly conducted litigation’”.
But this was not enough to make it a SLAPP, the judge said. Defamation law was highly specialist and Mr Kamal, who represented himself, was unfamiliar with it, and blamed this for the errors he made.
At the same time, Collins Rice J noted, he was a qualified and experienced practitioner, and so not comparable with a lay litigant in person.
He had also previously been through “the salutary and mind-focusing experience of a Hamid referral, an adverse Divisional Court ruling that he had breached his duties to the court, and subsequent professional proceedings resulting in a fine”.
The statutory test was met if a court could properly conclude that any of a claimant’s behaviour was undertaken with the intention of subjecting a defendant to inconvenience beyond that ordinarily encountered in the course of properly conducted litigation.
“I am not in the end prepared to accept that making an ostensibly on-notice application for an interim injunction, without putting the defendants on notice, and without discharging an applicant’s duty of full and candid disclosure to the court at the time, was, in all the relevant circumstances of this case, behaviour of unintentional unmindfulness by Mr Kamal…
“I am not prepared either to accept that the deployment of the £8m contract valuation in the context of this litigation was behaviour more likely than not attributable to simple inexpertise, particularly when considered together with the other unjustifiable and unsustainable ‘compelled speech’ remedies demanded…
“It is plain enough on the face of the documentary evidence that Mr Kamal intended his demands to be taken most seriously and to have a serious impact, and it appears that, to at least some extent, that was borne out in practice.”
Mr Kamal only disclosed the contract shortly before the hearing and his showed that his even arguable contractual entitlements “fell far short of his assertions” – this “was intended to, and did, have a chilling effect on the defendants’ journalism beyond that ordinarily encountered in properly conducted libel litigation”.
Collins Rice J concluded that, had it been necessary to do so, she would have exercised the power to strike out Mr Kamal’s claim on the alternative basis that it was a SLAPP.
Writing about the ruling, Mr Neidle said it showed that, while “substantive libel law is fairly sensible”, the procedural aspects of a libel claim “chill free speech”.
He explained: “Kamal’s claim was hopeless, elements of it were downright abusive (and intentionally so), and his conduct of the claim was incompetent.
“In other circumstances it would be met with ridicule – but the sum he claimed was so large that I had to take it seriously. It took six months, costs of about £146k, and an 85 page judgment, for me to have the claim dismissed.
“For someone without my legal training or financial resources, it would be irrational to have fought Kamal. The rational thing to do would have been to give in, and delete the report. That’s why most libel threats succeed, and we never hear about them: a lawyer’s letter is sent, and the blogger or journalist quietly backs off. That’s a catastrophe for freedom of speech.”
Among other reforms, he argued that the burden of proof should be on the claimant to prove falsity, rather than the defendant to prove truth (or opinion – which Collins Rice J said was the case here), and that defendants should be assured that, if they won, they would recover their costs.
Further, the contract disclosed in the case was further evidence that “a small number of barristers were enabling abusive tax avoidance schemes which very possibly could be viewed as fraud”.
His solicitor, Matthew Gill of the Good Law Project, said: “This decision is vindication of Dan’s work to expose dodgy tax avoidance schemes and those involved in them. It also shows how important anti-SLAPP legislation is for the protection of public interest journalism.
“But reporting on economic crime shouldn’t be the only form of speech protected by SLAPP legislation. Now the government needs to go further and expand the anti-SLAPP law to protect survivors of sexual violence, environment defenders, and others who face litigation intended to silence them.”
Greg Callus and Hannah Gilliland of 5RB represented Mr Neidle in court.
Leave a Comment