The Bar Standards Board (BSB) is considering following the Solicitors Regulation Authority (SRA) in issuing guidance on strategic lawsuits against public participation (SLAPPs).
It comes as tax lawyer Dan Neidle has reported the solicitors acting for Conservative Party chairman Nadeem Zahawi to the SRA in light of the SLAPPs warning notice it published last week.
Earlier last week, both the SRA and BSB were copied into an open letter sent by 74 editors, journalists, lawyers and academics to Lord Chancellor Dominic Raab, which urged him to adopt a model anti-SLAPP law drafted by the UK Anti-SLAPP Coalition.
The SRA happened to issue its notice the following day and a BSB spokesman told Legal Futures that its senior management team was now looking at possible guidance of its own.
The SRA also revealed that it was investigating 29 cases where solicitors might be involved in SLAPPs, but the BSB refused to say whether it had any cases on its books – some barristers have been named in Parliament for their possible role in SLAPPs.
Mr Neidle, a former head of tax at Clifford Chance, now runs Tax Policy Associates, which he set up to help influence public debate on tax policy.
After posting tweets in July that accused Mr Zahawi, then the Chancellor of the Exchequer, of providing unsatisfactory answers about his tax affairs, he received letters from Mr Zahawi’s solicitors, Osborne Clarke, to ask him to withdraw his claims.
Mr Neidle published the letters, which he said were “designed to intimidate” him. Osborne Clarke had also sought to assert they were without prejudice and/or confidential and that publication of them would be “improper”.
The SRA notice dealt with this issue, stating that labels like this should not be used on correspondence unless there was a legitimate or legal reason for doing so.
Mr Neidle last week referred Osborne Clarke to the SRA on the basis that its correspondence “bears several of the hallmarks of SLAPPs which are identified in your warning notice”.
These included the labels attached to the letters, “aggressive and intimidating threats” to stop him from publishing, advancing “meritless claims” with either “false allegations” or no legal basis, and having no intention of actually commencing litigation.
He explained that he had not initially intended to make a formal complaint about Osborne Clarke. “However, their behaviour since I called their ‘bluff’ has evidenced a serious misunderstanding of a solicitor’s professional duties and obligations.”
In particular, he said the firm had not corrected what he called the “falsehoods” in its correspondence after he pointed them out.
Mr Neidle also urged the SRA “to review other defamation matters where Osborne Clarke was instructed” to see if it acted in the same way.
We have approached Osborne Clarke for comment.
The solicitor’s campaigning on SLAPPs saw him profiled yesterday in The Sunday Times, in which he described himself as “a really bad person to sue”. He was “an experienced lawyer who knows lots of other lawyers” who was also “not short of a bob or two”.
In a commentary on the SRA notice, Richard Moorhead, professor of law and professional ethics at Exeter University, said it could be seen as part of the SRA’s “broader thrust to wean solicitors, and their firms, off the idea that they can act for clients as hired guns no matter what”.
He suggested it would be difficult to meet the tests set out of either a lack of merit in a case – “How bad does an argument have to be to be clearly without merit?” – or abusive conduct in its pursuit.
“As a first step towards moving into the area, [the notice] is a strong one politically, and a sensible one as a regulator. But to engage in concerted attempts to change behaviour will depend on how the SRA seeks to enforce and prosecute such matters.”
The letter to Mr Raab was signed by most national newspaper editors as well as several leading media lawyers: Sayra Tekin, director of legal at the News Media Association; Mark Stephens, partner, Howard Kennedy; Caroline Kean, consultant partner, Wiggin; Matthew Jury, managing partner, McCue Jury & Partners; David Price KC; RPC partners Rupert Cowper-Coles and Alex Wilson; Conor McCarthy, barrister, Monckton Chambers; Pia Sarma, editorial legal director, Times Newspapers; Gill Phillips, director of editorial legal services, Guardian News & Media; Lisa Webb, senior lawyer, Which?; and Dr Peter Coe, associate professor in law, Birmingham University.