Addressing so-called SLAPPs is “a behavioural issue requiring regulatory interventions” against lawyers as much as using legislation, the government has said.
However, it has set out a range of possible legislative and procedural changes to curb ‘strategic lawsuits against public participation’.
This is the oppressive form of litigation that has come under the spotlight since the Ukraine invasion due to their use by Russian oligarchs in the English courts to stifle criticism of their activities.
Introducing a call for evidence yesterday, Lord Chancellor Dominic Raab said: “We need to isolate these cases in devising counter-measures, so that while we prevent our justice system being abused, we do not curb access to justice in legitimate cases.
“In responding to SLAPPs, we need to fully understand the breadth of litigation and range of misconduct involved.”
The Ministry of Justice’s (MoJ) call for evidence seeks the experience of those who have been on the receiving end of SLAPPs and views on a wide range of potential changes.
It said: “We recognise that SLAPP tactics are not confined to legal professionals, though often reference to the law is made to intimidate SLAPP recipients.
“Whilst legal professionals are duty bound to represent their clients’ best interests, they must not do so where the effect would be to undermine the rule of law and trust in the legal profession. We believe SLAPPs are a behavioural issue requiring regulatory interventions as much as one that can be solved through legislation.”
The MoJ pointed to the updated guidance on the conduct of disputes that the Solicitors Regulation Authority (SRA) issued earlier this month, which referenced SLAPPs for the first time.
The call for evidence asked solicitors whether the guidance helped them understand their obligations, as well as those who have been affected by SLAPPs about their experience of reporting possible misconduct to the SRA.
It said: “We understand that the distinction between conducting litigation in clients’ best interests through fearless representation, and oppressive conduct amounting to SLAPP tactics, is at times difficult.
“The government will work with regulators to support professionals where further guidance is needed.”
The call sought views on whether a statutory definition of SLAPPs was required and how it could be framed.
Looking at defamation law, it canvassed the possibility of treating serious harm and the truth defence as preliminary issues.
“There are conflicting views on the benefits of that. On the one hand, it is argued this has potential for saving costs and resolving matters more quickly; on the other, because it engages arguments about the substance of the case it may have the effect of aggravating and frontloading costs, and could lead to a trial within a trial.”
Other reform options included beefing up the public interest defence, reversing the usual burden of proof in defamation so that the claimant would have to prove that a statement was not true, requiring the claimant to prove actual malice on the part of the defendant, and making civil restraint orders “an effective procedure against SLAPPs litigants”.
The call for evidence also floated requiring a formal permission stage, as in judicial review, and introducing costs-capping similar to that used in environmental cases.
One broader issue raised was whether the absolute privilege that applied to what was said in Parliament should be extended to fair and accurate reporting of it, which currently attracted qualified privilege.
Mr Raab added: “The government will not tolerate Russian oligarchs and other corrupt elites abusing British courts to muzzle those who shine a light on their wrongdoing. We’re taking action to put an end to this bullying and protect our free press.”