Libel law firms continue to mislead journalists and others that their letters cannot be published and the Solicitors Regulation Authority (SRA) needs to act, high-profile tax lawyer Dan Neidle said yesterday.
The Anti-SLAPP Conference in London also heard Pia Sarma, editorial legal director of The Times, accuse claimant lawyers of trying to minimise the problem of SLAPPs (strategic lawsuits against public participation).
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 2022 that accused Nadeem 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”.
He raised the latter issue with the SRA and then referred Osborne Clarke to the regulator in the wake of its SLAPPs warning notice published a year ago, which said labels like this should not be used on correspondence unless there was a legitimate or legal reason for doing so.
Mr Neidle told the conference in London that lawyers who were experts in the law of confidence initially told him it was “nonsense” to say the letters could not be published. But he then spoke to libel lawyers, who told him that such threats were “absolutely standard practice”.
Though the threat “didn’t have much effect on me, when [claimant law firms] write to the layman, it absolutely does have an effect”, he said.
While praising the SRA for responding to the issue rapidly, Mr Neidle said law firms were still making the threat.
“I had one myself, this time arguing that what they’d sent me was copyrighted and couldn’t be published. I published it.
“I was sent just last week by a journalist, a letter they’d received from a major media law firm threatening them with libel proceedings and saying, this letter’s confidential and can’t be published. People are still doing it.
“So the challenge for SRA is what are you going to do about it? If you have a rule and you don’t enforce it, you may as well not have a rule.”
The other challenge for the regulator, he went on, was to take action against law firms that had sent these threats in the past.
“I spoke to more than a dozen people, bloggers, tweeters, writers at small local newspapers who’d received letters like this, believed that they couldn’t publish them, and so just shut up and they were silenced.
“That’s profoundly wrong, and I hope that there are consequences for those that wrote those letters no matter how many years ago it was. At this point, I’m not confident there will be.”
Juliet Oliver, deputy chief executive of the SRA, told the conference on Monday that it was currently investigating around 50 SLAPP-related cases.
Ms Sarma, editorial legal director of The Times, said she had once been reported to the SRA for ignoring a ‘private and confidential’ label on correspondence. Nothing came of it but it was “clearly a device to put pressure on me”.
Claimant lawyers were “very keen” on saying SLAPPs not as big as issue as has been made out, but this was because they just focused on the number of cases that actually reached the courts.
“I cannot emphasise enough that it’s not just about that… It’s about the conduct of lawyers, the multiplicity of actions brought under a number of laws, in a number of countries. It’s about this failing to understand there is something called public interest journalism.”
Mr Neidle agreed, noting that “a core feature of SLAPPs is that they don’t really want to go to court… they want to achieve a withdrawal outside the public spotlight”.
He added: “To focus on what goes to court is to completely misunderstand the nature of SLAPPs and, in the case of claimant lawyers, a deliberate deception about the nature of SLAPPs.”
Ms Sarma acknowledged, however, that many law firms have “moderated their tone” since the anti-SLAPP campaign took off, but for some of the smaller firms, “the message hasn’t got through”.
Mr Neidle also highlighted a “particularly awful trend of people accused of serious crimes, particularly rape, using libel laws against their victims”.
He explained: “Often, the law firms acting for them are not the big firms one normally hears of. They’re small law firms operating under way worse standards than the likes of Schillings and that’s beyond disturbing.”
The conference was organised by the Foreign Policy Centre, the Justice for Journalists Foundation and the International Bar Association’s Human Rights Institute.