SRA “has gone too far” with demands in SLAPPs guidance

Hines: You’ve got to kick the tyres of a case

The Solicitors Regulation Authority’s (SRA) guidance on SLAPPs may go too far in requiring practitioners to ascertain the truth of their client’s case, a senior barrister has suggested.

James Hines KC, vice-chair of the Bar Council’s ethics committee, said the guidance quoted but then appeared to contradict comments made by the High Court earlier this year on the extent to which lawyers were required to investigate the facts they put forward.

Mr Hines was speaking in a session on navigating ethical dilemmas at the Bar Council’s annual conference on Saturday, just a few days after the SRA issued revised guidance on strategic lawsuits against public participation (SLAPPs). It was first published in November 2022.

The guidance “effectively encourages solicitors to form views about the merits of their client’s cases, to form views about the intention or motive behind their client’s cases and to reject or not accept cases which they might conclude are SLAPPs,” he said.

The guidance says a solicitor’s duty to act in their client’s interest must be balanced with their wider professional obligations, including their duty to the court and to uphold the rule of law, which takes precedence should these come into conflict.

Mr Hines observed: “How the rule of law comes in… to stop you bringing a claim is rather difficult to understand.”

The guidance goes on to quote Mr Justice Fancourt in Haddad v Rostamani & Ors [2024] EWHC 448 (Ch), a decision which Mr Hines described as providing “protection for us”.

Fancourt J said lawyers had an overriding duty to the court not to mislead it by presenting a case or facts they knew to be false or which were manifestly false, or make serious allegations that were unsupported by evidence or instructions from their client.

But, subject to that, the judge said, “a lawyer does not owe the court or another party to the case any duty to investigate the facts, or to ascertain the truth, before advancing the factual case on behalf of their client”.

Mr Hines said: “Some of us here might occasionally have had those doubts over the years about the truth of everything our client tells us but that authority very firmly supporting the fact that we do not have to ascertain the truth and only upholds our position.

“However, the SRA then go on to say this immediately after about that the judgment: ‘This highlights the importance of obtaining proper instructions and seeking to challenge and scrutinise what your client tells you.’

“Now, to some extent, that’s true, of course. When a client comes in, you’ve got to kick the tyres of a case, you’ve got to see whether it has merits, you point out what the merits are and you’ve got to give them some idea about the likelihood of their case succeeding or otherwise.

“That does not mean, as the court says, you’ll go on and ascertain the truth.”

Another senior KC, speaking under the Chatham House rule, said he too was “somewhat cautious about [the SRA’s] legal analysis” and added that, for barristers, there was the added issue of the cab-rank rule.

Mr Hines noted that the Bar Standards Board was “firmly of the opinion” that the combination of barristers’ core professional duties and the provisions for strike-out in the Civil Procedure Rules meant that specific guidance for barristers on SLAPPs was unnecessary.

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