SRA stance on SLAPPs “will discourage lawyers from media work”

SLAPPs: Bill the product of “intensive lobbying by powerful media organisations”

The current stance of the Solicitors Regulation Authority (SRA) over SLAPPs will make lawyers reluctant to act on cases that could fall foul of the Strategic Litigation Against Public Participation Bill, the Society of Media Lawyers has warned.

It also told the government that good lawyers would be able to circumvent the “one-sided” legislation, a private member’s bill that the Ministry of Justice is supporting.

The society’s letter to Lord Chancellor Alex Chalk comes in response to one sent to him earlier this month by the UK Anti-SLAPP Coalition – whose 61 signatories included several newspaper editors and 11 lawyers. It called for the bill to be tightened up.

The Society of Media Lawyers is made up of 76 solicitors and barristers, many of them high-profile names in the field.

It argued that the bill would mean a claim could be designated as a SLAPP on the basis of a single action on the part of the claimant.

“For example, an unsophisticated claimant without the benefit of legal advice may send just one email to the defendant which would by itself be sufficient to trigger the designation. The court would have no discretion. The potential for injustice in such a situation is very substantial.”

Under the bill, a SLAPP involves the claimant taking a step which causes the defendant distress or inconvenience beyond that properly conducted litigation normally would; the safeguard is that the defendant would have to show the claimant intended to do this.

The UK Anti-SLAPP Coalition called on the government to remove this and replace it with an objective test. While noting how hard the subjective test would be to establish, the society said removing it would “leave the criteria for the designation of a SLAPP extremely broad”.

“The bill will almost certainly entirely miss its main intended targets,” it said – well-resourced claimants will instruct “experienced practitioners who will ensure that no step is taken in the litigation which would transgress the rules in the bill”.

Rather, “unsophisticated and unrepresented claimants” are more likely to be affected.

“The bill is entirely one-sided. It is true that there is from time to time misconduct in media cases but our members have experienced this from defendants as well as from claimants.

“For no good reason, the bill will entirely tilt the balance so that any misconduct on the part of claimants can lead to draconian outcomes but equal or even worse conduct on the part of media defendants has no equal consequence.”

The society argued that neither the supporters of SLAPP reform nor the government have identified “a single case where the provisions of the bill would have caused the case to be designated as a SLAPP”.

“These (and many other problems) mean that the bill will simply result in myriad satellite litigation to resolve the uncertainties, all of which will have little or no relevance to the underlying merits of the case, which will (or ought to be) the real concern of the parties.”

The bill would allow cases designated as SLAPPs to go ahead where the claimant has shown they would be more likely than not to win, subject to qualified one-way costs shifting in favour of the defendant.

“However, given the current stance of the Solicitors Regulation Authority and the stigma attached to any case which could be considered to be a SLAPP, there would be a considerable risk that such claimants would be unable to find solicitors willing to act for them (not least because of the insurance position of practitioners). This will raise both logistical and access to justice issues.”

The society concluded that the bill was “the product of intensive lobbying by powerful media organisations and self-interested campaigners who have used a handful of emotive examples (many of which have been misrepresented) to push forward their agenda…

“We have no doubt that the bill if passed would be a regressive step, creating much more difficulty than it would resolve.”

The society was only formed late last year and has criticised the Law Society for its support of SLAPPs reform.

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