What are SLAPPs (Strategic Lawsuits Against Public Participation)?

SLAPPs (Strategic Lawsuits Against Public Participation) are lawsuits that are filed with the intention of silencing, intimidating, or punishing individuals or organizations for exercising their right to free speech on matters of public concern. These lawsuits are often brought by private parties, such as corporations or individuals, against individuals or organizations that have spoken out against them or their activities.

The SRAs new warning notice on SLAPPs

Recently, the SRA issued a new warning notice on SLAPPs, in response to reports that solicitors are bringing allegations without merit at the behest of wealthy clients to stifle freedom of expression and prevent the media from reporting on issues of public interest such as academic research, whistleblowing, campaigning or investigative journalism.

The warning notice makes clear that acting in this way would constitute a breach of a number of SRA Principles and Rules in its Code of Conduct for Individuals and Firms. 

The warning came alongside new guidance for the public from the SRA about what to do if they receive a letter from a law firm or solicitor threatening legal action against them, and how to report a solicitor or firm if the individual thinks they have breached their duties.

At the time that the warning notice was released, an accompanying press release stated that the SRA was already investigating 29 cases “where firms might be involved in SLAPPs”.

The warning and accompanying guidance came following the Russian invasion of Ukraine. The SRA published a guidance note at that time saying that they were “aware of concerns regarding SLAPPs”. Around this same time, the government opened a consulation of SLAPPs and proposed a range of anti-SLAPP measures.

Which SRA Principles apply to SLAPPs?

There are two SRA Principles which apply most closely to SLAPPs and abusive litigation. These are:

  1. Individuals and firms must act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
  2. Individuals and firms must act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services [provided by authorised persons

Three of the SRA’s rules in their Code of Conduct also apply to SLAPPs:

  • You must not abuse your position by taking unfair advantage of clients or others (Code of Conduct for Solicitors and Firms Rule 1.2)
  • You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client) (Code of Conduct for Solicitors and Firms Rule 1.4)
  • You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable (Code of Conduct for Solicitors Rule 2.4)

How is a SLAPP identified?

The Government has a three part test for identifying a SLAPP. Claims that are identified as a SLAPP could constitute a legitimate reason for early dismissal. The three part test requires that the case has the following three conditions:

  • It relates to a public interest issue
  • It has some features of an abuse of process
  • There is insufficient evidence of merit to warrant further judicial consideration

However, the SRA has stated that even if a case doesn’t fulfil all three parts of the test, and even if a SLAPP threat does not reach court, they can and will investigate complaints and are able to take action in cases of abusive conduct.

Red flags for SLAPPs:

The following are red flags or features that are commonly associated with SLAPPs and might help you identify a proposed SLAPP:

  • The target is a proposed publication on a subject of public importance, such as academic research, whistle-blowing or investigative journalism.
  • Your instructions are to act solely in a public relations capacity, for example by responding to pre-publication correspondence with journalists about a story which is true and does not relate to private information.
  • The client asks that the claim is targeted only against individuals (where other corporate defendants are more appropriate), is brought under multiple causes of action or jurisdictions/fora, and/or in a jurisdiction unconnected with the parties or events. 

However, as mentioned above, the SRA might also take action if there is evidence of abusive litigation conduct more generally, including, for example, the following:

  • Seeking to threaten or to advance meritless claims, including in pre-action correspondence, and including claims where it should be clear that a defence to that type of claim will be successful based on what you know
  • Claiming remedies to which the client would not be entitled on the facts, such as imprisonment upon a civil claim, or specific or exaggerated costs consequences.
  • Making unduly aggressive and intimidating threats, such as threats which are intended to intimidate recipients into not seeking their own legal advice
  • Sending an excessive number of letters that are disproportionate to the issues in dispute and the responses received
  • Sending correspondence with restrictive labels (see below) that are intimidating but inaccurate
  • Pursuing unnecessary and onerous procedural applications, intended to waste time or increase costs, such as for excessive disclosure

What does the new warning mean for firms?

Firms working in relevant areas will want to keep a close eye on how the SRA deals with the 29 cases it has been investigating. While it’s clear that the SRA is taking this issue very seriously, since SLAPPs can be hard to define and there is no legislation or case law in this area, it may not be so simple for the SRA to examine and reach conclusions about a case and decide whether it constitutes a SLAPP.

Still, it would be a good idea for firms to examine their approach and assess their risk management process for acting in this practice area.

Both clients and firms should carefully consider their conduct and take every precaution to make sure that their conduct will not be seen as abusive and that it would not be considered an attempt to silence stories of public interest.

How can VinciWorks help?

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Founded by Andy Donovan, a former SRA legal policy advisor, Compliance Office’s team of consultants draws on years of experience and a proprietary set of tools and templates to help law firms with their compliance needs. VinciWorks recently partnered with Compliance Office to offer a full range of compliance training, software, and consultancy services. Compliance Office has many years of expertise in SRA conduct, money laundering and accounts rules, and keeps its pulse on the latest AML and SRA rules and requirements.

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