Lawfare: “an industry that hides evil in plain sight”?

A recent Commons debate on “Lawfare and the UK Court System” called by Conservative MP David Davis and Labour MP Liam Byrne is worthy of note. It is long, but also worth reading. Let me try and summarise what was said. The central accusation is that

“These people [the rich, large organisations, and rich Russians said to be linked to the Russian State in particular] use our justice system to threaten, intimidate and put the fear of God into British journalists, citizens, officials and media organisations. What results is injustice, intimidation, suppression of free speech, the crushing of a free press, bullying and bankruptcy. It results in protection from investigation and gives encouragement to fraudsters, crooks and money launderers. It has turned London into the global capital of dirty money. In extreme cases, it can undermine the security of the state by allowing people to act as extensions of foreign powers.”

“These people” engage in “Lawfare” to destroy their critics and opponents. They seek the reputational and financial ruin of their opponents. Some newspapers, we are told,  hesitate or decline outright to cover Russian oligarchs as a result. And “these people” engage in SLAPPs, strategic litigation against public participation using defamation, privacy, data protection, and harassment law.

The UK’s litigation system, cost recovery rules, and expensive lawyers mean costs “can run into millions of pounds”. They swallow up their opponents’ time, dragging out disclosure processes “to financially hobble the defendant”. Lives are said to be destroyed and the emotional toll of the cases is said, very believably, to be high. “Defendants are unable to work.” And in a reference to what appears to be surveillance and intimidation, “Every waking moment is spent looking over their shoulders, wondering who or what is just around the corner.” The targeting of individual journalists is discussed repeatedly, Catherine Belton for her book on Putin’s People bore “a series of lawsuits”, “by four Russian billionaires and the state-run company Rosneft—that, I think, gives away that the Russian state is involved.” Media lawyers had apparently said, “that they had never seen a legal onslaught of such scale and intensity.” Tom Burgis, author of “Kleptopia: How Dirty Money is Conquering the World”, is being sued by ENRC. Their tussles with the SFO have, “prompted a wave of legal proceedings by ENRC in the United States and the UK against journalists, lawyers and Serious Fraud Office investigators.” Davis tells us deaths linked to witnesses in an ENRC investigation are being looked into by the FBI. He encourages everyone to draw their own conclusions. Mine is to wonder if I should not have written that sentence, even though I am just summarising what the MP has said.

Bob Seely, another Conservative MP, invited Mr Davis to opine on “those London-based law firms that are so willing to sell intimidatory legal threats as part of their services.” Davis says the professional bodies and the Government should be, “looking very hard at them”. Stephen Kinnock (Labour) weighs in on, “the army of lawyers doing the dirty work of the Russian Government and of oligarchs and the Governments of other hostile regimes” suggesting there needs to be “a foreign agents registration Act in this country, lawyers acting on behalf of those people should be included in such a registration process?”

There is evidence a Serious Fraud Office employee has been put under, “under aggressive surveillance”; ditto the (then) Information Commissioner.  Of the former it is alleged, a private company, ENRC again, is “attempting to undermine the freedom of the press and frustrate the legitimate workings of the state” Much of this is associated with private intelligence businesses which may or may not be working hand in glove with the law firms. (I stop here to remind readers of Hacking and also the Djibouti case that have featured on the blog; both related to lawyers working with private investigators/security companies).

Various law firms are named: Carter-Ruck, Mishcon de Reya, Schillings, CMS, Skadden [etc etc], Harbottle & Lewis and Olswangs and, unusually, two barristers, Hugh Tomlinson and Geraldine Proudle.

Specifics are not generally offered on what Bob Seeley calls, “the cancer of the selling of intimidation services by high-end legal firms.” And, “The kompromat corruption industry has sadly been exported to our country from Moscow and St Petersburg.” Davis says, in remarks which may be targeted at lawyers or reputation management in general, they are dealing with, “an industry that hides evil in plain sight”. The MPs have the benefit of privilege and a waiver to discuss cases otherwise sub-judice, perhaps explaining the circumspection. Or perhaps they only have smoke when they really need fire. Nevertheless, one firm is accused of sending excessive volumes of correspondence and threatening directors of a company, “despite the fact that they have not taken part in any way in any of the relevant activity.” They appear to be accused of association with “litigation support” and “reputational defence” through “kompromat—the collection of compromising material”. The links made by the relevant MP were not clear, suggesting his target might perhaps be other organisations working on the case in parallel to the firm in question. Another law firm is discussed for their work on 47 lawsuits against a journalist who was murdered. They take instructions, we are told, from a firm specialising in (and I have taken this from their website it does not appear in the debates), “residence and citizenship by investment”. Que? Another firm is said to have taken instructions from “Russian organised crime via middlemen.”

The general implication of these allegations, made under Parliamentaty Privilege, appears to be that, the work certain lawyers do for clients is, “part of a really corrupt and intimidatory practice that veers well into the criminal. Even if the lawyers are obeying the law, other parts of these sorts of campaigns are, frankly, purely criminal.” So, if I understand this, the lawyers make legal threats and others, intermediaries or security types, surveille and make other threats. Data protection cases are run after, “Russian-backed interests” hack, “people’s private data, leaking it and then suing them for libel.” Russian business entwined with the Russian state use English courts as their preferred location. Claims are “ludicrously exaggerated” and it is hypothesized that claims are “coordinated with others to maximise intimidation and, indeed, legal costs”. Again, I emphasise for fairness, specifity about knowledge, coordination and complicity of any lawyers involved are not dealt with. Criticism of particular tactics aside, it is guilt by association, underlined by the repeated nature of this association and the way some market their services.

Liam Byrne (Labour) emphasizes his view that the LawFare as warfare analogue is not overdone, seeing it as, “a hybrid war against the west and against us.” With, “Hybrid war [being] …a battle for minds …for influence and narrative, not simply territory.” “[T]otalitarians, autocrats and kleptocrats seek, “to murder the truth, and we are letting them do it in English courts.”

There is very little speaking against the idea of LawFare. Sir Bob Neill (Conservative) however warns against, placing, “the judiciary in the invidious position of having to make judgments as to the political acceptability or otherwise of those who might seek to bring a claim before the courts—provided, of course, that there is at least a prima facie legal basis to bring the claim in the first place.” Whilst acknowledging, “many lawyers and judges have raised concerns about the matter” via a High Level Panel of Legal Experts on Media Freedom urging “consultation on anti-SLAPP laws.”

SLAPPs are a particular concern. Elsewhere in the debate we are told, “31 [US] states have passed anti-SLAPP laws offering varying degrees of protection,” in addition to the first amendment. Concern is regularly expressed that, “regulatory bodies dealing with these law firms appear unwilling or unable to take any action.” Neill, perhaps conscious that two barristers were named,  digresses into a defence of the Cab Rank. “Barristers do not and should not have the luxury of making moral choices about the people for whom they act; that is the essence of independence and objectivity at the Bar.” Perhaps not the wisest point to raise, however correct, given how it underlines how the Cab Rank Rule helps structures a truly free market for legal services for the really rich only. It is not a rule only for the rich, and inspite of what I say here I am willing to support it, but it is mainly a rule that benefits the rich and the Barristers that they want to instruct. For those of you wondering if it means the Barristers get dirty money guilty fee, Sir Bob has an answer: that’s for the solicitors to sort out through money laundering obligations. Nice work if you can get it and not agonise about the consequences.

Neill also says, interestingly, “I do not believe that there is a failure of regulation either.” Here, I would beg to differ, but I will come to that. It is something on which David Davis pushes him:

my hon. Friend is infinitely more expert in these things than most of us. May I bring him back to the matter of [the lawyers the MPs accuse of lawfare]? The answer to this may be to look very closely at the tactics put together by these firms, which put them in the very profitable commercial niche that I was talking about. If we were to judge that those tactics were unfair and unjust, that would solve the problem of firms or individuals appearing in more and more of these oppressive cases.

I agree. There are questions about money-laundering compliance and due diligence on claims as well as litigation tactics which need looking into as well as the adequacy of court responses to dubious litigation practices. The courts sometimes scold commercial lawyers, in the manner that contrast markedly with their treatment of immigration practitioners, and less commonly refer cases on to the SRA. Can anyone imagine the Lord Chief chiding a high street firm for evidence polishing as happened in one famous judgment? Many cases seem to disappear into a confidentiality drenched black-hole. Some emerge, plenty do not. Either way, years often pass. Both the courts and the regulators need to up their game. I daresay cases are not as cut and dried as even judges who’ve heard the trials think, but the need for more transparency, urgency, and quality in the investigation and regulatory space is, I think, urgent.

The broad thrust of the debate seems to be LawFare needs,

“to be countered by …anti-SLAPP laws and a reorientation of the legal profession, private investigation and PR firms to abide by fair standards of litigation and stop pre-trial manoeuvres designed simply to drain resources and intimidate counterparties. Such a reorientation would involve an overhaul of all regulations applicable to the legal profession on the conduct of litigation.”

Parliamentary Under-Secretary of State for Justice, James Cartlidge responded to the debate. He warns against haste (after all, he says, legal services raise £36bn in revenue) and in favour of balance. He says “we are now exploring further whether further reform may be necessary when litigation targets public participation specifically” whilst pointing out  that “defamation cases in the High Court in 2020 were in line with the average number for the past decade, at 152.” And that the UK has joined, “the Council of Europe’s inaugural working group on SLAPPs thanks to our diplomatic collaboration.”

Europe to the rescue. If that happens, someone should throw a party.

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