The SRA has issued welcome guidance on the conduct of SLAPP cases. It can be seen as part of their broader thrust to wean solicitors, and their firms, off the idea that they can act for clients as hired guns no matter what. In broad terms, and the Code is a bit more nuanced than this, public interest trumps client interests where there is a conflict.
The guidance is, in many ways, of a piece with more general guidance on conduct in disputes. The SLAPP guidance emphasises public concern about SLAPPs, the dangers of abusive litigation, and the particular characteristics of SLAPPs, drawing on putative government definitions. But the SRA also emphasises its own actions are not circumscribed by whether or not and how the government decides to implement any SLAPP reform. They are concerned with abusive litigation. The SLAPP guidance focuses the light on one particular kind of such abusive conduct.
As such they include non-exhaustive indicators of what might indicate a case is a SLAPP: a lawyer’s threat targeted at silencing academic research or whistleblowing campaigning/investigative journalism, especially if using defamation, privacy, and confidentiality law would raise red flags. But these red flags are neither necessary nor sufficient to bring the case within the guidance. Abusive conduct, in litigation or the threat of litigation, is what is really targeted.
As such, lawyers making threats other than in relation to genuine disputes or the advancements of legal rights, to silence criticism or stall another process are called into question. This might be done through, for instance, the threat of costly delay. Similarly, bringing cases or making allegations without merit, or doing so in an oppressive, threatening or abusive manner, might similarly be abusive.
The guidance seems to indicate that the basis in the Code for doing this will be rules against taking unfair advantage; misleading or attempting to mislead anyone; influencing the substance of evidence inappropriately or putting forward assertions or statements that are not properly arguable.
Solicitors are expected to decline to act in ways that would amount to abusive conduct and to advise clients against pursuing a course of conduct which amounts to abusive conduct. They probably need to be particularly careful when acting against proposed publications of public importance, when asked to act solely in a public relations capacity, and when targeting individuals (where their employer might be a more rational target for a genuine claim), bringing multiple causes of action in a variety of fora, and/or, in a jurisdiction “unconnected” with the parties or events.
Behaviour “likely to result in regulatory action” includes: the bringing of meritless claims or claims where “it should be clear” a defence “will be successful based on what you know”; claiming remedies that one is not entitled to or specific/exaggerated costs threats; making “unduly aggressive and intimidating threats”; sending disproportionate volumes of correspondence; sending without prejudice/confidential/not for publication letters which are intimidating but inaccurate (in particular asserting without prejudice correspondence when there is no genuine attempt to settle or asserting confidentiality when there is none); and, pursuing procedural applications to waste time, increase costs or drive excessive disclosure.
Perhaps most importantly, claimants are expected “to take reasonable steps to satisfy yourself that a claim is properly arguable before putting it forward.” All of the guidance, including this bit, applies to correspondence before claims as well as in the making of claims. This is perhaps like requiring an advocate making an allegation of serious misconduct against an opponent or witness to have some evidence to justify the claim. The key question will be how much is some?
As I understand it, and I’d be happy to be corrected, making a statement that is properly arguable is quite an easily satisfied threshold. Similarly, it will be very interesting indeed to see how robust and challenging the SRA is when faced with complaints about claimants making claims which are probably meritless. How bad does an argument have to be to be clearly without merit?
Nonetheless, the requirement for some due diligence before such claims are made will be important. I’d expect claimant solicitors to plead urgency diminishes their obligations here, but again how much they can get away with will depend on how the SRA investigates and prosecutes and how the SDT (and ultimately the High Court) responds. Courts will need to be educated and encouraged to think about these issues when faced with cases that come to court. They are often, although not always, pretty laissez-faire when it comes to poor conduct before them.
Similarly, the guidance may clamp down on the routine invocation of confidentiality when threatening to sue for defamation and similar. The guidance makes plain that claimant lawyers cannot seek to mislead their opponents that confidentiality exists when it does not, or that correspondence is without prejudice when no genuine attempt to settle is made.
A difficulty may be that the same ability to threaten journalists and others with litigation under the cloak of confidentiality might be achieved by other means. For instance, the guidance makes plain that it is, or certainly may be, appropriate for claimant lawyers to warn their opponents that should they publish the litigation-threatening correspondence this may aggravate any damages they would owe in (say) a defamation case (should they lose). One would hope though that fewer targets of SLAPP suits would be deterred by this, but some (many?) may be. One suspects that claims that correspondence is without prejudice might be invoked by artfully constructed “attempts to settle” which are lawyers’ constructs rather than genuine settlement offers. Helpfully the guidance points out that an attempt to settle needs to offer some concessions: whether a generous offer not to sue a defendant if they withdraw their publication (or do not proceed with it) is an attempt to settle or not, though, remains to be seen. Dan Neidle’s battle with Nadim Zahawi’s lawyers may resolve the point sooner rather than later (his latest post on the matter is here and we can expect more to come).
Overall, I would summarise my reaction to the guidance is that it is strong on the overall messaging, but the tests to show a lack of merit or abusive conduct depend on tests which might only apply in extremis. A lot depends on how firms and the SRA interpret them. As a first step towards moving into the area, it is a strong one politically, and a sensible one as a regulator. But to engage in concerted attempts to change behaviour will depend on how the SRA seeks to enforce and prosecute such matters. There are apparently 29 investigations underway against 17 firms, 14 based on complaints and 15 based on “intelligence” (which appears to include information from NGOs working in the field). And a thematic review is in train. The oxygen of publicity here is important; we can guess at some of the firms under the spotlight, but more light might help here. The SRA’s hands are somewhat tied in terms of publicising who they are investigating (something which they have strained against from time to time) although complainants can speak up and FOI requests might winkle out more information.
The NDA guidance was a seminal moment in SRA’s regulatory approach, this feels similar, but in both cases enforcement and how the guidance develops will be vital (the jury is out on NDA enforcement). One issue which has been bubbling up is the extent to which law firms work with PR firms for unsavoury clients: garnering intelligence and evidence on their opponents, but perhaps also acting as conduits for funding PR campaigns which may include Internet trolling or worse.
A final point of note is the SRA has written guidance for lawyers, but also a separate document for those who are subject to abusive litigation threats. This is a nice idea, with an especially welcome section on how complaints can be dealt with anonymously initially. It is perhaps not executed with the elan necessary to really help members of the public or journalists trying to work out whether a threat received from a lawyer is something worth complaining to the SRA about, but it’s a start.
Another interesting example of potentially abusive conduct in a Class Action dispute is reported this week on legal futures.