SLAPPs, ‘Without Prejudice’ & Defamation: A Legal Shift
The legal profession’s attempts to control SLAPPs and a recent ruling regarding the misuse of the without prejudice rule show that regulators are increasingly taking an active role in policing the behaviour of lawyers in defamation litigation.
A SLAPP (Strategic Lawsuits Against Public Participation) is the abuse of the litigation process aimed at silencing legitimate expression. SLAPPs have been described as “an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means”.
Unlike genuine defamation claims, that arise from an attempt to protect or repair a damaged reputation, SLAPPs, typically used by the super-rich or large corporations, often use defamation and privacy-based claims as a weapon to stop legitimate reporting and investigation. These cases are not bought with a view to obtaining damages for a loss or even winning, their purpose is to shut down criticism and act as a gag. SLAPPs can cost heavily in both time and money, especially where the case is bought against an individual who then has to fund their legal costs.
Under the last government, Parliament came close to bringing in legislation banning SLAPPs but the UK is still lacking specific standalone legislation to combat this type of abuse in litigation. In the meantime, the legal profession and those who are facing attempts to shut them down, need to continue be alert to key behaviour indicative of a SLAPP.
Key indicators of SLAPP
A SLAPP can include unduly aggressive, intimidating and mislabelled correspondence, communications that are repetitive or disproportionate in length or volume, claims that are vague and unsubstantiated, the pursuit of unnecessary applications or making inappropriate or excessive requests. Solicitors are obliged by their regulator, the SRA, not to engage in such conduct. This is taken seriously. Solicitors must act with integrity, not abuse their position, not mislead, only put forward statements that are properly arguable and uphold public trust and confidence in the profession. The recent SRA statement on SLAPPs sent a powerful message to the profession that behaviours need to change.
The Solicitors Disciplinary Tribunal has just handed down a high-profile decision on this topic. It is the Tribunal’s first case of this type. The Tribunal’s findings are not yet published but it is widely reported that solicitor, Ashley Hurst, was fined £50,000 and ordered to pay £260,000 in costs after being found guilty of misconduct for improperly using a “Without Prejudice” heading in an email sent to tax campaigner Dan Neidle. The email improperly attempted to prevent Neidle from publishing or discussing the correspondence which related to former UK Chancellor Nadhim Zahawi, Hurst’s client, after Neidle made accusations concerning Zahawi’s tax affairs.
Although Hurst was found to have breached professional conduct principles the Solicitors Disciplinary Tribunal took the position that this was not a SLAPP case. The Tribunal commented: “Clearly the issues touch on the wider SLAPPs debate but here there was no attempt to prevent scrutiny of Mr Zahawi’s tax affairs per se”. However, by incorrectly attempting to cloak that correspondence with without prejudice legal privilege (which would have prevented Mr Neidle from referring to the correspondence), the tribunal found that Mr Hurst had acted to “improperly attempt to restrict Mr Neidle”.
The involvement of the SRA and the Tribunal is likely to be crucial in protecting commentators, campaigners, journalists, and bloggers in the coming years, as SLAPP threats often succeed in silencing their targets without ever reaching court.
Legal professionals need to be cautious when formulating correspondence keeping in mind their professional obligations at all times. Labels such as ‘not for publication’, ‘strictly private and confidential’ and/or ‘without prejudice’ should not be used on correspondence when the conditions for using those terms are not fulfilled. They should be used in good faith and not to exaggerate their effect. “Without Prejudice” should only be used in circumstances when, in particular;
- There has been or will be a genuine attempt to compromise a dispute. Merely setting out your case or criticizing the other side’s case is not sufficient.
- There does not need to be litigation on foot or a threat of litigation. The crucial question is whether, in the course of negotiation, the parties contemplated, or might reasonably have contemplated, litigation if they could not agree terms (Framlington v Barnetson [2007] EWCA Civ 502). But there must be a genuine dispute – reasonably cohate and definable issues, not simply a number of reciprocal differences and grievances.
Clear communication and careful consideration are essential to avoid either a SLAPP scenario or a potential allegation of misconduct.
Speak to an expert
Our team of expert commercial litigators have considerable experience dealing with fraud and establishing dishonesty in such cases. We can guide you through the complexities of bringing a dishonest assistance claim, ensuring that all the necessary facts are carefully pleaded and supported by robust evidence. Contact us on 0800 652 8025 or send an enquiry.
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