Strategic lawsuits against public participation, known acronymically as SLAPPs, are in the public eye.

As the name suggests, a SLAPP is a lawsuit by a claimant which is an abuse of the process of the court because its ulterior objective is to cause as much aggravation as possible to the defendant. That is a simplistic way of expressing its exact prospective statutory definition, found in clauses 1 and 2 of Wayne David MP’s Strategic Litigation Against Public Participation Bill.

In its press release indicating its support for the bill, the government said: 'The government’s endorsement comes in response to a rising tide of this pernicious form of litigation. Some of the most high-profile cases have involved Russian oligarchs and allies of Vladimir Putin. Typically, they employ SLAPPs on bogus defamation and privacy grounds, preventing the publication of information in the public interest.'

The definition in clauses 1 and 2 of the bill is a bit of a mouthful. It says that a SLAPP is a claim which (a) has, or is intended to have, the effect of restraining the defendant’s exercise of the right to freedom of speech to disclose information about a matter of public interest, and (b) is intended to cause the defendant harassment, alarm, distress, expense, or any other harm or inconvenience, beyond that ordinarily encountered in the course of properly conducted litigation (for example, by incurring disproportionate costs against a defendant of relatively limited means or by failing to follow relevant procedural requirements). Specified 'particular' examples of matters of public interest are (a) whether the claimant has behaved unlawfully or made false statements, (b) public health and safety, the climate or the environment; and (c) an investigation or review being undertaken by a public body,

If the defendant can prove both elements of the definition, the claim is liable to be struck out at a preliminary hearing unless the claimant can show at that hearing that it is more likely than not that the claim would succeed at trial.

What of the requirement of proving the necessary intent at a preliminary hearing conducted without oral testimony? In the edition of the new podcast Law and Disorder, released on 31 March 2024, I cited the view of an anonymous senior member of the judiciary that this would be almost impossible. Charlie Falconer and Helena Kennedy disagreed, arguing that proving intent on an injunction application at a preliminary hearing was routine, so why should it be any different on a SLAPPs strike-out? I hope they are right, but I cautioned their optimism with Lord Neuberger’s aphorism that we only have one iron law in this country, and that is the law of unintended consequences. It would be an irony if abusive litigation of this nature could not be swiftly dispatched but instead became mired in ruinously expensive and extensive preliminary hearings.

Recently, certain press bodies have sought to persuade the government to add terms to the bill which would ensure that the requisite mental requirement of the claimant, which the defendant has to prove, should be judged only objectively. Under this proposal an analogue would be dishonesty: as is well-known, where that has to be proved the fact-finder simply has to be satisfied that ordinary decent people would consider the conduct in question to be dishonest. So it should be here. I would suggest that the criterion should simply be bullying. The requisite mental element would be met If the fact-finder is satisfied that ordinary decent people would consider the claimant’s conduct to amount to bullying. That would be a neat and simple solution.

If a defendant chooses not to seek a SLAPP strike-out and the case goes to trial, and it loses, the court may not order it to pay the claimant’s costs except where its misconduct in relation to the claim justifies such an order. In such a case there would have to be some kind of preliminary hearing to determine if the claim is in fact a SLAPPs claim so that both sides can know which costs regime applies.

Although the nomenclature may have changed, the concept of course is not a new one. Our podcast conjured up the ghosts of some inveterate slappers who regularly reached for the litigation howitzer to pulverise annoying critics: Sir James Goldsmith, Robert Maxwell, Mohammed Al-Fayed, and the Aga Khan. We also discussed the infamous McLibel action in 1977 – surely the top proto-SLAPP.

We ended by resurrecting another ghost, albeit a far more benign spirit than the others – Lord Denning MR. Older readers will recall Sir James Goldsmith’s obsessive legal campaign to destroy Private Eye. In Goldsmith v Sperrings (1977) he even sued Private Eye’s distributors claiming they had libelled him by selling the magazine in their shops. In a characteristically arresting judgment Denning said: 'In a civilised society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it…

On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used. If it is done in order to exert pressure so as to achieve an end which is improper in itself, then it is a wrong known to the law.'

There is a 'rising tide' of this type of abusive litigation. It is to be hoped that this proposed legislation will be duly enacted and that it, and its subsequent judicial interpretation, will bring Lord Denning’s words back to life.

 

Sir Nicholas Mostyn, (Lord) Charlie Falconer and (Baroness) Helena Kennedy KC co-host the podcast Law and Disorder produced by Podot

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