The issue of strategic litigation against public participation (SLAPPs) has returned to the top of the agenda following the Solicitors Regulation Authority’s failed prosecutions of Ashley Hurst and Claire Gill. These have not only left the SRA’s work in this area in disarray but look set to cost the legal profession over £2 million in adverse costs orders.
SLAPPs sit within a wider framework of cases that relate to disciplinary action taken by the SRA in response to conduct within litigation. This has always been a tricky area as over-prosecution can inhibit access to justice by denying clients the ability to assert rights through a solicitor. The SRA’s recent approach to SLAPPs appears overly driven by an expedient response to political and media pressure rather than a worked-through analysis of where the boundary lies between legitimately advancing a client’s interests on the one hand and abusive litigation on the other.
The Hurst case concerned an email to tax commentator Dan Neidle, sent on behalf of Nadhim Zahawi, marked 'Confidential & Without Prejudice' and asserting it should not be published except for seeking legal advice. In 2024, the Solicitors Disciplinary Tribunal held that the email improperly attempted to restrict Neidle’s right to publication and fined Hurst £50,000 with costs. However, at the High Court last month, Mrs Justice Collins Rice held that the tribunal misdirected itself by starting from an assumed 'right to publish', and by failing to ask whether Hurst’s positions on confidentiality and without‑prejudice privilege were properly arguable.
The case against Claire Gill involved a letter sent in 2017 when acting for OneCoin and Dr Ruja Ignatova, later exposed as a fraudster. The SRA alleged an improper threat aimed at a whistleblower; however, in December 2025 the SDT summarily dismissed the case, stressing that it was based on hindsight rather than evidence of misconduct at the time, and noting that Gill’s advice was measured and that 'suspicion is not equivalent to knowledge'.
The adversarial process provides a framework for a judge to come to a reasoned decision. The role of lawyers in this process was described by Mr Justice Fancourt as follows: 'The English lawyer’s duty to their client is to seek by all proper professional means to advance the client’s case, fearlessly, in accordance with the client’s instructions, as long as there is a proper argument capable of being advanced. If the client’s case is a weak one, the court will so decide.'
This principle lies at the heart of the SDT’s decision in Gill. By the time of the SDT hearing, everyone knew that Dr Ignatova was a fraudster and therefore seeking to advance a case with that knowledge would be improper. However, such hindsight was not to be used to judge Gill’s actions at the time.
Both cases concerned the clients’ legitimate entitlement to assert rights and have them determined by a court. The SRA’s position suggests that there should be a threshold that a case had to be likely to succeed based on the then available information if those rights were to be properly advanced. This filter would be in effect a denial of a right to assert an arguable claim - which sits at the heart of the rule of law and the administration of justice in common law jurisdictions.
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There is clearly a balance to be struck in ensuring the effective assertion of rights as against using the court system in an abusive way to unfairly take advantage of another party.
In Hurst and Gill, it seems that the SRA did not properly assess the correct boundary. This is important because over-regulation here not only imposes a chilling effect on a client’s freedom of action within litigation, but may also inhibit the solicitor advising on what steps they can properly take on their client’s behalf.
The Legal Services Act 2007 sets out a series of objectives by which the SRA is required to frame its decision-making which includes protecting and promoting the public interest; supporting the constitutional principle of the rule of law; and improving access to justice. We believe the SRA should consult on how it will approach this balancing exercise in future to ensure that it has a proper framework for deciding which cases to investigate. This will help mitigate the chilling effect of inhibiting solicitors from taking legitimate steps within on-going litigation.
These concerns come together especially with another difficult aspect of the SRA’s current approach, namely its role in investigating conduct in relation to proceedings already before a court. Solicitors are of course officers of the court. The historical origin of both the SRA’s and SDT’s powers has been through delegation by the courts of its disciplinary powers over its officers. Even now, s.50 Solicitors Act 1974 preserves the court’s parallel disciplinary powers over solicitors.
Generally, this co-regulation works well in practice. The difficulty is when the SRA decides to investigate a matter that is before a court. Whilst Gill and Hurst were pre-action cases, the SRA has also chosen to investigate alleged SLAPPs cases before the court, although none has yet come before the SDT. Such an approach is fraught with difficulty and exemplifies the chilling effect we have already mentioned.
First, there is the potential professional difficulty for the solicitor who has a duty to act in accordance with the obligations set out by Fancourt J. above, but is at the same time being investigated by the SRA for so doing. That difficulty may well be entirely caused by the investigation. Second, it means that there are two separate factfinding exercises being undertaken at the same time. In addition the SRA considers it is entitled to look a material that is subject to legal professional privilege, although that is being challenged in another SLAPPs investigation. As such the SRA can find itself in the position of seeking privileged material to determine whether it thinks the proceedings should have been brought at the very point where the need for that privilege is at its most acute.
Historically the SRA has been reluctant to become involved in live cases because of these difficulties but its approach seems to have shifted recently. Equally, the tactic of opponents in litigation reporting conduct to the SRA during the course of a matter has also grown, and the SRA acting on such complaints will only encourage more complaints for tactical reasons.
Whilst there may be circumstances where the SRA might need to investigate a live case, that should be a truly exceptional case and the SRA should adopt a clear policy that normally it will await the outcome of the case before starting its own investigation.
The authors note that the SRA’s new CEO, Sarah Rapson, has acknowledged the need for a re-set in the way the SRA undertakes its work. The matters we have canvassed above must come near the top of the SRA’s agenda as it examines what the re-set needs. The CLLS – representing over 70 member law firms and 22,000 solicitors – welcomes the opportunity to collaborate on this important aspect of professional regulation.
Iain Miller is a partner at Kingsley Napley LLP and chair of the professional rules and regulation committee of the City of London Law Society. Colin Passmore is chairman, City of London Law Society
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