In the space of a week the Solicitors Disciplinary Tribunal has dismissed two separate prosecutions of solicitors said to be complicit in SLAPP-like activity. The prosecution of Hamlins partner Christopher Hutchings related to an alleged improper threat in a without prejudice call with his opponent’s solicitor in 2018. The case against Hutchings was dismissed following a six-day hearing.
Carter-Ruck partner Claire Gill was accused of making an improper threat in correspondence in 2017; her prosecution was summarily dismissed. Gill’s lawyers are seeking an estimated £1 million in costs from the Solicitors Regulation Authority.
These were the second and third of three high profile prosecutions brought against well-known media lawyers. A year ago, Osborne Clarke partner Ashley Hurst was fined £50,000 for making an improper threat to another solicitor by warning him against publishing legal correspondence. The decision is presently the subject of a High Court appeal; judgment was reserved last month.
I first wrote about SLAPPs in the Gazette in February 2023 when I warned about the need for perspective in the SLAPP debate. At the time, the SRA was under considerable pressure from campaigners and well-briefed politicians to take robust action against solicitors said to be complicit in SLAPP-like behaviour. Despite two thematic reviews and scores of investigations, little evidence of wrongdoing has emerged. Whilst well-intentioned, the regulatory assault on media lawyers is now doing more harm than good.
Like the mischief it seeks to address, the term SLAPP is open to abuse. It has become a standard alternative to a substantive defence for litigants-in-person facing defamation claims, many of whom have drawn false comfort from news articles and convinced themselves that any defamation claim is illegitimate and the regulator will come to their aid. Sadly, I have seen more than one litigant-in-person produce a holding letter from the SRA in response to a default judgment application or bankruptcy petition.
‘SLAPP’ is also used as a wildcard by self-titled ‘campaigning’, ‘citizen’ journalists, and a few professional journalists who see media lawyers and an individual’s Article 8 ECHR rights as an inconvenience. Better journalists and defendant lawyers use the term sparingly, preferring to focus on the merits of an argument: giving weak asserted claims short shrift, engaging in the facts where there is a public interest defence and making amends where there has been an obvious error. Defamation laws in the UK are fairly balanced, and we have a broad public interest defence. Attempts by lawyers to prevent the publication of a well-researched story are capable of being easily batted off. The much pitched and relatively rare example of a wealthy claimant intimidating the poor freelance journalist ignores the fact that there should be a queue of lawyers willing to assist on a defendant CFA if a publication is defensible. Defendants are also able to seek ATE insurance policies to guard against the risk of an adverse costs order.
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They may not readily admit it, but experienced journalists no doubt recognise that in the existential battle between the mainstream media and social media disinformation, UK defamation law is an asset. It holds their publications to a higher standard and encourages quality investigative journalism. This benefits us all: accuracy, fairness and balance have never been more important in a post-truth age.
Legislators succumbed to lobbying from media organisations to shoehorn anti-SLAPP provisions into the Economic Corporate Crime and Transparency Act 2023 (ECCTA). These allow a defendant to apply to the court to have some claims designated a SLAPP and seek early dismissal or costs protection. The courts are yet to hear an application. This is likely because of the requirement for a defendant to prove the claimant is conducting a claim with the intention of harassing a defendant (or causing them some other expense or inconvenience beyond the norms of litigation). Whilst a defendant in any litigation may well feel harassed, this will rarely be a claimant’s intention; the motivation will nearly always be vindication and/or the suppression of harmful information.
The ECCTA provisions add nothing meaningful to the court’s existing power to strike out any claim that amounts to an abuse of process - which a judge would not hesitate to do if a claim was a SLAPP. The fact that this does not happen on anything approaching a regular basis highlights the scale of disinformation that triggered calls for a SLAPP clampdown. The proposition was that the libel courts were monopolised by Russian oligarchs bullying freelance journalists. This was highly misleading. Indeed, more often than not, the defendant is the more powerful party. Yet 14 cases cherrypicked by campaigners from 2021 became the then government’s evidential basis for reform.
In December 2024, Professor Paul Wragg published a paper commissioned by The Society of Media Lawyers that heavily critiqued the evidence basis. His conclusions were stark: the evidential basis for reform was flawed because the definition of SLAPP was too broad (risked undermining Article 8 rights) and the evidence of a UK SLAPP problem was inaccurate and misleading. He recommended a moratorium on further reform until the Law Commission had investigated.
There are, of course, valid questions to be asked about lawfare. As a society, if we want to punish those who instruct lawyers to threaten claims based on dishonest instructions, there are ways we can seek to do this through legislation. But the wrongdoer is the litigant, not a lawyer following instructions in good faith.
The prosecution of Gill represented a particularly alarming development which, had it succeeded, could have had seriously wide consequence for access to justice and the presumption of innocence There was no dispute that Gill's former client was a fraudster and that her firm had been used to seek to supress legitimate criticism, but she did not know this at the time. As the tribunal held, 'The letter was sent in pursuit of a legitimate attempt to protect the client’s reputation…It would be wholly inappropriate to hold a solicitor responsible for a client’s later discovered fraud where the solicitor was unaware of it and was acting in good faith on instructions.' Contemporaneous correspondence showed that Gill’s advice 'was measured, professional and conscientious', Gill was 'acting on explicit client instructions and had no evidence to believe the instructions were not genuine'.
Gill’s lawyers argued that were the SRA’s case to succeed, 'The legal and practical effect would be that the solicitor could not act on the basis of his client’s instructions … but would have to conduct inquiries (or “due diligence” as the SRA has termed it) to satisfy himself that the client’s claim for defamation will succeed…That would involve setting himself up as judge of his own client’s case, or a pre-trial screen, an idea that runs contrary to fundamental principles of law that govern the constitutional role of lawyers in the legal system.'
In any legal dispute, there will normally be a loser, but running a case in good faith should not put a lawyer in regulatory trouble. There would be no criminal lawyers, never mind media lawyers, if they faced sanction for unwittingly advancing dishonest cases. Media lawyers understandably feel singled out; it is difficult to think of a branch of the profession that has been subject to this level of scrutiny in recent years. Seeking to blur the line between lawyer and client or asking us to disbelieve clients has a profound effect on access to justice. Everyone has the right to representation, and it is not the role of a lawyer, journalist or regulator to undermine that. Saying that we are ‘hired guns’ for adhering to centuries old principles of fairness, rule of law and equality is both cynical and dangerous.
Iain Wilson is the managing partner of media law firm Brett Wilson and vice chairperson of The Society of Media Lawyers. His firm acts for claimants and defendants in media law disputes
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