Letters roundup

Navigating SLAPPs 

Two recent articles where the SDT has dismissed complaints against solicitors at Carter-Ruck and Hamlins demonstrate the difficulty of holding solicitors responsible in the event of SLAPP litigation by their clients.

The general principle is well-founded and so obvious that it hardly needs stating. A solicitor may not advance a case which s/he knows to be untrue and moreover which s/he knows is commenced for an entirely illegitimate purpose. At the very least, a solicitor who followed such a course would be misleading the court and assisting their client in an abuse of process. The result would rightly be a serious professional sanction and/or an action for contempt.

I imagine few clients walk into their solicitors stating that they wish to commence wholly misconceived litigation against a smaller opponent to blackmail them into withdrawing some public criticism. If they did so, I imagine that any reputable solicitor would refuse to act. Furthermore, most solicitors are only too well aware that there is a clear line between acquainting an opponent with the possible consequences of what they have done/are doing and making an unjustifiable and unsupportable threat. 

In reality, the situation is likely to be much more nuanced. A solicitor may advise the client that the proposed litigation stands little prospect of success. That solicitor may be reassured by his client asserting that the proposed defendant’s comments are scurrilous untruths. It will be rare, especially at the commencement of a case, that the solicitor is able to objectively evaluate what s/he is being told. What is the solicitor supposed to do? Refuse to act because the client might be engaged in SLAPP litigation? In such circumstances, that solicitor might find themselves having to explain why s/he terminated the retainer other than as permitted by the rules. 

I would assume (possibly a large assumption) that firms that do this work have a pre-printed pamphlet for their clients explaining what SLAPP litigation is, providing information on the potential position of the solicitor, and what is and is not an acceptable action in the courts. They will also keep a careful file note stating that the pamphlet has been provided. If their client insists that the claim is legitimate and there is no evidence that it is a SLAPP claim, what more is the solicitor supposed to do? 

Should the solicitor act if the proposed action might be a SLAPP? Most litigation between wealthy individuals and less well-heeled opponents would fall into that category. Are wealthy people then not entitled to legal representation? If there is a suspicion, what are they supposed to do about it? Must they attempt to confirm the position? What if they cannot? 

This was always a complete minefield. The regulator needs to be much more specific about what is permitted and what is not and, moreover, what it expects of solicitors who find themselves instructed who later become suspicious that litigation is illegitimate. It may be that parliament needs to be involved. 

SLAPP litigation needs to be stamped out. It is an abuse of power by a privileged few. Expecting solicitors to do it on behalf of the state is wholly unreasonable.

J. Howard Shelley

K.J. Conroy & Co, Birmingham

Stress test jury curbs

There is no doubt court delays are causing frustration and, for many survivors of abuse and other serious crimes, pain and distress.

But from my perspective, juryless trials are not the answer. Particularly as those court delays are largely due to court closures and a systemic lack of funding in the system. Jury trials are a fundamental cornerstone of our justice system, and restrictions need to be treated with concern – even with Lammy rowing back on the original plans.

Child abuse was not mentioned as an indictable offence that would automatically receive a jury trial, and many child sexual abuse offenders get less than a three-year sentence. 

Without juries, who bring their own valuable life experiences to the courtroom to assess guilt and innocence, we could see survivors who have been abused by an employee of the state – a teacher, for example – being investigated by the state; prosecuted by the state; and having their guilt/innocence decided by the state. I am not convinced that would be a healthy state of affairs. We need public buy-in to ensure that justice is delivered and I am just not convinced these new proposals will achieve this.

It also isn’t clear what mechanism will be used to decide whether an accused charged with such an offence is likely to receive a sentence of up to three years. But assuming the defence has a say, this could create a perverse incentive for them to characterise alleged offences as being more serious to get the case before a jury. This could undermine the very purpose of Lammy’s plan to reduce delays. 

Rather than wading straight into change, a pilot, testing the water, could be a better way to stress test this major change to our courts. If it does not achieve its stated aim – to reduce delays – we need to find another way. 

Alan Collins

Partner, abuse claims team, Bolt Burdon Kemp, London