In depth: SLAPPs - case for new legislation is gaining momentum

Three partners at different firms have so far faced the Solicitors Disciplinary Tribunal over alleged SLAPPs (strategic litigation against public participation). While all three prosecutions ultimately failed, nobody has come out of the regulatory process unscathed – least of all the regulator itself.

This is a fairly new landscape for the SRA. The regulator first published guidance on SLAPPs in 2015 and issued a warning notice in November 2022. In its first prosecution for alleged SLAPP-like behaviour, two years later, Osborne Clarke partner Ashley Hurst denied misuse of a ‘without prejudice’ email header. The SDT found the charges proved – though it said the email complained of was not a SLAPP – and Hurst was fined £50,000 and ordered to pay £260,000 costs. 

A year on, Christopher Hutchings, of London firm Hamlins, appeared before the SDT accused of making assertions which were false and/or misleading in a telephone call with another solicitor. Hutchings denied any wrongdoing. After a substantive hearing, all three allegations were dismissed. Written reasons have yet to be published.

Finally, Carter-Ruck partner Claire Gill was alleged to have sent or arranged to have sent an ‘improper threat’ on behalf of a client who later turned out to be involved in a crypto fraud. Days after Hutchings was cleared, the SDT granted her application for the charges to be dismissed. The SRA said it is appealing. 

In the meantime, Gill is seeking £1m costs from the SRA over the failed prosecution. In a costs hearing this month, the SRA argued that a costs order against it would have a ‘chilling’ effect on its work and inhibit the regulator from ‘taking on media lawyers in the future’. The hearing was adjourned for the tribunal’s deliberations and decisions. 

'SLAPPs are successful because they can force people into silence through legal intimidation'

Co-chairs of the UK Anti-SLAPP Coalition

The regulator’s woes were compounded this week when Mrs Justice Collins Rice, sitting in the Administrative Court, allowed Hurst’s appeal. In her judgment, she described the SDT’s decision against Hurst as ‘insufficiently analysed and reasoned, vitiated by misdirection and error of law, and unfair’. Another troubling feature, she said, was ‘the vehemence and disparagement’ with which the tribunal’s judgment was expressed. She set aside the SDT’s order ‘and the decision and determinations on which they were based’.

Hurst said: ‘I’m relieved to have been exonerated by this comprehensive judgment.’ Asked what happens next, an SRA spokesperson told the Gazette: ‘We are considering the judgment before deciding on next steps.’

So where does the SRA’s anti-SLAPP campaign go from here? Iain Wilson, managing partner of media firm Brett Wilson and vice chair of The Society of Media Lawyers, has said the SRA should simply move on (see Leader, p3). However, the regulator continues to receive complaints of so-called abusive or intimidating litigation. In 2023, while appearing before a House of Lords Committee, then chief executive Paul Philip said some 40 suspected SLAPP cases were being investigated. In a subsequent thematic review, the regulator confirmed it had ‘40 live investigations linked to SLAPPs’.

Asked by the Gazette for an updated figure, the SRA said this week it was not releasing new data. The cases covering potentially abuse litigation are ‘wider’ in scope ‘than just SLAPPs cases’ and figures would ‘not be comparable’ to those previously released.

The co-chairs of the UK Anti-SLAPP coalition said the decision in Hurst was ‘highly concerning’, adding: ‘SLAPPs are successful because they can force people into silence through legal intimidation, right from the earliest stages of the legal process. Fundamentally, such tactics should be unnecessary in due legal process, yet [the] decision will likely – and sadly – further embolden this type of behaviour.’

With possible appeals and an ‘eye-watering’ costs order yet to be decided, the answer to the question of how to properly regulate SLAPPs seems to remain anybody’s guess. However, the case for new legislation may be bolstered as a result. A private member’s Strategic Litigation Against Public Participation Bill, which would broaden anti-SLAPP measures in the Economic Crime Act, is scheduled for a second reading next month. 

Additional reporting by Michael Cross