The November 2022 SRA warning notice on strategic lawsuits against public participation (SLAPPs) was issued following much-publicised concerns around wealthy individuals using threats of legal action to silence their critics. The intent was laudable and its message has no doubt hit home. Do issues arise, however, when prosecutions are brought in respect of historical allegations, said to have taken place under a previous regulatory regime?
This is a difficult area in which free speech advocates clash with legal professionals charged with preserving the reputation and/or privacy of their clients, often from unscrupulous attention. The debate also invokes concern about the friction between a solicitor’s obligations to their clients and the wider ‘public interest’, how to strike a balance between them, and the important question as to whether that balance has changed.
The Solicitors Regulation Authority is responsible for promoting the Legal Services Act 2007’s regulatory objectives, which include upholding the rule of law and encouraging an independent, strong and effective legal profession. They also include maintaining adherence to the act’s professional principles. These incorporate a requirement for solicitors to act with independence and integrity, to act in the best interests of clients and to keep their affairs confidential. The SRA is also bound by a Regulators’ Code which requires it to provide clear information, guidance and advice to those that it regulates.
The SRA is obliged to make rules to enforce the regulatory objectives. These must be proportionate and targeted only at cases where action is needed. To this end, it now has an enforcement strategy which includes ‘conducting thematic reviews of areas of risk’. Some recent examples include focus on sexual harassment and bullying, as well as attempts to cover them up. Pursuing those suspected of abusive litigation (including SLAPPs) is unquestionably another.
To date, there have been three high-profile SLAPP prosecutions brought by the SRA. Ashley Simon Hurst was fined £50,000 by the Solicitors Disciplinary Tribunal in May 2025 after having been found to have improperly sought to restrict journalist Dan Neidle from publishing their correspondence about Nadhim Zahawi. This decision is under appeal to the High Court, with a hearing scheduled for November. The conduct complained of took place in July 2022 (months before the warning notice was published).
The remaining two prosecutions are those of Hamlins partner Christopher Hutchings and Carter-Ruck partner Claire Gill. The alleged conduct complained of against Mr Hutchings took place in October 2018, and that of Ms Gill took place in 2017. Both Gill and Hutchings strenuously deny the allegations against them. The hearing of the case against Hutchings began on 13 October. In December, the SDT will hear an application by Gill for summary dismissal of the case against her. Two highly experienced and senior lawyers, both experts in their fields, are being prosecuted for alleged misconduct which took place seven and eight years ago, respectively. While it would be inappropriate to comment on the detail of these proceedings, it is worth considering the wider issue of the fairness of historical prosecutions in this area.
Why does this matter?
The whole regulatory landscape has altered substantially since 2019. The SRA introduced its current Principles on 25 November 2019 alongside its Code of Conduct. The statutory definition of a SLAPP can be found in the Economic Crime and Corporate Transparency Act which was enacted on 26 October 2023 and came into force only this June.
Both the Hutchings and Gill prosecutions are for purported breaches of a different regulatory code instituted in 2011. Solicitors will recall that between 2011 and 2019, they were subject to a code of conduct which was focused on ‘outcomes’. This regime was described by the late Andrew Hopper QC and Gregory Treverton-Jones KC in their Solicitors Handbook 2013 as shifting ‘to the regulated individual or entity to deliver satisfactory outcomes for consumers based upon an overarching set of ethical principles’. Note, the emphasis on delivering satisfactory outcomes for consumers – i.e. clients. Solicitors will no doubt recall the primary objective of acting in their client’s best interests.
It is also instructive to look at what the SRA itself said when launching the new 2011 regime. It described its then rulebook as ‘too prescriptive’ and encouraged firms to have ‘the flexibility to do new and better things for consumers’. It also declared ‘the freedom to practise innovatively which will be good for consumers’. On the question of its enforcement policy: ‘effective, fair and proportionate’ with a focus on ‘the things that really matter for consumers’.
In their summary of the then ‘outcomes-focused regime’, Hopper and Treverton-Jones said: ‘The SRA must therefore have, and if necessary acquire, an understanding of the way that, for example, niche practices or those with particularly sophisticated clients work in ways that are different from, say, a bulk claimant personal injury practice.’
Between 2011 and 2019, the outcomes were mandatory. It is fair to say that reputation protection was a niche practice.
There is guidance from the SRA available to solicitors today that where there is a conflict between the Principles or Code of Conduct then those that protect the wider public interest take precedence. Again, that guidance did not exist before 2019, probably because the regime was primarily focused on the client.
In complying with the statutory regulatory objectives, the SRA is required to uphold the rule of law. The rule of law requires compliance with the European Convention on Human Rights, such as the Article 6 right to a fair trial. This includes a hearing without unreasonable delay. It has long been accepted that Article 6 is applicable in professional disciplinary proceedings.
There are numerous examples of the SDT staying proceedings because delay is unreasonable. The greater the prejudice to the process, the stronger the argument that the matter ought not to proceed. While the SRA may point to the presence of correspondence, attendance notes, and other archival filings as a means of arguing that records vitiate those concerns, most solicitors will find it difficult to recall the names of old cases, let alone give colour to the decision-making processes behind them. Records are often incomplete and memories fade. Prosecuting experienced solicitors for supposed misconduct nearly 10 years after the event has the propensity to cause real injustice. While the targeting of some misconduct, dishonesty, sexual harassment and bullying, for example, may transcend any cultural shift, that requiring a careful interpretation of the balance of competing interests does not. The overzealous pursuit of SLAPP complaints risks serving no interest other than the unfettered promotion of free speech. That is not a regulatory objective.
Nick Brett is a partner at Brett Wilson
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