SRA warns solicitors about SLAPPs litigation
Without prejudice: recipients should generally be able to disclose they have received legal letters
The Solicitors Regulation Authority (SRA) has warned solicitors not to get involved in litigation aimed at silencing legitimate critics, known as ‘strategic lawsuits against public participation’ or SLAPPs.
The SRA is concerned, alongside increasing public concern, some solicitors in England and Wales are using SLAPPs on behalf of their clients to prevent publication on matters of public importance, such as academic research, whistleblowing or campaigning or investigative journalism.
It has published a warning notice that sets out its concerns and advises law firms not to act for clients in this way and outlines some of the activities that it would view as abusive litigation.
The warning acknowledges firms and solicitors may have a legitimate role in encouraging journalists and others to ensure that what is published is legal and accurate, but that proceedings must be pursued properly.
Examples of abusive conduct or misuse of the legal system cited in the warning include bringing cases or allegations without merit, making unduly aggressive and intimidating threats, or claiming misleading outcomes, such as exaggerated cost consequences or imprisonment in a civil claim.
As well as reiterating the government’s three-part test for identifying a SLAPP, the notice also touches on other red flags firms can use to identify them, such as a client requesting the firm targets individuals instead of organisations or that they bring it in a jurisdiction unconnected with the parties or events.
The SRA also warned against incorrect or misleading marking of correspondence, for example as ‘private and confidential’, or ‘without prejudice’. Although such notices may be appropriate in some circumstances, solicitors need to ensure they are appropriately used. This is particularly important where the recipient may be vulnerable or unrepresented. The SRA said unless there is a specific legal reason which prevents this, recipients of legal letters should generally be able to disclose they have received them.
Paul Philip, SRA Chief Executive said: “SLAPPs pose a significant threat to the rule of law, free speech and a free press. The public rightly expect that solicitors should act with integrity. They should not be misusing litigation to prevent legitimate scrutiny from journalists, academics and campaigners.
“This warning notice again makes clear our expectations. The right for clients to bring legitimate claims and for solicitors to act fearlessly in their interest is important. Yet representing your client’s interests does not override public interest obligations, so when solicitors cross the line into SLAPPS, we will take action.”
The SRA has also prepared information for those who may be the target of SLAPPS on what to look out for and how to report any potential misconduct.
The SRA is already investigating 29 cases where firms might be involved in SLAPPs. It has also been in contact with MPs who have raised similar concerns in parliament for further information.