Action is needed to strengthen and clarify rules surrounding strategic lawsuits against public participation (SLAPPs), the Law Society of England and Wales said in response to a Ministry of Justice call for evidence.
“There’s a need for action against SLAPPs to prevent potential abuses of the administration of justice,” said Law Society president I. Stephanie Boyce.
“There’s a lack of clarity over exactly what a SLAPP is. Before exploring the issue, it is important to clarify the parameters of this kind of lawsuit. This would help ensure the discussion and any remedies emerging from it are sufficiently targeted and do not have unintended consequences, such as suppressing free speech or restricting access to justice.*
“The focus of anti-SLAPPs efforts should be on the current rules and improving existing court processes and procedures, including exploring methods which would ensure parties are operating on a more level playing field when it comes to costs.”
The Law Society suggests:
- strong gatekeeping by the judiciary to weed out spurious cases
- making robust changes to existing civil procedure rules
- more rigorous case management by the courts in terms of both case and costs management, with the point being that prolonged processes will inevitably increase costs
- limiting legal costs incurred during SLAPP litigation by exploring:
- an indemnity fund to help less well-resourced parties bring or defend a case;
- whether the use of legal aid would be feasible;
- fixing recoverable costs;
- whether qualified ‘one-way’ costs shifting would be suitable for these cases; and
- the readiness of the courts to allow indemnity costs
I. Stephanie Boyce added:
“The inequality of arms that often exists between claimant and defendant – where one party has more financial resource than the other – really needs to be addressed. Lower costs would benefit both parties.
“Any changes to the current costs system should be made based on careful research and be evidence-based.
“Wider reforms should also be proportionate and evidence-based, and should strike the right balance between freedom of speech – particularly where matters of public interest are at stake – and the right to respect for private life, which includes the right to protection of reputation – which are conflicting elements under the European Convention of Human Rights.
“Solicitors are held to the highest professional standards that set a high bar in preventing improper behaviour, while the Solicitors Regulation Authority has the powers to tackle bad behaviour.
“The robust professional rules in place already deal with inappropriate litigation or threats of such litigation of the kind characterised by a SLAPP. We therefore do not believe there should be any special rules in place to handle this.
“We look forward to working with the UK government as it looks to address the concerning use of SLAPPs litigation in England and Wales.”
Notes to editors
* The four features of SLAPPs include: the publication of information which would be in the public interest; exhibits certain behaviours such as the abuse of the legal process where the primary objective is to harass, intimidate and financially and psychologically exhaust an opponent via improper means; is an unmeritous claim; and meets the appropriate jurisdiction test.
The lord chancellor launched the consultation in March 2022 in a bid to respond to the challenges posed by the increasing use of SLAPPs
Read our consultation response in full
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