Introduction
My page on what a SLAPP is (a Strategic Lawsuit Against Public Participation) attempts to answer what a SLAPP may be, and how it may affect the person they are brought against.
As I explain on discussing what a SLAPP is, since the Economic Crime and Corporate Transparency Act 2023 came into force, in particular Section 194 and Section 195, certain types of SLAPPs (if identified) can be struck out.
There then follows the question as to whether a straight up SLAPP could be avoided, through the type of claim brought. So, some logical questions follow:
- Are SLAPPs ‘legal’?
- Can a solicitor or legal professional be involved in a SLAPP?
Like many legal issues, the answer is “it depends”. But I try to deal with each of the depending factors below.
SLAPP’s are often disguised
Solicitors and legal professionals know that SLAPPs are becoming issues of concern for the Solicitors Regulatory Authority and the Courts – in fact the SRA has issued a clear warning on SLAPPs. Accordingly, it is is unlikely a solicitor will take instructions from a client who says in a straight up way “I fancy issuing a SLAPP against person X” – and any smart client is likely not to give that direct instruction.
Instead, clients will try and veil SLAPPs pretending they are bringing litigation for genuine reasons. Serial litigator and court abuser Andrew Pilley was infamous for issuing multiple threats and claims against individuals who dared to speak out about the fraud his was committing. He used multiple firms of solicitors across Manchester and the North West and issued multiple claims in the High Court – but did so with the false premise there was a “campaign” against him and former employees who spoke the truth about him, were lying.
Solicitors, perhaps in good faith took instructions from Pilley – but there became a point when Pilley accused literally everyone of being involved in a ‘hate campaign’ including ex-employees, former customers, the BBC, Ofgem, the Telegraph, the Daily Mail and Trading Standards – and it would have been clear that so many many people couldn’t all have reasons to dislike him that much without good reason, despite his pleas of innocence.
Pilley is now in prison serving 13 years for – you guessed it – fraud.
So the point is that solicitors working for Pilley may have believed his instructions, at first – and not realised what they were getting into. When they did realise what they were into is a whole different story!
Are SLAPPs Legal?
Well, there are probably 3 answers to this “yes”, “no” and “maybe”.
It should be pointed out that technically there is yet to be any firm Judgement from any Court in the UK that says specifically SLAPPs are “illegal”. However there are plenty of claims which probably constitute as a SLAPP, which the Courts have dismissed as being baseless, lacking any merit, or an abuse of process. But there has (to my knowledge) been no direct connection between the use of the actual phrase SLAPP and a connection from any Court that a SLAPP is “illegal”.
So, a SLAPP therefore is going to depend on the facts of each case……..as lawyers say “it depends”. But let’s look at the three answers as to if a SLAPP is ‘legal’:
When SLAPPs are NOT legal or are ‘illegal’
An obvious example of when a SLAPP is not legal is when a claim had been made dishonestly.
For example, if Person A says X about Person B, and Person B knows that it’s provably true – then to bring a claim for defamation against Person A with a clear denial of its truth – is clearly ‘illegal’. It would be clearly ‘illegal’ because Person B would by lying in any Particulars of Claim, which is supported with a statement of truth. It is a contempt of court to sign a statement of truth without a belief that it is true.
In the lead up to any Trial on the issue, there will be disclosure, witness statements, and of course live witness evidence at Trial.
Under Civil Procedure Rule 31.6(b), a party to litigation is required to give disclosure of documents (or other material) which may (a) adversely affect their own case, (b) adversely affect another party’s case, or (c) support another party’s case. When giving disclosure under CPR31.6, each party is required to complete an N265 form, which confirms by way of statement of truth that searches have been undertaken under CPR31.6. A dishonest Claimant will of course conceal and suppress documents which do adversely affect their own case or support that of their opponent. In doing so, it means the statement of truth on the N265 has been signed falsely, that the Court has been deprived of evidence to fairly conduct the Trial; and thus it amounts to a contempt of court to conceal evidence that should be disclosed under CPR31.6.
Witness evidence is also an area where dishonest Claimants will lie. Person B may write a witness statement explaining why Person A is lying. In the recent case of Craig Wright, Mr Justice Mellor found that Wright had taken extensive steps to produce forgeries to the Court to claim he was the author of a Bitcoin White Paper; when he ultimately found he was not. Without commenting on that specific case, in general terms, witness statements also require a statement of truth – and those found to have lied in witness statements can be found in contempt of court.
The same applies with oral evidence. If a witness gives oral evidence at Trial which they know to be false, that amounts to perjury. Those who commit perjury can be found in contempt of court.
Ultimately, in any of the above scenarios, lying to the Court will result in contempt proceedings. Contempt proceedings can result in imprisonment or fine, and a criminal record.
So, in these examples, if someone conducts themselves in this way in litigation – it is illegal.
When SLAPPs MAYBE legal or not ‘illegal’
So, this is where it becomes a tricky/grey area.
Giving the above example, where Person A says X about Person B, and that what is said is defamatory at common law (ie an allegation of dishonesty). At that point, the burden of proof sits squarely on Person A’s shoulders to prove what they have said is justified and/or true.
Person B may know that what Person A has said is provably true – but if they plead the claim on the limited basis of making Person A prove it – they may be circumventing actually having to admit or deny anything.
Technically if Person B is smart, they can simply plead in any Particulars of Claim that they have been ‘defamed’ by Person A; and leave it all down to Person A to justify themselves in any Defence.
Of course, this is only going to work for a limited period of time. Any good defence lawyer will immediately be placing pressure on Person B, probably via a Request for Further Information (RFI) under Civil Procedure Rule Part 18, to state whether the deny any truth in defamatory statement. This is where Person B needs to be careful, as RFI’s are treated the same as pleadings; and require a statement of truth.
Ultimately, there then follows disclosure, witness statements and oral evidence – it’s extremely unlikely Person B will ever be able to (honestly) get through all those phases without providing any admission as to the truth of what Person A has said – and if they say it’s not true, and they are found to be lying – then it’s claim over and possibly more contempt proceedings!
Of course, the real objective of a SLAPP would be to pressure Person A into capitulating at an early stage – probably before a Defence is even served…….so at that point, albeit the dominant motive of the claim is that of a SLAPP, if Person A does capitulate, technically Person B has not done anything illegal. Yet.
When SLAPPs ARE legal or not ‘illegal’
Again, the usual notes of caution applied. I am not saying a SLAPP ever is ‘legal’, however, since no Court has ever declared a SLAPP by its very nature is illegal; it follows there must be a ‘type’ of lawful SLAPP.
A good example bringing ‘lawful’ SLAPP could be a Lawful Conspiracy claim.
The person(s) making the conspiracy claim may well know that ‘conspiracy’ is lawful. But that doesn’t stop them bringing a claim for damages, and ‘testing’ their damages claim out in the Court.
Of course, it becomes an thing expensive to defend and Defendants may well capitulate in their early stages – despite their actions being entirely lawful, and despite the Claimant not being entitled to any damages. However, a Defendant may not simply be in the financial position to spend hundreds of thousands on solicitors and barristers to defend such claim – or be able to afford the damages/costs if they lose.
So, sadly, in this case – its a case of Mohammed and Goliath; and the SLAPP probably would be legal (albeit intended to cause harm) – assuming the Claimant(s) give honest disclosure and evidence.
Can a solicitor or barrister be involved in a SLAPP?
The Solicitors Regulatory Authority are seemingly clamping down on SLAPPs, and expressing their displeasure towards them.
As I have said above, it follows that a client instructing solicitor with the phrase “I want to issue a SLAPP”, ought to be turned away and the request refused.
The question is is what happens when those are not the specific instructions, but the solicitor suspects a SLAPP – or it is obviously a SLAPP in disguise.
Unfortunately, this it seems will be down to a judgement call on the solicitor (and/or barrister), and of course will again depend on the facts – and some may be persuaded if their client is prepared to pay them lots of money.
So…… are SLAPP’s legal?
As you can see from the examples above ‘it depends’, and is going to be very fact specific.
The Solicitors Regulatory Authority have clearly set out their distaste of SLAPPs, but to date there has been nothing conclusive from the SRA or the SDT on the actual consequences of SLAPPs, and the consequences of solicitors involved in them – especially ‘legal’ SLAPP’s. Any dishonesty of solicitors of of course a different story, and dealt with whether a SLAPP, or not.
The Courts have yet to define a SLAPP, or have yet to connect a SLAPP to actual illegality beyond the usual contempt issues; there is nothing specifically from the Courts to say SLAPPs are illegal.
So, a SLAPP can’t (yet) be defined as “illegal” the same way theft or robbery can. However, the conduct of the litigation may amount to being ‘illegal’ if it has been conducted honestly.