Introduction
It has been nearly two years since the SRA issued their SLAPPs warning, and appeared to be trying to tackle the issue.
I write about exactly what a SLAPP is here, but in short its course of legal action performed by either a litigant and/or its lawyers, when they know the threat of or actual litigation itself is meritless – but intended to intimidate or harass the ‘other side’ into backing capitulating, by threatening it anyway.
Wanting to be seen to be doing something the SRA began pursuing SLAPP cases, taking taking them to the SDT.
Ashley Hurst (Osbourne Clarke)
The first SLAPPs case was that against Ashley Hurst. This was an interesting case where he had implied that litigation may happen, but didn’t actually say what litigation, or assert any legal threat. Likewise, he sought to use the title of Without Prejudice – despite there not being a legal issue to resolve. The SDT fined Ashley Hurst £50,000 and ordered he pay £260,000 of costs. However, they stopped short at labelling what Ashley Hurst was doing was a SLAPP.
This week Mrs Justice Collins Rice overturned the SDT’s ruling. In my view it was wrong to do so. The conduct of Ashley Hurst was clearly using his position as a solicitor to make veiled threats, and seek to apply privilege where there was none, in order to suppress corrospondance. Despite Collins Rice’s views, it was inappropriate conduct of a solicitor to behave this was; Hurst’s behaviour was oppressive and misleading – this would have been even worse if sent to non-lawyers/litigants in person.
The fact that Mrs Justice Collins Rice began her legal career as a solicitor, may be indicative on the issue of slight bias on the matter – or even the levels of appropriateness she believes solicitors ought to uphold – which don’t seem aligned with the SRA’s. Whether the SRA appeal, this remains to be seen – I hope so!
Christopher Hutchings (Hamlins)
A case which was thrown out by the SDT in the early phases was that of Hamlins Solicitor Christopher Hutchings. He has allegedly behaved in a SLAPP-like way by threatening litigation during a phone call, where it was said not to be justified.
The Christopher Hutchings case looked wooly from the outset, and the reasons for actually striking out the claim were given behind closed doors by the SDT – so we’re never know why!
Claire Gill (Carter Ruck)
Another big failure of a SLAPP case was that of Claire Gill from Carter Ruck. In the case of Claire Gill, she represented OneCoin (which turned out to be one of the biggest frauds in the world) she also represented its conartist owner Ruja Igntova. Gill was taking instructions to threaten those who said OneCoin was a fraud, and do so with libel proceedings – albeit seemingly no proceedings were ever issued – a classic silencing tactic.
The SRA’s case was that Gill had reasonable suspicion to suspect fraud of OneCoin and Igntova, and did nothing to investigate. Likewise, the SRA’s position was as a result of Gill/Carter Ruck trying to shut those complainants up, it amounted to a “furtherance of fraud”.
The SDT said the SRA were wrong, and struck out the case against Claire Gill, in the same week it struck out the Hutchings case.
My view is there is something in the SRA’s case against Gill…. The question has to be what levels of suspicion Claire Gill ought to have had before refusing to act (this will of course be hidden behind walls f privilege). Even though they wouldn’t publicly admit it, most solicitors privately will have a red flag that a client of theirs may be a ‘bit dodgy’. In the case of Damian Carter, it took years of complaints, a criminal investigation and even his own clients to be sentenced for 13 years for fraud – and he still continued to deny any knowledge that his clients were involved in fraud, after they were convicted.
Surely, it has to follow that if a solicitor is (even by accident) involved in covering up fraud; they have been involved in a furtherance of it?
Perhaps the SRA will appeal and win? But let’s hope the Judge isn’t Mrs Justice Collins Rice!
The SRA’s Problem
The SRA have picked on Partners at top law firms (Osbourne Clarke, Hamlins and Carter Ruck), with deep pockets. Two of these failures (Hurst and Gill) have resulted in the SRA being on the hook for £1M of costs in each case.
As I said above, in the case of Hutchings it appeared to be a wooly case – but Hurst and Gill (in my opinion) ought to be appealed, as their conduct is demonstrable of solicitors taking advantage of others, or at least attempting to.
However, the SRA’s 3 test cases have now failed, costing a large amount of money….. Their unwavering SLAPPs notice made it clear that SLAPPs wouldn’t tolerated – but in 3 distinct cases where they’ve attempted to take action – it’s gone very wrong.
Conclusion
Where the SRA go from here remains to be seen. On the one hand, any firms the SRA pursues for SLAPP cases will be lining up to use the recently failed cases to bail themselves out. On the other hand, SLAPPs are an issue (especially solicitors seeking to take advantage of Litigant in Persons), and the SRA cannot soften its stance, because it’s found itself with a bloody nose.
There have been some small wins for SLAPPs; take for example the case of Mark Harrison, owner of Praxis who threatened everyone and his wife via solicitors Rosenblatt! Probably enough said!
